Conviction vs Non-Conviction in Victoria: How to Protect Your Record

For many people facing court for the first time, the lasting consequence they most want to avoid is a criminal record. In Victoria, whether a finding of guilt results in a recorded conviction is often a matter of discretion — and the submissions made on your behalf can make a real difference. This guide explains the difference between a conviction and a non-conviction, what stays on your record, and the ways a criminal record can be avoided. It is general information about Victorian law, not advice about your own matter.

Conviction or non-conviction: what is the difference?

When a court finds you guilty of an offence, it does not automatically record a conviction. Under section 8 of the Sentencing Act 1991 (Vic), the court has a discretion to either record a conviction or find you guilty without recording a conviction. The practical difference is significant: a recorded conviction is a more serious form of censure and carries greater consequences for employment, travel, professional licensing and visa applications.

A finding of guilt without conviction is, for most purposes, treated as if no conviction had occurred — although, as explained below, it does not make the matter disappear from your record entirely.

What the court considers

Section 8 requires the court to have regard to all the circumstances of the case, including:

• the nature and gravity of the offence;
• your character and criminal history; and
• the impact that recording a conviction is likely to have on your economic or social wellbeing, or on your employment prospects.

A non-conviction is more commonly available for less serious offending and for people with little or no prior history. It is never guaranteed, and a well-prepared plea in mitigation — with supporting material about your circumstances and the consequences a conviction would carry — can be decisive.

What stays on your record?

This is where many people are caught out. A finding of guilt without conviction still appears on your Victoria Police record as a finding of guilt, and police may disclose it on a criminal record check. In other words, a non-conviction is better than a conviction, but it is not the same as the matter never having happened.

Since the Spent Convictions Act 2021 (Vic), however, many findings of guilt become “spent” after a set period — immediately or after a conviction-free period depending on the matter — and once spent are generally not disclosable on a record check, subject to exceptions for serious offences and certain roles such as working with children.

How a criminal record can be avoided

There are, in effect, three avenues, and which are open to you depends on the offence and your circumstances:

• Diversion. The cleanest outcome. The Criminal Justice Diversion Program resolves a charge without any finding of guilt at all. See our separate guide to diversion.
• A sentence without conviction. Where diversion is not available, your lawyer can urge the court to find you guilty without recording a conviction under section 8.
• The spent convictions scheme. Even where a finding is recorded, it may later become spent and cease to be disclosable.

Note that an older statement still found on many law firm websites — that diversion is the only way to avoid a criminal record — is no longer strictly correct following the 2021 reforms. It remains true that diversion is the cleanest result, because it avoids a finding of guilt entirely.

If you are concerned about the impact of a charge on your record, contact us for a confidential discussion. We appear in the Ballarat Magistrates’ Court and across regional Victoria, and we offer fixed fees.

Frequently Asked Questions

What is the difference between a conviction and a non-conviction?

When a court finds you guilty, it has a discretion under section 8 of the Sentencing Act 1991 to record a conviction or to find you guilty without recording a conviction. A non-conviction is a finding of guilt but is treated, for most purposes, as if no conviction occurred. A recorded conviction is a more serious mark with greater consequences for employment, travel and licensing.

Does a non-conviction still show on my record?

It can. A finding of guilt without conviction still appears as a finding of guilt on your Victoria Police record, and police may disclose it on a criminal record check. However, since the Spent Convictions Act 2021, many findings of guilt become spent over time and are then no longer disclosable, subject to exceptions.

What does the court consider when deciding whether to record a conviction?

Under section 8 of the Sentencing Act 1991, the court must have regard to all the circumstances, including the nature and seriousness of the offence, your character and history, and the impact recording a conviction would have on your economic or social wellbeing and employment prospects.

How can I avoid a criminal record entirely?

The cleanest way is diversion, which resolves the charge without any finding of guilt. If diversion is not available, your lawyer can make submissions for a sentence without a recorded conviction under section 8, and the spent convictions scheme may later apply. Which options are open depends on the offence and your circumstances.

Is a non-conviction guaranteed for a first offence?

No. A non-conviction is more likely for less serious offending and for people with little or no prior history, but it is never automatic. It depends on the offence, the penalty imposed, and the strength of the submissions made on your behalf. Imprisonment, for example, always carries a conviction.

Can I say I have no criminal record if I received a non-conviction?

It depends. Where the spent convictions scheme applies and the finding is spent, you can generally answer that you have no disclosable record, subject to exceptions for certain roles. This is a question on which you should get specific advice, because the answer varies with the offence and the purpose for which you are asked.