Time and time again when working in criminal law I have had clients approach me and say “mate, can’t you just get me a section 10?”
This mystical section of the Crimes (Sentencing and Procedure) Act (the “Act”) seems to be one of the most well-known sections of legislation amongst the laymen of NSW, but also one of the most poorly understood.
By way of background, when you have been found guilty of a criminal offence a Court will normally issue a penalty and record a conviction against the offender. However the Court has the option to issue a sentence pursuant to section 10(1) of the Act which allows the defendant to be found guilty but discharged without recording a conviction. The Court can do this and impose no further conditions, impose a good behaviour bond for a period of up to two years, or on the condition that the defendant attend an intervention program.
The Court will only issue a sentence pursuant to section 10 for relatively minor offences and will consider the following factors when deciding whether a section 10 is appropriate:
(a) The person’s character, antecedents, age, health and mental condition,
(b) The trivial nature of the offence,
(c) The extenuating circumstances in which the offence was committed,
(d) Any other matter that the court thinks proper to consider.
The more serious your offence is, the less likely you are to receive a section 10 as sentencing considerations such as general deterrence and denunciation need to be implemented.
It is most common to see first offenders who have committed trivial offences enjoy the grace of section 10. It is becoming extremely uncommon to see section 10 used in common offences such as mid or high range PCA driving offences, affray or intentionally or recklessly damaging property. The Court will of course determine whether extenuating circumstances make the provisions of section 10 more applicable to you.
It is important to seek legal advice from a practitioner who regularly conducts matters similar to yours. This practitioner will be able to advise you on recent trends in sentencing along with any relevant factors that should be presented to the Court to maximise your chances of being sentenced pursuant to section 10. It is important to remember however that ultimately the Court has discretion to apply or not apply section 10 as it sees fit, and therefore it cannot be guaranteed that you will be lucky enough to benefit from the section.
Finally, it is important to note that as most sentences under section 10 are accompanied by a good behaviour bond, if you breach this bond you will be brought back before the Court to be re-sentenced for that offence.