What's a Section 10? Criminal records in NSW and the natures of Section 10 of the Crimes (Sentencing Procedure) Act 1999

This article first appeared in SX News in 2014 

Those in the know (and even those in the unknown) are aware of ‘Section 10s’.  You’ll often hear at a house party, “Marty was caught with 8 pills and got a Section 10!”  

The real question for Marty is what kind of Section 10 did he get? It’s an important question because employers are using criminal history checks more and more. Obtaining a Section 10 may not mean avoiding a criminal record, depending on the type of Section 10.

WHAT IS A SECTION 10?

A “Section 10” refers to an order of the Local, District or Supreme Court under Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Pursuant to that section of the Act, the respective court has the discretion to dismiss certain criminal charges, including drug possession charges, without proceeding to a conviction. Section 10s require a plea of guilty and are consequently the best possible outcome for an offender who pleads guilty.

THE VARYING DEGREE OF SECTION 10S

What is commonly misunderstood by the community is that Section 10s are not all the same (even lawyers and magistrates have been known to misunderstand them).  

Some Section 10s attach to good behaviour bonds while other Section 10s require the accused to attend intervention programs like drug and alcohol counselling. But those are just the superficial differences.

The darker side to Section 10s is the fact that while they are thought of in terms of non-conviction and charge dismissal, some Section 10s result in a criminal record for offenders.  That’s because under separate criminal records legislation, a Section 10 order is considered a “conviction” for the purposes of recording records on offenders’ criminal files.

The only kind of Section 10 that will not result in a criminal record is a Section 10(1)(a) whereby no good behaviour bond, condition or intervention program is ordered by the court and the offender is free of any further obligation. Criminal records laws still treat the order as a conviction but upon the making of the order, the “conviction” becomes spent (non-disclosable).

Any other kind of Section 10, including a Section 10(1)(b) good behaviour bond or a Section 10(1)(c) intervention program, will result in a criminal record for the accused, for the duration of the condition attaching to the order. In other words, a good behaviour bond of 12 months will result in the offender having a criminal record for the duration of the bond.

My firm recently ran a District Court appeal on this technical issue. Our client had received a good behaviour bond of 8 months and was regularly subjected to criminal record checks by his ostensibly over-cautious employer. He held a senior position in his company and couldn’t risk the embarrassment of a drug charge getting out. On appeal in the District Court we succeeded in obtaining a Section 10(1)(a) for our client, meaning his charge was immediately dismissed and his “conviction” under criminal records legislation became immediately non-disclosable.  

BUT REMEMBER ...

What is important to remember is that while the judge was made aware of the criminal record consequences of Section 10 good behaviour bonds and understood my submissions, he nevertheless wanted arguments from me as to why the accused should not be on a good behaviour bond. In other words, there will be instances where the court determines that despite the criminal record consequences of a particular Section 10, a good behaviour bond is nevertheless necessary to supervise the offender. It is up to the offender’s lawyer to make the respective submissions.

Party safe and if you get into trouble with the police, think carefully about your legal options.

Disclaimer: This article is of a general nature. You should obtain specific legal advice relevant to your facts and situation.