New Penalties for Drink Driving

Posted by Justin Wong on 30 November 2018

Beginning on Monday 3 December 2018, a number of significant changes to drink driving and traffic laws will commence. The most significant of these are Penalty Notices for Low-Range PCA, and increased penalties and interlock order disqualifications for first offence Mid-Range PCA charges.

Low-Range/Novice/Special Range PCA

Commencing 20 May 2019 it will be an option for police to issue a penalty notice for these offences rather than a mandatory court summons. This is only if the person hasn’t been issued a penalty notice of convicted of a similar offence in the previous 5 years. This also applies to driving with a drug present in system.

The maximum penalties for these offences also increase to a fine of $2,200 from the previous $1,100.

Mid-Range PCA

The maximum penalty will increase from a fine of $2,200 to $3,300. The maximum period of imprisonment of 9 months will remain.

Significantly, as of 3 December 2018 a first offence Mid-Range offence will now be subject to the mandatory interlock order regime. This means if you are convicted of the offence, even for the first time, you will be disqualified for 3 or 6 months, and then ordered to go on to an interlock licence for at least 12 months. The court has a discretion to exempt you from the interlock order.

The penalties for Driving Under the Influence of Alcohol or any other Drug (section 112 Road Transport Act 2013) also change. A first offence will now be the subject of the mandatory interlock order regime, being disqualification for 6 or 9 months, and then an interlock order for at least 24 months. The period for a second offence has also increased.

Other changes include:

  1. A new wider definition of “drug” that now includes any substance that is taken and likely to deprive or impair a person’s normal mental or physical faculties. Previously the substance had to be prohibited or specifically prescribed by the regulations.
  2. Removing the requirement that a person has previously been convicted of an earlier offence when determining if the new offence is a second or subsequent offence. All that is required now is that the person has “committed” and offence. This would include previous offences for which no conviction was recorded.
  3. As of 3 December 2018 expanding the circumstances in which the court can make an interlock exemption order, to include:
    1. If the offence is a first offence Mid-Range PCA;
    2. That the order would cause severe hardship; or
    3. If the making of the exemption order is more appropriate in all the circumstances.
  4. As of 20 May 2019 the availability of immediate police licence suspensions for first offence Low-Range PCA charges (previously only available for Mid-Range or High Range).

The changes in the laws make an already complicated regime more complex. If you require assistance with your charges, please contact us.

Will my criminal record as a child show up as an adult?

Posted by janelle.tarabay on 27 November 2018

There is a common misunderstanding that a criminal record from when you were a child (younger than 18 years old gets abolished or removed once you are an adult. Unfortunately, it is not that simple!

While there are some circumstances where your criminal record from when you were a child will not show up,you cannot assume it simply wont show up on a criminal record check or if you are in Court.

Criminal Record Check’s

For most people getting a criminal record check, the record will only show criminal convictions that are not ‘spent’. When something is ‘spent’ it means it is no longer on your criminal record. For adult criminal records, read about spent convictions.

When you commit an offence as a child and if you are convicted of that offence, it will show up on a criminal record check until it becomes spent. For convictions received in the Children’s Court, they will only become spent once you complete a ‘crime free period’ from the date you are convicted in the Children’s Court. In order to complete a crime free period, you must not commit any further offence for three (3) years from the date of your conviction which:

  1. Results in you receiving a control order (this is what a sentence of imprisonment is known as in the Children’s Court); and
  2. Is not an offence punishable by imprisonment, and
  3. You have not been in prison for that crime free period.

If you do commit another offence during that period (e.g. 2 years into the crime free period) then the timer starts again from the date of the conviction for the new offence.

However, if you complete that crime free period, it means that the offence will not show up as a conviction on a criminal record check.

Criminal Record in Court

A criminal record that is used in Court is very different from the ordinary criminal record check which you get when you apply for a job. The Court’s get access to a record which will show, for example your arrests, court appearances, convictions, non-convictions and even charges when you were found not guilty.

There is one major exception to that rule, and it is under section 15 of the Children (Criminal Proceedings) Act 1987. Section 15  says the Court cannot receive any evidence of your prior record as a child if:

  1. You were note convicted of the offence or offences on your record; and
  2. Your last offence as a child was over two years ago.

This is very important as your criminal history is something a Magistrate or Judge seriously looks at when sentencing you. So, if you are for example, sentenced at 18 years old for an offence of Possessing a Prohibited Drug, and you had on your record an offence of Possessing a Prohibited Drug from when you were 15  years old and you weren’t convicted of that offence, the Prosecution cannot give the Court that record showing your offence from when you were 15.

CASE STUDY: RECEIVING A CAUTION IN THE CHILDREN’S COURT

Posted by janelle.tarabay on 20 November 2018

Last week, our Associate Mikaela Eldridge appeared at the Surry Hills Children’s Court and her client walked away with proceedings being dismissed despite admitting the offence.

Mikaela’s client was a young boy in year 7, who had been in an altercation with his father and was subsequently arrested and charged by police.

Our client was:

  • Young;
  • had good family support;
  • was doing well at school; and
  • seeing a counsellor.

These factors allowed the court to deal with the matter without a plea of guilty or a sentence.

Instead, the court accepted that our client admitted the offences (different to formally pleading guilty) and dismissed the charges after giving him a caution.

This result was the best outcome for our client and it will not stigmatise or harm him in the future.

Criminal Convictions

The Children’s Court has a very wide range of sentencing options, a large number of which are without a criminal conviction. In fact, the Magistrate has a discretion to not record a conviction in almost all situations.

Young Offender Act: Diversion Scheme

The Children’s Court and police who deal with children also have a diversion scheme from the criminal justice system, which involves a young person sometimes not going to court or if they do go to court, not being formally sentenced.

Police and the court have powers under the Young Offenders Act to dismiss proceedings. In dismissing the proceedings, they can do one of the following:

Police Officers can:

  • Give a child a warning after they are arrested. But they cannot do so if the child commits a violent offence.
  • Give a child a caution after they are arrested. A police officer can do so if the child admits the offence and they believe it is in the interests of justice to do so. A child can get up to 3 cautions by a police officer.

The Children’s Court can:

  • Give a child a caution after they come before the court and ‘admit the offence’. (This is what happened with Mikaela’s client).
  • Send a child off for Youth Justice Conferencing. This involves the child meeting with the victim and talking with the assistance of Juvenile Justice. Then an outcome plan is developed to ensure the child doesn’t commit the offence again.

A child’s record can follow them around for their entire life, it is important to ensure the right court or out of court resolution is reached, either by way of diversion through the Young Offender’s Act or by ensuring a criminal conviction is not recorded in the Children’s Court.

We regularly appear for children in the Children’s Court in criminal matters and have experience in talking with police when a child is arrested to avoid charging or prior to arrest to avoid arrest altogether. We have also handled JIRT investigations (Joint Investigation Response Team with Department of Community Services and the NSW Police into juvenile offending).

If you have any questions or require our assistance, please do not hesitate to contact us on 9025 9888 or at info@streetonlawyers.com.au

 

Penalty Notices for Drug Possession Offences

Posted by Justin Wong on 15 November 2018

The NSW Government has recently announced a trial allowing police to issue on-the-spot fines or penalty notices for drug possession offences at music festivals.

Once implemented, arresting police would have the option of not issuing a Court Attendance Notice. Instead, a penalty notice could be issued and if the fine is paid, there are no further court proceedings.

Penalty Notices Generally

Currently police can issue penalty notices for a number of relatively minor offences including shoplifting under $300, offensive conduct and goods in custody.

If you agree you’ve committed the offence, the benefit of having a penalty notice issued is it avoids having to go to court. If you pay the fine, there is no further court action and no recorded conviction.

Benefits and Risks

There are however dangers with penalty notices:

Firstly, payment of the fine does not mean the incident is wiped. A record is retained on your Criminal Infringement Notice Record, which is maintained by police. Although it’s not meant to happen, there have been instances where this record has been tendered in court in later proceedings. It could also be disclosed to other parties in certain circumstances under subpoena.

Also, people who haven’t committed an offence who would otherwise have contested the charge in court, might be encouraged to simply pay the fine and admit their liability. If police practices in detection gradually become more inaccurate or questionable, there will be less testing of this behavior in court. This is likely to mean those police practices will continue.

Finally, with greater discretion resting with police as to whether to charge someone criminally or not, the Local Court is likely to have a distorted view of the actual prevalence of drug possession in the community, and also where certain offences sit in the overall range of seriousness. This would need to be addressed carefully in the longer term.

Any attempt to divert minor drug possession matters away from the court system is a good thing. However, care should be taken to ensure that young offenders are not simply liable to unfair attention or penalty action, simply because they want to avoid the stigma and consequences of going to court.

What happens if I breach a Community Corrections Order?

Posted by Justin Wong on 13 November 2018

When a person is sentenced to a Community Corrections Order, a formal “promise” is made to the court that an offender will abide by the conditions of the Order. The Order can be imposed for a period of up to three years.

It is a standard condition of a Community Corrections Order that an offender must not commit any further offences for the duration of the Order, and the offender must appear before a court if called upon to do so.

Additional conditions can also be imposed, which include:

    1. A curfew condition imposing a specified curfew (not exceeding 12 hours in any period of 24 hours),
    2. A community service work condition for a specified number of hours (not exceeding 500 hours, or the number of hours prescribed by the Regulations in respect of the class of offences to which the relevant offence belongs, whichever is the lesser),
    3. A condition requiring the offender to participate in a rehabilitation program or to receive treatment,
    4. A condition requiring abstention from alcohol and/or drugs,
    5. A non-association condition,
    6. A place restriction condition prohibiting the frequenting of, or visits to, a particular place or area,
    7. A supervision condition requiring the offender to submit to supervision by a Community Corrections Officer,
    8. Any other condition that the court considers appropriate.

A person will be in breach of a Community Corrections Order if they are charged with committing a further offence, or detected for failing to comply with an additional condition, while the Order is in place.

If a Court believes a breach has occurred, then the court can call upon the offender to appear before the Court. If the offender is called upon and fails to appear at Court on the specified date, then a warrant can be issued for the person’s arrest. It is therefore imperative that a Court registry is notified of any change in residential address during the period that the Community Corrections Order is in place.

What will happen in Court?

In dealing with the breach, the Court can make one of the following decisions:

  1. Take no action on the breach; or
  2. Vary or revoke any of the additional conditions, or impose further additional conditions; or
  3. Revoke the order and re-sentence the offender.

Before deciding which action to take, the court may order a Sentence Assessment Report.

If the Community Corrections Order is revoked, the court may re-sentence the offender and impose a more serious sentence, such as an Intensive Corrections Order of Full Time Custody.

Alternatively, the court may re-sentence the offender to another Community Corrections Order, with varied or further additional conditions.

If you believe you may have breached your Community Corrections Order, contact one of our criminal lawyers for advice and a free initial consultation on (02) 9025 9888.

Presentation on Sniffer Dogs and Police Powers

Posted by Justin Wong on 09 November 2018

Have you been charged with possession of a prohibited drug? Were you searched by police after a sniffer dog approached you?

Streeton Lawyers specialises in these sorts of cases. In fact, last week, Justin Wong and Maxine Malaney of our firm gave a presentation on police powers and sniffer dogs to other lawyers. In the presentation, Justin and Maxine explained the law and provided other lawyers with practical advice on how to deal with evidence obtained through sniffer dogs. This page highlights some key points you should know.

What powers do police have when using sniffer dogs?

  • Police are authorised to search you if they suspect on reasonable grounds that you are in possession of a prohibited drug. If a dog sits down next to you, police can take that into account in deciding whether there are grounds to search you.
  • Police also have the power to strip search you if the circumstances are serious and urgent, and there are reasonable grounds to do so.
  • Police can use the sniffer dogs at public events such as events, concerts, festivals, and they can also use them in the Kings Cross precinct, as well as liquor stores, tattoo parlours, trains and some buses.
  • Police are required to use all reasonable precautions to prevent the dog from touching you.

If you find yourself in a situation involving sniffer dogs, here are three things you should remember:

  1. You should be cooperative with police when they search you. If you later plead guilty to a drug possession charge, the Magistrate may consider your cooperation with police when deciding your sentence.
  2. However, remember that police are required to provide you with proof that they are a police officer, and provide you with their name and police station. It is within your rights to request this information from police if it is not offered.
  3. Pay attention to the actions of the sniffer dog that approached you and later make a note of its actions (Did it sit down next to you? Did it touch you?). This could be important later.

If you want to know more about sniffer dogs, or discussion your situation with an expert, call us on 9025 9888.

For more information on drug possession offences, see our Drug Offences page.

Not guilty by reason of mental illness

Posted by janelle.tarabay on 02 November 2018

Media reporting of verdicts this week highlight the lack of understanding of what it means when an accused is found not guilty by reason of mental illness.

A finding of not guilty by reason of mental illness does not result in the person automatically being discharged into the community. In fact, often their detention in a medical facility can be just as long, or longer, and is more uncertain than a prison sentence.

The special verdict exists to recognise the long held principle that if someone is so mentally ill, so as to not understand the nature of what they are doing, or that it is wrong, they should not be held criminally responsible.

When is someone not-guilty by reason of mental illness?

In the District and Supreme Courts, if a jury (or judge) is satisfied that an accused:

  1. was mentally ill at the time of committing the offence; and
  2. because of that mental illness, was not responsible according to law for committing the act or omission;

the court returns a special verdict of not guilty by reason of mental illness. Section 38 Mental Health (Forensic Provisions) Act 1990.

This involves findings that:

  1. the accused was labouring under a defect of reason or mind; and
  2. did not know the quality or nature of the act he/she was doing, or did not know it was wrong.

This test comes from an old English case dating back to 1843, R v M’Naghten.

The finding can only be made if the court is first satisfied that the person did the action alleged. For example, it must be first proven beyond reasonable doubt that the accused did the physical acts that would otherwise make up the offence.

What then happens?

If a person is found not guilty by reason of mental illness, the court then considers what to do with the person. The court can order they be detained in such a place and manner as necessary, or they can release the person.

Importantly, the court is not to release the person unless satisfied that the safety of the person or public will not be seriously endangered.

The person is then given an initial review by the Mental Health Review Tribunal, and it makes an order about the person’s detention, treatment or release. Again, the Tribunal cannot release a person unless satisfied that doing so would not seriously endanger the patient or the public.

If the person becomes a forensic patient and is detained in a mental health facility, they are reviewed periodically where orders for treatment or detention are either continued or changed. Once a person is eventually released, the Tribunal can impose a number of conditions on their release, including monitoring, treatment, and travel restrictions. These patients are also subject to review by the Tribunal.

When faced with the reality of someone suffering from significant mental illness, most members of the community would agree that a seriously mentally ill person who commits an otherwise criminal act, should be treated differently than someone who is of sound mind, but still consciously chooses to commit the same act. The availability of the special verdict of not guilty by reason of mental illness does no more than to recognise that fundamental distinction.

By Justin Wong