A Section 10 refers to a legal provision under the Crimes (Sentencing Procedure) Act 1999 (NSW) that allows a court to find a person guilty of a criminal offence without recording a conviction. In New South Wales, this unique sentencing option provides individuals, particularly first-time offenders or those facing relatively minor charges, with an opportunity to avoid the often harsh and lasting consequences of a criminal conviction. The decision to grant a Section 10 rests entirely within the discretion of the court and is based on a wide range of factors that consider both the nature of the offence and the personal circumstances of the offender.
While a Section 10 outcome does not equate to an acquittal, it can significantly reduce the social and legal impact of a criminal charge, particularly in relation to employment, international travel, licensing, and future legal matters. Understanding what a Section 10 entails, how it operates, and when it is most applicable is vital for any individual navigating the NSW criminal justice system.
What Is Section 10?
Section 10 is a sentencing option that allows the court, after a person has pleaded guilty or been found guilty, to discharge the offender without proceeding to conviction. This means that the offender is found guilty, but no conviction is recorded, and the offence does not form part of their criminal record in most circumstances.
There are three primary forms of Section 10 orders under the legislation:
- Section 10(1)(a): Dismissal without conditions. This is the most lenient type of Section 10, where the matter is dismissed without any conditions being imposed on the offender.
- Section 10(1)(b): Conditional Release Order (CRO) without conviction. The offender is released on a good behaviour bond, which may include supervision, for a period of up to two years. If the offender breaches the bond, they can be re-sentenced and a conviction may be recorded.
- Section 10(1)(c): Intervention program order. This involves the offender participating in a court-approved intervention program, such as drug rehabilitation or anger management. Upon successful completion, the court may dismiss the charge without recording a conviction.
How Courts Determine Eligibility
A Section 10 outcome is not guaranteed and is granted at the court’s discretion after considering a range of factors. These include:
- The offender’s age, character, prior criminal record, health, and mental condition
- The trivial nature of the offence, if applicable
- Any extenuating circumstances in which the offence was committed
- Whether the offender is likely to re-offend
- The impact of a conviction on the offender’s economic or social well-being, such as job prospects or ability to travel
- Demonstrated remorse, rehabilitation efforts, and community standing
Section 10 is most commonly applied in cases involving first-time offenders and less serious offences where the court believes that recording a conviction would be unduly harsh.
Common Offences That May Receive Section 10
Although each case is assessed on its merits, courts are more likely to consider Section 10 for the following types of offences:
- Low-range drink driving
- Drug possession for personal use
- Common assault or affray
- Driving while suspended or unlicensed
- Theft or shoplifting
- Minor public order offences
However, it is far less likely that a Section 10 will be granted for serious crimes such as drug supply, high-range drink driving, assault causing actual bodily harm, or domestic violence-related offences. In such cases, the need for general deterrence and community protection usually outweighs the benefits of leniency.
How to Improve Your Chances of Receiving a Section 10
Legal representation is highly recommended if you are seeking a Section 10 outcome. A skilled solicitor can guide you through the steps necessary to demonstrate to the court that you are a suitable candidate. These steps may include:
- Providing character references from employers, community leaders, or religious figures
- Writing a formal letter of apology to the court, showing genuine remorse
- Undertaking voluntary counselling, rehabilitation, or relevant educational courses
- Completing a Traffic Offender Intervention Program (TOIP) or other court-recognised program
- Demonstrating a history of good conduct and law-abiding behaviour
- Showing that a conviction would have disproportionate consequences for employment, professional registration, or visa status
Is a Section 10 the Same as Being Found Not Guilty?
No. A Section 10 still involves a finding of guilt. The difference is that the court exercises discretion to not record a conviction. This distinguishes it from a not guilty verdict, which implies the person was not responsible for the offence at all.
Impact on Criminal Records and Police Checks
In most cases, a Section 10 will not appear on a standard criminal record or National Police Certificate issued for general employment purposes. However, some government agencies and certain licensing or professional registration bodies may still be able to access records of offences dealt with under Section 10. These agencies may include police, immigration departments, and child protection authorities. Therefore, while Section 10 provides significant protection, it does not completely erase the record of the offence in all contexts.
Repeat Offences and Future Implications
Although a Section 10 does not result in a conviction, it remains on the offender’s court record and may be taken into account in any future sentencing. If an individual reoffends, especially with a similar offence, the court may view their prior Section 10 outcome as evidence of a lack of deterrence and may be less inclined to grant a second non-conviction order.
Can You Receive More Than One Section 10?
Yes, it is technically possible to receive multiple Section 10 outcomes. However, each application becomes increasingly difficult. Courts are generally reluctant to extend leniency more than once without exceptional circumstances. The principle behind Section 10 is to give individuals a second chance, not repeated exemptions from the consequences of criminal conduct.
What Happens If You Breach a Section 10 CRO?
If the offender breaches the terms of a Conditional Release Order imposed under Section 10(1)(b), they may be called back to court for re-sentencing. At this point, the court may impose a conviction and substitute a more severe penalty, such as a fine or custodial sentence. This underlines the importance of full compliance with any conditions imposed by the court.
Differences Between Section 10 and Other Sentencing Options
It is important to differentiate a Section 10 from other similar non-custodial orders. For example:
- Section 9 of the Crimes (Sentencing Procedure) Act 1999 involves a Conditional Release Order but with a conviction recorded
- Section 10 outcomes under subsections (1)(b) and (1)(c) involve conditions, but still avoid conviction if complied with successfully
- Community Correction Orders and Intensive Correction Orders are more serious non-custodial sentences that do involve a conviction and may include community service, home detention, or curfews
Practical Examples
Consider a 22-year-old university student charged with drug possession after being caught with a small amount of cannabis. It is their first offence, they show remorse, attend a rehabilitation program voluntarily, and provide several strong character references. In this case, the court may be persuaded that recording a conviction would unfairly impact their future career and overseas travel opportunities. A Section 10 dismissal or CRO without conviction may be granted.
In contrast, an individual charged with high-range drink driving with a prior similar offence on record may find the court unwilling to apply Section 10, as the need for deterrence and protection of the public becomes more pressing.
The Role of a Criminal Defence Lawyer
Seeking legal advice is critical when applying for a Section 10. A defence lawyer can assess the strength of your case, advise on suitable preparation strategies, draft persuasive submissions, and represent you effectively in court. They will ensure that all documentation, such as references and program certificates, is submitted correctly and that your personal circumstances are presented in the most favourable light.
Conclusion
Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides a valuable alternative to conviction for eligible individuals who demonstrate remorse, low risk of reoffending, and compelling personal circumstances. While it is not a guaranteed outcome, and certainly not applicable to all offences, it remains an important tool in the NSW legal system for promoting rehabilitation and mitigating the impact of minor criminal offences. If you are facing charges and believe a Section 10 may be appropriate in your case, seeking early legal representation is crucial to maximising your chance of a successful outcome.
Golottas Solicitors can assist you in navigating this process with expertise and compassion. Contact our office to arrange a confidential consultation and learn more about how we can help protect your future.
