If you are facing criminal charges in New South Wales, you may be concerned about how a criminal conviction could affect your future. A conviction can impact employment opportunities, travel, professional licensing and other areas of your life.
A section 10 order in NSW may allow a person who has been found guilty of an offence to avoid having a conviction recorded. However, a section 10 order is not automatic. The court has discretion and considers the offence, the person’s circumstances and other relevant factors before deciding whether to make an order.
Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court to deal with certain offences without recording a conviction, even where the court finds the person guilty.
This means the court records a finding of guilt, but it does not record a criminal conviction.
This article explains what a section 10 order is, the types of orders available, how courts decide whether to make an order, how section 10 orders affect police checks and the factors that may support an application.
Key Takeaways About Section 10 Orders in NSW
- A section 10 order allows a court to deal with certain offences without recording a conviction.
- A person who receives a section 10 order is still found guilty of the offence.
- Section 10 orders are discretionary and are not guaranteed, even for first-time offenders.
- The court considers both the seriousness of the offence and the person’s individual circumstances.
- Strong sentencing material and relevant mitigating factors can support a section 10 application.
What Is a Section 10 Order in NSW?
Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court to deal with an offence without proceeding to conviction in certain circumstances.
The practical effect is that a person may avoid a criminal conviction, even though the court has found that they committed the offence.
A section 10 order can reduce some of the consequences associated with a conviction. However, courts do not grant section 10 orders automatically. The court must consider the offence and the person’s circumstances before deciding whether the order is appropriate.
No fixed list of offences qualifies for a section 10 order. Courts may consider section 10 outcomes for matters including:
- some less serious traffic offences;
- some drug offences;
- property offences;
- first offences; and
- other criminal matters where the circumstances support avoiding a conviction.
The likelihood of receiving a section 10 order depends on factors such as the offence, the circumstances surrounding the offending, the person’s criminal history and the material presented to the court.
What Are the Different Types of Section 10 Orders?
Section 10 provides three main types of outcomes:
| Section 10 order | What it means |
|---|---|
| Dismissal | The court dismisses the offence without recording a conviction. |
| Conditional Release Order | The court releases the person without recording a conviction and may impose conditions. |
| Intervention program order | The court releases the person without recording a conviction on the condition that they complete an approved intervention program and comply with relevant requirements. |
Each outcome has different requirements and consequences. Understanding the type of section 10 order made is important when considering its effect.
How Do You Obtain a Section 10 Order?
The court does not grant section 10 orders lightly. A person seeking a section 10 order should provide relevant material that explains why avoiding a conviction is appropriate in their circumstances.
This usually involves making submissions about both the offence and the person’s personal circumstances.
The court may consider:
- the nature and seriousness of the offence;
- the circumstances surrounding the offence;
- the person’s age and background;
- prior criminal history;
- health or mental condition where relevant;
- employment, family or personal circumstances; and
- steps taken towards rehabilitation.
Supporting documents may also help in some cases. These may include character references, evidence of rehabilitation, counselling records, educational achievements or other relevant material.
What Factors Does a Court Consider?
When deciding whether to make a section 10 order, the court must consider the factors listed 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 was trivial.
- Any extenuating circumstances surrounding the offence.
- Any other matter the court considers relevant.
The Judicial Commission of NSW explains the operation of section 10 orders and notes that courts must consider the statutory factors alongside the circumstances of each individual matter.
Does Being a First Offender Help?
Having no previous convictions can support a section 10 application in NSW. A person with little or no criminal history may be able to show that the offence was out of character and that recording a conviction could have a significant impact on their future.
However, being a first offender does not guarantee a section 10 order. The court will still consider the seriousness of the offence, the circumstances of the offending and all other relevant factors before deciding the appropriate sentence.
Can Remorse and Rehabilitation Help With a Section 10 Application?
Showing genuine remorse and taking steps towards rehabilitation may assist when a court considers a section 10 application.
The relevant steps will depend on the circumstances of the matter. They may include:
- participating in counselling or treatment;
- undertaking educational programs;
- completing an appropriate intervention program; and
- taking practical steps to address factors that contributed to the offending.
Any material provided to the court should accurately reflect the person’s circumstances. It should demonstrate genuine efforts rather than simply being completed to seek a particular sentencing outcome.
Does a Section 10 Order Appear on a Police Check in NSW?
Many people ask whether a section 10 order appears on a police check.
A section 10 order means the court does not record a conviction. However, different police or criminal history checks may treat the matter differently.
Relevant police agencies manage criminal history checks under applicable legislation and information-release policies. The information disclosed can depend on the purpose of the check and the relevant disclosure rules.
Under the NSW Criminal Records Act 1991, a finding of guilt where the court does not record a conviction is generally treated as spent immediately, subject to the legislation and applicable exceptions.
A Conditional Release Order made without conviction generally becomes spent once the relevant period ends and any conditions have been completed satisfactorily.
The effect of a section 10 order on a police check depends on factors including:
- the type of section 10 order;
- whether any conditions have been completed;
- the purpose of the criminal history check; and
- whether any exceptions apply.
It is also important to distinguish between information kept in police or court records and information disclosed on a particular criminal history check. A record may continue to exist even where information is spent or not disclosed.
Section 10 Orders and Spent Convictions in NSW
The NSW spent convictions scheme allows eligible people to move forward after a crime-free period without disclosing certain convictions in some circumstances.
The Criminal Records Act 1991 (NSW) sets out the rules for spent convictions, including eligibility requirements and exceptions.
For convictions from courts other than the Children’s Court, the standard crime-free period is generally 10 consecutive years. For certain Children’s Court matters, the relevant period is generally 3 consecutive years.
The legislation also contains specific rules for findings of guilt where the court does not proceed to conviction and Conditional Release Orders made without conviction.
A finding of guilt without proceeding to conviction is generally treated as spent immediately, subject to the legislation and its exceptions. A Conditional Release Order without conviction is generally treated as spent after the relevant period or conditions have been completed.
Once a conviction becomes spent, the Criminal Records Act 1991 generally limits when a person must disclose information about that conviction. However, exceptions can apply, including certain employment, licensing and regulatory situations.
Spent convictions are not necessarily removed from all records. Information may continue to exist in police or court records and may be accessed or disclosed in certain circumstances allowed by law.
What Should You Do Before Seeking a Section 10 Order?
If you are seeking a section 10 order in NSW, legal advice can help you understand your options and prepare suitable material for the court.
Preparation may include:
- understanding the charge and possible sentencing outcomes;
- reviewing your criminal and traffic history;
- identifying relevant personal, family or employment circumstances;
- considering whether rehabilitation or an intervention program is suitable;
- collecting supporting documents;
- preparing sentencing submissions; and
- obtaining advice about presenting relevant material to the court.
A section 10 order is not guaranteed. The sentencing court makes the final decision after considering the offence and the individual circumstances of the person before it.
How a Criminal Lawyer Can Help With a Section 10 Application
A section 10 application requires the court to consider a range of factors, including the seriousness of the offence, your personal circumstances and any steps you have taken towards rehabilitation.
An experienced criminal lawyer can help you understand your options, identify relevant mitigating factors, prepare sentencing material and present submissions to the court.
If you are facing criminal charges in NSW and want advice about whether a section 10 order may apply to your circumstances, Hughes Law’s criminal lawyers can provide guidance about your legal options.
Frequently Asked Questions About Section 10 Orders in NSW
Does a Section 10 mean I have no criminal conviction?
Yes. A section 10 order means the court does not record a conviction for the offence. However, the court has still found that the offence was proven. The effect of the order can depend on the type of order made and the purpose of any future criminal history check.
Can I get a Section 10 order for a first offence?
A first offence may support a section 10 application, but it does not guarantee an order. The court considers the seriousness of the offence, your personal circumstances, your history and the material presented before deciding whether a section 10 order is appropriate.
Can a Section 10 order be used for traffic offences?
Some traffic offences may be dealt with under section 10. However, the availability of a section 10 order depends on the specific offence, the circumstances of the matter and any separate licensing or disqualification consequences.
Can a Section 10 order be used for a drug offence?
Some drug offences may be dealt with under section 10. The outcome depends on factors such as the type of offence, the circumstances of the offending, your history and the submissions made to the court.
Will a Section 10 Order Affect My Future?
A section 10 order can help avoid some consequences associated with having a criminal conviction recorded. This may be relevant for employment opportunities, travel or professional requirements.
However, the effect of a section 10 order depends on the type of order made, the purpose of any future criminal history check, disclosure requirements and any licensing or regulatory obligations.
You should obtain advice based on your circumstances, particularly if you need a criminal history check for employment, registration or another official purpose.
How Long Does a Section 10 Order Last?
The length and effect of a section 10 order depends on the type of order made.
- A dismissal does not impose supervision or conditions.
- A Conditional Release Order has a set term and may include conditions imposed by the court.
- An intervention program order requires participation in the relevant intervention program and compliance with the applicable requirements.
The consequences of each order can differ, so it is important to understand the specific outcome imposed by the court.
Can a Section 10 Order Be Appealed?
Whether an appeal is available depends on the circumstances of the matter, including the court involved, the sentence imposed and the applicable appeal rights.
If you believe your sentencing outcome was not appropriate, you should obtain legal advice as soon as possible because strict time limits may apply.
Conclusion
If you are facing criminal charges in NSW, understanding your sentencing options is important. A section 10 order may allow a person who has been found guilty of an offence to avoid having a conviction recorded where the court considers it appropriate.
However, section 10 orders remain discretionary. The court considers the seriousness of the offence, your personal circumstances, your history and any relevant factors presented during sentencing.
Preparing strong sentencing submissions and presenting relevant mitigating circumstances can be an important part of seeking a section 10 order.
If you are facing criminal charges and want advice about whether a section 10 order may apply to your circumstances, an experienced criminal lawyer can help you understand your options and prepare for your matter.