Criminal lawyers for section 10: No criminal record

The criminal lawyers at Australian Criminal Law Group are experts at having no conviction recorded for our clients.

Under section 10 of the Crimes (Sentencing Procedure) Act 1999, a court can dismiss the matter outright under section 10(1)(a) or place the person under a Conditional Release Order without a conviction under section 9(1)(b), which is a good behaviour bond for up to two years.

Our criminal lawyers, with 500+ five-star Google reviews, understand that criminal records, or convictions for certain charges, can devastate your life. They make it harder to get a job, can impede overseas travel and lead you to lose your driver’s licence.

Who can get a section 10?

Anyone can get a section 10, meaning you are eligible regardless of whether you are a first offender or have a lengthy criminal record. 

We believe that when someone has been a good person their whole life, working hard and looking after their families, they should not be punished with a conviction for a single mistake. Everyone deserves a second chance, and the punishment should fit the crime.

It is also important to remember that having a criminal record already does not make you ineligible for a section 10. If you already have a criminal record, a section 10 means that you will not be convicted for the new charge, and it will not appear on the criminal record that you already have. 

It is also important to remember that a person can get a section 10 more than once. 

For traffic offences, a section 10 means that you do not lose your licence or demerit points.

What does a court consider in deciding whether to give a section 10?

The application of section 10 requires a court to consider certain factors. However, these factors are not a checklist where each box must be ticked for the court. Those are:

• Age: People entitled to leniency include young people who may not appreciate the consequences of their conduct and older people with no prior offending.
• Character: Good character refers to matters personal to the client coming before the court. Some examples might be the person’s dedication to their family, employment, or community.
• Antecedents: Antecedents are your criminal and/or traffic record. A person with no criminal record is typically more likely to obtain a section 10 than someone who does. However, you can still get a section 10 if you do have a criminal record, especially where there has been a gap in offending or the circumstances of the offending mean it would be inappropriate to convict you for the more recent offence.
• Health: Physical health is relevant to the imposition of a section 10, especially where your health would make a conviction more onerous.
• Mental condition: Mental health is relevant to whether the court makes a section 10 order, especially where there is a nexus between your mental health and the commission of the offence.
• The trivial nature of the offence: The court will consider the seriousness of the offending in deciding whether to give you a section 10. However, section 10s are available for serious crimes, and you are not prohibited from obtaining a section 10 because an offence is not trivial.
• Extenuating circumstances: Extenuating circumstances are how and why an offence was committed. For example, where someone acted in excessive self-defence, was provoked in some way, or was responding to an emergency of some kind. The court may also look at what was happening in your life when the offence was committed to determine whether you behaved in a way that was out of character.
• Any other matter that the court thinks proper to consider: This includes the effect of a conviction on your life, such as loss of employment or difficulty obtaining employment, travel restrictions, and loss of your driver’s licence.

What have the courts said about section 10?

Our criminal lawyers are experts regarding the law relating to section 10 dismissals. Here is some of what judges have said about when a section 10 is available. 

First offenders

The court is often willing to give a second chance to people who have not been to the court before and have no criminal record. In this regard, his Honour Berjin J said of section 10:

The dismissal of charges against first offenders in certain circumstances is appropriate. This power reflects the willingness of the legislature and the community to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character.

Effect of a conviction

The court will look at the effect of a conviction in deciding whether to dismiss a charge under section 10. In this regard, his Honour Gleeson CJ, said of section 10:

The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court… [Section 10 provides] a capacity in special circumstance to avoid the rigidity of inexorable law is of the very essence of justice.

Whether section 10 is a punishment at all

The courts have considered whether a section 10 is a punishment and have concluded it is, even though a person does not receive a criminal record. This is because a person can be placed on a good behaviour bond with conditions for the length of a section 10 order. Regarding whether a section 10 is a punishment, his Honour Harrison J said:

Whilst that contention is understandable as a general proposition, it is important that it not be permitted in this case to dilute or to downgrade the significance of the imposition of a bond. If the seriousness of the present offence and the need for denunciation and general deterrence are important considerations, they are to my mind more than adequately contemplated in this case by both the terms and the duration of the bond that has been imposed…  It is wrong in my view to assume that the decision to not record a conviction is automatically or necessarily coextensive with the imposition of an inadequate, or even a particularly lenient, sentence.

Seriousness of the offence

The courts have considered whether an offence needs to be trivial before a section 10 order has been made and determined that it does not. Section 10 is available for serious offences. Regarding the triviality of an offence, Justice Simpson said:

However, it is still the case that the more serious the offence, the less likely it is that a section 10 order will be made. Regarding how the seriousness of an offence affects the application of section 10, his Honour Howie J said:

“Where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”

Section 10 after pleading not guilty

The courts have considered whether section 10 dismissals are available after a person has pleaded not guilty and been found guilty at a defended hearing. They answered that section 10 is available. Regarding the availability of section 10 after a not guilty verdict, his Honour Johnson J said:

There is no statutory or common law principle which excludes an order under s.10 in circumstances where a defended hearing has taken place. In many cases, of which this case may be an example, the defended hearing may disclose extenuating circumstances in which the offence was committed to which the court should have regard in determining whether to apply the section.

How do we obtain section 10 orders for our clients?

Our criminal lawyers get our clients’ section 10s because we understand the law and how to put together impeccably prepared cases for our clients. 

The process we undertake to get you a section 10 includes:

• Negotiations: We negotiate with the police to obtain less serious charges for you and a more favourable facts sheet. This is because the less serious the charge, and the better the facts, the more likely the court will dismiss your charge under section 10. 
• References: We help you obtain references from people in your life to show the court your true character.
• Letters of apology: We assist you in writing a letter of apology to give you a voice in your sentencing proceedings. 
• Effect of a conviction: We put together a robust case to show what effect a criminal conviction will have on your life, which includes letters from your employer, tendering of employment contracts and travel documents, and regulatory information about the effect of a conviction in the industry you work in. 
• Referrals to programs: We refer you to programs such as the Traffic Offenders Program, MERIT, SMART Recovery, and Positive Lifestyles, which the court places a significant wait on. We can also refer you to residential rehabilitation centres and drug and alcohol treatment programs if required.
• Referrals for your mental health: We refer you to psychiatrists, psychologists, and counsellors to commence treatment immediately and demonstrate to the court that you have been rehabilitated at the time you are sentenced.
• Specialist reports: We obtain the best forensic psychological and psychiatric reports from reputable experts and ensure the report includes a treatment plan that the court will be confident in.
• Submissions: We make carefully crafted oral and written submissions about why your case should be dismissed pursuant to section 10.
• Character: Good character refers to matters personal to the client coming before the court. Some examples might be the person’s dedication 

What cases have our criminal lawyers obtained section 10s in?

Our criminal lawyers have obtained section 10 dismissals for most criminal offences. Some of the types of offences we have obtained section 10s for include:

• Assault offences, including common assault, assault occasioning actual bodily harm, affray, and reckless wounding.
• Dishonesty offences, including larceny, fraud, dealing with proceeds of crime, and break and enter.
• Domestic violence offences, including assaults, intimidation, and contravening AVOs.
• Drug offences, including possession and supply.
• Drink and drug driving offences, including drive with illicit substance in system, low-range, mid-range, and high range drink driving.
• Sexual offences, including sexual touching and possessing child abuse material. 
• Traffic offences, including driving while suspended/disqualified, negligent and dangerous driving. 

Contact us to speak to the section 10 criminal lawyer

Our criminal lawyers have 500+ five-star Google reviews and have won many awards for our advocacy inside and outside the courtroom.

We have offices in Sydney, Parramatta, and Blacktown. We offer free first consultations and fixed fees from a criminal lawyer with at least 5 years of experience appearing in section 10 applications.

Consultations are available in person, via phone, or via video.

 Call us today on 02 8815 8167 or send us a website enquiry to arrange your first free consultation.