What is a Section 10 in NSW?

When a person is charged with a criminal offence in New South Wales they will be required to go to Court and enter a plea of Guilty or Not Guilty. Upon a finding of guilt for a particular criminal offence the Court “MAY” in very special and exceptional circumstances deal with the offence and finding of guilt under Section 10 of the Crimes (Sentencing Procedure) Act 1999.

The term “Section 10” is thrown around quite a lot and often with very little understanding of what it is, what it means and the reality of being able to have a Court use its discretion to deal with a particular criminal offence under Section 10 of the Crimes (Sentencing Procedure) Act 1999. So throughout this page we want to give you a detailed analysis of issues surrounding a Section 10, especially in relation to traffic and drink driving offences in NSW.

So effectively when someone refers to a “Section 10” they are referring to Section 10 of the Crimes (Sentencing Procedure) Act 1999 which allows a NSW Court to use its discretion on a finding of a guilty verdict to not record a criminal conviction, not disqualify the persons drivers license and not issue any financial penalty. So ultimately, it is the optimal outcome for any criminal offence where the is a plea of guilty or an eventual finding of guilt. Given the significant benefits that a person receives when their offence is dealt with by way of a Section 10, it is easy to understand why it is generally though of as being the “holy grail” of Court results.

There are variations of how the Court can issue a Section 10 for Drink Driving in NSW, we will discuss these variations shortly.

 What the Section 10 Laws Says?

Under Section 10 of the Crimes (Sentencing Procedure) Act 1999 there are variation of different types of Section 10 sentences that the Court can use to deal with you criminal matter, these main Section 10 provisions under the Act include:

Section 10(1)(a) – the is where the Court uses it discretion to issue an outright dismissal of the criminal offence upon a finding of guilt. This is considered the most optimal result that a person could obtain but it should be understood that this is also the hardest result to obtain. Usually there would have to be extremely exceptional reasons or the offence is so trivial that the Court decides that no inherent punishment should be issued to the offender.

Section 10(1)(b) – when an offender is lucky enough to have the Court use its discretion to deal with their matter under Section 10, the most common form of Section 10 that the Court will often issue to an offender is a Section 10(1)(b) which effectively means that the offender is required to enter into a Good Behaviour Bond for a period of anywhere up to 2 years. So long as the person enters into the Good Behaviour Bond and does not commit any further offences during the term of that Bond then the offender will not receive a criminal conviction, not receive a license disqualification or any financial penalties.

If the offender does breach the Good Behaviour Bond by committing a further offence then the Court may see fit to call on the Bond and ultimately revoke it and re-sentence the person on the charge which was the subject of the Section 10(1)(b) bond.

Section 10(1)(c) – this provision of Section 10 is not as commonly exercised as the previous two provisions under Section 10 yet it is still an effective form of sentencing and most certainly a positive outcome for the offender. The Court will exercise the use of the Section 10(1)(c) provision where it wishes to conditionally discharge the offender where they agree to attend and complete any specified intervention program or professional treatment as the Court sees fit based upon the evidence before the Court.

It quickly becomes clear that there are a number of different variations at the Court disposal and discretion to deal with offenders under the Section 10 provisions.

At the end of the day any form or Section 10 provision is considered an excellent result since it allows the offender the opportunity to avoid a criminal conviction, loss of license, fines or any other sentencing options at the Courts disposal.

The Law of Section 10 in NSW

The legislation surrounding the term commonly referred to as “Section 10” is the Crime Sentencing Procedure Act 1999 and below you can find the exact legislative provisions for Section 10.

Dismissal of charges and conditional discharge of offender
10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed,
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to release the person on a good behaviour bond.

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.
(2B) Subsection (1) (c) is subject to Part 8C.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.

(4) An order under this section has the same effect as a conviction:

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and
(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and
(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

How to Get a Section 10 for Drink Driving in NSW?

In considering whether or not to use its discretion to deal with an offender under Section 10 the Court needs to take into consideration a range of subjective and objectives features surrounding the matter. Under Section 10 it says that the Court should consider the following issues which include but not limited to:

  • Persons age, character, traffic history, physical health & mental condition;
  • Whether the drink driving offence is of a trivial nature;
  • If there are significant extenuating circumstances;
  • Any other relevant issues.

Whilst these are considerations which are outlined under Section 10 of the Crimes (Sentencing Procedure) Act 1999, the reality is that the seriousness of the particular offence (how high blood alcohol reading was & whether any aggravating features exist), the offenders prior traffic record and any proof of physical, emotion or financial hardship which will flow on from a conviction or loss of drivers license, these are all extremely strong issues which the Court will most certainly consider prior to dealing with any offence under Section 10 of the Crimes (Sentencing Procedure) Act 1999.

Whilst many people may think that if they prepare a good case for Court then they will be able to get the same result as a fully qualified lawyer. But the reality is that a good lawyer, who is well versed in the law that relates to the offence, will be able to confidently seek to persuade the Magistrate or Judge to provide a certain level of leniency by dealing with the criminal offences under Section of the Act.

Such submissions by a good lawyer can be persuasively presented to tilt the Magistrates decision in awarding the offender a Section 10. This is obviously where a good quality drink driving lawyer can be invaluable in having the good advocate skills and knowledge in seeking a Section 10 result for their client.

How can I help my chances of a Section 10 DUI NSW?

It must first be understood that obtaining a Section 10 (of any kind) is not an easy result to achieve since the general attitude of the Courts are to only give them out to very special or exceptional cases which come before the Courts, particularly when it is a drink driving charge.

That is not to say that it is impossible, however a very realistic approach needs to be taken toward seeking and requesting that the Court deal with a particular charge by way of a Section 10.

This is where specialist knowledge of an expert drink driving or criminal lawyer can be extremely beneficial in advising you what your chances are in obtaining such a favourable result in Court.

Furthermore, a specialist drink driving or criminal lawyer will have the knowledge and experience in preparing well thought out cases to present to the Court to give you a better chance of obtaining a Section 10.

Additionally, an experienced drink driving or criminal lawyer who regularly appears at Court on these types of traffic offences which have a unique insight into what the different attitudes and styles are of the various different Magistrates. This can provide the defendant with a very unique advantage in knowing how to best prepare the case and also what to say and what not to say before the Court.

Of course there are other things that you can do aside from obtaining professional and specialist legal representation such as:

  • Completing a Traffic Offenders Intervention Program;
  • Obtaining a referral to a Clinical Psychologist for treatment of mental and/or emotional issues (if required);
  • Well written character reference that go beyond just saying what a wonderful person the defendant is;
  • Any other hard evidence that can show the Court that you are unlikely to re-offend or that shows the Court that you or someone who relies on you will suffer extreme hardship following a conviction or loss of license.

A good and lengthy traffic record is also something that will be given a significant amount of weight when it comes to deciding whether or not the Court should issues a Section 10. However, at the time the matter goes to Court, your prior traffic record is something that you will be unable to change.

If you are serious about knowing whether or not you have a realistic chance of obtaining a Section 10 for your Court matter then it is strongly recommended that you speak with an experienced drink driving lawyer or criminal solicitor to provide you with a case assessment.

Then it is also advisable to have them take control of your legal proceedings and work to prepare the best case possible to put you in the best position to try to obtain a Section 10.

There Is No Such Thing As A Guaranteed Section 10

One very important point that everyone who is hoping to obtain a Section 10 result for their drink driving or criminal traffic offences is that no one can guarantee getting you a Section 10 result.

Many people seem to use the term Section 10 quite loosely without actually realising what is involved in getting such a result and what issues will be considered. Far too often we have clients who call up and tell us that they believe that they will be able to obtain a Section 10 in Court because the arresting Police officer said that they would. We find that often Police says such statements like this at the time of arrest to alleviate the defendants concerns during the arrest process but things can certainly be different when all factors are considered and when the matter goes before a Magistrate or Judge.

Some lawyers will talk the talk in relation to guaranteeing a particular Section 10 result but when it comes to walking the walk and actually achieving a Section 10 in Court it can be a different story.

Ultimately, the reason why that it can almost be impossible to Guarantee a Section 10 for Drink Driving is because the end result comes down to the discretion of the Magistrate or the Judge. There is no black and white criteria which a person can satisfy which makes them eligible fore getting a Section. Instead the ultimate decision comes down to the Magistrate or Judges discretion. As previously mentioned, Magistrates and Judges have varying views on different issues and some may be more willing to exercise their discretion than others.

We have found that some lawyers in the community say that they can definitely get the client a particular Section 10 result in order to obtain the clients business and then all to often we find that the client feels let down and upset when that particular result is not achieved. So upfront honesty in relation to potential outcomes and estimated costs involved are a priority in our view. Without sounding too negative we will also give you a realistic idea of the likelihood in the Court giving you a Section 10.

Our Approach to Advising on A Section 10

We prefer to be 100% up front and honest about your chances of obtaining a Section 10. We will tell you up front that we CANNOT guarantee a Section 10 result because it is our view that no one can guarantee such a result. We would rather let a client go to another solicitor if they present us with an ultimatum of going to another lawyer who says they can guarantee them with a Section 10.

We will also sit down and plan a strategic and well though out case to help you achieve a Section 10. Our specialist drink driving lawyers know from experience exactly what the Magistrates and Judges look for in considering whether or not a Section 10 may be a viable sentencing option for your matter.

Make no mistake we will pull out all stops to achieve the best result for you in relation to your charges and if there is a possibility of achieving a Section 10 for your matter then we will be on top of it.

So the issues to note here are that you should be very wary of any person or lawyer being able to guarantee you a Section 10 result for your matter. Furthermore, you should obtain the advise and representation of, not just any old lawyer, but a specialist drink driving or traffic lawyer who represent matters like yours on a daily basis.