If you are facing criminal charges, you will likely be worried about the implications of a criminal record and how it may limit your opportunities in life. A criminal conviction can affect current and future employment, your ability to travel, and your capacity to secure finance in the future.
For those accused of an offence in New South Wales, seeking a section 10 order may be a viable option to avoid a criminal conviction being recorded.
In this article, we consider what a section 10 order entails, the types of offences that may be considered, the implications of such an order, the process of seeking one, and the factors courts consider when deciding whether to make an order. The information is general only, and we strongly recommend you obtain professional advice relevant to your circumstances.
What is a Section 10 order?
Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court that finds a person guilty of an offence to deal with the matter without proceeding to conviction in certain circumstances. This means a person may be found guilty but have no conviction recorded.
A section 10 order can therefore provide an opportunity to avoid the consequences associated with having a conviction recorded. However, it is important to understand that a section 10 order is not automatic. The court has discretion and must consider the circumstances of the offence and the person before deciding whether an order is appropriate.
A number of offences may be dealt with by way of a section 10 order. These can include less serious traffic offences, some drug offences, property offences, first-time offences and other criminal matters. However, there is no simple list of offences that automatically qualify for a section 10 order. Eligibility and the likelihood of an order depend on the particular offence, the circumstances of the offending, the person’s history and the matters presented to the court.
What are the different types of Section 10 orders?
The court can make one of three types of orders under section 10:
| Section 10 order | What it means |
|---|---|
| Dismissal | The court dismisses the relevant charge without proceeding to conviction. |
| Conditional Release Order | The court discharges the person under a Conditional Release Order without recording a conviction. Conditions may apply. |
| Intervention program order | The person is discharged on condition that they participate in an intervention program and comply with any applicable intervention plan. |
These outcomes are different from one another, so it is important to understand exactly what order the court has made and what conditions apply.
How to Obtain a Section 10 Order
The courts do not grant section 10 orders lightly. A person seeking a section 10 order should be prepared to present thorough and persuasive submissions explaining why a conviction should not be recorded.
When seeking a section 10 order, it is vital to present relevant mitigating factors and other circumstances that support the application. Depending on the circumstances, supporting documents may also be presented to the court.
The court will consider the nature and severity of the offence and the circumstances in which it occurred. The court may also consider matters relating to the person before the court, including their age, prior history, health and mental condition, and other matters that are relevant to the exercise of the court’s discretion.
Demonstrating genuine remorse and taking appropriate steps towards rehabilitation may also be relevant. Depending on the circumstances, this may include participating in counselling, undertaking educational programs or engaging in community service.
What factors does a court consider?
When deciding whether to make a section 10 order, the court must have regard to the factors set out in section 10(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- The person’s character, antecedents, age, health and mental condition.
- The nature of the offence, including whether it is trivial.
- Any extenuating circumstances in which the offence was committed.
- Any other matter the court considers proper to take into account.
The Judicial Commission of NSW explains that section 10 requires the court to consider the relevant statutory factors as part of its decision-making process. The circumstances of the offence and the person’s individual circumstances must therefore be considered together.
Does being a first offender help?
A person’s prior criminal history is relevant when a court considers a section 10 application. Having no, or limited, prior convictions may support an application in an appropriate case, but being a first offender does not guarantee that a section 10 order will be made.
The court will still consider the objective seriousness of the offence, the circumstances in which it occurred and the other relevant factors before determining the appropriate outcome.
Can remorse and rehabilitation help?
Demonstrating genuine remorse and taking meaningful steps towards rehabilitation may be relevant to the court’s assessment. The appropriate steps will depend on the circumstances of the offence.
For example, depending on the matter, rehabilitation or educational steps may include counselling, treatment, an appropriate educational program or participation in an intervention program.
Any material provided to the court should accurately reflect the person’s circumstances and demonstrate genuine steps taken rather than simply being undertaken for the purpose of obtaining a particular sentencing outcome.
Does a Section 10 Appear on a Police Check?
A section 10 order means that the court does not record a conviction. However, this does not mean that every type of police or criminal history check will necessarily treat the matter in exactly the same way.
Nationally coordinated criminal history checks are assessed by the relevant police agencies under applicable spent-conviction legislation and information-release policies. Depending on the purpose of the check and the applicable disclosure rules, a check may contain information such as findings of guilt without conviction or other court orders.
Under the NSW Criminal Records Act 1991, a finding that an offence has been proved or that a person is guilty without proceeding to conviction is generally treated as spent immediately, subject to the Act’s exceptions. A conditional release order made without conviction is generally spent once the relevant period has been satisfactorily completed or the applicable conditions have been complied with.
This means the effect of a section 10 order on a police check can depend on the type of order, whether its conditions have been completed, the purpose of the check and any applicable exceptions.
It is also important to distinguish between information that may be retained in police or court records and information that is disclosed on a particular criminal history check. Records are not necessarily destroyed simply because information is spent or is not disclosed on a particular check.
Spent Convictions in NSW
The objective of the spent conviction scheme is to provide an opportunity for people who have been convicted of certain offences to move forward after a crime-free period.
The Criminal Records Act 1991 (NSW) provides that, subject to various exceptions, eligible convictions may become spent after the applicable crime-free period. For convictions of courts other than the Children’s Court, the standard crime-free period is 10 consecutive years. For certain Children’s Court matters, the relevant period is generally 3 consecutive years.
Importantly, the Act also provides specific rules for findings of guilt where the court does not proceed to conviction and for conditional release orders made without conviction. A finding of guilt without proceeding to conviction is generally spent immediately, subject to the legislation and its exceptions. A conditional release order without conviction is generally spent after satisfactory completion of the relevant period or conditions.
Once a conviction is spent, the Criminal Records Act 1991 generally limits the circumstances in which a person is required to disclose information about the conviction. However, there are important exceptions, including certain employment, licensing and regulatory situations.
Spent convictions are also not necessarily erased from all records. The legislation expressly provides that records relating to spent convictions may continue to exist, and there are circumstances in which information about spent convictions may lawfully be accessed or disclosed.
What Should You Do Before Seeking a Section 10 Order?
If you are seeking a section 10 order, it is important to obtain advice about the particular offence and your circumstances before deciding what material should be put before the court.
Depending on your circumstances, relevant preparation may include:
- understanding the charge and the possible sentencing outcomes;
- reviewing your prior criminal and traffic history;
- identifying relevant personal or employment circumstances;
- considering whether rehabilitation or an intervention program is appropriate;
- gathering relevant supporting documents;
- preparing sentencing submissions addressing the circumstances of the offence and your personal circumstances; and
- obtaining legal advice about how the material should be presented to the court.
There is no guarantee that a section 10 order will be made. The decision ultimately rests with the sentencing court after considering the relevant circumstances.
Frequently Asked Questions About Section 10 Orders in NSW
Does a Section 10 mean I have no criminal conviction?
A section 10 order is made without proceeding to conviction. This means a conviction is not recorded for the offence. However, the finding of guilt and the type of section 10 order made can still have legal consequences, and disclosure rules can vary depending on the circumstances and purpose of a check.
Can I get a Section 10 for a first offence?
A first offence may be relevant to a section 10 application, but there is no automatic entitlement to a section 10 order simply because you have no previous convictions. The court considers the offence, the circumstances in which it occurred and your individual circumstances before deciding whether an order is appropriate.
Can a Section 10 order be used for traffic offences?
Some traffic offences may be dealt with under section 10, although the availability and consequences of a section 10 outcome depend on the particular offence and applicable legislation. Traffic matters can also involve separate licensing and disqualification consequences, so specific legal advice is important.
Can a Section 10 order be used for a drug offence?
Some drug offences may be capable of being dealt with under section 10, but the outcome depends on the particular charge, the circumstances of the offending, your history and the matters put before the court.
Will a Section 10 affect my future?
A section 10 order can avoid a conviction being recorded, which may reduce some of the consequences associated with a criminal conviction. However, the effect of a section 10 order can vary depending on the type of order, the nature and purpose of a future criminal history check, licensing or registration requirements and other applicable laws.
How long does a Section 10 order last?
This depends on the type of section 10 order. A dismissal does not impose a period of conditional release. A Conditional Release Order has a specified term and conditions, while an intervention program order is connected to participation in the relevant intervention program and compliance with any intervention plan.
Conclusion
Navigating the criminal justice system can be daunting. Section 10 orders can provide an important sentencing option for individuals facing criminal charges in NSW where the court considers that a conviction should not be recorded.
Understanding the different types of section 10 orders, the circumstances in which they may be available, and the factors the courts consider is essential when seeking to avoid a criminal conviction.
While an experienced criminal lawyer can provide guidance and present submissions on your behalf, the outcome of any sentencing application depends on the individual circumstances of the matter and the court’s discretion.