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  • Will a Section 10 show up on a police check?

    If a matter is before a Magistrate or any other Justices, the offender will get a court sentence. Usually, these sentences include some forms of punishment, rehabilitation, deterrence, or whatever action the court deems relevant to the sentence.

    The sentences an offender gets is proportional to the crime/offence they commit. The Penalties/sentencing legislation of the State (jurisdiction) will guide the Court in issuing the most appropriate sentencing for the crime.

    Most forms of dismissal orders where court-imposed conditions have been satisfied will generally not show up on a Police Check. Whether or not a Section 10 dismissal shows up on your police check will depend on the type of Section 10 dismissal that you get.

    What happens if the Court records a sentence against me?

    If the Court convicts you of a crime and issues sentencing;

    • The recommendations or sentencing are recorded against your name,
    • The Court may further impose penalties

    When the Court issues final sentencing on a matter, it remains unchanged for life. The only way a sentence can be off your record is through some legal pardons or the Spent convictions scheme. An example of such a legal pardon program is section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

    What is a section 10 dismissal?

    The section 10 dismissal is a form of sentence suspension or legal pardon common in New South Wales (other jurisdictions have theirs).

    Under section 10, the Court can;

    • Dismiss a charge, or
    • Suspend an imprisonment term,
    • Or replace a penalty with a Good Behaviour Bond.

    It is sometimes and now recently referred to as a Conditional Release Order (CRO).

    And depending on the type of CRO a court issues, it will not record a conviction for the offender.

    However, not all offences are eligible for the Spent convictions scheme or a section 10 dismissal. These legal pardons are common for minor infractions with less impact on the victim or society. Serious crimes cannot be dismissed under section 10, these include;

    What are the different types of section 10 Dismissals (CRO)?

    Having a section 10 dismissal can be beneficial to your Criminal records, but it is not easy to obtain one. The Court must consider lots of factors before issuing a section 10 dismissal to any offender.

    The conditions/factor around the offence will determine the type of section 10 dismissal the Court will grant.

    Under the Sentencing Act section 10, the Court can grant;


    1. Dismissal under Section 10 (1) (a)

    The Act states the Court, on considering relevant factors, may discharge the matter without further conditions.

    Under these conditions, the Court will not record a conviction or any other type of record on your criminal history.

    Also, this type of dismissal clears you from any wrongdoing or penalty that such offence attracts under the Act.

    Will a Section 10 (1) (a) show in a Police Check?

    Under these conditions, the Court will not record a conviction or any other type of record on your criminal history and therefore a section 10 (1) (a) will not show up on a police check.


    1. Dismissal under Section 10 (1) (b)

    This section dismissal is one of the most common the Court can grant an offender. Under this type of sentence dismissal, the Court will impose certain conditions that make the dismissal valid.

    These conditions will remain active for a period before the bond can be complete.

    An offender that gets such bond will be liable to the following conditions under the sentencing Act;

    • Notify the Court of any change in address,
    • Maintain a crime-free period during the duration,
    • Must not be found guilty in court of any traffic offence.

    In some cases, the Court orders that the offender to remain in the State or regions for their bond period.

    When granting such bonds, the Court will also elect the period that the bond must remain active. However, this period cannot be higher than the maximum period of 2 years as stipulated in the legislation. The period of sentence dismissal of this type is called the bond period.


    When is the bond complete;

    The bond is an agreement between the offender and the State through the Court. It states that the offender will maintain good behaviour for their bond period. If this period elapses without any breach or fault to the condition, the Court will dismiss the matter.


    Where the offender breaches any of the conditions;

    If during the bond period, you fault any of the conditions the Court set out, the Court will summon you to a hearing, and;

    • May adjust the conditions of your bond (depending on the factors), or
    • Resentence you for the original offence. It means the Court will revoke your section 10 order conditionally and convict you.

    Does a Section 10 (1) (b) show on a Police Check?

    The Police Check will reveal the details of your bond for the duration of the bond period. After this period; the State will erase all elements of;

    • The sentencing, or
    • The bond from your Police Check or criminal records.

    It means this kind of dismissal can remain in your Police Check for a maximum of 2 years before they erase it from your records.


    1. Dismissal under Section (10) (1) (c)

    This kind of court dismissal comes under the condition that the offender enters some form of rehab program. The Court will only grant this kind of dismissal if the offender agrees to attend or complete;

    • A rehabilitation program,
    • Traffic offenders intervention program,
    • Drug intervention program,
    • Alcohol intervention,
    • Community program, or
    • Other programs the Court thinks are relevant to the matter.

    The Court will issue a Section (10) (1) (c) dismissal program only when it is convinced the offender;

    • ✔ Regrets and will retrace their actions,
    • ✔ Will commit to the entirety of the program suggested,
    • ✔ Shows tendency to be of good behaviour,
    • ✔ The original offence did not have an aggravating or detrimental factor.

    Does a Section 10 (1) (c) show in a Police Check?

    If the Court grants you such dismissal under section 10 (1) (c), it will not appear in your Police Check.

    However, all offenders must complete the programs (an intervention program) the Court stipulates for the dismissal. The Court can summon an offender who disobeys or faults the conditions of this section dismissal.

    What is the Spent Convictions Scheme?

    The spent convictions scheme in NSW applies to minor offences, where the offender demonstrates to live crime-free.

    However, this good behaviour must be provable to the Court through their clean conviction records, Police records and other recommendations over a “waiting period”.

    If the offender shows/maintains Good Behaviour during this waiting period, the Court will remove the "eligible" offence from their conviction records. Usually, this waiting period is;

    • 10 years for adults or those convicted by courts other than a Juvenile court.
    • 3 years for Juveniles (5 in the other States and Territories), or those convicted in a Youth Court.

    Can I get a section 10 dismissal?

    Getting a section 10 dismissal is not in any way easy. As mentioned earlier, the Court will consider many related factors and events of both the offence and the person. In granting a section 10 dismissal, the Court will consider factors like;


    • ✔ The Age or Criminal history of the offender

    Young people or first-time offenders are more likely to get a section 10 dismissal than otherwise. Having a conviction on a criminal record can hamper a lot of your prospects. People with criminal records find it difficult getting;

    The Magistrate is more lenient when dealing with people who have a clean criminal record.


    • ✔ The Health and mental condition of the offender

    The Magistrate will issue more lenient sentencing for offenders with mental or health conditions. Certain health conditions will prevent the offender from serving an imprisonment term or other rigid penalties the sentencing Act stipulates. And in this condition, the Magistrate may impose a sentence dismissal.


    • ✔ The nature of the offence

    It is hard for a Magistrate to grant a section dismissal where the offence has an aggravating circumstance or factors. The majority of offences where a Magistrate will grant a section dismissal are trivial or minor offences.

    However, if you are charged to Court for any offence, you should contact a lawyer. An expert can tell you the best options available for your charge.


    • ✔ Extenuating circumstances around the offence

    The Magistrate will consider any extenuating factor that led to the offence. It could be a lessening factor of the offender;

    • If the offender acted under duress,
    • The offence was committed out of self-defence,
    • The Act was necessary to forestall a more significant threat,
    • The offender had every reason to believe they acted rightly,
    • The offender was tricked into committing the offence,
    • The offence was from an honest accident or mistake,
    • The offender didn’t intend to cause such damage,
    • Other conditions the Court deem relevant to warrant a section 10 dismissal,
    • And any other factor the Court considers to lessen the offence.

    Will a Conditional Release Order be revealed in any other Australian Background Check?

    While the section 10 dismissal may not appear on a Police Check (section 12 of the Criminal records Act 1991). However, under special orders/conditions, it may appear in further checks like;

    • Police records (records kept by the Police)
    • Working with Children Check
    • Working with vulnerable check,

    An employer can only inquire about your sentence dismissals if it is mandatory by regulations. For some sectors, an employer must exhaust all means to determine the suitability of their candidates.

    If you apply for any of these roles, your dismissed sentences may influence the employer's decisions;

    • Children or care for them,
    • Care for vulnerable or the aged,
    • Financial roles,
    • Fireman,
    • Policeman,
    • Educator,
    • CPV Driver or Designated drivers.

    How can I obtain a criminal history check?

    Individuals

    If you are an individual then you can obtain a criminal history check certificate online via Australian National Character Check’s online police check application form. The results are dispatched via email.

    Business and Enterprise Customers

    Business and Enterprise customers are able to sign up to ANCC’s business portal where they can order, manage, track and view candidates’ criminal history check results on their business portal. Organisations will undergo a process for approval prior to being granted access to ANCC’s business portal.

    ANCC sends an invite to the applicant to complete their criminal record check online and handles the application and informed consent form. Contact ANCC’s business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

    Sources

    Judicial Commission of NSW (Dismissal of Charges and Sentencing Discharge) - https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/dismissal_of_charges.html

    Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) - https://legislation.nsw.gov.au/view/html/inforce/current/act-1999-092

    Crimes (Sentencing Procedure) Act 1999 (NSW) (Austlii) - http://classic.austlii.edu.au/au/legis/nsw/consol_act/cpa1999278/

    Crimes Act 1900 (NSW) - https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040

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