Section 10 - Avoiding a criminal record

Section 10 Crimes (Sentencing Procedure) Act -

Avoiding a Criminal record

Normally, when you plead guilty to a criminal or traffic offence the Court imposes a penalty and records a conviction. If the court records a conviction you will have a criminal record. In traffic matters this may also include a loss of license. However, if we were able to convince the Court not to convict you, there would be no penalty, no loss of licence, and no criminal record. In all Criminal and Traffic Law cases a Court has the discretion not to convict you but deal with you under the terms of section 10.

What is a “section 10”
The expression “section10” refers to section 10 of the Crimes (Sentencing Procedure) Act 1999. This section allows a Court that finds you guilty of an offence, to discharge you without recording a conviction. Because there is no conviction, there is no criminal record. Additionally, there is no loss of drivers license and no other penalty.

Types of section 10's.
There are three types of section 10s:

• Outright dismissal – Section 10(1)(a)
• Conditional dismissal with a good behaviour bond - Section 10(1)(b)
• Conditional dismissal with a rehabilitation course – Section 10(1)(c)

Section 10(1)(a) - Outright dismissal
An outright dismissal under section 10 involves the court dismissing the offence without any conditions. The matter is completely over as soon as you walk out of the Court room.

Section 10(1)(b) - Conditional dismissal with a good behaviour bond 
A Court can dismiss a charge under s10, but at the same time put you on a good behaviour bond for up to 2 years. The bond can have any conditions which the Court wants you to abide by. At a minimum these include :

• That you be of good behaviour (that is, that you do not commit any further offences)
• That you advise the Court of any change of address and
• That you appear before the Court if called upon to do so

If you breach any conditions of the bond, the Court can call you up before it, revoke the bond and impose a different sentence for the offence. This is the most popular way that a court deals with an offender under section 10.

Section 10- with intervention program
This refers to a section 10 which is conditional on you entering an intervention program of some kind (such as the Traffic Offenders program), completing that program successfully and complying with any action plan that results from that program.

Applying for a section 10 Crimes Sentencing Procedure Act
Courts do not give out section10’s easily. Normally a Courts will need a lot of convincing before granting you a section 10. The law says that in deciding whether to give a person a section 10, the Court must consider the following issues:

• Your age, character, record, health and mental condition.
• The trivial nature of the offence.
• Any extenuating circumstances
• Anything else the Court think is relevant.

Honest and Expert advice
If you would like our honest opinion as to your chances of a Section 10 please call us on  (02) 9261 4555 . We have access to sentencing statistics for all offences and can tell you what proportion of people who plead guilty to your offence receive a section 10.

Things you may not have hard about a section 10
Because of its huge benefits, section 10 is perhaps the best known section in the whole of the Criminal Law. Just about anyone, from all kinds of lawyers to your friends and work colleagues may tell you all sorts of things about section 10s.

Unfortunately, section 10 is also perhaps the most widely misunderstood law. As the saying goes : “a little knowledge can be dangerous”. Here are some facts about a section 10 which you may not have been told about (or may have been told the wrong information):

1. If you get a section 10 with a bond, it will appear on your criminal record for the duration of the bond. While section 10 itself expressly says that it is not a conviction, under the Criminal Records Act 1991, a section 10 is actually defined as a conviction that becomes spent (that is, extinguished) as soon as the bond is finished. This means that if you need to show a clean criminal record in the near future (for example if you are about to apply for a job or travel overseas) you really need to obtain an outright section 10.

2. If you have committed a traffic offence which attracts demerit points, and you are worried about the loss of license, a section 10 will not help. The RTA will still impose the demerit points even if you get a section 10.

3. For certain traffic offences, you can not get more than one section 10’s within a period of 5 years.

4. After you get a section10, (with some limited exceptions) you do not have to disclose it to your employer or anyone else- even if they ask specifically about them. More and more employers these days are getting smarter about the way in which they ask questions about criminal history in job applications. Many ask not just about convictions, but also about sections 10s or “findings of guilt” (a section 10 is still a finding of guilt). Many people presume that if a question like this is asked, you have to answer it honestly and disclose any previous section 10s.

This may not necessarily be the correct approach. Section 12 of the Criminal Records Act 1991 says that you do not need to disclose a “spent conviction” to any one for any purpose. Because that act also defines a section 10 as a “spent conviction”, it can be argued that even if an employer asks you a direct question about any previous section 10’s or ‘findings of guilt”, you do not have to disclose these as long as any section10 bond has expired.

At this stage there is no decided cases as to what the correct position is. This article should not be construed as legal advice, it simply raises an argument that may or may not be endorsed by a court.

 

Disclaimer

The information contained in this page was accurate at the time it was published. You should confirm the accuracy of this information with us or another solicitor before relying upon it. For free confirmation please contact Armstrong Legal.

It is most important that you understand that each criminal case is different. While the material in this page is intended to be relevant to the majority of cases, it may not apply to every case.