Under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court can find a person guilty of a criminal or traffic offence without recording a criminal conviction, if the court thinks proper to do so. This means you may be found guilty of criminal offences and still avoid a permanent entry on your person’s criminal record.
Section 10 is the most lenient sentencing outcome available anywhere in the NSW criminal justice system. It recognises that not every guilty finding warrants a conviction, particularly where the legal and social consequences of recording one would be disproportionate to the offence itself.
If you’re preparing a Section 10 application, speak with an experienced criminal lawyer on our criminal defence team before your hearing date.
The Three Types of Section 10 Orders
| Order | What it means | Conditions |
| s 10(1)(a) Complete Dismissal | Charge dismissed entirely, no conviction recorded | None, no ongoing obligations of any kind |
| s 10(1)(b) Conditional Release Order | No conviction, released on a CRO for up to 2 years | Good behaviour, attend court if required, notify court of address changes |
| s 10(1)(c) Intervention Program | No conviction, required to complete an approved program | Traffic offender course, drug and alcohol counselling, anger management, or mental health treatment |
A Section 10(1)(a) dismissal is the best possible outcome. A Section 10(1)(b) or (c) still leaves you with a clean criminal record but carries ongoing obligations. Note: courts cannot impose punitive conditions such as mandatory donations or community service under these orders.
Whether the court imposes a bond or intervention program, or a bond or rehabilitation program, depends on which issue most needs addressing. A community corrections officer is typically only involved where a program requires supervised attendance; a standard CRO under s 10(1)(b) is usually unsupervised.
What Courts Must Consider
Under Section 10(3), courts must weigh four statutory factors before granting any non-conviction order:
| Factor | What the court looks at |
| Character, antecedents, age, health and mental condition | Your total life circumstances, not merely the absence of prior convictions |
| The trivial nature of the offence | Assessed comparatively against the worst examples of that offence type |
| Extenuating circumstances | Context surrounding the behaviour — stress, mental health, provocation, or whether this was an isolated event |
| Any other proper matter | Employment consequences, immigration status, professional licensing impacts, family responsibilities |
A person’s character, together with their criminal history and any offender’s mental condition, is viewed as a whole rather than in isolation. Section 10 is most readily granted for trivial offences and minor offences assessed against the worst examples of that offence category.
The underlying question is whether recording a conviction is proportionate given who you are, what you did, and what the consequences will be. Courts weigh genuine insight into wrongdoing more heavily than expressions of regret alone. Proactive steps already taken, such as completing counselling or rehabilitation, carry more weight than promises about future behaviour.
What Works in Your Favour
Courts are more likely to grant a Section 10 when:
- You are a first-time offender with no prior convictions
- You entered an early guilty plea demonstrating genuine remorse
- The offence was out of character and not part of a pattern
- You have strong, specific character references from employers or community figures
- Mental health or medical issues contributed to the behaviour, supported by documentation
- You have already taken active steps toward rehabilitation
- A conviction would cause disproportionate professional consequences, loss of a licence, termination of employment, or cancellation of a visa
Evidence that supports a Section 10 application:
- Character references (up to 3, specific rather than generic, on official letterhead)
- Medical or psychological reports from qualified practitioners
- Rehabilitation certificates or program enrolment confirmation
- Employment letters confirming the professional impact of a conviction
- Personal statements demonstrating genuine insight, not merely regret
What Works Against You
Courts are less likely to grant a Section 10 when:
- The offence was planned or premeditated
- There is a pattern of similar offending or prior convictions
- The victim suffered significant harm
- Public interest or deterrence is a strong consideration
- You minimise the conduct or attribute blame to others
Restrictions and Limitations
Section 10 is not available in all circumstances, and remains harder to obtain for certain offences than others:
Repeat traffic offences
A second applicable traffic offence within 5 years under the Road Transport Act 2013 (NSW), s 203 removes the court’s discretion entirely, and mandatory driver licence disqualification will generally follow. Parliament has explicitly legislated this restriction for these traffic matters.
See also: traffic and driving offences.
Drink driving offences
A high-range drink driving offence is eligible for a Section 10 only in “exceedingly rare” circumstances due to strong general deterrence requirements. Lower-range drink driving matters carry somewhat more scope for a lenient penalty, though a period of licence disqualification may still apply even where no conviction is recorded. See: drink driving penalties NSW.
Very serious offences
Courts retain discretion for very serious offences, including assault, actual bodily harm, drug offences such as drug possession or matters where an illicit drug present in a person’s system was alleged, fraud, sexual matters, and aggravated break and enter, but only where exceptional circumstances are established with compelling evidence. The more serious the offence category, the more thorough and convincing submissions and supporting evidence will need to be for the application to succeed. Most minor offences dealt with in the Local Court do not face this heightened threshold.
Key Case Law
In R v Mauger [2012] NSWCCA 51, the NSW Court of Criminal Appeal confirmed that employment consequences are a legitimate consideration under Section 10(3)(d). Where a conviction would result in termination of employment or loss of professional registration, courts can and should factor this into their decision.
Frequently Asked Questions
Will a Section 10 show on my criminal record?
No conviction is recorded under any Section 10 order.
- s 10(1)(a) dismissal: no record at all
- s 10(1)(b) and (c): no conviction recorded, though court appearances may still show on certain background checks
This is different from a spent conviction, which applies where a conviction was recorded but later becomes spent after a set period under separate legislation. A Section 10 order means no conviction is recorded in the first place, so the spent conviction scheme has no bearing on the outcome.
Do I need to plead guilty to receive a Section 10?
No, courts can grant a Section 10 after a defended hearing where guilt has been established. However, an early guilty plea is one of the strongest indicators of genuine remorse and often strengthens the application.
Can I get a Section 10 with prior convictions?
Yes, though it is more difficult. Section 10 remains available for certain offences even with prior convictions. Courts consider the gap between offences and whether the current matter represents a continuing pattern of behaviour.
What happens if I breach a Section 10(1)(b) conditional release order?
The court can:
- Revoke the order
- Record a conviction for the original offence
- Impose further penalties, and further offences committed during the CRO period will also count against you
Will I lose demerit points for a traffic-related Section 10?
No. Under the Road Transport Act 2013 (NSW), s 31(4), no demerit points are recorded when a Section 10 order is made.
Can I travel overseas after a Section 10?
Generally yes, as no conviction is recorded. Some countries require disclosure of any court proceedings regardless of outcome; check destination-specific entry requirements before travelling.
Is Section 10 available for Commonwealth offences?
Yes. An equivalent provision applies under section 19B of the Crimes Act 1914 (Cth) for federal offences.
Can employers find out about a Section 10 order? Generally no, as no conviction is recorded. Some specialist background checks may reveal court appearances regardless of outcome.
Steps to Take Before Your Hearing
- Engage a specialist criminal defence lawyer as early as possible
- Begin gathering character references from employers, community leaders, or professionals
- Document your personal circumstances in writing
- Obtain medical evidence if health or mental health issues were relevant to the offending
- Begin rehabilitation steps immediately, counselling or relevant programs
- File all supporting documentation at least one week before your hearing date
Speak With Our Criminal Defence Team
A Section 10 application depends heavily on the quality of evidence presented and how the application is argued. O’Brien Criminal & Civil Solicitors has extensive experience representing clients facing criminal charges and Section 10 applications across NSW.
Request your free consultation via the form below, or call (02) 9261 4281.
