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As a criminal lawyer, this is, without a doubt, the most common question I get asked.
A ‘section 10’ refers to section 10 of the Crimes (Sentencing Procedure) Act 1999 (the Act), a non-conviction order. It is held up as some sort of ‘Holy Grail’ of sentencing options. Here is a rundown of everything you need to know about section 10’s.
1.There are two types of section 10s
Under the Act, there are two types of sections 10s. A section 10(1)(a) finding is an unconditional dismissal, whilst a section 10(1)(b) finding is a conditional dismissal. That ‘condition’ is a good behaviour bond. That means that you cannot be charged with another criminal offence within the duration of the bond. If you do, the Court has the right to reopen the matter under a bond and resentence you for this offence plus the second offence.
2.There is no ‘’section 10 application”
A non-conviction order is something that is always available to the Magistrate. You do not have to make a separate application. You do not have to do anything but ensure that you put your best foot forward at sentence. This may involve: providing character references; providing medical documents; completing education programs; and/or attending counselling, depending on your matter and your personal circumstances.
3.Section 10s are meant to be exceptional
Just because this is your first offence before the court does not mean you are automatically entitled to a section 10. Likewise, just because you had previous convictions before it does not mean you are automatically disentitled to a section 10. Each case is judged on a case by case basis. The Magistrate or Judge should consider all relevant considerations, including your: age, mental condition, prior record; and extenuating circumstances relating to the offending conduct.
The wording of the legislation states that the Magistrate/Judge should deal with a matter by way of a non-conviction if, on a consideration of all the factors, they deem it ‘inexpedient’ to impose a conviction.
4.A non-conviction order should not be confused with a section 10A
If the “A” is capitalised, this does not come under the non-conviction orders. Confusingly, a section 10A is a conviction. This section is used when Magistrates or Judges believe a conviction is warranted, but because of your personal circumstances, or penalties already incurred, no further penalty is warranted. A good example of this is where someone has been detained in custody awaiting sentence. The Magistrate or Judge may determine that the time spent in custody be ‘time served’ and that no further penalty is required.
5. A section 10 does not equate to the offence “disappearing”
This is the most common misconception relating to non-conviction orders. You should remember that a non-conviction is still a finding of guilt.
The Police and Court system will always have a record of the offence and the result. Even if you re-offend, twenty, thirty, forty years down the line, it will come up.
A section 10(1)(b) will show up on a NSW Criminal Record Check for the duration of the bond. After that, it should become ‘spent’. That means that by law, you are not required to disclose the conviction, and it should not show up on a NSW Criminal Record Check.
A Federal Criminal Record check is a further consideration. A section 10 is something unique to NSW. Each state and territory will have it’s own sentencing scheme and spent conviction scheme. The Commonwealth Crimes Act 1914 provides that a conviction for a spent offence, including offences under any State legislation, is not required to be disclosed. Effectively, the Commonwealth scheme should adopt the scheme of whichever State/Territory sentenced you for that offence. However, experience has shown that the Federal authorities tend to ignore those rules and disclose non-convictions when responding to requests for immgration/visa checks.
In some circumstances, even a finding of guilt will be enough to have adverse flow-on consequences. Some security licences will be revoked on a finding of guilt. Action will also be taken against firearm licences on findings of guilt for certain offences. Again, a non-conviction may still be reflected on a Federal Criminal Record check.
If you have been charged with an offence, it is important that you carefully consider what your concerns are in relation to the outcome of that offence and consult an appropriate specialist in that area.
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