We’re all aware that a criminal conviction or criminal record against your name can have severe consequences on your job, income, travel plans, ability to drive, and any loved one’s who rely on you.
There is generally one of 2 ways to avoid getting a criminal conviction recorded against your name, even after pleading guilty to a criminal or serious traffic offence in NSW.
You will avoid a criminal conviction if the Magistrate or Judge is convinced to impose a non-conviction type of penalty for your offence, such as a section 10(1)(a) dismissal or a non-conviction Conditional Release Order (CRO) under the Crimes (Sentencing Procedure) Act 1999 (NSW) (https://www.legislation.nsw.gov.au/#/view/act/1999/92/full).
What is a section 10(1)(a) Non-Conviction Dismissal?
New sentencing laws in NSW (https://www.criminaldefencelawyers.com.au/blog/new-penalties-to-be-introduced-in-nsw/), effective since 24 September 2018, have abolished the previously known section 10 bond under section 10(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), which has now been replaced by the new Conditional Release Order.
The new sentencing laws however did not abolish the section 10 dismissal under section 10(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW). The section 10 dismissal is also a type of penalty that a Judge or Magistrate can impose on a person guilty of a criminal or serious traffic offence- with the consequences of there being no criminal conviction recorded against his/he name.
Unlike the Conditional Release Order, the section 10(1)(a) dismissal does not require the sentenced offender to be of good behaviour as a condition.
For criminal offences, it means you won’t receive a conviction against your name.
For serious traffic offences, such as drink driving, driving while disqualified, drug driving, it also means you avoid a conviction. In addition to this, you also avoid the disqualification of your driver licence without incurring any demerit points.
While the previously known ‘section 10 bond’ under section 10(1)(b) has been abolished, it was limited in what conditions a Magistrate or Judge could impose on an offender. However, the non-conviction New Conditional Release Order allows the sentencing Judge or Magistrate the discretion to impose more conditions better catered to the offender.
What is a Conditional Release Order Non-Conviction? (https://www.criminaldefencelawyers.com.au/blog/the-end-of-section-10-bonds-in-nsw-as-a-sentencing-option/)
The Conditional Release Order (CRO) has now replaced the section 10 bond. It gives greater flexibility to allow a Judge or Magistrate to impose additional conditions to an offender.
The Judge or Magistrate can impose one of two types of CRO for any criminal or serious traffic offence in NSW:
- Conditional Release Order without conviction (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/conditional-release-order/); or
- Conditional Release Order with conviction.
If a Judge or Magistrate is convinced to impose either one of these CRO’s on an offender, the Judge or Magistrate is required to also impose the standard conditions.
While there is no mandatory requirement, the Judge or Magistrate may also impose ‘additional conditions’ if it would help address any factors that contributed to the offender in committing the offence in the first place.
What’s the Standard Conditional of a CRO?
The standard mandatory conditions of a CRO include requirements that the offender not commit further offences, and a requirement to attend court whenever requested by the court to do so.
These conditions expire when the CRO order expires. The CRO order period can be imposed for up to 2-years at the discretion of the Judge or Magistrate.
What’s the Additional Conditions of a CRO?
The additional discretionary conditions that a Judge or Magistrate can impose with a CRO order include one or more of the following:
- Requirement to participate in rehabilitation if it can address your mental health, drug or alcohol problem. This can include a requirement you continue seeing a psychologist or psychiatrist or other treatment provider.
- Requirement to not consume drugs and/or alcohol.
- Requirement not to associate with certain person(s).
- Requirement not to go to certain places.
- Requirement to comply with supervision by someone appointed by the court.
You will notice that a CRO does not allow a Judge or Magistrate to impose conditions of community service order, homes detention, curfew or electronic monitoring. However, these types of conditions can be imposed in the more serious types of penalties such as the new Community Corrections Order (CCO) and Intensive Corrections Order (ICO).
Serious consequences follow if a condition if ever breached during the period of the order.
What Happens if a CRO Condition is Breached?
A CRO condition can be breached only if you commit a criminal or serious traffic offence during the period of your bond. It generally doesn’t include minor traffic infringements, such as minor speeding fines or parking tickets.
Where there is a suspicion that you breached a CRO condition, the Court can require you to appear in court to answer to it.
In court, the Judge or Magistrate can do any one of the following if a breach of the CRO condition has been found:
- The court can decide not to take any action, in which case the conditions continue until the order expires; or
- The court can impose new conditions, or even change the existing ones, in which case the conditions continue until the order expires; or
- The court decides to revoke the CRO.
If the Judge or Magistrate revokes the CRO as a result of a breach, the Judge or Magistrate will proceed to impose a new sentence for the original offence. This means that the Judge or Magistrate may impose a more serious penalty or impose the same one with different conditions.
For example, if the court revokes a non-conviction CRO order, the Judge or Magistrate could impose a CRO with conviction in addition to additional conditions for a period of up to two years commencing from the date the order is made in court.
On other occasions, the court can impose the same non-conviction CRO order with different conditions.
How to get a Non-Conviction CRO or Section 10 Dismissal in Court?
Everybody wants to avoid a criminal conviction for obvious reasons.
There are a number of things you can do to prepare your case in order to maximise your chances of getting a non-conviction even after pleading guilty to a criminal or serious traffic offence.
It’s important to understand what goes on in the mind of a Judge or Magistrate who is asked to consider giving you a non-conviction type of penalty such as a section 10 dismissal or CRO without conviction.
The Judge or Magistrate will have, in his or her mind, the purposes of punishment.
Under s3A Crimes (Sentencing Procedure) Act (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cpa1999278/s3a.html), 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 whether it would be appropriate to give you a non-conviction penalty:
- 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 dismissal or CRO non-conviction order.
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% off your sentence. This increases your chances of avoiding a criminal 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 (referees) closest to you.
These people can write a letter for you expressing, if true, your remorse, insight and shame.
This can significantly increase the chances of avoiding a conviction.
Significantly, a referee may also express your good character, with examples of things he/she has seen you do.
Good character letters can come from family, friends, charity, and/or your employer.
Each letter may express the effect a conviction will or will likely have on your job, your income and on any loved one’s who rely on you to drive or to derive an income.
It is also a good idea to draft for an offender to draft and use a letter of apology in court expressing any genuine remorse, shame and insight.
In traffic cases, it is a good idea to enrol and complete an accredited traffic offenders’ program before the sentence date.
Negotiate to drop or downgrade charges
By analysing the police evidence, you may be able to pick out all the holes in their evidence. Having picked out all the holes in the police evidence, you can then include this in a letter to the prosecution outlining strong reasons why the charge(s) should either be dropped or downgraded to a less serious offence (this is called ‘legal representations’ which is a formal process to commencing negotiations with the prosecution).
If you are successful in negotiations, the charge may be dismissed or downgrade. If the charge is downgraded, your chances of getting a non-conviction increases where you plead guilty.
Negotiate the police facts
By pointing out all the holes in the police evidence, you may be able to convince police to change parts or all of the police facts sheet, which the Judge or Magistrate will end up reading right before determining an appropriate sentence to impose.
The police facts can be changed to be more accurate and favourable to your case in a sentence, putting you in a better light, which can significantly increase your chances of avoiding a conviction after pleading guilty.
For example, one push will attract a much better chance at getting a non-conviction than 5 slaps to the victim in a common assault offence. A Judge or Magistrate may be more convinced to impose a non-conviction for an assault offence if you were provoked by the victim than if the offence was completely unprovoked.
Getting a powerful report from an expert psychologist or psychiatrist expressing your mental state at the time of the offence i.e. depression PTSD, a compelling explanation for committing the offence, remorse, insight and shame can drastically improve your chances at getting non conviction in court.
What offences can I get a section 10 dismissal or CRO non-conviction for?
Generally, a non-conviction type penalty is available to all offences including drink driving, drug driving, drug possession, drug supply, fraud, or assault offences.
Getting a non-conviction for a criminal or serious traffic offence also depends on how objectively serious your offending conduct was. Every case is different, and it is a good idea to get the guidance and advice from an experienced criminal defence lawyer.
There are certain circumstances for certain offences where the Magistrate or Judge cannot give you a non-conviction penalty.
Section 203 Road Transport Act 2013 (NSW) (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/rta2013187/s203.html) prevents a Judge or Magistrate from giving a non-conviction penalty if you have previously received a non-conviction penalty within the last 5 years for any one of the following offences:
- Drink driving; or
- Negligent driving causing death; or
- Negligent driving causing grievous bodily harm; or
- Driving at a speed or manner dangerous or furious or reckless driving.
The high-range drink driving guideline judgment, for example, imposes restrictions, requiring Magistrates and Judges to use great caution when considering to give out a non-conviction for a high-range drink driving offence. It also emphasises that section 10’s should be rarely given for ordinary offenders of high range drink driving cases and should be even more rarely given to offenders who have previous criminal convictions.
The high-range drink driving guideline judgement does however express favour towards a s10 for cases involving “extenuating circumstances”.