What is a Section 10 and how do you get one
The two non-conviction outcomes in NSW, the test the court must apply, what makes them more likely, and why they are never guaranteed.
A section 10 is the court finding you guilty but recording no conviction, and it comes in two forms: an outright dismissal or a conditional release order without conviction. For a first-offence, low-level matter with proper preparation it is a realistic outcome, and it is never a guaranteed one. It is not something you apply for; you ask for it in your submissions and the Judge decides.
- Write the four s 10(3) headings on a page and put one line of evidence under eachSection 4 of this guide
- Ask three people for references addressed to the courtLesson 12
- Enrol in a program this week, not the week before courtLesson 14
If you have a prior conviction for the same kind of offence, or a conviction would cost you a licence, registration or visa, the argument is strongest and the cost of getting it wrong is highest. Get advice before sentence.
| s 10(1)(a) | Charge dismissed. No conviction, no conditions |
| s 10(1)(b) | Conditional release order without conviction, up to two years |
| s 10(1)(c) | Intervention program before sentence |
| The test | Character, triviality, extenuating circumstances, any other matter: s 10(3) |
| Guarantee | None. It is an order the Judge may make, not something you apply for |
1What a Section 10 actually is
Start here
Section 10 of the Crimes (Sentencing Procedure) Act 1999 gives a court that has found a person guilty of an offence the power to deal with the matter without recording a conviction. People refer to "getting a section 10" as if it were one thing. It is three, and the difference matters.
Section 10(1)(a): dismissal. The court finds the offence proved and dismisses the charge. No conviction, no conditions, no further penalty. The matter is finished when the Judge says it. This is the best available outcome and the less common of the two main orders.
Section 10(1)(b): conditional release order without conviction. The court finds the offence proved, declines to record a conviction, and releases you on a conditional release order for up to two years. The standard conditions are that you do not commit any offence and that you appear before the court if called on; the court can add supervision, program participation, non-association and others. Complete the period without breach and the outcome is as good as a dismissal. Breach it and you are brought back to be resentenced, this time with a conviction available.
Section 10(1)(c): intervention program. The court adjourns and refers you to an intervention program or plan, with sentence to follow. Less common, and usually tied to a specific program such as MERIT.
All three involve a finding of guilt. That finding sits in court and police records and can be referred to if you are before a court again. What it does not do is appear as a conviction on a National Police Check for most purposes, and for the spent convictions scheme it is treated as spent immediately.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10; Criminal Records Act 1991 (NSW) s 8 (requires principal review: confirm treatment of s 10 findings). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
2What it means in practice
Consequences
| Consequence | Dismissal, s 10(1)(a) | CRO without conviction, s 10(1)(b) |
|---|---|---|
| Conviction on your record | No | No, unless breached and resentenced |
| Fine | No | No |
| Licence disqualification (traffic) | No | No |
| Demerit points (traffic) | No | No |
| Conditions | None | Good behaviour and any added conditions for the period |
| Can the finding be referred to later | Yes, in court and police records | Yes |
| Appears on a standard police check | Generally no | Generally no |
For traffic offences, the absence of disqualification is usually the reason people seek a section 10 at all. A low range drink driving charge with a section 10 means no conviction and no time off the road. A conviction, even with the minimum disqualification, means both.
3When it is available
Eligibility
Section 10 is available for most offences dealt with in the Local Court and for many in the higher courts. There are exceptions. Some traffic offences carry a restriction on repeat use: a person who has received a section 10 for a relevant driving offence within the previous five years cannot receive another for a further one. Some offences carry mandatory minimum penalties or mandatory disqualification that limit the court's discretion. And the more serious the offence, the less realistic a non-conviction outcome becomes, not because the law excludes it but because the court's sentencing purposes push against it.
Legal basis: Road Transport Act 2013 (NSW) s 203 (limit on s 10 for repeat driving offences within five years). Requires principal review: confirm current section reference. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
4The test the court must apply
Section 10(3)
Before the court can make an order under section 10 it must have regard to four things, and those four things are the structure of any submission seeking a non-conviction outcome.
Your character, antecedents, age, health and mental condition. A clean record, a stable life, youth, and any health matter that is evidenced. References speak to this.
The trivial nature of the offence. Not "trivial" in ordinary language, which few offences are, but where the offence sits on the scale of seriousness for that type of offence. A small quantity, a low reading, a minor injury.
The extenuating circumstances in which the offence was committed. Context that explains without excusing: a period of stress, a lapse in a life otherwise conducted well, circumstances that have since ended.
Any other matter the court thinks proper to consider. In practice this is where the consequences of a conviction go: employment, professional registration, travel, visa status, a working with children check. And where the early plea, cooperation with police, and a completed program are placed.
Judges also weigh whether a non-conviction outcome would undermine the purposes of sentencing, particularly deterrence. The argument that most often succeeds is that the process itself has already deterred the person, and here is the evidence: the program completed before being asked, the letter that shows insight rather than regret, the references that describe what changed.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10(3). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
5What makes it more likely, and what does not
Factors
| Works toward a non-conviction outcome | Works against it |
|---|---|
| No prior record, or an old and unrelated one | Prior convictions, especially for the same type of offence |
| An offence at the low end of seriousness for its type | A high reading, a larger quantity, an injury, a weapon |
| Specific consequences of a conviction, evidenced | Consequences asserted but not shown |
| A program completed before sentence, on your own initiative | A program started after being told to, or none |
| References that describe what the writer has seen since the offence | References that say you are a good person |
| A letter to the court that shows insight | A letter that promises it will never happen again |
| An early guilty plea | A late plea, or a plea after a failed hearing |
| Preparation | Arriving with nothing and asking for leniency |
6It is never a guarantee
Reality
Two things people get wrong. The first is language: section 10 is not something you apply for. In court, an application is a formal request with its own procedure. Section 10 is one of the orders open to the Judge, who decides whether to make it after weighing everything above. You ask for it in submissions; you lodge nothing.
The second is that it is not a checklist. Ticking every box in the table above makes a non-conviction outcome more likely, sometimes much more likely. It does not make it certain, and the same material before two Judges can produce two different orders. Anyone who tells you a section 10 is assured has either not read the section or is selling something. What preparation does is give the Judge the material to make the order if they are minded to. Without it, the order is very unlikely; with it, it is possible and often achieved.
7How to prepare
Method
The method is the same for every Local Court sentence and it is set out in full, with templates, in Module 3 of the possess prohibited drug course: three references addressed to the court from people who know about the charge (Lesson 12), a one-page letter in your own words (Lesson 13), a program begun the week you were charged (Lesson 14), and submissions organised under the four s 10(3) matters with a clear ask and a fallback (Lesson 15). If your charge is not possession, the documents are the same; only the facts change.
Write the four s 10(3) headings on a page and put one sentence of evidence under each. Any heading with nothing under it is where your preparation goes.
If a conviction would cost you a licence, registration or visa
Where the consequence of a conviction is disproportionate, the argument for a non-conviction outcome is strongest and the cost of getting it wrong is highest. That is the case a lawyer can put with the evidence in the right form. A consultation with the lawyers who built Standard before sentence is the right step.
Request a consultationGeneral information only, not legal advice. NSW-specific. Every matter turns on its own facts and laws can change. Reading this guide does not create a solicitor-client relationship between you and the lawyers who produced it.