This article was written by Aurhett Barrie - Solicitor – Sydney
As a former Judge’s Associate Aurhett has rare insight into how cases are heard and decided. This knowledge allows him to persuasively advocate for his clients’ interests, both inside and outside of a courtroom. He has spent his career practising exclusively in criminal and traffic law and has advised hundreds of clients on an extensive range of matters. He takes...
Section 10 Dismissal
When a person pleads guilty to or is found guilty of a criminal offence the court must decide what, if any, punishment is appropriate. The Magistrate or Judge will determine which sentencing orders to impose which will, in turn, determine whether or not a conviction will be recorded. If a conviction is recorded it will appear on the person’s criminal record. In certain sentencing matters, a court has the discretion not to convict a person, but instead make an order under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 finding the person guilty, but dismissing the matter without further penalty. If that occurs there is no penalty, no loss of licence, and no criminal record. There is, however, a finding of guilt.
A Section 10(1)(a) For A Traffic Offence Means No Demerit Points Are Recorded
When no conviction is recorded for a traffic offence, either because an order is made pursuant to section 10(1)(a) or section 9(1)(b) of the Crimes (Sentencing Procedure) Act, no demerit points will be recorded for the offence.
In traffic matters, a conviction and associated demerit points may trigger an automatic licence suspension. However, where a person is not convicted such action may not be taken.
If you are currently facing traffic offences and you are concerned about the loss of demerit points please call us on 1300 038 223 to discuss your options.
Seeking a Section 10 Dismissal in NSW
It is very rare for a court to make an order pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act, even for traffic offences or other minor offences. The court will need to be satisfied that there are good reasons to make such an order and is required to consider:
- the person’s character, antecedents (criminal history), age, health and mental condition;
- the nature of the offence;
- the circumstances in which the offence was committed;
- any other matter that the court thinks proper to consider.
Some examples of when a court might consider making a section 10(1)(a) order are:
- Where a defendant has been charged with possessing a very small amount of cannabis, has no criminal history, has demonstrated genuine remorse and has taken significant steps towards rehabilitation; or
- Where a defendant has been charged with shoplifting (larceny) of goods worth very little (only a few dollars), where they took the goods for “need, not greed,” and has little to no criminal history.
- Where a defendant has committed a Low-Range PCA offence with a reading of 0.05, the morning after drinking the previous evening, has no prior traffic infringements and is otherwise of good character.
Honest And Expert Advice
If you would like legal advice as to the likelihood of avoiding a conviction in your matter please call us on 1300 038 223. We will assess your circumstances and the nature of the offending and provide you with advice tailored to your specific circumstances.
Did You Know…
“Section 10” is perhaps the best-known phrase in New South Wales criminal law. Unfortunately, there are a number of different types of section 10 orders, these include:
- An order dismissing the matter after a finding of guilt – a section 10(1)(a);
- An order discharging an offender on upon him/her entering a CRO – a section 10(1)(b) of the Crimes (Sentencing Procedure) Act. However, strictly speaking, this order is made pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act);
- An order discharging an offender on condition that they enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program – a section 10(1)(c) of the Crimes (Sentencing Procedure) Act.
If an order is made pursuant to section 10(1)(a) there will be a finding of guilt, but that finding will be immediately “spent”, meaning it is unlikely to be disclosed on a National Police Check.
If an order is made pursuant to section 10(1)(b) there will be a finding of guilt, but that finding will be spent at the completion of the CRO, which is a good behaviour bond that can last up to 2 years.
Spent findings of guilt are disclosable in certain circumstances. They will commonly appear if a criminal history is sought for migration purposes or employment that requires government security clearances. It will also remain in internal police databases.
For certain traffic offences, you cannot get more than one section 10 within a period of five years.
A person who receives a non-conviction order is generally not required by law to disclose the matter unless there is a particular licensing or regulatory requirement to do so. For example, legal and medical professionals may be required to disclose a charge and/or conviction to the relevant regulatory body. Also, those who work in the security industry may have their security licence cancelled if they plead guilty to certain offences, even if a non-conviction is recorded.
An individual’s employment contract may also contain specific conditions about disclosure of any criminal charges or convictions. 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 section 10 orders or “findings of guilt”. Many people presume that if a question like this is asked, you have to answer it and disclose any previous section 10. If you find yourself in the situation you should obtain legal advice.