Section 10 - Dismissal and Conditional Discharge

When a person pleads guilty to or is found guilty of a criminal offence the Court must decide what, if any, punishment is appropriate. 

In appropriate circumstances, the sentencing Court has the power to find the offence proven but dismiss the charge (either completely or by placing someone on conditional release) and not record a conviction against the person’s criminal record for the offence. These non-conviction sentencing options are found at Section 10 of the Crimes (Sentencing Procedure) Act 1999. 

What is a Section 10:

When an order pursuant to Section 10 is applied, the person does not receive a conviction on their criminal record for their offence. 

Section 10 of the Act contains three separate sentencing options which each avoid a criminal conviction being recorded on a person’s criminal record:

1. Section 10(1)(a) dismissal – An order that the charge is dismissed, no conviction is recorded, and no further penalty is to be imposed.
2. Section 10(1)(b) conditional release order without conviction – An order that discharges the person to comply with a conditional release order without conviction (good behaviour bond). 
3. Section 10(1)(c) – An order discharging the person on condition that they participate in and comply with an intervention program 

Before determining whether it is suitable to deal with the Defendant by way of a non-conviction penalty under Section 10, the Court must apply Section 10(3) of the Act which requires the Court 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.

Legislation:

When is Section 10 not available?

For certain traffic offences a Section 10 is not an available sentencing option if, during the 5 years immediately prior to the Court dealing with the offence, that the person has already received a Section 10 for another applicable offence. 

Consequences of Breaching a Non-Conviction Conditional Release Order:

If a non-conviction conditional release order bond is breached, the Defendant will be brought back before the Court for the breach and may be re-sentenced for their offence. On the breach, the Court can decide to take no action, vary the conditional release order by imposing additional conditions, or revoke the order and impose a different penalty.  

When re-sentencing a person for a breached non-conviction conditional release order, the Court may revoke the non-conviction order and instead impose a fine or a conditional release order with conviction, meaning the person now has a criminal record and has lost the benefit of the non-conviction penalty. 

Will I get a criminal record for a Section 10 Dismissal?

No, if a person receives any Section 10 penalty there will not be a conviction recorded on their criminal record. 

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 duration of the conditional release order bond.

Related Consequences of a Section 10 Order

Demerit Points

The Court does not have the power to impose, deduct or vary the amount of demerit points that apply to an offence. Demerit points at law are a consequence of imposing a conviction. Where a person receives a non-conviction penalty (including any Section 10 sentencing option) they will avoid the demerit points being applied against their licence.

Automatic and Mandatory Licence Disqualification 

Some traffic offences (such as speeding >30km/h, drink driving, negligent driving or driving while suspended) also carry a licence disqualification consequence in addition to their prescribed maximum penalties. The provisions relating to automatic and mandatory disqualification periods for traffic offences are contained in Section 205 of the Road Transport Act 2013. 

The Legislation states that when the Defendant is convicted of the offence, the automatic and mandatory licence disqualification will be applied against the Defendant’s licence. Where a person receives a non-conviction penalty (including any Section 10 sentencing option) they will avoid the imposition of the automatic and mandatory licence disqualification. 

Mandatory Interlock Order

Similarly, if the offence for which a person is being sentenced contains a ‘mandatory interlock’ provision then when a person is convicted the Court is required to impose a mandatory interlock order on the Defendant. Mandatory Interlock Orders involve two stages:

1. Licence Disqualification – A period of disqualification is applied to the licence, then
2. Interlock Order – After the disqualification period has been served, order the Defendant to obtain an interlock licence and have an interlock device installed in their vehicle for the prescribed period of time. 

Where a person receives a non-conviction penalty (including any Section 10 sentencing option) they will avoid the imposition of the mandatory interlock order.