Convictions vs Non-Convictions in NSW: Why the Difference Matters
In NSW criminal and traffic matters, being found guilty does not automatically mean a conviction is recorded. Under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court can find a person guilty but decide not to record a conviction at all. This matters because a recorded conviction can affect visa applications, some employment and licensing checks, insurance, and how a police check reads. A non-conviction outcome may reduce or avoid some of these consequences, although findings of guilt can still be relevant for some visa, employment, licensing and screening purposes. Whether a court will consider a non-conviction outcome depends on factors such as the person’s character, age, health, the triviality of the offence and the circumstances in which it happened. This article explains the difference, the process, and what to prepare for a matter listed at Hornsby Local Court or another NSW court.
Jurisdiction
This article applies to criminal and traffic matters dealt with in New South Wales courts, including the Local Court, District Court and Supreme Court, under the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Criminal Records Act 1991 (NSW). It does not cover Commonwealth (federal) offences, which are sentenced under different provisions of the Crimes Act 1914 (Cth), or the laws of other Australian states and territories. If your matter involves a Commonwealth offence or interstate proceedings, the rules may differ and you should obtain specific advice.
What Does ‘Conviction’ Actually Mean?
A conviction is the court’s formal record that a person has been found guilty of an offence, whether by a guilty plea or after a hearing. Once a conviction is recorded, it generally becomes part of that person’s criminal record and can be disclosed on a police check, subject to the spent convictions rules discussed below.
A non-conviction outcome under section 10 means the court has found the person guilty, or the person has pleaded guilty and the offence is proved, but the court decides not to formally record a conviction. The finding of guilt still exists in the court record, but for most practical purposes the person is treated as not having a criminal conviction for that offence.
Key Terms Explained
The table below explains the terms used in this article in plain English.
| Term | Plain-English meaning |
| Conviction | The court’s formal record that a person has been found guilty of an offence. |
| Section 10 (non-conviction) | An order under s10 Crimes (Sentencing Procedure) Act 1999 (NSW) where the court finds the person guilty but does not record a conviction. |
| Section 10(1)(a) dismissal | The charge is dismissed outright, with no conviction and no conditions. |
| Conditional Release Order (CRO) | A court order, similar to a good behaviour bond, of up to 2 years, made under s9 Crimes (Sentencing Procedure) Act 1999 (NSW) — either with a recorded conviction, or without conviction where the court proceeds under s10(1)(b). |
| Intervention program order | A s10(1)(c) order discharging a person, without conviction, on condition that they enter an agreement to participate in an intervention program and comply with any resulting intervention plan. |
| Spent conviction | A conviction, or a finding of guilt/court outcome treated as a conviction under the Criminal Records Act 1991 (NSW), that no longer needs to be disclosed in most situations. Recorded convictions generally become spent after a crime-free period; some non-conviction findings become spent immediately: s5 and s8 Criminal Records Act 1991. |
| Disclosable court outcome | A finding of guilt, conviction or certain court order that can appear on a National Police Certificate. |
| Character test | The Migration Act 1958 (Cth) test the Department of Home Affairs applies to visa applicants and holders, which can consider both convictions and non-conviction findings of guilt. |
Why the Difference Matters
A conviction and a non-conviction outcome can lead to very different long-term results, even where the underlying offence and penalty (such as a fine or bond) look similar. The comparison below sets out the general position. It is a guide only — outcomes depend on the specific check, employer, licensing body or visa category involved.
| Issue | Recorded conviction | Non-conviction (s10) outcome |
| National Police Certificate | Generally appears until it becomes spent (10 years for adults, subject to exceptions). | A s10 finding is treated as “spent” immediately under the Criminal Records Act 1991 (NSW), so it generally does not need to be disclosed, though the charge and outcome may still be recorded internally by NSW Police. |
| Employment and licensing checks | May need to be disclosed depending on the role, industry or licensing body. | Usually does not need to be disclosed as a ‘conviction’, but some regulators still ask about findings of guilt. |
| Overseas travel and visas | Can be relevant to the character test under the Migration Act 1958 (Cth) and to some countries’ entry requirements. | May still be relevant in some cases, since a finding of guilt can exist even without a recorded conviction — disclosure obligations vary by country and visa type. |
| Working with Children / vulnerable persons checks | Disclosed, subject to the specific check’s rules. | Certain non-conviction outcomes for relevant offences can still be disclosed for these specific checks. |
| Insurance and professional registration | Often must be disclosed on renewal or application forms. | Often does not need to be disclosed, but the exact wording of the form should be checked carefully. |
| Right of appeal | Can be appealed. | Can also be appealed — a s10 order does not remove the right to appeal a finding of guilt: s10(5) Crimes (Sentencing Procedure) Act 1999. |
Because some checks and forms ask about ‘findings of guilt’ rather than only ‘convictions’, a non-conviction outcome does not always mean an offence can be answered ‘no’ to every question. You should always read the exact wording of any form carefully, or ask a solicitor to check it with you.
How the Court Decides: Conviction or Non-Conviction
When a person pleads guilty or is found guilty in a NSW court, the magistrate or judge must decide how to deal with the matter. The numbered steps below summarise the general process for a Local Court matter.
- The charge is read and the person enters a plea, or the matter proceeds to a hearing and a finding of guilt is made.
- The prosecution outlines the facts, and the defence has the opportunity to make submissions on penalty, including whether a non-conviction outcome should be considered.
- The court considers the factors set out in section 10(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW): the person’s character, antecedents, age, health and mental condition; the trivial nature of the offence; the extenuating circumstances in which it was committed; and any other matter the court considers proper.
- The court also weighs the objective seriousness of the offence. Section 10 remains available even for offences that are not trivial, but the more serious the offence, the narrower the scope for a non-conviction outcome becomes.
- The court decides on one of the available orders: a s10(1)(a) dismissal, a Conditional Release Order without conviction under s10(1)(b), an intervention program order under s10(1)(c), or a penalty with a conviction recorded (such as a fine, CRO with conviction, or other sentence).
- If a conviction is recorded, the standard spent convictions timeframes under the Criminal Records Act 1991 (NSW) may eventually apply, subject to exclusions such as sentences of more than six months’ imprisonment or sexual offences.
Document Checklist Before Your Court Date
Preparing these documents in advance helps your solicitor give you clear advice about whether a non-conviction outcome is realistic in your matter.
- Court Attendance Notice (CAN) or court papers
- Police facts sheet, if provided
- Any character references (recent, specific and signed)
- Evidence of good character — for example, employment records, volunteering or study
- Medical or psychological reports, if health is relevant to your matter
- Evidence of any rehabilitation steps already taken (for example, a completed course)
- Details of any prior convictions or court outcomes, so your solicitor can assess your antecedents accurately
- Correspondence from any employer, licensing body or visa-related agency that raises the issue
What Not to Do
- Do not ignore a Court Attendance Notice or assume a matter will resolve itself — time limits and court dates still apply.
- Do not assume a non-conviction outcome is guaranteed simply because the offence seems minor to you — the court applies its own test.
- Do not provide false or exaggerated information to the court in support of a non-conviction application, as this can undermine your credibility.
- Do not delay getting advice — character references and supporting material are usually stronger when prepared well before the hearing.
- Do not assume a non-conviction outcome means an offence can always be answered ‘no’ on every form — check the exact wording, especially for visas and specific screening checks.
Local Relevance: Hornsby and the Upper North Shore
Caspian Legal assists clients with criminal and traffic matters listed at Hornsby Local Court, as well as clients in nearby Upper North Shore suburbs including Waitara, Asquith, Wahroonga, Normanhurst, Thornleigh, Pennant Hills, Berowra and Mount Colah. If your matter is listed at Hornsby Local Court and you are considering whether a non-conviction outcome may be available, you can book a consultation with Caspian Legal before your court date to go through your options.
What Happens at a First Consultation
A first consultation with Caspian Legal generally involves:
- Reviewing your court papers, police facts and any prior history
- Explaining the realistic range of outcomes for your specific matter, including whether a non-conviction outcome may be open to argue for
- Identifying what supporting material (references, reports, evidence of rehabilitation) would help your case
- Discussing timing, including any time limits or upcoming court dates
- Setting out the next steps and, where relevant, the likely costs involved
Frequently Asked Questions
Does section 10 mean I was not found guilty?
No. A section 10 order means the court has found you guilty, or you have pleaded guilty, but the court has decided not to record a conviction. The finding of guilt still exists on the court record.
Can I get a section 10 for any offence?
Section 10 is available for a wide range of offences, but the more serious the offence, the less likely a court is to grant it. Some offences carry mandatory minimum penalties or specific restrictions that limit the availability of a non-conviction outcome, so this should be checked against the specific charge.
Will a non-conviction outcome show up on a police check?
Generally, a s10 non-conviction outcome does not appear as a ‘conviction’ on a standard National Police Certificate. However, some specific checks (such as certain working with children or vulnerable persons checks) can still disclose findings of guilt for relevant offences, so the outcome is not automatically invisible for every purpose.
How long does a recorded conviction stay on my record?
Under the Criminal Records Act 1991 (NSW), most convictions become spent after a 10-year crime-free period for adults, or 3 years for offences dealt with as a juvenile, provided the person is not convicted of a further offence punishable by imprisonment during that period. A finding of guilt without a recorded conviction (such as a s10 outcome) is generally spent immediately: s5 and s8 Criminal Records Act 1991 (NSW). Convictions involving a prison sentence of more than six months, and certain sexual offences, cannot become spent.
Does a non-conviction outcome affect my visa or migration status?
It can. The character test under the Migration Act 1958 (Cth) is broader than ‘has a conviction been recorded’ and can take into account findings of guilt even without a recorded conviction, in some circumstances. If migration consequences are a concern, this should be raised specifically with your solicitor before the court date, not after.
Can I apply for a non-conviction outcome myself without a lawyer?
You can appear without a lawyer, but the court’s decision depends heavily on the quality of the material put before it — character references, context, and legal submissions about the s10(3) factors. Many people find it useful to get advice beforehand, even if only for that court date.
Can a non-conviction outcome be appealed or changed later?
Both the prosecution and the person charged retain rights of appeal in relation to a s10 order, and a person given a s10 order still has the same right to appeal on the basis they are not guilty as if they had been convicted: s10(5) Crimes (Sentencing Procedure) Act 1999 (NSW).
Risk of Delay
Court dates, mention dates and any applicable limitation periods still apply regardless of whether you are seeking legal advice. Character references and supporting evidence are generally more persuasive when prepared with enough lead time before the hearing. If your matter is already listed, it is worth seeking advice as early as possible rather than waiting until shortly before the court date.
Next Step
If you have a matter listed at Hornsby Local Court or another NSW court and want to understand whether a non-conviction outcome may be available in your circumstances, you can contact Caspian Legal to discuss your options before your court date.
Caspian Legal Pty Ltd
22–28 Edgeworth David Avenue, Hornsby NSW 2077
Phone: 02 7264 3200
Website: caspianlegal.com.au
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Disclaimer
This article is general information only and is not legal advice. It does not take into account your individual circumstances. Laws referred to in this article may change, and outcomes in any specific matter depend on the facts involved. You should obtain legal advice specific to your situation before acting or relying on this information.
Sources
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (Conditional release orders) — legislation.nsw.gov.au
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 (Dismissal of charges and conditional discharge of offender) — legislation.nsw.gov.au
- Criminal Records Act 1991 (NSW) — legislation.nsw.gov.au
- Migration Act 1958 (Cth), s 501 (character test) — legislation.gov.au
- Judicial Commission of NSW, Sentencing Bench Book — ‘Dismissal of charges and conditional discharge’ — judcom.nsw.gov.au
- NSW Police Force — National Police Checks and Disclosable Court Outcomes — police.nsw.gov.au
