By Deng Adut and Joseph Correy, criminal lawyers, AC Law Group
Rarely a day goes by when a client doesn’t walk into my office and ask me, “Deng, can you get me a section 10?” Possession of drugs, “sure”, drink driving, “in most cases”, some push and shove, “probably”, you stabbed your boyfriend, “did he deserve it? Maybe”, murder and rape… “No, you have bigger things to worry about than a criminal record mate”.
As criminal lawyers, it’s easy to understand our clients’ obsessions with Section 10. In the Local Court, it’s not just the get out of gaol free card, it’s the ticket to America, the stepping stone to promotion, but just what is a section 10 and when is it appropriate for you or your lawyer to ask for one.
What is a section 10?
Section 10 of the Crimes (Sentencing Procedure) Act 1999 allows a court to sentence you 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.
For criminal offences, the consequence of this is that your career prospects aren’t affected by a criminal record check by an employer and your ability to travel is not impeded (the United States of America has a notoriously stringent procedure for the visas).
For traffic offences, it means that you are not subject to mandatory disqualification periods (most traffic offences require a court to disqualify a driver for a period of time once a conviction is recorded) and you retain your driver’s license despite having committed a traffic offence. A person dealt with by section 10 will also keep their demerit points.
What does no criminal record mean?
If your criminal charge is dealt with by section 10 then criminal record checks by employers or prospective employers will come back clean, making no mention of the offence. You cannot be required to disclose that you have been to court and it is an offence for record holders to release any details, including their existence, of the charges dealt with by way of section 10.
It is important to remember that an offence will appear on your criminal record for the duration of any section 10 bond the court imposes.
Despite having no criminal record, the court and police will retain a history of your court outcome so the offence doesn’t completely disappear.
There are also certain professions for which a section 10 dismissal will not prevent the disclosure of your criminal record, these include judges, magistrates, justices of the peace, NSW Police, Corrective Services, Fire Brigade, Teachers and Teachers Aides and a person for a working with children check clearance under the Child Protection (Working with Children) Act 2012.
Other industries have regulations that provide section 10 dismissals should be disclosed (lawyers) and consequences specifically for matters dealt with by section 10 (security guards).
It’s always advisable to speak to your lawyer about what the consequences of a section 10 will be in your specific situation because it’s not a one size fits all approach.
Why does section 10 exist?
To answer this question, I will defer to the NSW Court of Criminal Appeal.
In R v Nguyen  NSWCCA 183, his Honour Berjin J 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”.
Despite what is said in R v Nguyen, section 10 is not limited to first offenders and first offenders are not entitled (by that reason) to a section 10.
The most cited statement in relation to section 10 is from R v Ingrassia (1997) 41 NSWLR 447. In that case, his Honour Gleeson CJ, held:
“The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court… [Section 10 provides] a capacity in special circumstance to avoid the rigidity of inexorable law is of the very essence of justice”.
This is an acknowledgement that in some circumstances punishment that flows from a conviction may be greater than a crime warrants and in those circumstances, section 10 allows the court to ensure the law doesn’t produce an unjust result.
For completeness, there is nothing in the legislation that precludes a person from receiving the benefit of section 10 on more than one occasion, in fact it’s not uncommon, and there is nothing that precludes an someone receiving the benefit of section 10 because they already have a criminal record.
To get a section 10, what matters whether you are a first offender or frequent offender is whether or not your matter fits into the section 10 criteria.
What is the section 10 criteria?
The application of section 10s, whilst discretionary, does require a court to consider a number of factors. Those are:
A young person may not appreciate the consequences of their conduct. An offender who is young and naive is a suitable candidate for leniency. Similarly, a person at a mature age with no prior offending may establish criminal conduct is truly out of character.
Good character is shown by a clean record, character references and other achievements in life. Your employment, qualifications, sporting achievements, family circumstances and any charitable conduct are relevant.
Criminal antecedents indicate bad character, but the type of offence determines its relevance – driving matters are not relevant to assault and vice versa. The length of time since the last offence of similar type is relevant to show that the client has matured and changed his ways. There is no limit on the number of section 10’s a person can receive expect in some traffic matters.
If your health was a factor contributing to your offending or if it will make a conviction more onerous then is a relevant matter to the imposition of a section 10.
Mental condition: If a mental condition such as anxiety, depression or schizophrenia, is causally linked to your offending or prevented you from appreciating the consequences of your conduct, then it may be taken into account.
The trivial nature of the offence:
The decision of Walden v Hensler (1987) 163 CLR 561, which dealt with a similar provision to section 10, has been used to inform the meaning of “the trivial nature of the offence”. In that case, his Honour Brennan J said:
“Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty.”
What this means is that in assessing triviality, courts are 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.
The courts have gone back and forth as to whether an offence needs to be trivial to be dealt with pursuant to section 10. In R v Paris  NSWCCA 83 at , it was held: “It is not necessary to the application of s 10 that the offence be characterised as trivial”. However, it was made clear in the High Range PCA Guideline Judgment (2004) 61 NSWLR 305 that the Court must have regard to all of the criteria in section 10(3) in determining whether a dismissal is appropriate. His Honour by Howie J held:
“Where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases”.
In other words, the offence does not have to be trivial but the more serious the offence the more unlikely it is that the section will be utilized.
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 to transport a family member to the hospital or stealing to feed a hungry child where no other option was available. Someone laboring under a mental condition, hardship or financial duress may similarly equate to extenuating circumstances.
Any other matter that the court thinks proper to consider:
It is on this basis that the consequences of a conviction (loss of employment, inability to travel, etc.) can be argued. This is known as extra-curial punishment. Extra-curial punishment may be relevant to the exercise of the discretion conferred by s 10: R v KNL  NSWCCA 260.
In R v Mauger  NSWCCA 51, Harrison J said:
“The obligation to reveal the existence of a conviction arises in common experience from time to time. It is not to the point that the respondent’s employer in this case reserved to itself a discretion to take certain steps concerning the respondent if he had been “charged” with an offence. That reservation logically suggests that the employer treated the fact of being charged as a serious matter, so that in all likelihood it would consider a conviction for an offence to be more serious. It is not the case that being charged “leads” automatically to dismissal. The respondent’s employer may terminate his employment if charged with a criminal offence that the employer reasonably opined may negatively impact upon his ability to perform his duties or upon the employer’s reputation. It is not difficult to imagine a circumstance where the fact of a charge unaccompanied by a conviction would not trouble a reasonable employer but where in contrast the fact of a conviction may do so. In my opinion the prospect that a conviction for this offence could have possibly detrimental consequences for the respondent’s employment was definitively something that her Honour was entitled to take into account and that was proper for the Court to consider pursuant to s 10(3)(d) of the Act when deciding whether or not to make an order pursuant to s10(1) of the Act”.
How do I obtain a 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 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 you will lose your job if convicted, is there an employment contract that can be tendered saying a criminal conviction is grounds for dismissal?
- If you require your driver’s license for work, is there an employment contract that can be tendered saying loss of driver’s license is grounds for dismissal?
- 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 traveler there?
- If it is being submitted that there is an underlying psychological/psychiatric condition or addiction that contributed to the offending, is there a psychological report and evidence of rehabilitation that can be tendered at court.
Thirdly, references should be obtained. References are an extremely important part of a plea of guilty in Court. They are generally tendered without question, and almost always effect the severity of any applicable penalty, often to a marked degree. References present you with a golden opportunity to impress upon the court what a marvelous, hardworking, family and community orientated person you are.
There are a few basic rules in obtaining references:
- The references must be written specifically for the court appearance in which they will be tendered. Job, school or outdated and old references are totally useless and will be given little to weight.
- The idea is to not to obtain as many as you possibly can, but rather to focus on quality over quantity. References should have a consistent theme and address the section 10 criteria above.
- Obtain references from different types of people speaking to your character. Reliable sources of references are:
- Family, in particular parents and spouses;
- Charitable and sporting organizations to which you are a contributing member;
- Treating doctors, psychologists, psychiatrists and counselors;
- People held in high esteem in the community e.g. your local political member, legal practitioners and public figures.
We have put together a detailed guide to reference writing, which can be viewed here.
Fourthly, know the court. If you are instructing a lawyer, they will likely be familiar with the Magistrates and Judges; however, if you are unrepresented, it is worthwhile to sit and watch the court deal with other cases where section 10s are sort. See what arguments garner the praise and wrath of the bench and then tailor your own submissions with that in mind.
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;
- 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.
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I can but only give praise to Steven Mercael, when we met, he clearly explained my options without telling me what to do.I was clear of mind with regard my course of action, which matched Steven's view.We were organised with the right documents, that said I had concluded my fate, alas we won, and I walked out with a clean slate. At the end of the day you have to take responsibility for your mistakes, that said when you make them, it's good when someone can express to the court, that is was a mistake, and we are all human.MikeMike Martyn3/13/2019