Section 10

What is a section 10?

Section 10 of the Crimes (Sentencing Procedure) Act 1999 allows a court to sentence an offender without proceeding to a conviction, meaning there is no other penalty and you will have no criminal record. Section 10 orders can require you to enter into a good behaviour bond or the offence may be dismissed outright.

What is the consequence if I receive a section 10?

For criminal offences, the consequence of this is that a person’s career prospects aren’t usually affected by a criminal record check by an employer and their ability to travel is not unimpeded (the United States of America has a notoriously stringent procedure for the visas). This is because the person can not be required to disclose that they attended court and the police/government can not release the record of them having attended court to most other organizations.

For traffic offences, it means that mandatory disqualification periods aren’t applicable (most traffic offences require a court to disqualify a driver for a period of time once a conviction is recorded) and a person can retain their driver’s licence despite having committed a traffic offence.

What will the court consider in deciding whether to deal with my matter pursuant to section 10?

Where a person intends to submit that a court deal with a matter pursuant to section 10, it is vital that their case is tailored to that argument.

The application of section 10s, whilst discretionary, does require a court to consider a number of factors. Those are:

  1. A person’s:
  • Character (your employment, family circumstances, charitable conduct, etc);
  • Antecedents (whether you have a criminal record; however, a person can receive multiple section 10s.)
  • Age (were you too young to appreciate the consequences of your conduct or at a mature age with no prior offending to establish your criminal conduct was truly out of character?);
  • Health (will being convicted have a particular effect on you due to the state of their health?);
  • Mental condition (did a mental condition such as anxiety, depression or schizophrenia, play a role in the commission of the offence, or prevent you from appreciating the consequences of your conduct?).

2. The trivial nature of the offence. Few offences are considered trivial but importantly the court is required to look at the factual circumstances of the offending rather than simply the offence itself. The more serious the offence, the more important it is for the court to find that the offending was towards the lower end of seriousness.

3. The extenuating circumstances in which the offence was committed. Extenuating circumstances are those which provide some explanation as to why an offence occurred. An easy example to understand  would be someone speeding in their car in order to transport a family member to the hospital or stealing to feed a hungry child where no other option was available.

4. Any other matter that the court thinks proper to consider. It is on this basis that the effect of a conviction, for example loss of employment, can be argued.

How do I obtain a section 10?

The keys to successfully making an argument for a court to deal with an offence pursuant to Section 10  is firstly to ensure the offences and facts that a person pleads guilty to are of a kind that allows for an offence to be dealt with by way of Section 10. Very few magistrates or judges will decline to record a conviction in circumstances where you admit you engaged in seriously criminal behaviour. These will need to be negotiated by your lawyer prior to you being sentenced.

Secondly, evidence needs to be tendered that corroborates the reasons submitted for the offence being dealt with pursuant to section 10.

For example, if it is submitted that you will lose your job if convicted, is there an employment contract that can be tendered saying a criminal conviction is grounds for dismissal or that having a driver’s licence is a condition of your employment?

If it is submitted that you will be unable to travel to the United States of America to visit family, will a copy of your passport show you to be a frequent traveller there?

If it is being submitted that there is an underlying psychological/psychiatric condition or addiction that contributed to the offending, you will need a psychological report and evidence of rehabilitation such as a letter from your treatment provider.

What have the courts had to say about section 10?

There is a body of law on when it is appropriate to exercise discretion pursuant to section 10. Below are some of the principles on which people appearing before the court can rely.

In R v Ingrassia (1997) 41 NSWLR 447 at 449, Gleeson CJ said of the statutory predecessor of s 10, s 556A Crimes Act:

The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, ‘a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice’.”

In R v Nguyen [2002] NSWCCA 183 it was held:

“The dismissal of charges against first offenders in certain circumstances is appropriate. This power reflects the willingness of the legislature and the community to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character”.

In R v Mauger [2012] NSWCCA 51, Harrison J held:

“The fact that a conviction is not recorded should not dilute or downgrade the significance of the imposition of a [s 10] bond because there are onerous consequences if an offender fails to comply with a s 10(1) bond and it should not be assumed that because the court has decided not to record a conviction that the sentence is automatically inadequate or lenient”.

In David Morse (Office of State Revenue) v Chan and Anor [2010] NSWSC 1290, his Honour Schmidt J observed:

The exercise of the s10 discretion is always likely to involve a departure from a sentencing range, given the very nature of the discretion.”

In R v Paris [2001] NSWCCA 83 at [42], it was held:

“It is not necessary to the application of s 10 that the offence be characterised as trivial; the four factors mentioned in subs 3 are, in my view, intended to be disjunctive and nonexhaustive”.

Why choose AC Law Group’s criminal lawyers?

Our lawyers are experts at obtaining Section 10 dismissals or Section 10 bonds for clients.

Recent cases in which our solicitors have managed to obtain section 10 dismissals for our clients include in cases where our clients were charged with:

  • Reckless wounding (stabbing);
  • High Range PCA;
  • Drive whilst suspended and drive whilst disqualified;
  • Supplying (of all drugs but commonly MDMA, cocaine and methylamphetamine);
  • Possession (of all drugs but commonly MDMA, cocaine and methylamphetamine);
  • Assault occasioning actual bodily harm;
  • Affray;
  • Driving in a manner that menaces.

Contact of our criminal law offices at Sydney, Parramatta, Blacktown or Redfern to receive advice on the prospect of your case being dealt with by way of section 10.

Contact us to book a FREE first consultation

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