Section 10 Dismissal Explained
What is a Section 10 dismissal?
In New South Wales, if a person pleads guilty or is found guilty, they can request that the Court deal with the matter by way of section 10.
A section 10 is where the court finds the offence proven however dismiss the matter pursuant to section 10 of the Crimes (Sentencing & Procedure) Act 1999.
If the Court deals with your matter by way of section 10, it means that you avoid a criminal conviction and there will be no further penalty.
The Court can consider section 10 for a variety of Criminal Offences. The court will often consider section 10 for offences dealt with in the Local Court specifically relating to drink driving, driving whilst disqualified, driving whilst suspended, possession of a prohibited drug and minor assault matters.
Types of Section 10 Orders
There are three types of Section 10 orders that the court can impose upon an offender. They are as follows:
Section 10(1)(a) Dismissal
A section 10(1)(a) is where the Court dismisses the matter without any conditions imposed upon the offender.
A section 10(1)(b), is the most common way in which a court will deal with offenders who receive a section 10.
If you are dealt with in this way, the court will impose conditions upon you. The conditions usually imposed are as follows:
- Notify the Court of any change in residential address;
- Be of good behaviour;
- Not commit any moving traffic offences;
The court must also nominate a period of time for which the bond is to remain in force, it will be for a period of up to 2 years. This is usually referred to as the bond period.
If you do not breach any conditions imposed by the Court for the bond period, the matter you were before the Court for is dismissed.
However, if you breach any of the conditions imposed by the Court during the bond period you will be recalled to court the bond will be breached and you will be re-sentenced. If this occurs it is likely the Court will revoke the section 10 conditionally imposed and convict you.
A section 10 (1)(c) is similar to being dealt with by way of section 0(1)(b). The difference is in the conditions imposed.
The conditions imposed in this type of section 10 are as follows:
- Agreement to participate in an intervention program;
- Comply with any intervention plan.
This provision of Section 10 is exercised less compared to the other two provisions of this section.
The court exercises the provisions of Section 10(1)(c) to dismiss an offence without recording a conviction but directs the offender to attend and complete an intervention or rehabilitation program. Some instances of such programs include the Traffic Offenders Intervention Program or Alcohol rehabilitation program.
When Can a Section 10 Dismissal Be Granted?
If a court deals with your matter by way of section 10 it means they have decided your case can be appropriately dealt with by the leniency afforded in being granted a section 10.
Obtaining a section 10 is not easily done and requires a persuasive argument supported by material which confirms submissions made by yourself or your lawyer when explaining why your case warrants being dealt with by way of section 10.
When a court considers whether your case can be dealt with by a section 10, they need to consider the legislation. Section 10 (3) of the Crimes (Sentencing & Procedure) Act states the Court must consider the following factors;
- The person’s age, character, health, and mental condition,
- The trivial nature of the offence,
- The extenuating circumstances in which the offence was committed,
- Any other matter the Court thinks proper to consider.
In support of these factors it is usually of assistance to present the following material;
- Provide the Court with evidence of your personal circumstances at the time of or before the crime was committed and your personal circumstances at the time of sentence. For example, you may have not been receiving treatment for an Alcohol problem or Mental condition and since the offence you have sought the assistance and are attending regular meetings with your treating medical team.
- Provide the Court with evidence of the detrimental effects that a conviction can have on both you and your family. For example, if a conviction and or the effects of that conviction will result in you losing your job, your licence, being unable to travel overseas or effect your ability to comply with any obligations you may have. This evidence can be provided by affidavit, reference or people attending Court and giving evidence.
- There may be other parts of your case which may support the submission that you should be dealt with by way of section 10. It may be that you are of prior good character, you had a reason for committing the crime or that you have learnt from your mistake and you have made positive changes to our life. These things can usually be independently confirmed by obtaining references from people who have known you for some time and are aware that you are attending Court for committing a criminal offence.
What Courts have said about Section 10s in the past:
In R v Nguyen  NSWCCA 183, the Court of Criminal Appeal held that in certain circumstances, it is appropriate to dismiss charges against first-time offenders. This shows the willingness of the community as well as the legislature to offer first-time offenders, in certain situations, a chance to maintain a reputation of their personalities.
In R v Paris  NSWCCA 83, the Court of Criminal Appeal held that the trivial nature of the offence has to be determined regarding the actual offence and the circumstances surrounding the offence. This is because all criminal acts are to be treated seriously.
Will a Section 10 Appear on a Police Check?
If you receive a section 10 dismissal and you are not subjected to any bond period the section 10 will not appear on a criminal history check.
If you are still subject to the bond period the matter will appear on a criminal history check. When the bond period expires the section 10 will no longer appear on your record.
If you are dealt with by a section 10, dismissal and you have completed your bond period, the offence you committed for which you were dealt with by way of section 10 becomes spent.
Under the Section 12 of the Criminal Records Act 1991, a person does not have to reveal a “spent conviction” to anybody for any reason. This means that when you get a Section 10 (with conditions), you don’t have to disclose it to your prospective employer or anyone else as long as the duration of any bonds or rehabilitation programs have expired.
Benefits of Receiving a Section 10
- The main benefit of a Section 10 is that those declared guilty do not get a criminal record, do not accumulate demerit points and do not face any other penalty for the offence,
- When you obtain a Section 10, you do not have to disclose the finding of guilt or conviction to any other person, for any reason. But, this rule does not apply to some situations like when applying for a position of a judge, justice of the peace, magistrate, prison officer, police officer or a teacher. Also, it does not apply in situations when a person is giving evidence in Court.
What this implies is that if you get a Section 10, you do not have to disclose the fact that you were found guilty of a criminal offence. If a potential employer asks for a criminal record check from you, the use of Section 10 should not be included in the record check. Ensure to seek legal advice when the employer requires disclosure about your criminal history. You once received a Section 10. This guarantees that the disclosure you make does not fall within any of the exceptions stipulated in the Criminal Records Act 1991.
The Effects of Being Convicted of a Criminal Offence
A criminal record might affect your reputation, future, and your livelihood. The main concerns include:
Professional or Employment Advancements
Some employers require that candidates or employees have and maintain a clear criminal record. A conviction can impact significantly upon you getting a job or staying in the job you currently have. If you are convicted you may have an obligation to disclose this conviction to your employer.
A conviction for some driving offences can result in a licence disqualification. The effect of losing your licence can lead to a loss of income or even your job.
People who are convicted of certain criminal offences may find it difficult to travel. This may be because certain countries may deny them entry or due to lack of eligibility to take advantage of visa exemption or waiver programs
Obtaining a section 10 is difficult. You need to make sure your case is properly prepared, your argument for the section 10 is supported by independent evidence.
If your matter is dismissed pursuant to section 10 it means you avoid a criminal conviction, you avoid a fine and if your licence was taken from you for the offence in which you are before the Court you will have it returned to you if you are dealt with by way of section 10.
The Criminal Defence Lawyers at Benjamin & Leonardo are experienced and specialise in Criminal Law, we have been able to secure section 10’s for many of our clients having been charged with a wide range of criminal offences appearing in both the Local and District Courts.
We have also been successful in appealing for clients who either represented themselves or were represented by other lawyers and were unsuccessful in their application for a section 10 in the Local Court. The appeal goes before the District Court, where we have successfully argued that the matter should be dealt with by a section 10.