By Tomas Atkins

The simple answer is yes, the Court can find you guilty but decide that no conviction or further punishment is necessary.

Many clients assume that once they enter a plea of guilty, the Court will simply look at the legislation and then order a conviction and penalty. Fortunately, this is not the case.

Pleading guilty is an acceptance by you that you have committed the offence with which you have been charged and that you agree with the FACTS summary in relation to that offence. It is for this reason that before entering a plea, it is vital to ensure that you and your legal representative thoroughly review the Court Attendance Notice and FACTS for any errors or areas of dispute.

Once you have entered a plea of guilty, you (or your legal representative on your behalf) are given the opportunity to undertake what is termed a ‘plea in mitigation’. This is an opportunity for you to provide information that will assist the Court in determining an appropriate sentence. This could be given in writing, orally or both. Criminal offences often offer a wide range of discretion to the presiding Magistrate when determining a just outcome. In the Local Court of NSW, it is likely that you will be able to, in your plea in mitigation, seek that the Court order what is colloquially called a ‘Section 10’.

A ‘Section 10’ gains its name as it is contained in section 10 of the Crimes (Sentencing & Procedure) Act 1999 (NSW). A Section 10 allows the Court to discharge the case without recording a criminal conviction. This means that although you have entered a plea of guilty, no conviction is recorded, no penalty is ordered and you avoid a criminal record for the offence.

There are three types of Section 10 orders:

1.                   “an order directing that the relevant charge be dismissed.” [1]

The Court confirms the finding of guilt but dismisses the matter without any conditions imposed upon the offender.

2.                   “an order discharging the person under a conditional release order…”[2]

This is the most common where the court imposes conditions upon you.

The conditions apply for up to 2 years and usually include:

•             Notify the Court of any change in residential address; and

•             A time period of good behaviour (including no traffic offences).

If you do not breach any conditions imposed by the Court for that period, the matter you were before the Court for is dismissed. But, if you breach the conditions, it is likely that you will be resentenced and convicted. 

3.                   “an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.”[3]

Similar to the above but with conditions aimed towards a rehabilitation program for drugs or alcohol.

When determining whether a section 10 is appropriate, the Court must consider:

1.            The person’s age, character, health, and mental condition,

2.            The trivial nature of the offence,

3.            The extenuating circumstances in which the offence was committed,

4.            Any other matter the Court thinks proper to consider.[4]

Any type of Section 10 being ordered is rare and difficult to achieve and so it is important to understand the Court process and prepare accurate and detailed evidence which supports your case.

Disclaimer

The above does not constitute legal advice, but is information which may be of general interest. Beswick Lynch Lawyers will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.

References:

[1] Crimes (Sentencing & Procedure) Act 1999 (NSW) s10(1)(a)

[2] Crimes (Sentencing & Procedure) Act 1999 (NSW) s10(1)(b)

[3] Crimes (Sentencing & Procedure) Act 1999 (NSW) s10(1)(c)

[4] Crimes (Sentencing & Procedure) Act 1999 (NSW) s10(3)