MWTK: Spent conviction complaints

[malenko]

Since I have been convicted under hoon legislation I have been doing some reading on the spent conviction scheme. Basically the scheme sums up as such. Apply for a spent conviction during your appearance in court or wait 10 years to apply for a spent conviction.

Now what this means is, if you don't know anything about the spent conviction conditions, and the duty lawyer doesn't inform you about them, you must wait 10 years before you are eligible to apply for your conviction to be classed as spent.

What I want to know is, who can I complain to about 10 years being far too long?

The way I see it, if your eligible on the day of your court appearance you should be eligible any time after that. It seems a bit crazy to me that its either, you have no criminal record, or a criminal record for 10 years for the same offense.

[malenko]

Just to clarify I am wondering if I should ring the equal opportunity commission, or if I should write a letter to my local member of parliament about it, or if I should contact some other commission/form of government to register a complaint about the discrimination involved in this scheme.

[Red_is_Best]

I thought the applying for it while in court meant the judge ruled on weather you get one or not dependent on the scale/seriousness of your offense. If it is rejected then, then you can apply for it after another 10 years.

[malenko]

That is completely true, I just want to know why I can't take my case to court again and ask the judge to class my conviction as spent. Because I didn't ask the judge to do it on the day means I have to wait 10 years before I can ask for the court to class it as spent.

[Scoundrel]

Were you imprisoned, or fined $15,000 or more?

[malenko]

No to both, fined $1000 and 6 month loss of license.

[Scoundrel]

My reading of the Spent Convictions Act and Regulations indicates that the 10 year thing is mandatory and the Magistrate doesn't have the discretion to waive it. I guess it depends on what the alternatives were at the time - what were you charged with?

[malenko]

Your readings are correct, the Magistrate cant do anything about it with in that 10 years, its either on the day, or 10 years down the track, I was charged with reckless driving.

But to clear things up a little bit, I'm not asking for legal advice on what to do and what not. The fact of the matter is I cant apply for the spent conviction for another 10 years because I didn't apply on the date. I would like to make a little bit of noise in the right areas to see if this law/scheme can be ammended so that the magistrate does have the power to hear spent conviction claims after the date of the court case. I am asking who should I talk to about it, do I need to see a lawyer, is there a government department I can ring to get laws further investigated? how do I bring this to the attention of our politians so that they will go over the scheme and consider ammending it.

I understand why there is a mandatory 10 years, I am just more than slightly annoyed that I had only 1 chance to get a spent conviction, and the duty lawyer didn't inform me (assuming by mistake) and now I fall into the mandatory 10 years. I am confused that I am eligible for the scheme 1 day, then not the next, and wont be for 10 years.

[Brougham]

sue the lawyer?

[Rich]

Not sure it really matters with hoon laws...

It should be removed from your record in 5? years, and then you are on first offence again...

[malenko]

5years? sweet, I thought a criminal conviction stayed with you until you got it classed as spent?

And I have thought of that brougham, but I figure it would be a pretty hard fight and I don't have that kind of cash to back something that isn't a sure thing :p

[SOLID]

Not sure it really matters with hoon laws...

It should be removed from your record in 5? years, and then you are on first offence again...

Don't you still have to request for it to be removed? or have they changed it?

[Rich]

I don't believe it is a criminal conviction...

Just check, but it won't appear on your driving record after 5 years and it is only a driving offence...

[malenko]

It is a criminal conviction, I got refused entry into the defense force because I had my reckless driving charge on my criminal record.

[Scoundrel]

Your readings are correct, the Magistrate cant do anything about it with in that 10 years, its either on the day, or 10 years down the track, I was charged with reckless driving.

But to clear things up a little bit, I'm not asking for legal advice on what to do and what not. The fact of the matter is I cant apply for the spent conviction for another 10 years because I didn't apply on the date. I would like to make a little bit of noise in the right areas to see if this law/scheme can be ammended so that the magistrate does have the power to hear spent conviction claims after the date of the court case. I am asking who should I talk to about it, do I need to see a lawyer, is there a government department I can ring to get laws further investigated? how do I bring this to the attention of our politians so that they will go over the scheme and consider ammending it.

I understand why there is a mandatory 10 years, I am just more than slightly annoyed that I had only 1 chance to get a spent conviction, and the duty lawyer didn't inform me (assuming by mistake) and now I fall into the mandatory 10 years. I am confused that I am eligible for the scheme 1 day, then not the next, and wont be for 10 years.

If you don't like the conviction, you need to appeal it to the Supreme Court on the grounds that it is hindering your employment prospects and that you weren't afforded the opportunity by the court to fully appreciate the ramifications of your options

As for the law itself, the only way around that is Parliament passing a Bill to amend the Act and Regulations, maybe you could lobby your local member or one of the Greens MP's could entertain the prospect of introducing a Private Member's Bill into Parliament to effect the changes you desire. Don't like your chances though.

[fincl]

Appeal to Supreme Court?

Maybe apply to set aside conviction in Magistrates Court (Form 7 from memory)? Will need to attach an affidavit stating reasons however. As has been said, speak to your State Parliamentarian - problem however = they wont want to be seen as 'soft on crime' by providing a 'loophole' or other avenues of appeal for failure to give a spent conviction. Another problem = you will find Police Prosecutors will strenuously oppose spent convictions for traffic matters (e.g. try asking for 1 for a DD). They don't want the matter/conviction expunged from your record because otherwise you 'may' just go out and do it again. If you do ask for a spent conviction for traffic matters you will really have to tick the boxes in the Sentencing Act etc (see s.45 below):

45. Spent conviction order, making and effect of
(1) Under section 39(2), a court sentencing an offender is not to
make a spent conviction order unless —
(a) it considers that the offender is unlikely to commit such an offence again; and
(b) having regard to —
(i) the fact that the offence is trivial; or
(ii) the previous good character of the offender, it considers the offender should be relieved immediately
of the adverse effect that the conviction might have on the offender.

(2) A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the
Spent Convictions Act 1988.

(3) The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent
conviction order has been made.

(4) A spent conviction order is to be taken as part of the sentence imposed.

(5) A spent conviction order in respect of a conviction does not
affect —
(a) the right or the duty of a court to —
(i) disqualify the offender from holding or obtaining a driver’s licence under the Road Traffic Act 1974;
(ii) make any order under this Act or any other written law on convicting the offender;
(b) the operation of any provision of the Road Traffic Act 1974, or Part 15, relating to the cancellation of, or
disqualification from holding or obtaining, a driver’s licence under that Act;
(c) the duty of the offender to comply with the sentence imposed and with any order of the court in addition to
the sentence;
(d) the revesting or restitution of any property as a result of the conviction;
(e) any cancellation or disqualification that occurs by operation of any written law;
(f) any right of appeal against the conviction or the sentence imposed.

(6) A spent conviction order in respect of a conviction does not prevent —
(a) proceedings to enforce, or for a variation or contravention of, the sentence;
(b) subsequent proceedings against the offender for the same offence.

[malenko]

Thanks for the info guys, I will go in and try and talk to my local MP and see what they say, but i fear you might be right fincl in regards to the soft on crime stance But thanks for all the info guys, much appreciated.

[Rich]

Looks like it is a criminal offence...

Unfortunately it looks like you are screwed on it being on your "criminal record" for 10 years...

And yes if you had know about it, you could have asked the judge to order a spent conviction due to it being first offence and having an impact on career opportunities...

good luck...

[malenko]

Cheers rich and yeah that's the thing that I am having trouble understanding, is how its ok for you to ask for it during sentencing, but there is no avenue to go through to get it spent for 10 years if you don't. I don't really foresee it being a major issue at the moment but I have been thinking about it recently and it will make it more difficult to obtain visa's and such for international travel/work permits and such. Might speak to a lawyer about it too when I am in a bit of a stronger financial position.

But hopefully lots of people read this thread and learn about the spent conviction scheme, and remember to ask for it during sentencing, it will be the only shot you have for 10 years guys.

[Sweetcheeks]

Malenko there are a lot of community legal services out there that give extremely cheap, or free legal advice. I can have a look for contact details of a couple that may be able to assist you or at least point you in the right direction of who can for a reasonable price when I get to work tomorrow if you would like.

According to the solicitors at my work 'Never rely on the duty lawyers, they're useless'.