For many people out in the wider community, the extent of their criminal defence legal knowledge is that magical phrase, “Section 10”. When the conversation around the BBQ turns to your friend’s recent driving indiscretion that is going to be dealt with in the local court, there is little doubt that at least one of your friends or relatives will proudly demonstrate their criminal defence capabilities by exclaiming that you should “just ask for a section 10!”

But what does section 10 actually refer to? When will the court actually consider handing down a section 10? And what are the consequences?

WHAT IT MEANS

First and foremost, a common misbelief is that a Section 10 is a defence when in fact it is not. Section 10 is a sentencing option that a magistrate or judge can hand down when a defendant has either pleaded guilty or been found guilty.

When the phrase “Section 10” is mentioned, it is referring to Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) which provides for the dismissal of charges when a conviction would have otherwise been recorded. In short, it is the finding of guilt without the making of a conviction.

However, the meaning behind the vernacular runs deeper than that and those with a wider understanding of this sought after result know that there are a number of alternatives, the most common being s 10(1)(a) and s 10(1)(b).

If an order under s 10(1)(a) is imposed, the defendant is found guilty but no conviction is recorded. Period. There are no conditions to this sentence and the defendant can move on and count their lucky stars.

If an order under s 10(1)(b) is imposed, the defendant is found guilty and no conviction is recorded with conditions. This condition is that the defendant must enter into a good behaviour bond for a term of up to 2 years. The defendant can move on with no conviction noted on their criminal history, however, they must enter into a bond and be sure that they do not occur any further criminal charges for that bond period.

There is also the option of the matter being dealt with under s 10(1)(c) which is an order discharging the defendant on condition that the person enters into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

WHEN THE COURT WILL CONSIDER A “SECTION 10”

Section 10(3) of the CSPA sets out the relevant matters that the court must take into account when considering an order under section 10. These include:

(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; and
(d) any other matter that the court thinks proper to consider.

In general, the court will only consider a section 10 if it is the defendant’s first time before the court and the defendant, or their legal representative, can show to the court that the nature of the charge is trivial.

THE EFFECTS OF A “SECTION 10”

The obvious effect of a Section 10 dismissal is that the defendant is found guilty with no conviction being recorded. However, despite the defendant thereafter maintaining their clean criminal record, the section 10 is noted on their record so that any future magistrate or judge is aware of this order being made if the defendant is brought back for a court for any future charge. As such, it is very rare that the option of a section 10 is available to a defendant more than once – to use a monopoly reference, it is your one “get out of jail free” card (“jail” being used figuratively of course).

Further, if the defendant’s discharge is conditional upon a period of good behaviour, it is imperative that the defendant abides by this condition and stays squeaky clean. If the defendant finds themselves charged with any other offence during that period and pleads guilty or is found guilty, they will be brought back before the court to be resentenced on the original offence in addition to being sentenced on the fresh charges. This, no doubt, is a position that nobody wants to find themselves in.

CONCLUSION

Hopefully this short overview has provided some insight into the reality behind that oft-used legal jargon. However, if you do find yourself faced with a criminal charge, it is always in your best interest to seek out competent legal advice and representation immediately. Our criminal defence lawyers are on hand 24/7 once retained, so call our office on 9600 7277 if you need assistance.