In NSW, non conviction orders are sometimes seen as a ‘second chance’ for people who are generally law-abiding citizens that ‘slip-up’ by committing relatively minor criminal offences.
Getting a section 10 dismissal or conditional release order can help to avoid the potentially career-ending consequences of receiving a criminal record or, in driving cases, a debilitating licence disqualification.
What is a non conviction order?
If you are guilty of a criminal offence in NSW, you will normally receive a conviction on your criminal record.
There are thousands of criminal offences in NSW, the most common of which include drink driving, drug possession and common assault.
There is only one way to avoid a conviction if you plead guilty or are found guilty in court of a criminal offence in NSW, and that is by getting what’s known as a section 10 dismissal or conditional release order – which derives its name from section 10 of the Crimes (Sentencing Procedure) Act 1999.
Under that section, the court may dismiss the charge – meaning that you will not get a criminal conviction, fine or, in driving cases, licence disqualification.
It is possible, however, for a good behaviour bond to be attached to your non conviction order, which can last for up to two years and will require you not to commit any further offences within that period.
Generally, the less serious the offence, the more likely it is that you will get a non conviction order.
However, you should not assume that you will get a non conviction order just because it’s your first offence. For example, over half of all low-range drink drivers receive a criminal conviction, as do many people who are guilty of common assault and drug possession.
On the other end of the scale, it is certainly possible to get a non conviction order for serious offences such as drug supply and ‘assault occasioning actual bodily harm’, although it is generally harder to do so.
The court will look at a whole range of factors when deciding whether to grant a non conviction order; including the nature of the offence, the personal characteristics of the offender, any ‘extenuating’ circumstances and the impact of any conviction or licence disqualification.
Do I have to plead guilty to be eligible for a non conviction order?
It is a myth that you must plead guilty in order to qualify for a non conviction order.
Indeed, you may be able to receive a non conviction order even if you plead ‘not guilty’ and end up losing your defended hearing – although it is generally harder to do so in those circumstances.
The reason it is harder is twofold: firstly, fighting the charges disentitles you to a ‘sentencing discount’ for a guilty plea; and secondly, it indicates an absence of remorse. Both of those factors can work against you when trying to persuade a magistrate or judge to grant you a non conviction order.
Can I get more than one non conviction order?
Another myth is that you can’t get a non conviction order twice.
It is certainly possible to get a non conviction order more than once; but you (or your lawyer) will need to submit very good reasons why you should be given yet another chance.
There is one exception to the rule (that you can get more than one non conviction order). That exception is contained in section 203 of the Road Transport Act 2013, which says that you are not entitled to a non conviction order if you already got a non conviction order for an ‘applicable offence’ in the previous five years.
‘Applicable offences’ are:
- Drink driving;
- Menacing driving;
- Failing to stop and assist after motor vehicle impact causing injury, death or grievous bodily harm;
- Failure to submit to a test or analysis or assessment (for drugs or alcohol);
- Wilful alteration of concentration or amount of alcohol or other drugs;
- Negligent driving; and
- Driving recklessly or in a matter/at a speed dangerous
This means, for example, that you are not able to get a non conviction order for drink driving if you received a non conviction order for ANY of the above offences within the previous five years.
Can I get a non conviction order if I have a criminal record?
You are eligible for a non conviction order in all other cases; including where you have previous convictions.
This means, for example, that if you received a conviction for any ‘applicable offence’ (eg drink driving) at anytime (including within the past five years), you are still eligible for a non conviction order.
In fact, you are eligible for a non conviction order even if you have several previous convictions – although it will, of course, be harder to persuade a court not to record a conviction against you if you already have one, or more.
If you are facing charges and want to know more about your chances of getting a non conviction order, speak to an experienced criminal lawyer as soon as possible.
If you are charged with a driving offence, you may wish to look through the lawyer’s recent traffic law results to get an idea of the outcomes that they achieve in various situations.