What is section 10?
Section 10 orders are a criminal penalty that can be imposed by a magistrate or judge during sentencing.
Under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) a court can find the accused guilty of an offence without recording a criminal conviction. These orders can be made with or without conditions.
Different types of section 10 orders
The term “section 10” refers to a number of potential outcomes. The court can deal with the offender in one of three ways:
Section 10(1)(a) dismissal without conviction
The court finds the offender guilty of the offence, but the charge is dismissed and no conviction is recorded. This is the most lenient penalty.
Section 10(1)(b) conditional release order (CRO) without conviction
The offender is found guilty, and no conviction is recorded. However, the offender is placed on a conditional release order, similar to a good behaviour bond, for up to two years. The conditions of the bond are generally that the offender be of good behaviour, attend court when requested, notify the court of any change of address, and commit no further offences. A CRO acts as a warning and it is intended for low-level offending.
Section 10(1)(c) intervention plan without conviction
The offender is found guilty and no conviction is recorded. However, the offender is required to participate in and comply with an intervention program intended to reduce the likelihood of future offending behaviour.
Section 10 and criminal records
There are many benefits to a section 10. Not only does the person avoid incurring a fine or spending time in prison, but the offence is not recorded on their criminal record. This means that he or she may not be required to disclose the offence when asked to do so, for example for employment or travel purposes.
It is important to note that if an order is made under a section 10(1)(b) for conditional release, a criminal conviction will appear on the person’s criminal record for the duration of the bond. At the end of the bond, the conviction is deemed “spent” and will not appear on the criminal record. Under this order, you could have a conviction on your record for up to two years.
When will a section 10 be appropriate?
There is no automatic right to a section 10, even if the person has no criminal record and is charged with a minor offence. The court will consider each case, and each offender, individually. In deciding whether to sentence an offender under section 10, the court must consider:
- The person’s character, criminal history, age, health and mental condition,
- The level of triviality of the offence,
- Extenuating circumstances, and
- Any other matter that the court thinks proper to consider.
A section 10 is less likely where the offence is serious, or where the offender has received a section 10 previously.
The dismissal of charges against a first-time offender is appropriate in some circumstances, to give the person a second chance to maintain their good character. The ongoing legal and social consequences of a conviction may cause the offender more punishment than is appropriate in the circumstances.
The “triviality” of the offence is determined by reference to the offence and its circumstances. However, a section 10 may still be available even if the offence is not considered trivial.
For a court to consider the “mental condition” of the offender, it is not necessary for the illness to be connected to the commission of the offence. The court can consider the offender’s mental condition at the time of sentence.