If you are facing criminal charges, you will likely be worried about the implication of a criminal record and how it may limit your opportunities in life. A criminal conviction can affect current and future employment, your ability to travel, and the capacity to secure finance in the future.
For those accused of an offence in New South Wales, seeking a section 10 order may be a viable option to prevent a criminal conviction from impacting future opportunities.
In this article, we consider what a section 10 order entails, the offences eligible for consideration, the implications of such an order, the process of obtaining one, and the factors courts consider when deciding. The information is general only and we strongly recommend you obtain professional advice relevant to your circumstances.
What is a Section 10 order?
Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court to find a person guilty of an offence and still discharge the matter without recording a criminal conviction. Essentially, it offers an opportunity for the court to show leniency, providing a second chance to those who have committed offences that are deemed relatively minor or out of character.
A number of offences may be dealt with by way of a section 10 order. The most common include less serious traffic offences, minor drug offences, petty theft, first-time offences, and criminal matters that are dealt with in the Local Courts. However, eligibility varies depending on the circumstances of each case and the discretion of the court.
The court can choose to apply one of three different types of section 10 orders. The first is a “Dismissal,” where no offence is recorded. The second is a “Conditional Release Order,” where again there is no offence recorded, but there are conditions, most commonly that the offender be of good behaviour and not commit any further offences for up to two years. The final section 10 order is “With Intervention Program”. In this case, no offence is recorded, but this forbearance is conditional upon the offender completing an intervention or rehabilitation program, such as the Traffic Offenders Intervention Program.
How to Obtain a Section 10
The courts do not grant section 10 orders lightly. An offender’s lawyer must prepare thorough and convincing submissions to persuade a Magistrate or Judge to consider not recording a conviction after finding someone guilty. Supporting documents are usually presented with these submissions.
When seeking a section 10 order, it is vital to present mitigating factors that demonstrate remorse, good character, and contextual details regarding the offence.
When contemplating a section 10 order, the court will assess the nature and severity of the offence in question, considering factors such as the harm caused, the offender’s culpability, and any aggravating or mitigating circumstances.
The court will also take into account the offender’s personal circumstances, including their age, prior criminal history (if any), employment status, family responsibilities, and any efforts towards rehabilitation.
Demonstrating genuine remorse for the offence and efforts towards rehabilitation can significantly influence the court’s decision. This may include participating in counselling, undertaking educational programs, or engaging in community service.
Does a Section 10 Appear on a Police Check?
Records of section 10 orders are retained and remain part of your criminal record if you are ever charged again by the Police and appear back before the court. However, if the court orders a section 10 dismissal, no conviction will show on the accused’s criminal history if somebody carries out a police check for employment purposes. A section 10 order with a good behaviour bond or intervention program will appear on a police check for the duration of the bond or rehabilitation program. Once the offender completes the bond or intervention program, the record will no longer show on the accused’s criminal history via a police check however again it will remain on your criminal record that is used by a court if you are ever charged again by the Police and appear back before the court.
Spent convictions
The objective of the spent conviction scheme is to provide an opportunity for those who have been convicted of certain offences to move forward with a ‘clean slate’ after a crime-free period. The Criminal Records Act 1991 in New South Wales provides that after being convicted of certain (relatively minor) offences, and after serving a crime-free period of 10 consecutive years for adults and 3 consecutive years for juvenile offenders, the conviction will no longer appear in a criminal history check. However again it will remain on your criminal record that is used by a court if you are ever charged again by the Police and appear back before the court. Generally, apart from certain exceptions, a person with a spent conviction will not need to disclose that conviction.
Conclusion
Navigating the criminal justice system can be daunting, section 10 orders offer a ray of hope for individuals facing more minor offences in NSW. Understanding the intricacies of section 10 orders, the eligible offences, and the factors the courts consider is essential when seeking to avoid a criminal conviction. While an experienced criminal lawyer can provide guidance and present a compelling case, a person facing charges can demonstrate remorse and rehabilitation efforts to increase their chances of securing a favourable outcome and moving forward with their lives, unburdened by the stigma of a criminal record.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email [email protected].