If you are facing criminal charges, you may be concerned about the impact of a criminal record and how it could affect your future. A criminal conviction can affect employment opportunities, your ability to travel, and your ability to obtain finance.
For people accused of an offence in New South Wales, a section 10 order may provide an opportunity to avoid a criminal conviction being recorded.
A section 10 order allows a court to find a person guilty of an offence but discharge the matter without recording a conviction in certain circumstances.
This article explains what a section 10 order is, which offences may qualify, how the application process works, and the factors courts consider when deciding whether to grant an order.
This information is general only. We strongly recommend obtaining professional legal advice based on your circumstances.
What Is a Section 10 Order in NSW?
Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court to find a person guilty of an offence but discharge the matter without recording a criminal conviction.
A section 10 order gives the court discretion to show leniency in appropriate cases. It can provide a second chance for people who have committed relatively minor offences or offences that occurred out of character.
Courts do not automatically grant section 10 orders. The person applying for the order must demonstrate why avoiding a conviction is appropriate in their circumstances.
What Offences Can Receive a Section 10 Order?
A range of offences may be considered for a section 10 order. The court will assess each matter individually and consider the circumstances surrounding the offence and the offender.
Common matters where section 10 orders may be considered include:
- Less serious traffic offences;
- Minor drug offences;
- Petty theft offences;
- First-time offences; and
- Criminal matters dealt with in the Local Court.
Eligibility depends on the individual circumstances of each case. The court has discretion when deciding whether to make a section 10 order.
Types of Section 10 Orders
The court can make three different types of section 10 orders:
| Section 10 Order | What It Means |
|---|---|
| Dismissal | The court finds the person guilty but dismisses the charge without recording a conviction. |
| Conditional Release Order | The court does not record a conviction but imposes conditions, usually requiring the person to remain of good behaviour for up to two years. |
| Conditional Release Order with Intervention Program | The court does not record a conviction but requires the person to complete an intervention or rehabilitation program. |
An example of an intervention program is the Traffic Offenders Intervention Program, which may apply in appropriate traffic-related matters.
How Do You Obtain a Section 10 Order?
Courts do not grant section 10 orders lightly. A lawyer must prepare detailed submissions explaining why the court should avoid recording a conviction.
Supporting documents often accompany these submissions. These documents may demonstrate the person’s character, remorse, rehabilitation efforts, and personal circumstances.
Factors the Court Considers
When deciding whether to grant a section 10 order, the court considers several factors, including:
- The nature and seriousness of the offence;
- The harm caused by the offence;
- The offender’s level of responsibility;
- Any aggravating or mitigating circumstances;
- The offender’s age and personal circumstances;
- Any previous criminal history;
- Employment and family responsibilities; and
- Steps taken towards rehabilitation.
Showing genuine remorse and taking steps towards rehabilitation can significantly influence the court’s decision.
Examples of rehabilitation efforts may include counselling, education programs, treatment programs, or community service.
Does a Section 10 Order Appear on a Police Check?
Whether a section 10 order appears on a police check depends on the type of order made and the circumstances of the check.
A section 10 dismissal does not result in a conviction being recorded. As a result, a conviction will not appear on a standard employment police check.
However, section 10 orders remain recorded for court purposes. If the person is charged with another offence in the future and appears before the court again, the previous section 10 order may be considered.
A section 10 order involving a good behaviour condition or intervention program may appear on a police check while the relevant order remains active.
Once the person completes the good behaviour period or intervention program, the order will generally no longer appear on a standard police check. However, it remains available to the court if the person later faces further charges.
Section 10 Orders and Spent Convictions in NSW
The spent convictions scheme aims to help eligible people move forward after a period without further offending.
The Criminal Records Act 1991 (NSW) provides that certain convictions may become spent after a crime-free period.
Generally, adults must complete a crime-free period of 10 consecutive years, while juvenile offenders must complete three consecutive years.
Once a conviction becomes spent, it will generally no longer appear on a criminal history check, subject to certain exceptions.
However, spent convictions remain available to courts if the person later faces criminal charges.
Section 10 Order vs Criminal Conviction
| Section 10 Order | Criminal Conviction |
|---|---|
| No conviction recorded in most circumstances. | A conviction forms part of the person’s criminal record. |
| May reduce the impact on employment and travel opportunities. | May create ongoing consequences for future opportunities. |
| Still considered by courts if the person faces future charges. | Appears as part of a criminal history. |
Frequently Asked Questions About Section 10 Orders NSW
What does a section 10 order mean?
A section 10 order means the court finds a person guilty but decides not to record a criminal conviction.
Can anyone get a section 10 order?
No. The court considers the circumstances of the offence, the offender’s history, personal circumstances, and rehabilitation efforts before deciding whether to grant an order.
Does a section 10 order mean I am not guilty?
No. A court must still find the person guilty of the offence. The difference is that the court chooses not to record a conviction.
How can a criminal lawyer help with a section 10 application?
An experienced criminal lawyer can prepare submissions, present supporting evidence, and explain why avoiding a conviction is appropriate in the circumstances.
Get Legal Advice About Section 10 Orders
Navigating the criminal justice system can be stressful. A section 10 order may provide an opportunity for eligible people facing minor offences in NSW to avoid the long-term impact of a criminal conviction.
Understanding section 10 orders, the offences they may apply to, and the factors courts consider is essential when seeking the best possible outcome.
An experienced criminal lawyer can help prepare your case and present submissions focused on your circumstances, remorse, and rehabilitation efforts.
This article provides general information only. You should obtain professional legal advice relevant to your situation.
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].