Legal Articles

What will the court consider when deciding if you can get a section 10?

By 25 September 2017October 27th, 2017No Comments

(“How do I get a section 10”?)

Before a Magistrate will decide if an accused person deserves a section 10, there are certain things the Magistrate will take into account. (see our blog – “what is a section 10?” –there are 3 types of s10’s).

The same law that makes it possible for a Magistrate to accept that the accused committed the offence but decides not to convict them, also lists what the court must take into account in deciding whether or not to sentence someone by way of section 10.

The court will consider the following things about the person*:

  • The person’s character (references assist the court to do this**); and
  • Prior criminal history (or traffic history, if relevant) (a/k/a “their priors” or “local court report”) – put another way, if you have any prior convictions for any other, or similar, offences, on your record – this is relevant to whether or not you’ll get a s10; and
  • Their age and health; and
  • Mental condition (if you’re seeing a psychologist or D&A counsellor, it may be relevant to get a report – it really depends on your charge and the circumstances); and
  • The (trivial) nature of the offence; and
  • Any extenuating circumstances in which the offence was committed; and
  • Any other matter the court thinks proper to consider.

The sentence imposed by the Magistrate is made after the Magistrate invites the accused (or their lawyer) to make sentencing submissions.  That’s where this list comes in – if you want a s10, but much of the list is relevant to all sentencing submissions.  However sentencing submissions usually address more than just the above list, and good sentencing submissions will capture the essence of the person, in the context of the offence, to try and minimise the penalty.  If you’ve plead guilty, then the sentencing submissions become the only meaningful chance to tell your story to the Magistrate – about why you find yourself before the courts.

 

*This list is set out in s(10)(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

** We have a free Guide to Writing References to Court.  If someone is writing you a reference for court then just give them this link and ask them to follow the guidelines.

https://www.localcourtlawyers.com.au/write-reference-court/

 

This is NOT legal advice.  This is designed to take some of the mystery out of the law for ‘google-lawyers’.  I repeat – it is not legal advice.  But we hope it helps.

If you need a Lawyer and want us to represent you, the Local Court Lawyers are experts in all local court matters. We come to you, anywhere in NSW, but our head office is on the north coast: Coffs Harbour, Grafton, MacLean, Ballina, Byron Bay, Mullumbimby, Murwillumbah or Tweed local courts.