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. . What
is the difference
between a criminal
offence and a
traffic offence? Every traffic
offences is a criminal
offence. There is no such
thing as an offence which is not a
criminal offence. The only
difference is that traffic
offences tend to be recorded in
your traffic history while other
offences tend to be recorded in
your broader criminal history. Will
your offence appear on
your criminal record? There
are several different types
of criminal record: VicRoads
keeps two different types of
criminal record for traffic
offences. One is a record of
all traffic offences that
have incurred demerit
points. The Road Safety Act
and the Infringements Act
prevent your demerit points
record or payment of a
demerit points infringement
notice being disclosed in
any court. The other is a
record of all licence loss
infringement notices and
traffic related court
outcomes. This record can be
disclosed in court if you
lose your court case. Victoria
Police keeps a
record of all court outcomes
for all charges laid by
police. This is known as the
LEAP record. If you lose
your court case, the LEAP
record of your prior
offences can be used against
you in court. In motor
traffic cases the police
usually do not rely on the
LEAP record but instead they
rely on your VicRoads
history because that is
considered the primary
record of your traffic
history. Your VicRoads
traffic history can include
traffic outcomes from
licence loss infringement
notices as well as cases
commenced by police or other
agencies such as VicRoads,
but your LEAP traffic
history usually contains
results of cases commenced
by police only. If
you request a copy of your National
Police History Check
(NPHC), you will very
likely receive a report showing all
resolved court outcomes arising from
police charges (but not including
traffic matters), as well as any
pending charges (including traffic
matters). It is unusual
to see a motor traffic conviction
(i.e. for an offence against the
Road Safety Act) appear on a
National Police Check certificate. Your National Police Check will
show all non-traffic police issued
charges you have been found guilty
of regardless whether or not you
were convicted. So avoiding a
conviction will not stop offences
appearing on your NPHC. Usually a
NPHC will not disclose court
outcomes from cases commenced by
agencies other than police. Anyway,
neither employers nor anyone else
cares whether or not a conviction
was recorded against you in your
court case. The only thing they care
about is whether a court has found
you guilty of being a thief, drug
trafficker or a sex offender. No one
is going to be impressed simply
because you managed to avoid getting
convicted after being found guilty
of being a thief, drug trafficker or
a sex offender. fine_paid
There are two types of
infringement notices in motor
traffic cases. Each has different
consequences. An
infringement that imposes licence
loss (e.g. exceeding speed limit
by more than 25kmh, drink driving,
drug driving) will result in a
conviction being recorded against
you if you do not lodge an
objection within time to the
infringement notice to take the
case to court (or in the case of a
traffic camera offence - nominate
a person who was responsible for
the vehicle at the time of the
alleged offence). To
avoid a conviction being recorded
you must object to the notice
within 28 days of the date of the
notice, which will result in you
being charged with that offence.
At court you can avoid a
conviction by being acquitted, or
found guilty without a conviction
being recorded. If you have a
drink driving infringement notice
for a reading between 0.050% and
0.070% which imposes 3 months
licence cancellation you
definitely should make an
appointment to see me prior to
lodging any objection to go to
court. This is because the
penalties at court, if you lose,
start with 6 months licence
cancellation. Infringement
notices that do
not impose a
conviction. If
an infringement notice is not a
drink driving infringement and
imposes no licence loss then it is
not an infringement notice that
imposes a conviction. Paying this
type of infringement notice can
not result in a finding of guilt
or an admission of liability, and
can not be referred to in court as
a prior offence. See s.33
Infringements Act. Paying
this type of infringement can not
be used against you in any future
proceedings. However, if you elect
to take such an offence to court
and are then found guilty by the
court, then the finding of guilt
(whether it is with or without
conviction) will be recorded on
the VicRoads traffic history and
the police LEAP history, but
probably not on your NPHC.
Do
you need to avoid a
conviction? Many
people who ask me to help
them avoid a conviction
have no idea what a
conviction is, nor can
they adequately explain
why they need to avoid
one. Any
court, when passing
sentence, can impose
a conviction as part
of its sentence.
Alternative
sentencing options
include getting a
fine without a
conviction, getting
a good behaviour
bond without a
conviction, getting
a s.76 dismissal
without a
conviction. A
conviction can also
be imposed by
legislation via an
infringement notice.
The
sentencing court always
has discretion whether or
not to record a
conviction. Generally,
getting a conviction is an
indication that the court
is imposing a more serious
penalty than not imposing
a conviction. It is merely
a measure of the court's
denunciation of your
conduct. In the vast
majority of cases there is
absolutely no difference
between getting a penalty
which includes a
conviction and getting one
which does not include a
conviction. This is
because parliament has
removed almost all of the
distinctions between
sentences that include a
conviction and those that
do not. In motor traffic
cases, there is only one
offence remaining where
not having a conviction
recorded is materially
better than getting one
recorded. That is s.60(2)
Road Safety Act. I also
note that
s.50(1AC) Road
Safety Act seems
to make a
distinction
between
convictions and
non-convictions
but that section
seems to be a
waste of ink
because it does
not actually
result in any
better outcome to
a person who
avoids a
conviction. For
all other offences, the
penalties that flow from
being found guilty will be
exactly the same whether
or not the court records a
conviction. Circumstances
where it might be
important to avoid a
conviction for a traffic
offence: •
you are a taxi driver and
Commercial Passenger
Vehicles Victoria
(formerly the Taxi
Services Commissioner) has
indicated that a
conviction for certain
offences will result in
your driver accreditation
being suspended. •
you are a truck driver and
your employer has decided
that a conviction for
certain traffic offences
will cause you to lose
your job. •
you want to be an Uber
driver - they can be fussy
about your traffic history
- even when you have been
acquitted of drink driving
they still refuse you. •
your insurer has a term in
its contract that excludes
cover for drivers who have
convictions for certain
offences. •
you are migrating to
Australia and DIMA has
indicated to you that your
application for PR or
citizenship will be
refused if a conviction is
recorded for your pending
charges. •
you are emigrating from
Australia and the country
to which you are going has
indicated that a
conviction for your
offence will result in
your application for
residency being refused. •
your employer checks to
see if you have a
conviction for any drug
related offences,
including drug driving. •
you feel more comfortable
knowing you do not have
any conviction recorded
against you. If you are concerned that
your job prospects might be
affected by a conviction
being recorded on your
criminal record then you
should be equally concerned
that your job prospects will
be affected by a finding of
guilt appearing on your
criminal record.
Getting a fine without a
conviction being recorded
will not prevent the court
result appearing on your
criminal record.
If you want to prevent a
finding of guilt appearing
on your criminal record you
will need to plead not
guilty and be acquitted. If you are concerned about
convictions or findings of
guilt appearing on yojr
record the best thing to do
is engage a barrister to
help you get acquitted or
get a court outcome that
does not include a
conviction. A conviction can be avoided
by pleading guilty and
begging for a sentence that
does not include a
conviction, or it can be
avoided by pleading not
guilty and being acquitted.
Which of those options is
best for you can not be
determined without having a
conference
and getting an opinion about
your prospects of success in
your case. If you have been
charged with an offence and
you feel you need to avoid a
conviction being recorded
then you should call me to
make an appointment. Should
you be worried about
getting a conviction? Many
of my clients
who are
worried about
getting a
court
conviction
already have
convictions on
their record.
Often there is
no reason for
them worrying
about getting
another one. There
is no point
worrying about
getting a
conviction for
a traffic
offence when a
conviction
will make no
difference
whatsoever to
your
life. In
99% of cases a
person who is
found guilty
with a
conviction
recorded
against them
experiences
exactly the
same outcome
as being found
guilty with no
conviction
being
recorded. Many
magistrates
recognise that
these days
there is no
significant
difference
between a
conviction and
a
non-conviction
for drink
driving
offences so
most will
convict you
regardless of
your personal
circumstances.
If
you think a conviction for a traffic
offence is going to adversely impact
your future, you are probably
mistaken. Unless you are a
professional driver, it is unlikely
the difference between a conviction
and a non-conviction for a traffic
offence is going to make the
slightest difference to your career
prospects. It is unlikely any firm
seeking a new bookkeeper is going to
even ask for your traffic history
when the only thing they care about
is whether any theft or fraud
offences are on your record.
Likewise, the physiotherapists
licensing board is not interested in
how many speeding offences are on
your record so you don't need to be
scared when you disclose it. A
few centuries
ago,
convictions
mattered -
convicts got
deported. We
no longer use
convictions as
a criteria for
deportation.
What you
should worry
about is being
found guilty
of an offence,
not whether
you get
convicted for
it. To avoid
being found
guilty you
need to see a
lawyer who is
capable of
winning your
case. Disclosing
your
convictions Sometimes
you may be
asked whether
or not you
have any
convictions.
Most insurance
companies do
not ask that
question. They
ask whether or
not you have
ever been
charged or
found
guilty.
One way to
answer the
question is to
attach your
own copy of
your criminal
history. You
can obtain
that from the
police. Some
airport
arrival cards
ask about
convictions,
so if you have
any
convictions
you are
expected to
tick that box.
If immigration
authorities
had an easy
way of
checking your
criminal
history the
question would
not need to be
asked - they
would already
know the
answer. Unless
you have been
placed on
Interpol's
wanted list,
or have served
a lengthy term
of
imprisonment,
it is
extremely
unlikely you
are going to
encounter any
problems at
immigration no
matter what
answer is
given to that
question. Legal
Assistance To
get help to
avoid a
conviction or
a finding of
guilt please contact
us to make
an appointment
for a
conference.
At a
conference I
can work out
with you the
best strategy
to protect
your
record.
Related
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Copyright S. P. Hardy |