A complete guide on how to apply for a Section 10 dismissal
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Our specialist criminal defence lawyers have years of experience in helping our clients receive Section 10 dismissals.
We have achieved section 10 dismissals for offences such as:
Contact us now to speak to our accredited specialist criminal lawyer who can quickly assess your case and begin preparing to have your charge dismissed and no criminal conviction recorded.
A Section 10 is where the court finds the offence proven but dismisses the matter pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
If the Court deals with your matter by way of section 10, it means that you avoid a criminal conviction and there will be no further penalty.
The Court can consider Section 10 for a variety of Criminal Offences. The court will often consider section 10 for offences dealt with in the Local Court specifically relating to drink driving, driving whilst disqualified, driving whilst suspended, possession of a prohibited drug and minor assault matters.
You can also receive a Conditional release order (CRO) without conviction. This is where no conviction is recorded, however you are placed on a good behaviour bond for a period of time.
Yes, you can. Obtaining a Section 10 dismissal for a traffic infringement will mean that you will not pay any fine.
More significantly, you will also not concede any demerit points. We have achieved this many time to help our clients keep their driver’s licences.
There are three types of Section 10 orders that the court can use.
A section 10(1)(a) dismissal is where the Court finds you guilty but dismisses the matter without imposing any conditions on you.
A section 10(1)(b) order is when the court finds you guilty and sentences you to a good behaviour bond but does not record a criminal conviction against you.
The good behaviour bond can come with a number of additional conditions, including:
The court can make the good behaviour bond for up to 2 years. If you comply with the bond, then the matter will be dismissed at the end of the bond period with no conviction on your record.
If you breach the conditions of the bond you can be brought back to court and the bond ‘called up’. If this occurs the court can either:
If the court chooses to revoke the bond, there is usually a strong likelihood that you will receive a criminal conviction.
A section 10 (1)(c) order is also a good behaviour bond. However, the court has the power to impose additional conditions including:
This provision is usually only applied if you have any mental health or substance use issues that are being addressed through a program. It is rarely used by the court.
This means the offence is dismissed without recording a conviction on the condition that you complete an intervention or rehabilitation program. Examples include the Traffic Offenders Intervention Program or Alcohol rehabilitation program.
You can get a section 10 dismissal by arguing that the circumstances of your case satisfy the criteria in Section 10 (3) of the Crimes (Sentencing & Procedure) Act 1999:
The court rarely grants section 10s. It will require meticulous preparation of your case and persuasive arguments before the Magistrate or Judge.
The specific documents you need to prepare will be based on your particular circumstances. You should consult an experienced criminal lawyer who can set out exactly what needs to be prepare to achieve a section 10. However, there are some general guidelines that you can follow. The following material will generally be of assistance:
First-time offenders
In R v Nguyen [2002] NSWCCA 183, the court found that it can be appropriate to dismiss charges against first-time offenders. This is so that they can preserve their reputation and their good character.
Trivial offences
In R v Paris [2001] NSWCCA 83, the Court of Criminal Appeal found that the trivial nature of an offence is to be determined with regard to the actual offence and the circumstances of that offence. This is because all criminal offences are regarded as ‘serious’.
Drug offences
In R v Mauger [2012] NSWCCA 51, the court held that the legal and social consequences for recording a conviction can outweigh the requirements of punishment, denunciation and deterrence. This was in the context of an application for a section 10 for drug possession and supply.
Yes, a section 10 can appear on a police check if you receive a good behaviour bond. It will appear for the length of the bond.
Once the bond expires, it will no longer appear on your record. This is because it is now a ‘spent conviction’.
Under the Section 12 of the Criminal Records Act 1991, you do not have to disclose a ‘spent conviction’. Therefore, if you have received a section 10 dismissal or bond (which has expired), you do not have to reveal it to an employer.
If you receive a section 10 dismissal with no bond, the section 10 will not appear on a criminal record check.
The main benefit of a Section 10 is that you do not receive a criminal record, or accumulate demerit points or face any other penalty.
You also do not have to disclose the offence in most situations. The only exceptions to this are if you are applying for a position such as a judge, justice of the peace, magistrate, prison officer, police officer or teacher. It also does not apply if you are giving evidence in Court.
Generally, if a potential employer asks for a police check, a Section 10 order should not appear on the document. Therefore, if you receive a no conviction Section 10 order, you do not have to disclose it in the same was as if you were found guilty of a criminal offence.
A Section 10 dismissal does not appear on your criminal record because no conviction is recorded. A Section 10(1)(b) Conditional Release Order Without Conviction will appear on police checks for the duration of the order before becoming a “spent conviction” at which stage it will no longer appear.
The main effects of being convicted of a criminal offence are loss of employment, driver licence disqualification and inability to travel.
Of course, instructing a specialist criminal defence lawyer to represent you will significantly increase your chances of avoiding a conviction.
Our lawyers are well-regarded by prosecutors, Magistrates and Judges. This is reflected in our exceptional track record of obtaining non-convictions.
You can read some recent Section 10 cases by clicking here.
Contact us now to book a consultation.
Recently Astor Legal appeared at Sydney District Court on behalf of a client who had pleaded guilty to a number of domestic violence charges.
He was charged with assault occasioning actual bodily harm, common assault and stalk/intimidate.
The facts set out that our client was in Yamba with his wife and child on a holiday.
The pair had an argument about the behaviour of their child. This resulted in his wife throwing a remote control at him. Following this he was alleged to have grabbed her by the arms and pinched her a number of times, leaving bruises.
On another occasion it was alleged that he had kicked his wife in the back.
He had been sentenced to a community corrections order in the local court. Following this he filed a severity appeal.
We undertook a significant amount of preparation for the appeal.
This included arranging for our client to undergo extensive psychological counselling as well as relationship counselling with his wife.
We also obtained letters from his employer and work colleagues setting out that a conviction may result in a loss of job and stymy his career prospects.
We appeared at Downing Centre Court for the appeal and made lengthy submissions in support of no conviction being recorded. Despite the prosecutor strongly opposing this, the Judge was persuaded not to record a conviction.
The appeal was allowed and our client was sentenced to a conditional release order without conviction for 12 months. Our client was ecstatic with the result.
Astor Legal recently were successful in persuading a Judge to allow an appeal and sentence our client to a Section 10 for high-range drink driving. This was an exceptional outcome, given less than 1% of these offences receive non-convictions.
The client was a 26-year-old truck driver. He had recently come to Australia by himself to earn money and support his family financially overseas.
On the day of the offence he was at a friend’s house where he had consumed a significant amount of alcohol. The plan was for the friend to drive our client home at the end of the night. On the journey home, the client’s friend had to pull over to go to urinate. He left our client in the vehicle. Unfortunately, he parked the vehicle in a ‘no stopping’ zone where the vehicle was at risk of being hit by passing cars.
Our client waited for some time but his friend did not return, nor did he answer his phone. Eventually, our client called the police himself. However, he also drove the vehicle to a safer location a few metres away. The length of time he drove was but a few seconds.
When police arrived our client made admissions to driving. He was charged with drive with high-range PCA.
He was represented in the Local Court by other solicitors and a barrister where he received a conviction. He filed an appeal and came to us after seeing our article on how to get a section 10 for mid range drink driving.
We commenced preparing the matter in detail by arranging for our client’s friend to give evidence in court to confirm his version of events. We also obtained references from his family overseas as well as his employer.
In court, our Parramatta drink driving lawyers called our client’s friend as a witness and questioned him on the events of the night, as well as our client’s character generally. We then made lengthy and detailed submissions, often having to respond to pushback from the Judge who noted that high range drink driving offences almost always result in a criminal conviction.
But despite the Judge’s reservations, we were able to convince him that our client’s circumstances were so unique that it warranted a significant departure from the usual sentence imposed.
In the result, our client received a Section 10 for the drink driving offence. As such, he has no conviction on his record and can continue driving. He was ecstatic with the result, as was his family.
Our client was a 41-year-old software Engineer residing in Parramatta. He was married with two children.
Police charged him with assault occasioning actual bodily harm after receiving a complaint from his wife. It was alleged that the pair had engaged in an argument over financial issues which resulted in our client punching the complainant three times in the face. The next day she attended her GP and a record was made of a significant black eye and lump on her forehead.
Our client instructed us he wanted to enter a plea of guilty but avoid a conviction.
We immediately got to work preparing the case. First, we enrolled our client with a psychologist for anger management counselling. After completing a number of sessions we requested a report be provided to us for a Section 14 Application to be pursued.
Next, we obtained letters from his family and friends detailing his good character, remorse and impact that a conviction may have on his employment. This was in the form of an employment contract which explicitly set out that he would be terminated if he received a criminal conviction.
We attended Burwood Local Court with our client and made lengthy submissions in support of no conviction being recorded. While the Magistrate initially refused the Section 14 Application, His Honour was persuaded that this was a case where a section 10 for assault occasioning actual bodily harm was appropriate.
Our client was ultimately sentenced to a conditional release without conviction for a period of two years. This means that he has no criminal record and can move on with his life.
Astor Legal recently represented a client at Parramatta Local Court who was charged with driving with illicit drug present.
Our client maintained her innocence regarding the presence of cocaine and explained that the drug could have been transferred while being intimate with her partner who was a regular drug user. With a clean criminal record, a stable corporate job, and significant concerns about the impact of a conviction on her future, our client turned to us for support.
We acted quickly, preparing a detailed affidavit with her. We then provided this affidavit along with other material to one of our pharmacological experts. They prepared a report that supported the possibility of drug transfer from our client’s partner.
In addition to this expert opinion, we submitted a comprehensive package of subjective material to the Court, including the client’s affidavit, expert report, employment documents an apology letter and character references from individuals who knew the client personally and professionally.
At court, our Parramatta DUI lawyers made strong submissions advocating for her to receive no conviction.
In a successful result, the Court agreed with our submissions, and no conviction was recorded. Our client left court with a clean record and the opportunity to continue her career and life without the burden of a conviction.
Our client was the leader of a football fan club. He attended games throughout the season along with fellow members of the club.
On the night of the incident, our client attended a local derby game. Supporters from the opposing club followed our client from the stadium to the train station where a brawl took place involving weapons and flares. The incident was captured on CCTV footage which showed our client punching and kicking an opposing fan. Our client also held the opposing fan while the co-accuseds punched and kicked the opposing fan numerous times.
Following the incident, police were able to identify him and he was charged with affray along with approximately 15 other people.
He came to us after consulting a number of other lawyers who advised him he would receive a conviction and potentially be sentenced to jail.
After reviewing the brief of evidence, we took a different view.
First, we drafted an amended facts sheet to minimise our client’s actions and highlighted the significant provocation that took place immediately before the incident.
We then began constructing our client’s subjective case. This involved having him engage in a lengthy course of treatment with a psychologist. We obtained a report from the psychologist which suggested the offending was due to his anxiety and reaction to the provocation. The report also set out the treatment he had engaged in and that he had rehabilitated himself and was unlikely to re-offend.
Finally, we obtained evidence of the impact of a conviction on our client through his employment contract which set out that he would be terminated if he received a criminal conviction.
Our Sydney Criminal Lawyers appeared at Downing Centre Local Court and made submissions seeking a Section 10 for Affray. The Judge expressed significant reluctance throughout the proceedings given the seriousness of the offending and that the co-accuseds had received convictions and some had received jail sentences. Despite this, we were able to persuade the Judge to impose a Conditional Release Order Without Conviction.
Our client and his family were overjoyed with the result.
Our client is a 37-year-old male who resides in the United States of America and was on vacation visiting his friends in Australia.
He was stopped by police and subjected to a random breath test. The blood alcohol reading was 0.08, and was subsequently charged with driving with mid-range PCA. After the offence, our client returned to the USA.
Prior to engaging us he contacted the court seeking leave to appear by audio/visual link. This was refused by the court and he was advised he would be convicted if he did not attend.
Our client then came to us anxious and confused, not knowing what to do.
We first obtained an affidavit from our client clearing outlining the reasons for his inability to appear and why he could not have a criminal conviction against his name. These reasons included being the sole income earner for his family, potentially losing his job, and his 5-year-old daughter being diagnosed with Noonan syndrome, which required intensive care.
We then obtained character references from his friends and family. These set out our client’s background, financial hardship and that the offending was out of character. Further, we assisted him in preparing an apology letter to the court and completing a traffic offenders program.
We tendered these documents to the court and made oral submissions. As a result, our client was successfully excused from attending court in person and could appear via audio/visual link.
Ultimately, despite the magistrate noting the prior issues with our client’s lack of appearance, His Honour was persuaded by our submissions and sentenced our client to a Conditional Release Order without conviction for a period of 10 months.
Our client was overjoyed with the result.
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