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Traffic Offences and your Criminal Record

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.


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:

you are a taxi driver and Commercial Passenger Vehicles Vehicle (formerly the Taxi Services Commissioner) has indicated that a conviction for certain offences will result in your DC 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.

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 will be refused if you have a conviction 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.

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.

Infringement notices that impose a conviction.

There are two types of infringement notices in motor traffic cases. Each have 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 if you do not lodge an objection to the infringement notice to take the case to court.

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 loss you definitely should make an appointment to see me prior to lodging any objection to go to court.

Infringement notices that do not impose a conviction.

If an infringement notice 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. 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.

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 wrong.  Unless you are a professional driver, it is laughable to think that 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 worried about telling them.

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. 

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