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Section 10 refers to section 10 of the Crimes (Sentencing Procedure) Act 1999. Section allows a court authority to find a defendant guilty of an offence but not record a conviction for that offence. This is a discretionary power that exists for criminal or traffic offence matters involving extenuating circumstances.
If you have been charged with a matter which you believe may fall within a section 10 exception then you should seek legal advice to be sure. Jameson Law has a team of expert criminal lawyers able and willing to assist you with all your criminal law needs.
What Is Section 10?
Section 10 allows an exemption within court proceedings and provides authority for the court to record a non-conviction despite determining a guilty verdict. This means that a criminal offence can be proven beyond a reasonable doubt but it will not be recorded against the individual’s criminal record.
Section 10 is purely discretionary however and there are clear identifying factors that need to be shown before the court will consider applying it. These factors include not only the nature of the offence but whether the defendant has genuine remorse for their actions, along with the person’s character, etc.
There are three different types of section 10 orders that can be applied if the situation warrants, a dismissal of the charges, an order discharging the individual under a conditional release order or a discharge with a requirement to attend an intervention program.
Dismissal Of Charges
One of the options the court has under section 10 is to dismiss the charges and record a non-conviction. A simple dismissal of charges will not include any conditions. This order is only made if the court considers that the offending is of such a trivial nature that it warrants leniency.
This may apply to driving offences, low-level possession of drug charges, etc. Certain offences such as assault or grievous bodily harm for example are not subject to release orders due to the nature of the offending.
Conditional Release Orders
The court is able to make a conditional release order which allows an individual an alternative to a term of imprisonment. If the court thinks proper then this option can be used in circumstances involving extenuating circumstances. This type of order is utilized for less serious criminal and traffic offences and can apply to those with a limited criminal history.
A conditional release order was introduced to replace the previous measure of a good behaviour bond. This order can be imposed with or without a conviction. It is a courtesy the court extends as a nominal punishment.
The conditions that can be imposed by the court include rehabilitation for drugs, alcohol, mental conditions, etc. An intervention plan is imposed by the court, depending on the nature of the offence, to try and rehabilitate instead of punish. If rehabilitation is successful then logically no further offences will be committed.
One of the most challenging considerations for a court is what stance to take in relation to an alleged mental condition. An individual suffering from a diagnosed mental condition can fall anywhere on the scale ranging from severe to mild but rehabilitation may not prevent the offending.
Drug and alcohol use are somewhat different in that it can be easier to rehabilitate from the use and there are clear markers that indicate whether rehabilitation is successful. Those same markers do not apply to mental health. There is also an inherent difficulty with medical professionals agreeing to a diagnosis as many people will present with symptoms that fit different conditions.
Just because there is a reason for rehabilitation to be looked at over a harsher sentence does not mean it will be.
Intervention Programs
An intervention or rehabilitation program is used as a rehabilitative means of reducing criminal and drug behaviour. If the court imposes this type of order it is because they consider a better outcome will result from such an order. This is a lenient outcome for matters involving a prohibited drug or alcohol.
The individual can be required to attend a drug or alcohol rehabilitation program. The offender’s mental condition may also be of relevance and rehabilitation may be required. The specific circumstances of the offending are relevant to the conditions.
No matter the order imposed, the relevance of section 10 is that it provides a lenient sentence to those deemed deserving of a second chance, whether that be traffic matters, drug matters, etc. A section 10 order is able to protect both current and future employment as well as other activities, and family opportunities.
Why Does The Section 10 Exemption Exist?
The Section 10 exemption exists because there is a basic understanding that mistakes can be made. A recorded criminal conviction can affect an individual’s job prospects, family circumstances, children’s activities etc. The courts recognize that a second chance can be given in certain circumstances and legislation has built in this principle.
Sentencing procedure previously saw this type of exemption relate to a good behaviour bond. Good behaviour bonds were utilized in similar circumstances when it was deemed that a person found guilty of a criminal offence deserved and was eligible for a lenient sentence.
The Crimes Sentencing Procedure Act 1999, as with all legislation, frequently falls under review so that the court can continue to work towards a goal of individual and community deterrence from criminal offending.
Can Section 10 Apply To A Guilty Plea?
If a person pleads guilty to a criminal or traffic offence then the court can impose a section 10 order. A plea of guilty before the court can actually go a ways to convincing the court that you have remorse for your actions despite the legal and social consequences.
If a section 10 order cannot be made then there are various other sentencing options available to the court however most will involve recording a criminal conviction. The court can impose the following;
A monetary penalty;
Suspended Sentence;
Term of imprisonment.
The above are the most common outcomes when a conditional release order cannot be utilized.
When Will A Section 10 Order Not Be Considered?
A section 10 order will not be considered in the case of very serious offences (such as criminal offences involving actual bodily harm) because the punishment would far exceed section 10. Certain traffic offences for example have a mandatory maximum penalty which must be imposed in certain circumstances.
Excessive or inappropriate use of force is another example whereby non-conditional or conditional dismissal may not be considered. A proven track record of criminal behaviour likewise may suggest that the individual has not learnt their lesson from previous court intervention. If a court dismisses a matter, they do so under the hope that there will be no further offences committed.
What Happens If A Conditional Release Order Is Breached?
If a conditional release order is breached then the matter can be brought before the court to be re sentenced. The court has the option of reimposing the conditional release order, imposing a new sentence or amending the terms of the conditional release order already imposed. A criminal conviction can be the outcome if the court thinks it proper to re-sentence the matter.
For example, if the defendant has committed a traffic offence and then breached a conditional discharge order they may have their sentence reconsidered and the court could impose an extended licence disqualification. A breach will undermine the confidence the court previously had in the good character of the defendant.
What Is A Spent Conviction?
If you have received a criminal conviction and subsequently hold a criminal record there are limited ways under which a conviction can be removed. Depending on the offence, some will have a lapsing time period meaning that after a certain period of time, the conviction is considered spent.
You would need to seek legal advice to determine whether your offences fall within that category but ordinarily, criminal offences which are either violent or serious will not become spent. This means that if an individual holds a criminal record, they will do so for life.
Certain applications can be made for an individual’s criminal record to be expunged however these applications are difficult to argue and there is a high threshold for the court to consider expunging the record.
You should always seek appropriate legal advice regarding criminal convictions or prior criminal history. If you are found guilty and the court imposes a sentence, you need to be prepared to hold a criminal record indefinitely.
