Section 10 Dismissal

When a person pleads guilty to or is found guilty of an offence the court must decide what, if any, punishment is appropriate. The starting point is to decide whether to record a conviction (an entry in the person’s criminal record) and then to decide whether to impose a punishment, for example a conditional release order (CRO) or fine.

In certain sentencing matters a court has the discretion to not convict a person, but instead make an order under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) finding the person guilty, but dismissing the matter. If that occurs there is no penalty, no loss of licence, and no criminal record. There is however a ‘finding of guilt’. A mere ‘finding of guilt’ without an associated conviction is not disclosable on a National Police Check.

Obtaining a Section 10(1)(a) for a Traffic Offence Means That no Demerit Points are Recorded

In the past, the RMS (now Transport for NSW) would record demerit points even where a court dealt with a traffic offence pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act (NSW). However, presently, where  no conviction is recorded for a traffic offence, either because an order is made pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act or a CRO without conviction is imposed pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act, no demerit points will be recorded for the offence.

In traffic matters a conviction may trigger an automatic licence disqualification. However, where a person is not convicted there will be no disqualification.

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

It is very rare for a court to make an order pursuant to section 10(1)(a), even for traffic offences or other minor offences. A court will need to be satisfied that there are good reasons before such an order is made and is required to consider:

• the person’s character, antecedents (history), age, health and mental condition;
• the trivial nature of the offence;
• the extenuating 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:

• when a person 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;
• when a person has been charged with larceny (theft) of goods worth very little (only a few dollars), took the goods for “need, not greed” for example a person stole a few loaves of bread because they only had $0.75 in their bank account.

Honest and Expert Advice

If you would like legal advice as to the likelihood of getting a section 10(1)(a) in your matter please call us on 1300 038 223. We will assess your circumstances and the nature of the offending and can tell you what proportion of people who plead guilty to the offence you have been charged with receive a section 10(1)(a).

Did you know…

“Section 10” is perhaps the best known phrase in New South Wales criminal law. Unfortunately.

There are 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 the offender on upon him/her entering a CRO – a section 10(1)(b) of the Crimes (Sentencing Procedure) Act (which, strictly speaking, is made pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act);
• an order discharging the offender on condition that the he/she 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 will not 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.

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.

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 10s. If you find yourself in the situation you should obtain legal advice.

If you would like any information on Section 10s or any other legal matter call us on 1300 038 223 or email us.