Dismissal of criminal charges by way of Section 10 – how common are they really?

Quite often when people are charged by Police and see a lawyer for legal advice one of their first questions is “Can I get a Section 10 for this offence?”

What is a Section 10 dismissal?

A Section 10 dismissal refers to Section 10(1)(a) of the Crimes Sentencing Procedure Act, 1999 (“the Act”) whereby a Court can find an offence proven but nevertheless discharge that person without proceeding to a conviction.

Obtaining a Section 10 in respect of minor offences is therefore the most sought after outcome by defendants in the Local Court, especially for those charged with minor traffic offences.

Section 10 of the Act was initially introduced in order to allow the Courts to prevent injustices occurring in circumstances where even though an offence has been committed, the extenuating circumstances make it inappropriate for a Court to punish the defendant.

Such extenuating circumstances may include:-

  1. the person’s character, age, health, and whether they have any previous convictions or criminal charges;
  2. the nature of the offence;
  3. the circumstances in which the offence was committed; and
  4. any other matter that the Court thinks appropriate in the circumstances.

In more recent times there seems to be a misconception among the general public that every person charged with a criminal offence is entitled to a Section 10 dismissal for their first offence. This is not correct and in fact, Local Court Magistrates are becoming less likely to award Section 10 dismissals for a number of offences.

According to statistics from the Judicial Commission’s 2012 report, less than 10% of criminal law matters dealt with before NSW Local Courts were dealt with by way of a Section 10 dismissal.

However, some ways of increasing your chances of getting a Section 10 dismissal are:-

  • Producing evidence to show changes in your circumstances at the time the offence was committed compared with your circumstances at the time of being sentenced by the Court, e.g. medical evidence to show if you were suffering from some type of undiagnosed condition at the time;
  • Providing detailed evidence of the detrimental effects that a conviction could have on both you and/or your family, such as evidence that you will lose your employment meaning no earning capacity to provide for your family, or because a conviction will mean a certain loss of licence for people who rely heavily on their licence for employment (e.g. courier driver);
  • Evidence that you are otherwise a person of good character and don’t normally commit offences of this nature. For this type of evidence you will need character references from people in the community that have known you for a long time and who can vouch for your good character.

It is important to always seek legal advice when you are charged with a criminal offence. If you would like advice in relation to any criminal charge, contact Brazel Moore Lawyers on (02) 4324 7699 to speak to an experienced Lawyer today.