Section 10 and drink driving

What does “section 10” mean in NSW?

Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court that finds a person guilty to deal with the matter without proceeding to conviction. The current statutory options include dismissing the charge, discharging the person under a conditional release order (CRO), or discharging the person subject to participation in an intervention program. The wording of the in-force Act, including eligibility limits and restrictions, should be checked before publication or reliance.

A section 10 order is therefore not a finding that the person was not guilty. It follows a finding of guilt, but the court does not record a conviction in the ordinary way. The court must exercise a discretion; section 10 is not an entitlement and it is not an automatic result of a guilty plea, a first offence, a low reading, good character or personal hardship.

The three current order types

The practical effect depends on the order made and the conditions attached. A dismissal means the charge is dismissed without a conviction being recorded. A CRO can discharge a person without conviction and may operate for up to two years. A discharge subject to an intervention program involves participation in the program specified by the court.

The Judicial Commission explains that a CRO made under section 10(1)(b) differs from a CRO under section 9 principally because no conviction is recorded under the section 10 order. Older material may refer to a “section 10 bond”. That terminology should be treated as historical: the former section 10(1)(b) good-behaviour-bond scheme was replaced by the CRO scheme when sentencing reforms commenced on 24 September 2018. Transitional rules may preserve some pre-24 September 2018 bonds, so historical references should not be presented as the current standard order.

How the court approaches the discretion

The Judicial Commission identifies matters the court must have regard to when considering a section 10 order, including character, antecedents, age, health and mental condition, the trivial nature of the offence, extenuating circumstances and any other matter the court considers proper. The court’s assessment remains fact-specific. The seriousness of the offending and the purposes of sentencing, including denunciation and general deterrence, may affect whether the discretion is exercised.

In a particular matter, evidence may be relevant to those statutory factors. Possible topics can include prior history, employment impact, rehabilitation, delay, hardship or unusual circumstances. None of those topics is a universal ground for a section 10 order, and none should be treated as an assumed fact, a defence or a guarantee of avoiding conviction or other consequences.

Section 10 and NSW drink-driving matters

NSW drink-driving offences include novice or special categories and low-, mid- and high-range prescribed concentration of alcohol (PCA) categories. The applicable BAC limit depends on matters such as licence and vehicle category. NSW Government information also describes different fines, disqualification consequences, possible imprisonment exposure for some categories, immediate suspension rules and alcohol-interlock consequences. These details change and must be checked against the current legislation and published government information for the relevant offence and date.

Drink-driving matters are generally dealt with summarily in the Local Court, subject to the applicable jurisdiction. A person may plead guilty and proceed to sentencing, or plead not guilty and proceed through a defended-hearing process. A section 10 application, if legally available, is part of the sentencing context; it does not change the underlying finding of guilt.

Section 10 should not be described as an automatic way to prevent licence disqualification, an alcohol interlock, demerit consequences, immediate-suspension effects, statutory restrictions or every other collateral consequence. Whether a particular consequence follows depends on the offence, the relevant statutory provisions, the plea, prior history, court findings and current administrative settings. Current restrictions, penalty tables and interlock rules require a publication-date check.

Neutral preparation checklist

For general preparation, a person may organise the following material for discussion with a lawyer or for checking against the court record:

• the court date, location, case number and exact charge wording;
• the police facts, notices, brief and any other documents provided;
• the relevant licence history and any prior traffic or criminal record information;
• material that may bear on character, health, rehabilitation, employment or other statutory considerations, where properly evidenced;
• information about any immediate suspension, disqualification notice or interlock requirement; and
• questions about the plea, sentencing process, section 10 eligibility and current law.

This checklist does not identify what should be argued in a particular case. It is intended to support orderly preparation only.

Common questions

Official sources

1. NSW Legislation — Crimes (Sentencing Procedure) Act 1999
2. Judicial Commission of NSW — Dismissal of charges
3. Judicial Commission of NSW — Road Transport Legislation
4. NSW Government — Drink and drug driving penalties

Legislation, penalty information, statutory restrictions and interlock settings should be checked again at the publication date and before reliance.