Drink driving charges and you – A guide to pleading guilty to a drink driving charge

So, you’ve been charged with a PCA offence…

This guide explains what to do if you are pleading guilty to a drink driving offence and have to go to a NSW Local Court.

Before you go to Court you should…

Get legal advice as soon as you can

It can take time to get legal aid or to see a private lawyer. If you prefer to speak for yourself in court, it is still important to get legal advice before your day in court.

Remember, the court will be making decisions about your future. So getting legal help is a good idea!

Request an interpreter if you need one

Ring the Local Court where your case is to be heard and ask them to book an interpreter in your language. If you are seeking legal aid, the Legal Aid Commission can arrange an interpreter for your appointment with a duty lawyer. Make sure you have your papers ready.

Who gives advice?

The Legal Aid Commission of NSW provides free legal advice to anyone on most matters. However, legal aid is only available for traffic offences if there is a real possibility of a gaol penalty, or there are exceptional circumstances.

If this is the first time you have been charged with a Prescribed Concentration of Alcohol (PCA) offence, it is unlikely you will get a gaol sentence. However, if:

a) it is a high range PCA offence and if it involves aggravating features such as a very high reading, an accident and/or dangerous driving, a gaol penalty is more likely and you may therefore be eligible for legal aid.

b) you have previously been charged with a high range drink driving offence, you face the risk of a gaol penalty and may be eligible for legal aid.

In those situations, you should apply for legal aid before your first court appearance. Speak to the duty solicitor at court.

If you then have to go to the Local Court, a duty lawyer will represent you if you are eligible for legal aid. To contact Legal Aid, ring your nearest office to make an appointment.

Private Lawyers provide legal representation and advice. For criminal, driving or traffic matters, it is best to obtain advice from a law firm or lawyer who specialises in these areas.

Fees for private lawyers vary, so make sure that you understand the likely costs involved at the first interview.

Getting ready for Court

Get references and prepare a letter to the Magistrate or written notes of what you will say. It may be helpful to get written references from people who can talk about your good character.

These references should be addressed to the Magistrate and refer to the current charges. Ask for the Legal Aid information card about Character References. The court will consider a number of factors in deciding the appropriate penalty and disqualification. These include:

Whether you believed you were over the limit when you drove

Any particular reason as to why you chose to drive

Whether you were detected by Random Breath Test or as a result of erratic or dangerous driving

The length of the journey/intended journey

The number of people put at risk by the driving (passengers, members of the public etc)

Any collision that occurred

Any significant effect that licence disqualification may have on you, your employment or other people who rely on you (children, sick relative, etc)

The absence of viable alternative transport

How long you have held a licence and what your overall traffic record is like

Your likelihood in reoffending

Either prepare a short letter in your own words to give to the Magistrate, or prepare written notes. Include any explanation that relates to the factors set out above. In particular, address:

Any special reason why you were driving

Why you were driving after consuming alcohol

In your own words, why you can give an assurance that you will not drink and drive in future

Any particular need you have for a licence eg. In your work or for personal reasons

If you need a driver’s licence for work make sure you have a letter from your employer to say what will happen to your job if you are disqualified from driving for a long time

If you have other reasons for needing a driver’s licence (eg. A disabled child, health problems) make sure you have evidence (ie. Doctor’s certificate or report) to support this

What your weekly income is and expenses you have to pay (which can assist the court in calculating any fine to be imposed).

What should you do at court?

You should not drive to court in case you lose your licence. Bring your licence with you unless the police have already taken it, as the court may require you to surrender it.

When you get to court, find the court officer and tell them that you are unrepresented and that you are pleading guilty.

Check the police fact sheet and certificate

The police will have a fact sheet which says why you were arrested. It may also refer to what the police say you told them about how many drinks you had. Make sure you read the fact sheet. Also, check the certificate which states your blood alcohol level and the machine printout from the breath analysis machine to see that they match the time on the police fact sheet. If you disagree with what the police say happened, you may tell the Magistrate when it is your turn to speak.

The police prosecutor should also show you a copy of your previous criminal record if you have one and a copy of your driving history.

Read these documents to make sure they really are yours.

You should dispute any incorrect information on your criminal or traffic record.

Listen to other people make their submissions in court

Wait for your name to be called. It can be helpful to sit inside the courtroom and listen to other people presenting guilty pleas to give you a better idea of how to present yours. When you are called, enter a plea of guilty and either hand your letter to the Magistrate or read from prepared notes.

Give the court your written references, letter from your employer, and any other supporting documents.

In some courts a diversionary program called The Traffic Offenders Program is conducted. Generally, if you attend the program and complete the assignments, the penalty applied will be reduced. If it is available you can ask the Magistrate to refer you to the program.

After the court’s decision: What can you do?

If there is something you don’t understand about the court’s decision, ask the Magistrate to explain. Remember to do the following:

1. Do not drive while disqualified

You will be disqualified from driving for a period of time. You must hand in your licence. The maximum penalty for driving whilst disqualified is 18 months gaol and/or a $3,300 fine. There is also an automatic minimum disqualification for an additional 12 months.

2. Re-apply for your licence

Once the disqualification period is over, you have to re-apply for your licence as you will not get it back automatically. You will be a cancelled driver until you reapply for your licence (it is an offence to drive whilst cancelled).

If you were charged with Mid Range or High Range PCA, your licence should have been suspended and taken away on the spot by the police. If this is the case, ask the Magistrate to start your disqualification period from that date.

If you think you will have trouble paying your fine within 28 days, speak to court staff before you leave about making a ‘time to pay’ arrangement.

If you do not pay the fine within the time set, the State Debt Recovery Office (SDRO) can impose a range of penalties against you. For more information call the SDRO on 1300 655 805.

Getting Help

This article is intended to provide a guide to the operation of section 10, and the requirements defendants must keep in mind when considering applying for it. Section 10 is among the most sought after orders by defendants in the local courts, particularly by those charged with traffic offences.

This is due to the fact that section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nevertheless discharge that person without proceeding to conviction. Section 10 was initially introduced in order to allow the courts to prevent injustices occurring in certain circumstances where even though a legal offence had been committed, the extenuating circumstances made it inappropriate to punish the defendant.

Because there is no conviction recorded, a major benefit of section 10 is that it means that first-time offenders will not receive a criminal record, and there is no loss of a driver’s license or any other penalty imposed for the offence.

Requirements under Section 10

Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 establishes the factors that should be taken into account by the court when it is considering section 10. These include;

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed, and

(d) any other matter that the court thinks proper to consider.

These matters must be addressed by any defendant applying to the court for a section 10 conditional discharge, as the court takes them into account when determining whether it should be given. The court can then make any of the following orders:

• An order directing that the relevant charge be dismissed under section 10(1)(a). The charges will be outright dismissed, the court will impose no further conditions, and there will be nothing recorded on the criminal record
• An order discharging the person, subject to the condition that the person enters into a good behaviour bond not exceeding a maximum time period of two years under section 10(1)(b). The good behaviour bond will at minimum require the offender not to commit any further offences within the bond’s applicable time period, advise the court of any address changes, and require that the offender appear before the court when requested to do so.
• An order discharging the person subject to the condition that they enter into an agreement to participate in an intervention program, and to comply with any intervention plan arising out of that program. This means that under section 10(1)(c), the defendant will be obligated to successfully participate in a rehabilitation course of some kind, and any related action plan that is specified in the intervention program.

Section 10 and traffic offences

A section 10 order is particularly beneficial for defendants charged with PCA or other traffic offences, because they will be exempt from the mandatory license disqualification periods which can only be applied following conviction. The NSW Bureau of Crime Statistics and Research has found that since its introduction, there has been a large increase over the last ten years in the use of section 10 and a corresponding decline in the use of licence disqualifications in local courts. Between 1993 and 2002 the overall percentage of PCA cases dealt with under section 10 rose by 22 percentage points for low-range PCA offenders, 12 percentage points for mid-range PCA offenders and 5 percentage points for high-range PCA offenders. At the same time, statistics indicate that the percentage of cases where an offender’s licence was disqualified fell by 18 percentage points for low-range PCA offences, 12 percentage points for mid-range PCA offences and 5 percentage points for high-range PCA offences.

However, it should be noted that if an offender has committed a traffic offence that would cause an automatic loss of demerit points, resulting in the loss of their license, this occurs regardless of whether the court dismisses the offence under section 10.

In R v Nguyen [2002] NSWCCA it was held that the dismissal of charges against first-time offenders is appropriate in certain circumstances, in order to allow them to preserve their reputation of good character. However, in relation to mid-range and high-range PCA offences the courts have generally indicated a far greater reluctance to consider a section 10 order.

In the guideline judgment Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999(2004) 61 NSWLR 305, the court stated that “where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”

The court explained that as alcohol is continuously consumed, not only does the risk of intoxication increase but also the potential seriousness of the offence. Therefore, while for low-range PCA offences the court could conceivably accept that an offender was unaware they had exceeded the limit, this would be much more doubtful for high-range PCA offences, and section 10 would therefore be inappropriate. Furthermore, section 187 of theRoad Transport (General) Act 2005, which deals with a court’s power to impose penalties and disqualify offenders’ driver’s licences, also restricts section 10 bonds from being given where the offender has already received one in the previous 5 years.

While the section 10 order is an understandably popular order in court, particularly for first-time or traffic offenders, defendants should ensure that they understand all of the legal requirements that must be satisfied before they attempt to obtain one.

If you have any questions about how appropriate section 10 would be to your current circumstances or need any further information, please contact us.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev

Getting Arrested – What to do!

At Barclay Churchill Solicitors and Barristers, we help our clients defend all criminal offences. Whether serious charges such as assault, drug offences, theft or fraud or less serious offences such as common assault or driving or traffic offences.

An important aspect of defending police charges is knowing what to do if you get arrested. We have provided some information which might assist.

Getting arrested can happen to anyone. It can be scary. This story is about getting arrested. It will help you to know what to do if it ever happens to you.

Arrest means you have to go with the police. If the police say “You’re under arrest” then go with the police. Stay calm and don’t argue or fight and don’t run away.

At the police station you will have to take everything out of your pockets. Don’t worry, the police will put your things in a bag and later you will get everything back. The police might search you by feeling over your clothes. Again, don’t get angry – it’s a rule and it’s for your safety.

The police will tell you that you don’t have to say or do anything while you’re at the police station.

This means you don’t have to answer any questions or say anything about what happened.

A police officer will ask you some questions about yourself. Questions like what is your name and address, or do you need any medication? You should tell the police these things.

At the police station, you will have to wait in a small room with windows and the police might lock the door. You might feel scared or sad. Try to stay calm.

Your legal rights:

You have the right to talk to a lawyer. The lawyer understands all about the law and can tell you what you should do. It’s a good idea to speak to a lawyer. Ask the police to ring a lawyer for you. THIS IS YOUR LEGAL RIGHT so don’t be afraid to ask the police.

The police can ring Hugo Aston who is a director of Barclay Churchill Solicitors and Barristers on 0448 807 075. Hugo is available to assist you 24 hours a day, seven days per week and will come to the police station to help you.

When you call Barclay Churchill Solicitors and Barristers, speak to Hugo. Hugo might advise you that you should NOT answer any questions. Why? Because it’s easy to get confused with the questions. You might say something you don’t mean and you can’t change it. You need to tell the police “I don’t want to answer any questions” or you could say “My lawyer said not to answer any questions”. It’s okay. Remember what the police said before?? “You don’t have to say anything”.

Sometimes the police will ask you “Will you agree to an electronically recorded interview”, again, do not agree to an interview and repeat to the police officer “My lawyer has advised me to say nothing”. It’s that simple.

The Police will decide if you will get bail. Bail means you can go home but the police might write down some “bail conditions” you have to stick to. Bail conditions are some things you promise to do and some things you promise not to do. You have to stick to bail conditions or the police will arrest you again and this can make things more serious.

If the police refuse to grant you bail, don’t worry, Hugo Aston will make an application to the court. In most cases, bail is granted by the court.

The police will decide if they are going to charge you. If you are charged, you will have to go to court. Again, don’t worry. Hugo Aston will represent you in court.

If the police charge you, they will give you a paper that tells you what day you have to go to court and which court to go to. The paper is called a Court Attendance Notice. Before you leave the police station you will get all your possessions back. The police will give you some papers don’t lose them – keep them safe.

Remember, if you are charged, you will have to go to court but Hugo Aston will have seen you well before the date you are to appear in court and he will have prepared everything necessary to ensure that your legal rights are protected. On the day you are to appear in court Hugo Aston will fight fearlessly to defend and protect you.

So remember, no matter where you are, if you get arrested, do the following:

Stay Calm – don’t get angry, violent or abusive

Go with the police

Ask to speak with your lawyer – Hugo Aston

Remember you don’t have to answer any questions

Ask the police to ring Barclay Churchill on 0424 199 904

Barclay Churchill Solicitors and Barristers. Protecting and helping you 24/7.

Getting Help

This article is intended to provide a guide to the operation of section 10, and the requirements defendants must keep in mind when considering applying for it. Section 10 is among the most sought after orders by defendants in the local courts, particularly by those charged with traffic offences.

This is due to the fact that section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nevertheless discharge that person without proceeding to conviction. Section 10 was initially introduced in order to allow the courts to prevent injustices occurring in certain circumstances where even though a legal offence had been committed, the extenuating circumstances made it inappropriate to punish the defendant.

Because there is no conviction recorded, a major benefit of section 10 is that it means that first-time offenders will not receive a criminal record, and there is no loss of a driver’s license or any other penalty imposed for the offence.

Requirements under Section 10

Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 establishes the factors that should be taken into account by the court when it is considering section 10. These include;

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed, and

(d) any other matter that the court thinks proper to consider.

These matters must be addressed by any defendant applying to the court for a section 10 conditional discharge, as the court takes them into account when determining whether it should be given. The court can then make any of the following orders:

• An order directing that the relevant charge be dismissed under section 10(1)(a). The charges will be outright dismissed, the court will impose no further conditions, and there will be nothing recorded on the criminal record
• An order discharging the person, subject to the condition that the person enters into a good behaviour bond not exceeding a maximum time period of two years under section 10(1)(b). The good behaviour bond will at minimum require the offender not to commit any further offences within the bond’s applicable time period, advise the court of any address changes, and require that the offender appear before the court when requested to do so.
• An order discharging the person subject to the condition that they enter into an agreement to participate in an intervention program, and to comply with any intervention plan arising out of that program. This means that under section 10(1)(c), the defendant will be obligated to successfully participate in a rehabilitation course of some kind, and any related action plan that is specified in the intervention program.

Section 10 and traffic offences

A section 10 order is particularly beneficial for defendants charged with PCA or other traffic offences, because they will be exempt from the mandatory license disqualification periods which can only be applied following conviction. The NSW Bureau of Crime Statistics and Research has found that since its introduction, there has been a large increase over the last ten years in the use of section 10 and a corresponding decline in the use of licence disqualifications in local courts. Between 1993 and 2002 the overall percentage of PCA cases dealt with under section 10 rose by 22 percentage points for low-range PCA offenders, 12 percentage points for mid-range PCA offenders and 5 percentage points for high-range PCA offenders. At the same time, statistics indicate that the percentage of cases where an offender’s licence was disqualified fell by 18 percentage points for low-range PCA offences, 12 percentage points for mid-range PCA offences and 5 percentage points for high-range PCA offences.

However, it should be noted that if an offender has committed a traffic offence that would cause an automatic loss of demerit points, resulting in the loss of their license, this occurs regardless of whether the court dismisses the offence under section 10.

In R v Nguyen [2002] NSWCCA it was held that the dismissal of charges against first-time offenders is appropriate in certain circumstances, in order to allow them to preserve their reputation of good character. However, in relation to mid-range and high-range PCA offences the courts have generally indicated a far greater reluctance to consider a section 10 order.

In the guideline judgment Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999(2004) 61 NSWLR 305, the court stated that “where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”

The court explained that as alcohol is continuously consumed, not only does the risk of intoxication increase but also the potential seriousness of the offence. Therefore, while for low-range PCA offences the court could conceivably accept that an offender was unaware they had exceeded the limit, this would be much more doubtful for high-range PCA offences, and section 10 would therefore be inappropriate. Furthermore, section 187 of theRoad Transport (General) Act 2005, which deals with a court’s power to impose penalties and disqualify offenders’ driver’s licences, also restricts section 10 bonds from being given where the offender has already received one in the previous 5 years.

While the section 10 order is an understandably popular order in court, particularly for first-time or traffic offenders, defendants should ensure that they understand all of the legal requirements that must be satisfied before they attempt to obtain one.

If you have any questions about how appropriate section 10 would be to your current circumstances or need any further information, please contact us.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev

INTRODUCTION

If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead or if that issue is not determined in the manner which the law requires …there is a fundamental failure in the trial process.Justice Gaudron in Eastman v The Queen [2000] 172 ALR 36 at paragraph 62:

No person can be tried for a crime unless that person is fit to be tried. Put simply, an accused needs to have the mental and physical ability to comprehend the proceedings, plead to the charge and defend him or herself. The modern jurisprudence concerning fitness to be tried characterises the requirement as a component of a fair trial; see: Eastman, as above, per Gaudron at para. 65, Kesavarajah v R (1981) 181 CLR 230, at 245.

All states and territories have statutory provisions to determine the issue of an accused person’s fitness. The concept is well established in the common law and there is an established case law on the issue. The Commonwealth Crimes Act dictates a regime that applies in Commonwealth criminal prosecutions. The applicable rules and procedures are the subject of this paper.

OVER REPRESENTATION

A disproportionate number of persons with mental health and developmental issues are subject to the criminal justice system. The New South Wales Law Reform Commission, in its recent report People with an Intellectual Disability and the Criminal Justice System, noted that 2-3 % of the general population of New South Wales has an intellectual disability, whereas for persons in prison the figure is 12-13%, the figure for defendants in the NSW Local Court was as high as 37% in a study cited (see: NSW LRC report No. 80, pp. 25-26).

While criminologists debate the causal relationship between mental illness, disability and crime, simply put many more defendants are psychiatrically and cognitively unwell as opposed to the general community. Frequently, the mental health of the accused goes a long way to explaining, and sometimes excusing, the conduct.

An additional justification for the requirement that an accused must be ‘fit’ before being subject to the rigors of the criminal justice system is that significant mental illness or retardation makes an individual an inappropriate subject of general and specific deterrence. This consideration is also relevant in relation to sentence proceedings.

In R v Letteri (unreported NSW CCA 18 March 1992), Mr Justice Badgery-Parker noted:

There is ample authority for the proposition that in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given relatively less weight than in other cases because such an offender is not an appropriate medium for making an example to others. (See also: R v Abdulrahman Fahda unreported, NSW CCA, 31 August 1999)

Especially in relation to summary matters, the rules concerning fitness recognise that a disproportionate number of defendants are mentally unwell and or developmentally disabled and that it is desirable to divert a significant proportion of these matters from the criminal justice system to the health system. While the rules concerning fitness have their genesis in the common law, they now sit along side general mental health legislation and have a diversionary impact.

THE CRIMES ACT 1914

The Commonwealth Crimes Act has a number of provisions that deal with fitness and the sentencing alternative for persons suffering from mental illness or intellectual disability. I list the relevant provisions below:

Division 6 – Unfitness to be tried – this division deals with fitness in relation to indictable matters.

Division 7 – Acquittal because of mental illness – this division deals with the situation when an accused is acquitted due to mental illness and provides for the making of hospital orders in relation to such a person.

Division 8 – Summary disposition of persons suffering from mental illness or intellectual disability – this division provides the standard for summary matters where the issue of the defendant’s fitness is raised.

Division 9 – Sentencing alternatives for persons suffering from mental illness or intellectual disability – this division provides such dispositions as hospital orders or psychiatric probation orders for persons convicted on indictment of federal offences.

Division 6 and 8 concern what is generally known as the accused’s fitness to be tried and are the subjects of this paper. Divisions 7 and 9 appear to be rarely used as, where they might apply, Division 6 is also applicable.

FITNESS

The Commonwealth Crimes Act, in common with all State and Territory regimes, distinguishes between accused persons charged with an indictable offence and those charged with a summary offence. The determination of what rules apply relate to the court in which the person would be ultimately tried. In Commonwealth prosecutions, Division 6 – Unfitness to be tried applies to indictable offences and Division 8 – Summary disposition of persons suffering from mental illness or intellectual disability applies to summary matters.

The rules concerning indictable matters more closely resemble the common law and the general principles applied in relation to fitness to be tried. The procedures applied to summary matters are less onerous and the underlying policy is to divert mentally unwell persons from the criminal justice system.

Fitness concerns the person’s physical and mental condition at the time he or she faces prosecution and has nothing to do with the person’s mental state at the time of the offence.

I have used generally the term fitness to be tried or fitness. The concept is sometimes described in terms of fitness to plead. Fitness to be tried is a wider concept. Fitness to plead is one aspect of the notion of fitness albeit an important one. It is the ability to sensibly answer the accusation against you and avail yourself of your legal options. The Commonwealth Crimes Act 1914 uses the term fitness to be tried in Division 6 and this is the preferable term. In relation to summary matters, fitness is not really the appropriate term as the concept has only limited application.

PART 1 -SUMMARY PROCEEDINGS

In a summary proceeding Division 8 applies. The operative section is s20BQ. s20BQ provides that:

(1) Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court:

(a) that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and

(b) that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law…

Further, s20BR states:

For the purposes of this Division, a court of summary jurisdiction may inform itself as the court thinks fit, but not so as to require the person charged to incriminate himself or herself.

s20BQ applies to summary proceedings for a federal offence where any party raises an issue as to the defendant’s mental state or intellectual capacity. The application of the section to proceedings is discretionary as the court ‘may’ make an order under the section. The section has the effect of functioning as a dismissal of the charge and precludes the prosecution taking any further action concerning the offending conduct.

The section demands that a magistrate be satisfied of 2 matters before proceedings can be disposed of under the section. Further, whether a person should be dealt with under the section is a matter of discretion and not easily susceptible to review.

First, under s20BQ(1)(a), the court must be satisfied that a person charged is ’suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability’.

The paragraph contemplates a magistrate applying the standard of the State or Territory law in terms of determining what is a ‘mental illness’.

‘Mental illness’ is defined in the Dictionary of Terms contained in Schedule 1 of the Mental Health Act 1990 (NSW) as:

‘a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

(a) delusions,
(b) hallucinations,
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d)’

There is no elaboration of what constitutes an intellectual disability. Intellectual disability is a broad term and, as the Law Reform Commission research indicates, would potentially encompass more than a 3rd of defendants in the NSW Local Court.

Second, once it is established that a person charged with a federal offence suffers from a mental illness or is intellectually disabled, the magistrate must then determine under s20BQ(1)(b), ‘that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law’.

s20BQ(1)(b) requires consideration to be given to ‘an outline of the facts alleged in the proceedings’. Accordingly, a magistrate must consider the nature and seriousness of the prosecution case when determining whether a matter should be disposed of under the section. The seriousness of the offence and the likely outcome of the proceedings for the applicant must be considered when determining whether it is appropriate to deal with a matter under the section. For this reason, an applicant’s prior criminal history or good character is relevant.

Some consideration needs to be made of the public interest in the proceedings being dealt with under the section rather than according to law. If the allegation against an applicant is very serious, it may be inexpedient to apply the section, as there is a greater public interest in having the applicant dealt with according to law for the offences charged. The alleged conduct may also illustrate the dimensions of the applicant’s mental illness or intellectual disability and, as pointed out in Letteri, indicate the futility of subjecting the person to punishment.

s20BQ’s coverage is broad and its application discretionary. The section is not concerned with fitness to be tried, as it is generally understood at common law. This point is illustrated in the case of Mackie v Hunt and Anor, unreported, Supreme Court of NSW, 8 December 1989. This case concerns the then equivalent NSW provision concerning summary offences. The legislation (the then s428W of the Crimes Act 1900 NSW) was almost identical to s20BQ. The prosecution in Mackie sought to advance the proposition that the relevant test required a consideration of the defendant’s fitness to stand trial. The Court rejected this interpretation and noted the provision was a ‘diversionary measure’ ( p. 8 ) and that the magistrate could exercise powers under the section whether the intellectually disabled person is fit to be tried as a diversionary measure as well as where the defendant is unfit.

From the experience of the author, s20BQ tends to be applied fairly liberally and if the applicant satisfies the first limb, the matter is generally disposed of under the section.

PART 2 – INDICTABLE PROCEEDINGS

An accused person’s fitness to be tried in a Commonwealth prosecution in any state or territory court is governed by Division 6 of the Crimes Act 1914. The leading case is the High Court’s decision in Kesavararajah v R (1994) 123 ALR 463.

The s20B concerns ‘proceedings for the commitment of a person for trial of a federal offence on indictment’ (s20B). On its face, it appears to only cover committal proceedings although it is applied at all stages of the prosecution of an indictable offence. When an indictable offence is being dealt with summarily, the relevant provision is s20BQ.

TIMING

The fitness of an accused is a fluid concept and in light of the episodic nature of many mental illnesses, fitness will arise at different times throughout the life of the proceedings. There is a well-documented link between stress and the severity of some mental illness such as schizophrenia and it can be expected that an accused’s condition will deteriorate at critical junctures in the litigation i.e. at the commencement of the trial. Ideally, the issue should be raised prior to arraignment.

The issue of fitness can be determined at any stage in the proceedings. This includes after conviction and prior to sentence. The issue could theoretically be raised the moment before the judge pronounces sentence. Once the court is functos officio of the proceedings the question cannot be raised.

In Eastman v R, there was an attempt by the applicant, who had been convicted of murder in the Supreme Court of the Australian Capital Territory, to raise for the first time the issue of his fitness in the High Court. The question of the applicant’s fitness had not been raised at trial or at his Full Federal Court appeal. The High Court by a majority held that an accused’s fitness is a factual matter and cannot be raised as a fresh matter in an appeal court in accordance with the general rules concerning raising new matters on appeal. A failure to deal with the issue of fitness appropriately would give rise to appellable error.

According to s20B, ‘[T]he prosecution, the person or the person’s legal representative’, can raise the issue of the accused’s fitness. There does not appear to be any provision for the judge or magistrate to raise the issue, and this places some responsibility on the prosecution in appropriate circumstances to raise the issue, although sufficiently bizarre behaviour on the part of an accused may in effect raise the issue so as to provide a judge with enough justification to conduct an enquiry. Generally speaking, the accused legal representative should raise the issue. The inability to get proper instruction is indicative of a possible lack of fitness.

For the accused’s legal representative, raising fitness on one’s client’s behalf is an instance where instructions are not necessary and the legal representative can ethically act contrary to his or her instructions and raise the issue.

The issue needs to be raised in good faith and there is no requirement that there be expert evidence available at the time although such material is obviously useful. Once the issue is raised in good faith there is no discretion as to whether or not an enquiry should take place; an enquiry must take place.

Raising of the accused’s fitness will necessarily place the prosecution in abeyance. In practical terms the result of such an enquiry may be that the prosecution is delayed til appropriate treatment is undertaken. The minimum delay would be something like 6 to 12 months.

In R v Ju Sheng Zhang, unreported NSW CCA, 31 August 2000, the prosecutor, on the 4th day of the accused’s trial in which the accused was representing himself, expressed some concern about the accused’s fitness due to his increasingly bizarre behaviour. The jury had been empanelled and the trial was underway. There had been an earlier psychiatric examination of the accused that due to the accused apparent lack of cooperation had provided very little information. The prosecutor sought to then withdraw his earlier ‘application’ and the trial continued. On appeal, it was noted that it was not an option to continue the trial once the issue had been raised in good faith: ‘ his honour [had] no option but to discharge the jury and order an enquiry’ (p. 7) into the accused fitness.

In NSW, if the issue of the accused fitness is raised prior to arraignment, the permission of the NSW Attorney-General is required prior to an enquiry taking place [s8, Mental Health (Criminal Procedure) Act 1990]. s8 reads:

Procedure where question of unfitness raised before arraignment

(1)If the question of a person’s unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Attorney General must determine whether an enquiry should be conducted before the hearing of the proceedings in respect of the offence.

(2)The Attorney General may, at any time before the enquiry is commenced, determine that there is no longer any need for such an enquiry to be conducted.

The section only applies to criminal proceedings in the Supreme and District Court relating. The permission of the State Attorney is not necessary for an indictable Commonwealth prosecution that is still proceeding through the Local Court as s20B of the Crimes Act 1914 applies. After a person is arraigned, the permission of the New South Wales Attorney is not required.

Accordingly if a person subject to a Commonwealth prosecution raises the issue of his or her fitness prior to arraignment, the permission of the state Attorney-General needs to be sought (see: Judge Woods, R v James William Shepherd, 17 July 2003, unreported). This is an example of the ‘pick-up’ of state law in Commonwealth prosecutions discussed below.

APPLICABLE LAW

s20B states that the court ‘to which the proceedings would have been referred had the person been committed for trial’ determines the question of fitness. It is not clear from Division 6 what the mode of trial is or what procedures should be applied.

Chief Justice Mason and Justices Toohey and Gaudron in their joint judgment in Kesavarajah noted (at p. 471):

The Commonwealth Act does not make provision for the manner in which the issue of fitness to be tried is to be determined. However, s68(1) of the Judiciary Act 1903 (Cth) makes applicable to persons who are charged with offences against the laws of the Commonwealth the laws of a State or Territory respecting the procedure for trial of persons charged with offences and their conviction. And s79 of the Judiciary Act provides that the laws of each State, including laws relating to procedure, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable.

The law and procedure relating to fitness is one of those areas in Commonwealth criminal law where there is a partial ‘picking-up’ of state and territory law remedying gaps in Commonwealth legislation. This aspect of the law relating to fitness was the subject of comment in Application of Pearson (1999) 46 NSWLR 148:

In Kesavarajah, a question arose as to the fitness of an accused to be tried for a Commonwealth offence. The Crimes Act 1914 (Cth) contains provisions concerning the disposition of an accused who had been found unfit to be tried, but no provision as to the procedure by which the issue of fitness was to be tried. It was held that the State law regulating the method of determining that issue was picked up by s68, but the consequences remained to be determined by Commonwealth law. There was an inconsistency between the State and Commonwealth laws concerning that aspect, so that the latter prevailed. Otherwise the procedural provisions that were lacking under Commonwealth law were made applicable through s68 and s79 of the Judiciary Act 1903 (Cth).

In NSW, there is specific legislation dealing with mental health, and a mental health tribunal. The application of the totality of the NSW procedures in relation to Commonwealth prosecutions is uncertain. As a matter of constitutional law, any NSW provisions that are inconsistent with Commonwealth law will be inoperative to the extent of the inconsistency in accordance with s109 of the Constitution.

In relation to Mr Kesavarajah, who was prosecuted for importing a prohibited narcotic under the Customs Act in Victoria, the High Court noted (at 123 ALR 463 at 473):

The provisions of the State law must necessarily give way to the specific provisions of the Commonwealth Act to the extent of any inconsistency. The consequence would be that the State law would regulate the mode of determination of fitness to be tried, i.e. by jury in Victoria pursuant to s392 [Crimes Act 1958 (Vic)], but the consequences flowing from the determination would be regulated by Commonwealth law.

The first place to look is Division 6 of the Crimes Act 1914. The explicit procedures set out there must be followed.

Division 6 gives a greater role to the courts whereas in NSW a non-judicial tribunal, the Mental Health Tribunal, plays a dominant role after a person is found to be unfit. One of the alternatives that arises once a person is found unfit is the deprivation of his or her liberty in a therapeutic environment or a prison. In Commonwealth prosecutions, Division 6 demands that a Court makes this decision initially although there is later scope for the federal Attorney-General to be involved and what the Division terms ‘prescribed bodies’.

An unresolved issue is the relevance of the constitutional guarantee of trial by jury for matters on indictment provided by s80 of the Constitution. Namely is a fitness trial by judge alone a permissible alternative in a Commonwealth prosecution in light of s80 of the Constitution.

PROCEDURE AT HEARING

At common law, the determination of fitness was a jury question. The determination by a jury of what we would now call an accused’s fitness was part of an arcane practice of determining the reason for an accused’s failure to plead; an accused was either mute through ‘malice’ or ‘visitation of god’. Note 1

Fitness hearings in New South Wales for indictable offences are governed by the provisions of the Mental Health (Criminal Procedure) Act 1990 (‘the Act’). s11 of the Act states that the question of a person’s unfitness to be tried for an offence is to be determined by a jury constituted for that purpose, except as provided by s11A. s11A provides for a judge alone to determine the issue if there is consent of both the Crown and the accused.

Electing to dispense with the right to trial by jury is obviously an important issue in the progress of criminal litigation. For the consent of the accused to be obtained, the accused needs to digest appropriate advice and provide competent instructions (see: R v Mifsud, unreported, 8 November 1995, NSW CCA). As a practical point, an accused who is suspected of being unfit is also unlikely to be unable to give proper instructions as to whether to elect to have trial by judge alone. Accordingly most fitness hearings take place in front of a jury for the practical reason that the person whose fitness is to be tried is unable to give consent to a judge alone disposal irrespective of the view of the Crown.

s6 of the Act states that ‘the question of a person’s unfitness to be tried for an offence is to be determined on the balance of probabilities.’ This section applies to Commonwealth matters.

s12 of the Act deals with the conduct of the enquiry. The section reads:

12 (1) At an enquiry, the accused person is, unless the Court otherwise allows, to be represented by counsel or a solicitor.

(2) An enquiry is not to be conducted in an adversary manner.

(3) The onus of proof of the question of a person’s unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence.

(4) At the commencement of an enquiry the Court is to explain to the jury the reason for the enquiry, the findings which may be made on the enquiry and the consequences, both at law and otherwise, of those findings.

The accused person at a special hearing may be allowed to give evidence (or make a statement if it is permissible) even though his or her representative is opposed to that course being followed: R v Smith (CCA (NSW), 11 June 1999, unreported, BC9903092); (1999) 6 Crim LN 50 [1015]; [1999] NSWCCA 126.

The procedures for a special hearing were considered in R v Zvonaric BC200108141; [2001] NSWCCA 505; (2002) 9 Crim LN 4 [1379], where it was stressed that a special hearing should be conducted as nearly as possible as if it were a trial (see s21 of the Act), including a formal arraignment and the proper reception of evidence. Chief Justice Spigelman stated that special hearings should not be dealt with as if they were paper committals. The trial miscarried because the trial judge did not expose her reasons for the findings made in respect of the elements of the offence.

Notes
1. W J Brookbanks, Judicial Determinations of Fitness to Plead – the Fitness Hearing, Otago Law Review, (1992) vol. 7, No. 4, 520, see: p. 522.

Get

This article is intended to provide a guide to the operation of section 10, and the requirements defendants must keep in mind when considering applying for it. Section 10 is among the most sought after orders by defendants in the local courts, particularly by those charged with traffic offences.

This is due to the fact that section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nevertheless discharge that person without proceeding to conviction. Section 10 was initially introduced in order to allow the courts to prevent injustices occurring in certain circumstances where even though a legal offence had been committed, the extenuating circumstances made it inappropriate to punish the defendant.

Because there is no conviction recorded, a major benefit of section 10 is that it means that first-time offenders will not receive a criminal record, and there is no loss of a driver’s license or any other penalty imposed for the offence.

Requirements under Section 10

Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 establishes the factors that should be taken into account by the court when it is considering section 10. These include;

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed, and

(d) any other matter that the court thinks proper to consider.

These matters must be addressed by any defendant applying to the court for a section 10 conditional discharge, as the court takes them into account when determining whether it should be given. The court can then make any of the following orders:

• An order directing that the relevant charge be dismissed under section 10(1)(a). The charges will be outright dismissed, the court will impose no further conditions, and there will be nothing recorded on the criminal record
• An order discharging the person, subject to the condition that the person enters into a good behaviour bond not exceeding a maximum time period of two years under section 10(1)(b). The good behaviour bond will at minimum require the offender not to commit any further offences within the bond’s applicable time period, advise the court of any address changes, and require that the offender appear before the court when requested to do so.
• An order discharging the person subject to the condition that they enter into an agreement to participate in an intervention program, and to comply with any intervention plan arising out of that program. This means that under section 10(1)(c), the defendant will be obligated to successfully participate in a rehabilitation course of some kind, and any related action plan that is specified in the intervention program.

Section 10 and traffic offences

A section 10 order is particularly beneficial for defendants charged with PCA or other traffic offences, because they will be exempt from the mandatory license disqualification periods which can only be applied following conviction. The NSW Bureau of Crime Statistics and Research has found that since its introduction, there has been a large increase over the last ten years in the use of section 10 and a corresponding decline in the use of licence disqualifications in local courts. Between 1993 and 2002 the overall percentage of PCA cases dealt with under section 10 rose by 22 percentage points for low-range PCA offenders, 12 percentage points for mid-range PCA offenders and 5 percentage points for high-range PCA offenders. At the same time, statistics indicate that the percentage of cases where an offender’s licence was disqualified fell by 18 percentage points for low-range PCA offences, 12 percentage points for mid-range PCA offences and 5 percentage points for high-range PCA offences.

However, it should be noted that if an offender has committed a traffic offence that would cause an automatic loss of demerit points, resulting in the loss of their license, this occurs regardless of whether the court dismisses the offence under section 10.

In R v Nguyen [2002] NSWCCA it was held that the dismissal of charges against first-time offenders is appropriate in certain circumstances, in order to allow them to preserve their reputation of good character. However, in relation to mid-range and high-range PCA offences the courts have generally indicated a far greater reluctance to consider a section 10 order.

In the guideline judgment Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999(2004) 61 NSWLR 305, the court stated that “where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”

The court explained that as alcohol is continuously consumed, not only does the risk of intoxication increase but also the potential seriousness of the offence. Therefore, while for low-range PCA offences the court could conceivably accept that an offender was unaware they had exceeded the limit, this would be much more doubtful for high-range PCA offences, and section 10 would therefore be inappropriate. Furthermore, section 187 of theRoad Transport (General) Act 2005, which deals with a court’s power to impose penalties and disqualify offenders’ driver’s licences, also restricts section 10 bonds from being given where the offender has already received one in the previous 5 years.

While the section 10 order is an understandably popular order in court, particularly for first-time or traffic offenders, defendants should ensure that they understand all of the legal requirements that must be satisfied before they attempt to obtain one.

If you have any questions about how appropriate section 10 would be to your current circumstances or need any further information, please contact us.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev

ting Help

Australian Labour Law Conference, Melbourne, 14-15 November 2008.

Introduction

The illegal nature of slavery, or having property in a person, presents some unique problems of definition. In a non-slave owning society, there are no slaves but there can be people who try and treat others like slaves. Should extreme proprietorial misbehaviour over others be called slavery or something else? This is the question that the High Court in the Queen v Tang has recently answered. The High Court’s decision in the Queen v Tang was delivered on 28 August 2008 and provides guidance on the content of the slavery offences in the Commonwealth Criminal Code (‘the Code’).

The main issue that the High Court had to consider in the Queen v Tang was the mens rea necessary for a person to be guilty of possessing a slave. As Justice Haynes observed during the hearing of the Queen v Tang:

…we are in the realm of discourse where the rights of ownership in question are the antithesis of rights that are legally enforceable so we have entered at least a realm of comparison perhaps a realm of metaphor. The rights or the powers in question … are by definition … powers that are not going to find legal support for their exercise.

Slavery as a discrete criminal offence is a metaphor that has been marshalled to perform the role of proscribing the boundary of permissible labour relations. In one sense, making illegal something that has been illegal for over 150 years defies logic but it seems to be working (after a lot of difficulties).

Background

The Macquarie Dictionary defines a slave as ‘one who is property of and wholly subject to another’. This definition equates with what the literature terms ‘chattel slavery’. Namely, all aspects of the person being under the control of another.

For most recorded history and for as long as there have been developed legal systems, a slave was recognised as a legitimate type of property. Many ancient and no so ancient legal systems had extensive provisions concerning the treatment and maintenance of slaves. As Jean Allan has observed the essence of slave laws ’since the time immemorial has been the inability to treat slaves as property and thus to recognise in them their humanity.’

Modern legal systems do not recognise that one person is able to own another. Slavery is a practise that has progressively become more and more aberrant- let alone legal. One of the reasons why modern slavery or slavery like practises are considered so degrading and worthy of condign denunciation is that they are an entirely illegal and exploitive activity. The protections that existed for slaves in slave owning systems do not exist.

The 19th Century Slave Acts

Prior to 1999, no Australian Parliament had legislated on slavey and the relevant law was found in old Imperial statutes produced as the by-product of the abolitionist movement in the early 19th Century and generally designed to outlaw the slave trade rather than slavery like practises.

The abolitionist movement of the early 19th century had as its focus the slave trade. In 1824, the Slavery Trade Act abolished the slave trade in the United Kingdom and its colonies. The 1824 Act also contained a number of criminal offences concerning participation in the slave trade and dealing in slaves. In 1833, the Slavery Abolition Act abolished the institution of slavery in all British Colonies. The Slavery Abolition Act 1833 stated:

Slavery shall be and is hereby utterly and forever abolished and declared unlawful throughout the British colonies, Plantations and Possessions abroad.

Abolition is a powerful statement – a person cannot be property. The law that recognises that a person is a person negates any exercise of proprietorial rights over another person. Any specific attempt to ‘own’ the person will be a discrete criminal offence such as assault or trespass. Abolition has a simply and attractive reliance on equality before the law.

The 1824 Act created a number of offences associated with dealing with slaves but it and subsequent Imperial enactments never specifically criminalise possessing a slave. These enactments of the British Parliament were incorporated into Australian law and only repealed in 1999. Until 1999, these enactments of the British Parliament and some later ones were the law in Australia concerning slavery.

The Australian Law Reform Commission in its 1990 report on the Criminal Admiralty Jurisdiction and Prize noted that the 19th century Slave Acts were ‘obscure’, ‘archaic’ and:

…a number of their provisions related to circumstances and institutions that have either changed or long fallen into disuse. …The Acts are less certain in their application to slavery itself. Unless enslavement and purporting to own a slave represents dealing in slaves they do not clearly constitute offences. Slavery is abolished and declared unlawful in Australia under the Slavery Abolition Act 1933 but no penalty is prescribed. (paras 108 – 111)

The Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 criminalised possession of a slave as a discrete form of prohibited behaviour. This Act repealed the previous Imperial Acts that comprised Australian slavery law and reiterated the abolition of slavery and for the first time introduced slavery and sexual servitude offences. In addition to being abolished slavery or more correctly possession of a slave was now a discrete offence.

International law aspect

The 19th century Slave Acts dealt with what is termed ‘chattel slavery’. Persons as property and more specifically persons as items of international mercantile trade. From the beginning of last century, there was awareness that slavery should encompass a broader array of oppressive labour relationships and cultural practises. Under the broad banner of slavery there have been international efforts to deal with many diverse types of exploitative human relationships. In the travaux prepratoires to the 1926 Slavery Convention there was discussion of abolition of slavery ‘in all its forms’ and similar conditions including ‘debt slavery’, ‘the enslaving of persons disguised as the adoption of children’ and ‘the acquisition of girls in the context of dowry payments’. More recently in 2000, a United Nations Working Group on Contemporary Forms of Slavery has examined apartheid, colonialism and incest under the guise of slavery. Needless to say many of these more ambitious definitions of slavery have not gain acceptance but public international law contains some important principles in relation to the proscription of slavery. Australia’s international obligations concerning slavery provide the constitutional basis for slavery offences.

The 1926 Slavery Convention (‘the 1926 Convention’) is the first of a number of significant international conventions that seek to suppress the slave trade and bring about the abolition of slavery ‘in all its forms’ and related practices. The article 1(1) slavery in 1926 Convention has been highly influential. Slavery is defined as ‘the status or condition or a person over whom any or all of the powers attaching to the rights of ownership are exercised.’ The use of the terms ’status’ and ‘condition’ is significant:

… ’status and condition’ seeks to distinguish between slavery de jure and slavery de facto, whereby slavery as ’status’ is a recognition of slavery in law; and slavery as ‘condition’ is to be under stood as slavery in fact.

This definition acknowledges that it is one thing to abolish slavery within a legal system but there can still be persons whose lives are lived under slave like conditions.

The Supplementary Slavery Convention 1956 (‘the 1956 Convention’) was adopted by the United Nations in 1956 and was intended to ’supplement’ and ‘augment’ the 1926 Convention. Article 1 of the 1956 Convention deals with institutions and practises similar to slavery and calls on parties to ‘progressively and as soon as possible’ abolish or abandon the following practices:

‘… whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926:

(a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;

(b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;

(c) Any institution or practice whereby:
(i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or
(ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or
(iii) A woman on the death of her husband is liable to be inherited by another person;

(d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

Most recently and significantly the 1998 Statute of the International Criminal Court (‘the Rome Statute’) lists ‘enslavement’ as a crime against humanity. The Rome Statute defines enslavements at article 7(2)(c) as ‘… the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.’

The International Tribunal for the Former Yugoslavia also has dealt with allegations of enslavements. The Appeal chamber’s decision Kunarac and others deal with a number of persons found guilty of a variety of crimes against humanity including enslavement. The appeal chamber noted that slavery encompasses ‘any exercise of any or all of the powers attached to the rights of ownership’ and:

… in the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of owner associated with chattel slavery, but in all cases, as a result of the exercise of any or all of the powers attached to the rights of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of chattel slavery but the difference is one of degree.

The Commonwealth is of Australia is a party to the 1926 and 1956 Conventions and the Rome Statutes. Chief Justice Gleeson in the Queen v Tang after a lengthy discussion of the international jurisprudence and Kunarac noted that slavery as proscribed in the Criminal Code is ’sustained by the external affairs power’ and is ‘not limited to chattel slavery.’

Recent Commonwealth legislation

Australian legal systems did not proscribed possession of a slave as a criminal offence. Until in 1999, the Criminal Code (Slavery and Sexual servitude) Act remedied this situation. The Act inserted a new Chapter 8- Offences against humanity and related offences into the Commonwealth Criminal Code. The Division has been amended on a number of occasions most notably in relation to Australia’s ratification of the Rome Statute and by a significant overhaul of the Chapter in 2005 with the insertion of various new slavery related offences including an offence called debt bondage in relation to oppressive contracts.

The relevant parts of the current Code Act concerning slavery read:

270.1 Definition of slavery

For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.

270.2 Slavery is unlawful

Slavery remains unlawful and its abolition is maintained, despite the repeal by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 of Imperial Acts relating to slavery.

270.3 Slavery offences

(1) A person who, whether within or outside Australia, intentionally:
(a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or
(b) engages in slave trading; or
(c) enters into any commercial transaction involving a slave; or
(d) exercises control or direction over, or provides finance for:
(i) any act of slave trading; or
(ii) any commercial transaction involving a slave;
is guilty of an offence.
Penalty: Imprisonment for 25 years.

(2) A person who:
(a) whether within or outside Australia:
(i) enters into any commercial transaction involving a slave; or
(ii) exercises control or direction over, or provides finance for, any commercial transaction involving a slave; or
(iii) exercises control or direction over, or provides finance for, any act of slave trading; and
(b) is reckless as to whether the transaction or act involves a slave, slavery or slave trading;
is guilty of an offence.
Penalty: Imprisonment for 17 years.

(3) In this section:
slave trading includes:
(a) the capture, transport or disposal of a person with the intention of reducing the person to slavery; or
(b) the purchase or sale of a slave.

(4) A person who engages in any conduct with the intention of securing the release of a person from slavery is not guilty of an offence against this section.

(5) The defendant bears a legal burden of proving the matter mentioned in subsection (4).

In 2005, the Criminal Code Amendment (Trafficking in Persons Offences) Act inserted a number of new offences into Chapter 8 of the Code. The new offences included a general trafficking offence that criminalised bringing a person to Australia by means of threats, force or deception, an offence of trafficking in children and deceptive recruiting for sexual services.

The 2005 Act also included a debt bondage offence that criminalises the use of exploitative debt contracts or arrangements that force a person into providing sexual services or other labour to pay off large debts.

The Code Act defines debt bondage as:
… the status or condition that arises from a pledge by a person:
(a) of his or her personal services; or
(b) of the personal services of another person under his or her control; as security for a debt owed, or claimed to be owed, (including any debt incurred, or claimed to be incurred, after the pledge is given), by that person if:
(ba) the debt owed or claimed to be owed is manifestly excessive; or
(c) the reasonable value of those services is not applied toward the liquidation of the debt or purported debt;
(d) the length and nature of those services are not respectively limited and defined.

A person commits the offence of debt bondage if ‘the person engages in conduct that causes another person to enter into debt bondage’. Debt bondage is punishable by a maximum of 12 months imprisonment. Compared with slavery that has a maximum of 25 years imprisonment it is a relatively minor offence. Debt bondage could be described as ’slavery lite’.

In the slavery prosecution of Trevor McIvor and Kanokporn Tanuchit in New South Wales, both accused were initially charged with debt bondage offences in relation to contracts with sex worker in their brothel in Fairfield in Sydney. The prosecution did not present an indictment that included a charge of debt bondage as an alternative to slavery when both were tried in the NSW District Court. In 2007, a jury convicted both of slavery offences. Other than this prosecution, the author is unaware of any other prosecutions for debt bondage.

On 29 August 2008, District Court Judge Taylor in the NSW District Court sentenced both McIvor and Tanunchit in relation to 5 counts of possessing a slave and 5 related counts of exercising a right of ownership over a slave to a cumulative sentence of 10 years and a non parole period of 7.5 years. An appeal is highly likely but the NSW District Court judgment is available and provides a useful insight into slavery prosecutions in contemporary Australia.

Slavery does appear to be the preferred charge and the Commonwealth Director of Public Prosecution has had some success in slavery prosecutions over the last 5 years.

In summary, the Code Act includes the following slavery related offences:
– slavery (penalty of up to 25 years imprisonment);
– sexual servitude (up to 15 years);
– deceptive recruiting for sexual servitude (up to 7 years);
– trafficking (up to 12 years);
– trafficking in children (up to 25 years);
– domestic trafficking in persons (up to 12 years); and
– debt bondage (up to 12 months).

The Queen v Wei Tang

This is the leading and very recent case concerning the meaning of slavery in terms of the Criminal Code. The High Court delivered its judgment on 28 August 2008.

Ms Wei Tang was the owner of a licensed brothel 417 Brunswick Street, Fitzroy known as Club 417. Wei Tang was convicted following a trial in County Court of Victoria of 5 offences as intentionally exercising over persons powers attaching to the rights of ownership contrary to section 270.3(1)(a) of the Criminal Code. Each offence related to women who were Thai nationals. They had all previously worked in the sex industry in Thailand. Each came to Australia voluntarily as ‘contract workers’ at Club 417. There was no written contract, but there were agreed conditions.

The women were brought to Australia by a syndicate and acknowledged a debt to the persons who brought them to Australia and thereafter ‘owned’ them. The women appeared to be able to be purchased for $20,000.00. At least in relation to 4 of the women Wei Tang was an ‘owner’. The debt amount varied between $40,000.00 and $45,000.00. For each customer the women had sex with the debt would be reduced by $50.00. An amount of $110 was charged per customer, the brothel owner, Wei Tang, received $43 and the rest went to the owners. Wei Tang was the owner for at least 4 of the women also. Each ’service’ reduced the debt by $50.00. The women received no payment except they were allowed a free day when they could retain $50 from the $110.00 fee charged to the customer. The work regime was that the women would work 6 days a week. The women were not kept under lock and key and the trial judge found that they well nourished and provided for. The demands of their work meant that they were effectively restricted to the brothel premises.

All the women came to Australia aware of their condition as contract workers on the understanding that once their debts had been paid off they had the opportunity to earn money working as prostitutes on their own account. The brothels in which they worked had a combination of ‘contract girls’ and other workers. The High Court rejected that significance of consent or that a contract or debt was involved as somehow antithetical with slavery.

Wei Tang was convicted after a lengthy trial in the Victorian County Court. The co-accused Paul Pick was acquitted of slavery offences. The trial judge sentenced Wei Tang to 10 years imprisonment with a single non-parole period of 6 years. It was the first conviction in Australia for slavery offences after a trial by a jury. In 2005, DS had pleaded guilty to 3 counts of possessing a slave: (R v DS [2005] VSCA 99).

The Victorian Court of Appeal found the direction that the trial judge had given to the jury in relation to the knowledge that a possessor of slaves must have defective. In essence, the Victorian Court of Appeal demanded that an accused must be able to be shown to have intentionally exercised a power that an owner would have over property and was doing so with the knowledge or in the belief that the person was no more than property. Justice Eames in the Victorian Court of Appeal noted:

… much more is required than that the person be shown to have been exploited abused or humiliated, whether physically, emotionally or financially. To be a slave, the person must be in a state where others deal with him or her as though he or she was merely property- a thing. For the exercise of the power to contravene section 279.3(1)(a) the accused must have knowingly treated the person as though he or she was the accused’s property. Only when that state of mind exists is the exercise of the power referable to rights of ownership as the section requires.

One of the concerns of the Court of Appeal was the apparent problem of differentiating exploitive employment relationships and slavery. The Court of Appeal’s solution was to demand that the slave owner must know that the slave is a slave and then exercise proprietorial rights in relation to the slave. The High Court disagreed.

The leading judgment is that of the then Chief Justice and gives a thorough review of international developments in the area and clearly notes that slavery is not limited to chattel slavery. It is one of the last judgments of Chief Justice Gleeson. Chief Justice Gleeson states that what is relevant are the nature and extent of the powers exercised over the person alleged to be a slave. As Chief Justice Gleeson and Justice Haynes in their judgments noted section 270.03(1) (a) of the Code criminalises ‘possession of a slave or exercises over a slave any of the other powers attaching to the rights of ownership.’

Chief Justice Gleeson noted that various exploitive labour practises are not necessary mutually exclusive with the international law definition of slavery although it was unnecessary and unhelpful to determine whether ’servitude, peonage, forced labour or debt bondage were forms of slavery.’ Further Chief Justice Gleeson observed that it was not necessary for the prosecution to establish that Wei Tang had any knowledge or belief concerning the source of the powers exercised over the women.

The Chief Justice noted:

It is important not to debase the currency of language, or to banalise crimes against humanity, by giving slavery a meaning that extends beyond the limits set by the text, context, and purpose of the 1926 Slavery Convention. In particular it is important to recognise that harsh and exploitative conditions of labour do not of themselves amount to slavery. The term “slave” is sometimes used in a metaphorical sense to describe victims of such conditions, but that sense is not of present relevance. Some of the factors identified as relevant in Kunarac, such as control of movement and control of physical environment, involve questions of degree. An employer normally has some degree of control over the movements, or work environment, of an employee. Furthermore, geographical and other circumstances may limit an employee’s freedom of movement. Powers of control, in the context of an issue of slavery, are powers of the kind and degree that would attach to a right of ownership if such a right were legally possible, not powers of a kind that are no more than an incident of harsh employment, either generally or at a particular time or place.

Accordingly, the High Court, apart from Justice Kirby who agreed with the Victorian Court of Appeal, characterises possessing a slave in terms of behaviours that can be seen ‘as a power attaching to ownership’.

Accordingly, slavery is a matter of degree in terms of whether behaviours will constitute an exercise of ‘a power attaching to ownership’. From a practical point of view, the fact that there are a number of behaviours that are together consistent with ownership will be significant.

Justice Hayne found 2 powers attaching to ownership of critical importance in the case:

There was the evidence that each complainant came to Australia following a transaction described as purchase and sale. There was the evidence of how each complainant was treated in Australia, in particular evidence about the living and the working conditions of each. And a critical feature of that evidence was that each woman was treated as having incurred a debt that had to be repaid by working in the brothel. Although there was evidence that one of the complainants was able to secure a reduction in the amount of her initial debt, there was no satisfactory explanation in the evidence of how the so-called debt of any of the complainants was calculated, or of what had been or was to be provided in return for the incurring of the obligation.

The Hight Court confirmed the conviction of Wei Tang. The sentence appeal of Wei Tang was remitted to the Victorian Court of Appeal and is to date unresolved.

Conclusion

The initial title of the paper was ‘The re-emergence of slavery’. What there has been in Australia is an engaging of the legislature, the police and prosecution authorities with issues associated with forced labour and human trafficking in Australia that is significant. There have been problems but there has been real progress in dealing with some highly unpleasant labour relationships through the proscription of slavery. In either the County Court in Melbourne or the District Court in Sydney lengthy trials involving allegations of maintaining slaves or sexual servitude are occurring on a semi regular basis. This did not happen 10 years ago.

Accordingly in this sense there has been a re-emergence of slavery. Significantly, the High Court has recently considered what it means to possess a slave in a modern non-slave owning society in its decision in R v Wei Tang. Wei Tang’s case is an important decision and provides some clear assistance in effectively denouncing practises that involve one person seeking to treat another as property.

The approach of the High Court is also consistent with current international practise. Significantly enslavement is now an offence in the Rome Statute.

What judicial scrutiny shows is that slavery is a sophisticated and complex vehicle to denounce extreme labour practises. Exercising ownership over an individual is an activity that requires something to be done but some resort to what Justice Hayne calls the ‘realm of metaphor’. The author’s personal view is that the very extreme nature of the concept of slavery is at times unhelpful. No person in a modern society will identify his or her behaviour as keeping a slave. Therefore it will be almost impossible for an offender to see himself or herself as a keeper of slave. Workers will be ‘contract girls’ or described in some other euphemistic or culturally specific manner. Crimes that the subject cannot clearly identify as committing can be considered problematic in terms of general and specific deterrence. In cases such as Tang and other prosecutions, the accused focussed on freedoms enjoyed by the slaves so as to somehow negate the accusation that slaves were being kept. Wei Tang’s legal representative in the High Court, for example, sought to advance the argument that the definition of slavery in Australia was limited to chattel slavery. Significantly, in the Wei Tang prosecution both at the trial, Court of Appeal and in the High Court no significance was given to a dispute whether the complainants were in fact locked in their accommodation in the evening.

Slavery prosecutions are very expensive and difficult prosecutions. The trials that have been conducted have been long and arduous affairs and only recently has there been a consistent pattern of success. The 2 recent successful trials involving Wei Tang and co-accused McIvor and Tanuchit both concerned oppressive contractual arrangements, Despite the Chief Justice’s coyness in the Queen v Tang to list all the practises that constitute slavery, there is a credible legal argument that the Australian law against slavery includes now oppressive contractual arrangement,

It may be more effective in terms of dealing with such aberrant labour relationships to identify and proscribe the particular practises that constitute exercising a power of ownership over an individual. To some extent the Parliament has acknowledged these problems and Chapter 8 of the Criminal Code now contains offences such as debt bondage. The problem with the debt bondage offence is that the maximum penalty (12 months) is completely inadequate in relation to the types conduct concerned. If the punishment could fit the crime, a more robust debt bondage offence could do much of the work that metaphor has been pressed into recently.

The recent international jurisprudence concerning slavery indicates the needs for such an offence in Australia if not for no other reason than Australian criminal law should reflect current international practise.

Despite these problems, juries appear to ‘get it’. Since Wei Tang, there have been a number of cases where juries have found the offence of possessing a slave proven. Juries abilities may further indicate that there is a role for slavery offences. Every group of criminal offences needs the metaphorical capital offence and slavery is ‘it’ in terms of proscribed labour relationships. Lastly, for labour lawyers, slavery represents the really ‘bad stuff’ and should remind labour lawyers that the discipline involves a spectrum of human relationships.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev

‘Putting your hand in the till’ is a temptation many yield to and can lead to a wide variety of sometime serious criminal consequences. As business and financial arrangements become more complex there is also greater scope for malfeasance and misbehaviour.

A privatised approach to malfeasance in the work place has long been commonplace. Increasingly forensic accountants and investigators are being used by businesses when things go wrong. It is important to remember that while defalcations will have a management and economic dimension, the behaviour will also frequently be criminal.

The common law concept of fraud

There is an established common law associated with fraud. Most offences that involve misbehaviour with money or property will involve what the common law terms ‘fraud’. Accordingly, the general law in relation to fraud is the useful guide to what is criminal conduct.

To ‘defraud’ is to intentionally use dishonest means to deprive another person of their property, or to imperil their rights or interests. It involves the intentional creation of a situation by one person to use dishonest means to deprive another person of money or property, or to imperil another person’s rights or interests.

The leading High Court case on fraud is Peters (1998) 192 CLR 493 at 508. The concept of fraud was also considered by the High Court in Spies (2000) 201 CLR 603, where the High Court emphasised that in all offences alleging ‘defrauding’, the prosecution must establish that the accused used ‘dishonest means’ to achieve his or her object.

‘Dishonest means’ was explained in Peters (1998) 192 CLR 493 at 508 and 529. To prove dishonest means the Crown will have to establish that the accused intended to prejudice another person’s right or interest or performance of their public duty by:

making or taking advantage of representations or promises which they knew were false or would not be carried out;
concealing facts which they had a duty to disclose; or
engaging in conduct which they had no right to engage in.

In determining whether the conduct of an accused is dishonest, the standard, which is applied, is that of ordinary decent people. Accordingly taking money, telling lies, concealing facts, relying on representations or promises that are false will constitute dishonest means.

The concept has some flexibility and covers a wide variety of dishonest conduct. The other main element is economic imperilment. There is a need for some potentiality of loss. An actual loss is not required. Generally economic imperilment is easily established. The doctrine of economic imperilment has more application to frauds on public authorities.

Some common ‘office’ crimes.

There is a long history of differentiating between crimes between strangers and crimes between individuals where there is an economic relationship. This differentiation is made principally because an offence committed by a servant or clerk is aggravated by the breach of trusts.

Larceny by a servant

Larceny covers theft. A servant or clerk is every person employed for any purpose. One test is whether the individual is bound to obey the orders of the employer so that he or she is under the employer’s control.

Larceny has the following elements:
1. the taking and carrying away of (asportation)
2. the property of another
3. with the intent to permanently deprive the owner of the property
4. and the taking is without the owner’s consent

Dishonesty can also be added as an element of the offence. The property also needs to be in the possession of the owner at the time of the taking away

The property must be a specific moveable item and must have some value, no matter how slight: Daley (1879) 12 SCR (NSW) 151.This includes illegal drugs: Anic (1993) 68 A Crim R 313. It appears not to include confidential information: (Stewart (1988) 41 CCC (3d) 481).

Larceny by a clerk or servant is punishable by up to 10 years imprisonment (section 156, Crimes Act 1900).

Embezzlement

Another common law favourite is embezzlement. This offence concerns the misappropriation of property or any thing that comes in to the possession of a servant or clerk. It is larceny when the property is in the possession of the employer and is taken by the employee, embezzlement when the property is taken before the employer obtains possession of the property. The property must have been received by the employee on behalf of the employer. A typical example of embezzlement is an employee taking delivery of some property and keeping it.

Embezzlement by a clerk or servant is punishable by up to 10 years imprisonment (section 157, Crimes Act 1900)

General deficiency

In the NSW Crimes Act and the Commonwealth Criminal Code Act, there are provisions in relation to general deficiencies. When the charge is about money it is not necessary to prove the larceny or the embezzlement of the specific amount if there is proof of a general deficiency on examination of accounts kept or made by the employer. It will still be necessary to prove the theft or embezzlement.

Other offences

There are also a number of specific and general offences that cover taking certain types of property, impositions, fraudulent misappropriations and obtaining benefits by deceptions. The NSW Crimes Act contains offences of fraudulent misappropriation of moneys (section 178A), passing valueless cheques (section 178B), obtaining money by deception (section 178BA) and false pretences (section 179). It is, for example, still a serious offence to forge or utter the bonds of the East India Company (section 260, Crimes Act 1900).

Forgery means making or altering a document so it tells a lie about itself. The related concept of uttering means offering, disposing of, or putting off the forged document with intention to defraud, knowing it be forged. Generally the criminal offence is uttering the forgery.

The obligation to report crime

Businesses frequently want to deal with fraud in as discrete a manner as possible. The main imperative is to recover the defalcation and get the misbehaving employee out of the business.

There is an obligation to report serious crime. This fact sits rather akwardly with the right to silence and privilege against self-incrimination. Curiously an offender is in a better position than an observer of crime. Having knowledge that a serious criminal offence has been committed and doing nothing can be an offence. The issue takes on some significance in the context of audits and investigations where it can be assumes that there will be evidence to demonstrate an individual’s knowledge in relation to malfeasance.

One of the problems with this area is that it has traditionally been a mess. There used to be a common law misdemeanor offence of misprision of a felony and a more serous offence of compounding a felony. Misprision of felony consisted of knowing that a felony had been committed, and failing to disclose that knowledge to those responsible for the preservation of the peace within a reasonable time, and having had a reasonable opportunity to do so. Compounding a felony was constituted by agreement for consideration not to prosecute or to impede prosecution for a felony. The problem for some time in NSW was that there was real doubt as to the existence of these offences and there was no statutory equivalent. The distinct between felonies and misdemeanors also has had no real practical effect for some time and was statutorily abolished in NSW in 1999 (section 580E, Crimes Act 1900).

There was significant amendment to the Crimes Act 1900 due to what the then Attorney General described as the‘fragmented and confusing’ state of the law (NSW Parliamentary Debates (Hansard, 17 May 1990, the Hon John Dowd at 3692). Section 316 was inserted as part of a package of public justice offences designed to overcome these ‘gaps, anomalies and uncertainties’ (above).

Section 316 provides:
(1) If a person has committed a serious offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.
(2) A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person in consideration for doing anything that would be an offence under subsection (1) is liable to imprisonment for 5 years.
(3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making or reasonable compensation for that loss or injury.
(4) A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Attorney General if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection.
(5) The Governor may make regulations, not inconsistent with this Act, prescribing a profession, calling or vocation as referred to in subsection (4).

‘Serious offence’ means any offence that is punishable by imprisonment for five years or more. Most fraud offences will be serious indictable offences. This covers most fraud offences. The prosecution does not have to prove that the accused knew that the offence was a serious offence. The accused must have subjective knowledge of the commission of the offence, not mere suspicion: Wozniak (1989) 40 A Crim R 290. Material facts are not facts already known to the police: Stone [1981] VR 737. Silence of a person after a caution and when an answer would tend to incriminate does not constitute an offence: King (1965) 49 Cr App R 140, Lucraft (1966) Cr App R 296.

The following professions and vocations have been prescribed under s 316(5):
1. legal practitioners;
2. medical practitioners;
3. psychologists;
4. nurses;
5. social workers, including victim support workers and counsellors;
6. clergy; and
7. academic and professional researchers.

Accountants, forensic or otherwise, and investigators are not prescribed under the section.

Section 316 isn’t ‘dormant’ and will be used by the police in the context of serious criminal offences. Between September 1994 and August 1999, there were 112 prosecutions under the section in the NSW Local Court, 14 of these prosecutions resulted in sentences of imprisonments (See: NSW Judicial Commission, Judicial Information Research Information Sentencing Statistics Database).

There are also offences in relation to hindering a police officer in the execution of his or her duty and perverting the course of justice.

Lastly, it should be remembered that the there is a doctrine of complicity that will make an individual in some circumstances a principal in criminal activity even if that person is not the doer of the deed. A principal is treated as if he or she has committed the offence.

There are the following degrees of participation in crime:
1. the principal in the first degree-commits the act- there may be more than one
2. principal in the second degree- present at the commission of the crime, encouraging but not participating physically
3. accessory before the fact- takes part in the preliminary stages of the crime but not present when it is committed
4. accessory after the fact- takes part in subsequent stages of the crime- eg. preparing a hiding place, assist the escape, conceals the offence or disposes of the proceeds of the offence.

An accessory after the fact must have knowledge of all the facts constituting the particular offence at the time he or she renders assistance to the principal: Stone [1981] VR 737. The act must be done with the intention of helping the principal avoid detection: Young and Phipps (1995) PD [389]. Thus sharing in the proceeds with nothing more will not be enough: Barlow (1962) 79 WN (NSW) 756. At common law a wife could not be convicted of being an accessory after the fact to a crime committed by her husband: CAL (NSW CCA 24/10/96). However this immunity has been abolished: s. 347A Crimes Act.

Delaying reporting conduct to the authorities with knowledge that an offender is absconding could quite constitute being an accessory after the fact.

For persons confronted with defalcations of funds, the issue is avoiding committing the offence of concealing a serious indictable offence or becoming an accessory after the fact. The main way to avoid this is to ensure that the misconduct is reported promptly.

For example section 6 of the Commonwealth Crimes Act 1914 notes that

‘Any person who receives or assists another person, who is, to his knowledge, guilty of any offence against a law of the Commonwealth, in order to enable him to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence.’

Penalty: Imprisonment for 2 years.

Working with the police and the court.

Against this background it is surprising that much fraud in the work place is often not reported. The police traditionally have a poor reputation in prosecuting fraud and there is a wide spread belief that the police are disinterested in prosecuting fraud. The NSW police are not the same organisation they were 20 years ago. There is now an Independent Commission Against Corruption and a Police Integrity Commission. Police do respond to genuine complaints and will investigated and prosecuted frauds in the work place. It doesn’t hurt to pick up the phone and make the call.

There are a number of things that police can do that no forensic accountant or investigator can do lawfully.

Lastly, as a criminal defence lawyer, the first thing I tell any client who comes to me charged with defrauding his or her employer and who intends to plead guilty is to make arrangements to make full restitution to the victim. When faced with the real prospect of imprisonment, taking out a loan and repaying stolen money becomes an attractive option.

Getting Help

This article is intended to provide a guide to the operation of section 10, and the requirements defendants must keep in mind when considering applying for it. Section 10 is among the most sought after orders by defendants in the local courts, particularly by those charged with traffic offences.

This is due to the fact that section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nevertheless discharge that person without proceeding to conviction. Section 10 was initially introduced in order to allow the courts to prevent injustices occurring in certain circumstances where even though a legal offence had been committed, the extenuating circumstances made it inappropriate to punish the defendant.

Because there is no conviction recorded, a major benefit of section 10 is that it means that first-time offenders will not receive a criminal record, and there is no loss of a driver’s license or any other penalty imposed for the offence.

Requirements under Section 10

Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 establishes the factors that should be taken into account by the court when it is considering section 10. These include;

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed, and

(d) any other matter that the court thinks proper to consider.

These matters must be addressed by any defendant applying to the court for a section 10 conditional discharge, as the court takes them into account when determining whether it should be given. The court can then make any of the following orders:

• An order directing that the relevant charge be dismissed under section 10(1)(a). The charges will be outright dismissed, the court will impose no further conditions, and there will be nothing recorded on the criminal record
• An order discharging the person, subject to the condition that the person enters into a good behaviour bond not exceeding a maximum time period of two years under section 10(1)(b). The good behaviour bond will at minimum require the offender not to commit any further offences within the bond’s applicable time period, advise the court of any address changes, and require that the offender appear before the court when requested to do so.
• An order discharging the person subject to the condition that they enter into an agreement to participate in an intervention program, and to comply with any intervention plan arising out of that program. This means that under section 10(1)(c), the defendant will be obligated to successfully participate in a rehabilitation course of some kind, and any related action plan that is specified in the intervention program.

Section 10 and traffic offences

A section 10 order is particularly beneficial for defendants charged with PCA or other traffic offences, because they will be exempt from the mandatory license disqualification periods which can only be applied following conviction. The NSW Bureau of Crime Statistics and Research has found that since its introduction, there has been a large increase over the last ten years in the use of section 10 and a corresponding decline in the use of licence disqualifications in local courts. Between 1993 and 2002 the overall percentage of PCA cases dealt with under section 10 rose by 22 percentage points for low-range PCA offenders, 12 percentage points for mid-range PCA offenders and 5 percentage points for high-range PCA offenders. At the same time, statistics indicate that the percentage of cases where an offender’s licence was disqualified fell by 18 percentage points for low-range PCA offences, 12 percentage points for mid-range PCA offences and 5 percentage points for high-range PCA offences.

However, it should be noted that if an offender has committed a traffic offence that would cause an automatic loss of demerit points, resulting in the loss of their license, this occurs regardless of whether the court dismisses the offence under section 10.

In R v Nguyen [2002] NSWCCA it was held that the dismissal of charges against first-time offenders is appropriate in certain circumstances, in order to allow them to preserve their reputation of good character. However, in relation to mid-range and high-range PCA offences the courts have generally indicated a far greater reluctance to consider a section 10 order.

In the guideline judgment Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999(2004) 61 NSWLR 305, the court stated that “where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”

The court explained that as alcohol is continuously consumed, not only does the risk of intoxication increase but also the potential seriousness of the offence. Therefore, while for low-range PCA offences the court could conceivably accept that an offender was unaware they had exceeded the limit, this would be much more doubtful for high-range PCA offences, and section 10 would therefore be inappropriate. Furthermore, section 187 of theRoad Transport (General) Act 2005, which deals with a court’s power to impose penalties and disqualify offenders’ driver’s licences, also restricts section 10 bonds from being given where the offender has already received one in the previous 5 years.

While the section 10 order is an understandably popular order in court, particularly for first-time or traffic offenders, defendants should ensure that they understand all of the legal requirements that must be satisfied before they attempt to obtain one.

If you have any questions about how appropriate section 10 would be to your current circumstances or need any further information, please contact us.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev

THE CRIMES ACT, THE BAIL ACT, AND THE NSW POLICE: DOMESTICS AND THE LAW

22 September 2006

INTRODUCTION

The purpose of this paper to provide an over view of the relationship between apprehended violence orders and related criminal proceedings. The perspective is that of a defense lawyer called upon to advise a person at the centre of an allegation of domestic violence. I also intend to focus on domestic violence as a legal construct.

There is a strong desire on the part of the legislature to reduce the incidence of and provide protection for victims of domestic violence. This is reflected in various laws that focus on domestic violence. Inevitably the laws relating to apprehended violence orders and bail are used to provide this additional protection.

These protections are reflected in the fact that there are significant differences for an accused at the centre of an allegation of domestic assault in terms of the treatment received in the criminal justice system. The treatment is more onerous. These provisions are fundamentally in aid of the prosecution and the assumption that they protect victims of domestic assaults relies on the belief that a victim’s interest is closely aligned to that of the prosecution. This is not always the case.

DOMESTIC VIOLENCE

The term domestic violence encompasses a wide range of aggressive behaviors that take place between persons in domestic relationships. Some behaviors are criminal some simply unpleasant. The victims are predominately woman and the perpetrators are mainly men.

The table below is from research conducted by the Australian Institute of Criminology. It includes behaviors that would not generally be classified as criminal. A greater proportion of the behaviors would be classified as criminal once an apprehended violence order is in place against a perpetrator of domestic violence. The definitions are fairly broad but they illustrate the heightened risk that an individual will have of involvement in the criminal justice system once that person is subject to an order.

Women’s experiences of current intimate partner violence during the previous 12 months by controlling behaviours (n=5,074)
SOURCE: Australian Institute of Criminology 2004. Controlling behaviours of male partners. Crime facts info no. 85, 16 November.

A killing in the home is the ultimate expression of domestic dysfunctionality. Homicide is rare. Despite this, the statistics are fairly grim when it comes to who kills who at home. According to research conducted by the Australian Institute of Criminology, the majority of female homicide victims were killed at home. The victim is almost always in a (bad) relationship with the offender and the killing is commonly precipitated by a dispute over custody of children or termination of the relationship.

The statistics clearly show that men are more frequently victims of homicide but women are overwhelming victims of ‘domestic’ homicide. Men kill each other when they are intoxicated and argue over money or drugs: women are killed by their partners in the home. The table quoted below is produced from the Australian Institute of Criminology Crimes Fact Sheet No.22.

Percentage of victims by alleged motive, 2000-2001

Source: Mouzos, J. 2002, Homicide in Australia: 2000-2001 National Homicide Monitoring Program (NHMP) Annual Report, Research and Public Policy Series, no. 40, Australian Institute of Criminology, Canberra.

The wretchedness of the destruction of a life, and sometimes multiple related lives, in the home colours the approach of all involved to the prevention of domestic violence. These killings are particularly nasty. The author can relate anecdotally that one such killing in an area has an immediate and profound effect on the behaviour of police and judicial officers in relation to ‘domestics’. Police are less inclined to caution rather than charge and bail becomes harder to get. The greater awareness of the problem posed by domestic violence is reflected in a number of domestic violence specific laws that have been enacted over the last 10 years.

APPREHENDED VIOLENCE

Part 15A of the Crimes Act 1990 is titled Apprehended Violence. Various predecessors to the current Part have been in the NSW Crimes Act since 1951. Orders under the Part are preventative and intended to provide protection against apprehended breaches of the law. They are foremost injunctions against breaches of the criminal law and domestic violence.

A typical order will also prohibit a person from conduct that is less than criminal such has harassing and intimidating the person in need of protection (‘PINOP’) and stop the defendant attending places frequented by the PINOP. A knowing contravention of an order is a criminal offence punishable by up to 2 years imprisonment.

There is in fact no such thing as an AVO. There are apprehended domestic violence orders (ADVOs) and apprehended personal violence orders (APVOs). The defining characteristic is the relationship between the person in need of protection (PINOP) and the defendant. If you are in a domestic relationship with the one you fear you get an APVO, everyone else gets an APVO. There is no great difference once an order is in place and the process is broadly similar.

Apprehended domestic violence orders (APVO) are commonly applied for and obtain in response to an allegation of domestic violence. Frequently the parties will continue to live together or resume cohabitation at some stage during the proceedings. Proceedings for an APVO will run in tandem with criminal prosecutions generally for assault or malicious damage. The police will apply for the ADVO on behalf of the PINOP. The PINOP will also generally be the main prosecution witness for the criminal charge.

LEGISLATIVE RECOGNITION OF DOMESTIC VIOLENCE.

The NSW Crimes Act 1900 contains definitions of ‘domestic violence offences’ and ‘personal violence offences’. The relevant definitions states:

‘Domestic violence offence’ means a personal violence offence committed against:
(a) a person who is or has been married to the person who commits the offence, or
(b) a person who has or has had a de facto relationship, within the meaning of the Property (Relationships) Act 1984 , with the person who commits the offence, or
(c) a person who has or has had an intimate personal relationship with the person who commits the offence, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or
(d) a person who is living or has lived in the same household or other residential facility as the person who commits the offence, or
(e) a person who has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the person who commits the offence, or
(f) a person who is or has been a relative (within the meaning of section 4 (6)) of the person who commits the offence.

‘Personal violence offence’ means:
(a) an offence under, or mentioned in, section 19, 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 44, 46, 47, 48, 49, 58, 59 (assault occasioning actual bodily harm), 61 (common assault), 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 195 (maliciously destroy property), 196, 198, 199, 200 or 562I (contravene apprehended violence order), or
(b) an offence of attempting to commit an offence referred to in paragraph (a).

All the offences that will be commonly charged after a ‘domestic’ are personal violence offences and capable of being domestic violence offences.

APPREHENDED VIOLENCE

Part 15A of the Crimes Act 1990 is titled Apprehended Violence. Various predecessors to the current Part have been in the NSW Crimes Act since 1951. Orders under the Part are preventative and intended to provide protection against apprehended breaches of the law. They are foremost injunctions against breaches of the criminal law and domestic violence.

A typical order will also prohibit a person from conduct that is less than criminal such has harassing and intimidating the person in need of protection (‘PINOP’) and stop the defendant attending places frequented by the PINOP. A knowing contravention of an order is a criminal offence punishable by up to 2 years imprisonment.

There is in fact no such thing as an AVO. There are apprehended domestic violence orders (ADVOs) and apprehended personal violence orders (APVOs). The defining characteristic is the relationship between the person in need of protection (PINOP) and the defendant. If you are in a domestic relationship with the one you fear you get an APVO, everyone else gets an APVO. There is no great difference once an order is in place and the process is broadly similar.

Apprehended domestic violence orders (APVO) are commonly applied for and obtain in response to an allegation of domestic violence. Frequently the parties will continue to live together or resume cohabitation at some stage during the proceedings. Proceedings for an APVO will run in tandem with criminal prosecutions generally for assault or malicious damage. The police will apply for the ADVO on behalf of the PINOP. The PINOP will also generally be the main prosecution witness for the criminal charge.

LEGISLATIVE RECOGNITION OF DOMESTIC VIOLENCE.

The NSW Crimes Act 1900 contains definitions of ‘domestic violence offences’ and ‘personal violence offences’. The relevant definitions states:

‘Domestic violence offence’ means a personal violence offence committed against:
(a) a person who is or has been married to the person who commits the offence, or
(b) a person who has or has had a de facto relationship, within the meaning of the Property (Relationships) Act 1984 , with the person who commits the offence, or
(c) a person who has or has had an intimate personal relationship with the person who commits the offence, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or
(d) a person who is living or has lived in the same household or other residential facility as the person who commits the offence, or
(e) a person who has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the person who commits the offence, or
(f) a person who is or has been a relative (within the meaning of section 4 (6)) of the person who commits the offence.

‘Personal violence offence’ means:
(a) an offence under, or mentioned in, section 19, 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 44, 46, 47, 48, 49, 58, 59 (assault occasioning actual bodily harm), 61 (common assault), 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 195 (maliciously destroy property), 196, 198, 199, 200 or 562I (contravene apprehended violence order), or
(b) an offence of attempting to commit an offence referred to in paragraph (a).

All the offences that will be commonly charged after a ‘domestic’ are personal violence offences and capable of being domestic violence offences.

THE COMPELLABILITY OF WITNESSES

The main prosecution witness often gets less enthusiastic about giving evidence for the police as time elapses. Practitioner will be frequently confronted with questions about ‘dropping the charges’. The correct reply to this is of course that the continuance of the prosecution is a question for the police.

Often in cases concerning domestic assaults, and proceedings for apprehended violence orders, the prosecution will be relying on only one witness. Once this witness becomes unreliable, the prosecution’s reasonable prospect of a conviction disappears.

From my experience, an absence of reliable evidence does not deter the NSW police in continuing a prosecution. The NSW police will not discontinue a prosecution concerning domestic violence on the basis that the principal witness does not want the matter to proceed. Many prosecutions fail due to the reluctance of the complainant to attend and give evidence. There is no property in a witness and there is nothing wrong with a practitioner talking to any witness in a proceeding if that witness is willing to communicate with the practitioner. Practitioners should deal with prosecution witnesses with carefully.

The basic consideration for both practitioners and accused is that any witness must not be in any way influenced about his or her evidence. Suborning perjury or perverting the cause of justice is a serious criminal offence. Any practitioner should make it very clear to an accused that if he or she seeks to influence any witness in giving anything less than a complete and truthful account of events that this is a serious criminal offence. From a practitioner point of view, if the accused and complainant attend a conference together, I usually ask the accused to leave the room and clarify with the complainant that he or she is not being put under any pressure to seek the withdrawal of the prosecution. I also obtain signed instructions to this effect.

The witnesses should have the effect of being subject to a subpoena explained to them. Further, the witness should also have some of the practicalities of giving evidence explained. It should be noted to the witness that if he or she gives evidence that contradicts his or her earlier statement, the witness could be declared an unfavourable witness in terms of section 38 of the Evidence Act.

There is a qualified spousal privilege provided at section 18 of the Evidence Act 1995. A person who, when required to give evidence, is the ’spouse, de facto spouse, parent or child of a defendant’ may object to being required to giving evidence. According to subsection 18(6):

A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:

(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence.

The court should also have regard to (according to subsection 18(7):

(b) the nature and extent of that harm outweighs the desirability of
(a) the nature and gravity of the offence for which the defendant is being prosecuted,
(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it,
(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,
(d) the nature of the relationship between the defendant and the person,
(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

The objection needs to come from the witness and generally should be made when the witness is called to give evidence. As a matter of practicality it can be made at the start of the prosecution case as frequently, if the objection succeeds, the prosecution will not have a prima facie case.

Section 279 of the Criminal Procedure Act 1986 is titled Compellability of spouces to give evidence in certain proceedings. The section appears to be designed to clarify that spouses are compellable against each other in domestic violence offences. Section 279 is much narrower than section 18 of the Evidence Act. The section also provides a means for spouses to be excused from giving evidence if the spouce wishes to be excused and does so ‘freely and independently of threat or any other improper influence’, their evidence is ‘relatively unimportant’ and other evidence is available and if the alleged offence is of a minor nature. Further, the court must state its reason for excusing the witness and record those reasons. The provision is significantly more restrictive than section 18. Theoretically any person who is the sole witness to a minor domestic assault and in a relationship with the accused should not be excused from giving evidence due to section 279.

As a subsequent specific enactment designed to deal with domestic violence section 279 qualifies the earlier general enactment of section 18. Section 279 applies to domestic violence offences, section 18 to other proceedings.

SENTENCING CONSIDERATIONS

Common assault is punishable by 2 years imprisonment. A person who knowingly contravenes a prohibition or restriction specified in an order (section 562I, Crimes Act) is also guilty of an offence that carries a maximum of 2 years imprisonment. The 2 offences can be constituted by identical facts. The offence created by section 562I can be committed when an offender does things that would not constitute an assault. Contravention of an order will generally be considered a more serious offence as it involves the addition element of a breach of a court order. Offenders are routinely imprisoned for serious or repeated contraventions of orders.

After a finding of guilt, the sentencing tribunal in NSW for a NSW criminal offence is required to sentence a person in accordance with the aggravating, mitigating and other factors set out in section 21A of the Crimes (Sentencing Procedure) Act 1999. This section is a part codification of sentencing principles and needs to be scrutinized in relation to any serious criminal offence. An element of an offence cannot be an aggravating factor (Ibrahimi [2005] NSWCCA 153).

Contravention of an order is an element of the offence of contravention of an order. Therefore disregard of a court order is not an aggravating factor. Many magistrates sentence persons who are convicted of contravening an order on the basis that disregard of the order is an aggravating factor. It is not and some regard should be had to fact that the Parliament has determined that it has the same maximum penalty as common assault.

One of the reasons why contravention of the order is a serious offence is that offenders will frequently be recalcitrant. Offenders should be warned about some of the risks of persisting in their recalcitrance. According to section 22 of the Crimes Sentencing Procedure Act, a plea of guilty must be taken into account. Running a hearing and forcing the victim to give evidence will not ‘facilitate the course of justice’ as the High Court in Cameron (2002) 76 ALJR 382 sought to characterize what was previously known as the utilitarian discount.

The guideline judgment on pleas of guilty is still relevant and according to Thomson & Houlton (2000) 49 NSWLR 383, the utilitarian value of a plea should be assessed in the range of 10-25%. This is before other considerations such as contrition are taken into account. A discount of 25% is a fairly common for a plea of guilty.

Alcohol may aggravate an offence as it demonstrates reckless or mitigate as it show that an offence is out of character: Coleman (1990) 47 A Crim R 306.

The fact that an offence is committed by a person in a domestic relationship with the victim is not an aggravating factor. The courts have nevertheless made it clear that a domestic context does not excuse an offence or make it less serious.

In Powell (1999) NSW CCA 13 March 2000, the Court of Criminal Appeal emphasized in the case of an Aboriginal offender with a history of disadvantage and alcohol abuse that ‘violent acts in domestic situations must be treated with real seriousness’.

Similarly in Fahda (Abdulrahman) [1999] NSWCCA 267, the Court of Criminal Appeal, stated in relation to a violent assault by an mentally disturbed man on his wife (at 26):

Generally speaking, as a matter of public policy… a merciful attitude by the victim of an offence of domestic violence ought not to influence a sentencing decision – any more than an unforgiving or vengeful attitude by the victim ought to do so. Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished. Victims ought not be placed in a position where they hold, or appear to hold, the keys to the offenders’ release. To put them in that position is to impose on them a burden they ought not be required to bear.

In Fahda, the Court of Criminal Appeal traversed some well known authorities concerning the application of general deterrence in relation to persons affected by mental illness or a developmental disability. In R v Letteri (unreported, NSW CCA, 18 March 1992) Badgery-Parker J said:

There is ample authority for the proposition that in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given relatively less weight than in other cases because such an offender is not an appropriate medium for making an example to others: Moonie (sic) (CCA Victoria, unreported 21 June 1978); Anderson (1980) 2 A Crim R 379; Kilmartin (1989) 41 A Crim R 22; Man (1990) 50 A Crim R 79; Currie (CCA unreported 25 February 1992).

It should be noted that while general deterrence may be diminished, in the case of mentally unwell accused who continually commits serious domestic assaults specific deterrence will fill the vacuum. Incapacitation is also an implicit consideration in such matters. Mental illness will not necessarily assist an offender avoid punishment.

Suspended sentence under section 12 of the Crime (Sentencing
Procedure) Act 1999 should approached with care. Once a section 12 bond is breached the best that an offender can do is periodic detention. Frequently such bonds are for durations that are longer than what would be the appropriate sentence of imprisonment. There are also issues with the setting of the ratio between non-parole period and the head sentence and the finding of ’special circumstances’. The current position of the Court of Criminal Appeal is that the ratio should be set at the time that the bond is given rather that when it is quashed which means that an offender’s circumstances at the time of effectively being sentenced are not taken into account (see: Tolley [2004] NSWCCA 165).

CONCLUSION

In 1988, the then Chief Justice of NSW Street noted in Bradford NSWCCA 6 May 1988 in relation to a appellant who had very badly beaten his wife and then resumed cohabitation with her that ‘punishment can properly be tempered in the light of the victim’s attitude.’ This approached that reflected a view that there was something private about domestic violence has been comprehensively rejected.

The various provisions the subject of this paper are in combination all designed to ensure that a crime committed in the home is treated as serious as a crime committed in a public place against a stranger. The ultimate objective is the reduction of violence which is an undeniably power one.

Getting Help

This article is intended to provide a guide to the operation of section 10, and the requirements defendants must keep in mind when considering applying for it. Section 10 is among the most sought after orders by defendants in the local courts, particularly by those charged with traffic offences.

This is due to the fact that section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nevertheless discharge that person without proceeding to conviction. Section 10 was initially introduced in order to allow the courts to prevent injustices occurring in certain circumstances where even though a legal offence had been committed, the extenuating circumstances made it inappropriate to punish the defendant.

Because there is no conviction recorded, a major benefit of section 10 is that it means that first-time offenders will not receive a criminal record, and there is no loss of a driver’s license or any other penalty imposed for the offence.

Requirements under Section 10

Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 establishes the factors that should be taken into account by the court when it is considering section 10. These include;

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed, and

(d) any other matter that the court thinks proper to consider.

These matters must be addressed by any defendant applying to the court for a section 10 conditional discharge, as the court takes them into account when determining whether it should be given. The court can then make any of the following orders:

• An order directing that the relevant charge be dismissed under section 10(1)(a). The charges will be outright dismissed, the court will impose no further conditions, and there will be nothing recorded on the criminal record
• An order discharging the person, subject to the condition that the person enters into a good behaviour bond not exceeding a maximum time period of two years under section 10(1)(b). The good behaviour bond will at minimum require the offender not to commit any further offences within the bond’s applicable time period, advise the court of any address changes, and require that the offender appear before the court when requested to do so.
• An order discharging the person subject to the condition that they enter into an agreement to participate in an intervention program, and to comply with any intervention plan arising out of that program. This means that under section 10(1)(c), the defendant will be obligated to successfully participate in a rehabilitation course of some kind, and any related action plan that is specified in the intervention program.

Section 10 and traffic offences

A section 10 order is particularly beneficial for defendants charged with PCA or other traffic offences, because they will be exempt from the mandatory license disqualification periods which can only be applied following conviction. The NSW Bureau of Crime Statistics and Research has found that since its introduction, there has been a large increase over the last ten years in the use of section 10 and a corresponding decline in the use of licence disqualifications in local courts. Between 1993 and 2002 the overall percentage of PCA cases dealt with under section 10 rose by 22 percentage points for low-range PCA offenders, 12 percentage points for mid-range PCA offenders and 5 percentage points for high-range PCA offenders. At the same time, statistics indicate that the percentage of cases where an offender’s licence was disqualified fell by 18 percentage points for low-range PCA offences, 12 percentage points for mid-range PCA offences and 5 percentage points for high-range PCA offences.

However, it should be noted that if an offender has committed a traffic offence that would cause an automatic loss of demerit points, resulting in the loss of their license, this occurs regardless of whether the court dismisses the offence under section 10.

In R v Nguyen [2002] NSWCCA it was held that the dismissal of charges against first-time offenders is appropriate in certain circumstances, in order to allow them to preserve their reputation of good character. However, in relation to mid-range and high-range PCA offences the courts have generally indicated a far greater reluctance to consider a section 10 order.

In the guideline judgment Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999(2004) 61 NSWLR 305, the court stated that “where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”

The court explained that as alcohol is continuously consumed, not only does the risk of intoxication increase but also the potential seriousness of the offence. Therefore, while for low-range PCA offences the court could conceivably accept that an offender was unaware they had exceeded the limit, this would be much more doubtful for high-range PCA offences, and section 10 would therefore be inappropriate. Furthermore, section 187 of theRoad Transport (General) Act 2005, which deals with a court’s power to impose penalties and disqualify offenders’ driver’s licences, also restricts section 10 bonds from being given where the offender has already received one in the previous 5 years.

While the section 10 order is an understandably popular order in court, particularly for first-time or traffic offenders, defendants should ensure that they understand all of the legal requirements that must be satisfied before they attempt to obtain one.

If you have any questions about how appropriate section 10 would be to your current circumstances or need any further information, please contact us.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev

Introduction

The way in which the legal system has handled children’s matters has changed substantially over the past century in Australia. This has reflected the increased recognition by the Australian authorities of the inadequacy of the traditional criminal justice system’s treatment of young offenders. The purpose of this paper to provide a simple overview of how children are treated in criminal proceedings. Its intent is to help child offenders and their legal guardians to obtain a greater understanding about the options available to them within the juvenile justice system.

A child is defined as any person who is under the age of 18 years, under section 3 of the Children (Criminal Proceedings) Act 1987 (NSW) (hereafter CCPA). This means that any child charged with summary (minor) offences may then be eligible to have legal proceedings take place outside the traditional court system. However, children aged below 10 cannot be charged with a criminal offence, because the legal system assumes that they are not capable of forming the necessary intent to be held criminally responsible. Furthermore, the ‘doli incapax’ principle creates a rebuttable presumption for the prosecution, that children aged between 10 and 13 years of age do not have the requisite knowledge to form criminal intent. If the prosecution are not able to refute this presumption, than a case cannot be made against the child.

If the matter does go to criminal proceedings, the multiple avenues in the legal system available to child offenders must all be considered. The New South Wales Children’s Court has jurisdiction over all children’s offences, except for serious indictable charges and traffic offences committed after the age of 16. Because these offences are beyond the Children’s Court jurisdiction, child offenders must face hearings in either the Local or District Court. While the Children’s Court handles the majority of children’s offences, many are then referred out of the court system to the alternate regime available under the Young Offender’s Act 1997 (NSW). This provides a system of diversionary measures as an alternative to proceedings for child offenders, provided certain requirements are met. For offences involving drugs or alcohol, there is also the option of the Youth Drug and Alcohol Court, which was established specifically to reduce the amount of criminal activity resulting from drugs and alcohol abuse.

Research recently conducted by the Australian Institute of Criminology indicates that the vast majority of child offenders are issued cautions under the Young Offender scheme. The study found that 87% of young people who came into contact with the criminal justice system received one caution or more, while 9% attended police-referred conferences. In contrast, of the study group only 29% of the offenders had their matters dealt with and finalised within the court system. It is therefore evident that the recent shift away from the traditional criminal justice system in Australia has been reflected in increased usage of the Young Offender’s Act and other alternative legal mechanisms.

Dealing with the matters according to law

As previously mentioned, the Children’s Court’s jurisdiction does not extend to two offences- serious indictable charges and traffic offences committed after the age of 16. Because children who commit such traffic offences are considered to be of licensable age, their offences must be dealt with in the regular court system. When determining the seriousness of the indictable offence concerned, the Children’s Court takes into account the nature of the indictable offence, the age and maturity of the child, and any prior offences committed by the child.

Children’s Court

• Jurisdiction of the Children’s court

In practice most youth offences are dealt with by the Children’s Court. The Children’s Court has a wide jurisdiction if at the time the offence was committed the person was a child under 18 years old, and if at the time of being charged, the said person was under 21 years old. The Children’s Court only cannot hear serious indictable offences under section 17 of the CCPA, and some traffic offences. However, the court does have jurisdiction over (1) traffic offences that occurred concurrently with another offence that is within Children’s Court jurisdiction and (2) traffic offences where the child was not of a licensable age when they were committed

• Commencement of proceedings

In most circumstances, criminal proceedings against a child must be commenced by way of summons or court attendance notices, and when a summons will suffice, arrest is inappropriate. Arrest is also not appropriate for minor offences where the defendant’s name and address are known, or there is no risk of the child departing and it is reasonably assumed the summons will not be effective.

However, under any of the following circumstances, proceedings against a child offender may be commenced by way of arrest:

(1) if the offence consists of a serious children’s indictable offence or certain offences under the Drug Misuse and Trafficking Act 1985 (NSW), or any other offence prescribed by the Regulations.

(2) if the person commencing the proceedings reasonably believes that the child is (a) unlikely to comply with a summons or court attendances notice or (b) likely to commit further offences.

(3) if the person commencing the proceedings believe the child should be restrained due to (a) violent behaviour, or (b) the violent nature of the offence.

• Doli incapax

According to the doctrine of ‘doli incapax’, a child is not guilty by reason of falling short of the necessary criminal intent when the child is aged between 10 and 13 unless the prosecutor proves otherwise.

A burden is then placed on the prosecution to rebut the presumption of doli incapax and prove that the child knew that the act was seriously wrong, as opposed to naughty or childish mischief. The evidence must be strong and clear beyond all reasonable doubt and contradiction, and it may be obtained by the prosecution from a parent or a person or who knows the child well.

The presumption cannot be rebutted simply by the offence itself no matter how appalling the act is, by an admission in a police interview or flight alone. On the other hand, the older the child, the easier it will be to prove guilty knowledge, and prior criminal history and court alternatives history may be tendered to rebut. In addition, flight in combination with an admission may rebut the presumption in certain circumstances and surrounding circumstances may be used by the prosecution to rebut as well.

• Admissibility of statements to the police

Section 13 of the CCPA provides specific rules for the admissibility of statements, admissions or confessions of a child. Generally, they cannot be admitted into evidence unless the person responsible for the child, or an adult or legal representative selected by the child was present throughout the period of time the admission, statement or confession was made. However, if the court is satisfied with the reason for the absence of such a person, the statements may be admissible in evidence in the proceedings.

Where the support person presents him or herself, this person must be informed of their responsibilities and be sufficiently able to perform the task. Moreover, the custody manager has a positive obligation to assist vulnerable children, including making sure they are fully aware of the services offered by the Legal Aid Commission’s Youth Hotline.

• Recording convictions and admissibility of prior offences

With respect to children under the age of 16, the Children’s Court shall not record the conviction, and for children above the age of 16, the Court has discretion to refuse the conviction.

• Sentencing principles

There are a broad range of sentences available to the Children’s Court under section 33 of the CCPA, including the dismissal of the charge, a good behaviour bond, a fine not exceeding 10 penalty units, an order adjourning proceedings for a maximum period of 12 months, a probation order and a community service order, a control order for a maximum period of 2 years, suspended sentence, and an order for compensation. Furthermore, the Children’s Court may make an order conditional upon compliance with an outcome plan such as Drug and Alcohol Counselling, the Violent Offenders Program, the Sex Offenders Program, the Forensic Program, the Mentor Scheme and the Graffiti Clean-up Community Service Order Scheme.

Given the different purpose of the Children’s Court, the sentencing principles applied at hearings are generally different from those used in the adult jurisdiction. When applying the above sentences, the Children’s Court follows several principles, by considering the desirability of the child’s education or employment proceeding uninterrupted and allowing the child to reside at home, and that the penalty imposed on a child should not be heavier than that on an adult with the same offence. If the child pleads guilty or indicates to plead, the Children’s Court must give consideration to that and reduce any order it would otherwise have made accordingly, and if the Children’s Court does not reduce an order, it must give reasons for doing so.

Unlike adult offenders, children serve control orders or terms of imprisonment in juvenile detention centres until they reach the age of 18 years. With exceptions, a person sentenced for serious children’s indictable offences is not eligible to serve a sentence of imprisonment in a Detention Centre. The Children’s Court may sentence a person under 21 years old with an indictable offence to serve the whole or part of the term in a detention centre.

Young Offenders Act

• Purpose of this Act

The introduction of the Young Offenders Act in 1997 provided an alternative regime for youth crime by diverting young people who commit certain offences away from the Children’s Court. Compared with the Children’s Court, the Young Offenders Act provides an efficient and direct response to the commission of certain offences by children, enabling a community-based, negotiated response to offences. It was designed to involve all affected parties and meet the needs of victims and offenders by emphasizing restitution and acceptance of responsibility by the offender.

• Jurisdiction: offences excluded and the eligibility to apply

According to section 8 of the Young Offenders Act 1997 (NSW), summary offences and indictable offences that may be dealt with summarily are covered by the Act. However, it is important to note that some specific offences are excluded from the jurisdiction of the Act such as certain traffic offences, sexual offences, AVOs, and some offences under the Drug Misuse and Trafficking Act.

Even when the offence committed by a child falls within the scope of the Young Offenders Act, the offence cannot be dealt under the Act unless the child a) admits the offence, b) consents to the caution or Youth Justice Conferences and c) is entitled to be given the caution or Youth Justice Conference.

With respect to criterion a) in the above paragraph, a person responsible for or chosen by the young person must present while the young person admits the offence. With respect to criterion b) above, the young person may decide not to proceed and to have the matter dealt with by a court. With respect to criterion c) above, an investing official should make a decision by giving consideration to the seriousness of the offence, the degree of violence involved in the offence, the harm caused to the victim, the number and nature of any offences committed by the child and the number of times the child has been dealt with under the Young Offenders Act, and any other matter the official thinks appropriate in the circumstances.

• Sentence options under the Young Offenders Act

Under the Young Offenders Act, there are three sentence options available to child offenders.

Warnings may be given for a summary offence “on-the-spot” by investigating officials if no violence is involved in the offence and if the investing official considers it appropriate. A warning cannot have any conditions attached or impose any sanction upon the child.

Cautions may be given under the Young Offenders Act if the investigating official determines that a warning is not appropriate and it is not contrary to the “interests of justice” to deal with the matter by way of caution. The young person is not entitled to be given a caution if he or she has been dealt with by caution on three or more occasions. In practice, some young people choose to exercise a “right to silence” at the police station so that they do not make the required admission to the offence, which disqualifies them from being treated under the Young Offenders Act. However, when the case goes to the Children’s Court, the Court could give a caution where appropriate, even where the child has remained silent.

Youth justice conferencing may be applied in three circumstances. First, if the investigating official determines a caution is not appropriate to deal with the matter, and that youth justice conferencing is more suitable. Second, where the investigating official is of the opinion that it is not in the interests of justice for a matter to be dealt with by way of a warning or a caution, the investigating official must refer the matter to a specialist youth officer to consider whether the child should be dealt with the youth justice conferencing. In making a decision the specialist youth officer shall consider the seriousness of the offence, the degree of violence involved in the offence, the harm caused to any victim, the number and nature of any offences committed by the child and the number of times the child has been dealt with under this Act, and any other matter the official thinks appropriate in the circumstances. Third, the Director of Public Prosecutions or court may refer a matter to youth justice conferencing.

It is important to note that unless the conference convenor permits the child to be represented either generally or subject to conditions, a child is only entitled to be advised but not represented by a legal practitioner regarding the youth justice conference.

The aim of the conference is to work out an outcome plan which the young person will be able to complete. In practice, the following principles are observed in reaching an agreement for the outcome plan. The outcome plan must have outcomes that are realistic and appropriate and sanctions that are not more severe than those that a court would impose; the outcome plan must set a timeframe for implementation and may provide for an oral or written apology, reparation to the victim, or participation in a program or action aimed towards reintegrating the child into the community. The outcome plan must contain an obligation to do community service work that does not exceed the maximum amount that may be imposed under the Children (Community Service Orders) Act 1987(NSW), and some provisions from the Act must be included in an outcome plan for a particular type of offence.

Youth Drug and Alcohol Court

The Youth Drug and Alcohol Court (hereafter YDAC) sits and operates within the Children’s Court system, and there are geographical limitations on its jurisdiction. Currently, only young offenders in the Western Sydney, Central Sydney and Eastern Sydney regions can be referred to the YDAC.

As indicated by the name of the court, only drug and/or alcohol problems are dealt with by the YDAC. In addition, the offences should be dealt with to finality in the Children’s Court, the child must be ineligible for a caution or youth justice conferencing under the Young Offenders Act, and the child must plead guilty or admit to the offences. Usually the child is aged between 14 and 18 years, although a child under 14 may also be referred to the YDAC. Sometimes, even if a child pleads not guilty to some offences, the Magistrate may exercise their discretion by referring the child to the YDAC. It is important to note that the court of its own motion may refer a young person for assessment of their suitability for the YDAC program without the child’s consent.

For the first appearance of the young person before the Court, the Joint Assessment and Review Team (JART) will conduct an Initial Assessment of the young person before the formal court appearance and will recommend to the YDAC whether or not the young person is eligible for the YDAC program. At the young person’s second appearance at the YDAC, the JART will provide the YDAC with a Comprehensive Assessment with respect to the suitability of the young person for the YDAC program. During the YDAC program, the young person will be required to attend Report Back sessions that provide a process of continuing monitoring and supervision. However, a young person may at any time withdraw consent to continue to participate in the YDAC program.

Where the young person breaches the YDAC program, the Manager of JART will determine whether the breach is serious or minor in nature. If it is a serious breach, the young person may be arrested and brought before YDAC. If YDAC finds the young person in a serious breach, then the young person might be discharged from the program and sentenced or he or she might be allowed to continue with the program. If the young person is allowed to continue with the YDAC program, the program will usually be altered or extended. If JART reports a minor breach by the young person then the YDAC, after hearing any submissions, may determine that the young person remain on the current YDAC program, on an amended program, or discharge the hearing. When the YDAC Magistrate determines a sentence against the young person, the Magistrate will take the young person’s participation and successful completion of the program into account.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev

There exist a wide variety of programs aimed at diverting offenders away from the Australian criminal justice system. This guide is intended to provide a basic outline of these diversionary programs, and list the various criteria that must be satisfied by defendants to be eligible for them. It should be noted that these programs can be generally divided into two rough categories: those programs referred to in the Criminal Procedure Act 1986 (NSW), and those that are not.

Intervention programs referred to in the Criminal Procedure Act

Section 345 of the Criminal Procedure Act 1986 (NSW) (hereafter CPA), provides a framework for the recognition of intervention programs within the legal system, and to ensure they are fairly managed and administered to reduce the future likelihood of reoffending.Intervention programs are defined under section 347 as any measures for dealing with accused persons including measures that:

(a) promote the treatment or rehabilitation of accused persons, or (b) promote respect for the law and the maintenance of a just and safe community, or (c) encourage and facilitate the provision by offenders of appropriate forms of remedial actions to victims and the community, or (d) promote the acceptance by offenders of accountability and responsibility for their behaviour, or (e) promote the reintegration of offenders into the community.

Defendants may be referred to an intervention program at various times during criminal proceedings. They may enter into an agreement to subject themselves to an assessment of their appropriateness for an intervention program, as a condition for bail being granted to them. Furthermore, the bail condition may also impose a requirement that the defender participate in an intervention program. The court may also make an order to participate in an intervention program if defendants are found guilty of an offence. Participation in an intervention program may also be included as a condition of a suspended sentence or good behaviour bond.

Eligibility requirements for Intervention Programs under the Criminal Procedure Act

Section 348 subsection 1 of the CPA establishes that only summary offences and indictable offences dealt with summarily may be diverted into intervention programs. However, section 348 subsection 2 specifically excludes certain offences, even if summary or indictable offences deal with summarily, from intervention programs. These include:

• Malicious wounding or inflicting grievous bodily harm, or maliciously causing a dog to inflict grievous bodily harm;
• Sexual assaults and child prostitution;
• Production, dissemination, publication or possession of child pornography;
• Stalking or intimidation with intent to cause fear of mental or physical harm;
• Offences involving firearms; and
• Offences involving prohibited plants, or supplying prohibited drugs

• Traffic Offender Programs

Traffic Offender programs were introduced under section 19B of the Criminal Procedure Regulation 2005 (NSW). There are numerous pre-sentence Traffic Offender programs which are applicable to people who have committed driving offences. They are usually six to eight week programs consisting of group therapy, experiential learning, and assignments and lectures. At the end of the program, the organisation which runs the program then sends an achievement report and attendance record to the court. However, it should be noted that the courts are not obligated to take into account a completed driver education program when determining an appropriate sentence for a high-range PCA offender.

• Circle sentencing intervention program

Circle sentencing is a new intervention program that was introduced in section 19 of the Criminal Procedure Regulation 2005 (NSW) (hereafter CPR), and is aimed predominantly at adult aboriginal offenders. It is an alternative sentencing court, where the local Aboriginal community is involved in the process of sentencing offenders. Circle sentencing is aimed at making the process for Aboriginal offenders and at improving confidence in the criminal justice system, while empowering local members of the community to address the root causes of criminal behaviour.

• Forum sentencing program

This program was introduced in 2005 in section 19A of the Criminal Procedure Regulation 2005 (NSW) to help reduce the future chance of the offender reoffending, bringing the offender, the victim and all other affected parties together in a safe environment. The victim and the other parties are then able to explain how the criminal offence has personally affected them and their lives, and create a list of actions that the offender can do to repair the harm caused.

Current Diversionary Programs

Apart from the previously discussed intervention programs referred to in the Criminal Procedure Act, there also exist a number of intervention programs not specifically referred to in the legislation.

Pre-charge programs

• The Cannabis cautioning scheme

This was a pre-charge scheme introduced in 2000 operated by the NSW Police Force, and it allows police to exercise their discretion in certain cases and issue a caution to the offender. It is usually given to people found with small amounts of cannabis in their possession, people can only be cautioned twice and they cannot be cautioned at all if they have prior convictions for drug offences, violence or sexual assault. Under the cautioning scheme, the person is then referred by police to a help line and is given information about the harms resulting from cannabis use.

Pre-sentence programs

• The MERIT program

MERIT stands for the Magistrates Early Referral into Treatment. MERIT was introduced primarily to deal with people with drug problems but in July 2009, the Rural Alcohol Diversion scheme was formally merged with the MERIT. It is important to note that MERIT only applies to defendants appearing in Local Court matters that will be finalised at the Local Court. Also, if a defendant completes a MERIT program, it will not necessarily result in the dismissal of charges, and there will still be a court hearing, but the defendant’s participation and successful completion may be taken into account during sentencing.

MERIT dealing with drug problems: To enter into the MERIT program, one must (1) be an adult, (2) have an illicit drug problem, (3) be willing to participate in the program and consent to treatment, (4) not be involved in offences related to physical violence, sexual assault or District Court matters, (5) have a treatable problem, and (6) be approved by the Magistrate to participate in the program. If one is accepted into the MERIT program, extra conditions will usually be imposed on the existing bail conditions requiring the person to comply with the directions of the MERIT team. Any failure to participate in the MERIT program will result in exclusion from the program.

MERIT dealing with alcohol (formerly known as the Rural Alcohol Diversion scheme): This was a scheme fairly similar to the MERIT program, except that its main substance of concern was alcohol, whereas to be eligible for MERIT, defendants had to demonstrate an illicit drug problem.

• The Youth Drug and Alcohol Court

The Youth Drug and Alcohol Court (hereafter YDAC) commenced in 2000, and as indicated by its name, it deals only with young offenders who have alcohol or drug problems. The court sits and operates within the Children’s Court system, and there are geographical limitations on its jurisdiction. Currently, only young offenders in the Western Sydney, Central Sydney and Eastern Sydney regions can be referred to the YDAC.

Usually the child must be aged between 14 and 18 years, although a child under 14 may also be referred to the YDAC. In addition, the offences should be dealt with to finality in the Children’s Court, the child must be ineligible for a caution or youth justice conferencing under the Young Offenders Act, and the child must plead guilty or admit to the offences. However, sometimes even if a child pleads not guilty to some offences, the Magistrate may exercise their discretion by referring the child to the YDAC. It is important to note that the court of its own motion may refer a young person for assessment of their suitability for the YDAC program without requiring the child’s consent. However, a young person may at any time withdraw consent to continue to participate in the YDAC program itself.

For the first appearance of the young person before the Court, the Joint Assessment and Review Team (JART) will conduct an Initial Assessment of the young person before the formal court appearance and will recommend to the YDAC whether or not the young person is eligible for the YDAC program. During the YDAC program, the young person will be required to attend Report Back sessions so they can be subject to continuous monitoring and supervision.

Where the young person breaches the YDAC program, the Manager of JART will determine whether the breach is serious or minor in nature. If it is an allegation of a serious breach, the young person may be arrested and brought before YDAC. If YDAC finds the young person has committed a serious breach, then they may either be discharged from the program and sentenced or allowed to continue with the program. If the young person is allowed to continue with the YDAC program, the program will usually be altered or extended. If JART reports a minor breach by the young person then the YDAC, after hearing any submissions, may determine that the young person remain on the current YDAC program, on an amended program, or discharge the hearing. When the YDAC Magistrate determines a sentence against the young person, they will take the young person’s participation and successful completion of the program into account.

• Community Aid Panels

Community Aid Panels consist of a police officer and other prominent members of the community, and are generally intended to assist in the punishment of young and first time offenders. Offenders will usually get more lenient sentences after participating in the Community Aid Panel program, because it is often indicative of a certain level of self-motivation, as well as improved prospects for rehabilitation. Offenders may ask the court after entering a plea of guilty to be referred to a Community Aid Panel, and if successful a bail condition may be imposed that the offender contacts their local panel. In the Community Aid Panels program, the young person is required to appear before the Panel and efforts are made to identify why the offence was committed. The Panel will provide an opportunity for family and friends to gather around a young offender in a positive way, to enhance that offender’s self-esteem, which is so often a problem with the young and unemployed. The Panel may also set an amount of unpaid hours of work to be completed by the offender, and this usually totals between 10 and 20 hours.

Post Sentence Programs

• The Drug Court

The Drug Court has been set up to deal with drug-dependant offenders, allowing them to avoid imprisonment provided they comply with the court-supervised treatment program. Its jurisdiction is currently limited to the Western Sydney region, where it handles both Local and District Court charges. In order to qualify for the court, all offenders must first satisfy several criteria. They must have a place of residence in Western Sydney, be highly likely to receive a full-time custodial sentence if convicted, plead guilty to that charge, and appear to be dependent on prohibited drugs. However, they will be ineligible for the Drug Court if they are less than 18 years old, if they are appearing before the Children’s Court, if they are facing a charge involving a strictly indictable supply of prohibited drugs, violent conduct or sexual assault, or if they suffer from a mental condition that would impede their participation. For further information, please refer to the other article written on the topic.

• The Sober Driver Program

The Community Offender Service also runs a 9-week post-sentence traffic offender program known as the Sober Driver Program. Under this program, if the offender is convicted of a second drink-driving offence within a five-year period, the court may make an alternative order for a supervised good behaviour bond with an additional requirement to complete the Sober Driver Program. If successfully completed by the offender, then supervision may be terminated early by the Community Offender Service, provided the imposed sentence allows this to happen.

• Home Detention

Home Detention Orders direct that prison sentences be served by offenders through home detention, and are only applicable to sentences of 18 months imprisonment or less. However, the conditions imposed by Home Detention Orders are generally extremely onerous, with strict supervision by the Community Offender Service including random phone checks, unannounced visits, and regular urinalysis. Offenders are also prohibited from drinking alcohol or using illegal drugs if under a Home Detention Order. An application for home detention should be made immediately after offenders are sentenced to full time imprisonment.

Furthermore, Home Detention Orders do not apply to certain types of offences including sexual assault of adults or children, any offence involving the use of a firearm, assaults occasioning actual bodily harm (or any more serious assault, such as malicious wounding or assault with intent to do grievous bodily harm), stalking or intimidating a person with the intention of causing the person to fear personal injury, and domestic violence offences. In addition, the Home Detention Order cannot apply to those offenders who have the above mentioned offences on their criminal records.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev

Introduction

For the vast majority of people, their first exposure to the New South Wales justice system occurs when they are charged with offences that are dealt with at the Local Court. This is because most offences committed each year are summary in nature, and as such are not serious enough to warrant appearances before the District Courts or the Supreme Court. Therefore, it is important that defendants understand the broad range of penalties that are available to Magistrates at the Local Courts, when they sentence someone on the basis of various sentencing principles. The sentencing options available to the Local Courts are either non-custodial or custodial in nature, with the former usually being given preference where possible.

Non-custodial sentences

• Fines

Fines are the most commonly imposed penalties by Magistrates at Local Courts, and they may be imposed in addition to Good Behaviour Bonds or sentences for imprisonment. The defendant’s current financial circumstances and other relevant considerations may be taken into account by the Local Court when determining the size of the fine. Once a defendant has been ordered to pay a fine, they are given a maximum of 28 days to pay the amount in full, but the court registry can extend this if the offender is not able to pay within the time period. However, if a defendant refuses to pay a court-ordered fine, it may possibly result in the seizure of assets, wage deductions, an order of community service, or in relation to traffic fines, suspension or cancellation of their driver’s licence or vehicle registration.

• Bonds

Rather than imposing a fine or other penalty, a Local Court may elect to make an order directing a person to enter into a good behaviour bond for a specified period of time, not exceeding a maximum duration of five years. These bonds obligate defendants to be of good behaviour, and the court may also impose further conditions that must be complied with for the duration of the bond. These include a condition that the defendant be supervised by an officer of the NSW Probation Service, for as long as the Service deems it appropriate. The court may also include a condition that defendants attend counselling to help treat their alcohol or drug-abuse problem, or defendants may be ordered to reside at a rehabilitation centre to receive more intensive treatment.

There are a wide variety of bonds available in the Local Court, such as the bond stated in section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which allows Magistrates to direct offenders to enter into a good behaviour bond for less than five years, after convicting them of an offence. If the conditions of the section 9 bond are breached or the defendant commits another offence, then the Magistrate may cancel the bond and impose a sentence. There are also section 11 bonds, which allow Magistrates to find an offender guilty of an offence, but suspend the sentence for a period of 12 months, in order to assess their capacity and prospects for rehabilitation, to demonstrate that rehabilitation has taken place or for any other reason the court considers appropriate in the circumstances. Local Courts may also issue section 10 and section 12 bonds, which are explained in the following sections.

• Dismissal and conditional discharge under Section 10

Section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nonetheless discharge that person without proceeding to conviction. Because there is no conviction recorded, a major benefit of section 10 is that it means that the defendant will not have a criminal record. The court will take into account the person’s character, antecedents, age, health and mental condition, the trivial nature of the offence and any other extenuating circumstances when determining whether to grant an outright dismissal. Once a decision has been made to make a section 10 order, as well as dismissing the relevant charges, the Local Court may also require the defendant to be subject to a good behavior bond, or to enter into an intervention program.

• Community Service Orders

Local Courts may also impose a Community Service Order (CSO), as an alternative to the offender serving a sentence of imprisonment. However, it should be noted that the Court cannot impose a good behavior bond and a Community Service Order for the same offence. To be considered eligible for a CSO, offenders must first receive an assessment from the Probation and Parole Service of their suitability. People subject to a CSO are required to perform community service work for a specified number of hours under the supervision of an officer from the Probation and Parole Service. Offenders may also be required by the courts to undergo alcohol or drug-testing, or to attend counseling programs such as Anger Management. All CSOs must be fully completed within 12 months for orders of below 300 hours, or within 18 months for orders consisting of more than 300 hours. If the Local Court is not fully satisfied with the work done, or if the offender fails to attend for community service, the Magistrate may then completely revoke the Community Service Order and resentence the offender for the original offence.

Custodial Sentences

• Suspended sentences under Section 12

A Local Court that imposes a sentence of imprisonment on an offender of a period less than two years, has the option of making an order suspending the whole of that sentence for the duration of its term. The court can then specify in the order that as a condition of their release from custody, the offender must enter into a good behavior bond for the term of the sentence, to prevent the sentence of imprisonment coming into effect. However, it is important to understand that suspended sentences should not be perceived as an alternative to custodial sentences. This is because under section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) a sentence cannot be suspended until it has actually been imposed- it is only the execution of the sentence that is suspended. However, suspended sentences are not available to offenders where they are also subject to another sentence of imprisonment. Also, if the Local Court decides to later revoke the sentence for any reason, it may choose to reimpose the original sentence of imprisonment on the offender, which can be served full-time, part-time or through home-detention. The court is obligated to revoke the order if there is a breach of the bond under section 98(3), unless it is satisfied the offender’s failure to comply with the conditions of the bond was “trivial in nature”, or the offender had a valid reason.

• Home Detention

Local Courts may issue orders for the home detention of offenders, allowing them to serve their sentence in their homes rather than gaol, provided that they have not been sentenced to a period of imprisonment of more than 18 months. An application for home detention should be made immediately after offenders are sentenced to full-time imprisonment. The conditions imposed by Home Detention Orders are generally extremely onerous, with strict supervision through random phone checks, unannounced visits, and regular urinalysis. Offenders are also prohibited from drinking alcohol or using illegal drugs if under a Home Detention Order.

Furthermore, Home Detention Orders do not apply to certain types of offences including sexual assault of adults or children, any offence involving the use of a firearm, assaults occasioning actual bodily harm (or any more serious assault, such as malicious wounding or assault with intent to do grievous bodily harm), stalking or intimidating a person with the intention of causing the person to fear personal injury, and domestic violence offences. In addition, Home Detention Orders cannot be given to those offenders who have the previously mentioned offences on their criminal records. The Parole Board is responsible for home detention, and if the offender is in breach of the conditions of the order, the Board may revoke the Home Detention Order and issue a warrant for their arrest and return to custody.

• Periodic Detention

A Local Court that imposes a sentence of imprisonment on an offender of less than three years, has the option of directing that the sentence be served through periodic detention. Periodic detention, or weekend detention, involves the offender being imprisoned for two days every week at a detention centre, for the duration of the sentence’s term. Before an offender can be considered eligible for this program, their suitability must first be assessed by a presentence report from an officer of the Probation and Parole Service. Furthermore, periodic detention is not available to offenders who have previously served full-time imprisonment for more than six months, or who have been imprisoned for more than three years, or for offenders imprisoned for prescribed sexual offences. The Parole Board is responsible for periodic detention, and if the offender is in breach of the conditions, the Board may revoke their periodic detention order and issue a warrant for their arrest and return to custody.

• Full-time Imprisonment

Full-time imprisonment should always be the sentence of last resort for courts, with the maximum available term of imprisonment that can be sentenced in Local Courts being two years. When the court sentences an offender to a term of imprisonment, it is required to set a non-parole period specifying the minimum period for which the offender must be held in custody, and then set the balance of the sentence. The balance of the sentence cannot exceed one-third of the specified non-parole period, unless the court believes there are special circumstances that justify it.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev

This article is intended to provide a guide to the operation of section 10, and the requirements defendants must keep in mind when considering applying for it. Section 10 is among the most sought after orders by defendants in the local courts, particularly by those charged with traffic offences.

This is due to the fact that section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nevertheless discharge that person without proceeding to conviction. Section 10 was initially introduced in order to allow the courts to prevent injustices occurring in certain circumstances where even though a legal offence had been committed, the extenuating circumstances made it inappropriate to punish the defendant.

Because there is no conviction recorded, a major benefit of section 10 is that it means that first-time offenders will not receive a criminal record, and there is no loss of a driver’s license or any other penalty imposed for the offence.

Requirements under Section 10

Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 establishes the factors that should be taken into account by the court when it is considering section 10. These include;

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed, and

(d) any other matter that the court thinks proper to consider.

These matters must be addressed by any defendant applying to the court for a section 10 conditional discharge, as the court takes them into account when determining whether it should be given. The court can then make any of the following orders:

• An order directing that the relevant charge be dismissed under section 10(1)(a). The charges will be outright dismissed, the court will impose no further conditions, and there will be nothing recorded on the criminal record
• An order discharging the person, subject to the condition that the person enters into a good behaviour bond not exceeding a maximum time period of two years under section 10(1)(b). The good behaviour bond will at minimum require the offender not to commit any further offences within the bond’s applicable time period, advise the court of any address changes, and require that the offender appear before the court when requested to do so.
• An order discharging the person subject to the condition that they enter into an agreement to participate in an intervention program, and to comply with any intervention plan arising out of that program. This means that under section 10(1)(c), the defendant will be obligated to successfully participate in a rehabilitation course of some kind, and any related action plan that is specified in the intervention program.

Section 10 and traffic offences

A section 10 order is particularly beneficial for defendants charged with PCA or other traffic offences, because they will be exempt from the mandatory license disqualification periods which can only be applied following conviction. The NSW Bureau of Crime Statistics and Research has found that since its introduction, there has been a large increase over the last ten years in the use of section 10 and a corresponding decline in the use of licence disqualifications in local courts. Between 1993 and 2002 the overall percentage of PCA cases dealt with under section 10 rose by 22 percentage points for low-range PCA offenders, 12 percentage points for mid-range PCA offenders and 5 percentage points for high-range PCA offenders. At the same time, statistics indicate that the percentage of cases where an offender’s licence was disqualified fell by 18 percentage points for low-range PCA offences, 12 percentage points for mid-range PCA offences and 5 percentage points for high-range PCA offences.

However, it should be noted that if an offender has committed a traffic offence that would cause an automatic loss of demerit points, resulting in the loss of their license, this occurs regardless of whether the court dismisses the offence under section 10.

In R v Nguyen [2002] NSWCCA it was held that the dismissal of charges against first-time offenders is appropriate in certain circumstances, in order to allow them to preserve their reputation of good character. However, in relation to mid-range and high-range PCA offences the courts have generally indicated a far greater reluctance to consider a section 10 order.

In the guideline judgment Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999(2004) 61 NSWLR 305, the court stated that “where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”

The court explained that as alcohol is continuously consumed, not only does the risk of intoxication increase but also the potential seriousness of the offence. Therefore, while for low-range PCA offences the court could conceivably accept that an offender was unaware they had exceeded the limit, this would be much more doubtful for high-range PCA offences, and section 10 would therefore be inappropriate. Furthermore, section 187 of theRoad Transport (General) Act 2005, which deals with a court’s power to impose penalties and disqualify offenders’ driver’s licences, also restricts section 10 bonds from being given where the offender has already received one in the previous 5 years.

While the section 10 order is an understandably popular order in court, particularly for first-time or traffic offenders, defendants should ensure that they understand all of the legal requirements that must be satisfied before they attempt to obtain one.

If you have any questions about how appropriate section 10 would be to your current circumstances or need any further information, please contact us.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev