Can my suspended sentence be expunged?
Dear Mrs Macaulay,
I was arrested and charged for indecent assault in 2010. I pleaded not guilty and the matter was sent to court. I later pleaded guilty and the case never went to trial. I was put on probation as the matter was being mediated. On the day of the sentence I got two years’ suspended sentence which ran from 2012 to 2014. I would like to know, would a record have been made and if yes, is there a process I can go through to get it expunged?
You said that the case never went to trial. This is not correct. You see, a trial commences in a court from the moment the accused is pleaded to the offence and it ends when the sentence is imposed after a conviction of ‘guilty’ is made; or a ‘not guilty’ determination is made. What happened in your case was that no evidence was taken on oath, either in chief or through cross-examination, because of the change of your plea to ‘guilty’. The judge must be satisfied (as was so in your case), that the import of the plea is understood. Once this is so and the plea is accepted, it is recorded in the record of the trial. Then all that is left to be done is for the sentence to be imposed, as occurred in your case, wherein the trial ends.
This, having expired with you not having reoffended during the two years of your suspended sentence period, has led you to ask two questions which I will answer.
The short and clear answer to your first question is in the affirmative. Yes, by law, a record of your conviction and the sentence imposed on you must be made. Remember also that you would have been fingerprinted when you first appeared in court. Your conviction and sentence would be attached to the record of your fingerprints. These records are kept and maintained by the Criminal Records Office.
And yes, there is a process to have your records expunged.
You have to act under the provisions of the Criminal Records (Rehabilitation of Offenders) Act. Under this Act, a board exists which is called the Criminal Records (Rehabilitation of Offenders) Board. It is to this board that you must apply for your record to be expunged. You, however, cannot apply until your operational period — the two years plus what the Act and the provisions of increases in the Criminal Records (Rehabilitation of Offenders) Act 2014 define as the rehabilitation period for the particular offence of which you were convicted have expired.
So there is a process by which you can apply to the board, but in your circumstance only after your two years suspended sentence has expired, which I assume is the case. The amendment Act of 2014 provides that for those who were convicted and no term of imprisonment was imposed, the rehabilitation period is five years, up from the old period of three years.
For those with a term of up to five years, the rehab period was amended from a graduated period of five to 10 years to a period of five years.
It therefore is apparent that you will have to wait for the expiration of your rehabilitation period of five years before you can apply to the board for your conviction to be expunged.
Be patient and please do not reoffend during your rehab period because if you do, you will fail to have your record expunged. So good luck, be patient, and be of good conduct. God bless.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5.
DISCLAIMER:
The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.
