Do Police Checks Include Conditional Release Orders?
Under Australian sentencing legislation, courts can grant the defendant a Conditional Release Order (CRO) when a guilty verdict has been reached.
A CRO is an agreement between the court and the offender where the original sentencing penalties are reduced in exchange for good behaviour from the guilty person.
This is one of the more lenient paths a judge can take in an Australian court. It is a fairly common outcome and can apply even to more serious crimes.
In some cases, fulfilment of the CRO means that the original conviction is dropped and the guilty person can avoid a criminal record. Whether the CRO still appears on a Police Check, however, ultimately depends on several different factors.
What is a Conditional Release Order?
A Conditional Release Order is a type of sentence where the full penalties of the charge are dropped in exchange for good behaviour from the offender.
Good behaviour from the guilty party typically means a period of non-offending under certain conditions or deployment into an intervention programme.
The CRO can last for up to two years. At this point, and only if the conditions of the CRO have been fulfilled, the original conviction may be wiped out and the person will not receive a criminal record.
This means that the original conviction will no longer appear on a National Police Check. However, this can vary depending on the conditions of the CRO and the purpose of the Police Check.
What Offences Qualify for Conditional Release Orders?
Australian legislation does not stipulate which offences are or are not eligible for Conditional Release Orders. This is always left to the discretion of the court.
The court will consider the following factors when deciding whether to grant a CRO:
- The person’s character, history, age, health and mental state,
- The triviality of the offence,
- The extenuating circumstances in which the offence was committed,
- Any other matters deemed relevant to the case.
Even though CRO legislation references the ‘trivial’ nature of the offence, this does not necessarily preclude serious offences from being eligible for a CRO. Any decision will take into account the full context of the case.
What are the Different Types of Conditional Release Order?
Conditional Release Order can be granted by a court under a number of conditions. These include:
- Section 9; the court has the discretion to apply a CRO depending on the nature of the offence. This section order remains on future criminal records,
- Section 10 (1) (a); the court dismisses the original charge immediately. It does not appear on criminal records,
- Section 10 (1) (b); the court does not record the conviction if certain conditions are fulfilled for a period of up to two years,
- Section 10 (1) (c); the court orders the guilty party to undergo an intervention program. Upon completion, the conviction can be removed from their criminal record,
- Section 12; the court grants a Good Behaviour Bond or suspended sentence instead of an imprisonment term. This only applies if the prison sentence does not exceed two years.
Which Conditional Release Orders Show Up on a Police Check?
Whether a Conditional Release Order appears on a person’s Nationally Coordinated Criminal History Check depends on the circumstances under which it was granted.
Only Conditional Release Orders granted under Section 9 and Section 12 have the potential to appear on a Criminal Background Check.
Full information on each type of CRO is as follows:
- Section 9; this only appears on a Police Check if a conviction is recorded by the court. Whether the CRO is ultimately disclosed depends on the purpose of the Police Check. Also, it will always remain on the person’s criminal record,
- Section 10 (1) (a); this neither appears on a Police Check nor the person’s criminal record as the conviction is thrown out by the court immediately,
- Section 10 (1) (b); this only appears on a Police Check during the period of the CRO. Once it has been fulfilled, it is excluded from Police Checks,
- Section 10 (1) (c); this only appears on a Police Check during the period of the intervention program. Once it has been fulfilled, it is excluded from Police Checks,
- Section 12; this always appears on a Police Check due to the more serious nature of the original conviction.
Are Conditional Release Orders the Same in Every Australian State?
Although each Australian state and territory imposes its own sentencing legislation, the conditions surrounding Conditional Release Orders are largely the same across Australia.
States may have nominally different terms in which eligibility for CROs is decided by courts, but the system works similarly across the country. In all cases, the term of a CRO can only last up to two years.
For full disclosure on CRO legislation for different areas of Australia, consult the relevant state or territory judicial body.
Is a Conditional Release Order the Same as a Conviction?
No. In many cases, a Conditional Release Order will replace a conviction once the terms have been satisfied by the guilty person.
The main purpose of a CRO is to prevent a person from having a conviction on their criminal record. This can help to safeguard their future opportunities, such as in employment or travel.
However, convictions may still be recorded when a CRO is granted by the court. This usually happens with more serious offences. For example, a Section 12 CRO, which replaces a prison sentence, will still appear on a person’s criminal record and National Police Check.
What Conditions Can be Imposed with a Conditional Release Order?
Conditional Release Orders come with several important conditions that apply before it is imposed and also during the term. These can vary depending on which CRO legislation is invoked by the court.
Before a CRO is granted, the court firstly clarifies the two following conditions:
- The person will not reoffend during the term of the CRO,
- The person will attend court proceedings whenever summoned.
In many cases, the conditions of the CRO imposed on the offender are decided by the court. These are selected in line with the circumstances of the offence and the character of the offender.
Conditions imposed on the offender during the CRO term include:
- Area restriction; the court can prohibit the person from visiting specific areas. In serious cases, they may be restricted from travelling out of a certain region,
- Supervision condition; the court can submit the person to supervision under a designated community corrections officer,
- Rehabilitation condition; the court can impose a condition that requires the person to participate in a treatment or educational programme,
- Abstention condition; the court can enforce a prohibition order from alcohol and/or drugs,
- Non-association condition; the court can prohibit the person from associating with particular persons.
The person can also apply to the court to add, charge or remove the conditions of their CRO. Based on the suitability of the appeal, the court will either accept or deny the application.
Failure to comply with the conditions can lead to resentencing. This often results in a conviction that will appear on the person’s Criminal Record Check in future.
What Conditions Cannot be Imposed with a Conditional Release Order?
There are certain conditions that cannot be imposed as part of a Conditional Release Order. These include:
- Home detention condition,
- Curfew condition,
- Community service condition,
- Electronic tagging condition,
What Happens if the Conditions of the Conditional Release Order are Breached?
A Conditional Release Order is breached when any of its specified conditions are violated or if the person commits a criminal offence during the term.
The court has three options when dealing with a breach:
- Take no action,
- Modify the conditions, either changing them, removing them or adding new ones,
- Revoke the CRO and resentence the offender.
If the court decides to revoke the CRO, a more serious sentence may be imposed. For example, this could be an Intensive Corrections Order or Full-Time Custody.
Furthermore, if the CRO was initially granted without recording a conviction, it is possible that a conviction will be recorded when the offender is resentenced. For this reason, a breach of a CRO is likely to lead to disclosures on National Police Clearance.
Other than Conditional Release Orders, What Else Does a Police Check Show?
A Police Check may display Section 9 and Section 12 Conditional Release Orders. In addition, it will show convictions resulting from the breach of a CRO.
However, there are many other offences and charges that a Police Check may record as Disclosable Court Outcomes (DCOs)
DCOs are any prior offences the person has on file that are deemed relevant to the purpose of the Criminal History Check. Some examples of DCOs include:
- Any serious conviction,
- Serious charges,
- Court appearances,
- Pending trials,
- Traffic offences,
- Sexual crimes,
- Findings of guilt.
While the most serious crimes will always appear on a Police Check, some charges may be eligible for expungement after a 10-year period under the Spent Convictions Scheme.
When an offence becomes spent, the person is no longer obliged to disclose it as part of their Police Clearance.
How Can I Check if a Conditional Release Order Will Appear on my Police Check?
If you have served a Conditional Release Order, it’s important to establish whether it will appear on your record before applying to a new job, travelling overseas or doing anything else that requires a Police Check.
This can be done by contacting the relevant state police agency where the CRO was imposed and requesting information pertaining to your criminal record. It should be noted that police agencies are at liberty to disclose this information as they see fit.
Alternatively, you can apply for a Police Check online with any ACIC-accredited provider. There are many services available that allow applicants to process their application completely remotely and have their full criminal record returned in a matter of days or even hours.
With an ACIC-registered body like Crime Check Australia, all you need to do is insert some personal information and identity documentation before paying the fee. The returned Police Check provides a comprehensive account of any Disclosable Court Outcomes relating to your person, including charges linked to a CRO.
The Police Check can also then be used for employment, immigration, citizenship, licensing and several other purposes.
In conclusion, only some Conditional Release Orders are included on Police Checks.
These are typically CROs imposed under Section 9 or Section 12, or any CRO that was granted along with a conviction. In addition, a breach of a CRO usually leads to a conviction, and this will be recorded on a Police Check.
CROs granted under Section 10 do not appear on a Police Check. Provided that the conditions are fulfilled by the offender, the original conviction is removed from their record at the end of the term. As such, it will not appear on the person’s National Criminal History Check in future.
Whether a CRO is granted is always left to the discretion of the court and depends on several factors including the severity of the offence, the character of the offender and any extenuating circumstances.
Generally, they are applied as a rehabilitative rather than a punitive measure and with the intention of preserving the person’s clean criminal record.