Sentencing and Spent Conviction Order

Sentencing and Spent Conviction Order

There are many factors that can affect the sentencing process and the range of likely sentencing outcomes.

During sentencing, the Court considers the following factors:

  1. The prior good character of a person;
  2. The circumstances of offending;
  3. The aggravating factors;
  4. The mitigating factors;
  5. The seriousness of offending.
  6. The insight of the offender;
  7. Whether the offender shows remorse;
  8. Whether there are changes made in the offender’s lifestyle;
  9. Whether the offender attended to counselling, if available;
  10. Victim Impact Statement;
  11. The assistance and cooperation of the offender (if any) with the police;
  12. Any reports written by experts for sentencing purposes;
  13. The Prosecution’s attitude towards the charges;
  14. The presiding judge/magistrate’s perception of the offender’s offending.

The Court will also consider the following principles:

  1. Whether the sentence given must be appropriate for the seriousness of the offence;
  2. The sentence must be appropriate for all of the offences the accused is being sentenced for, if there is more than one;
  3. If there are co-offenders, whether there is any parity in sentence.

Please note that the above list is not exhaustive and the Court can rely on other sentencing principles under the Sentencing Act 1995 (WA), Sentence Administration Act 2003 (WA) or common law principles.

What are the various sentences I can be imposed with?

The Courts would usually impose a term of imprisonment as the last resort. The Court will consider all other sentencing avenues before deciding the impose a term of imprisonment. The other sentencing dispositions include:

  1. Monetary Fine;
  2. Community Based Order;
  3. Intensive Supervision Order; and/or,
  4. Conditional Suspended Imprisonment.

However, the Courts are mindful of your circumstances when  determining whether a term of imprisonment is appropriate. The duplicity, frequency, and severity of the offending behaviour can also play a role in determining whether a term of imprisonment should be imposed.

For this reason, it is always prudent to speak to our lawyers at WN Legal when you are charged with an offence.

What is a Spent Conviction Order?

A Spent Conviction Order means that the offence is declared ‘spent’ at the time of sentencing. With a Spent Conviction Order, you may not have to acknowledge that you were charged with, and convicted of an offence. However, there are some circumstances where you have to disclose a spent conviction order.

Under s. 45 of the Sentencing Act 1995 (WA), the Court must not grant a Spent Conviction Order unless:

  1. It considers that the offender is unlikely to commit such an offence again; and,
  2. Having regard to the fact of the offence is trivial; or,
  3. The previous good character of the offender,

A Spent Conviction Order considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

In the case of Brewer v Bayens [2002] WASCA 271, the Full Court observed the terms of s. 45 of the Sentencing Act 1995 (WA) and elaborated on the discretionary power and matters that can be considered when providing a Spent Conviction Order. There are many other case laws out there that can also be relied on when making a Spent Conviction Order. For this reason, it is wise to speak to our lawyers at WN Legal and we can keep you informed on what will happen to your matter during sentencing.

To maximise your chances of obtaining a Spent Conviction Order, our lawyers at WN Legal would ask you to request for character references from independent referees prior to sentencing. If the offence is related to domestic violence or drug related, we may also ask you to attend to counselling and obtain a report from the corresponding institution(s).

For further information, please contact our lawyers at WN Legal.