What is a section 10 non conviction and how to get it in court?

What is a section 10?

A section 10 is a form of punishment available to the Court which results in completely avoiding a criminal conviction against you. The s10 non conviction comes from the Crimes (Sentencing Procedure) Act 1999 (NSW), which allows the Magistrate or Judge to use this option as a form of the most lenient kind of punishment in the event you plead guilty or found guilty in court.

For criminal offences, it means you won’t receive a conviction. For traffic offences including drink driving, driving while disqualified, drug driving, it means you completely avoid a disqualification period, and you also don’t incur demerit points for committing the offence.

The effect of a section 10 non conviction generally means you will not have issues getting a job that conduct background checks or travelling overseas.

Important changes are coming, where the s10 non conviction will be replaced with conditional release orders (CRO) which have the same effect of a non conviction, except in addition, it allows the Court to impose more conditions such as supervision and non-association orders. These changes are expected to come into effect in early to mid 2018. The below information is still highly relevant to getting a CRO as well.

The different kinds of s10 bonds

The Judge can give you a s10 non conviction, usually in one of two ways:

  • Section 10 without a bond; or
  • Section 10 with a bond

If a s10 is given without a bond, it can be done as a dismissal of the charge under s10(1)(a). This is where the Court finds you guilty, or where you plead guilty, but the Magistrate or Judge dismisses the charge without putting you on a good behaviour bond period. This means you don’t have any conditions to comply with as a condition of getting the s10. This is the most lenient kind of punishment available, and it means you avoid a criminal conviction. For traffic cases, it means you avoid a licence disqualification and demerit points.

If the s10 is with a bond, it means you received an order under s10(1)(b) after a finding of guilt for your offence. This is where the Court dismisses your charge with a condition that you enter into a good behaviour bond period requiring you to comply with certain conditions for the duration of the bond. It also means that, even after you plead guilty or found guilty by the Court, you don’t get convicted by the Court. In the same way as a s10(1)(a) dismissal, it is the most lenient kind of punishment available, and means you avoid a criminal conviction. For traffic cases, it means you avoid a licence disqualification and demerit points.

What are the conditions of a section 10 bond?

As a pre requisite of receiving the benefit of the s10 non conviction, the Court can impose a range of conditions requiring you to agree to. This includes a requirement that you be of good behaviour and not commit further offences for the period of your bond, to attend Court if called upon by the Court. The period of the bond usually ranges from 1 to 2 years from the date of your sentence in court. The Court can impose other conditions requiring you to continue treatment with your psychologist or psychiatrist, or a requirement to not commit any moving traffic infringements for traffic cases.

How a s10 bond is breached? And consequences of breaching a bond?

A bond under s10(1)(b) can be breached only if you commit a criminal offence during the period of your bond. It generally doesn’t include minor traffic infringements, such as minor speeding fines or parking tickets.

Breaching a good behaviour bond under s10 usually causes the Court to call you up on that bond. You will then be required to attend court to face the Magistrate or Judge. Sometimes, the Court won’t call you up on that bond in which case you don’t need to do anything.

If the Court does call up your bond as a result of your breach, the Magistrate or Judge will then decide whether or not to take action against the breach of bond.

If the Magistrate or Judge decides to not take action, then nothing further happens, but you will still be required to continue complying with the rest of your bond period.

If the Judge or Magistrate takes action against your breach, your previous offence you received the s10 bond for is re-opened, and the Court will proceed to re-sentence you again. This means that you will be faced with the possibility of receiving a criminal conviction. For traffic cases, you can be faced with a disqualification period and incur demerit points. In some cases however, the Court can still give you another s10 bond with further conditions, with a longer period of time. You will need to really convince the Court to take this option though.

How to get a section 10?

Everybody wants a s10 non conviction for obvious reasons. There are a number of things you need to do to prepare your case to maximise your chances of getting a s10 non conviction. Before preparing your case to get a s10, you need to understand what goes on in the minds of a Judge or Magistrate when considering to give a s10.

The Judge or Magistrate will have, in his or her mind, the purposes of punishment. Under s3A Crimes (Sentencing Procedure) Act, the purposes of punishment include:

  • To protect the community, and recognise any harm done to the community and victim
  • Your rehabilitation
  • To punish you in a way that sets an example to others to prevent others doing what you did
  • To make you accountable for your offending behaviour, and to publicly declare your offence
  • To punish you adequately

The Judge or Magistrate will then be thinking of the following important factors when considering a section 10 non conviction:

  • Your mental health, age, good character and whether you have a previous criminal conviction
  • How serious or trivial your offending behaviour was
  • Extenuating circumstances of your case. For example, you drove while intoxicated where you were compelled to in an emergency situation
  • Any other matter the Court considers proper. This can include the impact of a conviction on your job, your family and financial situation.

The following is a general guide on how to best prepare your case to maximise your chances at getting a section 10 non conviction:

  • Getting a discount on punishment by pleading guilty early

Pleading guilty at the earliest possibility will entitle you to an automatic discount of up to 25% discount off your punishment by the Judge. This increases your chances of getting a s10 non conviction. It is therefore important to get quick reliable advice as to whether and when to plead guilty in your case.

  • Good character reference letters

A good character reference letter is a letter from people closest to you. These people can write a letter for you expressing, if true, your remorse, insight and shame which can significantly increase the chances of getting a s10 non conviction. Significantly, it can also express your good character with examples of things he/she has seen you do.

Good character letters can come from family, friends, charity, even your employer expressing the effect of a conviction on your job, or extent of the need of a licence for your job. It is also a good idea to draft a letter of apology from yourself expressing your remorse, shame and insight.

In traffic cases, it is a good idea to enrol and complete the traffic offenders program. This should be completed before your traffic case in court so that it can be taken into account.

  • Negotiate to drop or downgrade charges

By analysing the police evidence, you may be able to pick out all the holes in their evidence. This sometimes can allow you to draft a letter to police explaining those holes, with strong reasons why the charges should either be dropped or downgraded to a lesser serious offence. If successful, this can significantly improve chances of getting a section 10 non conviction.

  • Negotiate the police facts

By pointing out all the holes in the police evidence, you may be able to convince police to change the set of police facts which the Judge or Magistrate will read right before giving a sentence to you. Those facts can sometimes be changed to be more accurate and favourable to you, putting you in a better light, which can significantly increase your chances of a s10 non conviction.

For example, one push will attract a much better chance at getting a s10 non conviction than 5 slaps to the victim of a common assault charge. If you were provoked by the victim causing you to commit the offence is highly relevant which can also increase your chances at a s10.

  • Psychologist report

Getting a powerful report from an expert psychologist or psychiatrist expressing your mental state at the time of the offence i.e. depression PTSD, your explanation for committing the offence, remorse, insight and shame can drastically improve your chances at getting a s10 non conviction.

What offences can I get a section 10 for?

Generally, a s10 is available to all offences including drink driving, drug driving, possession and supply of prohibited drugs, fraud, and assault charges. Getting a s10 usually depends on how serious your offence is for offences of that kind.

There are certain circumstances for certain offences where the Magistrate or Judge cannot give you a s10 non conviction for. Section 203 Road Transport Act 2013 (NSW) stops a Judge or Magistrate from giving a s10 if you have previously received a s10 within the last 5 years for drink driving, negligent driving causing death or grievous bodily harm, driving at speed or manner dangerous or furious or reckless driving.

The High Range drink driving guideline judgment passed by a higher court, for example, imposes restrictions, requiring Magistrates and Judges to use great caution when considering to give out s10’s. It emphasises that section 10’s should be rarely given for ordinary offenders of high range drink driving cases, and even more rarely given to offenders who have previous criminal convictions. The guideline judgement does express favour towards a s10 for cases involving “extenuating circumstances”.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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