Australian Criminal Law Group are Sydney best criminal lawyers to help you avoid a criminal record.
Criminal records can be devastating to your life. They make it harder to get a job, can impede overseas travel and lead you to lose your driver’s licence. We believe that someone who has been a good person their whole life working hard and looking after their families, should not be punished with a conviction for a momentary mistake. Our view is that everyone deserves a second chance and that the punishment should fit the crime.
For these reasons, we give a you a voice at court and fight harder for your reputation than any other criminal lawyers. Our experienced criminal lawyers know the best magistrates and judges. We know who give section 10s and the arguments they want to hear to decide in your favour.
Below is information about section 10s. If you need representation or section 10 advice, make a website enquiry or call our free 24/7 criminal law hotline on 8815 8167.
What is a section 10?
A section 10 is when you are guilty and sentenced but the court dismisses the offence without recording a conviction.
When the court has not recorded a conviction, you are not given a criminal record and for traffic offences, you keep your driver’s licence.
Under section 10, the court can dismiss the charge outright or place you on a Conditional Release Order which is similar to a good behaviour bond.
Why is there a section 10?
The reason section 10 exists has been best said by judges in court cases that our criminal lawyers cite to get our clients the result they want.
His Honour Berjin J said of section 10:
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.
His Honour Gleeson CJ, has expressed similar sentiments, saying:
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
Can I get more than one section 10?
Yes. It is possible to get more than one section 10. Our criminal lawyers have obtained up to five section 10s for our clients!
What will the court consider in deciding to deal with my case by section 10?
The application of section 10s is discretionary and requires a court to consider certain factors. Those are:
People entitled to leniency. These include a young person who may not appreciate the consequences of their conduct or a mature person with no prior offending.
Good character is shown by character references and other achievements in life. Employment, family, sporting achievements and any charitable conduct are relevant.
Criminal antecedents mean criminal and traffic record. A person with no criminal record is entitled to leniency.
Poor health is a relevant matter to the imposition of a section 10. Especially if poor health will make any other penalty more onerous or difficult for you.
Mental conditions such as anxiety, depression, ADHD, autism, bipolar, or schizophrenia, are matters that can lead the court to use a section 10. Especially where the offending is causally linked to the mental condition or prevented you from appreciating the consequences of what you did.
The trivial nature of the offence:
The court will consider the seriousness of the offending in deciding whether to give you a section 10.
The decision of Walden v Hensler (1987) 163 CLR 561 dealt with a similar provision to section 10. This 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.
In the High Range PCA Guideline Judgment (2004) 61 NSWLR 305, his Honour by Howie J said of section 10:
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.
While triviality is one factor the court will consider, section 10s are often given for offences that are not trivial.
Extenuating circumstances explain 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.
Consequences of a conviction
The court can consider the consequences of a conviction in deciding whether to give a section 10 or not. Consequences of a conviction that might lead the court to give a section 10 include loss of employment or employment prospects and inability to travel.
How do I obtain a section 10?
If you are going to ask the court for a section 10, it is vital that your case is tailored to make that argument.
Our experienced criminal lawyers take the following approach to getting our clients section 10s:
- We ensure the offences and facts that our clients plead guilty to are ones that magistrates and judges will give section 10s for. This often involves a negotiation with the police for withdrawal of charges and changes to facts sheets.
- We are familiar with the magistrates and judges. This means we know who is likely to give you a section 10 and what arguments they are likely to listen to in making their decision.
- We obtain evidence to corroborate our arguments as to why clients should get a 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 licence for work. Is there an employment contract that can be tendered saying loss of driver’s licence 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 traveller 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?
- We obtain references. 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. We have put together a detailed guide to reference writing, which can be viewed here << insert hyperlink
Cases where our solicitors have obtained section 10 dismissals include:
- Possession (of all drugs but commonly MDMA, cocaine and methylamphetamine), including a case where someone had 81 ecstasy tablets;
- Supplying (of all drugs but commonly MDMA, cocaine and methylamphetamine), including 20 MDMA caps;
- High-Range, Mid-Range, and Low Range drink driving;
- Driving with drugs in the system;
- Drive whilst suspended and drive whilst disqualified;
- Domestic violence offences. These include where a father struck his child 60 times with a sick, a wife stabbed her husband and a husband choked his wife.
- Common assault;
- Assault occasioning actual bodily harm;
- Reckless wounding (stabbing);