Understanding Convictions, Section 10 Orders and Criminal History

One of the most common concerns people have when they are charged with a criminal or traffic offence is whether they will end up with a criminal record.

A criminal record can affect a person’s employment, professional registration, travel, licence, insurance and future court proceedings. For many people, avoiding a conviction is one of the most important parts of their case.

Whether you will get a criminal record depends on a number of factors, including the offence, the evidence, your plea, your prior history and the final order made by the court.

Will I Automatically Get a Criminal Record If I Am Charged?

No.

Being charged with an offence does not automatically mean you will receive a criminal conviction.

A person may be charged by police, receive a Court Attendance Notice and attend court without ultimately being convicted. A criminal record generally relates to offences where a person has pleaded guilty or been found guilty and convicted by a court. It does not include charges that are dismissed or offences where a person is found not guilty.

This means you will not usually receive a criminal conviction simply because:

  • police have charged you
  • you have been arrested
  • you have received a Court Attendance Notice
  • you have appeared in court
  • you have been granted or refused bail
  • you are defending the charge

The final outcome of the matter is what matters most.

What Happens If I Plead Guilty?

If you plead guilty, the court must decide the appropriate penalty or sentence.

In some cases, the court may record a conviction. In other cases, the court may find the offence proven but deal with the matter without recording a conviction.

The outcome may depend on:

  • the seriousness of the offence
  • whether you have a prior criminal history
  • your personal circumstances
  • your age, health and mental health
  • whether there are extenuating circumstances
  • your prospects of rehabilitation
  • your remorse
  • whether you entered an early guilty plea
  • the impact a conviction may have on your employment, licence or future

Can I Avoid a Conviction?

  • Yes, in some cases.
  • In NSW, the court has power under section 10 of the Crimes (Sentencing Procedure) Act 1999to find a person guilty but not proceed to conviction. The court may dismiss the charge, discharge the person under a Conditional Release Order without conviction, or make an order involving participation in an intervention program.

This is commonly referred to as a “section 10” or “no conviction” outcome.

A section 10 outcome is not automatic. The court must be persuaded that it is appropriate in all the circumstances.

When deciding whether to make a section 10 order, the court may consider factors including:

  • your character
  • your prior record
  • your age
  • your health and mental condition
  • whether the offence was trivial
  • whether there were extenuating circumstances
  • any other matter the court considers relevant

Does a Section 10 Mean There Is No Record At All?

Not necessarily.

A section 10 can avoid a conviction being recorded by the court, which can be very important. However, it does not mean the matter disappears entirely from every police, court or government record.

There is also a difference between a criminal record and a criminal history. A criminal history may contain broader information, including court matters, AVOs, matters where a person was found not guilty, charges that were dismissed and warrants. Criminal history information may be relevant in some court contexts, particularly bail applications.

The Criminal Records Act 1991 also treats certain findings of guilt without conviction as convictions for the purposes of that Act, although some findings may become spent immediately or after satisfactory completion of an order.

This is why it is important to obtain legal advice before assuming that a “no conviction” outcome will have the same effect in every situation.

What Is the Difference Between Section 10 and Section 10A?

A section 10 and a section 10A are very different.

A section 10 allows the court to deal with a matter without recording a conviction.

A section 10A means the court records a conviction but imposes no further penalty. The conviction is still recorded. Legal Aid NSW explains that unlike a section 10 dismissal, a section 10A penalty is recorded on a person’s criminal record and/or driving record.

This distinction is important. A person may walk away without a fine, bond or further punishment, but still have a conviction recorded if the court proceeds under section 10A.

Will a Traffic Offence Give Me a Criminal Record?

Some traffic offences can result in a criminal conviction.

More serious traffic offences, such as drink driving, dangerous driving, negligent driving causing injury and driving whilst disqualified, may appear on a criminal record if a conviction is recorded.

Other traffic matters may primarily affect your driving record, licence, demerit points and insurance.

Because traffic offences can have serious consequences, it is important to obtain advice before deciding whether to plead guilty, dispute the charge or ask the court not to record a conviction.

Can a Criminal Conviction Become Spent?

In NSW, some convictions can become spent after a period of crime-free behaviour.

For adult offenders, the relevant crime-free period is generally 10 consecutive years. For Children’s Court matters, it is generally 3 consecutive years.

However, not every conviction can become spent. Some convictions are excluded, including convictions where a prison sentence of more than 6 months was imposed, sexual offences and convictions against companies.

Even where a conviction becomes spent, there are exceptions. Some occupations, checks and legal processes may still require disclosure or allow access to certain information. This can include areas such as child-related work, law enforcement, courts and some government or regulated roles.

Why Early Legal Advice Matters

Early legal advice can make a significant difference when a person is concerned about receiving a criminal record.

A criminal defence lawyer may assist by:

  • reviewing the evidence
  • advising whether the charge can be defended
  • negotiating with police or prosecutors
  • identifying weaknesses in the prosecution case
  • preparing material for sentence
  • obtaining character references
  • preparing evidence of rehabilitation
  • making submissions for a non-conviction outcome
  • explaining the likely consequences of different court orders

Many people do not realise that the way a matter is prepared before the first court date may affect the final outcome.

Speak With Orr Legal

Nichole Orr regularly represents clients facing criminal and traffic charges across Maitland, Newcastle and the Hunter Region.

If you are worried about whether you will receive a criminal record, contact Orr Legal for confidential criminal defence advice as early as possible.

Book a Criminal Law Consultation & Case Assessment.