A Section 10 – What is it and how do I get one?

If you have been charged with an offence, you might have the option of seeking a section 10 dismissal. Whether this is an option for you will depend on factors like the seriousness of the charge, whether you have a criminal history and the circumstances surrounding the offending.

A ‘section 10’ refers to section 10 of the Crimes (Sentencing Procedure) Act 1999, which allows for the dismissal of charges if you plead guilty or are found guilty of an offence. There are 3 categories of section 10 dismissals available.

Section 10(1)(a)

Under section 10(1)(a), the Court has the ability to order that your charge be dismissed and that a criminal conviction is not recorded against you. This is a ‘no strings attached’ outcome and you do not have to comply with any conditions.

Section 10(1)(b)

This section allows the Court to dismiss your charge based on certain conditions that you must comply with for a specified period of time or risk having the section 10 revoked. It works effectively as a good behaviour bond, and the time imposed by the Court cannot exceed 2 years.

Section 10(1)(c)

Under this section, the Court can order that your charge is dismissed on the condition that you enter into an agreement to participate in an intervention program and comply with the intervention plan developed from the program.

It may seem daunting to have to plead guilty in order to absolve your criminal charge, and you may be worried that there will still be a record of the offence in your criminal history. This is where sections 8 and 12 of the Criminal Records Act 1991 (‘the Act’) come in.

Will a Section 10 show up on my criminal record?

Section 8 provides that upon a Court finding you guilty of an offence, but not proceeding to sentence you, the conviction is spent, meaning that the offence is void. This operates differently depending on which category of section 10 you are given.

If the Court grants you a section 10(1)(a), the offence is void immediately upon the Court making the order. If you are granted either a section 10(1)(b) or 10(1)(c), then your offence becomes void upon the completion of the bond period or completion of the intervention program.

Once your conviction is spent, it will not be visible on your criminal record.

There are exceptions to section 8 for certain offences, including sexual offences and offences against corporate bodies. If you are worried that section 8 may not apply to you, contact us and we can assess your case and provide you with the best advice to move forward.

Do I have to disclose a Section 10?

Section 12 of the Act, then provides that you are not required to disclose to any person any details about the spent conviction. It also means that if there is ever a question of your criminal history, the spent conviction is not relevant.

However, there are certain circumstances in which section 12 does not apply. Those include if you are applying for employment or appointment as a judge, magistrate, police officer, staff member of Corrective Services NSW, or the Office of the Sheriff, Department of Communities and Justice, teacher, or teacher’s aide. It also does not apply if you are applying for clearance to work with children or people covered by the National Disability Insurance Scheme. If the offence related to arson, and you are applying for a position to fight fires, section 12 will not apply.

Additionally, if you are applying for admission as a lawyer, section 12 does not apply to you. Similarly it does not apply if you are seeking employment as a Department of Public Prosecutions officer, or Crown Prosecutor. There may be other exceptions contained in the legislation. Contact us for more information.

If you find yourself before a court again, the Court will be able to consider the spent conviction. However, the Court is required to take reasonable steps to ensure that evidence of the spent conviction is not made public.

So how do I get a Section 10?

Obtaining a section 10 is not an easy feat. It often requires an experienced solicitor to know how to present your case to the Court in the best possible light. At Auslex Law Group, our experienced solicitors and barristers have been successful in obtaining section 10 orders on multiple occasions, even when the odds have been stacked against us. If you would like to find out if a section 10 is an option for you, contact us.