Section 10 Dismissal in NSW: Can You Plead Guilty and Not Be Convicted?

You have decided to plead guilty. If that decision is genuinely made, and made with good advice, I’m not here to talk you out of it. What you want to know is whether this follows you afterwards.

It might not. A NSW court can find you guilty and still choose not to record a conviction against your name. That is a section 10, named after section 10 of the Crimes (Sentencing Procedure) Act 1999. The finding of guilt stands. You leave without a criminal conviction.

Two things to be clear about before anything else. A section 10 is not a deal struck with police, and nobody can promise you one. It’s a discretion the magistrate exercises on the day you are sentenced, after you have pleaded guilty or been found guilty. So the work that earns it happens before that date, not on it.

Everything below is NSW law. Other states and Commonwealth offences are sentenced under their own regimes.

Here’s who realistically gets one, who does not, and what changes when the charge is contravening an AVO.

What Is the Difference Between Pleading Guilty and Being Convicted?

Your plea is your answer to the charge. A conviction is what the court formally records against you when it deals with you. The two usually arrive together, so most people assume they are one step. They are not, and this is where a lot of people get caught out.

When you plead guilty you accept the offence. The magistrate then has to decide how to deal with you, and one of the available options is to find you guilty and record no conviction. That option is a sentencing discretion under section 10 of the Crimes (Sentencing Procedure) Act 1999, exercised after a guilty plea or a finding of guilt.

It’s not a plea bargain. Police can agree to amend a charge or withdraw one. Police cannot agree to your sentence, because they do not sentence you. The court does.

What a Section 10 Actually Is

A section 10 order means the court accepts you committed the offence, then declines to convict you for it. There are three versions, and they are not interchangeable.

1. Dismissal under s 10(1)(a). The charge is dismissed outright. No conviction, no conditions, nothing to complete afterwards.
2. Conditional release order (CRO) under s 10(1)(b). You are discharged on a conditional release order, made under section 9, for a term of up to two years. No conviction is recorded, but you carry conditions for the life of the order, and they have to be complied with.
3. Intervention program under s 10(1)(c). You are discharged on the condition that you agree to take part in an intervention program and comply with its plan. This is used where there is something behind the offending that a program can address.

How the courts approach each of these is set out in the NSW Judicial Commission’s sentencing bench book on dismissal of charges and conditional discharge.

Can You Get a Section 10? When You Likely Can, and When You Will Not

Nobody can give you a straight yes without your file in front of them, but the pattern isn’t a mystery.

You are more likely to be able to if:

• Your record is clean, or close enough to it that this reads as out of character.
• The offending sits at the lower end of what the charge covers.
• There is a real explanation for what happened, not just an assurance it will not happen again.
• A conviction would put your job, your licence or your visa at risk, and you can show the court how. Employment consequences are a proper thing for a court to weigh, as the Court of Criminal Appeal accepted in R v Mauger [2012] NSWCCA 51.
• You pleaded guilty early, you are genuinely remorseful, and you have already done something about it.

You cannot, or realistically will not, if:

• The act constituting the offence was physical violence against a person. That does not close the door completely, but it raises the bar sharply (see the AVO section below).
• The offence is serious enough that the court has to mark it, whatever your circumstances are.
• You have had a section 10 for a similar matter recently.
• A statute blocks it. On the traffic side, section 203 of the Road Transport Act 2013 bars a non-conviction order for a listed major offence where you have had one for another major offence in the previous five years.
• There is nothing in front of the magistrate except your word. No references, no report, no completed course.

The matters the court has to consider are set out in section 10(3): your character, antecedents, age, health and mental condition; whether the offence was trivial in nature; the extenuating circumstances in which it was committed; and any other matter the court thinks proper to consider. Most of what sits in the two lists above is the practical version of those matters.

If Your Charge Is Contravening an AVO

A section 10 is still legally available on a contravention. The bar is higher, and the reason is written into the offence itself.

Contravening an AVO carries a maximum of two years imprisonment, 50 penalty units (currently $5,500), or both, under section 14 of the Crimes (Domestic and Personal Violence) Act 2007. Where the act constituting the offence was an act of violence against a person, the court must impose a sentence of imprisonment unless it orders otherwise. That is the position the magistrate starts from. A section 10 sits at the opposite end of that scale, which is why the submission has to be built rather than asked for.

Here is the part people do not really appreciate. The finding does not stay inside the Local Court. If you have a parenting or property matter running, in practice the same conduct turns up there too, because what a court has found about family violence bears on parenting arrangements. One incident, two sets of proceedings, and the second one is about your children.

So my position on a contravention is simple.

If you are guilty, it’s better to own it, show remorse, and let your lawyer argue for a lighter penalty, like no conviction or a conditional release order.

Contesting a charge you know you breached costs you the two things a section 10 submission runs on, which are an early plea and credible remorse. You cannot get either back later.

If the order itself is the problem rather than the sentence, breaching an AVO explains what counts as a contravention, and our AVO lawyers page sets out how we run these matters.

How to Apply for a Section 10 (There Is No Application Form)

Nobody applies for a section 10 in advance, because there is nothing to lodge. Your lawyer asks the magistrate for one when you’re sentenced, or you can ask directly if you are self-represented, and the strength of that ask depends entirely on what you’ve gathered beforehand.

1. Plead guilty early. The earlier the plea, the more weight it carries as an acceptance of responsibility rather than a concession once the evidence landed.
2. Get character references. Two or three, from people who actually know you and can speak honestly about how a conviction would negatively impact you. Our guide to writing a character reference for court covers what a magistrate reads and what they skip.
3. Put your remorse in writing. A letter of leniency in your own words, addressed to the court, that accepts what you did without explaining it away.
4. Bring the report or the completed course. A psychologist’s report, counselling already underway, a behaviour change program you have finished. Steps already taken beat promises about the future.
5. Have your lawyer make the submission on the sentencing date, against the section 10(3) matters, on your facts.

One more thing. Advice comes before the plea, not after it. By the time you are entering the plea, several of your options have already closed.

Does a Section 10 Show on a Police Check?

The short answer is mostly no, and there are real exceptions you need to know about rather than discover.

A finding of guilt where the court does not proceed to a conviction is spent immediately under section 8 of the Criminal Records Act 1991, and a spent conviction does not have to be disclosed under section 12. A CRO is spent once you complete it satisfactorily. For an ordinary job and an ordinary National Police Check, that’s the end of it.

Section 15 is where the protection stops. The spent conviction rules do not apply to a Working With Children Check, an NDIS worker screening check, or a range of roles including police officer, prison officer, teacher, teacher’s aide and child care work. In those contexts the finding can still be looked at.

If your job, or the job you are working towards, sits anywhere in that list, tell your lawyer at the very start. It changes what we put in front of the magistrate.

What Are the Long-Term Impacts of a Guilty Plea on Employment and Personal Life?

What a section 10 protects you from is specific, and worth being precise about.

It means no conviction recorded against your name, nothing to disclose in the ordinary course, and, where a conviction would have carried a licence disqualification, your licence stays with you.

What it doesn’t do is erase the matter. The court file still exists. The screening exclusions above still apply. A court in other proceedings can still be told what happened, which is exactly the point about parenting matters above.

On travel and visas, I am not giving you a rule of thumb here, because the answer depends on the country, the visa and the question you are actually asked.

What If the Magistrate Says No?

Then you’re convicted and sentenced, and that is still not the end of it. You can appeal the severity of the sentence to the District Court, generally within 28 days of sentence, under section 11 of the Crimes (Appeal and Review) Act 2001. A severity appeal challenges the penalty, not the finding of guilt.

An appeal is slower, costlier and less certain than getting it right the first time. Another reason the material goes in before the sentencing date.

What To Do Before Your Sentencing Date

The section 10 submission is made on the day you are sentenced. Every part of what makes it work, the early plea, the references, the report, the letter, has to exist before then. That’s the honest reason to move now instead of the week of.

If you would rather read a bit more first, our AVO lawyers page covers how we handle contravention matters from charge through to sentence.

If you want to know where you stand, call our team on 1300 614 732 for a free ten-minute discovery call. No obligation. We’ll tell you whether a section 10 is realistic based on your facts and what we would put in front of the magistrate. If it isn’t realistic, we’ll tell you that as well.