Section 10 - Avoiding a Criminal Record

What is a section 10?

If a person pleads guilty to a criminal offence, or if a court finds a person guilty after a defended hearing, the court will impose a sentence. A sentence often involves the recording of a conviction against the person’s name. A conviction stays on a person’s criminal record for 10 years. Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court to either dismiss a charge, or discharge a person under a conditional release order (good behaviour bond) without a conviction.

What are the different types of section 10 orders?

1.     Under section 10(1)(a) the court can outright dismiss a charge.

2.      Under section 10(1)(b) the court can impose a conditional release order (good behaviour bond) without recording a conviction for a period of up to two years. The standard conditions of a conditional release order are that the person must not commit any offence and must appear before the court if called on to do so. The court can impose a supervision condition and other additional conditions (including a rehabilitation or treatment condition).

If a person fails to comply with the terms of a conditional release order a court can revoke the order. This means that a person can be resentenced for the same offence and a conviction may be recorded.

3.     Under section 10(1)(c) the court can discharge a person on the condition that the person participate in an intervention program (such as rehabilitation) and comply with any intervention plan. 

When will a court grant a section 10?

Considering whether a section 10 order should be made involves a two-step process. A court must first identify the following mitigating criteria:

(i)             Character, antecedents, age, health and mental condition,

(ii)           Extenuating circumstances in which the offence was committed

(iii)         Any other matter the court thinks proper to consider

Secondly, the court decides whether it is appropriate to exercise its discretion and grant the order.

Will a section 10  order show up on a police check?

Under the Criminal Records Act 1991 (NSW) an order that is spent will not ordinarily show up on a police check. However, there are exceptions where a section 10 will show up on a police check. For example, a section 10 will show up on a national police check for the purposes of applying for an international visa. The law carves out exceptions for when a section 10 will show up. The same applies for a section 10(1)(b)

How to persuade a court to grant a section 10

The discretion conferred by section 10 is broad. However, the mitigating criteria must support the exercise of the discretion. The courts have held that leniency is not to be dictated by some factor divorced from the mitigating criteria.

Courts often consider the legal and social consequences of recording a conviction, and whether an order under section 10 is a sufficient punishment to deter members of the community from breaking the law.

Whether a s10 order can be obtained depends on the circumstances of each case. Woolf Associates has knowledge and experience of the relevant factors, case law and sentencing trends.