Many people who find themselves on the wrong end of a criminal charge hope to secure a “section 10 dismissal or conditional release order” also known as a plea of guilty to avoid a criminal conviction. The actual benefits of that result are often misunderstood.
A reference to “section 10 dismissal” is a reference to section 10(1)(a) of the Crimes (Sentencing Procedure) Act. That law provides that a Court may find a person guilty of an offence and “Without proceeding to conviction” make “an order directing that the relevant charge be dismissed”.
Although the section provides that a Court deals with a charge “without proceeding to conviction” it is not that law itself that confers the benefit. The fact or otherwise of a conviction is governed by another statute (law), the Criminal Records Act 1991.
The same provision provides that any question concerning a person’s criminal history or a question of fitness or character in any other law is taken to be a question that relates only to convictions that are not spent.
The police, both State and Federal, will generate a criminal history, a record of a person’s appearances before a Court irrespective of whether the matter is dealt with under a non conviction order.
The record is admissible in any future Court proceeding. The issue is whether a person is required to disclose that information and indeed whether police can disclose that information.
A criminal history record is confidential. It cannot be accessed by the public, for example, a potential employer, unless they have the authority of the person to whom the record relates. It is an offence in contravention of section 13 for any person to unlawfully disclose information about a spent conviction, including a law enforcement agency.
There are exceptions including a law enforcement agency disclosing that information to another law enforcement agency. It follows that when police are authorised to release a criminal history record, the record will not contain any reference to spent convictions.
What and when is a spent conviction?
The answer is found in section 8 of the Criminal Records Act. However for the purposes of the affect of at least part of section 10(1)(a), 10(1)(c) or a conditional release order without a conviction, the answer is not entirely clear.
Section 8(2) provides, “A finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction is spent immediately after the finding is made.” The magical (“operative” in lawyer speak) words are underlined. It is the same phrase found in section 10(1) of the Crimes (Sentencing Procedure) Act. They are words that precede and provide the foundation for each of the options in paragraphs (a), (b), and (c).
It is a phrase found only in section 10 dismissal and not in any other penalty provision.
On that basis it seems readily apparent that any outcome under a non conviction order results in a conviction becoming spent immediately and not ever being required to be disclosed. That is the plain English meaning of the words found in section 8(2).
But, that is (in our view unfortunately) not the end of a matter. Subsection (4) of the same provision introduces a level of confusion, because on one reading it is inconsistent with the section 8(2) position that any section 10(1) outcome results in a conviction being spent immediately.
Subsection (4) provides,
“A finding that an offence has been proved, or that a person is guilty of an offence, and:
- the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period, on participating in an intervention program or on other conditions determined by the court, or
- the releasing of the offender on probation on such conditions as the court may determine, for such period of time as it thinks fit, is spent on satisfactory completion of the period or satisfactory compliance with the program (including any intervention plan arising out of the program) or conditions, as the case may require.”
Paragraph (b) is irrelevant for present purposes. Probation is a Children’s Court outcome.
Subsection (4) provides that rather than being spent immediately, a conviction will only be spent on successful completion of certain Court orders. The issue is the application (if any) of this subsection to a conditional release order without conviction or intervention program pursuant to section 10(1)(c).
As discussed above the plain meaning of subsection (2) covers the field and applies to all non conviction order outcomes because it speaks to a foundation common to all three possible outcomes, that the Court makes an order, “without proceeding to a conviction”.
The principles of statutory interpretation require each subsection to be considered in context and by reference to other subsections and laws. It is not unusual for a subsequent provision of the same law or another law to qualify the meaning of an earlier provision.
The important words in subsection (4) are underlined, in particular the reference to, “the discharging of…a person”. Those words are emphasised because that phrase is only found in non conviction orders. Whilst the sentencing legislation provides a power for a Court to impose other bonds, a section 9 bond (conviction bond) and a section 12 bond (suspended sentence of imprisonment), those provisions use a different form of words, a reference to “releasing” a person on a bond.
Another principle of statutory interpretation presumes that the choice of words in any law is deliberate and designed to have a real effect. Lawyers sometimes pose the question, “what work do these words do?” Applied to this issue, the argument proceeds that the use of the phrase “the discharging of…a person” is a deliberate reference to a conditional release order without a conviction or an intervention order under section 10(1)(c), and that in those circumstance a conviction will only be spent on completion of the bond.
If correct, that position is still a vast improvement on the result if for example the Court imposes a fine or community service. In most cases, a conviction is only spent on the expiry of the relevant crime free period, 10 years. It should be noted that convictions for certain offences are incapable of ever becoming spent irrespective of a section 10(1) or conditional release order outcome, for example some sexual offences.
As engrossing as these esoteric questions of law may be, the reality is that the New South Wales Police Force and Australian Federal Police are responsible for the release of criminal history information. Whatever we might argue as criminal lawyers, it is their interpretation and the policies they apply that determine what is disclosed in practice.
And on that basis we can avoid climbing off the fence on the issue.
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