“Can I get a section 10?”
It’s a question we get a lot, and given the consequences of a criminal conviction, we understand why.
A conviction may prevent travel to some countries (both USA and Canada ask for criminal convictions disclosures) and can limit prospective employment (jobs in government, health, law or childcare will require a police check). However, contrary to what you might read on the internet, section 10 dismissals don’t come in a cornflakes box.
The Crimes (Sentencing Procedure) Act 1999 states that a court can find a person guilty of committing an offence, but not record a conviction. This means that the it will not show up in a criminal records check and you do not have to disclose the fact to employers or licencing bodies. It can also come with conditions, such as an undertaking not commit any further offences.
Generally, the Court will have to be satisfied that:
1. The crime committed is trivial;
2. You are a person of good character;
3. There were extenuating circumstances surrounding the crime;
4. A conviction will have a disproportionately negative effect on the rest of your life
The word “trivial” isn’t defined but would likely apply to those crimes which involve little or no risk to the community, e.g. minor public order defences. A Section 10 is unlikely to apply for serious crimes, and some statutory provisions make it unavailable for some very serious driving offences. Although not specifically excluded by the law, serial offenders rarely get a second go with a section 10 (as this goes to character).
Section 10s are discretionary and very subjective; it can come down to the magistrate and the demeanour of the defendant on the day. The court can either order a dismissal or a conditional release order. Conditional release orders have replaced good behaviour bonds. While considered a guilty finding, no criminal conviction is recorded under either order.
If you are thinking about asking the court for a section 10 be prepared to offer up characters references and explain why a conviction is not appropriate in your circumstances (maybe you’re hoping to go on foreign exchange during your degree or a clean criminal record is a professional requirement for your future career).
Some private lawyers charge a lot for promises about section 10 dismissals. If you have been charged with a crime, please get advice at Arc Legal & Advocacy first. Our very experienced lawyer can give practical advice and assess your situation without charging $300 an hour.
Think a section 10 dismissal is a magic wand?
There are some mistakes a section 10 dismissal can’t erase.
- A section 10(1)(b) conditional release order will be recorded as a conviction until the duration of the order has expired (it will then become 'spent').
- If you breach a conditional release order, you may find yourself back in court.
- For some driving offences, courts cannot grant a second section 10 bond where the offender has had the benefit of one in the previous five years.
- Following the Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol, it is virtually impossible to get for a high range drink driving offences.
- The NSW Court Of Criminal Appeals has also ruled out section 10 for crimes that involve intentionally or recklessly damaging property.