Dismissal of charges and conditional discharge

[5-000] Introduction

Section 10 Crimes (Sentencing Procedure) Act 1999 identifies the following three orders which may be made when a court decides not to convict an offender:

s 10(1)(a) order, dismissing the relevant charges
s 10(1)(b) order, discharging the person under a conditional release order (CRO)
s 10(1)(c) order, discharging the person on condition of participation in an intervention program.

A CRO may be made under s 10(1)(b) if the court is satisfied under s 10(2):

(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 CRO.

An order under s 10(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: s 10(2A).

Section 10(1) orders can be made with or without conditions: see [4-720] in Conditional release orders (CROs).

Section 10(3) sets out the factors a court must consider when determining whether or not to make such an order: see Application of factors in s 10(3) at [5-030].

In Hoffenberg v District Court of NSW [2010] NSWCA 142 at [8], Basten JA explained the structure of s 10:

Section 10 is relevantly broken into three parts, the first conferring a power to make an order of a particular kind; the second prescribing that the order “may be made” if the court is satisfied of certain matters, although not stating that the court must be so satisfied to make such an order, and the third identifying factors which, in considering whether to make such an order, the court “is to have regard to”. While the logic of the new structure is apparent, its effect is obscured.

[5-005] Orders made under s 10(1)(b) before 24 September 2018

A good behaviour bond imposed without proceeding to conviction pursuant to s 10(1)(b) was replaced with a conditional release order (CRO) on 24 September 2018 when the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 commenced.

A s 10(1)(b) bond in force before 24 September 2018 is subject to the transitional provision in Sch 2, Pt 29, cl 75 Crimes (Sentencing Procedure) Act 1999, which provides that this type of good behaviour bond is taken to be a CRO made under s 9 without proceeding to conviction: cl 75(2). The order will expire on the date set by the sentencing court which imposed the original bond.

Pursuant to Sch 2, Pt 29, cl 75(3), s 10(1)(b) orders in force before 24 September 2018 are subject to:

standard CRO conditions
any conditions imposed on the original bond under s 95(c) in force before 24 September 2018 and
any other conditions prescribed by the regulations.

[5-010] Power to make s 10(1)(b) orders operates with s 9

Last reviewed: August 2023

Under s 9 Crimes (Sentencing Procedure) Act 1999, a court may make a conditional release order (CRO) if it determines not to convict the offender but make an order under s 10(1)(b). A CRO, whether or not a conviction is recorded, is limited to a maximum period of 2 years: s 95(2). The only relevant distinction between a CRO made under s 9 and a s 10(1)(b) order is that a conviction is not recorded when the order is made under s 10(1)(b).

As a “general proposition”, the fact a conviction is recorded is a matter of special significance: R v Mauger [2012] NSWCCA 51 at [37]–[39]. However, the fact a conviction is not recorded should not “dilute or downgrade the significance of the imposition of a [s 10] bond”: R v Mauger per Harrison J (Beazley JA and McCallum J agreeing) at [37]. The court observed there were onerous consequences if an offender failed to comply with an order made under the previous s 10(1)(b) and it should not be assumed that because a court decided not to record a conviction that the sentence is automatically inadequate or lenient: R v Mauger at [37].

See Procedures for making a CRO at [4-720] for the various statutory requirements.

[5-020] Use of s 10 orders generally

Last reviewed: August 2023

The task of the court applying s 10 was described by McClellan CJ at CL as a “deliberative process” in Hoffenberg v District Court of NSW [2010] NSWCA 142 at [29].

Sentencers should be particularly cautious in the use of s 10 orders since excessive or inappropriate use can undermine confidence in the administration of justice. Section 10 provides a useful safety valve for ensuring that justice can be served in circumstances where, despite a breach of the law, there are such extenuating circumstances or the matter is so trivial that punishment does not seem appropriate. In R v Ingrassia (1997) 41 NSWLR 447 at 449, Gleeson CJ said of the statutory predecessor of s 10, s 556A Crimes Act:

The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, “a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice”.

In R v Mauger [2012] NSWCCA 51, the court applied R v Ingrassia and held that the legal and social consequences of recording a conviction far outweighed the requirements of punishment, denunciation and (specific and general) deterrence: R v Mauger at [40]; see also [5-030] Application of factors in s 10(3) .

Impermissible to use s 10 order merely to circumvent operation of statute

It is improper and undesirable to dismiss a matter under s 10(1) without a conviction merely to avoid some other legislative provision which is otherwise applicable: R v Fing (unrep, 4/10/94, NSWCCA); R v Stephenson [2010] NSWSC 779 at [66]. In R v Fing, the former s 229 Corporations Law 1989 (Cth) provided that a person convicted of serious fraud could not, within five years after conviction, manage a corporation without the leave of the court (see now Pt 2D.6 Corporations Act 2001 (Cth)). The recording of a conviction in effect prevented the applicant from being involved in the management of corporations he established. He argued that it was an added penalty which should be avoided by applying the statutory predecessor of s 10, s 556A. The court rejected this submission, holding that if the appropriate penalty is a fine (other than a nominal fine), the appropriate course is to convict the offender and impose a fine rather than apply s 556A (rep).

[5-030] Application of factors in s 10(3)

Last reviewed: August 2023

Section 10(3) provides:

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.

The court must have regard to all of the factors set out in s 10(3) in deciding whether to make an order under s 10. Notwithstanding the phrase “the court is to have regard to”, the factors in s 10(3) are not in truth mandatory considerations as para (d) includes “any other matter that the court thinks proper to consider” and, as such, the purpose of s 10 is to ensure that the court considers the full range of factors it considers relevant: R v Mauger at [41]. Care must still be taken to expressly consider each s 10 factor: R v Paris [2001] NSWCCA 83 at [42]. It is impossible and inappropriate to delineate all the situations that could warrant an order under s 10 notwithstanding the objective seriousness of the offence. Extenuating circumstances may or may not justify an order under s 10. For example, where a person is suddenly compelled in an emergency situation to drive someone to hospital.

In R v Mauger, the subjective feature of the offender’s employment, where his contract of employment enabled the termination of his employment upon being charged with a criminal offence if his employer reasonably believed his employment could be negatively affected was found to be a matter the court was entitled to take into account pursuant to s 10(3)(d): at [28]. The court rejected the Crown’s argument that being charged automatically led to dismissal and therefore was not relevant to the court’s assessment of the impact of a conviction: R v Mauger at [27]–[28].

The scope for the application of s 10 decreases where the offence is objectively serious and general deterrence and denunciation are important factors in sentencing for the offence: Application by the Attorney General under Section 37 of the Crimes Sentencing Procedure Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 (the High Range PCA Guideline Judgment) per Howie J at [131]–[132] (see, for example, TC v R [2016] NSWCCA 3 at [58] involving historical child sexual assault committed by a juvenile offender where a conviction and s 9 good behaviour bond (as was then available) was held not to be unreasonable or plainly unjust).

However, the focus must be on the particular conduct of the offender and the circumstances of the offending, rather than the “abstract” offence itself: R v Mauger at [19] applying Walden v Hensler (1987) 163 CLR 561 at 577. At times, the requirement of punishment, denunciation or deterrence are outweighed by the non-recording of a conviction: R v Mauger at [40]. See also, for example, the “unique” case of R v AB [2022] NSWCCA 3 at [53]–[54], [60] where a conditional release order without conviction under s 10(1)(b) imposed for a number of child sexual offences was held not to be manifestly inadequate.

First offenders

It has been held that the dismissal of charges against first offenders in certain circumstances is appropriate. This power reflects the willingness of the legislature and the community to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character: R v Nguyen [2002] NSWCCA 183 at [50]. In R v Ingrassia (1997) 41 NSWLR 447 at 449, the court acknowledged that the “legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court” and the fact that a person is subject to these additional adverse consequences is a relevant consideration in the exercise of the statutory discretion.

“Mental condition” in s 10(3)(a)

For a court to take into account “mental condition” in s 10(3)(a), it is not necessary that “the illness was causally connected with the offence”: David Morse (Office of State Revenue) v Chan [2010] NSWSC 1290 at [66]. Nor is it restricted to the offender’s mental condition at the time of the offence: Morse v Chan at [66]. Section 10(3)(a) permits consideration of the consequences of suffering the mental condition and allows the court to have regard to offender’s condition “at the time of sentence”: Morse v Chan at [74].

“Trivial nature of the offence” in s 10(3)(b)

The decision of Walden v Hensler (1987) 163 CLR 561, which dealt with a materially similar provision to s 10 (s 675A Criminal Code (Qld), as it was then), has been used to inform the meaning of “the trivial nature of the offence”. Brennan J said, at [25]:

Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty.

In R v Paris [2001] NSWCCA 83 at [42], Simpson J said:

It is not necessary to the application of s 10 that the offence be characterised as trivial; the four factors mentioned in subs 3 are, in my view, intended to be disjunctive and nonexhaustive.

R v Paris is to be contrasted with the majority view in R v Piccin (No 2) [2001] NSWCCA 323 at [22] where the court held it is necessary to find that the offence is trivial before a s 10 order can be made. But in Chin v Ryde City Council [2004] NSWCCA 167, the court accepted the appellant’s submission, based upon Hulme J’s dissenting opinion in R v Piccin (No 2) at [25]. Hodgson JA said, in Chin v Ryde City Council, at [38]: “… s 10 may be applied even if the offence is not found to be trivial”.

In Morse v Chan, above at [65], Schmidt J observed that the approach to the construction of s 10(3) by the majority in R v Piccin (No 2) does not accord with the High Range PCA Guideline Judgment at [131] (quoted below).

[5-035] Corporations and s 10 orders

Section 21(1) Interpretation Act 1987 provides that “person” in any Act or instrument includes an individual, a corporation and a body corporate or politic. Section 10 dismissals have been imposed on corporations: see DPP (NSW) v Roslyndale Shipping Pty Ltd (2003) 59 NSWLR 210; Environment Protection Authority v Allied Industrial Services Pty Ltd [2005] NSWLEC 501 at [35].

The Commonwealth equivalent to s 10 — s 19B Crimes Act 1914 (Cth) — has also been applied to corporations: see R v On Clinic Australia Pty Ltd (unrep, 6/11/96, NSWCCA).

For a discussion of the application of s 10 to corporations, see Environment Protection Authority v Fernando [2003] NSWLEC 281 at [32].

Section 10 orders with conditions have not been imposed on corporations. An order with conditions may present practical problems including how proceedings for any breach of a condition would be conducted.

[5-040] Use of s 10 orders for particular offences

High range PCA offences

It has been held that an order dismissing a charge under s 10 has been used too frequently in high range prescribed content of alcohol (PCA) cases and a guideline for sentencing for this offence has been promulgated: Application by the Attorney General under Section 37 of the Crimes Sentencing Procedure Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 (the High Range PCA Guideline Judgment). In that case, Howie J (Spigelman CJ, Wood CJ at CL, Grove and Dunford JJ agreeing) said at [130]–[132]:

I accept that s 10 must apply to the offence of high range PCA and there may be cases where, notwithstanding the objective seriousness of the offence committed, it is appropriate in all the circumstances to dismiss the charge or to discharge the offender. But those cases must in my view be rare. They must be exceedingly rare for a second or subsequent offence. I accept that the court must concentrate on the particular conduct of the offender and the circumstances of offending rather than on the nature of the offence in determining whether the particular offence before the court is trivial: Walder v Hensler (1987) 163 CLR 561 at 577. I am prepared to acknowledge the possibility that there may be cases where the offending is technical (rather than trivial), there being no real risk of damage or injury arising from the driving, so that the highly exceptional course in making an order under the section would be justified.

The court must also have regard to all of the criteria in s 10(3) in determining whether a dismissal of the offence or a discharge of the offender is appropriate: R v Paris [2001] NSWCCA 83. I recognise that there can be cases where there were such extenuating circumstances that a dismissal or a discharge under s 10 might be justified. It is impossible and inappropriate to delineate the situations in which an order under s 10 might be warranted notwithstanding the objective seriousness of the offence. One example might be where the driver becomes compelled by an urgent and unforseen circumstance to drive a motor vehicle, say, to take a person to hospital.

But where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of the offence committed. To recognise this fact is not to impose an undue restriction upon the section or to change the criteria for its operation on an offence by offence basis. Such an approach would clearly be erroneous. It is simply to apply normal sentencing principles to the offence under consideration. However, just as the discretion inherent in the section cannot be limited by the application of some overreaching general principle, neither can it be broadened simply because a court does not agree with Parliament’s view of the seriousness of a particular offence or believes that in general the penalties imposed under the scheme of the legislation are unduly harsh or unpalatable.

A study by the Judicial Commission of NSW in 2005 found that since the High Range PCA Guideline Judgment, and the empirical research and educational programs leading up to it, there had been a decline in the use by magistrates of s 10 dismissals for high range PCA offences: P Poletti, “Impact of the High Range PCA Guideline Judgment on sentencing drink drivers in New South Wales”, Sentencing Trends & Issues, No 35, Judicial Commission of NSW, 2005. This trend was confirmed in a later study: M Karpin and P Poletti, “Common offences in the NSW Local Court: 2007”, Sentencing Trends & Issues, No 37, 2008.

Intentionally or recklessly destroying or damaging property

In Hoffenberg v District Court of NSW [2010] NSWCA 142 at [25], it was held that a finding of the Chief Judge (in a severity appeal from the Local Court) that a deliberate act of vandalism placed the s 195(1)(a) Crimes Act 1900 offence beyond the “trivial” was open. The Chief Judge discharged the obligation to consider the statutory factors in s 10(3) and “there was no error in the deliberative process followed”: per McClellan CJ at CL at [29].

Aggravated break and enter with intent to commit a serious indictable offence

In R v Lord [2001] NSWCCA 533 at [18], it was held that the sentencing judge erred in finding extenuating circumstances under s 10(3). There was a failure to approach s 10 with the required two-step process. Nor did her Honour identify the provision within s 10 to which she had regard. Inadequate weight was given to the objective seriousness of the offence by reason of the offender’s subjective circumstances.

Affray

In R v Goh [2002] NSWCCA 234, a Crown appeal where a charge of affray was dismissed pursuant to the provisions of s 10, Blanch AJ (Spigelman CJ and Adams J agreeing) observed at [15]:

the exercise of a discretion not to record a conviction under s 10 is not common for an offence tried on indictment
there are strong policy reasons for imposing sentences reflecting general deterrence where an affray takes place in an area with an unfortunate history of violence.

However, taking into account the respondent’s antecedents and youth, the extenuating circumstances, and the sentencing judge’s characterisation of the offence as at the bottom of the scale of seriousness, it could not be said that the order of the judge was manifestly inadequate: R v Goh at [15].

Marine pollution

There is no practice in cases of marine pollution for a “blameless” master to be discharged without conviction whenever the company is convicted. Each case requires the exercise of discretion on the basis of the entire circumstances: Thorneloe v Filipowski (2002) 52 NSWLR 60 at [113]. It was further held in that case that even in the context of a strict liability offence like s 27 Marine Pollution Act 1987, the risk to which society was subjected is a proper matter to be taken into account when considering whether the charge should be dismissed under s 10: Thorneloe v Filipowski at [156].

Thorneloe v Filipowski was applied in DPP (NSW) v Roslyndale Shipping Pty Ltd (2003) 59 NSWLR 210, where the court held that a dismissal of a strict liability pollution offence was a permissible sentencing option. The sentencing judge’s conclusion that “neither of the defendants could have done anything to avert the event that occurred” was open to her Honour. There was no visible warning of a character sufficient, in all the circumstances, to put the respondent on notice of a likely equipment failure: DPP (NSW) v Roslyndale at [21], [23].

Sexual intercourse with child between the age of 10 and 16 yrs

In R v KNL (2005) 154 A Crim R 268, the court held that the sentencing judge erred in the manner he approached the imposition of the s 10 bond (as then available) by failing to observe the factors a court is to have regard to in deciding whether to make an order under s 10. One of these factors is whether the offence is trivial: s 10(3)(b). The Crown referred to R v McClymont (unrep, 17/12/92, NSWCCA) where the general policy underlying the response to offences of this nature was said to reside in the need to protect children from sexual conduct, even though they may be willing participants. The NSWCCA re-sentenced the respondent by recording a conviction and imposing a s 9 bond (as then available).

[5-050] Meaning and effect of s 10 orders

Section 10(4) provides:

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 Part 4 of the Victims Compensation Act 1996, 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.

A person subject to a s 10 order “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”: s 10(5).

In R v Ingrassia (1997) 41 NSWLR 447 at 450, Gleeson CJ stated, albeit in the context of s 556A (long since repealed), that:

… it is contrary to common law principle that a person who has not been convicted of an offence should be punished by order of a court.

It follows that conditions which may be imposed in respect of a conditional release order made under s 10(1)(b) should not be of such a nature that they involve further punishment.

There may be statutory exceptions to this common law principle. These include those specifically referred to in s 10(4). For example, a condition that an offender pay a donation cannot be made under s 10(1)(b): R v Ingrassia (1997) 41 NSWLR 447 at 450. Chief Justice Gleeson said of the statutory predecessor of s 10 that it “is not a provision to be used for the purpose of soliciting gifts, whether to the revenue, to charities, or to anyone else”: R v Ingrassia at 451.

[5-060] Demerit points and s 10 orders

Section 31(4) Road Transport Act 2013 states that the Authority (as defined in s 4(1) Road Transport Act) cannot record demerit points against a person in respect of an offence if the court makes an order under s 10 Crimes (Sentencing Procedure) Act 1999.

[5-070] Restriction on use of s 10 orders for s 203 Road Transport Act 2013

Under s 203 Road Transport Act 2013 — a section dealing with a court’s power to impose penalties and disqualify offenders from holding a driver’s licence — there is a restriction on the court’s power to make an order under s 10 where the offender has had the benefit of one in the previous five years.

Section 203 provides:

(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, 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 under section 52AB of the Crimes Act 1900,

(e)

(repealed)

(f)

(repealed)

(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).