Junior Criminal Lawyers Take Note: General Principles for Pleas in Mitigation

The following are some general principles to consider for court appearances.

Local courts are very busy and magistrates are pressed for time. A good plea in mitigation should generally take no more than 10 minutes. Remember that some magistrates may have to deal with more than one hundred matters in a list.

When you are appearing at any court and a matter is to be adjourned, please ALWAYS request DEILR (defendant/accused excused if legally represented).  It makes it easier for the law firm to coordinate court appearances and easier for clients especially if they work.

Do not repeat the full details of the charge and the legislation under which the charge is brought. For example, there is no need to tell the court: “The defendant pleads guilty to the offence of mid range PCA under s 9 of the Road Transport (Safety and Traffic Management) Act 1999.” The magistrate will have read the Court Attendance Notice and will be aware of the charge.

Do not repeat prosecution facts, antecedents or evidentiary material word for word. The magistrate will have read the material on the bench. Refer to any facts as much as is necessary and tie those facts in with the submissions that you make. Repeating the police facts will waste the court’s time.

It is generally best to start with the circumstances of the offence. This is not repeating the police facts. It is providing the court with the client’s explanation of why he or she committed the offence.

If the offence is a serious one, always acknowledge this on behalf of the client. This should be done towards the start of the plea. Accepting the seriousness of the offence and the wrongdoing by the accused can demonstrate remorse and contrition. Doing this sooner rather than later is critical. In a serious offence it is of no use to start off by telling the court about the accused’s background or about what a nice person the accused is: for example, a loving family man, with an MBA from Sydney University, hard working, supporting his three young children, and a churchgoer. The magistrate is aware of the seriousness of the offence and the good points will be lost if introduced at this stage.

Never seek to minimise the seriousness of the offence, even if the penalty is low. This type of lesser offence can be diplomatically referred to as: “an offence at the lower end of the scale” or as “not one of the more serious types of matters that comes before Your Honour.”

Refer to testimonials and medical reports in the briefest way.

Tell the court about your client, for example, age, marital status, children, aged parents, occupation, work history, education qualifications, personal achievements and awards. If you have any photographs, newspaper clippings, awards or similar material, these can be handed up to help humanise the client.

If there is something embarrassing or very personal in the client’s life and it is not in a testimonial or report, prepare that part of your submission in writing and hand it up for the magistrate to read, again at the start of the matter. Handing up documents halfway through a plea can break the flow of the presentation. Prepare and give a copy of the written submission to the prosecution in advance.

Do not put submissions that give an impression that the defendant is putting forward excuses or blaming someone else, particularly the victim. The magistrate will take the view that the offender is trying to shift the responsibility for his or her actions. This does not mean that you cannot rely on provocation as a mitigating circumstance pursuant to s 21A(3)(c) of the C(SP)A. Provocation should be put as an explanation of the defendant’s conduct, never as an excuse.

Look for any evidence that shows genuine remorse or contrition. This may be in a confession made during a formal record of interview, a handwritten statement to the police or a statement made and recorded in the arresting officer’s notebook. It may be words or acts of regret done immediately or shortly after the event. It could be in the form of a written or verbal apology to a victim.

Consider whether the plea has been entered at the first possible opportunity. Early entry of a plea shows acceptance of the wrongdoing and is evidence of contrition. An early plea also entitles the accused to a discount on sentence. Remind the court of the early entry: “Your Honour will note that my client has entered the plea at the earliest possible opportunity.” You need say nothing further.

If your client has family or community support, try to have those supporting people at the court. Refer to their support and presence, by introducing them generally and then turning slightly to point them out to the magistrate. Often the practitioner might ask those present to please stand up. Now pause sufficiently to allow the magistrate to get a good look at them. If you continue to address the magistrate while he or she is concentrating on the family then the next part of your submission may be missed. This type of visual impact and having the accused’s family in the court can have a really positive outcome in the sentencing considerations of the person on the bench, and may result in a custodial sentence not being imposed. Never have young children present as part of the family support if it can be avoided. This can be seen as an emotional tactic and can have an adverse impact.

Consider the impact on the accused. What has the accused suffered as a result of the charges — loss of job (and resulting financial hardship), embarrassment, humiliation, bad publicity, loss of face in the community, time spent in custody, time spent at the police station being fingerprinted and photographed (the latter being relevant more to a first offender)? This “experience” can be put as a salutary lesson, which has reminded the accused of the consequences of his or her wrongdoing and made the accused vow to never be in that position again.

Remember to consider all of the aggravating and mitigating factors in s 21A of the C(SP)A and insert them at the appropriate point.

Avoid repetition of submissions. Repetition is indicated by the use of the phrase: “and as I’ve already said Your Honour”.

Listen to the bench. Take the hint if the magistrate cuts you off. It is an indication that he or she has heard enough on the topic. If you ignore the hint, you do so at your own peril and to your client’s detriment. Just move swiftly to the next point. If the magistrate asks a question never ever respond with: “I am coming to that shortly Your Honour.” Such a response is inappropriate and is contrary to the magistrate’s control of the proceedings.

SENTENCING SUBMISSIONS

All pleas end with a submission on the appropriate sentence. For young practitioners this is often a difficult task. It involves being able to:

  • identify the relevant sentencing principle under s 3A of the C(SP)A;
  • weigh the aggravating and mitigating factors;
  • examine the criminal record, if any, and determine the sentencing trend;
  • identify the probability of either not offending again or committing further offences;
  • know the sentencing trends and attitudes of the particular magistrate;
  • know the sentencing trends for particular offences;
  • identify whether there is a relevant guideline judgment: see the Supreme Court website at www.lawlink.nsw.gov.au/lawlink/; and
  • make a sentencing submission that is logical and appropriate.
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BREACH OF APPREHENDED VIOLENCE ORDER – WHAT HAPPENS AT COURT?

Do you have an AVO in place against you?

If your answer is ‘yes’, it is critical to understand your obligations to avoid contravening the order.

Having an AVO is not a criminal offence. As such, the AVO itself is not listed on your criminal record.

Any type of breaching an AVO, however, is a criminal offence that can carry a maximum 2-year imprisonment or maximum fine of $5,500. (section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007)

Nature of breach and its significance

Upon breaching an AVO, you might be arrested by the police or served with a Court Attendance Notice (CAN). The CAN sets out the date and location of your court attendance. As a breach of an AVO is a summary offence, it will be heard in the Local Court.

What is more important is, among other things, the nature of the breach. Depending on the nature, the penalty varies as below.

  • Dismissal of the charge without recording a conviction if you plead guilty or if you are found guilty of an offence
  • Monetary fine less than $5,500.
  • Good behaviour bond
  • Community service order
  • Suspended sentence
  • Home detention
  • A term of imprisonment less than 2 years.

For example, if you approach the protected person’s house, you might be ordered to pay the fine without imprisonment.

However, if the contravention constitutes an act of violence, the court must sentence a term of imprisonment unless the court otherwise orders with reason to do so. ((section 14(4) & 14(6) of the Act). It should be noted that the act of violence does not necessarily mean a physical violence. It can include verbal threat, stalking or harassing phone calls.

Further, you can also be separately charged with the act of violence in addition to the breach of AVO.

Advice

Breach of AVO can have a significant impact on your life. According to the NSW Bureau of Crime, Statistics and Research, 12% of offenders ended up in imprisonment with an average sentence of around 4 months.

An effort to avoid a term of imprisonment for a violent contravention requires a detail examination of the contravention. Only then, a professional criminal lawyer might be able to provide the reasons with a court to depart from mandatory imprisonment sentence. If you have an AVO order in place and have breached it, you should contact us immediately to obtain independent legal advice. As a Criminal Law specialist, Greenfield Lawyers can provide expert advice to minimise your risk of obtaining a serious criminal sanction.

Alcohol Interlock Program – When does it Apply?

The Alcohol Interlock Program is a mandatory program aimed at improving road safety and reducing drink driving in NSW. The Program applies to drivers who have been convicted of high range, repeat and other serious drink driving offences on or after February 1, 2015. The program is designed to help drink drivers separate drinking and driving.

Interlocks are electronic breath testing devices that are linked to the ignition system of cars, motorcycles and heavy vehicles. Drivers must give a breath test, which the interlock analyses for the presence of alcohol before the vehicle will start. If alcohol is detected, the vehicle will not start. Breath tests can also be required at random while you drive. The interlock records all test results as well as any attempts to tamper with the device. NSW program participants must have a zero blood alcohol concentration while driving, meaning they cannot have any alcohol in their system.

If you have been convicted of a high range, repeat or other serious drink driving offence, a court will order you to complete:

  • A licence disqualification periods, and
  • A minimum period of participation in the interlock program

The time periods will increase with the severity of the drink driving offence. The minimum period is 12 months.

The court may grant an exemption from participating in the interlock program, but only in limited circumstances, for example if you do not access to a vehicle, or you have a medical condition.

There are a number of responsibilities when being in the program. Failure to comply can result in consequences such as fines, extensions to interlock licence period, licence suspension or cancellation.

These responsibilities include:

  1. Only drive with a zero blood alcohol concentration
  2. Only drive a vehicle which is fitted with an interlock
  3. Ensure that an interlock is installed in at least one vehicle
  4. Only drive the vehicle if you have personally provided the breath sample required by the interlock
  5. Attend all medical consultations required under the program
  6. Ensure that your interlock is serviced when required under the program
  7. Do not drive any motor vehicle if you know that the interlock is not working properly, or has been circumvented or interfered with
  8. Do not drive a vehicle which is loaded with dangerous goods that must be placard under the Dangerous Goods (Road and Rail Transport) Regulation 2014.

Participation in the program begins when the RMS has issued you with an interlock licence. You need to – complete your disqualification period, visit your doctor and get a medical consultation certificate, and have the device installed in your vehicle.

If you think you might be eligible for the Alcohol Interlock Program, its important to speak to an experienced lawyer as the process can be complicated.

Caught by Police Sniffer Dogs with Ecstacy Pills at Dance Parties: Know the Law

Sydney’s Parklife, Fat as Butter and V Festival, the Future Music Festival, and the Mardi Gras! These are just some of the famous festivals around Sydney. Unfortunately, these festivals have become infamous for drug use by recreational users of ecstasy.

Ecstasy is a street term for a range of commonly used party drugs. It is a ‘prohibited drug’ under schedule 1 of the definition section of the Drug Misuse and Trafficking Act 1987. A prohibited drug includes heroin, cannabis, methylamphetamine (ice) and cocaine.

How can you get caught?

Major festivals have become a target of police search operations utilizing sniffer dogs. You might also be the subject of the operation at a train station or pubs around Sydney CBD area.

The police must form a reasonable suspicion that you have possession of prohibited drugs to search you. This is likely to happen where a drug detection dog stops next to you, or undercover police see you walking away from them. The police power to search you arises from the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”), s21(1)(d) & s36(1)(e).

How serious is the offence?

Possessing a prohibited drug is an offence under the section 10(1) of the Act.  The offence will almost certainly be charged with a criminal prosecution even in relation to small or personal amounts of prohibited drugs.

The charge may result in a conviction with a maximum penalty of a fine of 20 penalty units ($2200) and/or a 2 years’ imprisonment. the conviction may be recorded on your criminal record which may have a devastating impact on your employment in the future.

At a trial

The most contentious issue in a trial would be that a prosecutor must prove beyond reasonable doubt you knew that you possessed a drug.

Further, even If you plead guilty to the offence, your conviction might not be recorded against you. The Court should consider several factors to exercise its discretion.

Advice

How the trial proceeds will depend on the circumstances of an individual case. To raise the best defence or to reduce a penalty to a minimum, it is vital that you have an experienced criminal defence lawyer should you be charged with possession or supply of prohibited drugs or any other drug-related matters.

Greenfield lawyers are specialists in criminal law defence including drug-related matters. Do not hesitate to contact our office on 02 9708 6832 and make an appointment to see one of our expert criminal defence lawyers.

Section 32 Mental Health Orders – when can it apply?

Section 32 of the Mental Health (Forensic Provisions) Act is commonly used to divert those who suffer from mental health issues away from the criminal justice system and instead into treatment and getting the help they need. They are intended for the purpose of rehabilitation and reducing reoffending of people with a mental health condition.

Mental health conditions can include a variety of different issues including anxiety, depression, substance abuse disorder, bipolar disorder, schizophrenia and personality disorders. The Act gives a broad definition of what is considered a mental health condition, that is, a mental health problem that can be treated by a psychologist or through counselling.

A section 32 may apply where a person who has a mental health condition at the time of the alleged offence occurring, or can be shown to suffer from an ongoing issue during the court proceedings.

To apply for a section 32, a report from a mental health professional such a psychologist is needed. A lawyer can assist arrange this by providing them with relevant information for preparing the report.

To be granted a section 32 order, the magistrate will need to make a decision that the section 32 order is more appropriate than the criminal justice system.

If you are granted a section 32 you will be required to abide by conditions made by the magistrate, which are tailored to your circumstances and last up to six months.

These conditions may include:

  • Abstaining from drugs and/or alcohol and consent to testing
  • Participate in counselling sessions
  • Prescribed Medication
  • Have the condition and associated medication reviewed regularly
  • Remaining in the care of a responsible person, and/or residing at a specific address

If you don’t abide by the conditions made by the Magistrate, the section 32 could be revoked and you will have to face the original charges in court

The magistrate may dismiss the charged altogether if you agree to participate in the treatment plan. Alternatively they may adjourn court proceedings until treatment is complete, or if in custody, bail may be granted to participate in treatment.

The benefit of a section 32 over a section 10 dismissal is that you are not found guilty or convicted, whereas with a section 10 there is still a finding of guilt.

If you think you might be eligible for a section 32 Mental Health Order, its important to speak to an experienced criminal lawyer as the process can be complicated.

For further information and legal advice, Call Us now on 02 9708 6832 and book an initial consultation with one of our criminal lawyers.

Victims Rights in Domestic Violence Offences – When Can the Police withdraw Charges?

Domestic violence has become a serious and widespread issue in Australia. Because of this, having  Domestic Violence charges or an AVO withdrawn is not easy and very few are withdrawn by NSW Police.

Once it is alleged that an act of domestic violence has been committed, and a complaint is made to the Police, it is Police procedure to lay charge/s upon the accused person/s.

While Police can withdraw charges, it rarely occurs as they are determined for alleged domestic violence offenders to be held accountable for their actions. This means that almost all charges are proceeded with. Generally Police will not withdraw a domestic violence charge merely because the alleged victim does not want the offender to be charged.

For Police to consider withdrawing a charge an application should be made in writing to the Police Local Area Command.

If a victim wishes to withdraw their complaint, NSW police have a policy that requires them to proceed with the charges. Charges may be laid against offenders even if the victim is reluctant to give evidence. The decision to prosecute rest with the Police in accordance to their internal policies.

There are laws that restrict the prosecution’s ability to force family members to give evidence. Under section 18 of the Evidence Act (NSW) 1995, a witness may object to giving evidence, if:

  • They are a witness for the prosecution, and
  • The accused person is their spouse, de facto partner, child or parent, and
  • There is likely to be harm caused to their relationship with the defendant.

This section however, does not apply to all situations and the court can force a person to give evidence.

If a victim in a domestic violence case does not appear at court a number of things may occur, including:

  • The charges are dismissed
  • The case is adjourned and a warrant for the arrest of the victim is issued
  • The case is adjourned to see if the police can get the victim to court

For further information and legal advice, Call Us now on 02 9708 6832 and book an initial consultation with one of our criminal lawyers.

 

 

How to Avoid a Criminal Conviction – Section 10

If you are found to be guilty of any criminal or traffic offence, a court generally imposes a penalty on you and you will consequently have a criminal record if the court records a conviction. This criminal record can have a negative impact on your employment and travel overseas as you are frequently obliged to disclose your convictions to many entities.

However, criminal courts in NSW have a discretion to dismiss a charge without recording a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999.

 

What is a ‘Section 10’ Order?

A ‘Section 10’ order refers to a court order made under section 10 of the Crimes (Sentencing Procedure) Act 1999. These orders allow a Court to find you guilty of an offence, but to still discharge you without recording a conviction. This means there is no criminal record, loss of driver’s license or other penalty.

 

Types of Section 10 Orders

Under s 10, the court can make three types of orders as follow:

  • Outright Dismissal

This involves the court completely dismissing the offence without any conditions imposed

  • Dismissal with a good behavior bond

Although the court can dismiss your charge, a good behavior bond for a maximum of 2 years may be imposed on you. If you breach any of the conditions of the bond, the court can impose a different sentence because the original matter will return to Court for re-sentencing upon your breach.

  • Dismissal with an intervention program

The Court can discharge you on condition that you finish an intervention/rehabilitation program and comply with plans arising from it, like the Traffic Offenders Intervention Program.

 

How can I get a Section 10 Order?

Courts do not readily grant section 10 orders, and require a lot of convincing before granting them. Courts consider the following issues when evaluating whether to grant these orders:

  • Age;
  • Character;
  • Criminal history;
  • Health and mental condition;
  • The nature of the offence i.e. how trivial/serious it is;
  • Any extenuating circumstances surrounding the offence; and
  • Anything else the Magistrate/Judge deems relevant.

 

The main benefit of section 10 is that no conviction will be on your criminal record. Despite this benefit, Section 10 orders are not easy to obtain, and it is possible that you might need to comply with additional restrictions like the good behavior bond even if you get a s 10 order. However, s 10 orders still remain useful since it gives you a chance of keeping your criminal and traffic records clean. Therefore, it is imperative for you to hire an experienced lawyer in order to convince the court to grant a Section 10 order.