A Section 10 order is one of the most favourable sentencing outcomes available under the Crimes (Sentencing Procedure) Act 1999 (NSW). It allows a court to find a person guilty of an offence without recording a criminal conviction.
Contrary to popular belief, a Section 10 is not an acquittal. The court has still found the offence proved or accepted a plea of guilty. However, because of the circumstances of the offender and the offence, the court exercises its discretion not to record a conviction.
For many people, avoiding a criminal conviction can have significant benefits by protecting employment opportunities, professional licences, travel prospects and personal reputation. A Section 10 recognises that in appropriate cases, recording a conviction would be disproportionate to the offending.
Types of Section 10 Orders
There are three forms of Section 10 orders available in New South Wales:
Section 10(1)(a) – The court dismisses the charge after finding the offence proved, without recording a conviction.
Section 10(1)(b) – The offender is discharged without conviction and placed on a Conditional Release Order (CRO) for a specified period.
Section 10(1)(c) – The offender is discharged without conviction on the condition that they participate in an approved intervention program.
Each order results in no conviction being recorded, although different conditions may apply depending on the circumstances of the case. (judcom.nsw.gov.au)
What Does the Court Consider?
A Section 10 is entirely discretionary. There is no automatic entitlement simply because an offender has no prior criminal record or because the offence is relatively minor.
Section 10(3) requires the sentencing court to consider:
- The offender’s character, antecedents, age, health and mental condition.
- Whether the offence was trivial in nature.
- Any extenuating circumstances surrounding the commission of the offence.
- Any other matter the court considers appropriate. (judcom.nsw.gov.au)
Other Factors Frequently Considered
Over many years, NSW courts have also considered a range of practical sentencing factors when deciding whether a Section 10 is appropriate, including:
- Whether the offender has demonstrated genuine remorse.
- An early plea of guilty.
- Evidence of rehabilitation.
- Good character references.
- Whether the offender has undertaken counselling, treatment or educational courses.
- The likelihood of reoffending.
- The objective seriousness of the offence.
- The consequences that recording a conviction would have on employment, professional registration, immigration status or future opportunities.
- Whether a conviction would be disproportionately harsh in all the circumstances.
No single factor is decisive. The court must weigh all relevant circumstances before deciding whether a non-conviction order is appropriate. (judcom.nsw.gov.au)
Is a Section 10 Available for Serious Offences?
Yes. While Section 10 orders are most commonly granted for lower-level criminal and traffic offences, there is no rule preventing their use for more serious offences. The seriousness of the offending will naturally make obtaining a Section 10 more difficult, but each case turns on its own facts.
Ultimately, the sentencing court asks whether recording a conviction is necessary having regard to the purposes of sentencing and the particular circumstances of both the offence and the offender.
Does a Section 10 Mean There Is No Criminal Record?
A Section 10 means that no conviction is recorded. Although there has been a finding of guilt, the absence of a conviction can substantially reduce the long-term consequences that would ordinarily follow a criminal conviction. In many situations, a non-conviction finding is treated as spent immediately under the Criminal Records Act 1991 (NSW), although exceptions apply for certain occupations, regulatory regimes and government agencies. (NSW Legislation)
Experienced Legal Representation Matters
Applications for a Section 10 require careful preparation. Persuasive submissions, high-quality character references, evidence of rehabilitation and a thorough understanding of sentencing principles can significantly improve the prospects of obtaining a non-conviction order.
At Harvard Defence Lawyers, we regularly represent clients throughout New South Wales and Other states in criminal and traffic matters, preparing comprehensive Section 10 applications aimed at achieving the best possible sentencing outcome. We have secured non conviction for not just trivial matters but serious violence and drug offences.
Every case is unique. Early legal advice can make a significant difference to the outcome of your matter.
Contact our team today for comprehensive advice on your prospects
