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No Conviction – Section 10 and CRO

Streeton Lawyers Banner GeneralUnder the Crimes (Sentencing Procedure) Act 1999 a court can find a person guilty of an offence, however not record a conviction.

There are three sentencing options available in NSW that will result in no conviction being recorded. These include:

  1. A dismissal, under section 10(1)(a),
  2. A Conditional Release Order without conviction, under section 9(2) and section 10(1)(b), and
  3. The offender being discharged on the condition the offender enters into, and complies with, an Intervention Program, under section 10(1)(C)

These sentencing options are explained in detail below.

WHEN IS A NON CONVICTION AVAILABLE?

The Court can deal with any criminal offence without recording a conviction. However, the above sentencing options are usually only for less serious offences and where an offender does not have a previous criminal record.

The factors the Court considers when determining whether to deal with a matter without recording a conviction include:

  • The persons character, antecedents, age, health and mental condition
  • The trivial nature of the offence (if that applies)
  • Any extenuating circumstances in which the offence was committed
  • Or any other matter that the Court thinks proposer to consider

SECTION 10(1)(a)

An order under section 10(1)(a) will result in a finding of guilt, however the charge is immediately dismissed and no conviction is recorded. In NSW, this is the most lenient sentencing option.

As no conviction is recorded, the offence will not appear on your criminal record (however, it will appear on your police criminal history).

CONDITIONAL RELEASE ORDER WITHOUT CONVICTION

A Conditional Release Order can involve the court using its discretion under section 9(2) and section 10(1)(b). As a result, there is a finding of guilt but no conviction is recorded, and the offender is discharged on the condition they enter into a Conditional Release Order (CRO). A CRO can be imposed for a period of up to two years.

The standard conditions of a CRO include:

  • The offender must not commit any offence, and
  • The offender must appear before the court if called on to do so at any time during the term of the CRO.

However, additional conditions can also be imposed, which include:

  • A condition requiring the offender to participate in a rehabilitation program or to receive treatment,
  • A condition requiring abstention from alcohol or drugs or both,
  • A non-association condition
  • A place restriction condition,
  • A supervision condition by a community corrections officer, or if the offender was under the age of 18 years when the condition
  • Any other condition that the court considers appropriate, but not including electronic monitoring or a curfew condition exceeding 12 hours in any period of 24 hours

Although no conviction is recorded, the offence will appear on a person’s criminal record for the duration of the order, until the CRO has been successfully completed. At this point, the offence will not appear on a criminal record (however, it will remain on a person’s police criminal history).

However, if a further criminal offence is committed during the period of the CRO, or one of the CRO conditions are breached, a court can resentence an offender. If this occurs, an offender will likely be convicted of the offence.

DISCHARGED TO PARTICIPATE IN AN INTERVENTION PROGRAM

An order under section 10(1)(c) will result in a finding of guilt, but the person is discharged on the condition they enter into an agreement to participate in an Intervention Program.

An order under section 10(1)(c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

Further, an Intervention Program Order may not be made with respect to an offender unless the court is satisfied:

    1. That the offender is eligible to participate in the intervention program in accordance with the terms of the program, and
    2. That the offender is a suitable person to participate in the intervention program, and
    3.  That the intervention program is available in the area in which the offender resides or intends to reside.

Although no conviction is recorded, the offence will appear on a person’s criminal record for the duration of the order, until the Intervention Program has been successfully completed. At this point, the offence will not appear on a criminal record (however, it will remain on a person’s police criminal history).

However, if a person does not comply with the Intervention Program, a court can resentence the offender. If this occurs, the offender will likely be convicted of the offence.

WHAT ARE THE CONSEQUENCES OF NO-CONVICTION SENTENCING OPTIONS?

Having a matter dealt with through one of the above orders means that a formal conviction has not been entered.  As a formal conviction has not been entered, it may be that in certain circumstances an individual is not required to disclose the offence when asked to do so for employment or travel purposes.  This will depend on the nature of the question, as well as the specific disclosure requirements and you should seek legal advice before deciding whether or not to disclose previous offences.

For traffic offences, it can mean no disqualification period or no demerit points are applied.

In general terms, the advantage of these sentencing options is that an offender can honestly answer that they do not have any previous convictions.  Although a conviction has not been formally entered, the charge and finding of guilt will remain on a person’s police criminal history and should that person be charged in the future, the charge will be before the Court in any future proceedings.  The matter is not wiped from your police or Court record.

For free initial advice about the prospects of your matter, contact one of our criminal law specialists.

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