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What is a Section 10?

After a person is found guilty of a criminal or traffic offence, the court will typically impose a penalty and record a conviction. The conviction will be recorded as a criminal record and will remain on the person’s criminal record forever, subject to any application to the court to remove the conviction from the person’s criminal record pursuant to the Criminal Records Act 1991 (NSW).  The Criminal Records Act 1991 (NSW) provides that in certain circumstances a conviction may be removed from a person’s criminal record as a “spent”, “quashed” or “extinguished” conviction.  Otherwise a criminal record can cause serious long-term impacts on many aspects of a person’s life, for example, on future employment, travel and finance applications. A Section 10 Dismissal can prevent this from happening.

A “Section 10” refers to Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which allows a “dismissal of charges, and the conditional discharge of offender” after a plea of guilty or guilty verdict. This means that even though a person is found guilty, the court may, at the court’s discretion, dismiss the charge without further penalty and without recording a conviction.

Section 10 Dismissals are usually only considered for less serious offences dealt with in the Local Court, such as drink driving, possession of illegal drugs and minor assaults and for defendants with a clean or limited criminal record.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Types of Section 10 Orders

There are three types of Section 10 orders that can be imposed by the court that do not involve a conviction:

Section 10(1)(a) dismissal

This is where the court dismisses the offence without recording a conviction and imposes no conditions. This is the most lenient type of Section 10 order.

Section 10(1)(b) conditional release order (CRO)

Pursuant to a section 10(1)(b) order the court dismisses the offence without recording a conviction, but the offender is placed on a conditional release order.

Conditions typically include having good behaviour; not committing any moving traffic offences; and notifying the court of changes in residential address.

These conditions are in force for a set period of time of up to 2 years, known as the bond period. If any conditions are breached during this period, the offender will be called back to court for re-sentencing where the Section 10 may be set aside and an alternate sentence imposed. It is also important to note that a conviction will appear on the defendant’s criminal record for the duration of the bond, after which it will be removed.

Section 10(1)(c) intervention plan

Pursuant to a section 10(1)(c) order the court dismisses the offence without recording a conviction, but the offender must engage in and comply with an intervention or rehabilitation program. For example, a Traffic Offenders Intervention Program or Alcohol Rehabilitation program. This is designed to minimise the risk of future offending.

How to get a Section 10

The defendant will need to present an argument supported by independent evidence in order to obtain a Section 10. A defendant charged with a minor offence and with no criminal record, may still encounter difficulty securing a Section 10. It is important that the sentencing submissions are expertly prepared and presented.  Each case is considered individually by the court and the court considers:

  1. The defendant’s character, criminal history, age, health and mental condition;
  2. The trivial nature of the offence;
  3. Any extenuating circumstances; and
  4. Any other matters the court considers relevant.

Why BSM?

Obtaining a Section 10 requires a thoroughly prepared argument supported by appropriate evidence. This can be a difficult process. The criminal lawyers at Brander Smith McKnight have extensive experience in obtaining Section 10 orders and understand the strict needs of the court. We can advise you of your chances of getting a Section 10 Dismissal, assist to collect and prepare evidence, draft sentencing submissions and prepare and present your case.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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