CHANGES TO SENTENCING PROCEDURE FOR HISTORICAL CHILD SEXUAL ASSAULT OFFENCES AND NEW LAWS FOR FAILURE TO REPORT

Posted by Justin Wong on 31 August 2018

In June this year, Attorney General Mark Speakman introduced the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018. The Bill was assented to on 27 June 2018. The amendments are aimed to strengthen our child sexual abuse laws, in response to the criminal justice recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

After Proclamation on Wednesday, certain provisions under these amendments have commenced today. Significantly, this includes the addition of s 25AA of the Crimes (Sentencing Procedure) Act 1999.

Sentenced in Accordance with Current Sentencing Patterns and Practices

Section 25AA provides that an offender must be dealt with by the court in accordance with the sentencing patterns and practices at the time of sentencing in relation to child sexual offences. Previously, the common law principles were followed in New South Wales in this regard, meaning that those charged with historical child sexual offences were sentenced in accordance with the sentencing patterns and practices that were followed at the time the offending took place. For example, if the offending occurred in 1995 but the sentence was taking place in 2018, an offender would be sentenced in accordance with how similar matters were dealt with in 1995, as opposed to how these matters are dealt with by court’s today. The premise behind this amendment is to reflect the changes in societal attitudes in relation to this type of offending. However, it is important to note that although the sentencing approach has changed, the maximum penalty for the offence will remain as it was at the time the offence was committed.

Offence of Failing to Report Child Abuse Offences

Another significant change that has commenced today is the addition of section 316A of the Crimes Act 1900, which makes it an offence to fail to report child abuse offences. This offence carries a maximum penalty of 2 years imprisonment. However, if it can be shown that a person solicits or accepts a benefit in exchange for not reporting a child abuse offence, the maximum penalty increases to 5 years imprisonment.

Similarly, section 43B of the Crimes Act 1900 has been introduced under the new amendments, which aims to prevent child abuse. The section applies to organisations that provide services for children, as well as to “authorised carers”, and covers both physical abuse and sexual abuse. If a person who falls within this category is aware that another adult in the organisation, who works with children, poses a serious risk of physically or sexually abusing a child, and that person has the power within the organisation to reduce or remove that risk, and they fail to do so, they will liable to a maximum penalty of 2 years imprisonment.

“Sexual Touching”

A number of other amendments will be introduced later this year, including Indecent Assault charges being replaced by Sexual Touching (section 61KC of the Crimes Act 1900), as well as the introduction of a defence similar age, whereby a person is not guilty of certain sexual offences if the alleged victim is above the age of 14 years, and the age difference between the accused and the alleged victim is no more than two years (section 80AG of the Crimes Act 1900).

By Zoe Whetham, Senior Associate. 

Case Study: Young mother has licence suspension quashed

Posted by Justin Wong on 30 August 2018

Exceeding the speed limit by more than 30kms per hour will result in an automatic licence suspension of 3 months. This is imposed by the RMS once the penalty notice is paid. For many of our clients, this jeopardises their ability to work and provide for their family.

In these circumstances, we often advise clients to appeal the RMS suspension that follows. The matter will then be listed before a magistrate in the Local Court, where the magistrate has the power to reduce or quash the suspension period. The magistrate can also dismiss the appeal, meaning the full three month suspension must be served.

Today, one of Maxine Malaney’s clients had her licence appeal heard at Wyong Local Court. This client had been pulled over by police for exceeding the speed limit by more than 30km per hour, whilst her infant daughter was in the car.

If suspended, our client would lose her job, even if the suspension period were only short. Furthermore, she would not be able to transport her daughter to day care.

Maxine worked with our client to gather evidence in support of her case. In court, she submitted to the Magistrate that the client should be treated as an exceptional case and that the court would be justified in quashing the suspension altogether.

The Magistrate ultimately agreed, allowing the appeal and quashing the suspension period altogether. The client drove home from court with the knowledge that she would keep her licence, and therefore keep her job.

Case Study: Low-Range PCA Avoids Conviction Despite Reading and Collision

Posted by Justin Wong on

For many people, their livelihood depends on being able to drive. For others, avoiding a criminal conviction is vital to their career and ability to travel overseas.

A recent client of ours fell into both categories. She had been charged with low range drink driving and faced a criminal conviction, a fine of $1,100 and having her licence disqualified for 6 months. As a result, her career was in jeopardy.

Although first time offenders charged with low range drink driving are commonly not convicted, this is generally only case where offenders have a have a low alcohol reading, and no aggravating factors to their driving (such as speeding, passengers, or a collision).

Our client was in a very different situation, with her reading not only at the highest end of the low range (0.078), but she had fallen asleep at the wheel and was subsequently involved in a collision.

After conferencing with our client and gaining an understanding of her situation, Zoe Whetham, Senior Associate at Streeton Lawyers, worked with our client to prepare a strong and convincing case to avoid a criminal conviction, despite the serious circumstances of the offence.

The magistrate ultimately agreed with Zoe’s submissions, and our client was able to avoid a conviction and licence disqualification. Instead, she was placed on a bond under section 10(1)(b) of the Crimes Sentencing Procedure Act 1999, for a period of 12 months.

Our client was understandably extremely relieved with the outcome.

44 year old executive avoids conviction for drug supply

Posted by Justin Wong on 29 August 2018

Justin Wong this week represented a client at the Downing Centre District Court charged with Drug Supply and Possession. The charges arose out of a police operation at the 2018 Mardi Gras after party.

Although he was convicted and fined in the Local Court, our client exercised his right of appeal against the convictions to the District Court.

An executive, our client was extremely concerned convictions would have a negative effect on his career, which included regular international travel and police checks.

Despite the seriousness of the offence, the District Court Judge took into account his co-operation with police, his prior good character and community volunteer work, the impact of a conviction, as well as steps taken since the offence to demonstrate his commitment to never re-offending.

The Judge ultimately agreed that no criminal conviction should be recorded, and discharged our client without any conviction under section 10.

Appeals against sentence must be lodged within 28 days of being sentenced in the Local Court.

Streeton Lawyers ranked top in 2018 Doyles Legal Guide

Posted by Justin Wong on 09 August 2018

Streeton Lawyers has again been awarded the rank of “Top Tier” in the 2018 Doyles’ Legal Guide.

Doyles Legal Guide is the most respected guide to the Australian legal profession and relies on feedback and votes from senior lawyers and barristers.

This is the second consecutive year Streeton Lawyers has been named as Top Tier by the criminal law profession. The full rankings can be viewed here.

The Streeton Lawyers Team