Most people charged with a criminal offence quickly learn of the phrase “Section 10”.

For those who are not aware, a “Section 10” refers to section 10 of the Crimes (Sentencing Procedure) Act 1999. It is a sentencing option available to a court in all matters, resulting in a finding of guilt but no conviction being recorded.

For those who regularly travel overseas, who work in government jobs, in finance or with children, or for those who generally wish to avoid a criminal conviction to maintain their reputation of good character, obtaining a section 10 is imperative.

Many people charged with possessing a small amount of prohibited drugs or a minor assault expect that they will be dealt with leniently, because they do not have a criminal record and they believe the offence is trivial. Accordingly, they often turn up to court unprepared, or send in the “written notice of pleading”, and assume they will receive a section 10.

However, a section 10 is not always appropriate or attainable even if an offender has no prior criminal history.

This is because a magistrate is required to take into account the following factors when considering sentencing an offender under section 10:

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.

However, it is important to note that this list is not exhaustive, and simply ticking each box will not guarantee an offender receives a section 10.

For example, the offence does not always have to be trivial in order to obtain a section 10. At Streeton Lawyers, we have obtained section 10s for our clients in very serious matters where convictions are usually recorded and terms of imprisonment are often imposed, including Supplying an Indictable Quantity of Drugs and Assault Occasioning Actual Bodily Harm.

However, at times even trivial offences can result in a criminal conviction if an offender is under prepared. One of the main reasons for this is known as “general deterrence.” This involves sentencing an offender in a way that deters other members of the public from committing the same offence. Therefore, general deterrence is a particularly important consideration for magistrates when sentencing crimes that are prevalent in our society. 

Other factors taken into account by a magistrate include the protection of the community, recognising any harm caused to a victim or to the community, ensuring an offender is adequately punished for the offence, to make the offender accountable for their actions and to denounce the conduct of the offender.

If you have been charged with any criminal offence, it is therefore important that you do not assume you will receive a section 10. Instead, we strongly advise you obtain quality legal advice to ensure the above factors are properly considered in the presentation of your case.

Photo by Towfiqu Barbhuiya