The following information is intended to provide a guide to the operation of section 10 and what factors the court takes into account when deciding whether this is appropriate. Section 10 orders are sought extensively, especially in the Local Court; and especially by those charged with traffic offences.
A section 10 must not be viewed as an automatic right for first-time offenders or in cases concerning less serious criminal breaches. To do so would undermine confidence in the administration of justice. What it does do, however, is ensure that justice may be served in circumstances where, despite a breach of the law, there are such mitigating circumstances or the matter is so trivial that punishment is not an appropriate course of action.
We are able to advise you whether a section 10 would be appropriate to your circumstances, and help you to avoid receiving a criminal record. Having a matter dealt with in this way is an attractive option because it means that in certain circumstances you may not be required to disclose the offence when asked to do so, for example for employment or travel purposes.
What is a ‘section 10’?
Under section 10 Crimes (Sentencing Procedure) Act criminal courts in NSW have discretion, either upon a plea of guilty or a finding of guilt, to dismiss a charge without recording a conviction. Such an order can be made with or without conditions.
The term ‘section 10’ actually refers to a number of potential outcomes, where the court can deal with that person in one of three ways:
Section 10 (1)(a) – direct that the relevant charge be dismissed
Section 10 (1)(b) – discharge the person on condition that the person enter into a good behaviour bond for up to 2 years
Section 10 (1)(c) – discharge the person on condition that the person enters into an agreement to participate in an intervention program (such as the traffic offender intervention program) and to comply with any intervention plan arising out of that program.
What is a section 10 bond?
Section 10 orders are most frequently made with the condition that the person enters into a good behaviour bond. This provides the court with a sense of security that the offender has not escaped scot-free and enables them to be re-sentenced for that offence should they appear before the court for another matter during the length of the bond.
How does this differ to a section 9 bond?
A section 10 bond is limited to a maximum period of 2 years, whereas a good behaviour bond imposed under section 9 may extend to a maximum period of 5 years. A conviction is recorded against an offender under section 9 but it is not under section 10.
Restriction on use for certain offences
Under s 203 Road Transport Act 2013 — a section dealing with a court’s power to impose penalties and disqualify offenders from holding a driver’s licence — there is a restriction on the court’s power to impose a section 10 bond where the offender has had the benefit of one in the previous five years.
Failure to enter into a good behaviour bond
If an offender fails to enter into a section 10 bond, the court may convict and sentence the offender as if the section 10 order had not been made.
Breach of bond
A breach of a section 10 bond is not a separate criminal offence. However if an offender has failed to comply with the conditions of a good behaviour bond, the court that imposed the original sentence (or a court of like jurisdiction) may call on the offender to appear before it. The court may also issue a warrant for the offender’s arrest. This means that if you appear before the court on another matter while you are on a good behaviour bond the court may convict and sentence you for the offence to which the bond relates, as well as the more recent offence.
When will a section 10 be appropriate?
The scope for an application of section 10 decreases where the offence is objectively serious and general deterrence and denunciation are important sentencing considerations. In deciding whether to deal with an offender under section 10 the court will consider the following factors:
1. the person’s character, antecedents, age, health and mental condition;
2. the trivial nature of the offence;
3. the extenuating circumstances in which the offence was committed; and
4. any other matter that the court thinks proper to consider.
In R v Nguyen  NSWCCA 183 the NSW Court of Criminal Appeal held that the dismissal of charges against first-time offenders in certain circumstances is appropriate. This reflects the willingness of the legislature and the community to provide first-time offenders – in certain circumstances – a second chance to maintain a reputation of good character.
The ‘triviality’ of the offence should be determined and assessed by reference to the actual offence committed by the offender and the circumstances surrounding the offence – not merely by reference to the maximum penalty. All criminal breaches are and should be treated seriously.
The authorities are in conflict regarding whether it is necessary to find that an offence is trivial before awarding a section 10. The court held this to be the case in R v Piccin (No 2)  NSWCCA 323;
However Hodges JA in Chin v Ryde City Council  NSWCCA 167 said that “…section 10 may be applied even if the offence is not found to be trivial.”
In the writer’s opinion the position proposed by Hodges JA in Chin ought to be the preferred authority. This is because the High Range PCA Guideline Judgment specifically states that notwithstanding the objective seriousness of the offence of High Range PCA there may be cases in which it is appropriate to dismiss the charge. Clearly, the offence of High Range PCA is not a trivial offence. It therefore makes no sense that triviality must be a prerequisite to deal with an offender under section 10.
Following amendments to the NSW demerit point scheme in January 2011, the way in which demerit points apply to an offence which has been dismissed under section 10 has changed significantly.
It was previously the case that if you elected to have a traffic matter (for example a speeding ticket) heard at Court and you received a section 10, the RTA still imposed the demerit points for that offence. This was so even though you had not technically been convicted of that offence.
The position is now different. If you receive a section 10 for a traffic matter, the RTA will no longer impose the demerit points for that offence. This is much more favourable to drivers. For example if you are on a good behaviour licence (and therefore only have 2 demerit points) and are charged with a speeding offence, you will not face suspension if you plead guilty and the Magistrate dismisses the speeding offence under section 10 because no demerit points will apply.
Consequences of receiving a section 10
Because no conviction is recorded, a major benefit of section 10 is that offenders do not receive a criminal record, do not accrue demerit points (if relevant) and do not face any other penalty for the commission of the offence.
While a matter that has been dealt with under section 10 does not form part of a person’s criminal record, it is still disclosed to a court when it is sentencing the person for further offences. There is nothing in the legislation precluding a person receiving the benefit of a section 10 twice – even for the same or similar offence – although the court is likely to be more hesitant in doing so.
You should not assume that you will automatically receive a section 10 if you have no criminal record or are charged with a less serious offence. Likewise you should not assume that if you have a criminal record, or have been afforded the benefit of a section 10 in the past, that you will not receive this outcome again. The court considers each case – and each offender – individually.
How can Nyman Gibson Miralis help you?
We have successfully obtained section 10s for clients charged with a wide range of offences including Indecent Assault, Supply Prohibited Drug, Assault Police, Larceny and High Range PCA. It is a myth that you can’t receive a section 10 for a serious offence. To give yourself the best chance of doing so, however, you need a good criminal defence lawyer to make submissions on your behalf at sentence.
The criminal defence lawyers at Nyman Gibson Miralis have the training and expertise to assist clients who are pleading guilty before a court in achieving the best outcome. We have a thorough working knowledge of the relevant sentencing legislation and case law, and can advise whether aggravating or mitigating features apply to a particular case.
We travel to courts all over NSW for any type of criminal law matter and your first conference is free.