What is a section 10 dismissal?
A "section 10" dismissal refers to section 10 of the Crimes (Sentencing and Procedure) Act. This section gives the court the power to dismiss the charges against an offender in particular situations. If the court choose to take this option, there will be no criminal conviction recorded against a person for that offence.
There are three options under section 10. If it is found to be appropriate, a court may:
- Dismiss all relevant charges against a person
- Dismiss charges against a person but still impose a conditional release order
- Dismiss charges against a person but only on the condition that they participate in a particular intervention program
If a person has been granted a section 10 dismissal, then a lot of the consequences that usually flow from a conviction are avoided. For example, automatic licence disqualification for certain traffic offences can only occur upon a conviction. Additionally, demerit points or fines cannot be imposed on a person who has been given a section 10.
For more information on conditional dismissals, read the article about conditional release orders.
Decision to not convict
Sentencing judges are careful in the way they use section 10 dismissals, because excessive and inappropriate use will undermine public confidence in the criminal justice system. For more serious crimes the court must impose a penalty that reflects the "objective seriousness" of the offence. However, there are certain cases where the offence is so trivial or there are such extenuating circumstances that a dismissal with no further punishment is the just outcome.
The court is very aware of the significance of a criminal conviction on a person's life. It has described the recording of a conviction as "a formal and solemn act marking the court's, and society's disapproval of a defendant's wrongdoing". The court has recognised that conviction is a great punishment on its own, not considering further penalties of fines, community orders, or custodial sentences. This is particularly the case when someone has never had a criminal conviction before.
The consequences of a conviction can extend to many parts of life. In traffic matters it can often result in a lengthy licence disqualification period that restricts a person's autonomy and at times severely limits their ability to fulfil employment and familial obligations. In general, a criminal conviction can negatively impact a person's opportunities in social and employment contexts.
At times the potential impact of a conviction on a person's wider life may be seen to outweigh the seriousness of the criminal conduct. The court has emphasised that there are rare situations where justice is better achieved by a decision not to convict an offender. This often requires relatively minor offending behaviour, no criminal record (or a very slight one) and a compelling case (backed up by character references and evidence of remorse and rehabilitation) that a person is deserving of the court's discretion. There are times where it is in the court's and society's best interests to allow an offender a chance to maintain a good reputation and avoid the further legal and social consequences that follow from a criminal conviction.
However, the more objectively serious an offence gets the greater the need for the court to send a general message to society that such behaviour is unacceptable. This is known as "general deterrence" and plays a big part in the court's decision to record a conviction or not. Often, while an offender's personal circumstances might favour a non-conviction, the court must set an example and show potential offenders that they will not be met with leniency if they choose to misbehave. A good example is the offence of high range drink driving – the court views this offence as very serious and rarely excusable. In a guideline judgment, the Supreme Court of NSW laid down a blanket rule that section 10 dismissals are an inappropriate sentencing option in all but the rarest of cases.
How the court decides whether to dismiss charges or not
The legislation requires the court to have several specific considerations before they decide whether a dismissal is an appropriate outcome or not. Those factors are:
- A person's character, history, age, health and mental condition
- The trivial nature of the offence and the offending behaviour
- The extenuating circumstances in which the offence was committed
- Any other matter the court thinks it is appropriate to consider
A person's character, history and age:
If the court can be provided proof that the offending behaviour is out of character for a particular person, a dismissal becomes a more appropriate sentencing option. Evidence of such things can satisfy the court that there is a low risk of reoffending and little need to provide a punishment that specifically deters a person from committing more offences.
Evidence of a person's good character (for example, from written character references from employers, community members or family) or a demonstrated lack of criminal history can provide a strong argument to the court that conviction and a harsh punishment is not needed.
Age is also an important consideration. The court has recognised the need to provide young, first-time offenders with a second chance, particularly where their behaviour could be seen as a momentary lapse in an otherwise respectable lifestyle. A non-conviction might allow such a person a second chance to maintain their good reputation. On the other end of the spectrum, if someone has lived most of their adult life with no or minimal contact with the criminal justice system, this is strong evidence in favour of the argument that the offending behaviour is out of character and unlikely to happen again.
"Mental conditions"
he court can consider the impact of mental illness on a person's sentencing outcomes in different ways. The mental illness or condition does not need to be connected to the offending behaviour for the court to consider it on sentence.
If it has contributed to the wrongdoing, then the court may decide a person's responsibility for their actions has been reduced and therefore they might be liable for a lesser punishment or no conviction at all.
If the mental illness has not contributed to the offence, then the court may still find that it is inappropriate to make a general example of this person to larger society and potential offenders, given the difference in their personal circumstances.
However, it is important to know that the presence of a mental illness does not always mean a person receives greater leniency from the court. It may have the opposite effect and convince the court that a person is in need of greater supervision and correction to ensure they don't continue to commit offences. A court can still choose to dismiss charges while still requiring a person to be under a conditional release order for some time or to undergo a certain intervention program to address behavioural issues. Often times this option can work to not unduly punish a person with mental health issues while still addressing the underlying causes of criminal behaviour.
The exact impact that mental health has on a sentencing decision will be specific to each person's individual circumstances and the facts surrounding their offending conduct. However, there are strong, recognised links between criminal conduct and mental health issues, and it is important that the court is fully informed of anything that may have affected a person's behaviour before they decide what penalty to impose (or not impose).
"Trivial nature of the offence"
When a court decides whether an offence is "trivial" or not, they tend to consider the actual circumstances in which an offence was committed as opposed to putting particular offences as a whole in the "trivial" category.
The court's consideration of triviality will most likely focus on:
- How much danger the offender placed themselves and others in
- Whether any actual damage or harm was caused
- The actual or potential negative impacts to the greater community by the offender's conduct
- And how blatant the disregard for the law was in the situation
The more trivial or technical an offence becomes, the more appropriate a non-conviction will be in the eyes of the court.
"Extenuating circumstances"
The court can also consider the justifications behind someone's offending behaviour. There are situations where a person has to concede that they did commit the offence but can provide a compelling explanation as to why they disobeyed the law. Where the offence committed is minor and a person can provide a reasonable explanation, the court may be satisfied that it would be unjust to record a conviction against them.
A common example of a compelling extenuating circumstance is choosing to drink drive because someone needs urgent medical attention, and the only viable option is to drive them to a hospital/medical practice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.