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 proceeding to a 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 two ways a court can do this under section 10(1). It can dismiss the charge outright with no conditions attached, under section 10(1)(a). Or it can discharge the person without conviction on a Conditional Release Order (CRO), under section 10(1)(b), which is the same order created by section 9 of the Act, just made here without a conviction being recorded. Separately, under section 10A, a court can record a conviction but impose no further penalty, which is a different outcome again, since a conviction is recorded in that case.

The section 10(1)(b) / CRO route is what used to be called a "good behaviour bond" granted without conviction. That terminology no longer reflects the law: good behaviour bonds were abolished when the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 commenced on 24 September 2018, and the CRO took their place. Some older articles and even some court documents still use "bond" loosely, but the correct current term is a Conditional Release Order.

A section 10 is not available for every offence. Some of the most serious charges are excluded by legislation, and for other offences it has become harder to obtain following changes to the law over recent years. Where it is legally available, the decision is entirely at the discretion of the magistrate or judge, guided by the factors set out in section 10(3): your age, character and any prior record (antecedents), your health and mental condition, the trivial nature of the offence, and any extenuating circumstances in which it was committed.

This means a section 10 is never guaranteed, even for a first offence or a relatively minor charge. Whether it is realistically available for your specific charge, and how strong your case for one is, are among the first things worth discussing with a lawyer before you enter a plea.

Beyond the section 10(3) factors themselves, 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. Police or the prosecuting authority can also make submissions opposing a non-conviction outcome, particularly for more serious matters, and the magistrate weighs those submissions against the material put forward in support of the application.

A CRO granted under section 10(1)(b) requires you to be of good behaviour for a set period of up to two years, and can include other conditions depending on the offence, such as supervision or a treatment program. If you are convicted of a further offence during that period, or otherwise fail to comply with the order, the court dealing with the breach can take no action, vary the conditions, or revoke the order and re-sentence you for the original offence as if the CRO had never been made.

Where the order is revoked, the court re-sentencing you can, at that point, decide to record a conviction after all. This means the benefit of a section 10 is not necessarily locked in until the full CRO period has passed without a further breach, so genuine compliance for the whole order matters just as much as the outcome achieved at the original hearing.