SECTION 10 DISMISSALS

The first idea that may pop into your mind when you are charged with a minor criminal offence or traffic offence is “Can I get a section 10 dismissal or a section 10 bond?” The reason you ask yourself this question is because this is the only penalty that does carry a conviction and therefore no criminal record. Ideally, if you do not have any previous criminal convictions or if you want to maintain no criminal record, a dismissal or conditional discharge under section 10 of the (NSW) is your end goal.

Pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999, the Local Court, District Court and Supreme Court have power to not record a conviction for your criminal matter, provided the Court is satisfied of other matters that would justify not recording a conviction.

Section 10 dismissals under section 10(1)(a) and section 10(1)(c) of the still exist. The previously known section 10(1)(b) good behaviour bond, it now recognised as a section 9(1)(b) .

Section 10(1)(a) Dismissal:

A section 10(1)(a) dismissal involves the sentencing Magistrate or Judge dismissing your offence without imposing any conditions. Once the order is made, your criminal matter has been finalised and you can leave the Court room. No conviction is recorded for the offence.

Section 10(1)(c) Discharge on the Condition the Offender Participates in an Intervention Program:

A section 10(1)(c) dismissal or discharge without conviction requires the offender to participate and complete an intervention program and comply with the action plan from that intervention program. Example of intervention programs include the Traffic Offenders Intervention Program (TOIP), Magistrates Early Referral into Treatment Program (MERIT), and counselling.

Grounds for Section 10

Section 10 dismissals are not granted easily. In the exercise of their discretionary powers, Magistrates and Judges must consider the grounds under subsections 10(2) and 10(3) and the purposes of sentencing in order to justify the imposition of a section 10 dismissal or discharge.This also applies to a without conviction pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

A Court may dismiss an offender under section 10 or section 9 of the Act and not record a conviction if the court is satisfied under s 10(2):

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to discharge the person under a CRO.

An order under section 10(1)(c) may be made if the Court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person: section 10(2A).

Subsection 10(3) of the Sentencing Act provides:

“In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors--

(a) the person's character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.”

It should be noted that the Court not only has regard to the above matters when considering whether to exercise discretion under section 10. As with other criminal matters, the Court will have regard to the following:

1. The objective seriousness of the offence;

2. Your personal (subjective) background;

3. Whether there are any aggravating or mitigating factors present;

4. The purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act 1999.

In most cases, the Court records a conviction because the sentence needs to achieve general and specific deterrence and also to denunciate the offence.

With that said, Courts recognise and appreciate the legal and social consequences a conviction may have on offenders, particularly first time offenders who do not have criminal history and whose employment may be jeopardised as a result of a criminal conviction. In the case of [2012] NSWCCA 51 at [37]–[39], the Court of Criminal Appeal recognised that, as a “general proposition”, the fact a conviction is recorded is a matter of special significance. However, the fact a conviction is not recorded should not “dilute or downgrade the significance of the imposition of a [s 10] bond”: per Harrison J at [37]. His Honour Justice Harrison observed there were onerous consequences if an offender failed to comply with an order made under the previous s 10(1)(b) and it should not be assumed that because a court decided not to record a conviction that the sentence is automatically inadequate or lenient.

If you are are charged with a criminal offence and wish to consider your prospects in receiving a non-conviction, it is important that you receive tailored legal advice. Should you wish to discuss your options, please contact KF Lawyers for a free initial consultation.