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Consequences of a criminal conviction in Australia

The greatest concern of clients pleading guilty to an offence is the effect this will have on their employment. In most Australian States and Territories there are spent conviction laws that operate so that any sentences given with or without conviction will not appear on police checks.

The principle behind spent convictions is that people should not have a life sentence for bad decisions in the past that were a one-off instance or an error of judgment.

Previously, the only way in Victoria to avoid this was to be accepted on the Diversion Program or to have the charges fully withdrawn.

Spent convictions laws

The Victorian Parliament has passed the Spent Convictions Act 2021 which has the effect that:

• Convictions for non-serious convictions will be spent after 10 years for adults and 5 years for children provided there was no further offending;
• Sentences given "without conviction" will be immediately spent;
• Convictions for children under 15 will be spent immediately;
• It will be unlawful to discriminate against a person who has had a spent conviction.

A 'serious conviction' is defined as finding of guilt which resulted in a jail sentence of more than 30 months, a finding of guilt for a sexual offence or a finding of guilt for a serious violence offence. For these convictions, a person can apply to the court to have their conviction classed as spent.

MyDefence lawyers assist their clients in avoiding convictions by creating strategies and crafting pleas of guilty to be designed to offer the best chance of being sentence without conviction.

This will also mean that clients do not have to go to the expense and risk of taking their matter to a Contested Hearing if a sentencing indication from a magistrate indicates a sentence without conviction.

Criminal charges from violent threats

Threatening another person with violence can include:

• Threats to inflict serious injury; or
• Threats to kill.

However, it is not always the case that the threat can be proved by police beyond reasonable doubt.

Elements of the offence

1. The accused made a threat to the complainant to inflict serious injury/or kill upon either the complainant or another person;
2. The accused either:
   1. intended the complainant to fear that the threat would be carried out; or
   2. was reckless (in that they probably should have known) as to whether or not the complainant would fear that the threat would be carried out; and
3. The threat was made without lawful excuse.

The grey area - only serious threats matter

At first it may appear that these are difficult charges to defend as it is easy to be reckless in making a threat. If you think about environments where passions run hot such as football games, or even out socialising with friends and have had a few too many drinks.

However the circumstances and the nature of the relationship between the victim and accused person is important. If a relationship between two persons is dysfunctional and words such as "do that again and I'll kill you" becomes between the two people, then the threat is not a threat that would attract a criminal penalty.

Words in the context of the relationship matter which means that only serious threats can be successfully prosecuted.

How police use victim statements

When police charge a person (the accused) for committing an offence against another person (the victim), a formal complaint is required by the victim in order for the police to proceed with an investigation. Police will take a signed and witnessed statement from the victim outlining what the accused did to them. Police will then use that statement as evidence to prove the offence in court.

Victim doubts their recollection

Sometimes victim statements are made in the height of anger, or while the victim was under the influence of alcohol or drugs. Often the victim has second thoughts and have doubts about their recollection as to what had actually occurred at the time of the incident.

We find this typically in the case of domestic partners having an argument that gets out of hand and escalates to the point where police have attended and someone is charged. Often partners reconcile but the charges are still on foot. The victim wants the charges dropped so that their partner doesn't end up being sentenced and possibly convicted, all which will impact their criminal record.

In cases like this, the victim can attend their police station and tell the arresting officer that they wish to make a Statement of No Complaint.

What is a Statement of No Complaint

A Statement of No Complaint is a statement made by a victim stating that they do not wish for charges to proceed against an accused person. What many people don't realise is that the police can still proceed with the case against the accused. For example the accused may have made admissions to the police in a recorded interview, or there may be CCTV footage that proves the offence.

Victims can still be issued a summons to attend and be compelled to give evidence even if they do not wish to do so. In the case of close relationships, s18 of the Evidence Act 2008 can operate to provide a privilege for de facto and married partners, parents and children. This privilege means that the victim cannot be compelled to testify against the accused.

Rather than simply stating that they wish the charges to be dropped, victims can write their own Statement of No Complaint and provide clarifications to the original statement taken by the police.

Example

Let's use the example of two friends John and Callum who one nigh had been drinking alcohol and ended up having an argument. The argument escalates to some pushing and shoving. Callum ends up losing his balance and suffering bruising to his arm. A neighbour hears the argument and calls the police who attend and separate John and Callum.

Callum tells police that John pushed him out of nowhere and he landed hard against a coffee table. Police take a statement from him that captures Callum's version of events. Police then charge John with assault.

The next day after he has sobered up, Callum does not want John charged as they are mates and have gotten over the night's events. He recalls that as he and John were both pushing and shoving each other and he can't remember who pushed who first. He also recalls that he and John were wrestling earlier and it started off friendly but they started challenging each other to see who can push who the farthest and it got a bit heated.

This recollection is important because it give John two defences to assault charges in that:

• not knowing who pushed who first means that John may have acted in self defence;
• by challenging each other to pushing each other, Callum has consented to being assaulted.

Both of these are valid defences to assault.

Callum's Statement of No Complaint may read as follows:

Statement of No Complaint

My name is Callum Smith (Date of Birth 22/08/95) and my details are known to police. 

On 22 January 2020, I made a statement to police relating to charges against John Sampson. I would like to provide this additional statement outlining that I would like the assault charge dropped against John.

I do this for the reason that on the night of the incident we had been drinking alcohol and my recollection is that I cannot definitely say who pushed who first. We were also wrestling each other just before the incident and I recall that we were being physical with each other and challenging each other to push each other as hard as we could. 

I would like to thank how the police have handled the situation and feel embarrassed that it has escalated to this level. On reflection of the incident, I do not think it fair that John should be charged with assault.

How Callum's Statement of No Complaint would be used

A statement like this would make it difficult to prosecute John even though Callum can be compelled to give evidence against John.

If the prosecutor decided to take Callum's matter to a Contested Hearing or trial, John's barrister would cross-examine Callum on his Statement of No Complaint which would substantiate John's defences.

Accordingly, the assault charge would unlikely be proven beyond reasonable doubt and John would be acquitted.

A criminal record can be detrimental to your work prospects and ability to do volunteer work. Often organisations will ask you for a National Police Check to see that you are of good character or suitable for the role. But not all criminal offences show up on a police check. We detail what and what doesn't show on your criminal record.

Firstly there are two types of criminal records in most states.  One that shows driving convictions maintained by your state's road authority, and one that is maintained by the police. A police check will show both, nationwide.

What will show up on a National Police Check

• Disclosable court outcomes including convictions, sentences, penalties;
• All findings of guilt, good behaviour bonds, community-based orders, and suspended sentences;
• Serious traffic convictions such as drink driving or dangerous driving.
• Any pending charges before a court.

It Check will display the following information:

• Description of the offence(s);
• The court where you were sentenced;
• The date that you were sentenced;
• The sentence description.

What will not show up on a National Police Check

• Where you're found innocent of charges;
• Where police withdraw charges;
• Traffic infringements and less serious traffic convictions;
• Diversion programs once you've completed them;
• Matters prosecuted by authorities other than the police, such as transport authorities;
• Spent convictions - convictions more than ten years old for adults and five for juveniles. Except for sexual offence convictions, prison sentences greater than six months, and corporate offence convictions.

It is clear there is a lot at stake for a person's future. We founded MyDefence so that clients don't have to stress about expensive lawyers fees and don't feel that they need to plead guilty to avoid more expense. This gives our client the best chance possible at avoiding a damaging criminal record.

All states have systems to not punish people for minor or first time offences and to give them a second chance. Importantly this avoids a criminal conviction. Examples of this are diversion and no conviction orders.

A criminal conviction can affect a person's job prospects for a long time where the most law abiding citizen has committed minor criminal offences because of errors of judgment or circumstances where they acted outside their character.

The criminal justice system does not want to punish people for these oversights of behaviour. We explain the two approaches below taken by Victorian and NSW courts.

Diversion program (Vic)

Victoria has a Diversion Program. This program takes the police charges outside of the criminal justice system and is dealt with separately like a good behaviour bond. Diversion is a great outcome where the charges can be proven and a finding of guilt is assured.

To have your matter considered for diversion, MyDefence negotiates with the prosecutor and charging police officer for their consent. If they consent, then a Diversion Hearing is scheduled.

Typical conditions for diversion include:

• You accepting responsibility for your actions;
• Not to reoffend within a given time frame e.g. 3, 6 or 12 months;
• Write a letter of apology to the Victim (if there is one);
• A small donation to the court fund.

At the end of the time period, all the charges are automatically dismissed and will not appear on your criminal record. You do not have to appear at court for this.

If you don't fulfil the terms of Diversion, then your case will progress through the court system. This still provides a chance for our lawyers to request the Magistrate to "prove and dismiss" the charges without conviction.

No conviction orders (NSW)

NSW enables Magistrates' to dismiss charges and order no conviction under sentencing legislation.

MyDefence lawyers will craft a plea to the court on behalf our client that draws all the circumstances to the attention of the Magistrate to help secure a dismissal of charges or a no conviction order.

This is also done with negotiation with the police and prosecution to not oppose our submission.

Criminal justice tends not to discriminate when it comes to the laying of police charges and the prosecutors' ability to prove those charges. Whether you have a clean criminal record or have been before the courts previously, you are treated the same.

Where circumstances seem genuinely unfair, we’ve often been told by prosecutors that “it’s not about fairness.”

Sausage factory justice

The “summary” stream of the court system can be likened the worst company you’ve ever done business with. Poor customer service, little directional signage, stone-faced staff with little patience for having to explain what is to them the obvious.

There is no purported ideal “experience”, no net promotor score sought from the customer at the end of their hearing, no friendly follow up emails.

On any given day the “accused” persons are told to be at court at 9.30am – the time dutifully written on their charge sheets or court attendance notices. For the first-time accused, they would be led to think that their matter will be heard at that time. Like an appointment time to be kept in any general business.

Not at the Magistrates’ or Local Court. Havoc and confusion is the daily staple to be consumed. Likening it to live cattle exports, everyone is forced into an enclosed space at the same time and one by one drip fed past a magistrate. The sheer volume of people places pressure on prosecutors and magistrates to clear the daily work load by end of day.

Never assume competency

As criminal defence lawyers, we are constantly exposed to inconsistency in the skilful application of the law. Whether by police laying charges, prosecutors prosecuting or withdrawing those charges, and magistrates sentencing those who are guilty of offences.

The overarching safeguard is a right to appeal any decision to a higher court. But this is more time and money that few people can stomach with the catch cry “I just want it over with” commonly pronounced.

But the consequences are great both short term and long term. Not wanting to risk being found guilty at a contested hearing or trial, many people facing charges decide to plead guilty instead. They hope that such a plea will give them a “without conviction” sentence.

The only pressure release is for prosecutors to withdraw charges so as not to risk the accused seeking costs against them if they were to lose.

Rolling the dice

Unfortunately throughout the whole process luck plays a big part with police and prosecutors.

Luck that the police officer:

• Charges the right person – we’ve experience clients who were assaulted and then had charges laid against them as the instigator;
• Understands the context of an offence and decides not to charge;
• Is objective and keeps their emotions in check;
• Recommends the person for Diversion (a process that leads to charges being withdrawn ultimately).

Luck that you get a prosecutor who:

• Knows the law;
• Doesn’t make up the law;
• When presented by a defence lawyer with the law, finds it all too hard and just defers a decision to a Magistrate;
• Has authority to make a decision;
• Is objective and keeps their emotions in check.

Example cases

To give an example, our client of sudanese background was riding a motorbike without a licence. A drunk Australian rules footballer illegally walked across our client’s path and he came off the bike.

Our client sustained injuries that left him in hospital for two days. Our client was charged and forced to front court, the footballer was given a fine (with the full PR machinery of his club in action).

We alleged that there was a bias in the charging police to providing leniency to a well known sports person. When explaining the situation to the prosecutor, all they said was that it had nothing to do with fairness.

We raised the issue with the magistrate who was sympathetic to our client and fined him, did not interfere with his drivers licence. However he gave him a driving conviction for riding unlicensed.

In another example, another client of sudanese background was charged with assault. On examining CCTV footage the alleged victim is shown pushing our client. The police recommended Diversion, however our this would have jeopardised our client’s desire to work in the security industry.

We rejected Diversion and informed prosecutors we will contest the charge. Ultimately the charge was withdrawn but on the condition of our client not seeking costs. While this was a good outcome for our client, he still had to bear the unfair cost of challenging what should never have been charges brought upon him in the first place.

Bringing fairness back into the system

We emphasise that there are many excellent police and prosecutors. At the same time, for the accused person, the stakes are high. Criminal records are lifelong and most employers now undertake police checks which can affect the employability of convicted persons.

Prosecutors need to be a greater check and balance on the police who lay the charges, too often they side with the charging officer.

There needs to be a process at the prosecutor level where there can be an appeal against the charges being laid in the first place. This should be only for people who have been charged with lesser crimes in arguable circumstances where fairness is an issue. And where it is highly likely that they will never be a return customer to the court system.

The appeal should be considered by a third party prosecutor (at a different location to the court hearing the charges) with the discretion to withdraw charges on the basis of fairness and where the accused is of good character.

The discretion should be allowed where there is no victim, or the victim negatively contributed to the offence faced by the accused. The prosecutor should be highly skilled in the law and the social impact of criminal convictions for different classes of accused persons.

The net effect

Such a reform would lead to a reduction in the casework before magistrates and court prosecutors, and lead to greater faith in the criminal justice system by society at large.

The net effect will result in better decision making at the police and prosecutor level in knowing that their decisions are under scrutiny by an overriding influence. But this is before the “all or nothing” stage of running a contested hearing which leads to many people pleading guilty even when they do not believe they should.

When you are  charged with an offence, the police will normally interview you. Sometimes it can happen without you knowing, such as being caught speeding - an officer will ask why you were speeding.

You may think this is just conversational, but in reality the officer is looking for an admission that makes for a stronger case in prosecuting you in court, if you choose to defend the charge.

At the same time people often think that by saying "no comment" to the police, it will make them look guilty. This is in fact not true. Accused persons have a right to silence, and providing a "no comment" interview is you asserting that right.

This is founded on the principle that police need to prove the charge against you and you are not obliged to help them do it. And courts are not allowed to draw an adverse inference from a no comment interview.

So once a police officer starts questioning you, you can make an assumption that it is for a good reason, and that reason may be to elicit a confession.

Summary offences

For summary offences, which are less serious offences such as minor driving offences, or being drunk in public, the police do not need to caution you. They can use anything you say as evidence later.

It is good practice to just say "no comment" to anything they ask you other than what you lawfully must tell them, such as your name and address.

Indictable offences

For indictable offences, which are more serious offences such as being caught with drugs, theft, or being in possession with weapons, police are obliged to inform you of your rights prior to questioning you.

In these instances, it is always advisable to say "no comment" and seek legal advice immediately after.

MyDefence lawyers are often surprised at how many of our clients have made admissions without knowing that what they said was going to be used against them.

So if you are ever interacting with the police because they are charging you with an offence, to be safe, it always advisable to say "no comment".

MyDefence lawyers work hard to either get charges withdrawn or lowered. Sometimes this happens in a plea deal with the prosecutor where our client agrees to plead guilty to lesser or fewer charges in order to get the more serious charges withdrawn.

We will only recommend this if we advise that the evidence that the prosecutor has will prove an offence. A plea of guilty also gets a sentencing discount of around 25% less than if a client ran a case to trial.

Pleading guilty - discretion of Magistrate

Even though a client may plead guilty, that does not mean our job is done. The magistrate or judge has wide discretion as to what penalty to impose at sentence such as whether:

• the offence is recorded with or without conviction on your criminal record;
• a good behaviour bond, corrections order or jail sentence should be imposed;
• the maximum penalty or a very small penalty such as a fine versus a jail sentence should be imposed;
• to defer a sentence to see how the accused person behaves over a period of time before imposing the sentence.

The Plea Hearing

For the court to make this decision, a Plea Hearing is held. We get an opportunity to inform the court about the circumstances of the offence and the background of our client. Factors that the court looks for are:

• Where the client acknowledges and admits their wrongdoing;
• Is apologetic and remorseful;
• A client's prior criminal history;
• Takes steps to make amends such as undertaking courses that provides insight to the offending, e.g. drug rehabilitation, anger management;
• Character references from employers, family, colleagues;
• Support from family and friends.

MyDefence lawyers have pleas down to a fine art. We connect our clients with services and character reference templates to get all the information aimed at securing the most minimum penalty.