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The new spent convictions laws: Can I get my old conviction removed from my record?

What is the spent conviction legislation?  

The spent conviction laws offer a second chance for people who have served their sentence and rehabilitated. Allowing them to travel or gain new employment. The Spent Convictions Act 2021 (Vic) has passed to become law in Victoria. This means that old convictions or convictions that were committed when the person was a child become “spent convictions”. For the majority of offences this is automatic after either 5 years for a child or young offender or 10 years for an adult. This is automatic (meaning you don’t have to do anything) and it actually becomes an offence to disclose spent convictions, punishable by a large fine of 40 penalty units. This is a huge win for thousands of people that allows them to move on with their lives and have a second chance. A spent conviction will not be disclosed on police record checks and should allow you to travel overseas. It has been described as providing a “fairer Victoria” by Victorian Legal Aid and has been applauded by Liberty Victoria.  

What about serious convictions? How can they be removed from my record?  

Certain criminal offences classified as “serious convictions” and they are not automatically spent after the conviction period. These are for crimes that result in either:  

  1. A conviction for a crime that had imprisonment or detention for 30 months or more;  
  2. A conviction of a person for a sexual offence; or  
  3. A conviction of a person for a serious violent offence.  

At Marshall Jovanovska Ralph Criminal Lawyers we have represented hundreds of people since 2003 that have been convicted of a “serious conviction”. However, that does not mean that the conviction will remain on their record forever. Due to the new legislation it will be possible to apply to the court for a “Spent Conviction Order” so a magistrate can consider whether or not to make an order removing the conviction from your record.  

What does the magistrate consider in making a “spent conviction order”?  

The court will take into account rehabilitation that has happened between when the conviction was first imposed all the way up to today. The court will consider the following in making a “spent conviction order”:  

  • The nature, circumstances and seriousness of the original offence;  
  • The impact on any victims including at the time and potentially to this day;  
  • Your personal circumstances both at the time of the offending and today;  
  • Whether you or your family member is an Aboriginal or Torres Strait Islander;  
  • Your age and maturity when the offence was committed;  
  • Demonstrated rehabilitation that has occurred;  
  • Any continuing risk to the public safety in making a spent conviction order; and  
  • Any other matter the court considers relevant.  

Just because the crime that you or a loved one committed resulted in a serious conviction, that doesn’t mean that you don’t deserve a second chance. A conviction can often cast a long shadow over people’s lives and it is absolutely worth contacting us to see whether we can assist in getting you or your family member a “spent conviction”. Our firm believes in second chances and will help you through this process and represent you in court.  

Please remember that every case is different and that this nothing in this article should be construed as legal advice, you should contact a lawyer before relying on any information in this article.  

Featured

Interim Intervention Orders (IVOs) and the limits of the system

Felix Ralph, The Age, 23 February 2021
“Lawyers call for funding fix as courts face massive backlogs”

If you are reading this article there is a fair chance that an interim intervention order (IVO) has been or is about to be made against you. But what does this mean? An interim intervention order is an order granted by a magistrate that prevents certain activities, freedoms and behaviour. It can exclude you from the family home, prevent you from seeing your children or contacting the applicant for the interim IVO. This can have devastating practical and criminal consequences on people’s lives. These interim IVOs can be granted against you without you being present and if a magistrate is satisfied that it is required.  

The interim IVO stays in full force until either a magistrate removes it by agreement between the parties or the IVO proceeding is heard in court at a contested hearing. The difficulty with this is that due to the delays caused by an increased demand for these interim IVOs and due to COVID-19, a person subject to an interim IVO could be waiting many months (or years) to have their matter finalised and heard.  

Interim IVOs are effectively the same as a final intervention order and the penalties for breaching these orders can be severe. Due to strict bail laws, people who ordinarily wouldn’t be facing time in gaol, can be remanded until their case is finalised.  

This is why it is vital to have a lawyer present when the hearing first comes to court at the start of the case. This is called a first mention. It may well be that the matter can be negotiated by one of our lawyers to a withdrawal or to a less restrictive form of an intervention order. As criminal lawyers our job is to limit the potential liability of our clients to the fullest extent. Many people who are subject to IVOs do not know the system and consequences of breaching an IVO and it is very important that you receive this initial advice.  

Recently, Felix Ralph provided a comment to the The Age detailing the difficulties the criminal justice system is having with IVOs. The delays existed before COVID-19 however the pandemic has made them much worse. Due to these delays, in certain cases, it may be a superior course of action to consent to a limited order (either in duration or in clauses) rather than fully contesting the matter. This is because you could be subject to an interim IVO and therefore criminal liability for longer had it not been settled in the first place. Many people elect to contest the IVO without realising that the next time their case could go to court could be 6 to 9 months away. That is a long time to be subject to criminal consequences if there is an allegation of a breach. And it may be that after careful negotiation with the opposing side that a compromise can be reached early on in the case or parties can withdraw their allegations without involvement from the court.  Some cases will always require a contested hearing however it is important to receive the best advice so there are no surprises in your case. 

Please remember that all cases are different and that this article is a general comment only. You should not rely on this article as legal advice as this can be a complicated area of law. If you or someone you know is subject to an interim IVO you should contact Marshall Jovanovska Ralph Criminal Lawyers on (03) 9311 8500.

What is CISP? The Court Services Integrated Program

The Court Integrated Services Program (‘CISP’) is a program that was established in 2006 at the Melbourne Magistrates’ Court and Sunshine Magistrates’ Court but has since been rolled out state wide. It is now being piloted in the County Court of Victoria for more serious crimes.  

It is a bail support service that identifies what services people need and then links them into the community whilst on bail. This could include:  

Often people who have been charged with crimes have issues with drugs or homelessness or are experiencing family violence. When preparing for a bail application​, CISP can be a useful program to enrol to make the most effective bail application possible. The aim is to address the core issues of the offending and reduce the chances of someone committing further crime. CISP is just one factor a magistrate has to consider when deciding whether to grant bail or not. CISP is a state funded resource and you must first be assessed by CISP to see if you are suitable for it. Usually this occurs in custody before the bail application.  

Please remember that each case and individual circumstances is different and during the CISP interview they will assess whether you are suitable for the program.

If you are released on CISP you will be given various appointments that you must attend. During COVID-19 some of ​these appointments are over the phone or in person. You must attend these appointments, or you could be exited from the program.  

The CISP case manager is there to work as a caseworker and will link you in to various support services depending on your needs. Each month, your CISP caseworker prepares a report to the Court as to how you have been going. The magistrate will then decide whether to keep you on the program or not. This only becomes an issue if there have been multiple appointments missed or skipped or further re-offending. If you have not taken the opportunity of CISP, a Magistrate must consider whether to place you back into custody.  

If you are on CISP, your caseworker should be your first point of contact. They are there to help you and link you in to the right services. The CISP program can go for up to four months and can really help people get their lives “back on track”. At Marshall Jovanovska Ralph (MJR) Criminal Lawyers we have seen thousands of people turn their lives around due to the involvement of CISP.  

If you have successfully completed CISP then this is a really good sign and the Courts generally take a very favourable view of a successfully completed CISP episode. This is because it shows that you can maintain appointments, not re-offend and can be trusted to do certain things that the Court asks of you.  

It may be that your case resolves into a plea of guilty at the end of the CISP program. A successfully completed CISP program is a good indicator to the court that your prospects of rehabilitation are good. If you cannot complete the CISP program then the Court will be doubtful as to your prospects of rehabilitation. So do your best and treat the CISP workers and program with respect. If you are on CISP, make the most of it and put in the time and effort. It may be the thing that stops you from going back to custody. 

If you have a family member, loved on or friend on remand and think they could benefit from CISP please do not hesitate to contact MJR Criminal Lawyers on 9311 8500.

Big changes…

Firstly, welcome to our new website! This is our news blog section where we will publish what our firm has been up to recently. C. Marshall & Associates has rebranded to Marshall Jovanovska Ralph Criminal Lawyers (‘MJR Criminal Lawyers’).

We have a new star recruit, Alex Turner, who is well known in the western suburbs as a fierce lawyer and solicitor advocate. Alex brings with him a wealth of legal experience and a talented legal mind to defend each case.

We have set up a new office in the Melbourne CBD at Suite 1 Level 5 443 Little Collins Street. Felix Ralph will be running the Melbourne office.

We have set up new Twitter and LinkedIn profiles, and we will be active socially as well.

We are very excited about this new chapter in our firms history and we look forward to working with and defending you.

Onwards and upwards.