Section 10 Dismissals: Avoiding a Criminal Conviction

Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court to find a person guilty of an offence, or accept their guilty plea, without recording a criminal conviction. In practice, this is the outcome most people mean when they ask their lawyer to "get me a section 10" — it is the difference between walking out of court with a clean criminal record and walking out with a conviction that can show up on background checks for years to come.

There are, in effect, a few different versions of this outcome available to the court. The matter can be dismissed outright with no conditions attached, released on a conditional release order (CRO) for a period the court sets, or, in some situations, dealt with under section 10A — where a conviction is recorded but no further penalty is imposed. Each has different practical consequences, particularly if you are charged with a further offence during any conditional period.

A section 10 is not available for every offence — some of the most serious charges are excluded by legislation, and for other offences (such as some drink driving categories) it has become harder to obtain following changes to the law. Where it is legally available, the decision is entirely at the discretion of the Magistrate or Judge, who must weigh factors such as the character, age and mental condition of the offender, the trivial nature of the offence, and any extenuating circumstances.

This means a section 10 is never guaranteed, even for a first offence or a relatively minor charge. What tends to matter most in practice is the strength and specificity of the material put before the court — vague assurances of good character carry far less weight than a properly prepared case addressing why this particular outcome is appropriate for this particular person and offence.

Courts look for evidence that the offence was genuinely out of character and unlikely to be repeated. This is usually built from a combination of a clean or largely clean criminal and traffic record, strong and specific character references from people who know you well, and — where relevant to the offence — evidence of steps already taken, such as counselling, a relevant course, or restitution to any victim.

Timing and preparation both matter. Courts respond far better to a considered plea and a properly assembled set of references and supporting material than to a rushed application put together on the morning of the hearing. Because the discretion is broad and fact-specific, getting advice on how strong your particular case is — and what else could realistically be done to strengthen it — before you enter a plea is usually the single most valuable step.

Where a section 10 is granted with a conditional release order attached, the order will typically require you to be of good behaviour for a set period, and may include other conditions depending on the offence. If you are convicted of a further offence during that period, the court dealing with the original matter can, in some circumstances, revisit the original offence and record a conviction after all — meaning the benefit of the section 10 is not necessarily locked in until the conditional period has fully passed.