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.