28 April 2020
Published by Rebecca Niumeitolu
First time contravention of the Heavy Vehicle National Law? Have a great track record of implementing and monitoring HVNL compliance systems? Charged with a minor breach where no damage and injury came to fruition? Well, section 10 might just be your ‘get out of jail free’ card.
What is section 10?
Section 10 is a provision under the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) that relevantly allows a Court not to convict an offender by dismissing the charges even though it finds the offender guilty of an offence. Other jurisdictions have similar provisions.
For example, under section 10 if you were charged for an offence under the HVNL, the Court may find you guilty but could also decide not to record that conviction against you.
On what basis could you seek orders dismissing charges against you?
As a rule of thumb, the Court won’t easily dismiss charges under the HVNL. You need to show that you and your offending behaviour is an exception to the rule.
When deciding whether to dismiss charges the Court must have regard to the following factors:
Can it apply to companies?
Although we typically see section 10 applied to individuals, it can also apply to companies.
Section 10 isn’t mentioned in the HVNL, how can it apply to me?
Court sanctions which are specific to the HVNL are identified in Part 10.3. Section 593(3) provides though that that Part “does not limit the powers or discretion of the court under another law”, such as the Sentencing Act.
Accordingly, even though section 10 may not be expressly identified as a discretion for the Court to exercise in response to a contravention of the HVNL, it is still a discretion which the Court may exercise.
Section 10 applies in New South Wales, what about in other HVNL jurisdictions?
There are equivalent legislative provisions to section 10 in NSW in other HVNL jurisdictions. Below we identify provisions in Victoria, Queensland, South Australia, Tasmania and the ACT which allow the Court to exercise its discretion to order a person (including an individual or company) to pay a fine without recording a HVNL conviction against that person or to dismiss a charge for contravening the HVNL against a person altogether.
In each jurisdiction state the Court is required to have regard to the specific circumstances of the case which may or may not warrant a particular order. Factors that are relevant include the nature of the offence, the character and past history of the offender and the impact of recording a conviction on the offender’s economic, social well-being or his/her employment prospects.
How can you prepare to seek a section 10 order?
No two cases are the same, nor are the circumstances of offenders. If you are seeking to have a Court dismiss charges against you, it is recommended that you seek legal advice. Generally speaking though, you will want to come prepared with evidence as to why a section 10, or section 10 equivalent, order is warranted.
Information and documents which may support your case include:
Having a conviction recorded against you can have significant employment and reputational consequences. Section 10 is a type of ‘get out of jail free’ card which CoR party can turn to where charged with minor offences to avoid the full impact of being charged under the HVNL. Unlike Monopoly, section 10 is tends to be one-off spend that is available to those who always play fair and by the rules.
Author: Rebecca Niumeitolu
* This article was originally published in CoR Adviser. The article is © 2020 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Rebecca Niumeitolu