Sometimes you can. In NSW a court can find you guilty of an offence and still deal with the matter without recording a conviction, under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is discretionary, not automatic. Whether it is open depends on the offence, your history and your circumstances.

If you have pleaded guilty, or expect to be found guilty, and you are worried about a criminal record, this page explains what section 10 is, how a court decides, the orders it can make, and where to get advice early.

What section 10 means

A section 10 is a sentencing outcome, not a way of beating the charge. The court still finds you guilty. What changes is what it does next: instead of recording a conviction and imposing a penalty, it can deal with the matter without a conviction at all.

Because there is no conviction, the offence does not become part of your criminal record and will not show as a conviction on a standard police check. The finding of guilt still happened, and the court keeps its own record of it, but you are not carrying a criminal conviction into the rest of your life. People also call this outcome a “no conviction” or “non-conviction”.

How a NSW court decides whether to record a conviction

Section 10 is discretionary, which means the court decides case by case. It is not a right, and a clean record does not guarantee it. Section 10(3) sets out what the court weighs up:

  • your character, history, age, health and mental condition;
  • how trivial or serious the offence is;
  • the circumstances that explain how the offence happened;
  • any other matter the court thinks proper to consider.

Two of these are worth a word in plain terms. Character: section 10 is long understood as a way to give someone of otherwise good character a second chance to keep their good name, where a conviction would do more harm than the offence warrants. Good character helps, but is rarely enough on its own. Circumstances: the court is helped by understanding why the offending happened, which is where honest explanation and preparation count.

Does the offence have to be minor?

No. An offence does not have to be trivial for section 10 to be available. Whether an offence is trivial depends on what you actually did and the circumstances, not on the maximum penalty it carries; the High Court made this point in Walden v Hensler (1987) 163 CLR 561. Triviality is one factor, not a gate you must pass through first. That said, the more serious the offence, and the more the case calls for a strong deterrent message, the smaller the room for a section 10 becomes. It is common for matters like low-range drink driving, minor drug possession, and minor first-time offending, and harder, though not impossible, for serious matters.

Your options under section 10

Section 10(1) gives a magistrate or judge three options, all of them without a conviction.

Option What it involves Conviction?
Dismissal (s10(1)(a)) The charge is dismissed outright, with no conditions and no further penalty. The most lenient outcome available. No
Conditional release order without conviction (s10(1)(b)) A bond to be of good behaviour for up to two years, working like a good behaviour bond. The court can add conditions such as supervision or treatment. No
Intervention program order (s10(1)(c)) You take part in a court-approved program, such as a rehabilitation program, and follow the plan that comes out of it. On completion, the charge can be dealt with without a conviction. No

One point of confusion worth clearing up: a conditional release order (CRO) can be imposed two ways. A section 10(1)(b) CRO records no conviction. A CRO under section 9 is imposed with a conviction. They share the same conditions, so only the section 10 version keeps your record clean.

Why the record matters: a conviction can affect work in fields that run background checks, such as teaching, health, government, security and finance. It can affect visa and entry decisions for some countries. For driving matters, avoiding a conviction can mean keeping your licence. These consequences are why section 10 matters so much to people who have otherwise led a law-abiding life.

Domestic violence and section 10: a special rule

Domestic violence offences start from a tougher position. Under section 4A, a court sentencing someone for a domestic violence offence must impose either full-time detention or a supervised order, unless it is satisfied that a different sentencing option is more appropriate in the circumstances and gives its reasons for that view. A section 10 sits outside that default, so courts have been reluctant to grant one for a domestic violence matter. It is not ruled out, but the argument for a different, more appropriate outcome has to be prepared and put to the court carefully.

How Mr Godkin approaches section 10

Mr Godkin is an experienced criminal barrister. He will tell you honestly whether a section 10 is realistically open in your matter, explain each of the three orders and what they would mean for you, and set out what the court will be weighing.

Where a section 10 is realistically available, he prepares and presents that case, supported by the material that carries weight with a court, such as character references, a considered letter of apology, and evidence of steps taken since the offence. The decision rests with the court, and the outcome depends on the offence, your history and your individual circumstances. What you control is how well that case is prepared and argued.

What happens at a sentencing hearing

A section 10 is argued at sentencing, once you have pleaded guilty or been found guilty. At the hearing, the prosecution sets out the facts of the offence and your prior record, if any. Your barrister then puts forward the material that supports dealing with you without a conviction, and makes submissions on why a section 10 fits the factors in section 10(3).

The magistrate (in the Local Court) or judge weighs that material, then either decides on the day or adjourns to consider it. Straightforward Local Court matters are often dealt with in a single short hearing. More serious matters can involve adjournments for reports and take longer to finalise.

Common mistakes

  • Assuming a clean record guarantees a section 10. There is no automatic right, even for a first offence. The court still weighs everything up.
  • Turning up unprepared. A section 10 is won on preparation. Thin material and no references leave the court little to work with.
  • Downplaying the offence instead of explaining it. Courts respond to genuine insight, not excuses.
  • Forgetting that a past section 10 counts against you. A court is less likely to grant a second one, so the first is worth getting right.

Frequently asked questions

Does a section 10 show up on a police check? A section 10 does not record a conviction, so it does not appear as a conviction on a standard police check. The court still made a finding of guilt and keeps its own record of the matter.

Does the offence have to be trivial to get a section 10? No. Triviality is one factor the court considers, not a precondition. A section 10 can be available for an offence that is not trivial, though it becomes harder as an offence gets more serious.

Can you get a section 10 for a second offence or a serious charge? It is possible but more difficult. A court is less likely to grant a section 10 if you have had one before, or where the offence is serious and calls for deterrence. Each case is decided on its own facts.

Is a section 10 the same as being found not guilty? No. A section 10 is a sentencing outcome after the court finds you guilty. It is not an acquittal. What it avoids is the conviction and criminal record, not the finding of guilt.

Can you get a section 10 for a domestic violence offence? It is harder. Section 4A steers domestic violence sentences toward full-time detention or a supervised order unless a different option is more appropriate, so a section 10 is not the usual outcome and has to be argued carefully on the facts.

When to speak with a barrister

Speak with a criminal barrister early if you have pleaded, or expect to plead, guilty and want to keep a conviction off your record; your matter is one where a section 10 might be open, such as low-range drink driving, minor drug possession or minor first-time offending; your matter is a domestic violence offence where section 4A applies; or you simply want a clear view of whether a section 10 is realistic in your case. The earlier advice is obtained, the more can be done to prepare.

Get advice on avoiding a criminal record

If you are facing court in NSW and want to protect your record, Mr Godkin can explain whether a section 10 is realistic in your case and what it would involve.

Call to arrange a free first one-hour conference: 02 9235 3033.

This page is general information about NSW law as at 2026 and is not legal advice. Sentencing is discretionary and every case turns on its own facts. For advice about your matter, arrange a conference.

Further reading (authoritative sources):

  • Crimes (Sentencing Procedure) Act 1999 (NSW), section 10: https://legislation.nsw.gov.au/view/html/inforce/current/act-1999-092
  • Judicial Commission of NSW, Sentencing Bench Book (Dismissal of charges and conditional discharge): https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/dismissal_of_charges.html