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  • Writer's pictureGeoff Harrison

Section 10 - Dismissal of charges and conditional discharge of offender

Updated: Nov 3, 2023


Best Barrister, Best Lawyer, Best Solicitor, Best Criminal Barrister, section 10, no conviction, no record, criminal barrister, criminal lawyer

Published by Geoff Harrison | 5 September 2023


Upon a person pleading guilty or being found guilty for a criminal offence, the only sentencing provisions that do not involve a criminal conviction are s10(1)(a) and s9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 ('the Act'). Under s10(1)(a) of the Act, the offence is found proven however, the matter is dismissed. Under s9(1)(b) of the Act, the person is discharged upon entering into a Conditional Release Order for up to a maximum term of 2 years: s95 of the Act. The relevant factors that the court is to have regard to in deciding whether to make such an order or not, are set out in ss10(3) and 9(2) of the Act.


See the Sentencing Bench Book guideline below and relevant cases.


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CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 10

Dismissal of charges and conditional discharge of offender


(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders--

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.


(1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph.


(2) An order referred to in subsection (1) (b) may be made if the court is satisfied--

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to discharge the person under a conditional release order.


(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.


(2B) Subsection (1) (c) is subject to Part 8C.


(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors--

(a) the person's character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.


(4) An order under this section has the same effect as a conviction--

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under the Victims Rights and Support Act 2013 , Part 6, and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

Note : Certain other Acts and regulations contain provisions to the effect that an order under this section made in respect of an offence is to be treated as a conviction for certain purposes of the legislation concerned. Accordingly, those provisions apply to an order under subsection (1) (b) in respect of the offence and a conditional release order made pursuant to that paragraph.


(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.


CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 9

Conditional release orders


(1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if--

(a) the court proceeds to conviction, or

(b) the court does not proceed to conviction but makes an order under section 10 (1) (b).


(2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors--

(a) the person's character, antecedents, age, health and mental condition,

(b) whether the offence is of a trivial nature,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

Note : These factors are considered under section 10 in respect of an order under section 10 (1) (b) in connection with a conditional release order without a conviction.


(3) To avoid doubt and without limitation--

(a) a fine and a conditional release order cannot be imposed in relation to the offender in respect of the same offence, and

(b) a conditional release order with a conviction may be made as an alternative to imposing a fine.


(4) This section is subject to the provisions of Part 8.


CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 95

Term of conditional release order


(1) The term of a conditional release order is the period specified in the order.


(2) The maximum term of a conditional release order is 2 years.



ROAD TRANSPORT ACT 2013 - SECT 203

Section 10 of Crimes (Sentencing Procedure) Act 1999 not applicable in certain circumstances


(cf Gen Act, s 187(6))


(1) Section 10 of the Crimes (Sentencing Procedure) Act 1999 does not apply if a person is charged before a court with an applicable offence if, at the time of or during the period of 5 years immediately before the court's determination in respect of the charge, that section is or has been applied to or in respect of the person in respect of a charge for another applicable offence (whether of the same or a different kind).


(2) Each of the following is an

"applicable offence" for the purposes of subsection (1)--

(a) an offence against section 110, 111, 111A, 112(1), 118 or 146 or clause 16(1)(b), 17 or 18 of Schedule 3,

(b) an offence against section 117(1) of driving negligently (being driving occasioning death or grievous bodily harm),

(c) an offence against section 117(2) of driving a motor vehicle on a road furiously or recklessly or at a speed or in a manner which is dangerous to the public,

(d) an offence against section 52AB of the Crimes Act 1900 ,

(g) an offence against a provision of an Act or statutory rule that is a former corresponding provision in relation to a provision referred to in paragraph (a), (b), (c) or (d),

(h) an offence of aiding, abetting, counselling or procuring the commission of an offence referred to in paragraph (a), (b), (c), (d) or (g).




Cases:


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