Does A Section 10 Show On A Police Check In NSW?

Does A Section 10 Show On A Police Check In NSW?

Does A Section 10 Show On A Police Check In NSW

A section 10 order in New South Wales (NSW) is a dismissal of charges without a criminal record. It generally won’t show up on a police check, but there are exceptions, such as certain employment and licensing checks.

Section 10 of the Crimes Act allows a court to dismiss a charge and release you without recording a conviction, which means the offence will not appear on a police check. Find out more about what happens when you receive a section 10 dismissal, what does it involve and does the offence show on a police check? Let’s take a closer look.

What is A Section 10 Dismissal?

A criminal record can have devastating lifelong implications for a person and their family. As well as potentially losing employment, driver’s licence or inability to travel for work, the negative social consequences can be even more detrimental and disastrous.

A criminal history can impact all areas of a person’s life, and avoiding being charged for a crime under a section 10 dismissal can put a convicted person back on the right path.

In NSW, under the Sentencing Procedure Act 1999, the court can dismiss a matter, even when a person is found guilty of a criminal offence. The part of the Crimes Act legislation that deals with dismissals is under section 10, hence the reason for the term “section 10 dismissal”. The legislation allows an individual to avoid a criminal conviction and, in some cases, receive no further penalty or conditions.

Often, the judge will consider whether section 10 can be imposed for offences dealt with in a local court. This may be the case for first time offenders of a minor criminal offence, such as drunk and disorderly, common assault or minor traffic offences.

The orders have different sections, and the conditions will vary depending on which provisions the court decides to impose.

What are the Different Types Of Section 10 Orders?

Under section 10 of the Crimes Sentencing Procedure Act, the court can dismiss a charge. The legislation states the three types of orders: dismissing a charge, discharging a person under conditional release or imposing an intervention program.

Section 10 (1)(a)

The offender is found guilty of the crime, but the charge is dismissed, and no conviction or conditions are recorded.

Section 10 (1)(b)

The offender is found guilty of the crime, and no conviction is recorded. Still, the court will impose a conditional release order (good behaviour bond) for up to two years.

A conditional release order (CRO) can include various conditions such as:

  • Maintain good behaviour
  • Attend court as requested
  • Notify the court of any address changes
  • Do not commit any further offences
  • Be supervised by a community corrections officer
  • Attend a rehabilitation or treatment program

The matter is dismissed if a person does not breach any conditions during their bond period.

Section 10 (1)(c)

The offender is found guilty of the crime, and no conviction is recorded. Still, they must participate in an intervention program, such as a traffic offenders intervention program or an alcohol rehabilitation program or treatment.

The purpose of the intervention plan is to reduce the likelihood of future offending behaviour.

When Can A Section 10 Dismissal Be Granted?

There are specific factors that a court will consider when determining if a case is suitable for dismissal. Section 10 of the Crimes Sentencing Procedure Act 1999 permits the court not to convict a person if the court finds they meet the requirements.

When appropriate, the judge can request that a conditional release order or good behaviour bond be put in place to ensure that the offender complies with specified conditions.

A court will consider the legal and social consequences, as a conviction may cause more punishment than is appropriate, particularly for trivial offences.

The factors that the court considers include:

The Nature Of The Offence

The nature of an offence means whether the crime is trivial or severe. The trivial nature of the offence is determined by considering the offence and circumstances surrounding it. First time offenders, for example, may have their charges dismissed under certain circumstances to maintain their reputation.

The Offenders Age And Health

Criminal cases vary depending on specific circumstances, and a court must consider the offender’s age and health and the offence’s particulars.

Young offenders are immature and, therefore, may often lack the insight, judgement or self-control an adult possesses. They may not understand the consequences of their actions and make rash decisions.

With elderly offenders, the court must consider whether a criminal charge will result in the offender spending the remainder of their lives in custody. It does not warrant leniency, but a judge will consider other considerations before they impose penalties.

A court may exercise compassion for offenders who have ill health, particularly if they do not have long to live or if imprisonment would be particularly onerous.

The Offender’s Mental Condition

A mental condition such as bipolar, autism, schizophrenia or depression prevents an individual from appreciating the consequences of their actions and may invoke the court to impose a section 10. The court will also consider the offender’s mental condition and personal circumstances at the time of the incident.

The Person’s Character

If the convicted person has a good character and does not usually commit crimes of this nature, providing personal character references can substantiate their claims. Describing the guilty person’s good nature, extenuating circumstances that lead to the crime being committed and remorse that has occurred since committing the crime can also benefit. Dismissal of charges for first time offenders can help maintain their character.

Circumstances Surrounding The Offence

The court must consider extenuating circumstances to offer further explanation as to why the crime occurred. An example could be; a traffic offence where the accused transported a family member to a hospital and was required to speed.

A lawyer can explain their clients’ circumstances at the time of the crime and any subsequent changes to improve conditions, i.e. enrolling in an alcohol rehabilitation program or receiving treatment for a mental condition post-sentencing.

Witnesses may attend court to provide evidence or submit an affidavit.

Any Other Matter The Court Thinks Proper

There are many sentencing factors that a judge or magistrate must consider when passing a sentence. Each case has specific circumstances and matters that a local court must consider. The penalty imposed must be appropriate for the offence committed and consider all relevant matters pertaining to the case.

How Can A Lawyer Persuade A Court To Grant A Section 10?

A lawyer can request section 10 and should provide relevant material to support their client’s claim. They must present detailed evidence of character, circumstance and limitations, a persuasive argument, and supporting material to accompany the submission. The more information supplied to explain the reason for the offence, the more leniency that may be shown, particularly if the matter is trivial.

Will A Section 10 Appear On A Police Check?

The Criminal Records Act 1991 states that a section 10 dismissal will not appear on a criminal check unless there is an intervention order or good behaviour bond period. This means that the criminal conviction will remain on the person’s record for the bond’s duration, which could be up to two years.

A person doesn’t need to disclose any spent conviction to their prospective employer or others as long as the bond has expired.

When someone gives evidence in court, they must disclose the information.

It may impact employment opportunities if a person is looking for roles as a police officer, teacher, prison officer or within the judicial system, as it will need to be disclosed in these circumstances.

There are some exceptions when section 10 will show on a police check, such as when submitting an international visa application.

What Are The Benefits Of Receiving A Section 10?

A conviction can affect several aspects of a person’s life. It can affect their job, travel, finances and personal well being. Having a criminal record can make life more difficult and stressful.

A criminal record can affect your reputation in the community and can have devastating legal and social ramifications. When convicted, you would have a criminal record for ten years.

The benefits of receiving a section 10 can be substantial:

  • The most immediate benefit of receiving a section 10 or good behaviour bond is that the offence will not be recorded on a person’s criminal record.
  • For traffic offences, no demerit points will be imposed.
  • No other penalties will be given, including a fine, community service or imprisonment.
  • An individual does not have to disclose their conviction to any other person, which can be particularly advantageous when seeking new employment. Criminal history checks are required for most employers as a part of their recruitment process.
  • A criminal conviction can restrict a person’s ability to travel overseas, and they may be denied entry to certain countries, which could affect their ability to keep their current job.
  • If an individual’s job requires a current driver’s licence, maintaining a clear record can help avoid loss of income or employment.
  • When someone has a good character and is a first offender, avoiding criminal convictions can help make things easier and maintain their reputation.
  • A criminal history may affect an individual’s ability to adopt or foster children in the future.

What Happens If A Section 10 Order Is Breached?

When receiving a section 10 order, the conditions mustn’t be breached, or if a person fails to comply, they may be required to go to court. Depending on the circumstances, the court may not take action, vary the existing conditions, or revoke the order and impose a harsher penalty, including imprisonment. If a person is sentenced again for the same offence, they risk receiving a conviction and being charged the maximum penalty.

Summary

A criminal conviction can affect several aspects of a person’s life. It can affect their job, travel, finances and personal well being. Criminal records can make life more difficult and stressful.

There are many benefits to being granted a section 10 dismissal. The most immediate benefit is that the offence will not be recorded on a person’s criminal record, which can be particularly advantageous when seeking new employment. For a traffic offence, no demerit points will be imposed.

A court will consider the legal and social consequences, as a conviction may cause more punishment than is appropriate, particularly for trivial offences.

When granting a section 10, the court will need to consider; the nature of the offence, the age, health and character of the offender, the offender’s mental state and any extenuating circumstances surrounding the crime.

They may be released with no conditions, or the court may impose a conditional release order / good behaviour bond or participate in an intervention program.

When dealing with criminal law matters, people should seek legal advice from experienced lawyers.

FAQs

1. What Does An Australian National Police Check Show?

Answer: A criminal record check summarises a person’s criminal offences in Australia. It records their criminal history, pending charges and court proceedings and shows any convictions, current good behaviour bonds and orders. Employers generally use it to help make an informed decision about a person’s suitability for a role within their organisation.

If a person pleads guilty to a crime but has received a section 10 order, the offence will not be recorded on their record or shown on a police check.

2. What Is A Section 10 Good Behaviour Bond?

Answer: There are three types of section 10 orders; one includes a conditional release order or good behaviour bond. The offence will be dismissed by the court without recording a conviction, but a conditional release order will be imposed for a maximum period of two years. A person will be released from custody with conditions that they must comply with, which may include:

  • Appearing in court as requested
  • Do not commit any other offences
  • Participate in a rehabilitation program or intervention plan
  • Be supervised by a community corrections officer
  • Notify the court of any address change

3. Is Section 10 A Conviction?

Answer: When the court dismisses an offence without recording a conviction under section 10 of the Crimes Sentencing Procedure Act, the person is free to leave the court, even when the person pleads guilty to the offence. The offence will only be recorded on a person’s criminal record if there is a conditional release order. The record will remain for the bond’s duration, which may be up to two years if the offender was released with no conditions and has received a section 10. The offence will not be recorded on their record as a conviction or shown on a police check.

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