Section 10 in NSW: the complete guide.

A section 10 is the closest thing the NSW Local Court has to a clean slate. If granted, you are found guilty of the offence, but no conviction is recorded against you. No fine. No disqualification (in most cases). No criminal record entry that an ordinary working-with-children check or police check will surface. This note explains what section 10 actually is, the three orders the section now allows, the factors the court considers, what an application looks like in practice, and the offences where it is realistically available.

The legal hook: section 10 of the Crimes (Sentencing Procedure) Act 1999

Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) gives the court a discretion to find a person guilty of an offence without proceeding to a conviction. The section sets out three orders the court can make:

• Section 10(1)(a) · an order directing that the relevant charge be dismissed.
• Section 10(1)(b) · an order discharging the person under a conditional release order, without proceeding to a conviction. The CRO operates as a good-behaviour bond for a period the court fixes (up to two years).
• Section 10(1)(c) · an order discharging the person on condition that they enter into an agreement to participate in an intervention program (a drug, alcohol, or mental-health treatment program), and to comply with any intervention plan arising out of the program.

All three orders share the same fundamental consequence: no conviction is recorded. The difference between them is what, if anything, the person has to do after the order.

The 2018 reforms: what changed and what survived

The sentencing options framework in NSW was significantly reorganised on 24 September 2018 by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017. The "section 10 bond" of the previous regime was replaced with the section 10(1)(b) CRO. The substance did not change much; the language did. The court still finds the person guilty, still records no conviction, and still fixes a period of good behaviour. Older case law on "section 10 bonds" remains useful authority for the current section 10(1)(b) discretion, with the change in form understood.

The mandatory considerations: section 10(3)

In deciding whether to make an order under section 10(1), the court is required to have regard to:

1. the person's character, antecedents, age, health and mental condition;
2. the trivial nature of the offence;
3. the extenuating circumstances in which the offence was committed; and
4. any other matter that the court thinks proper to consider.

These four are not gateways. The court does not have to find that the offence was trivial, or that there were extenuating circumstances, before it can make the order. They are factors the court weighs alongside everything else. Trivial offences with weak subjective material rarely attract section 10; serious offences with exceptional subjective material can.

What the court is actually weighing

Section 10 is a discretion, exercised on the facts of the matter. The cases identify a familiar set of inputs. Two questions sit at the centre of most applications.

Is a conviction itself a real consequence?

Section 10 exists for cases where the recording of a conviction would impose a punishment disproportionate to the conduct. The point is most concrete in matters where the person's employment, professional accreditation, immigration status, or working-with-children check is exposed. A conviction for a low-range PCA on a 22-year-old apprentice is one thing. The same conviction on a registered nurse with a 25-year career and a working-with-children check is a different proposition. The court is told the difference.

Is the person unlikely to reoffend?

A section 10 outcome is, in substance, a vote of confidence that the offence will not be repeated. Character references, treatment, a contrition statement, and the absence of prior matters all feed this. So does completion of a recognised remediation program before the sentence date.

What helps a section 10 application succeed

Six items are the bones of a strong application. Most successful applications include at least four of them.

1. Three or four character references, dated within the past month, addressed "To the Sentencing Magistrate". They must say that the referee knows of the charge and the conviction risk, and address the person's character against that knowledge. References that read like LinkedIn endorsements help no one.
2. A contrition statement, in the person's own words. Short. Specific. No template language. The court reads dozens of these a week and recognises one written by a lawyer.
3. Completion of a recognised intervention or remediation program. For PCA matters, the Traffic Offender Intervention Program. For drug-related matters, the SMART Recovery program or another AOD intervention. For violence matters, an anger management or men's behaviour change program. Completion before the sentence date is treated as evidence of insight.
4. A treating doctor's letter where mental health, addiction, or grief is part of the picture. The letter should be on practice letterhead, signed, and addressed to the court.
5. Evidence of the collateral consequence a conviction would impose. A letter from the employer, a copy of the professional accreditation rules, a statement from the migration agent. Section 10 turns on the disproportion between offence and consequence; show the consequence.
6. A clean record (or a clearly remote one). Section 10 is rare where there is a prior conviction for a related offence in the past five years. A clean record across the past decade is the strongest signal an application can carry.

Where section 10 is realistically available

The realistic prospects vary by offence and by jurisdiction. The following are working positions, not guarantees.

Strong prospects. First-offence low-range PCA with a strong subjective case. First-offence drug driving with TOIP or AOD intervention completed. First-offence common assault with no injury and no DV element. First-offence shoplifting at a low value. First-offence possession (small quantity) of a prohibited drug.

Moderate prospects. Mid-range PCA with a reading at the low end and a strong subjective case. AOABH at the lowest end of the band (a single bruise). Contravene AVO where the breach was a single inadvertent contact and there was no violence.

Limited prospects. High-range PCA at the bottom of the band (0.15 to 0.17) with exceptional subjective material. Second-offence PCA matters. AOABH with real injury.

Not realistic. Second-offence high-range PCA. Drug supply. Any matter committed for trial. Any matter where the act was an act of violence in a DV context with serious injury.

The mistakes that sink section 10 applications

Four failure modes recur in the matters that come our way after they have gone wrong elsewhere:

Generic references. Three references that read identically and do not mention the charge or the conviction risk are worse than no references at all.

No remediation. Turning up to court without TOIP, without counselling, without anything that shows the person did anything between the offence and the sentence date.

Failure to show the collateral consequence. The court cannot weigh the disproportion between offence and conviction unless someone tells it what the conviction would cost.

An application that is run as if it is a right. Section 10 is a discretion. Applications run on the assumption that the magistrate will agree have a lower success rate than applications run on the assumption that the magistrate will need to be persuaded.

If section 10 is refused

A refusal in the Local Court is not the end. A severity appeal lies to the District Court within 28 days of sentence (Crimes (Appeal and Review) Act 2001). The District Court hears the matter de novo; the application can be re-run with new material. We routinely run severity appeals where the Local Court application turned on a single missing item that has since been remedied.

One last note

Section 10 is the lightest sentence in the criminal law and is granted carefully. The court is not punishing the person; it is choosing not to add a conviction to a finding of guilt. A good application gives the court a reason to make that choice. The cases that succeed are the cases where the lawyer has done the work that allows the bench to do its work.

This note is general information about New South Wales sentencing law and is not legal advice for any particular case. The Crimes (Sentencing Procedure) Act and the case law change. For advice on your matter, contact us through our contact page or phone 0421 717 019.

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