Section 10A (Conviction With No Further Penalty)

When a New South Wales court is dealing with a person who has been found guilty of an offence, it may record a conviction without imposing any further penalty. This power is found in section 10A of the Crimes (Sentencing Procedure) Act 1999.

Section 10A was inserted into the Act in 2006 to provide an appropriate sentencing power in circumstances where a court considers a non-conviction conditional release order or dismissal is inappropriate considering the circumstances of the offence but no further penalty is necessary.

Why was this provision introduced?

A conviction serves to denounce the conduct of the person and is a formal acknowledgment that the person has committed a criminal offence and is no longer of “good character” in the eyes of the law. This may impact a person’s ability to obtain employment and travel.

Interestingly, Section 10A was introduced in part to overcome an anomaly in sentencing where a magistrate or judge who thought that the imposition of a penalty was unnecessary would impose a very small fine (e.g. 50c) and the cost to Revenue NSW (formerly SDRO) to administer and recover the fine would be more than the fine itself. The existence of Section 10A avoids the need to impose such nominal penalties.

Traffic offences

The recording of a conviction is a necessary precondition to disqualifying a person from holding a driver licence. For this reason, a court may order a conviction under Section 10A so that an automatic disqualification period is enlivened while avoiding the need to impose a fine or place the offender on a conditional release order.

Examples of when a section 10A order might be made include:

• when a person has been sentenced to imprisonment for an offence and is also being sentenced for less serious offences and the court decides that punishment for the further offences is not necessary;
• when a person is being sentenced for a driving offence and the court believes that a licence disqualification is appropriate, but a fine or conditional release order is not warranted;
• where a person is being sentenced for multiple offences, some of which involve overlapping conduct or circumstances and to impose a further penalty would amount to “double punishment” or “double counting”;
• where a person has committed an offence which would ordinarily result in a fine being imposed, but does not have the financial means, resources or capacity to pay a fine and/or the magistrate decides to deal with the person leniently by not imposing a fine.

Will I have a criminal record?

Yes. If an order is made pursuant to section 10A, the offender is convicted of the offence and this will appear on the person’s criminal record. A section 10A should not be confused with an order pursuant to section 10(1)(b) (a conditional release order without conviction) or section 10(1)(a) (a conditional release order with conviction) of the Act.

A section 10A conviction will be recorded on a person’s criminal record and will appear when a national police check is done until the conviction becomes spent.

If you require advice on Section 10a convictions with no further penalty or any other legal matter, please contact Armstrong Legal.