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.


Temporary conviction

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.


First-time offenders

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.


Trivial offences

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.


Mental condition

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.


Frequently Asked Questions

How do I get a section 10?

During sentencing, the magistrate or judge will decide what penalty to impose. Depending on the offence and its circumstances, your lawyer can suggest to the magistrate that a section 10 is an appropriate sentence. Your lawyer will make submissions on your character, the severity of the offences, the consequences a conviction might have on your employment, and anything else considered relevant.

Will a section 10 always be granted for first time or trivial offences?

A section 10 must not be viewed as an automatic right for first-time offenders or in cases concerning less serious criminal offences. 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 mitigating circumstances or the matter is so trivial that recording a conviction is not an appropriate sentence.

What conditions can be put on a conditional release order?

A conditional release order consists of two “standard conditions”:

(1) You must not commit any further offences, and

(2) You must appear at court if requested.

A conditional release order can also include any of the following conditions:

  • Supervision by a community corrections officer.
  • Participation in a rehabilitation program or treatment.
  • Abstention from alcohol or drugs.
  • Non-association with particular people.
  • A requirement not to go to a particular place or area.
  • Further conditions the court sees fit (but not home detention, electronic monitoring, a curfew, or community service work).

What happens if I breach a section 10 order?

If you breach a condition of your conditional release order or an intervention plan, you may be called before the court. The court could take no action, vary or revoke the conditions of the order, or revoke the order itself. If the court revokes the order, then you may be resentenced and will likely receive a harsher punishment.

What happens if I get a section 10 for a traffic matter?

Previously, if you elected to have a traffic matter (for example a speeding ticket) heard at court and received a section 10, demerit points were still imposed 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 RMS will no longer impose demerit points.

Can I get a section 10 for any offence?

Section 10s are usually imposed in the Local Court, where less serious offences are prosecuted. While not common, it is possible to receive a section 10 in the District Court if it is considered appropriate under the circumstances.

For some traffic matters, the court cannot impose a section 10 order if the offender has already received one in the last five years.

Can I get a section 10 twice?

Aside from some traffic matters, there is no rule against receiving a section 10 twice. However, a court will consider your criminal history when deciding your sentence, and if you’ve committed offences in the past, the court may decide that a harsher punishment is needed to deter your offending.

How can we help?

We are experienced in obtaining section 10s for clients charged with a wide range of offences including assault, stealing, drug and drink driving offences.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.