BOATING ALCOHOL OFFENCES

Posted by Justin Wong on 21 December 2018

The conditions and movement on the water can increase the affect that alcohol has on your judgment and coordination. If you are out on the water these holidays and enjoying a few drinks, here are few things to keep in mind, especially if you are the driver, skipper or being towed by a boat.

For recreational vessels, the alcohol limits are:

  • 0.00 for operators under 18
  • Less than 0.05 for operators over 18

The Driver

If operating a vessel in any waters, it is an offence to exceed the alcohol limits, Marine Safety Act 1998 (NSW). This includes anyone controlling or steering the course or direction of the vessel. If the person driving the vessel is under the age of 16, the supervisor must also be under the limit.

The Skipper

The skipper (i.e. master of the vessel) has the responsibility to prevent anyone they believe to be under the influence of alcohol (or drugs) from operating the vessel. Failing to do so is an offence.

Water skiing, aquaplaning and para-flying

If you are on a water ski, aquaplane, para-flying or being towed by a vessel on any device, it is also an offence to exceed the alcohol limits. The same applies for the designated observer of a person being towed.

Marine Police can conduct RBTs if you are the driver, supervisor, being towed or the observer.

If you are found to be in excess of the limit, police may immediately suspend your boat driving licence and/or issue you with a court attendance notice.

The penalty imposed will depend on how much alcohol is detected. Offences of this nature can result in a fine or imprisonment.

This article is information only and should not be substituted or construed as legal advice.

Image source: https://www.police.nsw.gov.au

Stay safe and out of trouble this Christmas

Posted by Justin Wong on

Christmas is a popular time for people to celebrate, often with large group events that involve alcohol. It’s also the time of year that many people get themselves into trouble with relatively minor offences.

You may not be aware that there are a range of minor criminal offences for which you can receive a Criminal Infringement Notice involving an on-the-spot fine. You could also be required to attend court. So when you’re celebrating this year, be careful to avoid these offences:

  1. Failure to leave licensed premises

You can be refused admission or turned out of licensed premises by a security guard or other employee of the venue for several reasons, including if you:

  • Are intoxicated, violent, quarrelsome or disorderly;
  • Are smoking in a smoke-free area; or
  • Have a substance on you that is suspected of being a prohibited drug.

If you are refused admission or turned out of licensed premises, it is an offence if you do not leave those premises. You will have to attend court and can be fined up to $5500 for failing to leave, or re-entering the premises within 24 hours.

You also cannot remain in the vicinity of the premises or re-enter the vicinity within 6 hours of being refused admission or turned out of the premises, or you may be subject to the same penalty.

  1. Failure to comply with police directions

It is an offence to refuse or fail to comply with a direction given by police, such as a “move on” direction.

Police can give you a “move on” direction to leave a public place if you are intoxicated and police believe on reasonable grounds that as a result of your intoxication, your behaviour is disorderly, or is likely to cause injury, damage properly, or risk the public safety.

You will be considered “intoxicated” if your speech, balance, co-ordination or behaviour is noticeably affected and it is reasonable for police to believe that this is the result of alcohol or drugs.

If you fail to comply with such a direction, you will have to attend court and can be fined up to $220.

  1. Intoxicated and disorderly behaviour

If you are given a “move on” direction by police for being intoxicated and disorderly in public, and you act in an “intoxicated and disorderly” manner in any public place at any time within six hours of being given the direction, you could be guilty of an offence.

You can receive a criminal infringement notice for this, requiring you to pay a maximum fine of $1650.

  1. Offensive conduct & offensive language

You are not allowed to conduct yourself in an “offensive manner” in or near, or within view or hearing from, a public place or school. If you do, you could be fined up to $660 or imprisoned for 3 months.

Offensive conduct includes a wide range of behaviour and includes things like public urination and anti-social behaviour.

You are also not allowed to use offensive language in or near, or within hearing from, a public place or school. For this offence, you can receive a fine of up to $660 or receive up to 100 hours of community service.

If you are charged or given a Criminal Infringement Notice over the Christmas period, we can help. Make an online enquiry or send us an email and we will get back to you quickly.

 

Case Study: Non-Conviction for large drug possession charge

Posted by Justin Wong on 19 December 2018

An amazing outcome for one of Adam Faro’s clients yesterday at Waverley Local Court who received a non-conviction, Conditional Release Order for the possession of 7.5 grams of cocaine.

Ordinarily, anyone caught in possession of over 5 grams of cocaine is charged with supply, therefore 7.5 grams is considered a very large quantity for the charge of possession. Even with this aggravating factor, Mr Faro assisted the client in preparing a strong case and advanced compelling submissions on his client’s behalf. Thankfully, this client can now enjoy his Christmas without the worry and stress of a conviction against his name.

If you are caught over the Christmas break possessing drugs, contact Adam Faro or one of our criminal law specialists on (02) 90259888

CASE STUDY: NEW LEGISLATION SHIFTS FOCUS TO REHABILITATION FOR OFFENDERS FACING A TERM OF IMPRISONMENT

Posted by Justin Wong on 13 December 2018

Full time custody v Intensive Corrections Order

When a court sentences an offender to a period of imprisonment, the term of imprisonment can be served either in the community, known as an Intensive Corrections Order (ICO), or by way of full time jail. Previously, when making this decision, a court was required to consider a number of factors known as the ‘purposes of sentencing’, which are outlined in the Crimes (Sentencing Procedure) Act 1999 (CSPA). Rehabilitation has always been an important factor for a court to consider when sentencing an offender, but it generally carried no more weight than the other six purposes of sentencing which include punishment, denunciation and deterrence.

However, due to recent changes in legislation, rehabilitation has been given increased weight for offenders facing a full time custodial sentence. This is as a result of section 66 CSPA, which states, “community safety must be the paramount consideration when the court is deciding whether to make an intensive correction order in relation to an offender.” Section 66(2) goes on to confirm that when considering community safety, the court is required to assess whether an ICO or full time custody is more likely to address the offender’s prospects of rehabilitation.

What does this mean?

In appropriate cases, if an offender can demonstrate that they have positive rehabilitation prospects, then it is now more likely this balance will fall in favour of the offender remaining in the community and serving the term of imprisonment via an ICO. The other ‘purposes of sentencing’ still play an important role, but the Criminal Court of Appeal has recently commented that these factors are now subordinate to the assessment of community safety.

Why did the law change?

This shift is as a result of parliament recognising that short periods of imprisonment often have little to no effect on an offender’s likelihood of re-offending. Instead, supervision and effective rehabilitation is more likely to ensure an offender does not come back before a court.

Case Study

This week, Zoe Whetham appeared for a client who had been charged with serious offences. In addition, these charges meant that she was in breach of multiple suspended sentences and two good behaviour bonds from previous matters. All of her offending was linked to one underlying issue which up until recently, had not been addressed.

When she was first charged, she was refused bail by police. Zoe appeared on her behalf at court, and convinced the magistrate to grant bail on the condition that our client enter a residential rehabilitation program. She successfully completed this program, and worked with Zoe to compile positive evidence to be used in her sentence.

These documents were tendered on our client’s behalf. Zoe then submitted to the court that notwithstanding the seriousness of the charges, our client’s risk of re-offending is better addressed via a sentence served in the community. Despite our client previously being told that if she re-offended, there would be no other option than full time custody, his Honour ultimately agreed with Zoe’s submissions and ordered an ICO. As a result our client was able to avoid being sentenced to jail, and instead will be able to continue with her rehabilitation in the community under strict supervision.

Can someone be convicted of murder without a body?

Posted by janelle.tarabay on 07 December 2018

Since the Teacher’s Pet podcast was released and Christopher Dawson charged with the murder of Lynn Dawson, everyone is asking whether there is a possibility he will be convicted even though  no body has been found. 

A body definitely makes getting a murder conviction easier, as juries are usually presented with forensic evidence and normally evidence of how the deceased was killed. However, the law states that a jury does not need a body to be convicted of murder, nor does the crown need to prove how the victim died or what caused the death, in order to find beyond reasonable doubt that the accused person murdered the victim.

How the Crown proves guilt beyond reasonable doubt when there is no body nor evidence as to how someone died, is through circumstantial evidence. A circumstantial case is one where several pieces of evidence are presented that do not directly prove the elements of the offence but instead require a jury to infer further facts that would lead to a finding of guilt.

In recent history, there have been numerous high-profile murder trials where people have been convicted on circumstantial evidence without a body. The following are two of the most infamous and controversial.

The Chamberlin ‘Dingo’ Trial

Everyone remembers the words uttered by Alice Lynn Chamberlain, “a dingo stole my baby”.

Although now Mr & Mrs Chamberlin have been officially cleared of the murder of their daughter and a fourth and final coronial determined that the cause of death was “as a result of being attacked and taken by a dingo”, both Mr & Mrs Chamberlin were convicted of murder which was upheld by the High Court of Australia.

The High Court found that the jury were entitled safely to convict on the circumstantial evidence. Specifically, Chief Justice Mason and Justice Gibbs jointly said that:

“…the Crown does not bear the onus of solving all the mysteries that may have attended a crime, or of establishing in every detail how it was committed, provided that it is proved satisfactorily that the crime was committed and that the accused committed it.

It was only when in 1986 Azaria’s missing matinee jacket was found at Uluru, which supported the Chamberlain’s defence case, that things changed. Mrs Chamberlin was released from custody and a Royal Commission found her innocent. Then in 2004, Frank Cole claimed he shot a dingo at Uluru in 1980 and found Azaria in its jaws.

The Chamberlin’s have been issued a formal apology and received a significant amount of money from the government. The case, however, remains controversial to this day.

The trial of Keli Lane

Recently, the ABC sparked new interested in this case with their ‘Keli Lane Exposed’ documentary. We understand a request for judicial review has been made.

Keli Lane remains the convicted murderer of her daughter, Teagan, whom the Crown said she killed 2 days after giving birth. Keli has always maintained that she gave her baby to the father, a Mr Andrew Norris (although she has recently admitted that the name could have been different). Teagan or the person Keli said she gave Teagan to alive, have never been found.

After a coronial inquest, Keli Lane was charged with murder and on 13 December 2010 she was found guilty by majority verdict.

This guilt was upheld by the Court of Criminal Appeal.

The case of Keli Lane remains controversial due to the focus on her past pregnancies and significant lies. There was no forensic evidence such as the blood or clothing that was seen in the Chamberlin case.  This case focused instead on the lack of evidence, the lack of evidence that Keli has disposed of her child lawfully, of a Teagan being alive and of an Andrew Norris. All this evidence is circumstantial.

The Court of Criminal Appeal held that in all the circumstances, the verdict of guilty was amply open to the jury, and the court was satisfied that the evidence established beyond reasonable doubt the appellant’s guilt of the offence.

What does this mean for the trial of Christopher Dawson?

It may be that the influence of the media, the Teacher’s Pet podcast and the long delay since the death of Lyn Dawson leads to another controversial high-profile murder trial where circumstantial evidence will determine guilt or innocence.

CASE STUDY: NO CONVICTION RECORDED FOR NEGLIGENT DRIVING OCCASIONING GRIEVOUS BODILY HARM

Posted by Justin Wong on 03 December 2018

A recent client of ours was charged with negligent driving occasioning grievous bodily harm, following a collision with a pedestrian. She was extremely distraught over the injury she had caused to the victim and the prospect of obtaining a criminal record.

Negligent driving occasioning grievous bodily harm is a serious offence, which carries a maximum penalty of 9 months imprisonment, a $2,200 fine and an automatic 3 year licence disqualification. Grievous bodily harm is defined in the Road Transport Act 2013 to include any permanent or serious disfigurement. In our client’s case, the victim required multiple surgeries as a result of the injury caused.

After conferencing with our client, Zoe Whetham identified inconsistencies in the police facts compared to our client’s recollection of the incident. As a result, Ms Whetham obtained CCTV footage which captured the incident and after careful analysis of the footage, wrote detailed representations to police outlining why the facts should be amended. This was successful, resulting in a more accurate and favourable set of facts that would be read by the magistrate on sentence.

At court, Zoe Whetham advocated on our client’s behalf and urged the court to sentence our client without recording a criminal conviction. The magistrate was persuaded, and our client was placed on a Conditional Release Order, without conviction, with a condition to be of good behaviour for 12 months. This meant that our client was able to avoid a criminal record, avoid paying a fine and avoid having her licence disqualified.