If you have been charged with a criminal offence obtaining a criminal conviction can often lead to devastating consequences. For example, someone with a criminal offence of Possess Prohibited Drug may not get an exemption to enter the Country of the United States of America. Alternatively, a criminal conviction for Drug possession usually must be disclosed to an employer or potential employer and this can result in employment refusals or getting sacked. At National Criminal Lawyers we do all we can to help clients avoid the recording of criminal convictions.
If you have been charged with an offence and wish to know about your section 10 options National Criminal Lawyers can give you access to the Best Criminal Lawyer Sydney has to offer to advise you about your prospects of a section 10.
Character References And Letters Of Apology
References
References are an extremely important part of a plea of guilty in Court. They are generally tendered without question, and always effect the severity of any applicable penalty, often to a marked degree. Clearly, this is a client’s golden opportunity to impress upon the court what a marvellous, hardworking, family and community orientated person you they are.
Letter Of Apology
Letters of apology should follow the same format as references in terms of presentation.
For a guide on how to write character references and letter of apology please visit CHARACTER REFERENCES PAGE.
Who Does S10 Usually Apply To?
A section 10 can be made after a plea of guilty; or in some cases after being found guilty.
Section 10s usually apply to first offenders and usually only in certain circumstances as the Courts deem appropriate.
Section 10s are normally only given by the Court where your offence warrants no punishment OR only a nominal punishment OR in circumstances where it would be better to place you on a bond and not record a conviction.
The reason it is called a section 10 is because it is located in law under s10 of the Crimes Sentencing Procedure Act 1999 (NSW) see- http://www5.austlii.edu.au/au/legis/nsw/consol_act/cpa1999278/s10.html
What Must The Court Consider before it gives a Section 10?
To get you a section 10 you will need to argue that either or some or all of the following reasons apply to your case;
- Due to your character/good reputation you deserve a section10;
- Due to your age (old or young);
- Due to your physical health and/or mental condition/s;
- Due to the nature of the offence and the circumstances (extenuating if any) under which the offence was committed;
- Whether the offence was trivial or minor;
- Due to your family circumstances and social or cultural background;
The Court will also look at;
- Do you have prior convictions and the nature of the same;
- The timing of your plea of guilty (early in court process or later);
- Any life adversity you have;
- Your employment or education (or lack thereof);
- Your remorse;
- Whether the offence was impulsive or planned;
- The extent of any injury caused;
- Your prospects of rehabilitation;
- Any steps taken to compensate or make amends/repair the damage done due to your offence;
- Anything else the court considers relevant;
What Material Should I Furnish For The Court To Consider during an Application For An S10?
National Criminal Lawyers are the best Criminal Defence Lawyers Sydney has to offer when it comes to section 10s. If you need to apply for a section 10 we know all of the required documentation you will need to furnish and we can help you to properly prepare.
In particular the Courts will be assisted by and will consider the following documents and reports when a section 10 application is made;
- Character references;
- Psychological or psychiatric reports;
- Any medical evidence;
- Letter of apology;
- Certificates of completion of educational/rehabilitative programs; and/or
- Any evidence of making amends/repair of the damage done by the offence
For a guide on how to write character references please visit CHARACTER REFERENCES AND LETTERS OF APOLOGY
Does A S10 Mean I Don’t Get A Recorded Conviction?
Section 10 orders means no conviction is recorded. In other word’s if you get a section 10 you do not end up with a criminal record for that offence. That said if an order under s 10 is made the order still has the same effect as a conviction for the following purposes:
(a) For the purposes of any law with respect to the reverting or restoring of stolen property;
(b) For the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996; and
(c) For the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property;
Why does the Court give section 10’S to offenders?
The power to give a section 10 is a way that parliament (politicians) and the community provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character:
One leading case on section 10 is R v Ingrassia (1997) 41 NSWLR 447 at 449. In that case the court acknowledged that the “legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court” and “the fact that a person is subject to these additional adverse consequences is a relevant consideration in the exercise of the use of a section 10”.
If you are suitable for the application of a section 10 or CRO National Criminal Lawyers can provide you with the most Affordable Criminal Lawyer Sydney has to advise you and run your section 10 argument in Court.
What If my case is not Trivial Or Minor?
To get a section 10 the Court must consider whether or not the offence is of a trivial or minor in nature. Most criminal charges are not minor and if the offence is not trivial usually an s10 application will fail. At National Criminal lawyers however we have had success in arguments where while at first glance the offence is not trivial and not minor after further investigation by us and then presentation or submissions to the Court we have been able to persuade the magistrate that there are special reasons or circumstances which make the offence less serious.
Some of the arguments for special reasons or circumstances include where;
- There was only a momentary loss of self-control;
- Where there is a background of a toxic relationship;
- Where there is history of provocation OR mistakes on the charge sheet;
- Where there is a hidden agenda of a complainant (such as family law or other proceedings);
- Where there was an unknown sudden incident or emergency which can contextualise the crime; and/or
- Any issues of intoxication, diminished responsibility, coercion (or compulsion), breaches of trust and/or extra-curial punishment;
How does a section 10 operate?
Basically, there are four ways a Section 10 can operate:
- The offender can be released on a bond with the conditions that the offender be of good behaviour for a fixed period (not exceeding two years) but to appear for conviction and re-sentence if called on at any time during the fixed period if a breach of the order/bond occurs See s10 (1)(b) of the Crimes (Sentencing Procedure) Act 1999;
Note: From 24 September 2018 Section (1)(b) will be replaced with the new Conditional Release Order (CRO).
- The second option is a discharge of the offender, on the condition that he or she participate in an intervention program (section 10(1)(c) of the Act);
- The third option is if the court utilises its discretion pursuant to 10(1)(a). This section will allow for the outright dismissal of the charges, without recording a conviction or any further conditions; or
- The forth option is Section 10A which provides where a court considers a s10 bond is inappropriate because an offence is not trivial and it is inconvenient to impose any further penalty than the Court may dispose of the proceedings without imposing any other penalty. An example of S10A would be when an offender has been sentenced to imprisonment for one or more principal offences, and other minor charges carrying a maximum penalty of a fine are dealt with at the same time;
The New CRO
Conditional Release Orders (CROs) will on 24 September 2018 replace existing ‘section 10 good behaviour bonds’ which are currently contained in section 10(1)(b)of the Crimes Sentencing Act 1999 (NSW).
The new CRO does not replace section 10(1)(a). It only replaces Section 10(1)(b) by virtue of s9 of the new act. Significantly, the current section 10(1)(a) – which allows for the dismissal of charges without a conviction or bond – will remain in place.
Section 9 of the now amended Sentencing Act will set out the requirements for CROs.
Suffice to say the forthcoming section 9(1)(b) will still allow those who plead guilty or are found guilty of a criminal offence to avoid a conviction by entering into a good behaviour bond. Moreover, although the requirements for CROs are outlined in the new section 9, the order will still be made under section 10(1)(b) – as is made clear in the new section 9(1)(b) which refers to the court “making an order under section 10(1)(b)).
The new section 95(2) will set the maximum term for a CRO at two years, which is the same as the maximum duration of existing ‘section 10 bonds’.
However, Section 99(2) will enable courts to require defendants:
- To participate in rehabilitation programs or receive treatments,
- Abstain from alcohol, drugs or both,
- Not associate with particular persons,
- Not frequent or visit particular places,
- Come under the supervision of community corrections officers or, in the case of young persons, juvenile justice officers.
CRO orders that cannot be made
The following conditions will be unable to be made for a CRO:
- Fines see subsection 9(3);
- Home detention orders, section 99(3)(a);
- Electronic monitoring conditions, section 99(3)(b);
- Curfew conditions, section 99(3)(c); and
- Community service work conditions, section 99(3)(d);
