Receiving Non-Conviction in NSW

• What does no conviction mean?
• What does it mean to have no conviction recorded?
• What does ‘Section 10’ say?
• Who can get a Section 10?
• Does the offense have to be ‘trivial’ to get a Section 10?
• How to increase chances of getting a Section 10?

What does no conviction mean?

Many clients in Australia have previously been perplexed about the distinction between a conviction and a non-conviction. That is because previously, if you appeared in court and entered a guilty plea but no conviction was recorded, you would still have a criminal record, simply without a conviction.

With the introduction of the Spent Conviction Bill in 2021, the tide has shifted and the distinction between whether or not a conviction is recorded has real meaning. Receiving a non-conviction or, ultimately, not having a conviction recorded against your name may now imply that you will avoid a criminal record if the magistrate or judge rules in your favor.

What does it mean to have no conviction recorded?

No conviction recorded in Victoria means that a court official or judge has taken into account submissions made under Section 8 of the Sentencing Act and has been persuaded not to record a conviction. A sentence imposed without conviction is a positive outcome. If the spent conviction legislation does not apply, that person can answer ‘no’ when asked if they have ever been convicted of an offense (for example, by an employer or on a visa application).       If no conviction is recorded and the spent conviction legislation applies, that is, the matter does not relate to a serious violent crime’ or a sexual offense,’ the conviction will be spent and not easily retrievable on a record check in general, and an employer will be unable to inquire about it (although it should be noted there are some exceptions). Non-conviction is commonly present for lower-level offenses and for violators with no or little prior criminal history, but it should be noted that anything is possible with a well-prepared direct appeal. A conviction is usually delivered if the crime is very serious, but cases as serious as assault and robbery have resulted in a non-conviction disposition. In practice, depending on the age of the conviction, it is highly improbable (but not impossible) that an abuser will receive a non-conviction if they have previously been convicted of an offense.

Whether a sentence is imposed with or without conviction, the attacker will have a felony conviction unless the sentence complied with the requirements of the spent conviction’ legislation. This is due to the fact that the perpetrator has been found guilty. A police record check will still display that the violator was found guilty of the specific offense but that it was made without conviction in cases where the spent conviction legislation does not apply.

It is a popular misconception that if you are not convicted, you will not have a criminal history. Unless the spent conviction legislation pertains, a non-conviction in regards to a criminal issue will always result in a criminal background. It is fair to say that the notion of conviction vs. no conviction is one of the most misinterpreted in criminal justice. This is partly because being convicted on a not guilty plea is frequently intermingled with a finding of guilt where no conviction is recorded, which certainly confuses the issue.

What does ‘Section 10’ say?

Section 10 applies when you enter a plea or are found guilty of a ‘serious crime’ or a major traffic offense,’ but the Judge rules not to give you a felony record (criminal record) or a license disqualification.

Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) empowers the court to negotiate with “guilty” individuals by:

‘Dismissing’ the charge(s), or placing him/her in a good behavior bond of two years or less, or simply putting him/her in a treatment program (eg drug and alcohol program, traffic offender program, etc).

Who can get a Section 10?

Section 10 is available for all criminal and driving offenses. When deciding whether to grant a section 10, the court must take into account the following (a) the person’s character, ancestors (history), age, health, and mental condition, (b) the trivial nature of the offense, (c) the extenuating conditions under which the offense was committed, and (d) any other matter that the court deems appropriate to consider.

Does the offense have to be ‘trivial’ to get a Section 10?

No, not always. Although section 10 is much more likely if the offense is ‘trivial’ (i.e. not serious), the cases show that section 10 can be utilized for very serious offenses. R v Paris [2001], for example, involved an individual who admitted guilt in the District Court to threatening to use weapons against officers (maximum penalty 12 years in prison) and was sentenced to two years of assault. The Court described it as “undoubtedly a very serious offense,” but it also determined that section 10 can be used in such instances if there are very good reasons for doing so, such as if there are sufficient “complicating factors” (e.g., provocation, distress, mental instability, etc.), if the person is otherwise of outstanding character, and so on. Similarly, in R v Piccin (No 2) [2001], Ms. Piccin, a 40-year-old nursing student, made a plea ‘not guilty’ but was discovered ‘guilty’ by a District Court jury ‘of maliciously wounding’ and stalking her former partner. In that case, Ms. Piccin tracked down her former partner and, in a jealous rage, stabbed him in the chin, shoulder, and finger with a knife. Again, the Court determined that section 10 can be invoked in such severe cases if there are compelling reasons to do so. Importantly, the Court stated that when making a decision whether to grant a section 10, it is “proper to consider” the effects of a criminal conviction on a person’s employment options.

How to increase chances of getting a Section 10?

The chances of section 10 increases if an individual puts in front of court material showing that:

• The individual is of good character and had good conduct.
• The offense took place during a difficult period in the person’s life, which you can demonstrate by preparing ‘written instructions for your lawyer.
• You have taken measures to address any deeper causes, such as attending counseling or taking a course.