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Section 10, your ‘get out of jail free’ card?

28 April 2020

#Transport, Shipping & Logistics

Published by Rebecca Niumeitolu

Section 10, your ‘get out of jail free’ card?

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:

  • your character and your previous criminal history. For individuals the Court may also have regard to your age, health and mental condition. This generally means that you would need to show that you do not have prior convictions under the HVNL or that if you do, they were a long time ago and also of a trivial nature. If you had ‘gold star’ HVNL compliance systems, this would also weigh in favour of dismissing charges
  • the trivial nature of your offence. In practice, this means that if you were to be charged for a severe risk breach of mass, dimension or restraint requirements, contravening an executive duty, or breach of the primary duty, then the Court may be less inclined to dismiss charges against you by a section 10 order. Arguably, such offences are by their nature significant. By contrast, if you were to be charged with a minor risk contravention of the HVNL, then the Court may be more inclined to exercise its discretion to dismiss your charge, provided that surrounding circumstances are favourable
  • extenuating circumstances in which the offence was committed
  • any other matter that the court thinks proper to consider. For example, if no actual harm or damage arose as a consequence of an offence, then this may weigh in favour of the Court dismissing charges.

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. 

  • Queensland – section 12 of the Penalties and Sentences Act 1992 (Qld)
  • Victoria – sections 7 and 8 of the Sentencing Act 1991 (VIC)
  • South Australia – sections 23 and 24 of the Sentencing Act 2017 (SA)
  • Tasmania – sections 7 and 9 of the Sentencing Act 1997 (Tas)
  • Australian Capital Territory – section 17 of the Crimes (Sentencing) Act 2005 (Act).

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:

  • written statements or affidavits attesting to your good character and good compliance history with HVNL requirements, with a particular emphasis on your good track record relating to your compliance with the obligation with which you have been charged. If you are an individual you may ask friends, family or your employer to provide a written statement which identify economic, social or employment factors that may warrant a section 10
  • if you are a company, evidence of your HVNL compliance policies, procedures and training. 

Conclusion

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.

Disclaimer
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

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