Driver Licence Reform Misses the Mark

Posted by Justin Wong on 27 November 2017

Recent driver licence reforms in NSW include some of the most significant changes to licence disqualification in recent times.

Central to the reforms has been abolishing of the Habitual Traffic Offender Declaration scheme. However, one of the consequences of the reforms may have left thousands of individuals worse off.

Habitual Traffic Offenders (HTOD)

The HTOD scheme previously saw individuals found guilty of three or more major offences within 5 years, automatically disqualified for an additional 5 years. Additional declarations were cumulative, which meant a single additional offence could mean 10 years disqualification, then 15 years, then 20 years and so on.

It was pleasing to see the NSW Government scrap this system on 28 October 2017, with the current Attorney General noting it resulted in “crushing periods of disqualifications”, which effected the most disadvantaged and vulnerable in our community.

Problem with reforms

However, in abolishing the scheme, the Government has also taken away the ability of a person currently serving an HTOD to have it quashed. Remarkably, this was a right they previously enjoyed under the old legislation.

How this occured

Under the repealed laws, a person declared an HTOD was previously able to apply to have the declaration quashed under section 220 of the Road Transport Act 2013.

Along with all the amendments on 28 October 2017, that section was repealed. However, unhelpfully for those declared habitual traffic offenders, any disqualification from an HTOD continues to have effect. The power to quash the HTOD does not.

The power to quash an HTOD can now only be exercised if the application to quash the HTOD was filed in the Local Court before section 220 was repealed, on 28 October 2017. This is because the savings and transitional provisions have been worded in a way that only preserves the power of a court to continue to exercise the power it previously had to quash a declaration. It does not preserve the power to make fresh applications.

What this means

This means that potentially thousands of people who have previously been declared habitual traffic offenders, have no ability to apply to have these declarations quashed.

This seems a remarkable outcome. Particularly given the comments of the government in labeling the scheme “excessive” and “entrenching disadvantage among vulnerable people”, this is a perverse result. Arguably, many of this people are now worse off than they were before 28 October 2017.

True, these people may be able to apply to have their disqualifications removed under the new Division 3A, but this can require waiting up to 4 years before the minimum offence free period has been served.

Hopefully the Government will act to address this significant unfairness, and act fast.

Justin Wong

Justin Wong is Principal Lawyer at Streeton Lawyers, a criminal law firm in Sydney rated at the very top of the 2017 Doyles Guide of Criminal Defence Firms.

Streeton Lawyers presents Criminal Law Prize

Posted by janelle.tarabay on 06 November 2017

Zoe Whetham, Senior Associate at Streeton Lawyers, recently attended the Faculty of Business Awards Ceremony at Newcastle University to present the Streeton Lawyers Criminal Law Practice Prize.

Streeton Lawyers is a proud sponsor of this prize, which is awarded annually to the student with the highest GPA in Criminal Law Practice. Zoe was awarded this prize in 2014.

We congratulate Johnathon Vitnell, who received this year’s prize and we look forward to supporting future students who are keen to begin their career in criminal law.

Case Study: Conviction overturned on two drug charges for 19 year old man.

Posted by janelle.tarabay on 03 November 2017

Last week Mikaela appeared In the District Court for a 19 year old man who was first charged with possession of cannabis and then charged with the same offence again a few weeks later.

On both occasions, Mikaela’s client was caught when being pulled over for a random breath test.

On sentence in the Local Court, despite providing evidence of rehabilitation and impact of conviction, Mikaela’s client was convicted of both offences and placed on a section 9 good behaviour bond. Carrying a criminal record, was a devastating result for the client.

Mikaela then saw the client and spoke to him about his automatic right to appeal the severity of his sentence to the District Court, which would involve a rehearing of the sentence as well as an opportunity to put on further evidence.

In preparation for the severity appeal, Mikaela’s client continued taking steps of rehabilitation, obtained full time employment and enrolled in university for next year. He also obtained updated character references to support his ongoing rehabilitation. In addition, Mikaela assisted him in drafting a detailed affidavit which was sworn evidence and related to the offending and why it was unlikely that he would be back before the court.

When Mikaela appeared before the District Court, she prepared her submissions to address the most concerning issue upfront, namely, that her client had been charged twice. She then went on to explain that although that was a significant factor against her client obtaining a section 10, there were other factors that also needed to be taken into consideration, such as: his young age, the relatively low level of seriousness, his remorse, his significant steps of rehabilitation, his prior good character and the impact of a conviction.

Although the Judge was hesitant at first, Mikaela was able to persuade the Judge that her client should be afforded a second chance and not have a conviction recorded against him. Mikaela’s client therefore received two section 10, non-convictions, on the promise that he be of good behaviour for a period of 12 months.

This was a life changing decision for Mikaela’s client who is at the start of his career and is due to travel overseas.

Cases such as this highlight the importance of considering severity appeals in appropriate cases, as District Court Judges may have a different sentencing view than a Local Court Magistrate.

If you have been convicted in the Local Court recently and are unhappy with the sentence, you have an automatic right of appeal. You only have 28 days to appeal so it is important that you speak to a lawyer as soon as possible. If you are outside this deadline however, there is still an opportunity to appeal your sentence within 3 months.

If you wish to discuss your Local Court sentence with us and obtain advice about the prospects of a severity appeal to the District Court please contact us on (02) 9025 9888 or at info@streetonlawyers.com.au

If you are still awaiting sentence in the Local Court or have just been charged with Possession of a Prohibited Drug  or another offence, please also contact us to discuss your options to resolve the matter in the Local Court.

Charged with driving unlicensed, whilst suspended, disqualified or cancelled? The legislation has changed.

Posted by janelle.tarabay on 30 October 2017

As of Saturday 28 October 2017, there has been significant changes to the Road Transport Act which changes how the court can sentence people charged with unauthorised driving offences, namely, people who have been charged driving unlicensed, whilst suspended, driving whilst disqualified or driving whilst cancelled.

What has changed?

There are three key changes that the court will now be implementing:

  1. Reduction in maximum penalty: If you have been charged with an offence, you now face a lesser maximum penalty. This means that the court is restricted in how much they can fine you, or in worst case, send you to gaol for. It is important to remember that a maximum penalty is reserved for the most serious of offenders and it is not common for you to receive this maximum penalty. A maximum penalty tells the court how serious the offence is.

If you have been charged with:

  • Drive unlicensed you now face a maximum fine of $2,200 only and cannot be sent to gaol.
  • Drive never licenced for the first time, you now only face a maximum fine of $2,200 and no gaol time. However, if it is your second offence, you face a maximum fine of $3,300 and can go to gaol for 6 months.
  • Driving Whilst Suspended
  • Driving Whilst Disqualified or Driving Whilst Cancelled and it is your first offence you face a maximum fine of $3,300 and can go to gaol for 6 months.
  • Driving Whilst Suspended, Driving Whilst Disqualified or Driving Whilst Cancelled and it is your second offence you face a maximum fine of $5,500 and can go to gaol for 12 months.
  • Drive whilst cancelled or suspended due to fines, if it is your first offence the maximum fine if $3,300 and you cannot be sent to gaol. However, if it is your second offence the maximum fine is $5,500 and you can be sent to gaol for 6 months.
  1. Reduction in Disqualification periods: For all offences of the above type, the court is also required on convicting you, to impose a period where you are disqualified from driving. This period used to be quite harsh and involved people spending a mandatory 1 or 2 years off the road without any room to reduce it.

This has now changed. Not only has the maximum disqualification periods been significantly reduced, there is no longer mandatory periods. There are automatic periods of disqualification which can be reduced to minimum periods. However, automatic periods do not mean maximum, and the court does have discretion to increase it.If you have been charged with:

  • Drive unlicensed or Drive never licenced (first offence) there is no disqualification period.
  • Drive never licenced (second offence) there is an automatic period of 12 months which can be reduced to a minimum period of 3 months.
  • Driving Whilst Suspended, Driving Whilst Disqualified or Driving Whilst Cancelled and it is your first offence there is an automatic period of 6 months and a minimum period of 3 months.
  • Driving Whilst Suspended, Driving Whilst Disqualified or Driving Whilst Cancelled and it is your second offence there is an automatic period of 12 months and a minimum period of 6 months.
  • Drive whilst cancelled or suspended due to fines, if it is your first offence there is an automatic period of 3 months with a minimum period of 1 month. However, if it is your second offence the automatic period is 12 months with a minimum of 3 months.
  1. Repeat offenders: If you have been charged and convicted of multiple unauthorised driving offences, the disqualification period you received would only start after you had finished the previous one. This meant you could be disqualified for a significant period.

Further, if you had committed 3 offences within 5 years, an automatic 5 years would be placed on top of your disqualification period as you were considered a Habitual Traffic Offender.

This has now changed, specifically:

  • If you are convicted and disqualified, your disqualification period starts on the day you are convicted, NOT after previous disqualification periods are finished. This means you can serve multiple disqualification periods at one time
  • If you commit 3 offences in 5 years you no longer receive an extra 5 years disqualification period as the Habitual Traffic Offenders Declaration has been abolished.

These changes are positive for people who have committed unauthorised driving offences as it means they are able to get back onto the road quicker.

If you have recently been charged with one of these offences and are due to be sentenced, please contact us on (02) 9025 9888 or at info@streetonlawyers.com.au to discuss the impact of these changes on you.

If you are someone who has already received a Habitual Traffic Offender Declaration, we can also assist in applying to have it removed.

Amendments to the Road Transport Act: How to remove your licence disqualification

Posted by janelle.tarabay on 26 October 2017

On Sunday significant amendments made to the Road Transport Act 2013 will commence in NSW.

What is the effect of this legislation?

If you have been charged with Driving unlicensed, Drive whilst suspended, Drive whilst disqualified or Drive with a cancelled licence, the maximum penalty and disqualification periods you face at sentence will be reduced significantly to better reflect the seriousness of the offences.

Further, Habitual Traffic Offender Declarations will be removed from the legislation. This means, that if you commit three major offences in five years you will no longer be subject to an extra 5 years disqualification. If you already have a habitual traffic declaration on your record it is not abolished, however can still be removed via an application to quash.

Application to remove disqualification of licence:

Perhaps most significantly, the legislation has enacted an application disqualified drivers can make to have their disqualification periods removed.

Am I eligible?

Applications can be made to the Local Court to remove your licence disqualification if you have served already served the ‘minimum offence free period’, that is, not committed a further traffic offence during the period.

  • The period is 4 years for people who have committed the following offences:
  • A major offence this includes the following driving offences

o Drink Driving,

o Driving with drugs in system,

o driving under the influence of drugs,

o Negligent driving occasioning death or grievous bodily harm,

o drive manner dangerous,

o furious driving,

o predatory driving,

o police pursuits,

o failing to stop when your vehicle has caused an injury,

o menacing driving,

o failing to submit to breath analysis or preventing taking a sample,

  • A major offence also includes murder, manslaughter, wounding and any aiding and abetting of the above offences.
  • Was disqualified for speeding over 30km per hour or for committing offences relating to racing.
  • The period is 2 years for people who have been disqualified by the Habitual Traffic Offenders Declaration or for any other traffic offence, such as:
  • Drive whilst suspended
  • Drive Whilst Disqualified
  • Drive Whilst Cancelled
  • Drive unlicensed

However, in some circumstances you could be illegible completely to make the application, namely:

  • If you have committed a serious offence whilst driving, which includes offences such as police pursuits, negligent driving occasioning death or grievous bodily harm or predatory driving; or
  • If you have been disqualified under a mandatory interlock order and have not obtained the interlock device.

How do I make the application if I am eligible?

  • Before submitting an application to the Local Court, you must fill out a form with the Roads Maritime Services, this is so they can provide you with an up to date traffic record and a covering letter confirming you are eligible for the application. The form can be found here: http://www.rms.nsw.gov.au/documents/about/forms/45072064-driving-record-application-disqualification-removal-order.pdf
  • You must then provide that covering letter and traffic record to the court with an application to remove the disqualification.
  • You will then be given a court date and must attend court on that date for your application.

What does the court take into account when making a decision?

The test for the court is twofold:

  1. Firstly, the court must determine whether you have been offence free for the required period (this is something the RMS also determines in their cover letter)
  2. The court will then consider whether it is appropriate to remove the disqualification.

In making a decision on whether it is appropriate to remove the disqualification the court will consider:

  • Your prior traffic record;
  • How long you have been offence free for;
  • The safety of the public;
  • The nature of the offences which you are disqualified for;
  • Your need for a licence and the impact of an ongoing licence disqualification.

You will need to provide evidence to support your need for a licence and the impact of being disqualification for the court to accept it.

What can the court do?

The court can:

  1. Allow your application and remove the disqualification period
  2. Allow your application in part and reduce or vary the disqualification period or
  3. Reject your application and leave the disqualification in place.

What happens if they quash my application?

You can only make one application a year. So you will have to wait until the next year. However, if you believe you did not have a fair hearing or you have just cause, you can make an application to annul the decision of the magistrate and have re do the application. However, it is very difficult to do this and we strongly advise you speak to a lawyer before doing so.

If you have been disqualified and wish to speak to us about removing your disqualification period, please do not hesitate to contact us on 9025 9888 or at info@streetonlawyers.com.au

What impacts me obtaining a “Section 10”?

Posted by janelle.tarabay on 17 October 2017

Most people charged with a criminal offence quickly learn of the phrase “Section 10”.

For those who are not aware, a “Section 10” refers to section 10 of the Crimes (Sentencing Procedure) Act 1999. It is a sentencing option available to a court in all matters, resulting in a finding of guilt but no conviction being recorded.

For those who regularly travel overseas, who work in government jobs, in finance or with children, or for those who generally wish to avoid a criminal conviction to maintain their reputation of good character, obtaining a section 10 is imperative.

Many people charged with possessing a small amount of prohibited drugs or a minor assault expect that they will be dealt with leniently, because they do not have a criminal record and they believe the offence is trivial. Accordingly, they often turn up to court unprepared, or send in the written notice of pleading”, and assume they will receive a section 10.

However, a section 10 is not always appropriate or attainable even if an offender has no prior criminal history.

This is because a magistrate is required to take into account the following factors when considering sentencing an offender under section 10:

  1. The person’s character, antecedents, age, health and mental condition;
  2. The trivial nature of the offence;
  3. The extenuating circumstances in which the offence was committed; and
  4. Any other matter that the court thinks proper to consider.

However, it is important to note that this list is not exhaustive, and simply ticking each box will not guarantee an offender receives a section 10.

For example, the offence does not always have to be trivial in order to obtain a section 10. At Streeton Lawyers, we have obtained section 10s for our clients in very serious matters where convictions are usually recorded and terms of imprisonment are often imposed, including Supplying an Indictable Quantity of Drugs and Assault Occasioning Actual Bodily Harm.

However, at times even trivial offences can result in a criminal conviction if an offender is under prepared. One of the main reasons for this is known asgeneral deterrence.” This involves sentencing an offender in a way that deters other members of the public from committing the same offence. Therefore, general deterrence is a particularly important consideration for magistrates when sentencing crimes that are prevalent in our society. 

Other factors taken into account by a magistrate include the protection of the community, recognising any harm caused to a victim or to the community, ensuring an offender is adequately punished for the offence, to make the offender accountable for their actions and to denounce the conduct of the offender.

If you have been charged with any criminal offence, it is therefore important that you do not assume you will receive a section 10. Instead, we strongly advise you obtain quality legal advice to ensure the above factors are properly considered in the presentation of your case.

The impact of general deterrence on receiving a “Section 10”

Posted by janelle.tarabay on 16 October 2017

One of the major factors that will prevent offenders from obtaining a Section 10”, is what is known as “general deterrence.”

General deterrence is a legal term used to describe the need to sentence an offender in a way that deters other members of the public from committing the same type of offence. Therefore, general deterrence is a particularly important consideration for magistrates when sentencing crimes that are prevalent in our society. 

The rationale behind the importance of this factor is if magistrates were to give all first-time offenders a section 10, the community may begin to believe that if they commit a serious offence they will nonetheless be dealt with leniently. For example, if all first-time offenders charged with drink driving received a section 10, this could send a message to the community that drink driving matters are not taken seriously by a court. This could result in an increased number of first time offenders and an increased risk of a fatal accident being caused by driver who has exceeded the legal limit of alcohol.

However, general deterrence varies in its weight for different types of offences and offenders. For example, general deterrence is attributed little weight in cases where the offender suffers from a mental condition or abnormality, because such an offender is not an appropriate medium for making an example of.

As a consequence of the weight placed on general deterrence, a seemingly trivial offence could result in a criminal conviction due to its prevalence in society. Accordingly, it is imperative that if you have been charged with a criminal offence, you obtain quality legal advice. Contact Streeton Lawyers now for a free initial consultation.

Section 32: Diverting Mentally Ill Offenders away from the Criminal Justice System

Posted by janelle.tarabay on 12 October 2017

Yesterday, Zoe appeared at Fairfield Local Court for a client that had been charged with Driving in a Manner Dangerous. This offence carries a maximum penalty of $2,200, 9 months’ imprisonment and an automatic 3 year licence disqualification. Upon reading the facts, the sentencing magistrate described the offence as being “in the worst category” for this type of offence.

In our client’s initial consultation with Zoe, it became apparent that at the time of the offence he may have been suffering from a mental illness that disabled his ability to control his conduct. Accordingly, Zoe immediately referred our client to a psychiatrist to obtain what is known as a “section 32 report.”

In New South Wales, section 32 of the Mental Health (Forensic Provisions) Act 1990 (‘the Act’) provides a diversionary provision for defendant’s who are found to be suffering from a mental illness or condition.

Essentially, section 32 diverts defendants who suffer from mental conditions away from the sentencing options of the criminal justice system. Instead, they are dealt with in an appropriate treatment and rehabilitative context that is enforced by the court.

Yesterday, Zoe made submissions to the magistrate as to why it was appropriate, in the unique circumstances of this case, to divert our client under the Act. Her submissions were supported by comprehensive evidence that she had collated, including a psychiatric report, medical documents and an affidavit from a family member.

Despite initial concerns that the matter was too serious to be dealt with under the Act, the magistrate was ultimately persuaded by Zoe and found that in the circumstances of this case, it was appropriate to divert our client away from the sentencing options of the criminal justice system.

As a result, the charges against our client were dismissed, on the condition that he abide by a treatment program as ordered by the court.

This meant that our client did not receive a criminal record and importantly, in contrast with a section 10 dismissal, there was no finding of guilt. Instead, he was dealt with in way that recognises the impact mental illnesses can have, and he was discharged into the care of a psychiatrist to receive ongoing treatment. This was a fantastic result for our client.

If you believe a section 32 may be appropriate in your matter, please contact us on 9025 9888 for advice and a free initial consultation.

“Community Safety” to be introduced as paramount sentencing consideration

Posted by Justin Wong on

Yesterday, significant sentencing reforms were introduced into the NSW Parliament. Part of the ‘Safety First” justice reforms, the reforms include abolishing suspended jail sentences and home detention orders, replacing these with a more expansive Intensive Correction Order.

The New Intensive Corrections Order (ICO)

An ICO can be imposed if a court determines that an offender must be sentenced to imprisonment, but then decides that the sentence can be served in the community under conditions.

Under the new reforms, these conditions can include home detention, electronic monitoring, community service, rehabilitation programs and treatment, and abstaining from alcohol or drugs.

Community Safety Paramount – the new Section 66

Significantly, the new laws propose a new section 66, which states that “community safety must be the paramount consideration when a sentencing court is deciding whether to make an ICO”.

What this effectively means that if a court is weighing up any alternatives to full-time custody, they will have to take into account this consideration.

Interestingly, section 66(2) explicitly states that when considering community safety, the court is to assess whether serving a full-time jail sentence is more likely to address the offenders’ risk of re-offending. 

Risk of Re-offending

For most offenders, it is difficult to conceive of a case where sentencing an offender to prison is more likely to address their risk of re-offending.

In a timely release today, the NSW Bureau of Crime Statistics and Research found an overwhelming 11%-31% reduction in the odds of re-offending of offenders who served an ICO compared with offenders who received a full-time prison sentence.

Earlier research by the Bureau found that 20.4% of adults who received a penalty other than prison were re-convicted of another offence within 12 months. This is compared to a staggering 41% of those who received a prison sentence.

How will this work?

If the final bill passes in this form, it will be interesting to see how the courts interpret this “paramount consideration’ of community safety with other established sentencing principles, including section 3A of the Crimes (Sentencing Procedure) Act 1999.

However, just as uncertain is how the ‘risk of re-offending’ will be taken into account under section 66(2), and what evidence courts will accept in making this assessment.

Justin Wong

Avoiding a criminal record for low range drink driving

Posted by janelle.tarabay on 09 October 2017

One of the most common offences in New South Wales is drink driving. As the weather begins to warm up, more people are out socialising and attending end of year functions and accordingly, more RBT’s begin to appear on our roads.

Unfortunately, most people who fail their RBT do not realise how easy it is to exceed the legal limit of alcohol, being 0.05, until it is too late. It is a common misconception that “counting” drinks is a fool proof method for remaining under the limit. Many people believe if they consume two drinks in the first hour, and one drink for every hour that follows, then at the end of the night they will be ok to drive home. However, if you sit in a Local Court on any given day, you will see that this method of calculation is often a recipe for receiving a criminal conviction.

Unlike Mid Range PCA and High Range PCA, Low Range PCA offences do not carry a term of imprisonment as a maximum penalty. The maximum penalty for Low Range PCA is a fine of $1,100 and a six month licence disqualification.

However, being a “fine only” offence does not mean that Low Range PCA is considered trivial.

Most people who come before a court charged with Low Range PCA expect to get a section 10, so that they can avoid a conviction and avoid losing their licence. However, when sentencing Low Range PCA offences Magistrate’s will often be heard reminding offenders that “general deterrence” weighs very heavily in drink driving matters, and the protection of our community is paramount. As a result, it is becoming increasingly more difficult to avoid a conviction for this offence, simply because of its prevalence in our community.

If you have been charged with any drink driving offence, we strongly advise contacting one of our traffic law specialists for a free initial consultation. Our lawyers appear daily in courts throughout New South Wales and understand the importance of a quality, well prepared case to ensure the best possible outcome is achieved for our clients.

Posted by janelle.tarabay on

One of the most common offences in New South Wales is drink driving. As the weather begins to warm up, more people are out socialising and attending end of year functions and accordingly, more RBT’s begin to appear on our roads.

Unfortunately, most people who fail their RBT do not realise how easy it is to exceed the legal limit of alcohol, being 0.05, until it is too late. It is a common misconception that “counting” drinks is a fool proof method for remaining under the limit. Many people believe if they consume two drinks in the first hour, and one drink for every hour that follows, then at the end of the night they will be ok to drive home. However, if you sit in a Local Court on any given day, you will see that this method of calculation is often a recipe for receiving a criminal conviction.

Unlike Mid Range PCA and High Range PCA, Low Range PCA offences do not carry a term of imprisonment as a maximum penalty. The maximum penalty for Low Range PCA is a fine of $1,100 and a six month licence disqualification.

However, being a “fine only” offence does not mean that Low Range PCA is considered trivial.

Most people who come before a court charged with Low Range PCA expect to get a section 10, so that they can avoid a conviction and avoid losing their licence. However, when sentencing Low Range PCA offences Magistrate’s will often be heard reminding offenders that “general deterrence” weighs very heavily in drink driving matters, and the protection of our community is paramount. As a result, it is becoming increasingly more difficult to avoid a conviction for this offence, simply because of its prevalence in our community.

If you have been charged with any drink driving offence, we strongly advise contacting one of our traffic law specialists for a free initial consultation. Our lawyers appear daily in courts throughout New South Wales and understand the importance of a quality, well prepared case to ensure the best possible outcome is achieved for our clients.

Case Study: 24-year-old charged with possess prohibited drug

Posted by janelle.tarabay on 06 October 2017

Mikaela this week had a client who was caught by a sniffer dog in Bondi in possession of a small bag of cocaine. Her client immediately made admissions to police about being in possession of the cocaine and was charged with possession of a prohibited drug.

Mikaela’s client was a young professional who had just finished his degree and started a job in a very large accounting firm. If he received a criminal record, he would have lost his job and the ability to travel and work overseas.

Mikaela advised her client that the best way to resolve the matter would be to plead guilty and seek the court’s leniency by asking for a section 10 non- conviction.

To prepare for this sentence, Mikaela got her client to engage in drug focused rehabilitative steps, obtain character references and write a letter of apology.

At sentence, Mikaela tendered these items as evidence of her client’s prior good character, positive prospects of rehabilitation and significant remorse.

Due to this evidence and the submissions made by Mikaela, her client obtained a section 10 bond for a period of 12 months, which means that he was not convicted of possessing a prohibited drug and will not have a criminal record.

The courts unfortunately regularly see young people like Mikaela’s client, charged with possession of prohibited drugs. By Mikaela having her client engage in rehabilitative steps, she was able to distinguish him from the others that come before the court and provide proof that he had learnt his lesson and would not re-offend, which went a long way in her client’s favour.

If you are in a similar position and charged with possession of a prohibited drug, please contact us  on (02) 9025 9888 or at info@streetonlawyers.com.au to discuss your options.

Sydney’s Festival season: Charged with possession of a prohibited drug?

Posted by janelle.tarabay on 04 October 2017

Not only did the long weekend gone mark the start of summer nights with day light savings, it also marked the start of a long summer festival season.

Listen Out festival kicked things off on Saturday at Centennial Park followed by Day Wash festival on Sunday at Chinese Laundry.

However, what also comes with these festivals is increased police patrolling, sniffer dogs, searches and people being charged with possession of prohibited drugs.

Although Canberra has agreed to have free pill testing at festival, in NSW it is an offence to be in possession of a prohibited drug. The offence is a serious charge with a maximum penalty of 2 years imprisonment and if convicted it is likely that the charge will impact your ability to travel, obtain visa’s in Australia and obtain some employment.

Due to the prevalence of these charges, the Courts are getting frustrated, especially with people simply asking for and expecting to get a section 10, which means a non-conviction. It is important that if you are charged with possession of a prohibited drug you take it seriously and speak to a lawyer.

Before advising you, we will look at key elements of the offence in determining whether you are guilty of the offence, namely:

  1. Whether the search was lawful: Generally, if a police officer suspects on reasonable grounds that you have in your possession a prohibited plant or drugs, they may stop and search you. They do not require a warrant if you are in a public place.
  2. Whether you were “in possession” of the drug: To have committed the offence of Possess Prohibited Drug, the prosecution need to establish that you had the prohibited drug in your custody or control. This is made out if drugs are found in your pockets, are hidden in your mouth etc. Even if you only had custody of the drug for a moment, you are still deemed to be in possession. Further, two or more people can be in possession of the same drug, if the police have evidence to support it.
  3. Whether you knew you were in possession of the prohibited drug: For this element to be made out the police need to prove that you knew that you were in possession of a prohibited drugs. This comes usually through admissions but can also be inferred from the circumstances in which the drugs were found.

In most cases, these elements are made out and people that come before the court plead guilty to the charge.

The important thing then is to prepare for a sentence to give you the best chance of obtaining a non-conviction (section 10 bond). Preparation will include:

  1. Checking the police facts and making sure that you agree with them. If you don’t, we may ask that the facts are amended.
  2. If you don’t have any criminal convictions, getting evidence to support your prior good character, or even if you do, getting evidence to support your otherwise good character. This comes in the form of character references from family, friends and work colleagues.
  3. Obtain evidence to support the fact that you are unlikely to commit the same offence again. This is evidence of rehabilitation and will include you taking some personal steps to show the court that you won’t re-offend.
  4. Obtain evidence of your remorse. This usually comes by way of a personal letter of apology that you will write to the court.

We then use this evidence to back up the oral submissions we make to the court detailing why you are someone who deserves a second chance, by being placed on a section 10 bond.  Our lawyers have an excellent success rate in achieving outstanding results for our clients charged with the possession of prohibited drugs, including section 10 bonds and even section 10 dismissals. This is due to careful advice, preparation of evidence for sentence and practiced oral submissions. Click here for more information on Section 10’s.

If you have found yourself charged with possession of a prohibited drug, or the similar offence of supplying a prohibited drug and wish to speak to a lawyer please contact us on 9025 9888 or at info@streetonlawyers.com.au

CASE STUDY: MID RANGE DRINK DRIVING NON-CONVICTION

Posted by janelle.tarabay on 19 September 2017

Yesterday, Mikaela had an excellent result at Blacktown Local Court for a charge of mid-range drink driving.

Mikaela’s client had a reading of 0.123 and was on his Provisional 2 licence, which means he could not have any alcohol in his system whilst driving. Mikaela’s client drove a short way with one passenger, before being pulled over for a Random Breath Test.

On sentence, Mikaela put before the court, in the form of sworn evidence, an explanation by her client as to extenuating circumstances which lead him to decide to drive under the influence.

In addition, Mikaela put forward significant evidence of rehabilitation, including a certificate of completion from the Road Sense Traffic Offender’s Program, evidence that her client had done independent research on the impacts of drink driving on the community, which included speaking to emergency surgeons at Westmead Hospital. Finally, as a testament to the character of Mikaela’s client and the impact the offending had on him, he had started volunteering for a charity which focuses on young people and alcohol.

Further, Mikaela’s client had the extenuating circumstances surrounding a conviction which involved a significant need for a licence due to family and work. Evidence of this was provided by both the family and employer and was tendered by Mikaela.

Mikaela then was able to make the submission that this case of mid range drink driving was unique in circumstance and due to those circumstances warranted consideration of leniency by the court.

The presiding magistrate agreed and sentenced her client to a section 10 good behaviour bond for 2 years.

This matter highlights the importance of properly and carefully preparing subjective material and most importantly, the impact rehabilitative steps taken by clients have on sentence.

Streeton Lawyers ranked top criminal law firm in NSW

Posted by janelle.tarabay on 29 August 2017

August has been a very memorable month for Streeton Lawyers, topping every category in the Annual 2017 Doyle’s Guide, Criminal Defence Rankings.

As a firm, Streeton Lawyers was named one of the four First Tier Criminal Defence Firms in New South Wales, a significant achievement for the firm and testament to the results and growth of the firm over the past  twelve months.

Our Principal, Justin Wong, was not only ranked preeminent and one of the top criminal defence lawyers in New South Wales, but was also ranked one of the top criminal defence lawyers Australia wide. Justin has worked in criminal law for the last 10 years and is highly regarded by all members of the legal profession.

Finally, our senior criminal lawyer, Adam Faro, was ranked as one of twelve Australia’s Rising Stars in criminal defence law.

We are especially proud of these results. Doyle’s Guide is voted on by the legal profession and we are honoured to be recognised by our peers. We are proud of the reputation our firm has built, based on the quality of work we provide for our clients.

Visit the Doyles Rankings

Can my disqualification be shortened? Proposed new laws for Driving Whilst Disqualified

Posted by janelle.tarabay on 15 August 2017

The NSW Government is proposing significant reforms to the law. These will allow, for the first time, certain disqualified drivers being able to apply to the court to have their disqualification period reduced after 2 years.  

Driving whilst disqualified is certainly not a trivial matter. Firstly, a disqualified driver does not have third party insurance, which places the community at a huge risk if the disqualified driver is involved in a motor vehicle accident. Secondly, a disqualification period is imposed by a court and therefore by driving whilst disqualified a person is directly disobeying a court order.

Currently in NSW, the laws for this offence are very tough. If you are caught driving whilst your licence is disqualified and it is your first offence, you face a maximum fine of $3,300, a maximum of 18 months’ imprisonment and a mandatory disqualification period of 12 months. However, if you have been caught before, or it is your second “major offence” within 5 years, the penalties are much more severe. You will face a maximum fine of $5,500, a maximum of two years imprisonment and a mandatory disqualification period of two years.

The issue with these laws is that they often expose people who live in rural areas who do not have easy access to public transport, as well as people with a low socioeconomic background, and leads them on a very fast downward spiral.

Research conducted by the Bureau of Crime Statistics and Research has confirmed that longer disqualification periods have little to no deterrent effect. However, under the current legislation each time a person reoffends they will automatically receive a minimum of two years off the road. For repeat offenders, disqualification periods can therefore accumulate very quickly. For many it can soon seem like there is no light at the end of the tunnel, as there is currently no option to have a court ordered disqualification period reduced once it has been imposed.

Furthermore, a person only needs to be caught driving whilst disqualified 3 or 4 times before they will likely find themselves serving a full time jail sentence. This is a very sad fate, given the majority of these repeat offenders are caught driving to and from work so that they can continue to earn an income to support their families.

Fortunately, the Law Reform Commission have recognised these issues and have proposed significant changes to our laws. The changes are expected to take effect from October 2017, and are as follows:

  1. Certain disqualified drivers who have complied with their disqualification period for at least two years will be able to apply to the Local Court to have their disqualification lifted early. However, this opportunity will not apply to a disqualified driver who has ever been convicted of driving offences involving death or grievous bodily harm;
  2. Police will have greater powers to impose on-the-spot vehicle sanctions to keep repeat offenders and dangerous drivers off our roads;
  3. Penalties for unauthorised driving will be more proportionate to other NSW driving offences.

These reforms will provide a more balanced sentencing scheme for disqualified drivers. Increased police powers to sanction vehicles will hopefully deter people from continuing to drive, and therefore prevent them ending up in custody. Further, the new changes will recognise those drivers who do turn their life around and cease to reoffend, by providing the opportunity to have disqualification periods quashed. This will mean that eligible offenders will be able to get back on their feet and return to lawful and regulated driving.

Streeton Lawyers looks forward to utilising these changes to help our clients obtain the best possible outcome for their case.

CASE STUDY: YOUNG OFFENDER SENTENCED FOR BREAK & ENTER

Posted by janelle.tarabay on 21 July 2017

This week Mikaela appeared for a client who had been charged with Break, Enter and Commit Serious Indictable Offence which has a maximum penalty of 14 years imprisonment, as well as a charge of destroy property, a maximum penalty of 5 years imprisonment.

Mikaela’s client was 18 years old and suffering from mental illness at the time of the offence, he was also substantially intoxicated. However since the offence, he had undergone steps of rehabilitation including counselling and alcohol treatment. Evidence was tendered proving he had changed his behaviour.

Despite the seriousness of the offence and the maximum penalties, Mikaela was able to successfully argue that her client should not have a conviction recorded. This was because of his age, prior good character, his mental illness, the steps of rehabilitation, and the impact of a conviction on his career.

As a result of her submissions, Mikaela’s client was given a second chance and placed on a section 10 bond, which means he did not have a criminal conviction recorded against him.

Cases such as these highlight the importance of putting evidence of rehabilitation before the court. Remorse and rehabilitation are key aspects considered by the court on sentence. It shows the court you have changed behaviour and are therefore unlikely to re-offend.

Rehabilitation is not just relevant to those suffering from mental illness, it addresses the element of the offending, whether it is alcohol, driving, drugs or aggressive behaviour.

If you are charged with an offence and wish to discuss this further, please feel free to contact our team on (02) 9025 9888.

Less commonly known road rules

Posted by janelle.tarabay on 20 July 2017

Do you know the rule against driving in reverse? Or that you can be fined for using your horn in anger? Here are some examples of Road Rules in NSW that aren’t commonly known.

No animals on your lap

Be careful when setting up that selfie of you and your dog on the way to the beach. It is illegal to drive a vehicle if an animal is in the divers lap. Rule 297(1A), $2,200.

Riding on a footpath when 11 years or younger or with a medical certificate

The restriction on riding a bicycle on the footpath only applies to riders 12 years or older. A parent supervising their child riding can also ride on the footpath. However, all riders are restricted on certain footpaths declared by the Authority. Rules 250 and 250-1.

If you have a certificate from a medical practitioner certifying they believe you should be allowed to ride on the footpath because of a medical condition, the restriction also does not apply.

Splashing mud on bus passengers

Ever think about speeding up and aiming for that puddle? Watch out for bus passengers. Drivers in NSW must slow down or stop, so as not to splash mud on a person waiting at a bus stop. A hefty $2,200 fine could apply. Rule 291-3.

Driving in reverse

It is legal to drive your car in reverse, but not in any circumstances. You can only drive in reverse if you can do so safely, and for a distance that is reasonable in the circumstances. Failure to comply could see you fined up to $2,200. Rule 296.

Using your horn

You can only use your horn as a warning device. That is, to warn other road users of your approach or position. You cannot use it when someone annoys you or to get someone’s attention. Another $2,200 fine could apply. Rule 224

Body part out the window

No part of your body can be outside a window when driving, unless you are giving a hand signal. This applies to passengers too. Rule 268. $2,200.

“One for the road”

Finally, there is nothing illegal about passengers consuming alcohol when in a moving car, but unsurprisingly drivers cannot drink while driving. Rule 298-1.

The NSW Road Rules can be complex and long. They have evolved over many years, attempted to cover changes in technology and to accommodate driver behaviour. Overall, the common sense test is normally a good place to start. If you find yourself wondering whether something is against the rules, or someone says “I wouldn’t do that if I were you”, assume it is prohibited.

CASE STUDY: All Charges Dismissed in Intimidation Matter

Posted by janelle.tarabay on 05 July 2017

Streeton Lawyers this week represented a 22 year old client charged with various offences of intimidation and subsequently Breaching an Apprehended Violence Order. Our client denied both charges.

The allegations followed a lengthy dispute between our client’s family and the person making the criminal complaint.

When the initial charges were heard in court, pleas of not-guilty were immediately entered on our client’s behalf. Streeton Lawyers ensured the matter was listed for hearing as soon as possible, and we assisted our client in gathering his own witnesses to the incidents.

The matter proceeded to hearing on Monday at the Downing Centre Local Court. The prosecution witnesses were cross-examined, and we then called evidence on our client’s behalf.

The magistrate ultimately found that he could not be satisfied that the offences had been committed by our client. Accordingly, all charges were either dismissed or withdrawn.

Our client and his family were incredibly relieved.

Charges of intimidation and breaching an AVO are serious offences and carry maximum penalties of 5 years and 2 years imprisonment.

What to do when the police come knocking

Posted by janelle.tarabay on 18 May 2017

Even the most well behaved sometimes wonder what they would do (or what they should do) if confronted by the police with an allegation.

There is no simple answer, but everyone should be aware of the following:

  1. Other than providing police with basic details like your name and address, there is no legal requirement to answer questions asked by police.
  2. Refusing to answer questions will not be held against you. If you are charged and the matter goes to court, the court will be told they cannot use your refusal to answer questions as evidence you are guilty.
  3. In limited circumstances, the police can issue you with a ‘special caution’. If they give this caution, and you then fail to give an explanation to police that you later give in court, that initial refusal can be used against you.
  4. A ‘special caution’ can only be given in the presence of a solicitor. ‘Presence’ means psychically present. If your lawyer tells you they will not be coming down to the police station whilst you are in custody, this may be the reason.
  5.  The police are legally required to caution you before officially questioning you. The caution should include advice that you do not have to say anything to police. You can also ask to speak with a solicitor once this caution is given.
  6. You should not answer any police questions, or give a statement, without getting legal advice.

The decision of whether you should speak to police and give an interview is one of the most important. There is no general rule or simple answer. The only rule is you should get legal advice before making a decision.

No Conviction for Supply Charges

Posted by janelle.tarabay on 05 May 2017

Yesterday, Zoe received an excellent result for her client, who had been charged with supplying 19 capsules of MDMA. No conviction or criminal record was recorded.

The matter was initially a strictly indictable offence, due to the weight of the drug exceeding 1.25 grams. This meant that the matter would proceed in the District Court.

After reviewing the Brief of Evidence, Zoe was able to successfully negotiate with the Prosecution to keep the matter in the Local Court. This was crucial, as it meant our client was able to retain his right of appeal if the sentence imposed was too harsh or unfair. It also meant the maximum penalty reduced from 15 years imprisonment to 2 years.

However, to our client’s relief there was no need to appeal. Through careful preparation of the case and convincing submissions in court, Zoe was able to persuade the Magistrate to dismiss the charges on the condition our client enter into a good behaviour bond under section 10.

This was an outstanding result given the seriousness of the charge.

We are available to assist you if you are charged with any drug related matter. To speak with one of our lawyers, call 9025 9888 for a free consultation.

10% OF ADULTS HAVE DRIVEN OVER THE LEGAL LIMIT WITH A CHILD

Posted by janelle.tarabay on 27 April 2017

The Annual Alcohol Poll 2017, released by the Foundation for Alcohol Research and Education today, reports that between 7% and 10% and adults have put children at risk of harm by having them in the car when the driver was over the legal alcohol limit.

Just over 20% agreed that their children had been put at risk of harm generally, or harmed, because of someone else’s drinking. This includes neglecting the children (9%), verbally abusing the children (12%) and physical abuse (7%).

Drink driving with a child in the car is an aggravating factor in NSW. This means it can be taken into account by a court and makes the offence more serious. This is because of the Guideline Judgment for High Range Drink Driving, as well as section 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999.

The Foundation for Alcohol Research is a not-for-profit organisation, working towards stopping harm caused by alcohol in the community. The Annual Alcohol Poll has been running for 8 years and assesses Australians attitudes toward alcohol and associated behaviours.

Case Study: Charges Dismissed for Possession of Cocaine

Posted by janelle.tarabay on 24 April 2017

Justin Wong recently represented a 46 year old corporate adviser charged with possession of cocaine in Sydney’s Eastern Suburbs.

The charge was his first criminal charge in New South Wales. Understandably, he was concerned how a conviction could affect his ability to travel for work, his professional reputation, and general how it would affect his future.

Following our advice, professional counselling was sought, and he attended various drug education seminars. We helped our client compile powerful personal references and other written material. .

The matter proceeded to sentence last week in the Local Court and Justin Wong made submissions on our client’s behalf. He asked the magistrate to dismiss the charge without conviction and without a good-behaviour bond. The Magistrate agreed and our clients charge was dismissed without conviction under Section 10(1)(a) of the Crimes Sentencing Procedure Act.

Approximately only 10% of all possession matters heard in the Local Court result in an outright dismissal under Section 10(1)(a).

Understandably, our client was extremely pleased and relieved.

5 easy tips to avoid losing your licence

Posted by janelle.tarabay on 11 April 2017

As the Easter weekend approaches, the number of drivers suspended skyrockets. Double demerits means even drivers with good records could be suspended for one mistake.

Despite the obvious tip of obeying the traffic laws to avoid losing your licence, here are some practical things you can do to avoid being suspended.

1. Be aware of the penalties

You can be suspended by the RMS for speeding over 30km/h (3 months), over 45km/h (6 months) or for exceeding your demerit points (4 points for P1, 7 points for P2 and 13 points for an unrestricted licence).

The Police can immediately suspend a Provisional Licence holder on the spot for speeding over 30km/h or 45km/h, or an unrestricted licence holder speeding over 45km/h.

2. Watch out for work zones

By far one of the most common ways drivers lose their licence is speeding in a work zone. Sudden speed drops to 40km/h, with drivers slow to react and maintaining a speed of even 70km/h, could see you suspended for 3 months. Maintaining speed at 85km/h will see you suspended for 6 months!

3. Be careful what you say to police when pulled over

If you are pulled over for speeding, and you eventually decide to challenge or appeal the suspension in court, the RMS will provide the magistrate with a copy of the police infringement. The copy given to the magistrate records what you said to police them when asked about the speeding. Responses like “are you serious?”, “no one else was around”, “I was testing out the car” or “don’t you have better things to do” will not help your case in court.

4. Watch for Mobile Speed Camera Signs

Mobile speed cameras were introduced in NSW in 1991 and again more frequently in 2008. They are located in areas where there is a high frequency and severity of crashes, where members of the community or police have nominated an area, or where the location is difficult to enforce by police using other methods.

Part of the mobile camera strategy involves highly visibility signage to act as a deterrent. There will always be warning signage placed both before and after the mobile speed camera vehicle, so watch out for the signs.

5. Be aware of your appeal rights and the strict time limits

Despite best intentions, sometimes things of wrong. Almost all suspensions (police and RMS) can be appealed in the Local Court. You only have 28 days to appeal these suspension. Otherwise the suspension stands.

As the holiday period approaches, drive safe. Remember, most cars now have alarms and warnings that can be set at various speeds, warning you when you are speeding. It is an easy and cheap way of keeping an eye on your speed, and avoiding high order speeding fines of over 30km/h or 45km/h.

By Justin Wong

LICENCE APPEALS: What to do when you get a notice of suspension?

Posted by janelle.tarabay on 06 April 2017

You can receive a suspension of your licence if:

  1. You exceed your demerit points;
  2. You are caught speeding 30 km plus over the speed limit; or
  3. The police suspend your licence on the spot due to excessive speed.

A situation our clients commonly find themselves in is: you are faced with a loss of licence, you need your licence, you can’t afford to lose it for 3 months…So what do you do?

  1. If you are on your full licence (unrestricted licence) and you accumulated more than 13 demerit points?
  •  Luckily, you have a second chance, when you receive your Notice of Suspension you can elect to go on a good behaviour licence.
  • This means you get to keep your licence on the basis that you did not commit any infringements which carry 2 or more demerit points.
  • If you do commit that infringement you will lose your licence for double the time (usually 6 months).
  • If you have breached your good behaviour licence, it is important to not pay the fine until you receive legal advice as there is still one last chance. 
  1. If you are on your provisional licence and are caught speeding or accumulate all of your demerit points? OR
  2. If you are on your full licence and are caught speeding over 30 kilometres per hour?
  •  You will receive a notice of suspension and are not eligible for a good behaviour licence.
  • You can either complete the suspension, or if you have a significant need for your licence you can appeal your suspension to the Local Court.
  • This is called a Licence Appeal. This involves appealing the RMS decision to suspend your licence, it doesn’t question whether you have committed the infringement or not.
  • In a Licence Appeal you have three potential outcomes: the suspension is quashed completely, the suspension is varied in length or .
  • When the court considers your appeal it considers your overall traffic record, your circumstances surrounding the infringement and your need for a licence.
  • It is important that before you lodge the licence appeal that you consider these issues, and contact a lawyer for their advice.

If the police suspend your licence on the spot due to excessive speed?

  • You can take the matter to court, however, it is a much more difficult test.
  • It must be demonstrated that there are “exceptional circumstances” before the suspension will be varied or lifted by a court.

Making your sentence material count

Posted by janelle.tarabay on 11 March 2017

When someone is sentenced for a criminal offence, evidence tendered at the sentence hearing can sometimes be just as important as the arguments made by their lawyer.

Effective arguments (or submissions) made in court should be based on evidence. When there is evidence before the court, arguments made on your behalf have much more force and will be given more weight.

Sometimes having relevant and powerful material before the court can mean the difference between two sentence outcomes.

What material or evidence is used?

A sentence hearing is exactly that, a court hearing where the magistrate or judge decides the appropriate sentence.  Because it is a hearing, evidence is tendered by both the prosecution and defence.

Defence evidence, sometimes called “subjective material”, can include character references, psychological or medical material, affidavits from relevant witnesses, employment records or letters of remorse. There is no exhaustive list, but the material must be relevant and admissible.

Does it differ depending on which court I am in?

In the Local Court, magistrates will often accept matters put to them by lawyers on behalf of their clients without there being any evidence. However, if there is a significant matter raised, the magistrate will want evidence. For example, if someone is going to lose their employment as a result of a conviction, there will need to be evidence supporting that submission.

Similarly, if there is a medical condition that is relevant, there should be some medical evidence to confirm the condition or treatment.

In the District Court or Supreme Court, the requirement to have evidence to support arguments is more strict. It is common for offenders to give oral sworn evidence at their sentence hearing.

How do I know the kind of material to get?

The type of material, and where to get it from, will depend on your specific matter and the issues that arise. Your lawyer can advise you of this early in the process so you can have time to start collecting the evidence.

Case Study: Common Assault Charges Dismissed

Posted by janelle.tarabay on 11 February 2017

Streeton Lawyers yesterday represented a 53 year old father of two facing two common assault charges. Common assault carries a maximum penalty of 2 years imprisonment.

After initially pleading not-guilty, solicitor Mikaela Eldridge was able to negotiate a more accurate Police Facts Sheet and obtained concessions from the police. Our client then entered pleas of guilty.

On his sentence, we requested various documents be prepared for our client. This included medical evidence which established he had been seriously injured immediately after the incident. The Local Court was asked to take into account these injuries when deciding how he should be sentenced. Documents from his counsellor were also tendered to the magistrate which showed he had been addressing his behaviour.

Although the offences are serious, because of his individual circumstances presented to the court, the magistrate found our client guilty, but dismissed all charges under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

This means there is no criminal conviction recorded and no good behaviour bond. All charges were dismissed.

Both our client and his family were extremely relieved.

Case Study: Intent to commit indictable offence in kitchen

Posted by janelle.tarabay on 08 February 2017

Justin Wong today represented a client charged with serious offences arising from a disagreement in a Sydney kitchen.

Our client was a 27 year old international student. Whilst studying, he was working as a chef in a local Japanese Restaurant in Sydney.

Whilst at work, an argument started in the kitchen with another chef. After some pushing by both men, our client picked up a knife and briefly held it to the victim to scare him. He then dropped the knife and police were called.

Police charged our client with Armed with Intent to Commit an Indictable Offence. This is a serious offence and carries a maximum penalty of 7 years imprisonment in the District Court, and 2 years in the Local Court.

After some successful negotiations on our clients behalf with the police, a plea of guilty was entered and he was today sentenced in a Local Court in Sydney.

Written material was tendered, including character references from his employer, a letter of apology to the victim, and documentation indicating that his visa to stay in Australia had been cancelled and he risked being deported.

Justin Wong, who represented our client, made submissions and asked the court to consider imposing a fine and a good behaviour bond. This was because of his prior clean record, his remorse, that it was out of character, because no one was physically harmed, and because he had co-operated and plead guilty.

The magistrate agreed, and our client received a $770 fine and a good behaviour bond.

43 year old professional avoids conviction for drug possession

Posted by janelle.tarabay on 03 February 2017

Streeton Lawyers recently represented a client, charged with possession of 2.3 grams of methampthemine. He had been charged after police searched him in an inner city street.
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Due to the nature of his profession, a conviction would have been disastrous.
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A number of personal documents were tendered on his behalf, including references from other members of his profession, letters confirming his volunteer and humanitarian work, as well as a psychological report. All of the material confirmed his genuine remorse, that the offence will not be repeated, and that he was otherwise someone of exceptional character.
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Although the magistrate was concerned with the quantity, because of his prior good character and the extensive subjective material tendered on sentence, he was discharged without conviction under section 10 with a good behaviour bond. This means he does not have a criminal record or conviction, provided he does not commit any further offences in the period of the bond.
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The case highlights the importance of strong subjective material and proper representation. Despite the high quantity, our client still managed to avoid a conviction.

How Do Police Get Away with Speeding?

Posted by janelle.tarabay on 04 January 2017

Ever seen a police car fly past and wonder if what they are doing is legal? What is the legal basis that allows police cars, and other emergency vehicles, to exceed the speed or run a red light? Are there any limits on what they can do?

Exemption to the Road Rules

In NSW, the Road Rules exempts police and emergency vehicles from its operation. But the exemption is not unlimited and only applies to police vehicles if:

  1. the driver is taking reasonable care, and
  2. it is reasonable that the relevant road rule should not apply, and
  3. the vehicle is displaying a blue or red flashing light to sounding an alarm (Road Rules 305).

The requirement to display a flashing light or alarm does not apply to a police vehicle if it is reasonable not to a display the light or sound the alarm, or have it fitted on the vehicle.

So although there are exemptions for police vehicles, it is not a blanket immunity to break any Road Rule or drive in any manner, regardless of the type of emergency.

More limited exemptions also apply to tow truck drivers, postal workers and even garbage truck drivers.

Diplomatic Immunity in Australia

Posted by janelle.tarabay on 21 November 2016

The recent behaviour of a Russian embassy staff member in Canberra has shone the light on so called ‘diplomatic immunity’. But how real is this legal concept in Australia?

Diplomatic Immunity in Australia

Although there is no legal principle of ‘diplomatic immunity’, the concept affording privileges and immunities to foreign diplomatic staff is very real in Australia.

Depending on their level of seniority, members of foreign diplomatic missions in Australia can be immune from arrest, criminal prosecution, civil legal action and search and seizure laws.

The immunity stems from Australia’s ratification of Vienna Convention on Diplomatic Relations 1967, as enacted into Australian law by the Diplomatic Privileges and Immunity Act 1967 (Cth).

How Far Does it Extend?

According to the Department of Foreign Affairs and Trade, the extent of the immunity depends on the status of the individual. Helpfully, foreign representatives are given colour codes depending on their level of seniority. If you are a diplomatic agent and given a red colour coded card, you might be immune from all level of criminal prosecutions, arrest and detention. Although police can request a breath test, there is no power to enforce it.

In contrast, low level service staff might be given a yellow card which restricts searches only on diplomatic premises. These foreign representatives are not immune from prosecution.

Under Article 37 of the Convention, the privileges and immunities enjoyed can also extend to family members of the foreign representative.

The premises of each foreign mission is inviolable, by virtue of Article 22 of the Convention. This means Australian officials, including police, cannot enter the premises without the permission of the head of the mission.

Duty to Respect Australia’s Laws

The Convention also places obligations on foreign representatives. Article 41 provides that it is the duty all persons enjoying these privileges to respect the laws and regulations of the receiving State.

There are very good reasons for affording foreign missions certain privileges and immunities, particularly in countries where there is a real risk of action by the host nation that could be oppressive or inappropriate. Whether this immunity should extend to simple road rules, drink driving or parking tickets in Australia is another question.

Case Study – Drug Supply: No Criminal Record at District Court Sentence

Posted by janelle.tarabay on 18 November 2016

For drug offences, there is no more serious offence than supply. Maximum penalties can range from 10 years imprisonment through to life.

Recently, Zoe Whetham, Associate at Streeton Lawyers, completed a matter where her client had pleaded guilty to supplying 3.42g of MDMA.  As this quantity is above the indictable quantity of 1.25g, the matter was dealt in the District Court. The maximum penalty for this offence is 15 years imprisonment.

In an outstanding result for her client, he was sentenced without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999.

Preparing for Sentence

Zoe worked closely with her client for many weeks to prepare for his sentence. She drafted written submissions which focused on the law relating to supply and sentencing principles. She also assisted her client with preparing appropriate personal material that was tendered to the judge at the sentence hearing.

The Sentence Hearing

In court, Zoe called her client to give sworn evidence of his remorse and personal circumstances. She then made closing submissions to the Court, focusing on why he should not be convicted of the offence. The solicitor appearing on behalf of the Director of Public Prosecutions strongly opposed Zoe’s submissions and instead argued our client should be convicted and placed on a good behaviour bond.

The Sentence

Ultimately, the Judge accepted Zoe’s submissions, and without recording a conviction placed our client on a section 10 good behaviour bond. This meant he avoided a criminal record.

Drug Supply Matters Generally

Only 11% of supply matters dealt with by the District Court receive a section 10, so our client was extremely pleased with this result.

The weight of the drug is crucial to how the matter will be dealt with, and the penalty that applies.

Schedule 1 of the Drug Misuse and Trafficking Act 1995 contains a table that lists all prohibited drugs and groups them, based on weight, into the following categories:

  • Small Quantity
  • Traffickable Quantity
  • Indictable Quantity
  • Commercial Quantity
  • Large Commercial Quantity

If you are in possession of a small quantity of a prohibited drug, the matter will most likely be dealt with by a magistrate in the Local Court.

If you are charged with more than the traffickable quantity, the matter will still likely remain in the Local Court, but because of the quantity, police may charge you with “deemed supply”. In simple terms, this means that due to the quantity of the drug, unless you can prove otherwise, it is assumed you are in possession for the purposes of supply. Supplying a prohibited drug is considered much more serious than possession for personal use.

If you are charged with an indictable, commercial or large commercial quantity, your matter will most likely be dealt with by a judge in the District Court. In the District Court, the maximum penalty is no longer limited to 2 years imprisonment. Instead, the maximum penalties range between 10 years and life imprisonment.

Who Gets the Fine with a Driverless Car?

Posted by janelle.tarabay on 15 November 2016

The growing development of technology is shaping how we live but also creates challenges, particularly for law-makers trying to catch up with this innovation. This is particularly problematic for the ‘driverless’ car which is expected to take the road in 2020.

The current Road Rules in NSW require drastic reform before these cars can take the road. Here are a few problems with the current laws.

A “driver” under the Australian Road Rules?

In NSW a driver is someone “driving” a vehicle. To “drive” includes to “be in control of”. This definition has obvious problems for the driverless car. Would a person merely sitting in a driverless car exercise any control of the car whilst it is driving?

Although it is still unclear, the type of automation in these cars will range from requiring human control when directed by the system, through to full automation whereby the car operates without any human input.

Our current law may need to be amended so that “control” extends to an absence of physical control by a person at the wheel.

What about vehicle malfunction?

What if the car malfunctions and goes over the speed limit, or worse, causes an accident through no fault of the driver?

The current law does account for vehicle malfunction. A person can argue an honest and reasonable mistake of fact to defend a strict liability offence, such as speeding.

So if a driverless car malfunctions and exceeds the speed limit, but the driver reasonably relied on the car’s systems and believed that the car was still travelling under the limit, the offence would not be made out.

Actions must be Voluntary

Under the Australian Road Rules and the Criminal Code, the conduct of a person committing an offence needs to be voluntary so that any unlawful conduct is a “product of the will of the person whose conduct it is.”

Therefore, even if a driver of an automated car fits under the legal definition of “driver”, under the current laws arguably they could not be found guilty of any breach of the road rules created by a system malfunction.

Other questions arise about the requirements of “drivers” to remain under the limit for alcohol, to exercise adequate care and supervision, to avoid using a phone, or simply just to stay away.

Much will depend on how quickly these cars are integrated into general use, but it will be interesting to see how the laws keep pace of this exciting new area.

Should I just send the yellow guilty plea notice?

Posted by janelle.tarabay on 24 September 2016

For many common offences, including possession of a drug, people charged will also be given a written Notice of Pleading. This is a yellow document that can be sent to the court for your first appearance.

On the Notice, defendants can indicate whether they are pleading guilty or not guilty. If they aren’t on bail and the notice is received by the court at least 7 days before the first court date, they then aren’t required to come to court for the first appearance. Section 182 Criminal Procedure Act 1986.

Pleading Guilty

For people pleading guilty, it can be tempting to just fill in the notice, write a brief explanation, and not go to court. Understandably, not having to go to court and avoiding the embarrassment and cost can be attractive. If the offence is not going to result in a serious sentence, usually the matter will then be dealt with by a magistrate at the end of the court day. For example, a fine imposed and then a notice of penalty is sent to the offender to be paid.

Non-Conviction?

The problem with this approach is if it is your first offence, and you’re hoping to avoid a conviction under section 10, sending in the Written Notice of Pleading can be a big mistake.

Why? There are two reasons.

Section 10 Bond Not Available

Firstly, most people who are fortunate enough to be dealt with without conviction under section 10 are released on a good behaviour bond under section 10(1)(b). Very few people are given a full dismissal under section 10, or section 10(1)(a).

To be dealt with under a good behaviour bond, you must be physically present at court to accept the terms of the bond. If you don’t turn up to court and the magistrate doesn’t feel a dismissal under section 10(1)(a) is appropriate, you will almost certainly be convicted.

Accepting Responsibility

Secondly, for a magistrate to deal with you under section 10, generally you need to demonstrate remorse and an acceptance of responsibility. If you don’t turn up to court, it becomes very hard to distinguish yourself from everyone else being sentenced on that day and show the court you are sorry.

Whether or not to rely on a written notice will depend on each case. However, if you are pleading guilty and genuinely want the best outcome, it is never advisable.

How useful are sentencing statistics?

Posted by janelle.tarabay on 16 September 2016

Sentencing statistics, usually compiled by the Judicial Commission, are often presented to magistrates or judges as a numerical summary of past sentences for similar offenders.

How can they be used?

The use of sentencing statistics has undergone significant change in recent years. Judges of superior courts have recently stated that it is incorrect to place too much weight on past numerical sentencing data or patterns, without any understanding of the individual facts and circumstances of those cases. To do so is not permissible and dangerous. This is particularly the case when dealing with federal offences, or when the data size is small. See Hili v The Queen [2010] HCA 45.

Still a Yardstick?

However, despite their limitations, along with other material, sentencing statistics still have a role to play in many cases, in ensuring consistency in sentencing, and also serving as a “yardstick” by which to assess proposed sentences.

As the High Court said in The Queen v Pham [2015] HCA 29 [at 47]:

“This is not to deny that statistical material showing the pattern of past sentences for an offence may serve as a yardstick by which the sentencer assesses a proposed sentence and the appellate court assesses a challenge of manifest inadequacy or excess. The joint reasons in Barbaro put it this way:

“As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. This history stands as a yardstick against which to examine a proposed sentence”

Ultimately, the use statistics play in sentencing proceedings will depend on the type of offence, the prevalence of past data, and what use the advocate asks the sentencing judge to make of the statistics.

New ‘revenge porn’ laws: stopping intimate photos going viral

Posted by janelle.tarabay on 06 September 2016

No one should be able to share an intimate photo sent to them by a partner whilst in a relationship. Although arguably covered by Commonwealth offences of Using Carriage Service to Menace or Harrass, in NSW there is currently no specific law that makes it a criminal act for an ex-partner to share your intimate image or threaten to share it.

The spike in the instances of what has been termed ‘revenge porn’ has placed pressure on the NSW Government to consider legislating against such action taken by partners.

These vengeful responses can be common in cases of domestic violence and the threat or actual sharing of an intimate image has been used to force a victim to stay in the relationship, or as blackmail during legal disputes.

A report published by the NSW Government in March recommended laws that would allow a victim to sue the person sharing the image where their privacy has been invaded.

In considering new laws, the issue of consent and young people will need to be considered carefully. Currently, the laws on “sexting” see young people under 16 who send explicit images consensually to another is an act of child pornography. The new laws will need to consider this issue, and the potential for  young people to be treated as criminals under laws intended to protect them.

Although we cannot be sure when these changes will take effect, it is a step towards NSW catching up with other Australian states to ensure adequate protection

If I lose my driver’s license will I lose my boat license?

Posted by janelle.tarabay on 02 September 2016

This is one of the most common questions from clients. Particularly since the Roads and Maritime Service was amalgamated in 2011 (when the former RTA joined NSW maritime).

The position in NSW is that the disqualification of a driver’s license will not automatically mean that your boat licence will be disqualified or affected. This also applies to a suspension or cancellation of your driver’s license.

The Legislation

For those interested, Section 204 of the Road Transport Act allows a court to disqualify a driver, after conviction for a major offence. For example, Drink Driving or Driving whilst Suspended. Importantly, the disqualification disqualifies a person holding a ‘driver licence’ for the relative period.

A ‘driver licence’ is defined under the legislation to include a licence authorising someone to drive a motor vehicle on a road or a road related area. In contrast, a ‘boat driving licence’ is separately defined under the legislation to be governed by the Marine Safety Act 1998.

Section 57A of the Road Transport Act 2013 provides for the issuing of combined licences. This means, a person can have one licence covering their driver’s license and boat license. Significantly, section 57A (2)(c) specifically provides that the suspension or cancellation of one license does not on itself effect the validity or continued effect of the other licence. In other words, just because your driver’s licence has been disqualified or cancelled, a boat licence also held under the same combined licence is not necessarily effected.

The same is a true for a disqualification of your boat licence. It does not automatically effect your driver’s licence.

Although the above provisions apply generally, if you are in any doubt you should seek legal assistance or make enquires with the RMS concerning the status of your licences.

Legal Update: High Court Rules on Extended Joint Criminal Enterprise

Posted by janelle.tarabay on 24 August 2016

Today, the High Court declined to overturn or revise the test to prove Extended Joint Criminal Enterprise, after considering the history and basis of the doctrine.

For centuries, the law has allowed other people to be convicted of a crime that has been physically committed by another person. This is called Extended Joint Criminal Enterprise.

Today in Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions for the State of South Australia [2016] HCA 30, the High Court today could have followed a path taken by the UK Supreme Court in February, which ruled that the principle was in some respects a mistaken reading of previous law (R v Jogee [2016] 2 WLR 68). However the High Court declined and  the law in Australia will continue to remain as stated in the case of McAuliffe. That is, a person can be guilty of a more serious crime if they ‘foresee the possibility’ of it occurring whilst committing of a lesser severity.

Mobile Ban – Strict New Laws for P Plate Drivers in NSW

Posted by janelle.tarabay on 23 August 2016

Leading up to December 2016, P plate drivers should get ready to face harsher restrictions than ever before. A spike in fatal accidents, including 222 deaths in 2015 have urged the NSW Government to ban hands-free mobile phone use for all P2 licence holders.

Currently, if you hold a Learner or P1 licence, you are not allowed to use a mobile phone at all whilst driving, including using hands-free, loud speaker and using phone GPS. You will not be in breach of this rule if you are parked out of the line of traffic and use a mobile phone in any way.

Early this year, the government passed a law that means for Learner or P1 licence holders that are penalised for illegally using a mobile phone (four demerit points), they will exceed their demerit point threshold immediately and face a three-month licence suspension.

No More Mobile Use for P Licence Holders

Currently, P2 licence holders are allowed to operate a mobile phone hands-free. However after December 2016, all provisional license holders must not use any function of a mobile phone while driving or riding, or when stationary but not parked.

Even stricter rules will be implemented in November 2017, including an extension of 6 months each time a driver on their P2 license receives a suspension for unsafe driving behaviour.

The required tests for those on their Learner, P1 and P2 license are also likely to change, so keep informed on the updates here.

NSW Traffic offences are taken seriously so if you have had problem, check out our Traffic Law page or give one of our lawyers a call on (02) 9025 9888 for a FREE consultation.

Dash Cam’s and Speeding

Posted by janelle.tarabay on 09 August 2016

Streeton Lawyers recently had a speeding matter dismissed that relied on dash cam evidence to prove speeding.

Dash Cam’s are becoming increasingly popular and have proven to be an extremely useful tool in keeping our roads safe.  The footage is frequently being used by the media to report on traffic incidents and by authorities as evidence of how incidents have occurred. For example, the ABC recently reported on an incident where two motorcyclists were knocked from their bikes by a car, which had been captured on a Dash Cam.

However, there are limits to how far Dash Cam’s go in terms of being used as “evidence” of an incident or an offence. This was recently highlighted in one of Zoe’s matters.

Our client had been caught on a civilian’s dash cam as he passed their vehicle on his motorbike. The civilian then took the camera off their dashboard and filmed their speedometer in an attempt to prove our client was speeding.

The civilian then took the footage into Police, and accordingly our client was issued with a speeding infringement which would have resulted in the suspension of his licence.

After lengthy negotiations with Police, Zoe was able to get our client’s speeding infringement withdrawn on the basis that although the Dash Cam footage showed our client passing the civilian’s vehicle, there was no way to prove beyond reasonable doubt that our client was exceeding the speed limit.

Our client was extremely happy with this result as he is no longer facing a licence suspension and he is not required to pay the hefty speeding fine.  

 

 

District Court Appeals – Unhappy with the Local Court Sentence?

Posted by janelle.tarabay on 02 August 2016

In NSW, everyone sentenced or found guilty in the Local Court has a right of appeal to the District Court. This appeal can be against the sentence imposed, or against the magistrate’s decision to find you guilty after pleading not guilty.

Appeals must be lodged within 28 days, or in certain cases within 3 months with the ‘leave’ of the District Court.

Can I Present New Evidence on my Appeal?

If you are appealing the sentence, you can present any fresh evidence you want without asking the court to give you permission, or grant ‘leave’. For example, you might have taken substantial steps since being sentenced in the Local Court and tendering an updated report or reference might assist your prospects on appeal. Alternatively, you might give oral evidence in the District Court to supplement the evidence you previously gave in the Local Court.

If it is an appeal against being found guilty after a hearing, you can only present fresh evidence if the court grants you permission, or ‘leave’. Otherwise the appeal will be on the transcript of the evidence given in the Local Court.

Can I get a worse sentence on appeal?

Technically, yes. However, if the judge is considering increasing your sentence on appeal, as a matter of fairness the judge will warn you or your lawyer that is what they are considering. This is called a ‘Parker Warning’. Once the warning is given, you have the opportunity to withdraw the appeal.

What about licence disqualifications? Do they continue to run whilst I am waiting for my appeal?

This depends on whether you were suspended by the police for your traffic offence when charged.

If you were suspended on the spot by police, and then disqualified in the Local Court, lodging an appeal to the District Court will not stop or ‘stay’ the disqualification.

However, if there was no police suspension before you were disqualified in the Local Court, lodging the appeal will generally stay the disqualification. You can then re-apply for a fresh licence with the RMS and drive until the appeal is heard.

For more information on appeals, see our Appeals page.

Can my character references be made public?

Posted by janelle.tarabay on 27 July 2016

The simple answer to this is yes however, you should be aware that there is no absolute right to access these documents. Any person wishing to access them needs approval from the court and this can be refused as seen in the recent case of R v Wran [2016]. In this case, the Judge decided that the principles of confidentiality and protection of Wran’s supporters outweighed Nationwide News’ arguments that the material is of public interest and worthy of reporting.

In refusing Nationwide News’ application, the Judge took into account the position of the individuals who provided references, the position of the defendant and the position of the newspaper. Being a daughter of a previous Premier of NSW, Wran was a popular target for Daily Telegraph’s long campaign of sensational and often inaccurate reporting.

It is often the most high-profile cases that attract applications from media outlets, particularly if the referees are people of distinguished reputation.

A Member of Parliament has also been criticised for commenting on the morality of “high-profile Sydneysiders” who provided references in a case with a high-profile defendant that attracted negative publicity.

Character references often provide a sentencing judge or magistrate with important information about an offender’s personal characteristics, their personal history and remorse. For anyone wishing to be a character referee, don’t be deterred from assisting the court simply because the media may be able to access it. Character references have the potential to impact a sentence given to an offender.

By Jessica Meech

How can a lawyer represent someone when you know they are guilty?

Posted by janelle.tarabay on 22 June 2016

One of the most common questions asked from any criminal defence lawyer is how they can represent someone after they tell you they are guilty. It’s a fair question.

When a client maintains they are guilty, but instructs their lawyer to plead not guilty, this would normally result in the lawyer considering withdrawing from the matter. However, this is not necessarily always appropriate. If the lawyer remains, there are clear ethical obligations that apply.

The most fundamental ethical obligation is that a lawyer cannot mislead the court.  A lawyer cannot positively suggest to a witnesses or the court that they have not committed the offence.  The NSW Solicitors Rules provide they cannot:

(i)  falsely suggest that some other person committed the offence charged; or,

(ii) set up an affirmative case inconsistent with the confession.

They can however:

  1. argue that the evidence as a whole does not prove that the client is guilty of the offence charged; or,
  2. argue that for some reason of law the client is not guilty of the offence charged; or,
  3. argue that for any other reason the client should not be convicted of the offence charged.

What if the Client Insists on Giving False Evidence?

If this happens, or the client insists on giving evidence in which they deny their guilt, the solicitor must not continue to represent the client.

These rules are absolute and are taken seriously by lawyers. Breaching any of these rules is serious misconduct that could mean the solicitor is struck off.

The rules recognise one of the fundamental principles in our system, that it is the prosecution that bears the onus of proof. That onus always lies with the prosecution, and it is for the prosecution to prove beyond reasonable doubt that a citizen has committed an offence.  It is permissible for a lawyer to “put the prosecution to proof” and test the evidence.  However, it is not permissible for a lawyer to positively suggest that their client did not commit the crime when they know this to be untrue, or mislead the court in anyway.

Why selfies and court do not mix

Posted by janelle.tarabay on 19 June 2016

Everyone loves an occasional selfie, especially when capturing a major event or doing something out of the ordinary. Going to court can be both, but packing that selfie stick in your bag could be a major mistake.

A Hong Kong lawyer recently attracted criticism when he posted a photo of himself outside a court room, apparently breaching the local law.

In NSW, taking a photo inside a court building is a criminal offence, carrying a maximum penalty of 12 months imprisonment. Section 9 Court Security Act 2001. This covers photos taken anywhere in “court premises” which includes a forecourt, courtyard, yard, parking area, toilet facility, hall, corridor or other area used in conjunction with the premises or place. The definition is incredibly broad.

So although tempting, that photograph taken outside the court room, or even in the court precinct and foyer, could see you unexpectedly end up back before the court.

Can I get a work licence instead of disqualification?

Posted by janelle.tarabay on 18 June 2016

For many people, they depend on being able to drive to make a living. One of the most common questions from clients charged with drink driving, or other major traffic offences, is whether the court can order a conditional work licence, that would let them drive to and from work only.

Unlike in other states, in NSW, there is NO conditional or work type licence available as a sentencing option. Similarly, there is no option for the RMS to issue a conditional work-related licence.

When a magistrate disqualifies you from driving, the disqualification is absolute. The disqualification also cancels all of your licences. What this means is that unfortunately for many, in NSW it is an “all or nothing” choice for a magistrate. You either lose your licence for a period absolutely, or if you receive no conviction under section 10, you are allowed to drive absolutely.

The closest thing to a conditional licence option in NSW is when a magistrate deals with your charge with a conditional non-conviction bond under section 10, and makes it a condition of the bond that you not commit any moving traffic offences.

This means you receive no conviction, and therefore no disqualification. However, you are released on the promise that you do not commit any offences, including minor moving traffic offences. This can be for a period of up to 2 years. If you commit a traffic offence in that time, you will be called back to the court and re-sentenced for the original major offence. It is possible you will then be disqualified absolutely.

Joint Criminal Enterprise: How you can be convicted of a crime you did not physically commit

Posted by janelle.tarabay on 17 June 2016

For centuries, the law has allowed other people to be convicted of a crime that has been physically committed by another person. This was seen in the most recent case of Roger Rogerson and Glen McNamara who were both jointly tried for the murder of Jamie Gao. The jury convicted the two former detectives after finding that they were satisfied the pair acted as part of a joint criminal enterprise.

There are three ways in which a person can be criminally liable for an offence, as outlined below.

Accessorial Liability

Firstly, accessorial liability relates to a person who assists the principal in committing the offence either before or after the criminal activity took place, but was not present. That is, they intentionally assisted or encouraged the principal to commit the criminal activity.

Joint Criminal Enterprise

Secondly, a joint criminal enterprise is where two or more persons agree to commit the same criminal behaviour and so are equally responsible for the acts of another in the carrying out of that criminal behaviour.

Generally, if person is charged with a crime under either of these principles, amongst other things, the relevant intention to establish the offence will need to be proved.

Extended Joint Criminal Enterprise

The most controversial principle under secondary liability is Extended Joint Criminal Enterprise (‘EJCE’). EJCE attaches to any person who makes an agreement to commit a crime but foresees the possibility that the other participant(s) might commit a more serious crime.

A common situation may be where two people agree to commit an armed robbery of a bank and during the committing of this crime, one person wounds a person whilst in the process of robbing the bank.

In this example, the person who agreed to commit the armed robbery but did not intend to commit a further offence will still be guilty of the more serious crime if they could foresee the possibility of that person causing such harm.The mental element required to prove this more serious crime is therefore easier to prove for the person who did not agree to commit the offence than the person who actually wounded a person.

Not only do these alternative pathways provide additional difficulty for juries but it has also led to a principle that is entirely inconsistent with the general principle of criminal responsibility.

Since this principle was developed in 1980s in the United Kingdom and Australia, it has been criticised from many academics and minority judgments. However, in a milestone judgment in the UK, the case of R v Jogee [2016] 2 WLR 68 it was stated that the principle of EJCE was in some respects a mistaken reading of previous law and abolished the requirement of ‘foreseeing the possibility’.

The High Court is also currently considering whether to reconsider and revise or abandon the principle of Extended Joint Criminal Enterprise in the case of Smith v The Queen (HCA, Case No A22/2015).

 

Can I avoid a criminal record?

Posted by janelle.tarabay on 07 June 2016

If you plead guilty to a criminal offence, or you are found guilty of the offence by a magistrate or judge, the court will usually convict you and impose an appropriate penalty, such as a fine, a good behaviour bond, or in more serious cases a custodial sentence.

Once convicted, the offence will be on your criminal record for 10 years until it becomes a ‘spent conviction’.

A criminal record can be detrimental in many different ways. For example, it is extremely difficult to travel to the United States of America with a conviction for any drug offence. Further, many employers will do criminal record checks on current and future employees.

Accordingly, many people are desperate to avoid a criminal conviction.

You cannot avoid a criminal conviction by paying a larger fine, even a fine of $50 will appear on your criminal record. You can, however, avoid a criminal record by receiving what is known as a “section 10.”

What is a section 10?

“Section 10” refers to section 10 of the Crimes (Sentencing Procedure) Act 1999. The Court can deal with any criminal offence under this section.

How can I get a section 10?

The factors the Court considers when determining whether to deal with a matter under Section 10 include:

  • The persons character, antecedents, age, health and mental condition
  • The trivial nature of the offence (if that applies)
  • Any extenuating circumstances in which the offence was committed
  • Or any other matter that the Court considers appropriate to consider

However, a common misconception is that if a person does not have a criminal record and the offence is not serious, then a section 10 will be imposed. This is certainly not the case, because in sentencing all matters the court needs to consider a range of factors in addition to those outlined in section 10. It is therefore imperative that you obtain legal advice before self representing if you are looking to avoid a conviction.

What happens when I receive a section 10?

In dealing with a person under Section 10, the court can deal with that person in one of three ways:

  1. Direct that the relevant charge be dismissed
  2. Discharge the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 or 3 years
  3. Discharge the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of that program

Having a matter dealt with under Section 10 means that a formal conviction has not been entered.  As a formal conviction has not been entered, it may be that in certain circumstances an individual is not required to disclose the offence when asked to do so for employment or travel purposes.  This will depend on the nature of the question, as well as the specific disclosure requirements and you should seek legal advice before deciding whether or not to disclose previous offences.

In general terms, the advantage of having a matter dealt with under Section 10 means that the offender can honestly answer that they do not have any previous convictions.  Although a conviction has not been formally entered, the charge and finding of guilt will remain on a person’s police record and should that person be charged in the future, the charge and Section 10 order will remain on the police record and be before the Court in any future proceedings.  The matter is not wiped from your police or Court record.

What happens to your licence disqualification if you are in jail?

Posted by janelle.tarabay on 23 May 2016

For many serious traffic offences, a court can impose a period of imprisonment as well as a disqualify your licence.  Common offences like Mid-Range PCA carry a maximum penalty of nine months imprisonment.  However full-time jail is normally only received by repeat offenders or for the most serious offenders.

However, what happens when a person is sentence to jail and also disqualified from driving? Does the disqualification run at the same time the person is in jail?

In NSW the law provides that any period of licence disqualification is extended by the period of imprisonment served.  In other words, if an offender received a twelve month disqualification and a twelve month period of imprisonment, the disqualification is extended by 12 months.  The offender would serve a twelve month disqualification once they are released from custody.  See Section 206A Road Transport Act 2013.

Discretion not to Extend

However, the court does have a power to vary that period or not order that the disqualification be extended.  For practitioners appearing in matters where there is a real possibility of their client being sentenced to jail, remembering to address the magistrate or judge on the discretion not to extend the period of disqualification can be an important matter and make a significant difference when the client is finally released from jail.

WHEN JURIES CAN’T AGREE

Posted by janelle.tarabay on 21 May 2016

Most people understand that before an accused is convicted, a jury must agree unanimously that they are guilty. In other words, all 12 jury members must be satisfied that the Crown has proven an accused’s guilt beyond a reasonable doubt.

However, a common question from clients is whether a jury has to agree unanimously that they are not-guilty. Do all 12 jurors have to agree that the Crown has not proven its case beyond a reasonable doubt?

The answer is, yes. A jury must all agree together that an accused is guilty or not-guilty. It must be unanimous, unless the jury is allowed to consider a majority verdict (11 to 1). Each individual juror can use their own reasoning in coming to their conclusion, but for there to be a verdict, it must agreed by all jurors.

If the jury can’t all agree that the person is guilty or not-guilty, it is a hung jury and the jury is normally discharged.

WHAT HAPPENS IF THE JURY CAN’T AGREE? 

This largely depends on the Crown. There can be a re-trial, or depending on the circumstances of the trial and decision, the Crown may decide to not prosecute any further. The charge is dismissed.

The Prosecution Guidelines in NSW requires the following to be considered by the Crown before there is a re-trial:

  • whether or not the jury was unable to agree (or the trial ended for other reasons);
  • whether or not another jury would be in any better or worse position to reach a verdict;
  • the cost of a retrial to the community and to the accused person;
  • the views of any victim of crime involved.

If there has been two trials and two juries have been unable to agree, it is only in “exceptional circumstances” that there will be a third re-trial.

By Justin Wong

Justin Wong is principal lawyer at Streeton Lawyers, a boutique specialist criminal law firm in Sydney. 

NO CONVICTION – SECTION 10 BOND FOR ASSAULT OCCASSIONING ACTUAL BODILY HARM

Posted by janelle.tarabay on 19 May 2016

Last week Mikaela completed a matter where her client was charged with assault occasioning actual bodily harm and faced an Apprehended Violence Order.

Assault occasioning actual bodily harm is a serious offence which carries a maximum penalty of five years imprisonment. Anyone who assaults a person and causes visible harm to them can be charged with this offence and the harm can span from bruises and scratches to even knife wounds.

A conviction for this offence would have had significant consequences on our client’s career

Despite 18% of people charged with this offence going to gaol, and 45% receiving a conviction and good behaviour bond, Mikaela’s client received a section 10 bond. That is, a finding of guilty but no criminal conviction on the promise that they are of good behaviour for 18 months. Mikaela’s client received an extraordinary result, which was largely due to two key things Mikaela did on her client’s behalf:

Amending the facts

First, Mikaela listened to her client’s version of events carefully. She noticed that what her client told her was quite different to what the police recorded in the fact sheet. Accordingly, Mikaela wrote to the police indicating where the facts should be amended to better reflect her client’s version of events.

This isn’t easily done and involves persuading the police that amending the facts is appropriate in the circumstances, and will expedite the resolution of the matter. All the while also ensuring punishment for the accused and protection for the victim. Having the facts amended meant that the seriousness of what Mikaela’s client was charged with more accurately reflected what actually occurred and reduced the seriousness of the offence.

Smart Submissions:

Second, Mikaela in her submissions to the Magistrate focused on the objective seriousness of the offence and highlighted how her client’s actions were of the lowest end of seriousness in relation to the offences. Mikaela focused on the degree of violence, the extent of the injury and her client’s intention when pushing the victim.

Mikaela then supported this with evidence that her client, regardless of the seriousness, was taking the offending extremely seriously and was engaging in ongoing counselling.

By ordering her submissions that way, Mikaela was able to highlight to the Magistrate how not only was this offence of the lowest level and how her client had immediately realised how wrong their actions were and already taken steps to change their behaviour. This allowed the Magistrate to give a section 10 bond as the circumstances indicated that the promise of good behaviour would provide adequate punishment for the client. Mikaela also indicated that her client had agreed to a final Apprehended Violence Order, which she submitted was adequate protection for the victim.

The Outcome:

The result being that all parties received adequate outcomes. The victim was protected by an apprehended violence order, which, if breached is a serious criminal offence. The Community was protected through the good behaviour bond. Finally, Mikaela’s client walked away without a criminal conviction but also with an understanding of why they offended. He is engaging in ongoing steps to ensure he does not re-offend.

HABITUAL TRAFFIC OFFENDER DECLARATIONS AND MANDATORY INTERLOCK ORDERS: CAN THEY CO-EXIST?

Posted by janelle.tarabay on 16 May 2016

This month Mikaela had a matter that was quite unusual but unfortunately one that may become quite common.

Mikaela’s client had committed a third low range drink driving offence within five years and was declared a Habitual Traffic Offender. This means the client was disqualified by the RMS for an additional 5 years in addition to the disqualification periods for the drink driving charges.

When Mikaela’s client was sentenced for the third range drink driving, the sentence involved the minimum disqualification period of 1 month and a 12 month Mandatory Interlock Order. This is an order requiring High Range Drink Drivers or Repeat Drink Drivers to install an interlock device in their car, which prevents a car from starting unless they blow a zero alcohol reading.

Mandatory Interlock Orders

Mandatory Interlock Orders were introduced in NSW in February 2015 and have had the effect of reducing disqualification periods whilst also ensuring offenders are supervised by the interlock device for an extended period. However, the legislation is not an easy way out for offenders to receive less time off the road. They cost at least $2,200 per year. Further, the legislation is worded so that a person is disqualified from holding a drivers licence for 5 years unless that person applies for and holds an interlock licence. This means that if an offender is given a Mandatory Interlock Order and fails to complete the order, they will instead have to serve the 5 years automatic disqualification.

Problem for Habitual Offenders

Section 208 of the Road Transport Act 2013 (NSW) states that Habitual Traffic Offenders are illegible for interlock orders.

Unfortunately, Mikaela’s client found himself in the situation where he was sentenced to a Mandatory Interlock Order and made a habitual traffic offender at the same time. Consequently, because he was ineligible for an interlock order, he was given 5 years disqualification for not being able to apply for the interlock licence, and then 5 more years for the habitual traffic order. The effect of this being that the client would spend at least 10 years off the road plus the 2 disqualification period for the drink driving offence

The Solution

Mikaela resolved the matter by having the court quash the Habitual Traffic Offender Declaration. As a result, he was then eligible for the 12 month Mandatory Interlock Order.

The result being that Mikaela’s client will spend 2 years off the road and one year on the interlock, instead of 12 years.

For Mikaela’s client, that was a fantastic result as it meant he could serve less time off the road and engage an interlock device. However, what can instead happen to those facing their third serious traffic offence and a habitual traffic declaration is one of two things:

  1. Magistrates will sentence offenders pursuant to the pre-Mandatory Interlock Order disqualification periods, meaning they will be off the road for a longer period of time plus the five year disqualification.
  2. Your lawyer can ask for the habitual traffic offenders declaration to be quashed before the Magistrate sentences the offender for their third serious offence, which will make them eligible for the Mandatory Interlock Order and less time of the road.

Mikaela and the team at Streeton Lawyers are well equipped to handle such a situation and as Mikaela’s above result shows, provide the highest quality advice in a complex and specialist area.

Zoe Whetham Appointed as Associate

Posted by Justin Wong on 30 April 2016

Streeton Lawyers is pleased to announce that criminal lawyer Zoe Whetham has been made an Associate of the Firm. Zoe has been recognised for her outstanding performance, service to her clients, as well as recognition in the legal professional. Congratulations Zoe! There is more information about Zoe on our About Us page.

CASE STUDY: NOT GUILTY OF DRUG POSSESSION

Posted by janelle.tarabay on 08 April 2016

Yesterday, Zoe Whetham represented our client in a hearing at Burwood Local Court.

Our client had been charged with possession of a prohibited drug, being methamphetamine found in her car. She denied knowing about the drugs and pleaded not guilty to this offence.

To be found guilty of this charge the prosecution must prove the following two elements beyond reasonable doubt:

  1. The prohibited drug was in the persons possession; and
  2. The person knew the drug was in their possession.

Through cross-examining the prosecution witnesses, including the Detective who charged our client, Zoe was successfully able to establish that our client was not in possession of the drug.

The argument for this was primarily based on the decision in Filippetti (1984) 13 A Crim R 335. In that case, drugs were found inside a lounge in the living area of Mr Filipetti’s home. He was charged with possession of the drug. However, there were five other people who also lived in the house. The court held that in order for the prosecution to be able to prove someone was in exclusive possession of a drug, they must first negate the possibility that the drugs were in the possession of someone else.

Yesterday, the Magistrate agreed with Zoe’s closing submissions that the prosecution had failed to establish both elements of the offence beyond reasonable doubt.

Accordingly, our client was found not guilty.

If you have been charged with drug possession or supply, we highly recommend obtaining advice from an experienced lawyer before you attend court. That way, you can be sure your matter is being dealt with appropriately to obtain the best outcome. Contact one of our lawyers on (02) 9025 9888 for a FREE consultation.

Newcastle murder charge after alleged break and enter

Posted by Justin Wong on 28 March 2016

News over the Easter weekend reports that a Newcastle man has been charged with murder after allegedly confronting a man who had broken into his house.

Whether his actions were legally justified will ultimately be determined by a court. However when death is inflicted, the defence of self-defence in NSW is restricted.

Self Defence Generally

Generally, for an accused person to rely on self-defence, he or she must establish that they:

  1. believed that their conduct was necessary to defend themselves, defend another, to prevent damage or interference with property, or trespass; and,
  2. what they did was a reasonable response in the circumstances as perceived by the accused.

When a court is assessing whether a person believed their conduct was necessary, the court is concerned with the  “subjective” belief of the accused. In other words, what that person actually believed was necessary as opposed to what a reasonable person would have believed.

In contrast, when assessing whether the response was reasonable, the court undertakes an “objective assessment” and asks itself whether the accused actions were reasonable in the circumstances as perceived by the accused. The “circumstances as perceived” by the accused is subjective.

When Death is Inflicted

In the context of a case where a person dies, there are a few relevant points to note:

  • When death is inflicted, section 420 of the Crimes Act 1900 provides that self defence is only available to defend self or another (not to defend property or to prevent trespass)
  • If a person is charged with murder, and the force used is found to be excessive, but the person believed their actions were necessary to protect themselves or another, the person is guilty of manslaughter and not murder.

For further information, see our earlier article in 2011.

Streeton Lawyers announces support for beyondblue

Posted by Justin Wong on 22 March 2016

Streeton Lawyers today announced our sponsorship and support for beyondblue. Throughout the year, we will be holding a number of events to raise money and awareness for the organisiation, as well as issues relating to depression, anxiety and suicide.

Beyondblue provides support and research into those suffering from anxiety and depression. In any one year, around one million adults in Australia suffer depression. Perhaps less known, almost double that figure suffer from anxiety.

Depression in the Legal Profession

The problem is even more pronounced in the legal profession, with around 1 in 3 solicitors presenting with symptoms of depression at some time in their legal career. A study in 2011 found that lawyers were the most likely in the professional services industry to experience symptoms of depression.

Streeton Lawyers is also a signatory to the Tristan Jepson Memorial Foundation Best Practice Guidelines, an organisation which aims to decrease work related psychological ill-health in the legal community.

To support either organisation, or learn more, visit their websites at beyondblue or the Tistan Jepson Memorial Foundation

 

 

SYNTHETIC DRUGS: BATH SALTS AND CANNABIS ALTERTNATIVES OUTLAWED

Posted by janelle.tarabay on 21 March 2016

Last week Attorney-General Upton announced that three substances, ab-chminaca, ab-pinaca and ab-fubinaca, have been added to Schedule 1 of the Drug Misuse and Trafficking Act. Ms Upton warns these drugs are deadly, which has lead to their reclassification as a prohibited drug.

The effect of this is that if you are in possession of any of these substances, you will be committing a criminal offence that carries a maximum penalty of 2 years imprisonment. If you are caught manufacturing or supplying these drugs, you could be facing life imprisonment.

The three substances are synthetically manufactured and are being misleadingly marketed as recreational herbal teas and cannabis alternatives. Therefore, people may be purchasing these drugs believing that they are harmless or natural alternatives, but in actual fact their use can result in fatal outcomes.

Earlier this year, the body of a 17 year old man was found in a reserve at Rutherford in the Hunter Valley. Police were informed that prior to his death, the young man had consumed a synthetic form of cannabis.[1]  Last year, two Queenslanders died after consuming a drug that was marketed as a “natural high”.[2]

Three years ago synthetic cannabis was outlawed. However, because the formula for these drugs is constantly changing, it is imperative that drugs marketed as natural or harmless alternatives are constantly reviewed to ensure the community is kept safe from them.

Ms Upton told ABC News, “That’s why the work of the scheduling committee, which is onto that task, is an important one in giving advice to government, so that then we can change the regulations and the laws to ensure that those synthetics are caught by, in this case, what are some of the most serious penalties that are available.”[3]

Parliament are currently in the process of introducing legislation to allow the cultivation of marijuana in Australia for medical and scientific purposes, but until this is finalised, it appears many uninformed individuals may fall for the deceptive advertising of deadly alternatives. As Mr Kavasilas, a spokesperson for The Help End Marijuana Prohibition (HEMP) Party, warns many people will continue to purchase cannabis alternatives to treat medical conditions as long as the government keeps marijuana prohibited.[4]

[1] ABC News, 1 February 2016.

[2] News.com.au, 16 January 2015.

[3] ABC News, 14 March 2016.

[4] News.com.au, 16 January 2015.

DO I NEED LEGAL REPRESENTATION?

Posted by janelle.tarabay on 16 March 2016

We receive many enquiries from people who are unsure whether they need legal representation. It will always depend on the charges and circumstances, but the short answer is no, you do not always need representation, but having an experienced solicitor advocate on your behalf will significantly increase your chances of getting the best outcome for your matter.

Streeton Lawyers have three experienced solicitors, including an accredited specialist, who appear daily in local and district courts throughout Sydney. We only represent clients who have been charged with a range of criminal and traffic matters. As a result, we have a specialised knowledge of criminal and traffic law and we are therefore able to provide our clients with quality advice and outstanding court representation. We are able to help our clients understand the nature of their charge and accurately assess how to achieve the best possible outcome.

There is more information about our lawyers here 

People who appear unrepresented unfortunately do not have this in depth knowledge of the law. If you appear unrepresented, the court officer will be able to assist you with administrative matters, but the court is unable to provide you with any advice on how you should present your matter to the Magistrate or Judge. Similarly, due to their impartiality, magistrates or judges are unable to advise on what you should do to receive the best result. 

If you choose to appear unrepresented, we highly recommend the following:

1. Ensure you understand the charges that are on your Court Attendance Notice 

It is imperative that you understand what you have been charged with, why you have been charged, and what the maximum penalties are. An understanding of these factors will help you to decide whether you wish to plead guilty or not guilty. 

2. Ensure you turn up to court and appear well presented

If you send in the Notice of Pleading and have the matter dealt with in your absence, the magistrate or judge will not have knowledge of the subjective circumstances unique to your case. As a result, it is unlikely you will receive any leniency in your sentence.

Furthermore, when you attend court ensure you are well presented. Court is a very formal environment so you should dress to reflect this formality in order to show the court that you take your matter very seriously. 

3. Prepare, prepare, prepare!

Court can be a very daunting process, particularly for those who have never been before a court before. 

To ensure your nerves do not wipe your memory when it is time to plead your case, we strongly recommend preparing what you wish to say. Take in some dot points of the key issues you wish to raise to ensure nothing is forgotten. 

4. Call Streeton Lawyers for FREE advice.

At Streeton Lawyers, we offer a free initial consultation. Therefore, if you are unsure whether you need representation, or if you need help understanding your charges, we are here to help. Please contact us on (02) 9025 9888 to book an appointment with one of our experienced lawyers. 

 

CASE STUDY: 57 YEAR OLD RECEIVES SECTION 10 FOR MID RANGE DRINK DRIVING

Posted by janelle.tarabay on 14 March 2016

Our client had spent his day watching an Australian Golf Tournament. He consumed 3 beers over lunch, and then some wine at 4.30pm. Soon after he realised he had somewhere to be and, believing he would be under the limit, he decided to drive.

Soon after he was pulled over by police for an RBT. He returned a mid range reading of 0.098. As a result, his licence was suspended on the spot by police.

Mid range PCA carries a maximum fine of $2,200, a maximum term of imprisonment of 9 months and an automatic disqualification period of 12 months.

Our client was concerned about his need for a licence, but he was quite shocked to learn that if convicted of this offence he would have a criminal record, which would be detrimental to his career.

Zoe Whetham, criminal solicitor at Streeton Lawyers, presented our clients case at Waverley Local Court. Ms Whetham tendered material on our clients behalf and made oral submissions, arguing that this was a matter where the court could exercise leniency and not record a conviction.

The Magistrate was convinced and as a result no conviction was recorded on the condition that our client be of good behaviour for a period of 12 months.

This means that our client did not receive a period of disqualification, he does not have to pay a fine and, most importantly, he did not receive a criminal record for this offence.

Can I be breath tested riding my bike?

Posted by janelle.tarabay on 08 March 2016

Have you ever considered riding your bicycle after having a few drinks? Are police able to breath test you?

Firstly, it is probably not a great idea to ride your bicycle after consuming alcohol and you may be committing an offence. When driving a car with a blood alcohol reading of 0.05, the risk of an accident doubles. Intuitively, it is probably higher on a bicycle.

However, the legal position in relation to breath tests is clear. In short, you cannot be randomly breath tested in the same way you can when driving a car.

Not a ‘motor vehicle’

The power to conduct random breath tests is provided for in Schedule 3 of the Road Transport Act 2013.  Section 3 provides that a police officer can require a person to submit to a breath test if they are driving a ‘motor vehicle’. A “motor vehicle” is a vehicle that is “propelled by a motor that forms part of the vehicle”.  Accordingly, a bicycle does not fall under the provisions that allow for random breath testing.  The same applies for random fluid testing for drugs.

After an Accident or Riding Under the Influence

However, there are powers to require blood samples to be taken after an accident involving a motor vehicle or any “vehicle”.  A vehicle includes a bicycle under the legislation.  Therefore if you are involved in an accident and taken to hospital, you may be required to provide a blood sample to be subsequently tested.

Although you cannot be charged with low, mid, or high range drink driving when riding a bicycle (as these only apply to driving a motor vehicle), a person can be charged with using a vehicle under the influence of alcohol or drug when riding a bicycle, section 112 of the Road Transport Act 2013.  This carries a maximum penalty of 9 months imprisonment and disqualification from driving for 12 months.

Riding under the influence doesn’t necessary require a positive blood test. As an extreme example, if police make observations of you riding your bike with a half empty bottle of vodka in one hand, slurred speech and watery eyes, swerving across the road, and then you make admissions to drinking, that is probably enough to make out the charge.

Therefore although there are limits on being breath tested, by riding a bicycle after consuming alcohol you may be committing the offence of riding under the influence, a criminal offence.

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

WHAT HAPPENS WHEN I BREACH A GOOD BEHAVIOUR BOND?

Posted by janelle.tarabay on 29 February 2016

When convicted of an offence, there are a range of sentencing options available to the court. Some of these options involve a “promise” to the court to be of good behaviour, commonly known as a Good Behaviour Bond.

To be of “good behaviour” means you must not commit any further criminal offences during the period of the bond. If you do commit another offence, you will be brought back before the court and dealt with for the breach.

A magistrate or judge may impose further conditions on a bond, such as:

  • A condition to participate in an intervention program
  • A condition that the offender undergo supervision by community corrections
  • A condition that the offender not commit any traffic offences.

If any further conditions are attached to your bond, you may also be in breach of your bond if you do not comply with those conditions.

There are three types of good behaviour bonds and each carry different consequences if breached.

  1. A conditional discharge of an offender under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

If you receive a bond under s 10(1)(b), you have not been formally convicted of the offence, meaning it will not appear on your criminal record. However, this is dependant on you being of good behaviour for the period in which the court imposes, which cannot exceed 2 years.

If, during the period of the bond you commit another offence, you will be brought back before the court and dealt with in relation to the breach. In dealing with your breach the court can either take no action on the bond, or revoke the bond. If the court revokes the bond, there is no option for the court to issue you a further section 10 bond. Instead, you will be convicted of the offence, meaning the offence will now appear on your criminal record.

  1. A good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999.

A section 9 good behaviour bond is imposed instead of a period of imprisonment. If you receive this type of bond you have been formally convicted of the offence.

A section 9 bond can be imposed for any period not exceeding 5 years. If, during this period, you breach the bond you will be required to appear at court. In dealing with the breach, the court can either decided to take no action or revoke the bond. If the bond is revoked, you will be re-sentenced for the offence to which the bond relates. This means the court may issue you a further section 9 bond, or impose any other sentencing option.

  1. A suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999.

A suspended sentence is a term of imprisonment (not more than 2 years) which is suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999. This means that you will not go to gaol for your offence on the condition that you commit no further offences and comply with any attached conditions, during the period in which the court has imposed.

If you breach the bond, the section 12 bond ceases to have effect. The court will then revoke the bond unless the court is satisfied that the breach was of a trivial nature, or there are good reasons for excusing the breach.

If the bond is revoked, the court will impose a custodial sentencing option, that will likely be full time gaol, but may also be served by way of an intensive correction order or home detention.

If you have recently breached a bond, contact one of our criminal lawyers for FREE advice on (02) 9025 9888.

By Zoe Whetham

Case Study: Young Offender with 10 Capsules Avoids Conviction

Posted by janelle.tarabay on 22 February 2016

Last week Zoe Whetham, criminal lawyer at Streeton Lawyers, appeared at the Downing Centre Local Court for a client who had been charged with Possession of a Prohibited Drug, being 10 capsules of MDMA.

We assisted our client in preparing subjective documentation that would be beneficial to his case and Ms Whetham gave oral submissions to the court.

Ultimately, Ms Whetham urged the court to consider dealing with our client without recording a conviction given our client’s prior good character and his genuine remorse. The Magistrate considered the material and submissions and agreed.

Accordingly, our client was able to avoid obtaining a criminal record for this offence despite the large quantity of the drug and its prevalence in society.

Our client was very pleased with this result and left the following review on our testimonials page:

“I can honestly say I’m so happy with the service I received from Streeton Lawyers everything was handled very professionally and any information I requested was given to me in asap thanks for the hard work” – 8 February 2016

 

Justin Wong gives talk at the Law Society

Posted by Justin Wong on 18 February 2016

Principal Lawyer, Justin Wong, last night gave a lecture to fellow lawyers at the Law Society of NSW. The topic was criminal law advocacy and how to effectively present a matter in the Local Court at sentence.

Joined by barrister Lester Fernandez, the talk focused on effective ways to represent clients, and how best to persuade the magistrate or judge on sentence.

The Law Society of NSW is the peak body for all solicitors in NSW. This is the second time Justin Wong has been invited to speak to other lawyers on the topic of criminal law advocacy.

MID RANGE DRINK DRIVER RECEIVES A SECTION 10

Posted by janelle.tarabay on 15 February 2016

Many of our clients are first time drink driving offenders who, prior to being charged, were unaware of how easily you can exceed the legal limit of prescribed concentration of alcohol (PCA).

This was the case for a recent client who had consumed 6 alcoholic beverages on a Friday night, went to sleep and was then breath tested the following morning on her way to work. She returned a positive reading and was charged with Driving with Mid Range PCA.

Our client was devastated with this charge, as she thought she had been cautious and never imagined she would be over the legal limit.

The automatic disqualification period for Driving with Mid Range PCA is 12 months. The offence also carries 9 months imprisonment.

Like most people, our client required her licence and due to the nature of her work a criminal conviction could mean she would be unable to continue working in her field.

Zoe Whetham, criminal solicitor at Streeton Lawyers, appeared on our client’s behalf at the Downing Centre Local Court and urged the Magistrate to deal with this matter without recording a conviction. The Magistrate was ultimately convinced by Ms Whetham’s submissions and decided not to convict our client. Instead, she was placed on a good behaviour bond under section 10.

This meant that our client was able to avoid a criminal record, did not have to pay a fine and has not had her licence disqualified. She was very happy with this result.

 

CASE STUDY: CONVICTION OVERTURNED AND NO TIME OFF THE ROAD

Posted by janelle.tarabay on 08 February 2016

Recently a very distressed client found himself in a mess due to an accumulation of traffic offences. He was caught Driving whilst Unlicenced and was convicted in his absence, fined $3,000 and was disqualified from driving for 3 years.

Being unaware of his conviction, he was then charged with Driving while Disqualified, and therefore faced a further 2 years off the road.

He attempted to overturn the Drive whilst Unlicenced conviction himself in the Local Court, however he was unsuccessful. He then called Streeton Lawyers to seek advice as to his options.

Zoe Whetham, criminal and traffic lawyer at Streeton Lawyers, conferenced and advised our client. A strategy to deal with all matters was developed.

First, an annulment appeal was lodged to the Penrith District Court where Ms Whetham was able to successfully overturn the original decision of the Local Court, meaning that our client was no longer fined $3,000 and disqualified for 3 years. Instead, his matter would go back before the Local Court and he would be re-sentenced.

As a result of the first annulment and through negotiations, Ms Whetham was then able to get our clients Driving while Disqualified charge withdrawn, meaning he was no longer facing a further 2 years off the road.

Following the District Court annulment appeal, our client’s Drive whilst Unlicenced matter was remitted back to the Local Court. There, Ms Whetham tendered material and made oral submissions as to why our client should avoid a conviction, despite the fact that this was his 7th Drive whilst Unlicenced offence.

The Magistrate considered all of the material and submissions and ultimately agreed. Accordingly, our client was placed on a bond under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for a period of 12 months.

Although our client was originally facing 5 years disqualification and a large fine, he was not convicted of either offence and therefore he was able to avoid being disqualified altogether and was not required to pay a fine.

If you have recently committed a traffic offence, contact one of our lawyers for advice on how to achieve the best outcome for your case.

New Supreme Court Bail Procedure

Posted by Justin Wong on 06 February 2016

The Supreme Court has released a new practice note governing Supreme Court bail applications. Practice Note SC CL 11 establishes new case management procedures for bail applications in the Supreme Court. It introduces significant new obligations on accused and their lawyers in the lead up to a bail hearing.

Call-Over

Perhaps most substantially, a new call-over is to be introduced before the Registrar on the Monday the week before the bail application is listed for hearing. The call-over is to confirm whether the bail application is 1) proceeding; 2) being adjourned; or 3) being withdrawn.

Notice of Readiness to Proceed

Also new, legal representatives for the accused must now file a Notice of Readiness to Proceed certifying that the bail application is ready to proceed on the hearing date. This must be filed with the Court before or at the call-over.

If an accused later wishes to adjourn their application after the Notice has been filed, the lawyer who completed the Notice must prepare an affidavit setting out the reasons why the application is no longer ready to proceed. Affidavits also need to be filed even if the accused has changed legal representatives.

Provisions for application for expedition are also provided for.

The “convenience of counsel” will only be taken into account when allocating a hearing date “in exceptional circumstances”.

Practice Note SC CL 11 commences on 7 March 2016.

 

DRUG CONVICTION OVERTURNED IN DISTRICT COURT APPEAL

Posted by janelle.tarabay on 01 February 2016

Our client was charged with Possession of a Prohibited Drug, being 1.6 grams of MDMA. This quantity is above the indictable quantity for this prohibited drug.

When he was sentenced at the Downing Centre Local Court he was convicted of this offence and fined $600.

Due to the nature of our clients work and the fact that he has family in America, he had a substantial need to avoid a conviction and he therefore decided to exercise his right of appeal to the District Court.

Last week Zoe Whetham, criminal solicitor at Streeton Lawyers, presented his case in the District Court.

Documents were tendered on our clients behalf and submissions were made by Ms Whetham, who was ultimately able to convince the Judge that a conviction should not be recorded despite Her Honour’s concerns about the quantity of the drug.

Accordingly, the orders of the Magistrate in the Local Court were quashed and instead our client was placed on a good behaviour bond under section 10(1)(b) of the Crimes (Sentencing Procedure) Act.

This meant our client was able to avoid having a criminal record for this offence. He was extremely relieved with this result.

by Zoe Whetham

FIELD DAY FIRST TIME OFFENDERS BEING CONVICTED OF DRUG OFFENCES

Posted by janelle.tarabay on 27 January 2016

This week individuals charged with drug possession and supply at Field Day Music Festival have had their matters heard at Downing Centre Local Court.

The Sydney Morning Herald reported on many unrepresented individuals who received a criminal record despite being first time offenders on Monday, 25 January 2016 at Downing Centre Local Court. The article reports a definite change in how the court’s deal with first time offenders for this type of offence.

A criminal record could have a detrimental impact on employment opportunities and the ability to travel.

If you have been convicted of a drug offence there is a right of appeal to the District Court. This means your Local Court conviction will be stayed and your matter will be reheard by the District Court, effectively giving you another chance at avoiding a conviction.

Field Day offenders will continue to have their matters heard at the Downing Centre throughout February. If your matter is yet to be heard, we recommend obtaining legal advice on as soon as possible so you can ensure your case is properly presented to the court.

For a FREE initial consultation, please contact one of our lawyers on (02) 9025 9888.

TRUCK DRIVER GETS 10 YEARS DISQUALIFICATION WIPED

Posted by janelle.tarabay on 25 January 2016

Our client had been a truck driver for many years and had accumulated a number of traffic offences on his driving record. As a result of these offences, he received a court ordered disqualification period. On top of this, he received a further 10 years disqualification as a result of being declared a Habitual Traffic Offender. He was therefore unable to drive until 2025.

This was devastating to our client, as truck driving was a passion of his and his only source of income. As a driver’s licence was vital for his role, he unfortunately lost his job as a result of being disqualified. He came to us once he had completed his court ordered disqualification in the hope that he could have his two Habitual Traffic Offender Declarations quashed.

Zoe Whetham, solicitor at Streeton Lawyers presented our clients case at Sutherland Local Court and through oral submissions was able to convince the magistrate to quash both Habitual Traffic Offender Declarations.

As a result, our client was no longer disqualified and was able to reapply for his licence and resume his employment. Our client was extremely happy with this result.

By Zoe Whetham

Losing your licence after one speeding fine: The reality of life on your Red P’s

Posted by janelle.tarabay on 22 January 2016

One of the most common traffic matters heard in the Local Court are when Provisional 1 drivers request that their three month driving suspension incurred due to speeding be quashed.

Most P plate drivers are aware that their amount of demerit points is significantly less than unrestricted drivers. They are also aware that they can’t go above 90km/hour or have more than one passenger after 11:00pm.

However what is less commonly known is that any speeding offence committed on a Provisional 1 licence (red p’s) incurs a minimum three month suspension. This is because any speeding matter will automatically incur 4 demerit points, the limit for a P1 driver. Further, once that suspension is over, drivers must not carry more than one passenger at any time while driving for 12 months.

What should I do next?

1. Pay your speeding fine: there is the option of not paying the fine and instead electing to have the matter heard in court in front of a Magistrate. However, for this to mean avoiding the 4 demerit points, you will need to convince the magistrate to deal with your matter under section 10 (which has a higher threshold than an RMS Appeal).

2.  Receiving your Notice of Suspension: A few weeks after paying your speeding fine, you should receive a Notice of Suspension from the RMS informing you of your 3 month suspension. This Notice will also inform you of your right to appeal.

3.  File your appeal: Within 28 days of receiving your Notice of Suspension you should file your appeal online at Online Registry or at the Local Court. If you lodge an appeal you can continue to drive pending the hearing of the appeal. This usually costs a fee of $89.00.

4.  Attend the hearing: You can either attend the hearing by yourself or speak to a lawyer who is experienced in the area. If the suspension is significant to you, we recommend seeking legal representation. This is a highly technical area and a lawyer will give you the best chance of a positive outcome. The RMS will be represented by a lawyer.

5.  At the hearing you or your lawyer will need to tell the court three things:

  • The circumstances of the offence: this is generally the ‘five W’s’, namely: when did the speeding offence take place; what happened at the time (was it a camera or did a police officer pull you over); where it happened; why it happened (was there any legitimate explanation for your speeding?
  • Your Traffic Record: Having a clean traffic record is a major plus as is establishing your prior good character.
  • Your need for a licence: You must be in a position to support this with evidence. For example, a reference from your employer or a client detailing your need.

6.  Results of the Hearing: Generally, the Local Court makes one of the following orders:

  • Dismisses your appeal (which means you have to serve the full three months);
  • Quash your suspension; or
  • Reduces the period of your suspension.

Both Zoe Whetham and Justin Wong have high success rates in these matters. Zoe as recent as last week successfully appealed a licence suspension in Campbelltown and the client was able to continue to drive.

If you have received a Notice of Suspension as a P plate driver for speeding, or any driver for a traffic offence, you can easily contact one of our lawyers for a FREE consultation and advice on how to best resolve the problem.

Drug arrests at record high as police target users

Posted by janelle.tarabay on 21 January 2016

2015 saw the significant increase in arrests of people using prohibited drugs. This increase was seen in all types of prohibited drugs but, significantly there was a 55% increase of people caught using the drug ice (methylamphetamine).

2015 also saw a significant crackdown of possession of prohibited drugs in social venues, such as bars and clubs, and at Music Festivals.

Considering the increasing number of prohibited drugs found at Music Festivals such as, Stereosonic, Future Music Festival, Defqon and Field Day in 2015, 2016 will involve heightened police presence and detection mechanisms to prevent prohibited drug use and supply.

If you do find yourself caught with a prohibited drug, here is some information on what to expect:

What do I say to police?

Where possible you should always seek legal advice before speaking to the police. Other than co-operate and give your name and details, you do not have to say anything to police. If you have consumed prohibited drugs and are under the influence we strongly advise not to. Further unless you are put under arrest you do not have to go back to the police station to talk with police.

Because you have a right not to answer questions, if in doubt the best policy is to co-operate with police but not to answer any further questions. However, if you decide to explain yourself to police, you should know the following:

  1. You are guilty of the offence of possession simply by having the drug knowingly in your possession, for example on your person or in your bag. It doesn’t matter why you had the drug, you have still committed the offence.
  2. If you ultimately plead guilty, being honest and cooperative from the beginning significantly benefits you at court.
  3. If you possess more than the traffickable quantity of a drug, you may be charged with ‘deemed supply’ which means that because of the quantity, the drugs will be presumed to be for supply unless you can prove otherwise. This charge is more serious and there are harsher consequences. Before talking you should call a lawyer.
  4. If you were in possession of prohibited drugs for both yourself and your friend, or you were holding the drugs for your friend’s use not your own, and this is known by police you can be charged with supply. A supply charge is again more serious and you will face harsher consequences.
  5. If you talk to police, they will either record your words or write them down, everything you say can be used against you in court.

What are the consequences?

If you plead or are found guilty of possession you will be sentenced in the Local Court. It is best to receive legal advice before you enter a plea or are sentenced so the possible outcomes can be explained and you or your lawyer are well prepared to argue to the court for the lowest possible sentence.

For possession there are a broad range of possible sentences, the most significant being a gaol term of up to two years.

All sentences for this charge involve the recording of a conviction, which is significant for any job requiring a criminal history check or if you had plans to travel to the United States.

The only way to avoid a conviction is if the court deals with under what is called section 10. It requires the court to consider, amongst other matters: your character, criminal history, and personal characteristics, the trivial nature of the offence and the extenuating circumstances in which the offence was committed.

Obtaining a section 10 in such circumstances can be difficult, especially considering the increasingly prevalent nature of this offending.

As an example last week one of our lawyers Zoe Whetham successfully obtained a section 10 for a man in corporate employment who was found possessing a small quantity of cocaine. All of our lawyers have had a vast amount of experience and success in this area.

If you have been charged with possession or any other drug offence, you can contact one of our lawyers for a FREE consultation and advice on how to best resolve your matter.

3 MONTH LICENCE SUSPENSION QUASHED

Posted by janelle.tarabay on 18 January 2016

Many people are unaware that when you are issued with a speeding fine for exceeding the speed limit by more than 30kms/hr (but less than 45kms/hr), paying the fine and incurring a loss of demerit points is not the end of the matter. Once the fine is paid, you will automatically receive a Notice of Suspension from the Roads and Maritime Services stating that you will be suspended for a period of 3 months.

The good news is that there is a right of appeal against the suspension period, provided the appeal is lodged with the New South Wales Local Court Registry within 28 days of receiving the Notice of Suspension.

In hearing an appeal against the administrative decision of the Roads and Maritime Services to suspend a person’s licence, the Local Court can make one of the following orders:

  1. Dismiss the appeal; or
  2. Reduce the period of suspension; or
  3. Quash the period of suspension; or
  4. Make any other order that seems just to the Court in the circumstances.

Recently, we were instructed to lodge a licence suspension appeal for a client who had a significant need for a licence.  Zoe Whetham, criminal and traffic law solicitor at Streeton Lawyers, conferenced our client and helped him to obtain subjective material to assist in his appeal.

Last week, Ms Whetham appeared at Campbelltown Local Court on behalf of our client and made submissions and was able to successfully argue that our client’s 3 month suspension should be quashed.

This meant that our client does not have to serve any time off the road and is able to continue to drive. He was very pleased with this result.

If you have received a Notice of Suspension, or have recently received a fine for a traffic offence, contact one of our lawyers for a FREE consultation and advice on how to obtain the best outcome for your case.

By Zoe Whetham

CASE STUDY: LOW RANGE DRINK DRIVING

Posted by janelle.tarabay on 15 January 2016

Streeton Lawyers this week represented a client charged with Low Range Drink Driving, reading 0.064.  He had been pulled over by police after performing an illegal left turn.  At the time his licence was also expired.  He was therefore charged with driving on an expired licence and turning left contrary to a no left turn sign.  Both of these additional offences carry maximum fine of $2,200.

 Although charged with this additional offences, the most concerning for our client was the Low Range PCA charge. This carries an automatic disqualification of six months and a fine of $1,100.  The concern for our client was the stigma attached to a criminal conviction, and the impact this may have on his future employment prospects.

 The matter proceeded to sentence in the Local Court in Sydney.  Our client successfully completed the Traffic Offenders Program, and additional character references were tendered.  Justin Wong made submissions on his behalf and ultimately urged the court not to record a conviction having regard to his previous good character, the Traffic Offenders Program, his remorse and the low reading.  The Magistrate agreed, and dealt with him under Section 10 with a six month good behaviour bond.   

 Because our client was dealt with under Section 10 without conviction, there is no criminal conviction and importantly no fine or disqualification of his licence.  He must be of good behaviour for six months.

 Not surprisingly our client was very happy with the result and being able to maintain his good character. 

By Justin Wong

 

Client Reviews and testimonials

Posted by Justin Wong on 14 January 2016

We are always happy to receive feedback from past clients.

For a full list and to read what our client’s have said about us, visit our our Google page or on our testimonials page on our website.

What is a Guilty Plea

Posted by janelle.tarabay on 13 January 2016

Most people understand that when charged with any criminal offence, you have the option of pleading guilty or not guilty.  But what does pleading guilty really mean?

Admitting the Elements of the Offence

Every criminal offence is made up of ‘elements’.  These are essential ingredients that must be proven beyond a reasonable doubt before an offence is made out.  As an example, for an offence of Sexual Assault, the essential elements or ingredients are:

  1. That the accused had sexual intercourse with the victim;
  2. That sexual intercourse occurred without the consent of the victim; and
  3. The accused knew or was reckless that the victim did not consent.

When you plead guilty to an offence you acknowledge all of the elements of the offence.  It is not possible to plead guilty but maintain to the Court that one of the elements is denied.

To use the same example, you cannot plead guilty to an offence of Sexual Assault, but maintain at sentence that you did not know, or you were not reckless, as to the victim not consenting.  This would be “traversing the plea”.

What about the Statement of Facts?

A plea of guilty does no more than acknowledge the essential elements of the offence.  You have not necessarily admitting all of the allegations made by the prosecution in their Statement of Facts.

To assist the sentencing court, usually a set of Agreed Facts is tendered or given to the judge or magistrate at the sentence hearing. This gives the court further particulars about the offence.  Sometimes various facts are in dispute despite a plea of guilty but generally, when these are tendered at your sentence hearing with your consent, the magistrate or judge will assume that you agree with all of the matters contained in the document.

Discounts for Pleading Guilty

Pleading guilty has various benefits.  Firstly, you will be entitled to a discount on the sentence you would have otherwise received.  This can be as much as 25% if your plea was entered at an early opportunity. What constitutes an “early opportunity” will depend on the nature of the matter. If you are being dealt with in the District or Supreme Court, if you entered a plea of guilty in the Local Court before you were committed, generally you will receive the full discount.

A  plea of guilty can also be taken into account as evidence of your remorse and contrition, or your willingness to facilitate the course of justice.  By pleading guilty you have avoided the cost and expense of a trial or hearing. You may have also stopped witnesses or victims from having to attend court to give evidence and be cross-examined.

A common question from clients is whether they will receive a harsher sentence if they plead not-guilty, and then are found guilty after a trial or hearing.  You will not be punished for pleading not-guilty, however you will not be entitled to the extra leniency that you might have received had you pleaded guilty in the first place.

What should I plead?

Deciding whether to plead guilty or not guilty is perhaps one of the most significant decisions to be made as you proceed through the criminal justice system.  Other considerations such as the strength of the case against you and the likely penalty also play an important role. You should always seek legal advice in relation to your particular matter before a plea is entered.

Although a plea of guilty can be entered at any time following an earlier plea of not guilty, once a plea of guilty is entered, there is no direct entitlement to have that plea of guilty reversed at a later stage.

By Justin Wong

NO CONVICTION FOR 2nd POSSESS DRUG OFFENCE

Posted by janelle.tarabay on 11 January 2016

Our client came to us after being charged with his second possess prohibited drug offence in two years after attending a music festival. For his first offence he was able to avoid a criminal conviction by receiving a section 10 dismissal.

If you sit in any Sydney Local Court on any given day you will hear Magistrate’s tell first time offenders who are given a section 10 that they will not experience the same leniency if they come before the court again. That is, one the next occasion, they will almost certainly be convicted of the offence. This is because one of the main considerations when considering dealing with someone under section 10, is their prior record. Therefore, our client’s prospects of avoiding a conviction for a second time for the same offence were slim.

Zoe Whetham, criminal solicitor at Streeton Lawyers, assisted our client with preparing personal material which was provided to the Magistrate at Burwood Local Court. Through oral submissions, Ms Whetham was able to convince the Magistrate that in this particular case, it was appropriate for our client to avoid a conviction for a second time.

Accordingly, no conviction was recorded on the condition that our client be of good behaviour for a period of 12 months.

Streeton Lawyers are drug offence experts. If you have recently been charged with possession or supply, contact one of our lawyers now for a FREE initial consultation on 9025 9888.

By Zoe Whetham

Recent Possess Drug Case

Posted by janelle.tarabay on 06 January 2016

Our client was attending a music festival in Sydney when he was charged with Possession of a Prohibited Drug, being cocaine.

Possession of a Prohibited Drug is a criminal offence and carries a maximum penalty of 2 years imprisonment.

He came to us very anxious about this charge, as a criminal conviction could have a detrimental impact upon his future given his plans to work in America.

Zoe Whetham, solicitor at Streeton Lawyers, conferenced our client and developed a clear approach as to how we would prepare for his case. Among other things, this included a focus on rehabilitation.

The matter was heard at Downing Centre Local Court this week. The Magistrate considered all of the material put before the court and noted that she placed particular weight on the positive steps our client had taken to rehabilitate. Accordingly, she decided not to record a conviction, instead placing our client on a section 10 bond to be of good behaviour for a period of 18 months.

As a result, our client was able to avoid obtaining a criminal record for this offence.

If you have been charged with Possession of a Prohibited Drug and would like advice on how to obtain the best outcome for your case, please call us on 9025 9888 to arrange a FREE initial consultation.

Mental Illness and the Criminal Justice System

Posted by janelle.tarabay on 05 January 2016

In New South Wales the Mental Health (Forensic Provisions) Act 1990 (‘the Act’) provides a diversionary provision for defendant’s who are found to be suffering from a mental illness or condition. In the Local Court, a provision commonly referred to as a “section 32 application”, as it is governed by section 32 of the Act.

Essentially, section 32 diverts defendants who suffer from mental conditions away from the sentencing options of the criminal justice system. Instead, they are dealt with in an appropriate treatment and rehabilitative context that is enforced by the court.

Who is eligible?

To be dealt with under this provision the court must be satisfied of the following:

  1. The defendant is either developmentally disabled, suffering from a mental illness, or suffering from a mental condition for which treatment is available in a mental health facility; and
  2. The defendant is not a mentally ill person; and
  3. There is a causal link between the mental illness/condition and the alleged offence; and
  4. It is more appropriate to deal with the defendant in accordance with section 32 than in accordance with law.

What is the effect of being dealt with under section 32?

If you are dealt with under section 32, the charges against you will be dismissed either conditionally or unconditionally. You will not receive a criminal record and importantly, in contrast with a section 10 dismissal, there is no finding of guilt.

If you are dismissed conditionally it is likely you will be discharged into the care of a responsible person, such as a psychiatrist or psychologist. You will then be required to comply with any treatment recommended by this person. If you fail to comply with the treatment plan within 6 months of your discharge, you may be called back to court and dealt with in accordance with law.

Despite the prevalence of mental health in society, according the Bureau of Crime Statistics and Research only 2% of charges finalised in New South Wales Local Courts are dealt with in this manner.*

If you believe a section 32 may be appropriate in your matter, please contact us on 9025 9888 for advice and a FREE initial consultation.

*2014 statistic, see NSW Criminal Courts Statistics 2014.

by Zoe Whetham

CONVICTION AVOIDED FOR P2 DRINK DRIVER

Posted by janelle.tarabay on 09 December 2015

Charged with Low Range PCA, our client was a  P2 licence holder. Accordingly, her legal limit was zero. Our client’s blood alcohol reading of 0.058 meant that the seriousness of her offence was similar to someone on their full licence being charged with Mid Range PCA.

When the matter first came before the court, Zoe Whetham, criminal solicitor at Streeton Lawyers, adjourned the matter so that our client could complete the Traffic Offenders Program. During this adjournment period Zoe Whetham worked closely with our client to prepare subjective material for sentence, including character references and a letter of contrition to the court.

Zoe appeared on sentence. Subjective material was tendered and she made oral submissions on our client’s remorse, her prior good character as well as her need for a licence.

The Magistrate considered all of these factors and found that a conviction should not be recorded, placing her on a section 10 bond to be of good behaviour for a period of 12 months.

This outcome meant that our client was able to avoid the automatic disqualification period of 6 months that is imposed upon conviction, as well as avoiding a maximum fine of $1,100.

DRUGS & MUSIC FESTIVALS

Posted by janelle.tarabay on 08 December 2015

As the weather warms up and Music Festivals are being held nationwide the courts see an influx in drug related charges.

If you sit in a Sydney Local Court on any given day it will become clear that the typical offender who comes before the court on drug related charges is someone who has no prior criminal record and who is in possession of a small quantity of a prohibited drug. Many of these offenders are aiming to avoid a conviction, which is known as a “Section 10.” However, it is a common misconception that this outcome is easily achieved.

What many offenders do not realise is that general deterrence weighs very heavily in these matters. Essentially, this means that when you are sentenced the magistrate is not only considering what sentence is needed to deter you from reoffending, they will also consider what sentence will deter the public from committing a similar offence.

Recent developments, including the increased number of people charged with drug offences, has had the effect of courts placing more importance on general deterrence, or deterring others when sentencing. Therefore, it is absolutely imperative that you present a well prepared case to the court in order to achieve the best outcome.

Streeton Lawyers are drug offence experts, having represented hundreds of people charged with possession and supply. For advice about your matter, including how to improve the likelihood of avoiding a criminal conviction, contact one of our lawyers for a FREE initial consultation.

PLAIN ENGLISH ADVOs

Posted by janelle.tarabay on 07 December 2015

The NSW Government has announced changes to Apprehended Domestic Violence Orders.  The changes, also called “plain English ADVO’s”, will apparently make the obligations and restrictions imposed on a defendant clearer, written in simple language.

It is unclear whether the changes are a result of evidence suggesting that offenders have failed to comply with ADVO’s because of a lack of understanding. Also, whether the definitions in the Crimes (Domestic Violence) Act 2007, such as the meaning of ‘domestic relationship’ will be changed or simplified.

The changes will apparently take effect gradually in 2016. The NSW Media Release can be viewed here

 

 

Importer of ice-cream avoids jail

Posted by Justin Wong on 12 October 2015

As summer approaches in Australia, ice-cream consumption sky-rockets.  However few would be aware that the importation of ice-creams from certain countries with more than 10% dairy product is a serious criminal offence.

Our client was charged with importing various ice-cream bars from Korea in 2011 following the outbreak of foot and mouth disease globally.  Prior, the importation of ice bars with more than 10% dairy was allowed provided the importer had a permit.  In 2010, following the disease outbreak globally, the restrictions were changed to totally prohibit the importation of those ice-creams.

Restricted ice-creams were imported into Australia over four separate occasions in 2011, with the ice-creams ultimately intercepted by the Australian Quarantine Service.

After a lengthy unexplained delay by the investigating authorities, our client was charged four years later with importing a prohibited item contrary to Section 67 of the Quarantine Act 1908.  The maximum penalty for this offence is 10 years imprisonment.

The matter ultimately proceeded to sentence in the District Court.  Various documentary evidence was tendered on behalf of our client, including material indicating that although the ice-cream bars were manufactured and imported from Korea, the milk originally used to manufacture those bars originated from Australia, New Zealand and the Netherlands. These three countries were all declared foot and mouth disease free zones.

The sentence court took into account this fact, in addition to our clients co-operation, prior good character, and the significant delay in prosecuting this matter.  Ultimately he received a suspended jail sentence and a fine.

20 year old has conviction overturned and avoids disqualification for Driving while Suspended

Posted by janelle.tarabay on 25 September 2015

Our client was unaware of his Drive Whilst Suspended court date. He was convicted in his absence by the court, fined $500 and given a disqualification period of 12 months.

Solicitor at Streeton Lawyers Zoe Whetham lodged an annulment application against these orders, which was successful. Accordingly, the matter was relisted for sentence this week.

On his behalf, Zoe made a submission that no conviction should be recorded given our clients prior good character, his need for a licence, his completion of the Traffic Offenders Program as well as the evidence that he had since complied with his suspension period.

The Magistrate considered all of the material and submissions and ultimately agreed. Our client was released without conviction on the condition that he agree to be of good behaviour.

Because there was no conviction imposed, there was no fine and our client was able to avoid the automatic 12 month disqualification period that is imposed upon conviction for this offence. He was also able to avoid the stigma of a criminal record.

26 year old avoids conviction for alcohol fuelled assault charge

Posted by janelle.tarabay on

Our client was charged with common assault. This charge was out of character and our client was extremely anxious about having a criminal conviction recorded against him.

When the matter first came before the court, it was adjourned so that our client could attend counselling sessions.

When the matter proceeded to sentence, Zoe Whetham, criminal solicitor at Streeton Lawyers, urged the court to deal with the matter without recording a conviction. These submissions included his prior good character, his remorse, as well as the steps he had taken to address his behaviour.

The Magistrate was persuaded by our submissions and consequently no conviction was recorded on the condition that our client agree to be of good behaviour.

Our client was extremely relieved with this outcome as it meant he was able to avoid a criminal record.

CASE STUDY: Failure to Lodge Tax Returns – Avoids Conviction

Posted by janelle.tarabay on 12 August 2015

Our client was charged with four offences of failing to lodge his personal income taxes between 2011-2014.

The Australian Tax Office prosecuted our client under Section 8C(1)(a) of the Taxation Administration Act 1953.  As this was our clients first offence, the maximum penalty on each was a fine of $3,400, with a total maximum fine possible of $18,400.

When the matter first came before the court, it was adjourned so our client could lodge all of the outstanding returns.  Those returns were successfully lodged prior to the final sentence date.

On his behalf, Streeton Lawyers made a submission that in all of the circumstances no conviction should be recorded. These included our clients prior good character, the fact that he has lodged all tax returns, the difficult personal circumstances he had experienced during the period of the offences, and the fact that he had previously complied with all of his tax obligations. 

The Magistrate considered all of the material and submissions and ultimately agreed.  Our client was released without conviction on the condition that he agree to be of good behaviour.

Because there was no conviction there was no fine imposed.  Our client avoided the stigma of a criminal record.

For more information of offences relating to a failure to lodge tax returns, see our tax page.

 

Mandatory Interlock Laws in NSW

Posted by janelle.tarabay on 15 July 2015

Interlock program

The Interlock Program was first introduced in 2003 as a penalty option for Magistrates when sentencing persons charged with serious drink driving offences. However, new laws passed in February 2015 have made the Interlock Program mandatory under certain circumstances.

 What is the interlock program

The Alcohol Interlock Program allows drivers convicted of certain PCA offences to start driving earlier than they otherwise would be able to, on condition they only drive a vehicle with an Interlock device installed.

The device is wired to the ignition of a car to prevent the car from being started unless the driver passes a breath test.  To pass the breath test, the driver must return a reading of zero blood alcohol concentration.

To reduce the potential for bystanders to start the car, the interlock device is programmed to require retests to be taken at random intervals. Should a driver fail a retest the interlock device is programmed to sound an alarm of horn and lights until the ignition is turned off.  A breath test is then required to restart the car.

The obvious advantage of this program is that it allows a person to continue to drive their car legally. For many this will mean the ability to maintain their employment, studies and other commitments. Another advantage  is that it assists in rehabilitating repeat offenders by ensuring a person cannot drink and drive. However, the program does come at a cost, which includes both installation costs and monthly calibration fees.

Offences to which the mandatory Interlock Program applies

The effect of the new legislation is that the court will automatically impose a period of interlock in the following circumstances:

  1. When a person commits two or more of the following offences within 5 years
    • Novice range
    • Special range
    • Low range
    • Mid range
    • High range
    • DUI
    • Refuse breath analysis
    • Refuse blood sample if physically unable to submit to a breath analysis
  2. When a person is a first time offender of high range drink driving
  3. When a person is a first time offender of refusal or failure to submit to a breath analysis, or the taking of a blood sample when the person is physically unable to submit to a breath analysis

 Structure of an interlock order

When being sentenced for one of the above matters, the court will order a licence disqualification period, and a minimum participation in the interlock program. The disqualification and interlock program periods for specific offences are outlined in the table below.

Mandatory Interlock Offence Min. Disqualification period Max. Disqualification period Min. Interlock Period
Second or subsequent offence: Novice Range Special Range Low Range 1 month 3 months 12 months
Second or subsequent offence:Mid Range 6 months 9 months 24 months
First offence:High Range 6 months 9 months 24 months
Second or subsequent offence: High Range 9 months 12 months 48 months
Second or subsequent offence: Driving under the influence of alcohol or a drug 6 months 9 months 24 months
First offence: Refuse or fail to comply with directions for a breath analysis or blood test 6 months 9 months 24 months
Second or subsequent offence: Refuse or fail to comply with directions for a breath analysis or blood test 9 months 12 months 48 months

When the court has imposed an interlock period, it will commence once you have complete the disqualification period. You will be required to have an interlock device installed by an accredited interlock service provider. Regular check up’s on the device will also be required during the interlock period.  The costs of this procedure must be paid by the participant and can be quite expensive. However, concession rates are available.

Once the interlock is installed, you will not be able to drive your car before passing a breath test. Anyone else driving your car will also be required to submit to this test, and you may only drive another car if it has an interlock device installed. Penalties apply if these requirements are breached.

 Consequences of not participating in the program

A person who receives an Interlock Program order from the court but does not enter into the Interlock Program will instead be disqualified from driving for a period of five years.

Exceptions

The court may grant exemptions to the Interlock Program, but only in exceptional circumstances.

By Zoe Whetham

New Article on Bail

Posted by Justin Wong on 15 June 2015

Criminal Lawyer Zoe Whetham has written an updated and succinct summary of the current bail laws in NSW, which have undergone significant change in the past 2 years. To view, visit our Bail Page.

The impact of getting a “Section 10”

Posted by Justin Wong on 28 May 2015

When deciding whether or not to plead guilty, clients are often gripped by fear — how will pleading guilty affect my job or my future work prospects? In this series, Streeton Lawyers will tackle your nagging questions and those prevailing myths.

PART 1: The impact of getting a “Section 10”

MYTH: A “Section 10” means I walk out free.

FACT: There are different types of “section 10” orders.

While the term “Section 10” has become synonymous with “a slap on the wrist” in some circles, it is not so simple. A section 10 still involves a finding of guilt, even though no conviction is recorded. Depending on the type of Section 10 imposed, there may be conditions you must follow.

The types of section 10’s under the Crimes (Sentencing Procedure) Act 1999 include:

  1.    Dismissal of the charge – s 10(1)(a)
  2.    Conditional dismissal with good behaviour bond – s 10(1)(b)
  3.    Conditional dismissal with intervention program – s 10(1)(c)

For example, if you receive a conditional dismissal with good behaviour bond, a breach of any condition will land you back in court. The bond will be revoked and a difference sentence will be imposed.

MYTH: A “Section 10” will not appear on my criminal history.

FACT: A “Section 10” does not form your criminal or conviction record but will appear on your criminal or police history.

While it seems to be just lawyers picking bones with their jargon, there is actually a difference between a ‘criminal record’ and ‘criminal history’.

The first, a criminal record, contains a list of convictions against you. It gets a little more complicated because the word “conviction” means two things:

  1. You have been found guilty of an offence, either by the court or because you pleaded and you are still serving a good behaviour bond; or
  2. The court recorded a conviction as an entry on your criminal record.

According to the Criminal Records Act 1991 (NSW), a conditional discharge such as a section 10 with good behaviour bond (s 10(1)(b)) is taken to be a conviction. For example, for the duration of the good behaviour bond, it will appear on your criminal record, but not after the period elapses.

The second, criminal history, is more expansive because it encompasses your criminal record alongside other details of all your court matters regardless of whether a recorded conviction resulted. A section 10 will therefore be on your criminal history.

Stay tuned for the next instalment: What do I say when employers ask me about my convictions?

By Alicia Qian

Will my licence disqualification be backdated?

Posted by Justin Wong on 11 February 2015

If you have been charged with Mid Range or High Range Drink Driving, you were almost certainly suspended from driving by the police at the time you were charged.

One of the most common questions is whether any subsequent court disqualification will be backdated to the date police suspend your licence.

The short answer, generally, is yes. However the process is slightly complicated.

Disqualifications by a Magistrate

When you are convicted by a magistrate and you lose your licence, you are disqualified from driving or holding a licence. The disqualification attaches to you as a person, rather than your licence. When you are disqualified, your licences are cancelled.

Suspension by Police

A suspension on the other hand attaches to your licence only. It does not cancel your licence and can be lifted by a court, or after a period of time expires.

When does a Disqualification Commence?

Technically, a Magistrate disqualifying you for drink driving must commence the disqualification on the date of conviction. For example, a six month disqualification for Mid Range PCA must commence on the date of your Local Court sentence. The Court has no power to back date the disqualification start date

However, the court can order that the period of police suspension already served be taken into account as partial satisfaction of a total disqualification period. The practical effect of this is that the disqualification period is reduced by the period of the police suspension already served.

This means practically, the disqualification is backdated

Will a magistrate always order that the suspension period be taken into account?

Not always, and there is no requirement for the magistrate or judge to order that the police suspension be taken into account. However, in our experience the period of suspension will normally be taken into account as partial satisfaction of the Court imposed disqualification.

The magistrate must explicitly order this, so if no order is made that the suspension period be taken into account, then the period of disqualification imposed will be the full period with no reduction for the Police suspension.

22 year old avoids conviction for drug possession

Posted by Justin Wong on 09 February 2015

Our client was found in possession of 3 MDMA capsules at a Music Festival in Sydney.

The 22 year old had attended the Field Day Event on 1 January 2015 in Sydney. A Police drug detection dog indicated that she was in possession of drugs, and ultimately she was found in possession of 3 MDMA capsules.

Our client had never been in trouble before and enjoyed a successful career as a legal secretary. Before her matter was heard in Court, our client attended a number of education sessions on the impact drug use can have on the community.

Possess Prohibited Drug is a criminal offence and carries a maximum penalty of 2 years imprisonment.

The matter was hear last week in Sydney. The Magistrate took into account all of her prior good these factors, and ultimately decided to not record a conviction, placing her on a section 10 bond to be of good behaviour for a period of 12 months.

This means that provided she does not commit any further criminal offences within the next 12 months, no further action will be taken. She does not have a criminal conviction recorded, and in most circumstances will not be required to disclose the outcome.

What makes some people violent when drunk

Posted by Justin Wong on 25 January 2015

The ABC has published an interesting article attempting to explain why alcohol tends to make some people act in a violent way, and others not.

Individual personality, variations in brain function and age all contribute. Interestingly, expectations of what behaviour we expect is normal when drunk, established at a young age, also has an affect.

The impact on victims and offenders of alcohol related violence is substantial. At law, alcohol is generally not considered a mitigating factor at sentence. In other words, if someone was drunk when they committed an offence, that fact that does not generally reduce the objective criminality or moral culpability. However, it can explain why an offence occurred and for an offender who is then addressing any alcohol related issues present, that rehabilitation can be a significant factor on sentence. It can reduce the chance of the re-offending, and may mean less weight needs to be given to specific deterrance and the protection of the community.

For the full article click here or visit http://www.abc.net.au/health/thepulse/stories/2014/01/30/3934877.htm

Admissions made for ICO Assessment ruled inadmissible on appeal

Posted by Justin Wong on 09 January 2015

Admissions made to a Community Corrections officer during an ICO assessment, and after conviction in the Local Court, have been ruled inadmissible as fresh evidence on appeal to the District Court.

The Court of Criminal Appeal held that the post conviction admissions “would not be capable of satisfying the interests of justice test, required to grant leave to adduce evidence in the District Court on appeal”.

Mr Landsman had been convicted of two counts of assault occasioning actual bodily harm in the Local Court. At issue was identification. Following conviction, the Magistrate ordered an ICO assessment before finalising his sentence. During that assessment Mr Landsman made admissions to the Community Corrections Officer relevant to identification.

Mr Landsman appealed his Local Court conviction to the District Court. In the District Court the Crown sought leave to lead the fresh evidence of the post conviction admissions.

Justice Blanch, then the Chief Judge of the District Court, admitted the evidence in the District Court, determining that it was in the interest of justice for that fresh evidence to be adduced on the appeal. However, he then submitted a stated case to the Court of Criminal Appeal.

In the CCA, Beazley P held that the post conviction admissions would not be capable of satisfying the interest of justice test. In the District Court, fresh evidence can be adduced only if it is in the interest of justice for that evidence to be adduced.

The CCA took into account a number of factors including the circumstances in which those admissions were made, and the “significant pressure” on Mr Landsman to provide the information. Additionally, no warning was given to Mr Landsman that the information could be used against him.

The full decision can be found here: Landsman v R [2014] NSWCCA 328

Sydney’s Accredited One Day Traffic Offenders Program

Posted by Justin Wong on 26 December 2014

Sydney has a fully accredited one day Traffic Offenders Program run by Road Sense.

The Traffic Offender Program is a program usually undertaken by people soon to be sentenced for major traffic offences such as drink driving, drive whilst suspended or disqualified, or major speeding offences.

The Drink Driving Guideline Judgment refers to the completion of the Traffic Offenders Program as a factor taken into account when an offender is sentenced.

The program is provided for under Part 4 of the Criminal Procedure Act 1986 and Part 8 of the Criminal Procedure Regulation 2010.

When offenders complete the program, approved traffic course providers must send a report to the Local Court magistrate to be taken into account when they are sentenced.

Under the Regulations only approved course providers can participate in the legislative program.

Historically in Sydney only courses run by the PCYC have been approved courses. However in late 2014, Road Sense received approval and is now an approved course provider, offering an intenstive one day option.

For more details, see visit Road Sense.

Habitual Traffic Offender Declaration Quashed

Posted by Justin Wong on 08 December 2014

Streeton Lawyers client last week had his Habitual Traffic Offender Declaration quashed. Our client had been ordered by the RMS to serve an additional five years disqualification following 3 offences of Drive Whilst Suspended and Disqualified in 2012 and 2013.

Material presented to the Court established that our client had changed his attitude to the offences, and also was experiencing ongoing hardship as a result of the disqualifications imposed. He had also completed 200 hours of community service.

It was submitted that our client had been adequately punished already for the 3 offences, and any further period of disqualification would be unjust and disproportionate having regard to his total driving record and his special circumstances.

The Magistrate agreed, and accordingly the additional five years disqualification was quashed.

After being without a licence for some time, our client can now reapply for his full drivers licence.

For more information on Habitual Traffic Offender Declarations.

Speeding Driver Avoids Conviction and Disqualification

Posted by Justin Wong on 28 November 2014

Our client was yesterday sentenced in a Local Court in Sydney after pleading guilty to Speeding in Excess of 30km/h over the limit. He had been detected travelling at 96km/h in a 60km/h zone whilst overtaking.

Streeton Lawyers presented evidence to the Magistrate confirming our client’s significant need for a licence. The need was due to employment requirements as an IT professional, but also due to a sick family member. Our client had an excellent traffic record.

The offence of Driving in Excess of 30km/h over the limit carries an automatic disqualification on conviction of three months. The only way to avoid the three month disqualifications is to have the matter dealt with without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999.

Yesterday, the Magistrate agreed with our submission that no conviction should be recorded having regard to his driving record and also his need for a licence. As a result, no conviction was recorded and no disqualification or penalty imposed.

Because there was no conviction, in addition to there being no disqualification and no penalty, there was also no demerit points attached to the speeding. Our client was relieved that his employment is no longer in jeopardy and that he can continue to assist his family members.

Charge dismissed against Truck Company

Posted by Justin Wong on 12 November 2014

Streeton Lawyers has won an important victory which it is hoped will give truck and transport operators registered under the Federal Interstate Registration Scheme some certainty when operating in NSW.

Our client was the Director of a truck company in Sydney. His trucks were involved in the haulage of goods between New South Wales and Queensland, as well as between New South Wales and Victoria. Although the goods were destined for interstate, our client’s trucks would only take the goods from Sydney to Macksville in New South Wales, at which time the goods would be transferred to another freight company for transport to Queensland.

The Federal Interstate Registration Scheme (FIRS) is a Commonwealth Scheme available to operators of heavy vehicles where their vehicles are involved in the carriage of goods or passengers between Australian jurisdictions. For example, taking goods between New South Wales and Queensland. Importantly registration under the Commonwealth FIRS provides an alternative to state base registration, however the vehicles must be engaged solely in the interstate operations.

Although our client had vehicles registered under the FIRS, New South Wales Police took the view that because the journeys involved only intrastate legs of the larger interstate journey, they were not covered by the FIRS Registration. Our client was therefore charged with Permitting the Use of an Unregistered Motor Vehicle under section 84(3) of the Road Transport (Vehicle Registration) Regulation 2007 (NSW).

The matters proceeded to hearing at Blacktown Local Court. It was argued that although the journeys between Sydney and Macksville were intrastate components of the larger interstate journey, because our client was carrying goods ultimately destined for Queensland, his vehicles were “engaged in the carriage of goods between New South Wales and Queensland”. The Local Court Magistrate agreed that these intrastate legs were covered by the Interstate Road Transport Act 1985 (Cth) and the FIRS and dismissed the charge.

The decision is important because it deals with the intersection between State and Federal legislation. Although correct on a legal and technical view, the decision also accords with a common sense interpretation of the relevant schemes. If the Court had held that the FIRS legislation only covered those vehicles travelling directly from one state to another (with no intrastate legs), in a country as vast as Australia this would mean that only a small number of interstate journeys would be covered.

Not surprising, our client was extremely pleased with the result and can now continue operations under his current Federal Interstate Registration Scheme registrations.

For media comment, contact Justin Wong in Sydney on (02) 9025 9888

Recent CCA Decision on Money Laundering

Posted by Justin Wong on 11 November 2014

The NSW Court of Criminal Appeal has this week decided a Crown Appeal against sentence.

The offender had been sentenced in the District Court to imprisonment for 16 months, with a non-parole period of 10 months. Her offences included dealing in money in excess of $100,000, intending it to become an instrument of crime, Section 4004.4(1) Criminal Code 1995 (Cth). The total amount of money involved was $324,508. This offence carries a maximum penalty of 20 years imprisonment.

The Crown appealed the District Court sentence to the CCA complaining that the sentence was manifestly inadequate.

Significantly, although the CCA increased her sentence, the period in custody was only increased by 5 months. The CCA took into account the evidence in the District Court and the offender’s compelling subjective circumstances.

Of note Fullerton J, although agreeing with Bellew J that the District Court sentence was erroneously lenient, was of the view that the Crown Appeal should dismissed and the CCA should exercise its residual discretion. However Leeming JA agreed with Bellew J and ultimately the sentence was increased to 15 months.

Given the maximum penalty of 20 years imprisonment and the ultimate re-sentence in the CCA of 15 months imprisonment, the decision is a significant one.

The full decision can be accessed here: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=175273

 

Low Range Drink Driver avoids Conviction

Posted by janelle.tarabay on 17 October 2014

Our client this week avoided a criminal record in a Local Court in Sydney. Charged with driving with Low Range PCA and Exceeding the Speed by More than 30km per hour, he pleaded guilty and completed the Traffic Offender’s Program.

Being employed in the banking and finance industry, our client was concerned about the impact a criminal conviction may have on his employment prospects.

When the matter proceeded for sentence, Streeton Lawyers argued that the impact a conviction may have was such that the court could deal with the drink driving matter without conviction, and convict him for the speeding matter. Because this would still result in some disqualification, but no criminal conviction, his employment would not be effected.

The Magistrate considered all of the material and submissions, and ultimately agreed. Our client avoided a criminal conviction under Section 10 and was fined for the speeding matter.

It is not uncommon that individuals working in the banking or finance industry are required to submit to background checks when applying for new positions. Although convictions for drink driving and other offences may not automatically bar them from employment, clients are often concerned that convictions may make them less competitive. Today’s result means that our client was able to maintain his prior good character.

Justin Wong speaks to the Law Society about Specialist Accreditation

Posted by janelle.tarabay on 16 September 2014

Partner at Streeton Lawyers Justin Wong was this month interviewed by the Law Society on Specialist Accreditation and his career generally.

 

Specialist Accreditation in Criminal Law is awarded by the Law Society of NSW to practitioners who have been practising in Criminal Law for at least 5 years, and who pass a set of rigorous assessments. There are only approximately 200 Accredited Specialists in Criminal Law in all of NSW

 

The full interview is here.

CASE STUDY: NO CONVICTION RECORDED FOR ASSAULT CHARGE

Posted by jamie.mclachlan on 13 September 2014

A Sydney magistrate has decided to not record a conviction against our client for assault, due to his prior good character.

Our client, a professional man in his forties, had entered a plea of guilty to assaulting his partner in the family home. He then undertook counselling before the matter returned to court for sentence. Partner Jamie McLachlan submitted to the court that due to our client’s prior good character, lack of a criminal record, the circumstances of the offence, as well as the substantial efforts he had made at rehabilitation, that a conviction should not be recorded.

The magistrate was persuaded, and consequently no conviction was recorded, with our client being placed on a bond to be of good behaviour pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. Our client was very pleased with the outcome.

A criminal conviction can have devastating consequences for a person, particularly with regards to employment and travel. It was very satisfying for Mr McLachlan to have assisted our client to avoid one.

CASE STUDY: MAGISTRATE DISMISSES ASSAULT CHARGE AGAINST SYDNEY MAN

Posted by jamie.mclachlan on 12 September 2014

A Sydney magistrate has dismissed a charge of assault against our client on the grounds that he was suffering from a mental illness.

Our client, a young Sydney man, had been accused of assaulting his then girlfriend earlier this year. Our client did not agree with the allegations that had been made against him. Jamie McLachlan of our firm referred our client for a psychiatric assessment, with it ultimately discovered that he was suffering from a mental illness. Our client then immediately, and enthusiastically, accepted treatment for his condition.

As a consequence of the diagnosis, and his adherence to the treatment plan, Mr McLachlan argued in court that the charge be dismissed pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990. After considering the matter the magistrate noted that our client had not pleaded guilty to the offence and that he had been fully compliant with his treatment plan. The magistrate then proceeded to dismiss the charge pursuant to section 32 of the Act. Our client was obviously very relieved with the outcome.

Our client was of outstanding good character and it was very rewarding for Mr McLachlan to have been able to represent him in this matter.

CASE STUDY: Speeding suspension quashed for Sydney Doctor

Posted by janelle.tarabay on 05 September 2014

Our client was a Sydney Doctor, detected speeding in excess of 30km/h over the limit. As a result, she received an automatic 3 month suspension from the RMS.

We appealed the RMS decision to suspend her licence relying on her excellent traffic record and genuine need for a licence.

The matter was heard before a Magistrate in the Local Court in Sydney. At the hearing, the Magistrate agreed and that her record and need for a licence were factors in favour of the suspension being quashed. Accordingly, the Magistrate upheld the appeal and the full 3 month suspension was quashed. This means that there was no period of suspension.

It is very common that people are unaware that speeding in excess of 30km/h and 45km/h over the limit result in automatic suspensions of 3 month and 6 months respectively. This applies even if it is a first offence or for someone with a very food traffic record.

Because of the automatic nature of the suspension, most drivers have a right of appeal against the RMS decision to suspend their licence in the Local Court.

By Justin Wong

CASE STUDY: Jail sentence avoided for drink driving on appeal

Posted by janelle.tarabay on 01 September 2014

Principal Lawyer, Justin Wong appeared in the District Court for our client who had been sentenced in the Local Court to jail for 9 months for High Range Drink Driving. On his behalf, we successfully appealed that sentence to the District Court, and he ultimately received a Community Service Order.

This was our clients fourth drink driving offence, and the second within three months. In the Local Court, the Magistrate was of the view that full-time imprisonment was the only appropriate sentence.

Like all people sentenced in the Local Court of NSW, our client had a right of appeal against the severity of that sentence to the District Court. He approached us after being sentenced in the Local Court, and we lodged the appeal on his behalf.

When the matter was heard in the District Court, the Judge took into account the substantial steps he had taken to rehabilitate and address his alcohol issues since the Local Court offence, the seriousness of the offence, his supporting family, and genuine remorse. Having considered all of those factors, the sentencing Judge was of the view that a more appropriate sentence was community service rather than full-time jail.

Not surprisingly, our client was extremely relieved.

An appeal against the severity of sentence in the District Court is a re-hearing. This means that a Judge in the District Court hears the matter afresh, and makes their own determination about the appropriate sentence. New evidence not relied on in the Local Court can be tendered.

Appeals to the District Court have strict time limits, and generally an appeal must be lodged within 28 days of the Local Court sentence.

By Justin Wong

Corporate Partnership with the Bulldogs

Posted by janelle.tarabay on 29 August 2014

This year for the first time saw Streeton Lawyers partner with and support the Canterbury Bankstown Bulldogs.

 

The Bulldogs are one of the NRL’s oldest clubs, entering the competition in 1935. The Club estimates there are around 400,000 supporters worldwide.

 

Streeton Lawyers were pleased to be partnered with the Canterbury Club, and look forward to the 2014 NRL final series.

Streeton Lawyers’ Justin Wong with Canterbury Legend Terry Lamb

Bulldogs

CASE STUDY: Section 10 for Mid-Range Drink Driver

Posted by janelle.tarabay on

Our client was detected driving whilst under the influence of a Mid-Range PCA, reading of 0.095.

Being a taxi driver he was extremely concerned for the loss of his employment income.

After completing the Traffic Offenders Program, we appeared for our client in the Local Court. Notwithstanding the Mid-Range reading, the Magistrate ultimately determined not to record a conviction under Section 10 of the Crimes (Sentencing Procedure) Act 1999. Because there was no conviction, importantly for our client there was no disqualification of his licence.

The Magistrate took into account his genuine remorse, need for a licence, and completion of the Traffic Offenders Program.

The result meant that our client was able to drive almost immediately after obtaining his licence following the Court appearance.

Mid-Range Drink Driving carries an automatic disqualification of 12 months, with a minimum of 6 months upon conviction. The only way to avoid the minimum 6 month disqualification is if the Court deals with the matter without conviction under Section 10 of the Crimes (Sentencing Procedure) Act 1999.

By Justin Wong

CASE STUDY: Business owner avoids speeding suspension

Posted by janelle.tarabay on 28 August 2014

Our client was the owner of a building and construction business in Sydney’s South. He was detected speeding over 30km/h and ultimately received a three month suspension from the RMS.

On his behalf we appealed the three month suspension to the Local Court. Our clients record showed that he had never had any major speeding offences in over 30 years of driving, he had a significant need to keep his licence to run his business, and had exceptional character references.

The Magistrate considered all of the relevant factors and ultimately upheld the appeal and quashed the suspension. This means that our client was able to continue to drive and there is no suspension of his licence.

Speeding over 30km/h and 45km/h carry automatic periods of suspension from the RMS.

By Justin Wong

CASE STUDY: 45 year old first offender avoids disqualification

Posted by Justin Wong on 04 August 2014

Our client was sentenced on Friday in a Local Court in Sydney, charged with Mid Range Drink Driving with a reading of 0.096.

He had been detected driving under the influence of alcohol after driving to a Sydney hospital believing that his wife was about to give birth.

Following a plea of guilty in the Local Court, our client completed the Traffic Offenders Program, obtained medical documentation confirming his wife’s pregnancy, as well as references.  Streeton Lawyers argued that in all of the circumstances, particularly his prior good character, need for a licence, and the extenuating circumstances surrounding the offence, he should not be convicted and be allowed to resume driving.

The Magistrate ultimately agreed and our client was sentenced without conviction, under Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, on condition he agree to be of good behaviour for a period of 12 months.  This means that he can resume driving immediately and avoid a criminal conviction.

Avoiding a conviction for a Mid Range drink driving offence is not common, with maximum penalties of 9 months imprisonment and an automatic disqualification period of 12 months.

By Justin Wong

CASE STUDY: Mid-Range Drink Driver keeps his licence

Posted by Justin Wong on 15 July 2014

Streeton Lawyers today represented a client charged with driving with a mid-range PCA, with a reading of 0.092.  The 57 year old male, a father of two, had no previous matters on his record, and an exceptional traffic record.

After completing the Traffic Offenders Program, Streeton Lawyers made submissions on his behalf before the Magistrate, urging the Court not to record a conviction under Section 10 of the Crimes (Sentencing Procedure) Act 1999. It was argued that this was appropriate having regard to his prior good character, exceptional traffic record, remorse, need for a licence and the particular circumstances leading up to the offence.

The Magistrate considered all of the material and submissions, and ultimately agreed.  Our client avoided a criminal conviction, and was released on a 12 month good behaviour bond under Section 10.

This means that he has no criminal conviction or record, and because there was no conviction, there was no disqualification of his licence.  He is able to commence driving immediately.

The offence of Driving with a Mid-Range PCA is a serious offence, carrying 9 months imprisonment and an automatic disqualification of 12 months.  Had he been convicted, the minimum period of disqualification from driving would have been 6 months.

By Justin Wong

CASE STUDY: 54 year old designer has disqualification reduced

Posted by Justin Wong on

Our client was yesterday sentenced at in a Local Court in Northern Sydney for the offence of driving with Mid-Range PCA.  A self-employed designer, our client had a previous conviction for the same offence in 2007.

Because she was self-employed and running a successful design practice, there was a severe need for a licence.  The offence occurred after driving home to the northern beaches from the city. She ultimately returned a reading of 0.106.

After completing the Traffic Offenders Program, our client was sentenced.  The Court was asked to consider her remorse, need for a licence, her otherwise good character, and the circumstances leading up to the offence.  Having regard to all of those factors, the Magistrate reduced the automatic disqualification from 12 months to 8 months, effectively backdated from the date of the offence.  She was also fined $850 and the Court imposed a good behaviour bond for 12 months.

Given the earlier conviction in 2007, yesterday’s result was a relief for our client. Particularly in circumstances where her driver’s licence is critical to her business.  A disqualification for 12 months, the automatic period, would have potentially crippled her business.

By Justin Wong

CASE STUDY: No Conviction after Supply Charge Withdrawn

Posted by janelle.tarabay on 11 July 2014

Streeton Lawyer’s yesterday represented a 25 years old man, originally charged with supplying 8 capsules of MDMA in the Eastern Suburbs of Sydney.  Once arrested, police weighed the 8 capsules and because the total quantity weighed was over the trafficable quantity, our client was charged with Supply Prohibited Drug.

The offence of Supply Prohibited Drug carries a maximum penalty of 15 years of imprisonment when the quantity supplied is over the indictable quantity.  Here, the indictable quantity for ecstasy/MDMA is 1.25 grams.

Following discussions with the prosecutor, the DPP agreed to withdraw the supply charge on the basis that a plea of guilty be entered to the Possess Prohibited Drug charge.

Our client was then sentenced for the Possess Prohibited Drug charge. He avoided a criminal conviction and record and was released conditionally on condition that he agree to be of good behaviour for a period of 2 years under Section 10 of the Crimes (Sentencing Procedure) Act 1999.

In circumstances were our client was originally facing a maximum penalty of imprisonment for 15 years, the result was an outstanding outcome.

By Justin Wong

AUSTRALIANS AMONG THE BIGGEST DRUG USERS IN THE WORLD: UN

Posted by jamie.mclachlan on 07 July 2014

A new report by the United Nations reveals that Australians are among the biggest drug users in the world.

The World Drug Report 2014, published by the United Nations Office on Drugs and Crime (UNODC), states that Australia ranks as having the highest proportion of ecstasy users in the world, is second for opioid users (drugs such as codeine and morphine), third for methamphetamine, fourth for cocaine, and is seventh for cannabis users. On a positive note the report does state that ecstasy use in Australia has declined.

In percentage terms the UNODC found that, of Australians aged between 16 and 65 years, 10.3 per cent use cannabis, 3.1-3.6 per cent use opioids, 3 per cent use ecstasy, while 2.1 per cent use cocaine.

The report states “In Australia, expert opinion points to an increase in the consumption of cannabis, cocaine, hallucinogens, and solvents and inhalants, but a decline in the use of ‘ecstasy’. There is a wide range of drug analogues and new psychoactive substances that are currently available in the Australian illicit drug market”.

Regardless of whether one is of the view that being “tough” on drugs is the appropriate policy response to drug use or not, the report certainly highlights the significance of drug use in the Australian community.

IN THE US: CHARGES DROPPED AFTER AGREEING TO A VASECTOMY

Posted by jamie.mclachlan on 03 July 2014

The Washington Post has reported that a Virginia man has agreed to have a vasectomy, as one of his probation conditions, in exchange for two criminal charges being dropped.

Jessie Lee Herald, father of seven children to six women, fled the scene of a car crash with his injured 3-year-old son in late 2013. Mr Herald was subsequently arrested and charged with child endangerment, hit and run, driving on a suspended licence, failure to secure medical attention for a child, and driving after the forfeiture of a licence.

Mr Herald and the prosecution reached a plea deal that resulted in the charges of failure to secure medical attention for a child, and driving after the forfeiture of a licence being dropped. In return, Mr Herald agreed to plead guilty to the remaining charges as well as to have a vasectomy within one year of being released from his prison term of one year and eight months. Mr Herald also agreed not to have the operation reversed while he is on probation.

In the US prosecutors and defence lawyers have considerable scope to make a plea deal, including the conditions of probation, although a deal such as this one remains an unusual. One can certainly ask whether the criminal law should encroach into an offender’s life to this extent.

US SUPREME COURT DECISION ON THE SEARCH OF MOBILE PHONES

Posted by jamie.mclachlan on 28 June 2014

In the recent decision of Riley v California; United States v Wurie the US Supreme Court has unanimously ruled that police officers will normally need a search warrant before they may search the mobile phone of an arrested person.

David Riley had been stopped for a traffic infringement, which lead to his arrest on weapons charges. A police officer searched Mr Riley and seized a mobile phone from him. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station a detective further examined the phone and found photographs and videos which resulted in Mr Riley being charged with a shooting that had occurred a few weeks earlier. It also resulted in police seeking an extended sentence due to Mr Riley’s apparent gang membership. At his trial Mr Riley was unsuccessful at having the evidence obtained from the search of his phone excluded and he was convicted.

Brima Wurie was arrested after police observed him taking part in a drug sale. At the police station police officers seized a mobile phone from him and noticed that the phone was receiving multiple calls from a source identified as “my house” on the phone’s screen. Officers accessed the call log of the phone, ascertained the telephone number of “my house”, and traced that number to what they suspected was Mr Wurie’s apartment. Police searched the apartment, pursuant to a warrant, and found drugs, a firearm and cash. Mr Wurie was then charged with drug and firearm offences. At his trial Mr Wurie was unsuccessful at having the evidence obtained from the search of the apartment excluded and he was convicted.

Messrs Riley and Wurie challenged their convictions, arguing that the evidence should not have been admitted at their trials because the searches of their phones were conducted without a warrant. The US Supreme Court agreed and held that both searches of the phones were unconstitutional as they breached the US Constitution’s Fourth Amendment, barring unreasonable searches. Roberts, C.J., delivering the opinion of the court, noted the immense storage capacity of modern mobile phones, namely the ability to store millions of pages of text and thousands of pictures, with the data potentially dating back for years. This meant that the search of a phone differed greatly from the search of a person, which generally constituted only a narrow intrusion of privacy. Consequently, the Chief Justice stated that before searching the mobile phone of an arrested person the police must obtain a warrant.

Law enforcement agencies in Australia, like in the US, have increasingly searched the mobile phone of a suspect while he or she is in police custody. At times, this has resulted in important evidence being obtained to assist in an investigation and prosecution of an accused person for serious crimes.

Of course, this decision of the US Supreme Court is not binding on Australian courts. And in fact the reasoning of the court, namely the interpretation of the Bill of Rights, is not a factor for Australian courts to consider. However, the underlying issue remains a relevant and important one for Australia and Australian courts when considering the rights of citizens versus the needs of law enforcement agencies.

New changes to law gives police power to issue instant ADVOs

Posted by Charlotte Wheatley on 25 June 2014

The NSW government has made changes to the Crimes (Domestic Violence) Act 2007, in an attempt to combat domestic violence. The new changes include greater police powers in Domestic Violence cases.

Previously, a police officer would need to leave the scene of a domestic violence incident, prepare the application for an Apprehended Domestic Violence Order (“ADVO”), have it authorised by a justice of the court and then return to serve the ADVO on the offender.

Now, senior police officers have the power to immediately issue a provisional ADVO on the spot.

A senior officer includes a rank of Sergeant and above. When determining an ADVO application, a senior officer must decide whether there are reasonable grounds for making the ADVO. The senior officer applies the same test used by authorised justices in granting such orders. The test for issuing a provisional ADVO is whether it is necessary to make an immediate order to protect the safety of the person and property.

Expanded police powers have also included the ability for junior officers to direct an offender to go to, or remain at a particular place, while an ADVO from a senior officer is sought.

By Charlotte Wheatley

CASE STUDY: ASSAULT POLICE CHARGE WITHDRAWN

Posted by jamie.mclachlan on 24 June 2014

Charges of assaulting a police officer in the execution of his duty and of resisting arrest were withdrawn against our client at a Sydney Court.

Our client, a 19 year old Sydney man, was charged with assaulting a police officer and resisting arrest after an incident in the Sydney CBD in January of this year. Our client denied the allegations and the matter was listed for a defended hearing in the Local Court.

On the day of the hearing Streeton Lawyers held discussions with the prosecutor and argued that the charges could not be made out due to legal and factual problems with the prosecution’s case. Consequently, the charges were withdrawn and dismissed.

Our client had no prior convictions and was obviously very pleased with the outcome.

By Jamie McLachlan

CASE STUDY: DRUG SUPPLY CHARGE WITHDRAWN FOR SIX ECSTASY TABLETS

Posted by jamie.mclachlan on 23 June 2014

A 23 year old Sydney woman has avoided a conviction after pleading guilty to the possession of six ecstasy tablets at the Future Music Festival in Sydney. In addition, Streeton Lawyers had earlier convinced the prosecution that it was appropriate that a charge of drug supply be withdrawn.

At court character references were tendered and submissions were made as to the circumstances of the offence, our client’s outstanding character and impressive work ethic.

The magistrate was convinced that due to our client’s prior good character that it was appropriate that she be given a chance to avoid a criminal conviction.  Consequently, our client was placed on a bond to be of good behaviour for one year.

It was a pleasure to have been able to assist her to achieve such a positive result.

By Jamie McLachlan

CASE STUDY: No disqualification for mid range drink driving nanny

Posted by Charlotte Wheatley on 19 June 2014

A 27 year old carer of a special needs child has been awarded leniency from the court after Streeton Lawyers made submissions that the client had an exceptional need for a licence.

Employment references were handed up which praised the nanny’s pivotal role in caring for their special needs child. The child had numerous medical appointments to attend and could not safely travel by way of public transport.

Ultimately the magistrate reasoned that the consequence of a disqualification period was considered an unjust penalty. The only way to avoid the disqualification period was by way of a non-conviction, which was granted. Our client was placed on a 9 month bond under section 10, but importantly, was entitled to commence driving immediately after her sentence.

The maximum penalty for driving with Mid Range PCA stands at 9 month imprisonment, a $2,200 fine and automatic disqualification period of 12 months.

By Charlotte Wheatley

Case Study: 24 year old professional avoids conviction for drug possession charges

Posted by Justin Wong on 06 June 2014

Our client was a recent law graduate concerned that a conviction for possession of drugs may impact his ability to practice as a solicitor.

He had been charged with possession of 1.8 grams of ecstasy (MDMA) and  detected by police in possession of the ecstasy at an event in Sydney.

When the matter came for sentence in the Local Court in Sydney, our client avoided a conviction and was placed on a bond for a period of 12 months pursuant to Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.  The court took into account his remorse, the quantity of the drug, his prior good character, as well as the active steps he had taken to address his behaviour.

Possession of a Prohibited Drug is a serious offence under the Drug Misuse and Trafficking Act and carries a maximum penalty of 2 years imprisonment.  

By Justin Wong

CASE STUDY: High Range Drink Driver has Reading Reduced

Posted by Justin Wong on 05 June 2014

A client of Streeton Lawyers, initially charged with Driving with a High Range PCA (0.308), was recently sentenced at a Local Court in Sydney.

Although police alleged initially his reading was 0.308, we disputed that reading. Our client had been detected by the side of the road after having consumed alcohol both before driving as well as after having pulled over.  When he was tested by police, his breath alcohol level was 0.308.

We obtained a pharmacological opinion on his behalf which indicated that, because he had consumed alcohol after he had driven, at the time of driving his blood alcohol limit was significantly less than 0.308.

Following negotiations with the police on our clients behalf, police ultimately agreed to reduce his reading to 0.218.

Given the new reading, our client ultimately received a suspended sentence and a reduction in the automatic disqualification from 3 years to 2 years.  The Magistrate also made an Interlock Order which means that he may be able to recommence driving on an Interlock Licence within 6 months from the date of the offence.

By Justin Wong

CASE STUDY: Police withdraw Assault Police charges

Posted by Justin Wong on

Assault police officer charges against our client were withdrawn last week on the day of hearing in a Sydney Local Court.

Our client had entered a plea of not guilty to one charge of Assault Police Officer in Execution of Duty.  The matter was then listed for hearing.  On the day of hearing, police agreed to withdraw their charge after it was identified that there may have been a legal issue relating to the entry of police into our client’s home.  The charge was withdrawn and our client was discharged without any findings of guilt.

Upon conviction, our client faced a maximum penalty of 2 years imprisonment.

By Justin Wong

Drink Cycling and the Law

Posted by Charlotte Wheatley on 06 March 2014

Leaving the car at home and cycling down to the local pub might seem like a way to avoid a drink driving charge. However under NSW laws, this could get you in trouble too.

In NSW a bicycle is considered a vehicle and as such, drink driving restrictions apply.

What is a vehicle?

A vehicle is defined in the Road Transport Act 2013 as meaning any description of vehicle on wheels. Bicycles fall within this definition and cyclists are required to obey the law, in the same way they apply to vehicles.

Could I be charged with low, mid or high range drink driving?

Low range, mid range, and high range drink driving offences specifically apply to motor vehicles and do not apply to standard bicycles.

However there is an offence of using a vehicle under the influence of alcohol (section 112 of the Road Transport Act). A vehicle included a bicycle, meaning cyclist can be charged with using or attempting to use their bicycle under the influence of alcohol or any other drug.

The maximum penalty for a first offence is $2,200 and/or 9 months imprisonment. If convicted for cycling while drunk, the court could also impose a disqualification period from holding a driver licence. The automatic period of disqualification is 12 months, and the minimum period is 6 months.

If a cyclist has had a previous drink driving offence in the past five years, the maximum penalty is $3,300 and or 12 months imprisonment. The automatic disqualification period is 3 years, and the minimum disqualification is 12 months.

Breath testing

The power to conduct random breath tests by police is provided for in Schedule 3 of the Road Transport Act 2013. However these powers only relate to motor vehicles, and do not apply to cyclists.

It is arguable that police have no specific power to random breath test a cyclist, there are provisions to collect and use blood samples if a cyclist is admitted to hospital following an accident.

An accident is defined as taking place on a road and involving a motor vehicle, or other vehicle, or a horse. Where a cyclist is admitted to hospital following a collision, a medical practitioner is under a duty to take a blood sample. The blood sample may then be used for the purpose of conducting an analysis. If the sample reflects the presence of alcohol or drugs, a charge of using a vehicle under the influence could subsequently follow.

Disclaimer: This article is not legal advice and should not be relied on as legal advice. The information provided is the opinion of the author. You should seek individual legal advice about your particular matter and this information is not to be relied on. 

HIGH COURT DECISION OF BARBARO REGARDING PROSECUTION SUBMISSIONS ON SENTENCE

Posted by jamie.mclachlan on 24 February 2014

The recent decision of the High Court in Barbaro v The Queen and Zirilli v The Queen [2014] HCA 2 has held that the Victorian practice of the prosecution making submissions on sentence as to the available range of sentences for an offence is wrong in principle and should cease.

Pasquale Barbaro and Saverio Zirilli each pleaded guilty in the Supreme Court of Victoria to conspiracy to commit an offence of trafficking a commercial quantity of MDMA, trafficking a commercial quantity of MDMA, and attempting to possess a commercial quantity of cocaine. The offences related to more than 15 million tablets of MDMA and 100 kg of cocaine.

Prior to the pleas of guilty being entered the Commonwealth Director of Public Prosecutions informed Mr Barbaro’s and Mr Zirilli’s lawyers as to what they believed the appropriate sentencing range to be. For Mr Barbaro that range was a head sentence of 32 to 37 years with a non-parole period of 24 to 28 years, while for Mr Zirilli the range was a head sentence of 21 to 25 years with a non-parole period of 16 to 19 years. Subsequently, each offender pleaded guilty. On sentence her Honour, King J, did not permit the prosecution to submit what range of sentence she could impose on the offenders. Her Honour sentenced Mr Barbaro to life imprisonment with a non-parole period of 30 years, and Mr Zirilli to 26 years’ imprisonment with a non-parole period of 18 years.

Both offenders sought special leave to appeal to the High Court alleging that the sentencing hearing was procedurally unfair and that the sentencing judge failed to take into account a relevant consideration, namely the prosecution’s submissions on the appropriate range of sentences.

Special leave to appeal was allowed but the appeal was dismissed. The majority (French CJ, Hayne, Kiefel and Bell JJ) held that a prosecution statement of a sentencing range is a statement of opinion and advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law, or applying those principles to the facts. Consequently, the majority held that “the prosecution is not required, and should not be permitted, to make such a statement of bounds to a sentencing judge” and that such a practice is wrong in principle.

The majority, however, did approve of the use of sentencing statistics and other material indicating what sentences have been imposed in comparable cases.

While prosecution submissions as to a sentencing range must now cease Australia wide, the prosecution may still, quite properly, submit on what facts should be found, the relevant sentencing principles that apply, as well as comparable cases.

FORMER FEDERAL MP FOUND GUILTY OF FRAUD AND THEFT

Posted by jamie.mclachlan on 18 February 2014

Former member of the House of Representatives Craig Thompson has been found guilty by a Victorian magistrate of fraud and theft while he was the National Secretary of the Health Services Union. He now faces a maximum penalty of five years in jail.

The charges relate to, among other things, Mr Thompson using union funds to pay for sexual services as well as making cash withdrawals with his union-issued credit card. He was found not guilty of the charges which related to paying for adult movies with his union credit card.

Mr Thompson lost his seat in the House of Representatives at the last federal election.

The Health Services Union has stated that they will seek to recover money stolen from the union.

For more information on fraud offences see our page.

Straight to Jail for Alcohol Related Crimes

Posted by Charlotte Wheatley on 30 January 2014

Drug and alcohol fuelled violent crimes could face compulsory jail terms for offenders. New laws have been proposed by NSW Premier Barry O’Farrell amidst growing public concern over alcohol related street violence in Sydney. Yesterday, laws passed the NSW parliament providing for a mandatory minimum non-parole period of 8 years, for a new offence of assault causing death when intoxicated, s.25A(2) Crimes Act 1900.

The balance of legislative changes would introduce mandatory sentences for offenders who are found to be intoxicated, but no minimum sentence will be imposed for crimes where drugs and alcohol are not a factor.

Mandatory sentences are prescribed outcomes where a judge must sentence between a fixed minimum and maximum penalty. An example can be found in Commonwealth law where mandatory sentences were introduced for aggravated people smuggling.  District Court Judge Paul Conlon has expressed his view that the mandatory 5 year jail sentence (with a minimum non parole period of 3 years) compels more pleas of not-guilty. The incentives of entering a plea of guilty diminish when an automatic jail sentence will nonetheless follow.

The full details of the Premier’s proposed bill have yet to be revealed, but it is expected to be announced in State Parliament next week.

If passed, mandatory sentences will be introduced to nine offences in NSW.

The proposed jail terms for some of the alcohol-related offences will be:

The maximum sentence for the above offences would also be increased by two years.

A Rise in Steroid Use, Seizures and Arrests

Posted by Charlotte Wheatley on 10 January 2014

The use of steroids is on the rise amongst young Australian men. Those who are injecting illicit drugs for the first time, are likely to be choosing steroids.

According to the latest survey by the Kirby Institute on needle syringe use,  steroids has risen from 27% to 74% in the last ten years, as the number one drug of choice for first time injectors of illicit drugs.

This rush of demand for the performance enhancing drug has also sparked a rise of supply.

Importation of steroids has increased steadily according to the latest annual report from Customs and Border Protection Service.  The number of steroid intercepts coming through from air passengers and through parcel post has increased across the board. National steroid seizures and arrests have also increased.

The maximum penalty for illegally importing performance and image enhancing drugs is up to five years jail and $110,000 in fines. The penalty largely depends on the quantity being imported.

Importing for personal use

Despite being available for purchase from internet suppliers, any importation of steroids without a medical prescription could be illegal.

However, many therapeutic goods can be legally imported for personal use.

The Personal Importation Scheme controls what goods can be imported into Australia. There are strict requirements on how the drugs are to be used, who they are sent by and the allowable quantity.

More information on the scheme can be found here: http://www.tga.gov.au/consumers/personal-importation-scheme.htm#.Us9J0dKSySo

Over 140 charges at Field Day 2014

Posted by Justin Wong on 02 January 2014

Police media reports that over 140 people were charged yesterday as a result various offences including drug possession and drug supply.

The number of arrests reflects a recent trend of highly visible police operations resulting in large numbers of drug related charges. See for example recent arrests in 2012 and 2013.

Because of the high number of drug possession charges being laid, once  matters come before the court, magistrates will often refer to the need for ‘general deterrence’ when considering the appropriate sentence (if any).

The offences of drug possession and supply carry significant penalties, and in many instances can result in convictions that may impact travel and employment prospects.

Notwithstanding the number of charges and police operations, the most recent results from the National Drug and Alcohol Research Centre’s Ecstasy and Related Drug Reporting System showed the preference of ecstasy as the drug of choice remained steady between 2012 and 2013, although the preference of Cocaine decreased.  This study does not, of course, indicate that drug use generally is either increasing or decreasing.

Source: The highs and lows of the party 2013 EDRS Key Findings, National Drug and Alcohol Research Centre

By Justin Wong

Criminal Records, Section 10 and Spent Convictions

Posted by Charlotte Wheatley on 19 December 2013

People commonly ask whether they can apply to have a conviction removed from their criminal record. Unfortunately, this is generally not the case. In accordance with the Criminal Records Act 1991, ‘spent’ convictions will no longer appear on your criminal record after the designated period of time has elapsed. However, you cannot apply to have a conviction removed from your record any earlier. You must wait until the relevant period of time has elapsed, at which point the conviction will automatically be removed from your criminal record.

If you would like to know whether your conviction is ‘spent’, please read the information below.

Your criminal record

Your criminal history includes all arrests, court appearances, police warnings, fingerprints, convictions, section 10 non-convictions and even matters where you were found not guilty. These entries are kept on file by the police and will only be amended if a charge is dismissed or you have made a request to the police commissioner to have evidence of a charge removed.

Your criminal record is adduced from this criminal history and lists the convictions recorded against you. Even though a conviction remains permanently on your record, spent convictions and matters that have been dealt with under section 10 do not form part of your criminal record, but will be made known to a court if being sentenced for future offences.

‘Spent’ convictions

In NSW, we have a regime of which involves many convictions becoming ‘spent’.

Most convictions are capable of becoming ‘spent’, meaning they can generally be disregarded (although there are exceptions). Generally, you will no longer be obliged to disclose the conviction, and any questions about your criminal history will not refer to this conviction.

A conviction is spent after a crime-free-period of 10 years for adults, and three years for children.  Meanwhile, a dismissal under section 10(1)(a) is spent immediately after the finding is made and a conditional discharge under section 10(1)(b) becomes spent at the end of the good behaviour period.

The Criminal Records Act 1991 sets out the limitations of spent convictions. The purpose of this scheme is to curb any long lasting discrimination that may result from a conviction. However not all convictions are capable of becoming spent. Convictions which will still remain on a criminal record include sexual offences or convictions which resulted in a prison sentence of more than 6 months.

There are further exceptions where spent convictions will remain relevant. It may be that the principles of a spent conviction will not apply in certain areas of employment including child care, teaching, firefighting, policing and the judiciary.

Your criminal history can only be released if it is requested by an authorised public body, or when you have provided consent. If you would like to obtain a copy of your own criminal record, you can do so at: http://www.police.nsw.gov.au/about_us/structure/specialist_operations/forensic_services/criminal_records_section

 

 

NB: The above is not legal advice and is meant as information only. If you require legal advice, please speak with a lawyer directly.  

Justin Wong’s most recent article in the Law Society Journal

Posted by Justin Wong on 04 October 2013

Partner and Accredited Specialist in Criminal Law at Streeton Lawyers, Justin Wong, has this month written in the Law Society Journal on a recent High Court case concerning Centrelink Fraud.  Follow this link for the full article:

Law Society Journal Article

This article was first published in the Law Society Journal, October  2013, and is reproduced with permission.

By Justin Wong

The Death of a Police Officer Demands a Harsher Sentence

Posted by Charlotte Wheatley on 29 August 2013

The death of a police officer demands a harsher sentence

The manslaughter of a police officer has warranted an increased jail sentence from the Criminal Court of Appeal. The decision which was handed down yesterday has nearly doubled the original sentence from a minimum of seven years to a minimum of 12 years.

It was argued by the Crown that Justice Fullerton’s decision in R v Nguyen [2013] NSWSC 197 was manifestly inadequate and erred in assessing the objective seriousness of the offence.

Having been robbed a few weeks prior, the Offender believed the police raid was another robbery. The Offender opened fire and shot Constable Bill Crews in the arm. An accompanying detective returned fire and accidently hit Constable Crews in the back of the neck.

Had the Offender known of the victim’s occupation, he would have been found guilty of murder. However, since the Offender was unaware of the identity of the officers, he was accordingly charged with manslaughter.

In handing down her sentence, Justice Fullerton assessed the objective seriousness of the manslaughter offence – concluding it did not fall in the worst category. In her reasoning, the offence would have been more severe had the offender known or believed the victim was in fact a police officer.

In their appeal, the Crown submitted that the manslaughter offence was assessed as being at a lower level of objective seriousness than its true position.

The crown relied upon the principle of The Queen v De Simon in which a sentencing judge cannot take into account aggravating features which would have warranted conviction for a more serious offence – in this case, murder. The Crown said that the sentencing court incorrectly applied that principle.

The CCA agreed and found that the sentencing judge was indeed in error.

“For the purpose of assessing the objective seriousness of the Respondent’s crime of manslaughter, it was erroneous to have regard to the absence of a factor which, if it existed, would have rendered the Respondent guilty of murder. In this way, an extraneous or irrelevant consideration has affected the sentencing decision.”

The CCA found that the objective gravity of the manslaughter offence was greater than originally characterised by the sentencing Judge. The Offender was subsequently re-sentenced and will not be eligible for parole until 2023.

The full decision and grounds of appeal for R v Nguyen [2013] NSWCCA 195 can be found here: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=166697

Trial of Sydney Drunk Tanks

Posted by jamie.mclachlan on 12 August 2013

The NSW Government has begun a 12 month trial of sobering up centres for intoxicated persons – otherwise known as drunk tanks.

The trial is authorised by the Intoxicated Persons (Sobering Up Centres Trial) Act 2013. The stated object of the legislation is to promote public safety by trialling a scheme to reduce alcohol-related violence and other anti-social behaviour by removing people from the street who are intoxicated.

The scheme allows a police officer to detain an intoxicated person in a public place within Sydney city, Kings Cross, Surry Hills and The Rocks. This may be done if the person has refused to comply with a move on direction and persists in engaging in anti-social conduct; or the person is behaving in a disorderly manner or; in a manner likely to cause injury to themself or another person or in need of physical protection.

The person must then be taken to the Sydney City sobering up centre (or drunk tank) which is located in the cells of Central Local Court and has the capacity to hold 10 people. Once at the centre the person will be detained for up to eight hours before they are released. The detained person will be required to pay a cost recovery charge for their stay.

There is also provision for other sobering up centres, admission to which would be voluntary, at Randwick and Wollongong. The trial runs to the end of June in 2014.

Life Imprisonment – The case of Roger Dean

Posted by Justin Wong on 05 August 2013

The sentence or Roger Dean, convicted of 11 counts of murder, is a clear example of the process involved when courts deal with the ‘worst case category’ of offences of murder.

Section 61 and the Common Law

Justice Latham sentenced Dean to life imprisonment on each 11 counts of murder.  In doing so, the Supreme Court considered s.61(1) of the Crimes (Sentencing Procedure) Act 1999. Section 61 provides that a sentencing court is to impose a sentence of imprisonment for life for murder (and other serious drug offences) if it is satisfied that the “level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence”.  Section 41(1) of the Crimes (Sentencing Procedure) Act 1999 still provides for a discretion to impose a lesser sentence even if the requirements of s.61(1) are still met.

Her Honour also noted that the common law also provides for the imposition of a life sentence with the cases referring to the “worst case” category of offences.

Truth in Sentencing

The  so called “truth in sentencing” amendments made in NSW in 1999, amongst other things inserted s.19A into the Crimes Act 1900.  This section provides that when sentencing for murder, a person sentenced to imprisonment for life is to serve that sentence for the term of the persons natural life.

In Dean’s case, Justice Latham noted that whether under the requirements of s.61(1), or under the common law, a life sentence was required because of the level of Dean’s  culpability and the deaths of 11 “vulnerable people”.

Reckless Indifference no bar to the Maximum Penalty

Her Honour also noted that just because the offence was one of recklessness indifference rather than an intention to kill, it did not necessarily mean that the objective gravity was reduced.  Rather, the proper approach was to have regard to all of the circumstances including the fact that Dean lit two fires in different locations, and that the victims were vulnerable and under the care of Dean. When all factors were considered, the murders fell within the worst case category.

The full judgment can be viewed here: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=166252

By Justin Wong

How to Reduce Your Sentence

Posted by Charlotte Wheatley on 31 July 2013

How to Reduce Your Sentence

Deciding to plead guilty? Make your choice while the iron is hot. Sentencing discounts may be available to those who take the right steps after they’ve committed a crime – including an early plea of guilty.

A degree of leniency is shown to offenders depending on how they respond to their crime.  Not only can a discount reduce the length of a sentence, but it can even diminish the type of penalty applied.

However, the decision to plead guilty or not guilty is one of the most important decisions in the court process. Before you make that decision, you should seek proper legal advice and nothing in this article should be viewed as legal advice.

Two main sentencing “discounts” include a discount for pleading guilty as well as a recognition of certain post-offending conduct.

Pleading Guilty

A plea of guilty is an acknowledgement to the court that you are accepting all of the elements (or ingredients) of the offence.  Making this decision isn’t always as easy as it seems. There are many things to consider including your available defences, the strength of the case against you and the legal fees involved. However another important point is how your plea directly affects the ultimate sentence.

The law makes it clear that the onus is on the prosecution to prove their case against you. Every accused person has the right to plead not guilty. Even if unsuccessful, no punishment can be applied for deciding to run a trial and put the evidence to the test.

However, a discount is available that seeks to encourage a plea of guilty at an early opportunity

The rationale behind the discount reflects:

–          Evidence of remorse and therefore, good prospects of rehabilitation

–          Accepting responsibility

–          Relieving victims from ongoing trauma and the stress involved in giving evidence

–          Saving public costs for the time and expense of a trial

Discounts of between 10 and 25 per cent can be applied for entering a plea of guilty. Where a figure falls within that range will mostly depend on the timing of the plea.

The amount of a discount hinges on whether the plea was made at the “first reasonable opportunity”. This allows some room for a delayed plea in circumstances where proper legal advice had not been sought or where plea negotiations had taken place. In such cases, some discount can be applied, but it is likely to be reduced.

A sincere interest to facilitate justice is not a point of consideration. Even if pleading guilty is a purely self-serving act that has little to do with remorse, it will not minimise the discount.

Similarly, the strength of a prosecution’s case is also irrelevant. Admitting guilt to a particularly weak case against you, won’t bear a greater discount in your favour. The complexity of a case will only be taken into account in Commonwealth matters but not for State offences.

There is one exception where there can be no discount, despite a plea of guilty. For extreme cases or “worst category cases”, the maximum penalty cannot afford to be ruled out. The reason for this is based on public policy, where the full strength of a penalty must still be applicable for worst case offenders.

Post offending conduct

Sentences won’t always hinge on the crime alone, the steps an offender makes in the aftermath can still be given weight. This type of sentencing reduction is most commonly referred as the ‘Ellis Principle”. It relates to certain acts, acknowledged by the courts that will allow for a degree of mercy.

These acts relate to the following post offending conduct:

–          Voluntary disclosure of unknown guilt

–          Admitting to additional offences that were otherwise undiscovered

–          Forfeiting incriminating evidence

–          Assisting investigating authorities by providing information, participating in the investigative process or acting as an informer against other offenders.

The reason for the discount is based on public policy, where it’s in the public’s interest to encourage and reward the administration of justice.

In cases where an offender confesses a crime after a lengthy delay, two considerations must be balanced out. The court will weigh out the negatives of continued concealment and lying to the police, alongside any rehabilitation the offender may have undergone in the course of time.

Another factor that will be taken into account is how likely the guilt would have been discovered without their disclosure. If the offender volunteers themselves only upon close discovery, they are open to less leniency from the court.

In cases where an offender agrees to help investigating officers, the effectiveness of that assistance is irrelevant. Whether or not the offender’s participation in an investigation lead to any real progress, will not impede their discount.

How are sentencing discounts applied?

Once a magistrate or judge has decided in their mind what the appropriate penalty would’ve been for the offence, they can mark down the sentence by applying the discount.

However, a limitation applies where an offender is eligible to two discounts. In these situations the discounts must be combined and calculated in a holistic manner, rather than separate subtractions. Generally the total discount available will be capped to 50 per cent.

For the purposes of transparency, a decision maker is required to explicitly state that a discount has been factored into the penalty when handing down their judgement. But despite the active steps you can make to reduce your sentence, the courts have stressed that it is not an entitlement. Ultimate discretion remains in the hands of the sentencer to apply mercy where they see fit.

A Makeover for NSW Road Rules

Posted by Charlotte Wheatley on 15 July 2013

A Makeover for NSW Road Rules

The law can be hard to navigate, with lots of twists and dead ends. But for NSW drivers, the separate laws governing road rules, traffic offences, driver licences and car registration have now merged lanes – turning into one consolidated piece of legislation.

In an effort to streamline previous legislations, the NSW government has introduced the Road Transport Act 2013. The act came into effect 1 July 2013 and makes no major changes to existing road rules. It introduces no new offences, or shifts in policy and will have little impact on the majority of road users. Instead, the purpose of the act was to present a simpler legislative framework.

Before its introduction, road users had to contend with four acts, each with their own definitions, cross referencing and ad hoc additions. By steam rolling all four pieces, the new act cuts down on red tape and legislative bulk.

The act is a one stop shop for NSW drivers and provides a simpler and more logical break down of their responsibilities. But drivers aren’t the only ones to benefit from the revised format.  Being such a wide reaching area of law that regulates all aspects of how roads and vehicles are used, it’s important the act be easy to follow and understand for working professionals, including police officers, public sector workers, transport operators, safety experts, road architects and lawyers.

The most relevant driving offences can now be found under the following sections of the Road Transport Act 2013:

While the act does little more than re-package existing road rules, it does make room for the eventual adoption of a uniform national approach to driver licencing and a registration system for heavy vehicles.  The Heavy Vehicle National Law will be adopted in NSW in September 2013 and will replace the Road Transport (Vehicle and Driver Management) Act.

Are you a Habitual Traffic Offender

Posted by Charlotte Wheatley on 19 June 2013

Your traffic record is a report card of your driving history. It’s one of the biggest considerations taken into account when determining your outcome. Not only will it dictate the severity of the sentence, but it also directly determines what category of penalties you will face in the first place.

Looking back over your last five years on the road, any major offence that’s taken place will automatically spike up the load of your penalty. If this is your third major offence, the court will declare you a habitual traffic offender – a title that comes with a further five years disqualification period.

What is a Major Offence?

With so much at stake, it’s important to understand what the court considers a ‘major offence’. Which traffic infringements count? What about interstate traffic offences? Would it include a previous section 10 non-conviction?

The law has defined a ‘major offence’ under section 4 of the Road Transport Act 2013 as including a wide range of traffic offences such as drink driving, and driving while disqualified.

Section 10

If you’ve already appeared in court before in the last five years, it’ll likely count as a previous ‘major offence’. Even if your offence was handled by way of a section 10 non-conviction, it will still count. Not only will you be appearing in court as a repeat offender, it will also mean you’ve lost your chance to be treated with the same leniency again.

Interstate Driving Record

The list of major offences extends beyond the border and includes any similar offence that’s taken place outside of NSW. So when it comes to sizing up the state of your record, it’s important to remember that inter-state infringements count too.

While any major traffic offence committed outside of NSW would be recognised as a prior offence, the police won’t always go so far as to retrieve your interstate record. However your Solicitor has an obligation no to mislead the court by presenting any arguments that contradicts their knowledge of your prior offence – that would include submissions of a good driving record.

Set the Record Straight

Your driving record includes a whole host of information. It includes all traffic fines, suspensions and demerit points – starting from the very first date your licence was issued. The Magistrate will be casting an eye over all these finer details to get a complete view of who you are as a driver. If there’s a chance you don’t remember every facet about your years on the road, or you’re worried about unexpected surprises, it’s always wise to obtain a copy for yourself and get a sneak peak. A copy of your driving record can be ordered from the RMS website for a fee of $20.

http://www.myrta.com/wps/portal/extvp/myrta/you-and-the-rta/request-driving-record

GUIDELINE JUDGEMENTS: THE SERVANT NOT THE MASTER

Posted by Charlotte Wheatley on 20 May 2013

“What will my likely sentence be?” It’s a hot question and rightfully so. Anyone pleading guilty to a charge will want to know where they stand – a percentage of their odds, a worst case scenario and what they might expect. It’s at this point that Guideline Judgements offer a tempting insight into where any given case might stand.

Guideline Judgements map out key points of consideration, how much weight certain factors should be given and the range of sentencing outcomes they lead to. The objectives of these guidelines are for decision makers to create consistency and transparency. But when it comes to sentencing, it’s clear the courts have wide powers to exercise their discretion. This is further supported by the recent decision in Murray Justin James v R [2013] NSWCCA 12 where Guideline Judgements have come under re-examination.

In this judgement, guidelines have been put back in their place as a servant not a master. Guidelines act as sign posts that can be followed, but when they point to different directions, they should not be automatically obeyed. Decision makers have been cautioned from indulging in formulaic applications and have instead been encouraged to rely on instinct and intuition when balancing the complexity of a case.

Nonetheless, Guideline Judgements do maintain an important place. They act as helpful check points but ones that should be applied with mindful fluidity.

GUIDELINE JUDGEMENT FOR HIGH RANGE PCA

In 2004 the NSW Court of Criminal Appeal delivered a Guideline Judgement for High Range PCA Matters.

THE ORDINARY CASE

The Guideline paints a picture of what an ordinary case of High Range PCA involves. It is the standard set of facts a Magistrate might expect to see as common place. Therefore these factors are given less weight and do not stand out as particularly noteworthy or exemplary.

The ordinary case is one where a driver:

–          Drove to avoid inconvenience

–          Didn’t know they were drunk

–          Were detected by random breath test

–          Has prior good character

–          Has nil, or a minor traffic record

–          Had their licence suspended on detection

–          Pleads guilty

–          Has little or no risk of reoffending

–          Will be significantly inconvenienced by the loss of their licence

The likely sentence:

–          A section 10 will rarely be appropriate

–          Attending a driver education or awareness courses will not mean a conviction will be avoided.

–          The automatic disqualification period applies, unless;

  • There are strong employment reasons for needing a licence.
  • There is no viable or alternative means of transport.
  • The driver or a family member is sick and reliant on using a car.

An ordinary case plus a prior conviction:

If a driver has a previous High Range PCA charge the sentence will be more severe. In this case:

–          A section 9 will rarely be appropriate, and a section 10 even more so.

–          The sentence should be more severe than just a community service order.

THE MORE SERIOUS CASE

The Guideline Judgement provides a spectrum that moves beyond the ordinary case. On the other end of the scale lies the more serious case. The Guideline sets out situations where a case of High Range PCA should be considered particularly serious.

There is more moral culpability if:

–          The level of intoxication in more than 0.15

–          There was erratic or aggressive driving such as:

  • Drag racing or showing off
  • It lead to a crash
  • The distance of the journey at which people were at risk was lengthy
  • There were a high number of people actually put at risk

In the more serious case, the likely sentence will be:

–          Neither a section 9 or section 10.

–          When a number of factors of aggravation are present to a significant degree, sentence should be no less severe than imprisonment.

A more serious cases plus a prior conviction:

When it is a more serious case and the driver has a previous high range PCA before:

–          Sentence should be at least imprisonment

–          Furthermore, if it’s more serious on a number of aggravating factors, the sentence should be at least as severe as full time imprisonment.

For more information about drink driving.  If you have recently been charged with an offence, please contact one of our lawyers now for a FREE consultation on 9025 9888.

JUSTIN WONG INTERVIEWED BY TODAY TONIGHT

Posted by janelle.tarabay on 16 May 2013

Partner at Streeton Lawyers, Justin Wong, was last night interviewed by Today Tonight on the issue of Self Defence and home invasion. Click on the link for the full story:

VIDEO LINK

This follows our previous blog articles on the issue of Self-Defence and Home Invasion on 24 September 2011, following the stabbing death of Azzam Naboulsi in Sydney, PREVIOUS ARTICLE.

Self-defence is, in most cases, a full defence and requires an accused person to establish that they believed that what they did was necessary to protect themself or another; and that it was a reasonable response to the circumstances as they perceived it. For more information on Self Defence, click HERE.

High Court Rules on Malicious Prosecution and Nolle Prosequi

Posted by Justin Wong on 09 May 2013

The High Court of Australia yesterday delivered an important judgment on the tort of malicious prosecution in Beckett v NSW [2003] HCA 17.

The Court unanimously decided to no longer follow the 1924 case of Davis v Gell, which had held that in cases where the prosecution had withdrawn proceedings and there had been no verdict of acquittal returned, to prove malicious prosecution a plaintiff must also prove their innocence.

The High Court held that there should be no distinction between matters terminated by the Attorney General or DPP under their statutory powers and a termination of the prosecution by way of entry of nolle prosequi.

Malicious Prosecution

Malicious prosecution is a civil action where a person (the plaintiff) can claim redress where a malicious prosecution was initiated or continued by the defendant (usually the state) without reasonable or probable cause. The plaintiff must prove the following  (as summarised by the High Court in Beckett):

  1. that the prosecution was initiated by the defendant;
  2. that the prosecution was terminated favourably to the plaintiff;
  3. that the defendant acted with malice in brining or maintaining the prosecution; and
  4. the prosecution was brought or maintained without reasonable and probable cause.

It was in relation to the second element, that the prosecution was terminated favourably to the plaintiff, that the dispute in Beckett arose.

Ms Beckett  had been convicted at trial of a number of counts in relation to offences concerning her husband.  She was ultimately tried and found guilty by a jury in 1991.  She was then sentenced to a significant period of imprisonment.

Following an unsuccessful appeal to the NSW Court of Criminal Appeal (CCA), in 2005, and following a referral from the NSW Attorney General, the CCA eventually quashed convictions in relation to five (5) charges and returned a verdict of acquittal for one (1) charge.  A new trial was ordered for the charges relating to the five convictions that had been quashed.

Following the CCA’s order for a new trial, the Director of Public Prosecutions determined that no further proceedings against Ms Beckett would continue.

Ms Becket commenced proceedings in the Supreme Court in 2008 for malicious prosecution. The question therefore arose as to whether Ms Beckett was required to prove her innocence in a  claim for malicious prosecution where the prosecution was terminated by entry of nolle prosequi.  The High Court ultimately determined that she was not so required. In doing so, the Court determined that the 1924 case of Davis should no longer be followed.

The decision is significant in so far as the tort of malicious prosecution is concerned, however the joint judgment also provides a detailed analysis on nolle prosequi and the powers of the DPP and Attorney General to continue or terminate proceedings.

More than using a handsfree mobile, drivers must keep their hands off – Charlotte Wheatley

Posted by Justin Wong on 17 April 2013

Whether it’s listening to music, navigating from place to place or simply making phone calls, drivers are faced with more temptations to reach for their mobile while on the road.

Alongside a boom in apps, increased functionality and more ways to use a mobile, Road & Maritime Services have enforced new rules to clarify exactly what is acceptable when it comes to using a mobile. Despite trying to make things clearer, the use of mobile phones remains amongst the top ten misunderstood road rules in NSW.

The New Rules

When using a mobile as a GPS system, the device must be mounted in a fixed cradle. Furthermore the cradle must be commercially manufactured for that purpose and cannot obscure the driver’s vision of the road.

When using a mobile to make a phone call or play music, it must either be mounted or set in a way that does not require the driver to touch the phone – for example using voice commands or Bluetooth technology. Even while using a handsfree set, the mobile cannot rest in the driver’s lap. The new rules make it clear that drivers are prohibited from holding a mobile in their hand, except when passing it to a passenger.

As for text messaging, video calling and emailing – drivers need to be parked (not just pulled over) before reaching for their mobile.

Further still, Learner and Provisional P1 drivers are banned from using mobile phones altogether.

GOVERNMENT ESTABLISHES ROYAL COMMISSION INTO CHILD SEX ABUSE

Posted by jamie.mclachlan on 11 January 2013

Today the Prime Minister, Julia Gillard, has announced that the Government has established a Royal Commission into Institutional Responses to Child Sexual Abuse.

THE Prime Minister stated:

“The Royal Commission will enquire into how institutions with a responsibility for children have managed and responded to allegations and instances of child sexual abuse and related matters. It will investigate where systems have failed to protect children, and make recommendations on how to improve laws, policies and practices to prevent and better respond to child sexual abuse in institutions. The Commissioners can look at any private, public or non-government organisation that is, or was in the past, involved with children, including government agencies, schools, sporting clubs, orphanages, foster care, and religious organisations. This includes where they consider an organisation caring for the child is responsible for the abuse or for not responding appropriately, regardless of where the abuse took place.”

The Royal Commission will be led by Justice Peter McClellan, the Chief Judge at Common Law of the Supreme Court of New South Wales. There will be a further five commissioners, namely Bob Atkinson, a former Commissioner of the Queensland Police Service; Justice Jennifer Coate, a judge of the Family Court of Australia; Robert Fitzgerald, a Commissioner of the Productivity Commission; Professor Helen Milroy, a psychiatrist and professor at the University of Western Australia; and Andrew Murray, a former Senator for Western Australia.

The Commission will prepare an interim report by 30 June 2014 and, subject to the advice of the Commissioners, the final report by the end of 2015.

The Attorney-General, Nicola Roxon, has emphasised that the Royal Commission is not a police force or prosecuting authority. However, it has been reported in the Fairfax press that a process will be established in which the Commissioners will refer cases to the police and that the Commissioners will have the power to establish an investigative unit to work with police to investigate and prosecute past crimes.

Over 150 Drug Arrests at Field Day 2013

Posted by Justin Wong on 02 January 2013

NSW Police report that 153 people were arrested during a police operation at the 2013 Field Day Music Festival.

The 2013 Field Day arrests for drug possession and supply continues to trend of highly visible police operations at major events and using sniffer dogs, uniformed and plain clothed police.

Those caught in possession of a prohibited drug face criminal convictions. In cases of supply, or where there are repeat possession offences, individuals may  face the prospect of imprisonment.

For more information, visit our  pages on Drug Possession and Supply for more information or our past BLOGS on Drug Possession, Purity and Drug Possession, and Sniffer Digs and Music Festivals.

“Let’s Appeal” – Appeals to the District Court

Posted by Justin Wong on 04 December 2012

A common question when someone is sentenced or convicted in the Local Court is whether or not they should appeal to the District Court.

Generally speaking, if you are sentenced in the Local Court or found guilty after a plea of not guilty in the Local Court, you have a right of appeal against the  sentence or conviction to the District Court.  There are important time limitations, and an appeal generally must be lodged within 28 days, or within 3 months with special permission or leave of  the District Court.

SENTENCE APPEALS

Sentence, or severity appeals, involve an appeal against the sentence received in the Local Court. The documents tendered in the Local Court will be considered again by the Judge in the District Court. Subject to relevance, you can rely on new documentary material in the District Court.  It is also common for people to give oral evidence in the District Court at the hearing of the appeal.

There is no need to establish that there was some error of law in the Local Court.  Rather, it is a rehearing of the evidence given in the Local Court, with any additional fresh evidence taken into account.  The District Court Judge then arrives at his or her own decision and can:

  • set aside the sentence, or
  • vary the sentence, or
  • dismiss the appeal.

It is technically possible for the District Court to increase the sentence. However generally the District Court Judge must warn you before they do this.  This is often referred to as a “Parker warning”. After the warning, you can withdraw the appeal.

APPEALS AGAINST CONVICTION

 In a similar way to appeals against sentence, an appeal against a conviction proceeds on the basis of rehearing of the evidence given in the Local Court proceedings.  This is generally done on a transcript of the evidence heard in the Local Court.

Fresh evidence can be called, however only with the leave of the Court.  The Court must be satisfied that it is in the interests of justice that the fresh evidence be given.

Again, it is not necessary to show that there was some error of law in the Local Court.  Rather, the District Court Judge has a fresh look at the evidence and makes his or her own determination.

Because an appeal against conviction is generally done on the evidence called in the Local Court, if certain evidence was not called in the Local Court, or certain assertions not put to witnesses, this can restrict the submissions made in the District Court on appeal.

APPEALS AGAINST A REFUSAL TO ANNUL A CONVICTION

 If a Local Court has refused to annul a conviction entered in your absence under Section 4 of the Crimes (Appeal and Review) Act 2001, that decision can be appealed to the District Court.  It must be made within 28 days.  If a plea of guilty had been entered, and a person convicted in their absence in the Local Court, an appeal against that conviction can be made but only with the leave of the District Court.  An application for leave to appeal can be made, but only if the person has first made a Section 4 application in the Local Court.

OVERALL

The above is a summary of some of the appeal provisions from the Local Court to the District Court.  There may also be avenues of appeal to the Supreme Court when there has been an error of law, and additionally the prosecution has various rights of appeal against  decisions of the Local Court and District Court.

Should you have any questions or be unsure about your rights of appeal, you should obtain legal advice as soon as possible.  There are strict time limits on appeal rights, and once those time periods are exhausted, there is often no other avenue for appeal or review.

INTENSIVE CORRECTION ORDERS – RECENT DECISION ON APPROPRIATENESS

Posted by jamie.mclachlan on 24 October 2012

A recent decision of the NSW Court of Criminal Appeal confirms that an Intensive Correction Order (ICO) is not limited to an offender with an identified need for rehabilitation, for example due to a need to address a drug or alcohol problem. The judgment of the five-judge Bench in R v Pogson; R v Lapham; T v Martin [2012] NSWCCA 225 was handed down this week and states the law as it relates to the appropriateness of an ICO as a sentencing option.

All three respondents were sentenced for “white collar” offences in the District Court. Mr Pogson had pleaded guilty to knowingly making a false or misleading document lodged with ASIC contrary to section 1308(2) of the Corporations Act 2001 (Cth). While all three respondents, Messes Pogson, Lapham and Martin, pleaded guilty to concurring in the making of a false or misleading statement contrary to section 178BB of the Crimes Act 1900 (NSW). His Honour Garling DCJ sentenced each respondent to a term of imprisonment to be served by way of an ICO.

The Commonwealth Director of Public Prosecutions appealed the sentence on the grounds that: (1) the sentencing judge erred by the use of an ICO as such a sentencing option was not available due to there being no demonstrated need for rehabilitation; and (2) that the sentence was manifestly inadequate.

All five justices (McLellan CJ at CL, Johnson, Price, RA Hulme and Button JJ) rejected Ground 1 of the Crown’s appeal. McLellan CJ at CL and Johnson J (Price, RA Hulme and Button JJ agreeing) stated that:

“There is nothing in s.7 of the Sentencing Procedure Act which confines the imposition of an ICO to persons who have an identified need for rehabilitation, or of whom it can be positively said there is a risk of reoffending. Although obviously more lenient than a sentence of full-time imprisonment, the conditions imposed by an ICO will be an imposition of varying degrees of significance to an offender depending on his or her personal circumstances.”

Their Honours went on to say:

“By contrast to deterrence, rehabilitation has as its purpose the remodelling of a person’s thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen…

In this sense, every offender is in need of rehabilitation. Some may need greater assistance than others. It has been commonplace to speak of “paying your debt” to society. That phrase, in colloquial parlance, captures the essence of rehabilitation, enabling the offender to re-establish him or herself as an honourable member of the community.”

With regard to Ground 2, that the sentences were manifestly inadequate, their Honours stated that if they were sentencing at first instance they would have given a full-time custodial sentence to Messes Pogson and Lapham as the level of dishonesty was such that a lesser sentence was manifestly inadequate. However, their Honours declined to exercise their discretion to resentence the respondents.

An important aspect of the judgment is that it confirms that an ICO is not limited to an offender with an identified need for rehabilitation, for example due to a drug or alcohol problem.  In addition it states that, in some sense, all offenders are in need of rehabilitation. As a consequence provided that an offender is suitable for an ICO, that there are no legislative restrictions on the making of such an order, and provided that such a sentence is consistent with the purposes of sentencing, he or she may receive the benefit of this sentencing option.

Drug Possession – Are all drugs treated equally?

Posted by Justin Wong on 12 October 2012

The list of prohibited drugs under the Drug Misuse and Trafficking Act 1985 is extensive. Common drugs the subject of possession charges range from ecstasy, heroin, cocaine, amphetamines and cannabis. These drugs all have different community perceptions attached. For example, heroin is sometimes referred to as a “hard drug” in contrast to cannabis or even ecstasy.

Does the law draw any distinction between the different drugs for the purposes of sentencing? The quick answer is no.

In NSW,  penalties for drug offences increase depending on the quantity of the drug, not the type of drug. Quantities are grouped into categories.  For example (in ascending order) small; trafficking; indictable; commercial and large commercial quantities. For a supply charge, the penalty applicable increases as the quantity increases. See our table listing the various quantities HERE.

It is not for the court to grade different drugs on the perceived harm caused by each drug. R v Dang [2005] NSWCCA 430. See  also Adams v The Queen (2008) 234 CLR 143 which dealt with a Commonwealth offence.

However, the type of drug can have some influence on the seriousness of a matter. This is because the quantities for each drug  category vary. For example, the traffickable quantity of cocaine is 3 grams compared to ecstasy which is 0.75 grams.  Someone caught with 2 grams of cocaine is still well below the traffickable quanitity for that drug. However, someone with the same quantity of ecstasy is in possession of an amount more than twice the traffickable quantity. The quantity of the drug is an important factor in sentencing.

Additionally, in NSW possession of cannabis under 15 grams can be the subject of a formal caution by police rather than a charge. Accordingly, it is treated slightly differently than other drugs. However, once a possession charge is laid by police, even for cannabis, the penalties that apply are the same.

For more information on Possession of Drugs, please visit our page HERE

Twitter “trolls” and the law

Posted by Justin Wong on 19 September 2012

The frenzy following high profile cases of celebrities apparently under attack from so called “twitter trolls” has recently dominated the media. Robbie Farah, Charlotte Dawson, even the Prime Minister have all been mentioned.  The NSW Premier, Barry O’Farrell, has vowed to discuss “what can be done” with the Police commission and Federal Communications Minister.

But what are the current laws that might apply in the case of an individual who uses twitter, or other social media, to engage in so called “trolling” behaviour?

Use Carriage Service Offences

The most obvious offences are the use carriage service offences under the Commonwealth Criminal Code.  A “carriage service” is basically any service carrying communication by means of “electromagnetic energy”. For example communication over the internet or telephone.

Using a carriage service to threat to cause serious harm (s.474.15 Criminal Code 1995) carries a maximum penalty of 7 years imprisonment.  The less serious offence of using a carriage service to menace, harass or cause offence (s.474.17 Criminal Code 1995) carries a maximum penalty of 3 years imprisonment.

If the conduct involves a threat to kill, the maximum penalty rises to 10 years imprisonment.  Importantly, with the threat to kill offence under s.474.15, there must be evidence that the person who made the threat intended that the recipient fear that the threat would actually be carried out.

Proving this intention may be difficult in a twitter related matter where a user posts a comment for all to see. It is arguable that someone who posts an offensive message on twitter, where potentially thousands of people can view the message and also identify who made the comment, has no real intention of carrying out the threat or causing the recipient to fear it would be carried out. It is very different to a person making a private threat where the intention to cause fear might be more obvious.

Incitement

If a tweet goes beyond what might be viewed as a personal or direct threat, to something that urges other twitter users to commit an offence, there may be an argument that the twitter “troll” is guilty of incitement.

Incitement, under the Commonwealth Criminal Code for example, carries maximum penalties of up to 14 years imprisonment.  For this offence to be made out, there would need  to be some proof that the twitter “troll”, by their tweets, intended that the offence incited actually be committed.  Given the public nature of twitter, the offence of incitement may technically be available.

Threatening a Commonwealth Public Official

With twitter accounts almost standard for most members of parliament, the offence of threatening a Commonwealth public official may apply, section 147.2 of the Commonwealth Criminal Code.

It would still be necessary to prove that the “troll” made a threat to cause serious harm to a public official, and intended that the official feared that the threat would actually be carried out, or was reckless in this regard.  The maximum penalties for these offences range between 7 and 10 years imprisonment.

Stalk or Intimidate Offences

Finally, under  NSW Legislation, if the nature of the tweets were such that may cause the recipient to fear physical or mental harm, and it can be proved that it was the “troll’s” intention that the person fear that physical or mental harm, the offence of stalk or intimate under s.13 of the Crimes (Domestic and Personal Violence) Act 2007 may be available.  This offence carries a maximum penalty of 5 years imprisonment.

Generally

Whether or not criminal charges are available, or more importantly appropriate, will always depend on the circumstances surrounding each incident.  In addition to the difficulties proving these offences, as well as investigating and finding so called “trolls”, jurisdictional issues may also apply if the individuals  are outside Australia.

However, given the offences currently available, and wide scope and variability of social media, it is unlikely that any specific offence would be effective or appropriate.

The Defence of Provocation

Posted by Justin Wong on 31 August 2012

The partial defence of provocation has recently been in the spotlight following the current NSW Parliamentary Inquiry into its retention. It is referred to as a ‘partial defence’ because unlike ‘full defences’ such as self-defence, if successfully relied on, provocation reduces murder to manslaughter. It does not result in a full acquittal.

For information on how it operates, and when available, click our page on PROVOCATION.

On Sentence

Provocation, falling short of a defence, can also be a relevant factor on sentence under section 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999.

New Gambling Offences – Increased Penalties?

Posted by Justin Wong on 14 August 2012

The Sydney Morning Herald today reported that the NSW Government will introduce new laws establishing specific offences for “match fixing”, with maximum penalties of 10 years imprisonment.

Although a significant penalty, the current offence of Obtaining a Financial Advantage by Deception, section 192E Crimes Act 1900,  one the charges preferred in the recent NRL betting scandal, already attracts a maximum penalties of 10 years imprisonment.

Whether or not a specific offence, aimed at dishonest conduct in sport betting, will be treated more seriously by a court remains to be seen.

For the full article, see: http://www.smh.com.au/nsw/match-fixers-face-10-years-in-jail-under-new-laws-20120813-244sy.html

 

Is using your iPad whilst driving against the law?

Posted by Justin Wong on 02 July 2012

As iPads become more common and the number of “applications” multiply, they are increasingly becoming part of daily life. Apps relating to driving and navigation are also on the increase. The RTA has even released its “Live Traffic NSW” application which provides real time information about traffic and road conditions.

But what is the position in NSW with using iPads whilst driving. Surprisingly, it is not as clear as some might think.

Mobile phone use is clearly prohibited under Road Rule 300. Although “mobile phone” is not defined in the Road Rules, from a reading of Road Rule 300, which defines “use” to include  holding the phone near the ear, or writing or sending text messages, it is unlikely that an iPad would fall under the definition of “mobile phone”.

Is an iPad a visual display unit? 

Road Rule 299 prohibits the use of “a television receiver” or “visual display unit” whilst driving.  Helpfully, again there is no definition of “television receiver” or “visual display unit”.

This section was introduced into the Road Rules in 2008, more than 2 years before the first iPad hit the market.

The Macquarie Dictionary defines visual display unit as “a computer terminal which displays information on a screen”. The Oxford Dictionary is equally as instructive: “a device for displaying input signals as characters on a screen”.

Although there are arguments on either side, given the dictionary definitions, a cautious lawyer would probably advise that an iPad does fit under the definition of visual display unit, although like with most things in the law, there is a compelling argument to the contrary.

A Drivers’s Aid?

Regardless, there are some important exceptions provided in Rule 299. Specifically, the Rule does not apply if the visual display unit is, or is part of, a “drivers aid”. A driver’s aid includes navigational or intelligent highway and vehicle system equipment. This would almost certainly include the various maps or navigation applications. Consequently, proving the iPad was not being used for one of these purposes would be difficult (as opposed to the case of a mobile phone, where a police officer simply witnessing a driver holding up a phone to their ear would be sufficient).

Drive Manner Dangerous / Negligent Driving

Like most things, the case of R v Common Sense is a good indicator. Even if using an iPad is not explicitly prohibited under the Road Rules, it isn’t difficult to envisage a case where a driver is distracted using their iPad and then swerves or drives in a negligent or dangerous manner. Charges carrying significant penalties including  Drive Manner Dangerous or Negligent Driving occassioning GBH then become possible.

Disclaimer: This article is not legal advice and should not be relied on as legal advice. The information provided is the opinion of the author. You should seek individual legal advice about your particular matter and this information is not to be relied on. 

 

HIGH COURT DECISION ON RAPE WITHIN MARRIAGE

Posted by jamie.mclachlan on 03 June 2012

In the decision of PGA v The Queen [2012 HCA 21] the High Court of Australia has dismissed an appeal from the Full Court of the Supreme Court of South Australia which had held that a man could be guilty of raping his wife in 1963.

The appellant was charged in 2010 with two counts of rape alleged to have occurred in 1963 and placed on trial in the District Court of South Australia. The legislation under which the man was charged did not define the elements of the offence of rape but rather left the common law to determine what those elements were. A judge of the District Court stayed the trial and reserved for the determination of the Full Court a question of law, namely whether the offence of rape by one spouse of another was known to the law of South Australia in 1963. The Full Court held that a man could be guilty of the offence when the victim was his wife.

Before both the Full Court and the High Court the appellant argued that in 1963 a man could not be guilty of raping his wife because, by marriage, his wife had given her consent to sexual intercourse and could not retract her consent while they remained lawfully married. However, the majority of the High Court (French CJ, Gummow, Hayne Crennan and Kiefel JJ) rejected this argument and stated that by 1963 at common law a man could be guilty of a rape committed by him upon his wife and that marriage provided neither a defence to, nor an immunity from, a prosecution for rape.

The Court’s decision can be found at http://www.austlii.edu.au/au/cases/cth/HCA/2012/21.html

Ex DPP calls for drug law reform

Posted by Justin Wong on 01 June 2012

The previous NSW Director of Public Prosecutions, Nicholas Cowdery, has called for reforms the State’s drug laws, the Sydney Morning Herald has reported today.

This is not the first time lawyers, or even judges, have called for reform, but Mr Cowdery’s comments, as the former DPP, are significant.

It appears that his comments suggest a state regulated approach rather than full legalisation. This approach would see certain drugs supplied in a regulated manner in specified circumstances. Other advocates for reform have argued for increased discretion for those caught with small amounts of drugs for personal use, or even decriminalising minor personal drug use.

There is a delicate balance between regulating a trade which, whilst it remains illegal, currently provides huge incentives for individuals to trade in, and on the other hand limiting or controlling the access to potentially damaging drugs to the community.

One thing Mr Cowdery’s comments demonstrate is that it is possible to have certain personal views, but still approach the practice of law, and in his case, the Office of DPP, in an objective and professional way.

NEW LAWS PROPOSED TO RESTRICT UNDER AGE DRINKING IN THE HOME

Posted by Justin Wong on 28 May 2012

Reports today suggest the NSW Government is considering  amending the current laws to restrict the circumstances in which parents  can supply alcohol to minors.

THE CURRENT LAWS

Currently, the restrictions on providing alcohol to minors are provided for in the Liquor Act 2007.  In relation to  alcohol in the home, s.117(4) of the Liquor Act 2007 makes it an offence for a person to supply alcohol to a minor.  This makes it an offence to supply alcohol to a minor on any premises other than licensed premises. The maximum penalty is imprisonment for 12 months or a fine of $11,000.00.

It is a defence if the person supplying the alcohol is a parent or guardian of the minor, or importantly, if the person was authorised to supply the alcohol to the minor by the parent or guardian of the minor.  Section 114(4) and (5).  The “authorisation defence” is the subject of the NSW Premier’s current comments.

There is no definition of what constitutes an “authorisation”, however the Act requires that it is for the person charged to establish that they were authorised.  As it is an evidential burden, that burden is on the balance of probabilities.

THE CURRENT PROPOSALS

It is unclear what changes, if any, will be proposed.  It appears that the Premier has simply requested an inquiry be conducted by the NSW Parliament Social Policy Committee.  A report in today’s Sydney Morning Herald indicates that the Government may also consider a new offence specifically targeting those who allow under age drinking to occur in their premises.

Whether or not any new laws are proposed and enacted remains to be seen.  Even with new laws, there are obvious detection issues given that most supply the subject of these laws would occur in private premises.

However, this appears to be a response to the recent trend of evidence  indicating that providing alcohol to minors, even in moderation in the home, appears to be counter-productive and in fact leads to an increased likelihood of binge drinking and alcohol related problems at later ages.

13 year old jailed for people smuggling

Posted by Justin Wong on 21 May 2012

Reports in today’s media suggest an Indonesian male, jailed in Western Australia after conviction for people smuggling offences, was 13 when arrested and 14 when sentenced to jail.

The report in today’s Sydney Morning Herald refers to documents obtained by the Australian Federal Police from the Indonesian authorities indicating the male was 13 at the time of arrest. it also suggests the AFP  and Commonwealth Director of Public Prosecution were not satisfied the information contained in the document was accurate, and that the information was therefore not put before the court.

Mandatory Sentences

This report again focus attention on the mandatory sentences that apply to  people smuggling offences. Even if the court was of the view that the male was 18 at sentence, his youth would generally have been a powerful reason to depart from the normal ratio between the total sentence and the non-parole period. It may also have been a reason to significantly reduce the period spent in custody below the three year period. Here, the sentencing Judge was left with little discretion to take this mitigating factor into account.

The Sydney Morning Herald article can be viewed here. http://www.smh.com.au/national/he-was-13-years-old-when-australia-locked-him-in-an-adult-prison-for-people-smuggling-20120519-1yxfc.html

 

 

Restrictions on Bail Conditions – To impose or not to impose.

Posted by Justin Wong on 15 April 2012

In criminal proceedings in NSW, bail can be granted unconditionally or with conditions. The decision to first grant bail involves considerations provided for in section 32 of the Bail Act 1978. But what about the decision whether to impose conditions or grant bail unconditionally?

Section 37(1) of the Bail Act 1978 is clear that bail should be granted unconditionally unless the court, or police, is satisfied that one or more conditions should be imposed for the purpose of either:

  1. promoting effective law enforcement, or
  2. the protection and welfare of any specially effected person,or
  3. the protection and welfare of the community, or
  4. reducing the likelihood of further offences being committed or promoting the treatment or rehabilitation of the accused.

Just as important is the limit on bail conditions in section 37(2) which restricts conditions being imposed that are more onerous than required having regard to the nature of the offence, the protection and welfare of a specially affected person, or the community.

The scope of these considerations is wide, but they are very important restrictions. The default position under the Bail Act 197 is that bail should be granted unconditionally unless otherwise satisfied. Conditions should not be imposed purely to ensure that an accused attends court, although recently in Lawson v Dunlevy [2012] NSWSC 48, ensuring an offender appears in court was held to fall under the promotion of “effective law enforcement” consideration.

Dunlevy was an important reminder that any condition must only be imposed if it can be supported by one of the section 37(1) considerations. In Dunlevy, the court struck down a bail condition that required an accused to submit to a breath test when requested by a police officer. The Court held that this condition went more to deterring a person from committing a breach rather than protection and welfare of the community, which related to protection from committing further offences, threats or violence against an identified individual.

Importantly, it held that other than the court’s capacity to reconsider bail under section 50 if a breach is alleged, it is not for the court to impose conditions on bail to encourage or ensure compliance with bail.

This is an important distinction and one that must be considered when any bail condition is sought or proposed.

Thompson Matter Referred to CDPP – The Decision to Prosecute

Posted by Justin Wong on 03 April 2012

It has been reported today that Fair Work Australia will refer matters arising from its investigation into the Health Services Union to the Commonwealth Director of Public Prosecutions.

The Sydney Morning Herald has reported that Fair Work Australia’s general manager, Bernadette O’Neill stated that she is satisfied that there are matters raised from their report that are appropriate for the DPP’s consideration.  She also notes that it is a matter for the DPP whether any particular criminal conduct can be established.

The Commonwealth Director of Public Prosecutions, like the NSW Director of Public Prosecutions, is responsible for the initiation and then conduct of Federal or Commonwealth criminal prosecutions.  The test it applies when deciding whether to initiate a criminal prosecution is two-fold:

  1. Is there a prima facie case and if so, are there reasonable prospects of a conviction for a criminal offence?
  2. If so, is it in the public interest to prosecute the matter.

The first determination involves considerations of evidence, being the strength of that evidence and whether it supports a finding that a criminal offence(s) has been committed.

The second consideration, the “public interest test”, involves considering a number of factors including the seriousness of the offence, the need for general deterrence, whether or not the prosecution would be perceived as counterproductive, and whether or not the alleged offence is of considerable general public concern.  There are other factors that also apply.

At this stage it is unclear what offences, if any, it is suggested may have been committed.  The fact that the matter has been referred to the Commonwealth Director of Public Prosecutions suggests that Commonwealth or Federal offences may have been committed, potentially arising out of the contraventions of workplace laws identified in the report.

It remains to be seen whether the CDPP will initiate criminal proceedings and whether that decision depends on the strength of any available evidence, whether a view is held that any criminal offence has actually been committed, or whether the public interest considerations dictate that charges are, or are not, laid.

Is Agreement Enough? Conspiracy and Drug Importation

Posted by Justin Wong on 22 March 2012

Conspiracy in the criminal law can sometimes make an agreement, and then acts undertaken in pursuant to that agreement, criminal. This can be the case even though the intended offence was never in fact committed.

For drug importation, Commonwealth Law applies. The offence of conspiracy under s 11.5 the Criminal Code (Cth) comprises of the following elements:

(a)    the person must have entered into an agreement with one or more other persons; and

(b)   the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

(c)    the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

In R v LK; R v RK [2010] HCA 17, the High Court held that the Crown may charge an offence of conspiracy to commit an offence of recklessness, but only where the Crown can establish that the accused had actual intention of knowledge when entering into the agreement. In other words, whether or not the fault element of the full offence is intention or recklessness, for the charge of conspiracy, intention to commit the full offence is required.

For the full offences of importing border controlled drugs, the following must be established by Crown:

(a)    the person imports a substance

  • Physical Element   –conduct of importing a substance
  • Fault Element – intention of importing a substance

(b)   the substance is a border controlled drug

  • Physical Element   – circumstance that the substance is a border controlled drug
  • Fault Element – recklessness as to whether the substance was a border controlled drug

For the offense of conspiracy to import border controlled drugs, following R v LK, the Crown must established the following:

(a)    Entered into an agreement

  • Physical Element   –conduct of entering into an agreement
  • Fault Element – intention of entering into an agreement

(b)   With an intention to commit an offence

  • Fault Element – knowledge of the circumstance which makes the conduct an offence, which is that (a) a substance is to be imported, and (b) that the substance is a border controlled drug

(c)    Someone committed an overt act

  • Physical Element   – conduct an overt act pursuant to the agreement
  • Fault Element – intention of committing an overt act pursuant to the agreement

That is, the knowledge that a substance is to be imported, and that this substance is a border controlled drug, is a necessary requirement to prove that a person intentionally entered an agreement to commit the offence of importing border controlled drugs.

See our section on DRUG IMPORTATION  and COMMONWEALTH CRIMINAL LAW  for more information.

A CRIMINAL CONVICTION AND IMMIGRATION IN AUSTRALIA

Posted by jamie.mclachlan on 19 March 2012

A frequent question that clients often ask is whether a conviction for a criminal offence will jeopardise their chance of staying in Australia.

The law requires that all non-citizens must be assessed against the character requirement. This law is administered by the Department of Immigration and Citizenship.

The character requirement is defined in section 501 of the Migration Act 1958 (Cth). This section provides for a character test to ensure that visa applicants are of good character. The onus is on the person to show that they are of good character.

A person will not pass the character test if:

  • they have a substantial criminal record
  • they have been convicted of any offence while in immigration detention
  • they have an association with an individual or group suspected of being involved in criminal conduct
  • that having regard to the person’s past and present criminal conduct, the person is found not to be of good character
  • that having regard to the person’s past and general conduct the person is found to be not of good character
  • there is a significant risk that the person will engage in criminal conduct in Australia

A person is deemed to have a “substantial criminal record” if they have been:

  • sentenced to either death or life imprisonment
  • sentenced to a term of imprisonment for 12 months or more
  • sentenced to two terms of imprisonment where the total where the total of those terms is two years or more
  • acquitted of an offence on the grounds of either unsoundness of mind or insanity and as a result was detained in a mental
    institution.

If a person does not pass the character test the Department of Immigration and Citizenship will exercise their discretion and decide whether to refuse the person’s application.

If the person fails the character test the person normally has a right to have that decision reviewed by the Administrative Appeals Tribunal (AAT). A person may also seek judicial review of the decision if they believe that decision was not lawfully made.

For more information about criminal offences generally see our page HERE.

Good Behaviour Licences Being Considered

Posted by Justin Wong on 12 March 2012

The NSW Attorney General has today raised the prospect of good behaviour licences as another option for drink driving offenders.

As it stands now, only if an offender is dealt with under “Section 10” and not convicted can they avoid a period of disqualification. The proposal, although vague, would allow a magistrate to convict someone, but allow them to drive on a good behaviour licence. This is similar to the approach in other States including Queensland and the ACT.

It appears from the NSW Sentencing Council’s report that magistrates are “harder than ever” on drink driving, but there is a recognition that greater flexibility is warranted in sentencing offenders who drink and drive.

For the Attorney General’s Media Release, click HERE.

DRUG COURT – HOW DOES IT WORK?

Posted by Justin Wong on 08 March 2012

The Drug Court is a diversionary program for drug-dependent offenders who are facing a likely sentence of imprisonment. An application for a referral to the Drug Court Program can be made by a range of people, including the offender themselves and their lawyers.

See our new page on the DRUG COURT for a complete explanation.

What is the MERIT Program?

Posted by Justin Wong on 17 February 2012

The Magistrates Early Referral Into Treatment Program (MERIT) is a diversionary program based in selected NSW Local Courts. It provides an opportunity for eligible defendants with drug or alcohol problems to work towards rehabilitation as part of the bail process. Click HERE for our new page which explains MERIT, how it operates and when it can apply.

Forum Sentencing Explained

Posted by Justin Wong on 14 February 2012

Forum Sentencing is a new sentencing option operating at selected NSW Local Courts. In certain circumstances, it allows eligible offenders who are facing a likely sentence of imprisonment to instead complete an Intervention Plan in the community. Click here for our summary on FORUM SENTENCING.

Police Seize over 25kg of Drugs

Posted by Justin Wong on 10 February 2012

The NSW Police have reported the seizure of what they claim is over 25kg of drugs in Artarmon this week.

According to the Sydney Morning Herald, a man has been charged with 2 counts of supplying a large commercial quantity of prohibted drugs. Supply of a large commercial quantity carries a maximum penalty of life imprisonment, with a standard non-parole period of 15 years. Accordingly, it is one of the most serious offences on the criminal calender.

http://www.smh.com.au/nsw/drugs-worth-25m-seized-in-sydney-20120210-1s6lo.html

Criminal Case Conferencing not continuing – Will things change?

Posted by Justin Wong on 30 January 2012

The NSW Government has announced that it will not extend the Criminal Case Conferencing trial that had been operating  in the Downing Centre and Central Local Courts, the Sydney Morning Herald has reported.

The NSW Bureau of Crime Statistics  found no real evidence that the trial was resulting in an increase in early guilty pleas, the main objective of the scheme.

The scheme provided for a timetable to be set down in the Local Court before a matter was committed to the District Court, which included a timetable for a conference between the DPP and defence. The scheme also mandated minimum and maximum discounts at sentence for pleas of guilty, with the discount varying on when the plea of guilty was entered (before or after committal for example).

With practitioners acutely aware of their responsibilities to their client, despite the scheme not continuing, it is likely that practitioners on both sides will continue to discuss matters before committal, and resolve matters where possible. Even without the scheme, the timing of a plea of guilty will of course always be reflected in the actual discount given to an offender at sentence, in accordance with the common law, and remain a significant matter to advise on when a client is deciding how to proceed.

For the full Sydney Morning Herald Article: http://www.smh.com.au/nsw/back-to-the-drawing-board-smith-says-as-trial-scheme-fails-to-clear-courts-backlog-20120129-1qo2d.html

Sniffer Dogs and Music Festivals in the Media

Posted by janelle.tarabay on 27 January 2012

Sniffer dogs again in the media, with the ABC’s ‘Hack’ program airing an interesting program on the subject:

http://www.abc.net.au/triplej/hack/stories/s3415816.htm

See also our recent posts http://www.streetoncriminallawyers.com.au/sniffer-dogs-and-music-festivals-%E2%80%93-possess-and-supply-charges/ and our page on Possession of Drugs http://www.streetoncriminallawyers.com.au/criminal-law/drugs/drug-possession/

STREETON CRIMINAL LAWYERS ADDS FEDERAL CRIMINAL LAW WEBPAGE

Posted by Justin Wong on 24 January 2012

Streeton Criminal Lawyers has added a new page to its website covering Commonwealth or Federal Criminal Law. The page can be accessed at:

http://www.streetoncriminallawyers.com.au/criminal-law/other-offences/commonwealth-federal-offences/

Federal or Commonwealth offences involve very specific rules and legislation, and cover offences ranging from Centrelink Fraud through to Drug and Customs Importation Offences, Corporations Offences, People Smugglng and Terrorism offences.

It is anticipated that information for the public as well as the legal profession will be added to the page gradually, utilising Streeton Lawyers unique experience in Federal Criminal Law.

Justin Wong speaks about Accredited Specialisation

Posted by janelle.tarabay on 12 January 2012

Justin Wong, one of the Partners at Streeton Lawyers, was recently interviewed by the Law Society about the process of being an Accredited Specialist and how it is highly regarded within the area of Criminal Law. See below link:

http://tv.lawsociety.com.au/video/More+Videos/1/210812

Specialist Accreditation in Criminal Law is a nationally recognised mark of distinction, governed by the Law Society of NSW. There are only approximately 150 Accredited Specialists in Criminal Law in the State of New South Wales.

An Accredited Specialist in Criminal Law is a solicitor who has demonstrated proficiency in criminal law and is so recognised by their fellow solicitors. To qualify for Specialist Accreditation a solicitor must have practised law for at least five years and worked in the criminal law for at least three years. To gain Specialist Accreditation a solicitor must pass a series of rigorous assessments in communication, problem solving, client relations and the law.

DRUG CHARGES AT FIELD DAY 2012

Posted by jamie.mclachlan on 02 January 2012

NSW Police have reported that they have arrested and charged more than 100 people at Field Day 2012 with drug offences such as drug supply and drug possession. This was part of a crackdown launched by Police on drug offences at Field Day 2012 and involved the use of officers and drug dog handlers.

Field Day is a dance festival that was held on New Year’s Day in The Domain in Sydney. It was attended by more than 19,000 people.

Police reported that 112 people were charged with drug offences which included supplying a prohibited drug and possessing a prohibited drug. The types of drugs seized by Police included MDMA (ecstasy), amphetamine, cocaine, LSD and cannabis.

Police reported the following incidents:

  • A 19 year old woman was charged with supplying ecstasy after 40 tablets were found in her possession;
  • A 22 year old man was charged with supplying ecstasy after 23 tablets were found in his possession.

Those charged are required to appear in court at a later date.

Charges of drug possession and drug supply are regarded by the Courts as serious criminal offences and, if proved, often result in a criminal conviction. Both drug possession and drug supply carry a maximum penalty of a gaol term.

Police lay 67 charges on New Years Eve in Sydney – Possible laser pointer offence

Posted by Justin Wong on 31 December 2011

As a result of police Operation ‘Vela’, which involved more than 2,800 police officers, people arrested 57 people and laid 69 charges, the Daily Telegraph reports. The Daily Telegraph also reports that a person was caught by police attempting to point a laser at a police helicopter.

The full article can be viewed here: http://www.dailytelegraph.com.au/news/sydney-throws-a-party-as-new-year-2012-arrives/story-e6freuy9-1226234072630

There are a number of potential charges for someone caught with a laser pointer.

Section 11FA of the Summary Offences Act 1988 makes it an offence to simply be caught in possession of a laser pointer in a public place without reasonable excuse, or use that laser pointer without reasonable excuse. This offence carries a substantial maximum penalty of 2 years imprisonment. A reasonable excuse can include having it in possession where it is reasonably necessary for the lawful pursuit of a persons occupation, education, training or hobby.

A laser pointer is also defined in the Weapons Prohibition Act  1998 as a “prohibited weapon” and possession of a prohibited weapon under section 7 of the same act carries a maximum penalty of 14 years imprisonment (when dealt with in the District Court). Accordingly, it is an extremely serious offence.

For more information of POSSESSION OF A PROHIBITED WEAPON and penalties, view HERE.

 

 

DOUBLE DEMERIT POINTS OVER THE CHRISTMAS/NEW YEAR PERIOD

Posted by jamie.mclachlan on 29 December 2011

Double demerit points apply to all speeding, seatbelt and motorcycle helmet offences from Friday, 23 December 2011 to Monday, 2 January 2012.

The Demerit Points Scheme is a national program that allocates demerit points for a range of driving offences.

A person with an unrestricted licence who has accumulated 13 points within a three year period will have their licence suspended. A person with a P2 licence will have their licence suspended with the accumulation of 7 points while someone with a P1 licence will have their licence suspended after incurring 4 points.

If a person reaches or exceeds the demerit point limit of their licence they will receive a Notice of Suspension from Roads and Maritime Services (which is the organisation that replaced the RTA) advising them of the length of their suspension and when that suspension will commence.

The period of suspension for a person with an unrestricted licence depends upon the number of demerit points incurred within a three year period. If:

  • The person incurs 13 to 15 points in a three year period they will be suspended for three months;
  • The person incurs 16 to 19 points in a three year period they will be suspended for four months;
  • The person incurs 20 or more points in a three year period they will be suspended for five months.

The period of suspension for provisional licence holders is three months.

Between 23 December 2011 and 29 December 2011 (the first six days of Operation Safe Arrival) NSW Police have issued 11,988 infringements for speeding and other traffic offences. Many of these offences would be subject to double demerit points.  Examples of offending behaviour provided by the Police include:

  • A 46 years old man stopped at Blacktown with two children (one aged two years and the other 11 months) unrestrained in the vehicle;
  • A 29 year old man travelling at 120 km/h in a 60 km/h zone at Drummoyne;
  • A 24 year old man driving at Erina with a suspended P1 licence driving with a blood alcohol reading of 0.204;
  • A 43 year old woman driving at Coffs Harbour with a blood alcohol reading of 0.226;
  • A P1 licence holder travelling at 141 km/h on the Hume Highway at Goulburn;
  • An unaccompanied 19 year old L-plater driving at 146 km/h at Helensburgh.

POSSESSION OF DRUGS – MUSIC FESTIVALS – DOES PURITY MATTER?

Posted by Justin Wong on

People caught with the possession of drugs such as ecstasy, amphetamines or cocaine are often caught with varying quantities.  With ecstasy, for example, the quantities can vary from one pill through to 10 to 20 pills.  But does the purity of the actual drug as opposed to the total quantity matter in the eyes of the law?

Under NSW law, the relevant quantity of the drug is the gross weight.  In other words, the total weight including the drug and any “add mixtures”.  This is different to Commonwealth or Federal criminal drug law where the relevant quantity of the drug is the pure weight.

However, even in NSW, the purity of a drug can still be a relevant factor at sentence.  It has been held that where the purity of a drug was unusually high, this can make the offence of supplying more serious.  See R v Shi [2004] NSWCCA135.

The purity of a drug is also relevant in defences for deemed supply.  As detailed in our previous article, it is a defence to deemed supply if a person can establish that the drugs were for their own use.  If the purity of the drug is low, then a Court may more easily accept that the possession of a larger quantity was for someone’s own use.

For more information on possession of drugs and PENALTIES, see Possess Drugs. For more information on supplying drugs, see Supply Drugs.

COURT DISMISSES RSPCA PRIVATE PROSECUTION

Posted by Justin Wong on 20 December 2011

A Magistrate yesterday dismissed  proceedings against the NSW President of the RSPCA, Peter Wright, alleging animal cruelty. Media reports indicate that a private citizen had initiated proceedings against Mr Wright.

PRIVATE PROSECUTIONS IN NSW

Any person in NSW can potentially bring a private prosecution against another for a criminal offence. Sections 14 and 49 of the Criminal Procedure Act 1986 provides for the commencement of private prosecutions. However there are some important restrictions.

  1. The court attendance notice must first be signed by a registrar and the registrar cannot sign the notice if a) the notice does not disclose the grounds for the proceedings; b) it is not in the form required; or c) the rules provide that it should not be issued.
  2. The Local Court Rules provide that a registrar must not sign a court attendance notice for a private prosecution if they believe the proceedings are “frivolous, vexatious, without substance or have no reasonable prospects of success”.

In Mr Wright’s case, there was another important restriction. Under s.34AA of the Prevention of Cruelty to Animals Act 1979, proceedings for an offence under that Act can only be instituted by a person with the written consent of the Minister of the Director General. It appears here that the consent had not be given.

The Director of Public Prosecutions (DPP) also has the authority to take over any prosecution of a criminal offence initiated by a person other than the DPP. Section 9 of the DPP Act. This means that, in certain circumstances, the DPP could potentially take over and then terminate vexatious or frivolous prosecutions initiated by an individual.

HIGH COURT RULES ABUSE OF PROCESS AND STAYS PROSECUTION OF JULIAN MOTI

Posted by Justin Wong on 07 December 2011

The High Court of Australia has overturned a decision of the Queensland Court of Appeal and ordered that the prosecution of the former Attorney General of the Solomon Islands, Julian Moti, be stayed as an abuse of process. The charges related to an allegation of sex with a person under 16 in Vanuatu and New Caledonia.

Australian authorities had issued a warrant for Mr Moti’s arrest in Brisbane in late 2007. At that time, Mr Moti was in the Solomon Islands.  Although Australian authorities  initially went to great lengths to have no involvement in the Solomon Islands decision to “deport”  Mr Moti,  when the Solomon Islands eventually decided to deport Mr Moti, the Australian Government assisted them by issuing a travel document for Mr Moti as well as visas for  two Solomon Island officials who accompanied Mr Moti on a plance from the Solomons to Autralia.  This was despite the Australian Government being aware that the deportation was not legal because Mr Moti had 7 days to appeal the decision to deport him before he could physically be deported.

In holding the actions of the Australian Government in assisting the unlawful deportation was an abuse of process, the High Court noted:

  1. It was a requirement to have Mr Moti tried for the offences that be be brought before a court, here the Supreme Court of Queensland
  2. Were Mr Moti to have been extradited according to law, an issue may have arisen in relation to the question of “double criminality”
  3. The concept of abuse of process extends to the use of a court’s processes in a way inconsistent with the administration of justice, ensuring that the court’s processes are used fairly by State and citizen, and used in a way to ensure that public confidence is not eroded, leading to oppression or injustice.

Because Australian officials knew that the deportation was not lawful, and because despite knowing that, Australian officials facilitated the unlawful deportation, the High Court held that continuing proceedings against Mr Moti would be an abuse of process and the proceedings should be permamntly stayed.

This is a significant decision and should act as a reminder to government and investigating officials that even assisting (as opposed to executing) an action that is unlawful can have significant ramifications at a later stage.

The full decision can  be read at: http://www.austlii.edu.au/au/cases/cth/HCA/2011/50.html

EXPERT QUESTIONS FOLBIGG CONVICTIONS

Posted by Justin Wong on

Recent media reports indicate a Canadian academic, Dr Emma Cuncliffe, has questioned some of the evidence relied on by the Crown in the 2003 trial of Kathleen Folbigg.

Folbigg was convicted by a jury of manslaughter, the intentional infliction of grievous bodily harm, and 3 counts of murder. As part of the Crown case, it relied on the evidence of each individual child’s death to prove she harmed the other children. In other words, because of the improbability of the individual deaths occurring coincidentally, in addition to other evidence, the Crown claimed this proved that Folbigg murdered or intentionally harmed the children.This is known as “coincidence evidence”.

One of the experts who gave evidence at the trial concluded that the probability of 4 children in one family dying from SIDS was “infintesimally small” and this partly formed the basis of the trial judge ruling that the coincidence evidence was admissible (a decision which was upheld on appeal by the Court of Criminal Appeal).

It appears that Dr Cuncliffe has attacked the expert evidence in so far as it claimed there could be no other explanation for the four deaths. She also makes reference to the diaries kept by Folbigg which were also relied on at the trial by the Crown.

For the full media report, see:

http://www.smh.com.au/national/bad-evidence-convicted-folbigg-of-killing-children–academic-20111204-1odjg.html

OVER-REPRESENTATION OF WOMEN IN CENTRELINK FRAUD

Posted by jamie.mclachlan on 29 November 2011

The Centrelink Annual Report for 2010-11 reveals that Centrelink referred 1273 cases to the Commonwealth Director of Public Prosecutions (CDPP) to consider prosecution for a criminal offence. This was significantly less than the year 2009-2010 in which 4608 cases were referred to the CDPP.

A study by the University of Wollongong has found that women are more likely to be convicted of social security fraud than men. The study, “Centrelink Prosecutions at the Employment/Benefit Nexus”, looked at cases of social security fraud that were brought to the court at Wollongong. It found that 57 per cent of the defendants were women. This is a significantly greater proportion than other areas of the criminal law, in which women make up only 21 per cent of all defendants.

The study also found that the majority of cases involved individuals between the ages of 36 and 40 years, the majority of the people had a debt to Centrelink of less than $10,000, and for criminal matters the most common area of employment was the hospitality industry.

The study found that the type of benefit that the offender was receiving was most likely to be Parenting payments (single and partnered) at 40 per cent of all defendants in the study group, Newstart allowance at 38 per cent, Disability allowance at 12 per cent, other allowances at 6 per cent and Youth allowance at 4 per cent.

The study found that 58 per cent of offenders received a good behaviour bond, 26 per cent a community service order and 16 per cent imprisonment.

Further information about the study can be found here: http://media.uow.edu.au/releases/UOW112410.html

Occupy Sydney Arrests – Resisting Police and Unlawful Arrest – “In the execution of duty”?

Posted by Justin Wong on 03 November 2011

News reports indicate that three protesters taking part in the Occupy Sydney movement were yesterday charged with offences including resisting arrest and offensive behaviour.

The offence of resisting an officer in the execution of his or her duty, sections 58 or 546C of the Crimes Act 1900, is a serious offence carrying between 12 months and  5 years imprisonment.

For someone to be found guilty, there must be some resistance but also the police must have been acting in the execution of their duty.

 What is “in the execution of his or her duty”?

Perhaps the best summary appears in Re K (1993) 118 ALR 596, where the Full Bench of the Federal Court [at 340] said:

“…a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty to as to cease the be acting therein”.

Power of Arrest

The power of arrest can be exercised by police in limited circumstances only. Additionally, section 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 restricts the lawful use of force by a police officer to that force that “is reasonably necessary to exercise [the] function”. When an officer attempts to arrest someone without any legal justification, the officer is not embarking upon a lawful task connected with his functions as a police officer and is not acting in the execution of his duty.

Whether there was any legal justification for an arrest will depend on the facts. But if there was no legal justification, even if a person was resisting police, unless the police were acting in the execution of their duty, the offence has not been made out and the charges should be dismissed.

High Court Upholds Centrelink Decision in Poniatowska

Posted by Justin Wong on 27 October 2011

The High Court of Australia yesterday rejected the Crown’s appeal against the decision of the South Australian Supreme Court overturning a conviction for Centrelink Fraud.

The earlier South Australian Supreme Court decision of Poniatowska had held that under the most commonly charged Centrelink Fraud offence, merely omitting or failing to declare employment income without any specified legal obligation to declare that income was not sufficient to satisfy the charge.  A change in circumstances can include a change in income or living arrangements.

As reported in an earlier article, the Federal Goverment amended the Social Security Act to deal with the Supreme Court’s decision. Yesterday, Justice Heydon of the High Court was scathing in this regard and said:

“It is common for the decisions of courts to be reversed by the legislature after they have been delivered. It is less common for this to take place even before they have been delivered. Yet the legislature has got its retaliation in first in relation to this appeal. In those circumstances it is desirable that this dissenting judgment be as brief as possible”.

The uncertaintity that followed the South Australian decision resulted in many Centrelink Fraud prosecutions being delayed or discontinued. Now that the High Court has given its ruling, and the amending legislation is law, it remains to see what will happen with the prosecutions withdrawn over the past 12 months.

Drug supply and “deeming” – When quantity matters

Posted by Justin Wong on 24 October 2011

When a person is caught in possession of a drug in excess of the traffickable quantity, the prosecution can rely on the quanitity of drug to prove that the drugs were for supply. This is  “deemed supply”.

The important quantity in what is called the “traffickable quantity”. For ecstasy, the traffickable quantity is surprisingly low at 0.75grams. This means that potentially someone caught with as few as 5 ecstasy pills for example could be charged with deemed supply. Supply carries a maximum penalty of 15 years imprisonment. See SUPPLY for more information.

The relevant quantity of the drug is the gross quantity or the total weight including any admixtures. This is different to federal or commonwealth criminal law where the relevant quantity is the pure quantity of the drug.

Just because someone is caught with drugs in excess of the traffickable quantity, and then charged with deemed supply, that does not mean that they have committed a supply. It is an evidential provision. In other words, the deeming provisions assists the prosecution in proving supply. If a person can prove that the drugs were for another purpose, for example for their own use, that is a full defence to deemed supply.

Although it is still a matter for the prosecution and their discretion whether to charge someone with supply, with traffickable amounts being as little as 0.75 grams for ecstasy and 3 grams for cocaine, the number of people who find themselves potentially facing charges of  supplying a prohibited drug will continue to be significant.

FAILING TO LODGE TAX RETURNS AND CRIMINAL CHARGES

Posted by jamie.mclachlan on 19 October 2011

It is the time of year when tax returns for the tax year ending 30 June 2011 are due to be lodged with the Australian Taxation Office (ATO). Not everyone is required to lodge a tax return but for those that are it must be lodged with the ATO by 31 October 2011. If a person is registered as a client with a tax agent it may be lodged later. It is estimated that almost 80 per cent of Australian tax payers use a tax agent or accountant to complete their return.

In order to complete a return a person will need to have a tax file number as well as their financial records for the tax year. Individuals may gain some assistance to complete their return from the TaxPack – which is a booklet published by the ATO.

If a return is not lodged on time a penalty may be imposed by the ATO. This is currently $550.

Failure to lodge a return can result in criminal charges, a criminal record and even a jail sentence.

The maximum penalties for not filing a return after the Commissioner of Taxation has directed that a return be filed are significant. For a first offence the maximum penalty is a fine of $2,200 and for a second offence a fine of $4,400. If the person has previously been convicted of two relevant offences the maximum penalty is a jail term and a fine of $5,500.

For further information see our page on Failure to Lodge a Tax Return.

Drink Driving – Delay in Being Tested

Posted by Justin Wong on

In most cases, a driver who has been charged drink driving was first detected at the roadside. A breath test is conducted using a hand held machine. If positive, the driver is arrested for the purposes of a further more accurate breath test being conducted.

The second test is sometimes conducted at a police station, but more frequently it is conducted by the roadside in purpose built buses within minutes of being pulled over. The results from the second “breath analysing” machine form the basis of a “Certificate”, signed by the police officer operating the machine. That Certificate is relied on as  evidence that the driver had the blood alcohol reading police allege.

But what is the situation when the second test was conducted some time after the person was driving?

A police officer cannot require someone to undergo a breath test or submit to a breath analysis once 2 hours has passed since the driving. If the test is performed after 2 hours, there may be an argument that the evidence was illegally obtained and should be excluded as evidence. See section 138 Evidence Act 1995.

Additionally, Section 32 of the Road Transport (Safety and Traffic Management) Act 1999 provides that the concentration of alcohol at the time of driving is taken to be the concentration of alcohol present in the persons breath or blood at the time of the test IF the test was conducted within 2 hours of the driving. If the test was performed after 2 hours, there is also an argument that the Certificate police rely on is no longer prima facie evidence of the blood alcohol level.

These restrictions exist to ensure that results taken after a person is driving are as accurate as possible. Remember, the offence is driving, or attempting to drive, a motor vehicle with the prescribed concentration of alcohol. The tests conducted after driving assist police in proving what the actual concentration was at the time of driving. The longer the delay, the less accurate these tests are likely to be and the less certain a court can be that the alcohol level was at the limit alleged.

Update: On 1 July 2013 the Road Transport Act 2013 was introduced replacing the Road Transport (Safety and Traffic Management) Act 1999. Section 32 referred to above is now  provided for in clause 31(3) of Schedule 3 to the new Road Transport Act 2013. 

Appealing a Good Behaviour Licence Suspension

Posted by Justin Wong on 18 October 2011

One of the most common traffic law questions asked is whether anything can be done when someone breaches their Good Behaviour Drivers Licence. Unfortunately, in most cases, the answer is very little.

Good behaviour drivers licences are available in NSW to a person who has incurred their full amount of demerit points. Rather than accepting the 3 month suspension, a licence holder can elect to take up a good behaviour licence for a period of 12 months. If they commit any demerit point offences (minimum of 2 demerit points) during that 12 months, they are suspended for twice the period, 6 months.

Importantly, once a person breaches the good behaviour licence by incurring demerit points, that decision cannot be appealed and the RTA “must” suspend the licence.

The only way to avoid a suspension is if the demeirt points are not incurred. This is possible if the matter is heard in court and the court decides to deal with your matter under section 10 of the Crimes (Sentencing Procedure) Act 1999 or if you are found not guilty of the offence. However, for most people who are on a good behaviour licence their traffic record is lengthy which makes an order under section 10 difficult.

Streeton Lawyers Obtain Specialist Accreditation in Criminal Law

Posted by jamie.mclachlan on 13 October 2011

Streeton Lawyers are pleased to announce that partners Justin Wong and Jamie McLachlan have each been recognised as an Accredited Specialist in Criminal Law by the Law Society of New South Wales.

Specialist Accreditation in Criminal Law is a nationally recognised mark of distinction. There are only approximately 150 Accredited Specialists in Criminal Law in the State of New South Wales.

An Accredited Specialist in Criminal Law is a solicitor who has demonstrated proficiency in criminal law and is so recognised by their fellow solicitors. To qualify for Specialist Accreditation a solicitor must have practised law for at least five years and worked in the criminal law for at least three years. To gain Specialist Accreditation a solicitor must pass a series of rigorous assessments in communication, problem solving, client relations and the law.

Both Justin and Jamie look forward to using the Specialist Accreditation to assist all of their current and future clients.

Sniffer Dogs and Music Festivals – Possess and Supply Charges

Posted by Justin Wong on 30 September 2011

As the annual music festival season kicks off this weekend with the Parklife Festival, it is expected there will be a large number of charges for drug related offences over the coming months.

The typical person charged with possession of a prohibited drug is young and has never before been in trouble.  In recent years, with police almost routinely attending music festivals in large numbers with sniffer dogs, more and more young people are finding themselves facing the prospect of a criminal record, and in more serious cases, the prospect of jail.

The Parklife Musical Festival, this weekend in Sydney, is one of the largest music festivals touring Australia.  So what are the important points someone charged with possession or supply of a prohibited drug should know:

  • The maximum penalty for possession is 2 years imprisonment. For supply it is between 15 years and life imprisonment.
  • The more drugs the more serious the offence.
  • A large quantity of drugs (above the traffickable quantity) may mean that the police will consider charging you with supply.
  • The police will often weigh drugs in the bag they were found.  If this dramatically increases the total weight, in certain circumstances you can request the drugs be weighed again.
  • A criminal conviction for possession or supply may mean that you are unable to travel to certain countries including the United States.

In the days that follow, those charged with drug offences are often left considering the lasting ramifications of their actions, including a criminal record.  It is open for the court not to record a conviction under Section 10 of the Crimes (Sentencing Procedure) Act 1999, however this will depend on your record as well as the quantity of drugs involved.  It will also depend on whether the court is of the opinion that you have demonstrated remorse and will not reoffend.

Music Festival Drug Charges – 42 arrested at Parklife

Posted by Justin Wong on 25 September 2011

The Herald Sun has reported that 42 people were yesterday arrested for possession of drugs at the Parklife Festival in Victoria.

The article highlights one of the key differences between NSW and Victorian drug law enforcement. The Victorian cautioning scheme allows for a diversion to counselling, without charge, of anyone caught with 3 tablets or less, or less than 50 grams of cannabis. In NSW, there is the cannabis cautioning scheme, which only covers those caught with under 15 grams of cannabis. Although police still retain a discretion whether to charge, in NSW those caught with 1 ecstasy tablet, even with no criminal record, are commonly charged with possession of a prohibited drug leaving them liable to 2 years imprisonment and the prospect of a criminal conviction.

http://www.heraldsun.com.au/news/more-news/drug-dogs-sniff-out-42-at-parklife-music-festival/story-fn7x8me2-1226145347559

Home invasion and self-defence in NSW

Posted by Justin Wong on 24 September 2011

The recent death of Azzam Naboulsi, who it appears was stabbed to death by the occupant of the house he was attempting to rob, has re-opened discussion about how far residents can go to when confronted by a home invader.

Firstly, it remains unclear exactly what happened in Donald Brooke’s home just before Azzam Naboulsi was stabbed. The circumstances surrounded the death will  be critical in determining whether any charges are laid against Mr Brooke. Without the facts, or even the allegations, drawing conclusions at this stage is dangerous. But, generally, how does the legal concept of self-defence apply in NSW?

Self-defence in NSW is a statutory defence (provided for in legislation), with sections 418 to 423 of the Crimes Act 1900 governing its application. See SELF DEFENCE for more information. Self-defence is a full defence which means that if an accused person can establish that they were acting in self-defence, that are not criminally responsible.

Generally, for an accused person to rely on self-defence, he or she must establish that they:

  1. believed that their conduct was necessary to defend themselves, defend another, to prevent damage or interference with property, or trespass; and,
  2. what they did was a reasonable response in the circumstances as perceived by the accused.

When a court is assessing whether a person believed their conduct was necessary, the court is concerned with the  “subjective” belief of the accused. In other words, what that person actually believed was necessary as opposed to what a reasonable person would have believed.

In contrast, when assessing whether the response was reasonable, the court undertakes an “objective assessment” and asks itself whether the accused actions were reasonable in the circumstances as perceived by the accused. The “circumstances as perceived” by the accused is subjective.

In the context of a case where a person dies, there are a few relevant points to note:

  • When death is inflicted, section 420 of the Crimes Act 1900 provides that self defence is only available to defend self or another (not to defend property or to prevent trespass)
  • If a person is charged with murder, and the force used is found to be excessive, but the person believed their actions were necessary to protect themselves or another, the person is guilty of manslaughter and not murder.

Here, it is ultimately a matter for the police, and then the DPP, whether charges will be laid. In assessing whether charges should be laid, the DPP are required to consider whether there are reasonable prospects of a conviction. If the evidence supports a defence of self-defence, the prospects of a conviction are reduced. The DPP are also required to consider the “public interest” when considering whether to prosecute, although if a view is formed that there are no reasonable prospects of a conviction, quite rightly that is the end of the matter without any regard to the “public interest”.

High Court Ruling on Malaysia Deal – People Smuggling Offences

Posted by Justin Wong on 01 September 2011

High Court Ruling on Malaysia Deal – People Smuggling Offences.

The High Court yesterday declared invalid the arrangement between Australian and Malaysia to remove non-citizens entering Australia by sea without visas to Malaysia for processing. The Federal Government claims that this will only encourage those seeking to engage in people smuggling.

Offences

There are a number of offences under the federal criminal law aimed at people smuggling or human trafficking.  It is important to differentiate between “trafficking” and “smuggling”, with the Australian Institute of Criminology differentiating “smuggling”, which always involves illegal border crossing from “trafficking”, where people are regarded as commodities and does not necessarily involve an illegal border crossing.

The Commonwealth Criminal Code provides for the following offences and maximum penalties:

  • Section 73 offences of people smuggling and supporting people smuggling:
    • Section 73.1 – the offence of people smuggling carries a maximum penalty of 10 years imprisonment.  This offence would include a person who either organises or facilitates the entry of another person into a foreign country, whether or not via Australia.
    • Section 73.2 – aggravated offence of people smuggling.  Circumstances of aggravation include exploitation after the entry into a foreign country, the subjection of a victim to cruel, inhumane or degrading treatment, or placing a victim in danger of death or serious harm.  The maximum penalty of this offence is 20 years imprisonment.
    • Section 73.3 – aggravated offence of people smuggling with at least 5 people.  This carries a maximum penalty of 20 years imprisonment.
    • Section 73.3A – supporting the offence of people smuggling.  This includes a person who has provided any material support or resources to another person or organisation and that support assists in the person or organisation engaging in people smuggling.  This offence carries a maximum penalty of 10 years imprisonment.

There are also similar pre-existing offences under the Migration Act 1958 (Cth).

There have recently been a number of people smuggling prosecutions in Australia.  In 2009, four defendants were charged in Western Australia, following the interception of their vessel which was carrying 74 asylum seekers from Indonesia.  Following trial, all four defendants received mandatory sentences of 5 years imprisonment with a 3 year non-parole period.

The 2009 to 2010 annual report from the Commonwealth Director of Public Prosecution states that since the commencement of the new Criminal Code offences, 13 people have been convicted of people trafficking related offences, with 9 of those relating to slavery offences, 3 of those sexual servitude and one of trafficking in persons.

Mandatory Sentences

There are currently mandatory sentences prescribed for certain offences, with Courts left with no discretion following conviction.  This has been widely criticised by members of the legal profession as well as the judiciary.  The mandatory sentence curtails the important sentencing discretion normally available, allowing a court to take into account the individual circumstances of each case.  Mandatory sentences also reduce the attractiveness for accused to plead guilty.

It seems the intention of Governments to introduce mandatory sentencing was to deter those contemplating people smuggling.  However there is very little evidence to suggest that mandatory sentencing works as a deterrent. This is particular so here, in circumstances where the financial motive is large and probably outweighs the relative risk of detection, conviction, and ultimately sentence.

UK Riots and Civil Disturbances

Posted by jamie.mclachlan on 24 August 2011

Recent events in the United Kingdom have drawn attention to  the punishment of offences committed during a riot or civil disturbance.

It has been reported that the riots in London, between 6 and  9 August this year, led to nearly 2000 arrests with police recording over 3000 offences. This included approximately 1100 offences of burglary in  non-residential buildings, 95 cases of handling stolen goods and 48 reports of serious wounding.

62 per cent of those people charged have been remanded in  custody.

It has also been reported that the courts have begun handing  down strong sentences which have included the following:

  • A 20 year old man sentenced to imprisonment for  four years for posting messages on Facebook to incite disorder.
  • A 24 year old woman sentenced to imprisonment  for five months for handling stolen goods after she accepted a pair of looted shorts from her housemate. On appeal this was reduced to community service for  75 hours.
  • A 23 year old man was sentenced to imprisonment  for six months for the burglary of a case of water from a supermarket.
  • A 23 year old man was sentenced to imprisonment  for 18 months for handling stolen goods, namely a flat screen television that he put in his car after it was given to him by someone else.
  • A 21 year old man was sentenced to imprisonment  for 16 months for burglary after he stole three or four bottles of alcohol from a store that about 40 people were breaking into.
  • A 48 year old man was sentenced to imprisonment  for 16 months for burglary after taking a box of doughnuts from Krispy Kreme.
  • A 25 year old man was sentenced to two years  imprisonment for burglary and breach of a suspended sentence after he took a quantity of Oil of Olay from a shop.

There has been some discussion as to whether the sentences  handed down by the courts are appropriate or are excessive.

The occurrences in the United Kingdom raise the question as  to what charges and penalties are available in New South Wales for those who take part in a riot or civil disturbance.

In New South Wales one available charge would be the offence  of riot (section 93B of the Crimes Act 1900 (NSW)). For this offence to be proved each of the following elements must be established:

  • That there were 12 or more persons present  together.
  • That they used or threatened violence for a  common purpose.
  • That their conduct was such that taken together  it would cause a person of reasonable firmness at the scene to fear for his or her personal safety.
  • That the accused was present and used or  threatened to use the unlawful violence for a common purpose.

For the offence of riot “violence” includes violent conduct  towards property as well as violent conduct towards persons and it is not restricted to conduct causing or intended to cause injury or damage but  includes any other violent conduct (for example throwing a missile at a person which is capable of causing injury).

Upon conviction the maximum penalty that the court may  impose is imprisonment for 15 years. However, unless either the accused person or the prosecutor elects to have the charge heard in the District Court the  charge is to be heard in the Local Court. In such a case the maximum penalty available to the magistrate is imprisonment for 2 years.

The courts in Australia regard riot as a serious offence. In  the case of Regina v McCormack & Ors [1981] VR 104 it was held by the Supreme Court of Victoria:

A riot, like an affray,  involves both violence and public alarm. They involve public alarm because they  are currently or potentially dangerous. The level of violence used and the  scale of the affray or riot are factors relevant to sentence… A riot usually  carries with it an inherent danger of injury to persons or property or both.  There is a danger that members of the crowd will respond to what has been  called, ‘the psychology of the crowd’… [t]he danger is great when the crowd  can be described as a mob threatening violence… In our opinion the present or  potential danger of injury inherent in a particular riot is a consideration  relevant to the sentence of any rioter.

When sentencing an offender the courts have held that in the  case of a riot each offender is not sentenced for his individual acts  considered in isolation, but is sentenced for having, by deed or encouragement,  been one of a number engaged in a crime against the peace. Furthermore it is  open to the sentencing judge to take into account the actual conduct of an  offender in the riot by way of aggravation:  R v McCormac [1981] VR 104 and R v Maher  (2005) 154 A Crim R 457.

In addition, or as an alternative to the offence of riot,  those people that take part in a riot or civil disturbance may be prosecuted  for a variety of other offences. This may be because the elements of the  offence of riot cannot be established or the criminality would not be properly  reflected in such a charge. Some examples may include:

  • Aggravated break, enter and steal  (maximum penalty of imprisonment for 20 years).
  • Larceny (maximum penalty of imprisonment for  five years).
  • Goods in custody (maximum penalty of  imprisonment for 6 months or in the case of a motor vehicle or motor vehicle  part 12 months).
  • Assault police (maximum penalty imprisonment for  5 years).
  • Assault during a large scale public disorder (maximum  penalty of imprisonment for 5 years).
  • Assault occasioning actual bodily harm during a  large scale public disorder (maximum penalty of imprisonment for 7 years).
  • Affray (maximum penalty of imprisonment for 10  years).

The offence of riot is regarded by the courts as a serious  crime. In passing sentence on any offender for any offence the court must  consider the purposes of sentencing which include, among other things, the  punishment of the offender, deterring other people from committing similar  offences, protecting the community and promoting the rehabilitation of the  offender. However, when sentencing people for offences of civil disturbances,  the courts in NSW have shown that they will place a greater prominence on  general deterrence in order to deter others from committing similar offences and  to maintain public order.

Pit Bulls and dangerous dogs in the media

Posted by Justin Wong on 23 August 2011

The recent death of a four year old girl in Victoria following a pit bull dog attack has raised calls for tougher restrictions and laws governing “dangerous dogs”.

NSW has one of the toughest regimes in the country. The law and controls covering dangerous or restricted dogs in NSW are mainly provided for by the Companion Animals Act 1998. A Pit Bull is a “restricted dog” under the Companion Animals Act 1998.

The Act places certain responsibilities on owners. One of these is having the dog desexed within 3 months of it being born. Section 56(1)(a). There are also enclosure requirements under s.56(1)(a1), and other general requirements.

It is an offence not to comply with the requirements under the Act, maximum penalty of $16,500. It appears this is a strict liability offence, so simply saying that a person wasn’t aware that a dog was a Pit Bull would not in itself be a defence. However, a defence of honest and reasonable mistake of fact may be open. See our website here in relation to this defence:  MISTAKE OF FACT.

Generally, any dog must be registered within 12 weeks of the birth of the dog. It is an offence under s.8(3)(b) not to register a restricted dog. This carries a maximum penalty of 50 penalty units max penalty. Again, this is a strict liability offence.

The dog can’t be sold, with s.57A providing it is an offence to do so. It is also an offence to accept ownership of a restricted dog under s.57B(1). The maximum penalty $16,500.

Importantly, there are general duties placed on the owners of all dogs, including dangerous or restricted dogs. These include taking all reasonable precautions to prevent the dog from escaping from the property on which it is being kept. The maximum penalty, in the case of a dangerous or restricted dog, is a fine of $5,500.

It is an offence where a dog rushes at, attacks, bites, harasses or chases any person or animal, even where no injury is caused. The maximum penalty, in the case of a dangerous or restricted dog, is $33,000. If the attack occurred as a result of the owner’s failure to comply with certain responsibilities to control the dog, for example certain control requirements imposed, the owner can be liable to 2 years imprisonment and or a fine of $55,000. Two years imprisonment is the maximum penalty a Local Court can impose in NSW.

There is no specific offence created where a dog causes injury or death, however Sections 25 and 26 of the Act provide for the potential for an order of civil damages to be made against the owner of a dog.

Although there may be theoretical instances where the actions of an owner are so negligent so as to constitute “gross negligence”, or part of an “unlawful or dangerous act”, potentially constituting manslaughter, the instances are likely to be rare.

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Government moves to secure Centrelink Fraud convictions

Posted by Justin Wong on

The law surrounding Centrelink fraud prosecutions has been in limbo since the recent South Australian Supreme Court decision of Poniatowska.

The Federal Government has recently passed legislation, the Social Security and Other Legislation Amendments (Miscellaneous Measures) Bill 2011, seeking to ensure that past Centrelink Fraud convictions are safe from appeal following the South Australian Supreme Court decision of Poniatowska v the DPP (Cth) [2010] SASCFC 19. The legislation also seeks to clarify the uncertainty that has surrounded Centrelink fraud prosecutions since the Poniatowska decision.

The South Australian Supreme Court decision of Poniatowska called into question whether a person has committed an offence of Centrelink fraud by knowingly omitting to notify Centrelink of a change in circumstances.  The Court in Poniatowska held that under the most commonly charged offence, mere omission without any specified legal obligation to declare a change in circumstances was not sufficient to satisfy the charge.  A change in circumstances can include a change in income or living arrangements.

The Federal Government, with the Social Security and Other Legislation Amendments (Miscellaneous Measures) Bill 2011, attempts to insert a specific legal obligation into the Social Security (Administration) Act 1999, requiring those receiving social security payments to advise Centrelink within 14 days of an event or change in circumstances that may affect their payment.  By creating this legal obligation, the omission to advise Centrelink of a change in circumstances becomes an omission to perform an act that, by law, there is a duty to perform.

Retrospective Application

The Federal Government has taken the extraordinary course of making this legislation apply retrospectively.  This means that those who were receiving a Centrelink payment from as far back as 20 March 2000 have had the legal obligation to advise Centrelink of their change in circumstances since that date.  It is questionable whether, before this legislation came into existence, there was a specific legal obligation to advise of a change in circumstance.  By applying the legislation retrospectively to the year 2000, the Federal Government has effectively cut off any avenues of appeal against past convictions for Centrelink fraud.

Retrospective legislation, such as the Social Security and Other Legislation Amendments (Miscellaneous Measures) Bill 2011, especially involving a criminal offence, is a rare action taken by parliament.  There is a fundamental principle that a citizen should know, or be in a position to find out, whether his or her conduct is illegal at the time of engaging in that conduct.  To be told at a later stage that past conduct, although legal at the time, has since been declared illegal, is thought by many to be contrary to the rule of law.

Notwithstanding this, there is nothing in the Australian Constitution to prohibit the parliament introducing retrospective legislation.  The explanatory memorandum to the bill states:

“The Government does not likely pursue retrospective legislation.  However, in this case there are exceptional circumstances justifying retrospectivity, namely that it would not be appropriate for a significant number of prosecutions conducted from 2000 for social security fraud to be overturned on a previously unidentified legal technicality”.

The Government argues that convicted persons at the time would have been aware that they should have informed the department of change in circumstances because they were given notices by Centrelink in relation to their payments. However, the Government also concedes that those notices may not have complied with the relevant legislation.

In any event, it remains to be seen how this particular decision and amending legislation will be reflected in the court process, particularly at sentence and in Centrelink fraud penalties.

See also: Centrelink Fraud