Section 10 Dismissal NSW – No Criminal Conviction: Are You Eligible?

March 23, 2021

Section 10 Dismissal NSW – No Criminal Conviction: Are You Eligible? NSW Bureau of Crime Statistics and Research data show that in 2015, an average of 19.1% of all criminal cases in NSW courts were discharged pursuant to a remedy known as “Section 10”. Defendants who were handed Section 10 dismissals are able to avoid the dreaded conviction record that could adversely affect their chances of obtaining quality employment, housing, and prospects for overseas travel.

What is a Section 10 Dismissal NSW?

“Section 10” refers to a specific provision in the Crimes (Sentencing Procedure) Act 1999, particularly Section 10 (1) to (3). This section allows a court to issue an order dismissing a charge or discharging the defendant while imposing a good behaviour bond or an intervention program, without recording a conviction against the defendant.

To qualify for a Section 10 remedy, a defendant must either enter a plea of guilty or be found guilty in court. But not all criminal defendants in NSW are entitled to Section 10 discharge, as the order is still left to the court’s discretion which must consider several factors such as:

The defendant’s age, character, health condition, mental condition, and antecedents;
The presence of mitigating circumstances surrounding the commission of the offence;
How trivial the offence actually was;
The likelihood that a treatment program would reduce the chances of reoffending by the defendant; and
Whether it is advisable or worthwhile to inflict any punishment on the defendant.

In some cases, it has been observed that defendants who have expressed remorse for their trivial offences have been able to avoid conviction and punishment and were instead required to post good behaviour bonds for periods up to a maximum period of 2 years.

Section 10 offences

Not all criminal offences can be the subject of Section 10 discharge, as the law requires that such orders may only be handed out after a consideration of the nature of the offence, among other factors.

In one case, the court determined the triviality of the offence by referring to the acts which constituted the transgression and the actual circumstances which accompanied its commission. Triviality was not determined by the maximum penalty able to be provided by the criminal statute for the offence for which the defendant was charged.

Courts throughout NSW have handed out Section 10s for a wide range of criminal charges such as:

Negligent driving;
Robbery and assault;
Possession of small amounts of drugs;
Low-range drink-driving; and
Traffic offences.

Importance of having a criminal defence lawyer

Criminal law observers, however, have noted a trend in sentencing outcomes tending to favour criminal defendants who are represented by lawyers before the local courts. With the exercise of judicial discretion in sentencing and dismissals, some courts have displayed apparent leniency after considering the submissions of defence lawyers in qualified cases for Section 10.

A spokesperson for the judiciary explains that differences in sentencing outcomes are often due to the unique circumstances surrounding every case where the two charges, as well as the conduct within the offence charged, are the same.

What does remain clear among Section 10 discharges is the role that skilled criminal defence lawyers play in obtaining favourable outcomes for their clients, as many of the Section 10 dismissals and discharges followed submissions by defence counsels.

In NSW, the Boorman Lawyers have vast experience in traffic and criminal law, having represented clients throughout NSW, and in Queensland, for years. Our competent and skilled lawyers are prepared to help by studying all angles of your case and implementing effective defence strategies including obtaining Section 10 dismissal or discharge, if appropriate in your situation.