The elusive and sought after “section 10” in criminal and traffic prosecutions in NSW
Committing a criminal or traffic offence in NSW does not always lead to a criminal record. In some cases a person who has committed an offence and is pleading or found guilty may have sufficient subjective features to warrant a magistrate or judge dismissing the charge by what is commonly referred to as a “section 10” sentence.
What is a “section 10” under NSW law?
Under section 10 of the Crimes (Sentencing Procedure) Act 1999, a court which finds a person guilty of an offence can make an order under subsection (1)(a) that the charge be dismissed, instead of proceeding to a conviction.
Alternatively, under subsection (1)(b), the court can order that the person completes a period of good behaviour not exceeding two years, after which the offence will be dismissed.
Criminal conviction has serious implications
For anyone facing court for committing a crime, this is the ideal and best possible sentence, as the consequences of having a conviction recorded are serious.
For example, you may be precluded from working in certain industries and professions such as education, government, police, nursing and law. You may also be barred from obtaining a visa to enter certain countries.
However, getting a section 10 sentence is not easily achieved and many courts are reluctant to order them except in exceptional circumstances.
What factors can help you receive a section 10 sentence?
Factors that lend themselves to succeeding in obtaining a section 10 sentence include the following.
- No prior criminal or traffic record (if it is a traffic related offence). If you do have a prior record, you may still receive a section 10 sentence if you only have a couple of historical and minor offences
- The nature of the offence, for example, offences we have commonly seen receive a section 10 sentence are low range PCA (drink driving), minor traffic offences, drug possession of a personal quantity, larceny, common assault, goods in custody and summary offences such as offensive language and public urination
- Prior good character, which can be demonstrated by tendering character references
- Employment needs
- Strong prospects of rehabilitation
- Hardship for you or your family
- Exceptional circumstances in terms of the reason why you committed the offence
This is not an exhaustive list, as the court can also consider any other factors it deems to be relevant.
Being represented in court by an experienced criminal lawyer who can adequately prepare for sentencing gives you the best possible chance of receiving a section 10 sentence.