SECTION 10 DISMISSALS
Usually, when one is found guilty of any criminal or traffic offence, the Court imposes a penalty on the individual and then records a conviction. This recording then appears on your criminal record. Convictions, no matter how big or small, can have long term implications on current and future employment, overseas travel, loans, and others cardinal aspects of one’s livelihood. The stigma surrounding criminal records can have both implicit and explicit consequences on the individual.
Section 10, of the Crimes (Sentencing Procedure) Act 1999 (henceforth, Section 10), known as the ‘Dismissal of charges, and the conditional discharge of offender’ enables a court, upon a plea or finding of guilt, to order the dismissal of charges without proceeding to record a conviction. The order can be made with (Section 10(1)(b) and Section 10(1)(c)) or without conditions (Section 10(1)(a)). In essence, this means that while a Court has deemed you guilty of an offence, it chooses to dismiss the charge or offence without further penalty and thus omits recording your conviction on formal record. One can thus, honestly answer where needed that he/she, has no criminal record. Moreover, in the case of traffic offences it may often mean that there is no loss of the driver’s license or other such penalties.
TYPES OF SECTION 10 ORDERS
Under Section 10, three types of dismissals exist. Section 10(1)(a), which refers to a standard dismissal with no conditions, Section 10(1)(b), which refers to a conditional dismissal with a good behavior bond, and Section 10(1)(c), which refers to a dismissal with a rehabilitation program. Section 10(1)(b), conditional dismissal with a good behavior bond may be imposed for a period of up to 2 years. The minimum conditions may include: (a) good behavior, i.e. no further offences during the time specified, (b) appearances in court if called upon to do so, and (c) changes in relevant particulars, such as one’s home address. A breach could result in the imposing of a different sentence for the offence and the revocation of the bond. Similarly, Section 10(1)(c), involves successful completion of rehabilitation program.
WHEN CAN A SECTION 10 ORDER BE GRANTED?
Basten JA, in Hoffenberg v District Court of NSW  NSWCA 142 at , explained the structure of s 10:
‘Section 10 is relevantly broken into three parts, the first conferring a power to make an order of a particular kind; the second prescribing that the order ‘may be made’ if the court is satisfied of certain matters, although not stating that the court must be so satisfied to make such an order, and the third identifying factors which, in considering whether to make such an order, the court ‘is to have regard to’.
That is to say, that Section 10 can be broken down into 3-steps. (1) What type of Section 10 order is being conferred: (a) outright dismissal, (b) conditional dismissal with a good behavior bond, or (c) conditional dismissal with a rehabilitation program. (2) Particularly in relation to subsection 1(b) of Section 10, allows the Court discretion to dismiss if it is (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behavior bond. (3) The factors that the court should have regard to while imposing a Section 10. These include, (a) the person’s character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. It should be noted that while Section 10(3) makes use of the term ‘trivial’, any and all offences can be considered for a Section 10 dismissal.
WHAT SHOULD YOU DO?
Understandably, Section 10 orders are highly sought after. It allows for an individual, despite having committed a crime, to be put back in the same position he/she was prior to committing the crime. It reinstates their reputation, and protects their future and their livelihood. The Court while keeping in mind that often times, ‘legal and social consequences for recording a conviction far outweighed the requirements of punishment, denunciation and (specific and general) deterrence’, as noted in the case of Mauger, has to also remember that excessive or inappropriate use of Section 10 can undermine confidence in the administration of justice.
Thus, those seeking to have their record cleared by way of a Section 10 order, should enlist the help of professionals who will be able to satisfy the Court’s stringent needs. George Sten & Co Criminal Lawyers Sydney have an excellent track record in achieving results in getting Section 10. George Sten & Co Criminal Lawyer Sydney, will not only be able to assess the chances of your obtaining a Section 10 Dismissal but also aide in collecting sufficient and appropriate evidence to prove your case. 02 9261-8640