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Avoiding a Criminal Conviction Under ‘Section 10 Dismissal’

Section 10 is when you plead ‘guilty’ or are found ‘guilty’ of a ‘criminal offence’ or a ‘major traffic offence’ but the Court decides not to give you a criminal conviction (criminal record) or licence disqualification.

What does ‘Section 10’ say?

Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) gives the court power to deal with ‘guilty’ persons by:

  • ‘dismissing’ the charge/s completely (s10(1)(a)), or
  • discharging him/her into a good behaviour bond of 2 years or less (s10(1)(b)), or
  • discharging him/her into an intervention program (eg drug and alcohol program, traffic offender program etc) (s10(1)(c)).

The important thing is that there is no criminal conviction, no fine and – in driving cases – no licence disqualification.

Who can get a Section 10?

Section 10 is available for all criminal charges and driving charges.

The court must consider the following matters when deciding whether to grant a section 10:

(a) the person’s character, antecedents (ie history), age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed, and

(d) any other matter that the court thinks proper to consider.

Does the offence have to be ‘trivial’ to get a Section 10?

Not necessarily. Although someone is more likely to get a section 10 if the offence is ‘trivial’ (ie not serious), the cases make it clear that section 10 can be used for very serious offences also.

For example, the important case of R v Paris [2001] involved a man who pleaded guilty in the District Court to threatening to use weapons against police (max penalty 12 years prison) and two counts of assault.

The Court called it ‘undoubtedly a very serious offence’ but also found that section 10 can be used in such cases if there are very good reasons for doing so, eg if there are sufficient ‘extenuating circumstances’ (eg provocation, distress, mental instability etc), if the person is otherwise of excellent character etc.

Similarly, the case of R v Piccin (No 2) [2001] involved a 40 year old nursing student, Ms Piccin, who pleaded ‘not guilty’ but was found ‘guilty’ by a District Court jury of ‘maliciously wounding’ and ‘stalking’ her former partner.

The facts of that case were that Ms Piccin tracked-down her former partner and, in a fit of jealousy, stabbed him in the chin, shoulder and finger with a knife.

Again, the Court found that section 10 can be used in such serious cases if there are very good reasons for doing so.

Importantly, the Court stated that it is ‘proper to consider’ the effects of a criminal conviction on the person’s employment prospects when deciding whether to grant a section 10.

What are ‘extenuating circumstances’?

An ‘extenuating circumstance’ is something out-of-the-ordinary that can partly explain why the offence was committed.

For example, in the case of Mr Paris (above), his wife tormented and assaulted him before he ‘lost the plot’, grabbed a knife and committed offences against police.

Similarly, Ms Piccin (above) had a terrible life whereby she lost her husband, was then ‘duped’ by a con-artist out of her home and two business and was then ‘dumped’ by her new partner (the man she assaulted).

Although such circumstances do not excuse the conduct, they can go some way towards explaining it and increasing the chances of a section 10.

How do I increase my chances of getting a Section 10?

Your chances of getting a section 10 are better if you provide the court with material showing that:

  • you are a person of good character, which can be done by preparing up to 3 character references (see Character Reference Guide); and/or
  • the offence occurred during a difficult time in your life, which can be shown by preparing ‘written instructions’ for your lawyer (which is just a handwritten outline of the events leading up to the incident) which your lawyer can use when addressing the court, and/or
  • you have taken steps towards addressing any underlying issues, which can be done through attending counselling, attending a course (eg anger management, drug and alcohol etc) and/or seeing a psychologist / psychiatrist and having your lawyer obtain a report.

For driving offences, the chances of getting a section 10 are better if you complete a Traffic Offender Program.

An early plea of ‘guilty’ is also relevant as it shows that you quickly accepted responsibililty and are remorseful.

Why Sydney Criminal Lawyers?

Sydney Criminal Lawyers understands how important it is to remain ‘conviction-free’ for your employment prospects, visa requirements, travel prospects and reputation.

We know how crucial your driver licence can be for your employment and family obligations.

We pride ourselves on obtaining section 10’s in situations where other criminal lawyers simply cannot to do so.

Sydney Criminal Lawyers does this by preparing thoroughly for your case, having an in-depth knowledge of the applicable laws, having the necessary experience and familiarity with Magistrates and Judges, and persuasively presenting your case in court.

Our lawyers will guide you in the preparation of any necessary materials; including character references or a letter of apology to the court, and assist you to undertake initiatives to maximise your chances of getting a section 10 – including seeing a counsellor psychologist, attending a traffic offender program / sober driver program etc.

And while many criminal law firms will send ‘junior lawyers’ to represent you in court, we are the only firm to offer a Senior Lawyer Guarantee; so you will be represented by the very best in court, including on your day of ‘sentencing’ (which is when we push for a section 10).

We also offer a free first appointment and fixed fees for many services, again, including for ‘sentencings’.

Call us today on (02) 9261 8881.

Our Video on ‘What is Section 10?’

Our Traffic Resources

Below are the information about penalties for Traffic Offences.

Penalties for Speeding

The following is a table of penalties for speeding:

Offence Light Vehicles Mid Range Trucks
(>4.5t but <=12.0t GVM)
Coaches & Heavy
Vehicles
Exceed speed limit by: Demerit Points
Not more than 10 km/h 1 $93 $278 $278
Not more than 10 km/h
(Learner, P1 or P2 licence holder)
4 $93 $278 $278
Not more than 10 km/h (in school zone) 2 $154 $371 $371
Not more than 10 km/h (Learner, P1 or P2 in school zone) 5 $154 $371 $371
More than 10 km/h but not more than 20 km/h 3 $216 $371 $371
More than 10 km/h but not more than 20 km/h (Learner, P1 or P2 licence holder) 4 $216 $371 $371
More than 10 km/h but not more than 20 km/h (in school zone) 4 $278 $463 $463
More than 10 km/h but not more than 20 km/h (Learner, P1 or P2 in school zone) 5 $278 $463 $463
More than 20 km/h but not more than 30 km/h 4 $371 $463 $463
More than 20 km/h but not more than 30 km/h (in school zone) 5 $463 $556 $556
More than 30 km/h but not more than 45 km/h 5 $710 $710 $1,112
More than 30 km/h but not more than 45 km/h (in school zone) 6 $896 $896 $1,174
More than 45 km/h 6 $1,915 $1,915 $2,904
More than 45 km/h (in school zone) 7 $2,041 $2,041 $3,149

Listed below are the penalties if you are convicted by a court.

Offence Court Maximum Fine Licence Disqualification
Exceed speed limit by: Light Vehicles Heavy Vehicles
Not more than 10 km/h $2,200 $2,200
More than 10 km/h but not more than 20 km/h $2,200 $2,200
More than 20 km/h but not more than 30 km/h $2,200 $2,200
More than 30 km/h but not more than 45 km/h $2,200 $2,200 3 months (minimum)
More than 45 km/h $2,200 $3,300 6 months (minimum)

Penalties for Drink Driving

The following is a table of penalties for ‘Drink Driving’, ‘Drug Driving’ and related driving offences:

PCA Offence Penalties First Offence Second or subsequent offence
High range PCA
(Blood alcohol concentration of 0.15 or above)OR Refuse a breath analysis, hinder or obstruct taking of a blood sample, wilfully alter the concentration in the blood.
Maximum court-imposed fine $3,300 $5,500

Maximum gaol term

18 months 2 years
Minimum Disqualification 12 months 2 years
Maximum Disqualification Unlimited Unlimited
Automatic Disqualification* 3 years 5 years
Immediate licence suspension Yes Yes
Mid range PCA
(Blood alcohol concentration of 0.08 to less than 0.15)
Maximum court- imposed fine $2,200 $3,300
Maximum gaol term 9 months 12 months
Minimum Disqualification 6 months 12 months
Maximum Disqualification Unlimited Unlimited
Automatic Disqualification* 12 months 3 years
Immediate licence suspension Yes Yes
Low range PCA
(Blood alcohol concentration of 0.05 to less than 0.08)ORNovice range PCA
(Blood alcohol concentration over zero for novice drivers) OR Special range PCA
(Blood alcohol concentration over 0.02 for special category drivers)
Maximum court- imposed fine $1,100 $2,200
Maximum gaol term N/A N/A
Minimum Disqualification 3 months 6 months
Maximum Disqualification 6 months Unlimited
Automatic Disqualification* 6 months 12 months
Immediate licence suspension No No

* ‘automatic’ is the disqualification period that applies in the absence of a specific court order.

Offence Penalties First Offence Second or Subsequent Offence
Drive under the influence of alcohol or another drug. Maximum court- imposed fine $2,200 $3,300
Maximum gaol term 9 months 12 months
Minimum Disqualification 6 months 12 months
Maximum Disqualification Unlimited Unlimited
Automatic Disqualification* 12 months 3 years
Drive with the presence of any of the following drugs in oral fluid, blood or urine:

 

  • Active THC (Cannabis),
  • Methylamphetamine (Speed/ice) or
  • Methylenedioxymethylamphetamine (MDMA or ‘ecstasy’).
Maximum court- imposed fine $1,100 $2,200
Minimum Disqualification 3 months 6 months
Maximum Disqualification 6 months Unlimited
Automatic Disqualification* 6 months 12 months
Drive with the presence of any of the following drugs in blood or urine:

 

  • Morphine (unless proven for medicinal use)
  • Cocaine
Maximum court- imposed fine $1,100 $2,200
Minimum Disqualification 3 months 6 months
Maximum Disqualification 6 months Unlimited
Automatic Disqualification* 6 months 12 months
Refuse to provide oral fluid sample.OR Refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample. Maximum court- imposed fine $3,300 $5,500
Maximum gaol term N/a 18 months
Minimum Disqualification 6 months 12 months
Maximum Disqualification Unlimited Unlimited
Automatic Disqualification* 3 years 5 years
Wilfully introduce or alter the amount of a drug in oral fluid or blood after being required to provide an oral fluid or blood sample. Maximum court- imposed fine $3,300 $5,500
Minimum Disqualification 6 months 12 months
Maximum Disqualification Unlimited Unlimited
Automatic Disqualification* 3 years 5 years
Refuse to submit to taking of a blood or urine sample after involvement in a fatal crash.ORWilfully introduce or alter the amount of a drug in blood or urine after involvement in a fatal crash. Maximum court- imposed fine $3,300 $5,500
Maximum gaol term 18 months 2 years
Minimum Disqualification 6 months 12 months
Maximum Disqualification Unlimited Unlimited
Automatic Disqualification* 3 years 5 years

Other Driving Penalties

The following is a table of penalties for ‘Negligent Driving’, ‘Reckless Driving’ and other driving offences:

Driving Offence Penalties First offence Second or subsequent offence
Negligent driving where death is occasioned Maximum court-imposed fine $3,300 $5,500
  Maximum gaol term 18 months 2 years
  Disqualification – minimum 12 months 2 years
  Disqualification – maximum Unlimited Unlimited
  Disqualification – in the absence of a specific court order 3 years 5 years
Negligent driving where grievous bodily harm is occasioned Maximum court-imposed fine $2,200 $3,300
  Maximum gaol term 9 months 12 months
  Disqualification – minimum 12 months 2 years
  Disqualification – maximum Unlimited Unlimited
  Disqualification – in the absence of a specific court order 3 years 5 years
Furious driving; Reckless driving; Driving in a manner or at a speed dangerous Maximum court-imposed fine $2,200 $3,300
  Maximum gaol term 9 months 12 months
  Disqualification – minimum 12 months 2 years
  Disqualification – maximum Unlimited Unlimited
  Disqualification – in the absence of a specific court order 3 years 5 years
Fail to stop and give assistance in an accident involving death or injury Maximum court-imposed fine $3,300 $5,500
  Maximum gaol term 18 months 2 years
  Disqualification – minimum 12 months 2 years
  Disqualification – maximum Unlimited Unlimited
  Disqualification – in the absence of a specific court order 3 years 5 years
Other major offences mentioned in section 188 of the Road Transport (General) Act 2005. Maximum court-imposed fine As in existing legislation As in existing legislation
Maximum gaol term As in existing legislation As in existing legislation
Disqualification – minimum 12 months 2 years
Disqualification – maximum Unlimited Unlimited
Disqualification – in the absence of a specific court order 3 years 5 years

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