There are a number of valid legal defences that are available to defendants, in the event that they are charged with a criminal offence. This article is intended to provide a simple guide to defendants about the most commonly used legal defences in New South Wales, particularly at local court level, as well as a basic explanation of the legal requirements for these defences.

Self defence or defence of another

In matters involving assault, homicide or any other offences involving the use of force, defendants may rely upon the legal defence of self-defence, or defence of another. Once the issue of self-defence is raised, the burden is then placed on the prosecution to prove that the defendant was not acting in self-defence, beyond the standard of reasonable doubt. Because self-defence is a complete defence, if it is accepted by the court it must dismiss the charges against the defendant. Under section 418 of the Crimes Act 1900 (NSW), defendants are not criminally responsible for an offence where they believe that their actions were necessary:

(a) to defend themselves or another person, or

(b) to prevent or terminate the unlawful deprivation of their or another person’s liberty, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass or to remove a person trespassing on any property

and that the conduct was a reasonable response in the circumstances as they perceived them.

From this section, it should be noted that the two most important elements of the test for self-defence, are its subjective and objective requirements. The subjective component is that the defendant must have believed at the time they committed the offence that their actions were necessary. Because this is a subjective test, it ignores what a reasonable person in the same circumstances would have done, instead determining whether the defendant was convinced their actions were necessary. It is therefore irrelevant whether the defendant’s beliefs were erroneous or not, as the only requirement is that their beliefs were genuinely held. The objective component is that the defendant’s actions must have been reasonable in the circumstances. The court will objectively assess the proportionality of the defendant’s response to the situation, and will not take into account whether the defendant was of the belief that they were acting reasonably. The prosecution must prove beyond reasonable doubt that at least one of these elements was not present in the offence, or otherwise the defendant will be entitled to an acquittal.

Duress

Another defence which may be used by a defendant charged with a criminal offence, is that of duress. A defendant may claim that they acted under duress if their actions were motivated by a serious threat against them or their family, and serious injury or death would have resulted if they did not perform the criminal act. In order to be eligible for the duress defence, the circumstances must have been so severe for the defendant that their will was in effect constrained completely, forcing them to be a mere innocent instrument of the crime. Some of the requirements for establishing a defence of duress were set out by Chief Justice Hunt at CL in Bassett (1994), an unreported Supreme Court case, including:

• An actual threat being made.
• The threat being of death or serious injury to the defendant or their family.
• The threat being of such gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the defendant would have yielded to the threat in the same way they did.
• That the defendant acted the way they did due to the threat which was still acting on their mind at the time of the criminal act.
• For such a threat to be effective it must be continuing and be perceived to be continuing. Such a threat will therefore not be continuing and effective if the accused had a reasonable opportunity to render the threat ineffective.

The burden of proof for establishing duress rests on the defendant, but once this burden is satisfied then the prosecution must prove that the defendant acted voluntarily beyond any reasonable doubt. However, it should be noted that duress is a defence to all criminal offences except for murder and treason. But duress is also a complete defence, so once it is established by the defendant the court must acquit them of all charges.

Necessity

Defendants who have committed a criminal offence may also raise the defence of necessity, but only where they sincerely believed that they or their family would otherwise suffer immediate and irreparable harm. The defence of necessity shares some common elements with that of self-defence. In R v Loughnan (1981) the NSW Court of Criminal Appeal held that the required elements of the defence were:

• The criminal act must have been done in order to avoid certain consequences which would have inflicted irreparable evil upon the defendant or upon others who they were bound to protect, and
• The accused must honestly have believed on reasonable grounds that they were placed in a situation of imminent peril, and
• The acts committed must not have been out of proportion to the imminent peril.

However, the necessity defence is solely limited to situations which overwhelmingly compel disobedience of the law, and thus it is usually difficult to satisfy the courts that the elements were present. Defendants applying have the evidentiary burden of establishing a defence of necessity, but once established the prosecutor must disprove the defence beyond reasonable doubt. Also, like duress, the defence of necessity is not available to defendants who have been charged with the crimes of murder or treason.

Intoxication

A defendant’s intoxicated state at the time of the alleged committal of a criminal offence may be taken into account by the courts, under certain circumstances. Under the Crimes Act 1900 (NSW), it is defined as meaning “intoxication because of the influence of alcohol, a drug or any other substance.” However, the criminal defence of intoxication is currently only available for the specific intent category of offences, which require proof from the prosecution that the defendant possessed a specific intent to bring about a specific result. Thus, intoxication may be used as a defence for a specific intent offence such as maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm. The intoxication defence is outlined in section 428C of the Crimes Act 1900 (NSW), which states that evidence of a defendant being intoxicated at the time of the offence may be taken into account in determining whether they had the intention to cause the specific result necessary for an offence of specific intent. However, such evidence cannot be considered by the courts, if the defendant had decided before becoming intoxicated to perform the relevant act, or they had become intoxicated to strengthen their resolve to perform the relevant act.

Claim of right

Another possible defence available to defendants, is where they committed a criminal offence because they had a sincere belief that they had a claim to a legal entitlement over property. There is no legal requirement for this sincere belief to be reasonable, but the reasonableness of the belief may be a relevant consideration for the courts when determining whether it was actually held. Once the defence is raised, the defendant has the burden of proving there was a genuine belief, and if this is proven the prosecution then has the burden of disproving it existed beyond all reasonable doubt. Section 9.5 of the schedule of the Criminal Code Act 1995 (Cth) sets out the requirements of the defence, stating that if at the time of the offence a defendant was under a mistaken belief that a proprietary or possessory right existed over property, they cannot be held criminally responsible for an offence that has a physical element relating to that property. The existence of any such proprietary or possessory right negates the fault element for any physical element of the offence. The section also states that a defendant is not criminally responsible for any other offence necessarily arising out of the exercise of the mistaken proprietary or possessory right. But it should be noted that this section does not negate criminal responsibility for any offence involving the use of force against a person. Also, the presence of fraud during the claiming of the legal entitlement would invalidate any claim of right, due to the lack of the requisite element of good faith.

Honest and Reasonable Mistake

Sections 9.1 to 9.4 of the schedule of the Criminal Code Act 1995 (Cth) sets out the requirements of the defence, stating that a defendant will not be held criminally responsible for an offence if they were under a mistaken belief about the facts at the time of committing the act.

The section also requires that this belief or ignorance of the facts negates the fault element, or that the belief was reasonable to hold in the circumstances. This defence may be present where the defendant had an honest belief in facts which if they had existed, would excuse their innocent act in contravention of the law. But the defence of honest and reasonable mistake is more limited in scope than other defences, because it is only applicable to strict liability offences, which are those that do not require the prosecution to prove that the defendant intended for the result to occur.

Consequently, this defence is most frequently raised in relation to traffic offences, such as Drink Driving (PCA) or speeding charges. It is also important to note that this ground of exculpation is only available where there is a mistake of facts, and not a mistake of law. An example of a mistake of fact is where there is a mistaken belief by the defendant that one of the elements of the offence was not present, when they were committing the act.

Once the defence of honest and reasonable mistake is raised, the defendant has the burden of proving there was an honest belief, and if this is proven the prosecution then has the burden of disproving it beyond all reasonable doubt.

Lawful Correction

In 2002 laws were introduced into NSW clarifying what constituted acceptable physical punishment of children by their parents. The requirements of the defence of lawful correction are stated in section 61AA(1) of the Crimes Act 1900 (Cth), where it states that the defence is available only where:

• The force used on the child was for their punishment
• The force was applied by the parent or a person acting for a parent of the child
• With regard to the physical and mental characteristics of the child, or what the child did, the force that was used on the child was reasonable.

However, the force will not be considered reasonable under section 61AA(2) if:

• The force was applied to the neck or head of the child, unless it was trivial or negligible
• The force is likely to cause harm to a child that will last for more than a brief period

According to the legislation, a parent is defined as anyone having all of the duties, powers, responsibilities and authority over the child that a parent would have, such as a step-parent. If the defence of lawful correction is raised by a parent, the burden is placed on them to prove that they were correcting the child in their care, on the balance of probabilities. If you have any questions about what defence would be most appropriate 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

Under Australian law, bail is the legal mechanism where a person who is arrested for a criminal offence can be released pending their trial, rather than being held in custody throughout its entire duration. Once the accused has been arrested and charged with a crime, the police will consider whether it is appropriate to release them on bail, and if so what bail conditions should be imposed. Bail can be obtained from the police after initial arrest, as well as from a Magistrate in the Local Court, a judge in the District Court, or a Justice in the Supreme Court. Research from the NSW Bureau of Crime Statistics and Research indicates that defendants are most likely to be granted bail in the Local Court. In 2007, 7.6% of defendants appearing in NSW Local Courts for any offence were refused bail, and 47.6% were refused bail in the Higher Courts, though both these figures have trended upwards in recent years. The purpose of this article is to help inform people unfamiliar with the legal system about the criteria that are taken into account by NSW courts when they are considering bail applications.

The New South Wales bail system

The regulation of the New South Wales bail system is outlined in the Bail Act 1978 (NSW), where section 32 provides a mandatory list of the criteria that must be considered in every bail application. It is important to note that the principle criterion applicable to bail applications is the probability or improbability of the defendant responding to bail, and not their supposed guilt or innocence. While the seriousness of the alleged offences may be taken into account during bail applications, the courts cannot rely on it as the sole determinant of whether bail will be granted.

It should be noted that there is a legal presumption under section 9 of the Act for bail being granted for all offences, except for those listed under section 9(1). A defendant will usually be entitled to bail if they have been arrested for a minor offence, such as one only punishable by a fine or listed in the Summary Offences Act 1988(NSW). Offences that are excluded under section 9(1) include serious indictable drug, violence or firearms offences, or where a person is already subject to a long term supervision order or on lifetime parole. Section 9C also requires the court not to grant bail to a defendant charged with the crime of murder, unless it is justified by exceptional circumstances.

Criteria considered in bail applications

There is a range of criteria listed in section 32(1) of the Bail Act 1978 (NSW), which the courts apply when considering a defendant’s eligibility for bail. The court will consider the probability of the defendant appearing in court, taking into account:

• The defendant’s background and community ties, including the history and details of their residence, employment and family situations, and any prior criminal record.
• Any previous failure by the defendant to appear in court pursuant to a bail undertaking.
• The circumstances of the alleged offence, including its nature and seriousness, the strength of the evidence against the defendant, and the severity of the possible penalty.
• Any other specific evidence indicating whether or not it is probable that the defendant will appear in court.

The courts will also give consideration to the interests of the defendant, including:

• The period that the defendant would be obliged to spend in custody if bail were refused, and the conditions of custody.
• The defendant’s need to be free to prepare for their appearance in court and to obtain legal advice.
• The defendant’s need to be free for any other lawful purpose.
• Whether in the opinion of the court, the defendant is incapacitated by intoxication, injury or drug-use, or is otherwise in danger of physical injury, or requires physical protection.
• Whether the defendant is under the age of 18 years, has an intellectual disability or mental illness, or is an Aborigine or Torres Strait Islander.
• The defendant’s criminal history, including the nature and seriousness of any previous indictable offence convictions, the number of any previous such offences and the length of time between these offences.

The court will also take into account the interests of other potentially affected parties when determining whether to grant bail. The court may consider the protection of the victim of the alleged offence, the protection of the victim’s close relatives, or any other person believed to require protection in the circumstances.

The courts will also consider the protection and welfare of the wider community, including:

• The nature and seriousness of the offence, particularly whether the offence is of a sexual or violent nature or involves an offensive weapon.
• Whether the defendant has previously failed, or has been arrested for an anticipated failure, to observe a reasonable bail condition.
• The likelihood the defendant would interfere with evidence, witnesses or jurors.
• The likelihood the defendant would commit any serious offence while on bail.
• If it is a serious offence whether, at the time the defendant allegedly committed the offence, the person had already been granted bail or parole for any other serious offences.
• If the offence for which bail is being considered involves the possession or use of an offensive weapon, the defendant’s prior criminal record of such offences.

Granting of Bail

Once bail is granted, section 34 requires the defendant not to be released until they undertake in writing to appear before the court whenever required to, and to notify the court of any change of address. Bail may be unconditional, or conditions may be attached to it, such as the defendant agreeing to forfeit money if they fail to meet their bail undertakings, reporting to police on a regular basis, or surrendering their passport.

Refusal of Bail

Under section 22A, a court must refuse to entertain an application for bail if that application has already been made and dealt with by the court, unless there are valid grounds for a further application. As such, it is important that the application be prepared properly, as the only way another application can be made afterwards is if it can be demonstrated that one of these grounds would apply. The grounds are that:

• The defendant was not legally represented when the previous application was dealt with, and now they do have legal representation, or
• Information relevant to the grant of bail that was not presented to the court in the previous application, will be presented in the current application, or
• Circumstances relevant to the grant of bail have changed since the previous application was made.

A court may also refuse to entertain an application for bail if it believes that the application is frivolous or vexatious in nature.

If you have any further questions about how the criteria considered during a bail application would apply to you, or need any further information, please contact us.

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

Legal Aid NSW was established under the Legal Aid Commission Act 1979 (NSW) in order to provide legal aid and other legal services to disadvantaged members of the community. It plays an important role in the legal justice system by helping people from socially and economically disadvantaged groups to understand and protect their legal rights. This article is intended to provide a simple guide to the considerations that are taken into account by Legal Aid NSW, when determining whether to grant Legal Aid to an applicant, particularly in relation to criminal matters. There are currently four main tests set out in the Legal Aid NSW policies:

The Jurisdiction Test

The jurisdiction test assesses the type of matter for which legal aid is sought. The following is a list of criminal matters for which legal aid is available:

State and Commonwealth Local Court criminal matters

• Most State criminal matters commenced by a police charge, except for drink driving and related offences unless there is a real possibility of gaol or there are exceptional circumstances
• Most State criminal matters commenced other than by a police charge, if there is a real possibility of imprisonment or there are exceptional circumstances
• Commonwealth criminal matters in which the applicant is pleading guilty
• Trials in Commonwealth criminal matters, in limited circumstances
• Committal proceedings
• Domestic violence proceedings
• Bail applications in State matters and, in limited circumstances, in Commonwealth matters
• Drug court matters
• Annulment applications under Part 2 of the Crimes (Appeal And Review) Act 2001 (NSW)
• Matters where the applicant is contesting a forensic procedure application under the Crimes (Forensic Procedures) Act 2000 (NSW)
• Some matters where the applicant is participating in a restorative justice program

State and Commonwealth District, Supreme, Court of Criminal Appeal and High Court criminal matters

• Indictable matters
• Appeals
• Proceedings under Part 7 of the Crimes (Appeal And Review) Act 2001 (NSW)
• Matters where the applicant is the defendant in the Land and Environment Court under environmental protection legislation, in limited circumstances
• Matters involving charges arising under Commonwealth statute in certain circumstances, excluding theProceeds of Crime Act 1987 (Cth)
• Matters where an application is made to the Court of Criminal Appeal on behalf of the DPP for an acquitted person to be retried, pursuant to Part 8 of the Crimes (Appeal And Review) Act 2001 (NSW)
• Preventative detention matters under Part 2A of the Terrorism (Police Powers) Act 2002 (NSW)

State and Commonwealth children’s criminal matters

• Proceedings in the Children’s Court including committals
• Trials and sentence matters in the District and Supreme Courts
• Appeals
• Matters where the applicant is participating in a restorative justice program

State: prisoners’ discipline and parole matters

• Parole Board Review hearings and reviews of segregation directions
• Visiting justice proceedings and life re-sentencing applications
• Advice and minor assistance in other matters

The Means Test

Legal Aid NSW applies a means test which takes into account an applicant’s income and assets in order to assess whether they actually lack the ability to meet the ordinary costs of legal services. The means test is used to determine whether the applicant is eligible to receive legal aid, and if so, to determine what contribution they should make to the costs of the matter. The Legal Aid means test is structured as three sub-tests:

Income test

The income test is applied to the applicant’s net assessable income, which is the applicant’s gross assessable income less allowable deductions. There are several allowable deductions in the income test, including income taxes paid, housing costs, dependant allowances, child support and childcare costs. Applicants for legal aid receiving any of the eligible Centrelink income support payments will also satisfy the income component of the means test.

Assets test

The assets test is applied to the applicant’s net assessable assets, which are the applicant’s gross assessable assets less excluded assets. Examples of excluded assets are household furniture, clothing, work tools, lump sum payments, and home or business equity.

Applicant’s ability to pay legal costs test

Legal Aid NSW also considers the applicant’s ability to pay legal costs, having regard to their general assets and their ability to realise or secure a loan. The application will be refused where the applicant’s lifestyle, activities or interests suggest that they have access to sufficient resources to be able to pay for legal costs themselves, without sustaining undue hardship.

Contributions

It should be understood that in most cases Legal Aid NSW requires an applicant granted legal aid to pay an initial contribution based on their income and assets. However, the applicant does not have to pay an initial contribution when they are involved in Local Court criminal matters, except for committals, matters where a plea of not guilty has been entered or matters requiring expenditure. At the conclusion of the case, Legal Aid NSW may also recover the total legal costs of a matter, if the applicant has recovered a sum of money or experienced substantial improvement in their financial circumstances. Furthermore, under section 36 of the Legal Aid Commission Act 1979 (NSW) if any applicant fails to fully pay their contribution, Legal Aid NSW may recover the amount and any interest on it as a debt in court.

It should be noted that the means test is not applied to certain matters, such as:
• Legal advice and minor assistance services
• Family, care and protection and civil law duty matters
• Matters involving children
• First appearance bail applications in the Local Court
• Most Mental Health Advocacy Service matters
• Veterans’ Entitlements Act 1986 (Cth) matters for ex-service personnel and their dependants
• Disabled people in matters before the Guardianship Tribunal, and Supreme Court appeals from the Tribunal.
• Drug Court matters
• Drug and Alcohol Treatment Act 2007 (NSW) matters, except for appeals

The Merit test

Legal Aid NSW also applies a means test which takes into account whether the applicant’s case has a reasonable chance of succeeding, or if the result is likely to be of sufficient personal or public benefit. There are separate merit tests for State law and Commonwealth law matters. In State law matters, Legal Aid NSW considers whether it is reasonable in the circumstances to grant legal aid, taking into account whether the applicant has reasonable prospects of success and if it will be detrimental to the applicant if aid is refused. In Commonwealth law matters, the applicant must satisfy the ‘reasonable prospects of success’ test, the ‘prudent self-funding litigant’ test and the ‘appropriateness of spending limited public legal aid funds’ test. The NSW Legal Aid Guidelines state that Legal Aid NSW will also assess this by considering whether the costs involved in providing legal aid are warranted by the likely benefit to the applicant or the wider community.

It is important to note that the merit test is not applied to criminal law matters, except for criminal law appeals and Supreme Court bail applications. The merit test is also not applied to:
• Children in the Children’s Court
• Children represented by an independent children’s lawyer after an order of the Family Court
• Disabled people in matters before the Guardianship Tribunal
• Most Mental Health Act 2007 (NSW) matters.

However a merit test is applied to:
• Appeals in criminal matters

• Most non-criminal matters e.g. family or civil matters
• Supreme Court bail matters
• Some matters associated with Children’s Court proceedings, such as appeals from the Children’s

Court to the District Court.

The Availability of Funds test

Legal aid will only be granted if Legal Aid NSW determines that sufficient funds are available. However in Commonwealth matters,Any legal matter arising under a law of the Commonwealth. A Commonwealth Act of Parliament can be identified by “Cth” in brackets after the name of the Act e.g. Family Law Act 1975 (Cth). Legal Aid NSW must also consider the available funds and competing priorities in determining whether to grant legal aid. If you have any questions about whether you qualify for Legal Aid or need any further information, please contact Legal Aid NSW, or alternatively contact Barclay Churchill at the following numbers.

Getting Help

Sydney Defense Lawyers
Criminal Barristers & Solicitors

Level 13
99 Elizabeth Street
Sydney NSW 2000

Tel: 02 9261 3301
Fax: 02 9261 3341
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev

Introduction

Sentences imposed by Local Courts are open to a number of review and appeal avenues. This article intends to provide a brief overview of the process involved in severity appeals from the Local Court to the District Court.

Criminal appeals are generally governed by the Crimes (Appeal and Review) Act 2001 (NSW) (the Act). Under section 11(1) of the Act, any person who has been sentenced by a Local Court may appeal to the District Court against the severity of the sentence.

Appeals to the District Court

Appeals to the District Court are heard by a single judge. A solicitor from the Office of the Director of Public Prosecutions (DPP) usually appears for the Crown. A solicitor or barrister may appear for the appellant.

The District Court will rehear the evidence given in the original Local Court proceedings in order to determine the appeal. Fresh evidence that was not before the Local Court can be given in the appeal proceedings. This fresh evidence can include references or reports that support the appeal case.

Commencing the Appeal

Under section 11(2)(a) of the Act, an appeal must be made within 28 days after the sentence is imposed. If an appeal is lodged within 28 days of sentence, the appropriate form is the Notice of Appeal.

If the 28-day period has passed, leave of the District Court must be sought by way of an Application for Leave to Appeal. Under s 13(2) this must be done within three months of the date the sentence was imposed.

Under section 14(1) of the Act, an appeal is made by lodging a written Notice of Appeal or an Application for Leave to Appeal with either:

(a) The Registrar of any Local Court; or

(b) The person in charge of the place where the appellant is in custody.

The Notice of Appeal or Application for Leave to Appeal can be obtained from any Local Court Registry. It is also available on the Local Courts website.

The Effect of Lodging a Notice of Appeal

Once a Notice of Appeal is lodged, any sentence, penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of licence or privilege arising under an Act as a consequence of a conviction is stayed. This means that the sentence or order does not take effect until the appeal is determined.

There are exceptions to this general rule as noted in section 63 of the Act. These include:

• If a person requires leave to appeal, the stay only takes effect when leave is actually granted.
• If the appellant is in custody, and has not been granted bail, the sentence of imprisonment continues to have effect.

Powers of the District Court when Dealing with Appeals

Under section 20(2) of the Act, upon hearing the appeal, the District Court may:

(a) Set aside the sentence;

(b) Vary the sentence; or

(c) Dismiss the appeal.

However, under section 71 of the Act, the District Court must not make an order or impose a sentence that could not have been made or imposed in the Local Court. Further if the District Court is considering increasing the sentence that was imposed by the Local Court, the Court must warn the appellant.

If such a warning is given, it is possible to seek leave to withdraw the appeal. However, it is up to the Judge whether leave is granted and if it is not granted, the appeal will have to go ahead.

Failure to Appear

If the appellant (or his/her legal representative) fails to appear to argue the appeal or the application for leave to appeal, the Court may dismiss the matter.

If such a dismissal has been ordered, it is possible to apply to the Court to have the dismissal revoked under section 22 of the Act. The application for revocation of dismissal must be made within 12 months of the date on which the dismissal order was made.

Under section 22(3) of the Act, after hearing the application, the District Court may set aside the dismissal order, either unconditionally or subject to conditions, if it is satisfied that:

(a) The appellant has show sufficient cause for the failure to appear; and

(b) It is in the interests of justice that the appeal or application be heard.

Other Options

Severity appeal to the District Court is one option that may be taken when the Local Court hands down a sentence. Some other options are:

• Annulment of conviction or sentence;
• Conviction appeal;
• Appeal to the Supreme Court; and
• Appeal to the Land and Environment Court.

Whether any of these options are available and/or suitable will depend on the circumstances of each particular case.

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

Suspended sentences were reintroduced into the New South Wales legal system in 2000, in order to provide judges with more flexibility during the sentencing process. In introducing the bill, then Attorney General of NSW, Robert John Debus stated that “The primary purpose of suspended sentences is to denote the seriousness of the offence and the consequences of re-offending, whilst at the same time providing [offenders] an opportunity, by good behaviour, to avoid the consequences.” Suspended sentences allow judges and magistrates to impose a sentence of imprisonment on a convicted offender to convey the severity of the offence, but at the same time encourage their rehabilitation. Research by the Australian Institute of Criminology found that suspended sentences were an effective method of deterring and denunciating offenders, with offenders on a wholly suspended sentence having lower reconviction rates than those facing full-time imprisonment or partially suspended sentences. However, the paper also found that the failure to consistently prosecute breaches of suspended sentences reduced their effectiveness at deterrence, as well as potentially undermining the sentencing option’s legitimacy in the eyes of the wider community.

The legislation in New South Wales

Suspended sentences are prison sentences where the sentence for the convicted offender is partly or wholly suspended subject to certain conditions. 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, as it is only the execution of that sentence that is suspended. The primary legislation governing suspended sentences in New South Wales is section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The section states that:

(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:

(a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and

(b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.

(2) An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order.

(3) Subject to section 99 (1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section.

(4) An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment.

A 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 must 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. It should be noted that unlike Commonwealth offences, it is not possible to receive a partially suspended sentence of imprisonment for a State offence in New South Wales.

Breach of suspended sentence bonds

Where a convicted offender breaches the good behaviour bond for their suspended sentence, the court has an obligation under section 98(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to revoke it. It will do so unless it is satisfied that the failure to comply with the conditions of the bond was relatively trivial in nature, or that there are good reasons for excusing that failure such as extenuating circumstances.

If you have any questions about suspended sentences or just 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

Community Service Orders (CSOs) have become an increasingly popular sentencing option in New South Wales courts, as they obligate offenders to perform work in the community as an alternative to imposing stricter judicial remedies or sanctions. Research by the Australian Institute of Criminology has indicated that community sentencing has a much higher likelihood of rehabilitating criminal offenders, because it punishes them through restrictions on their time and liberty, as well as encouraging them to reform their behaviour. Community Service Orders have also proven to be cost-effective for the authorities, as they are relatively cheap to administer in contrast to imprisonment, while simultaneously enabling offenders to make reparations for harm committed in the local community.

The legislation in New South Wales

The main legislation governing Community Service Orders in New South Wales is part 5 of the Crimes (Administration of Sentences) Act 1999 (NSW) and part 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provide that anyone who has committed an offence punishable by imprisonment, may instead be sentenced by a court to community service. Under section 8(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the duration for a Community Service Order for an offence must not exceed 500 hours, or the number of hours prescribed by the regulations in respect to that offence. However, clause 22 of the Crimes (Sentencing Procedure) Regulation 2005 (NSW) lists the maximum hours that may be imposed in a Community Service Order, according to the maximum term of imprisonment applicable to the offender. A Community Service Order cannot be more than:

1. 100 hours, where the maximum term of imprisonment does not exceed six months.
2. 200 hours, where the maximum term of imprisonment is more than six months but less than twelve months.
3. 500 hours, where the maximum term of imprisonment exceeds twelve months

Furthermore, offenders are restricted from performing more than eight hours of community service work in one day or participating in a development program for more than five hours in one day, unless previously agreed to by the offender and the assigned officer. Offenders may also be required by the courts to undergo mandatory alcohol or drug-testing, or to attend counseling programs such as Anger Management. The type of community work undertaken includes a broad range of activities, such as painting, cleaning and repairing services for pensioners or community groups, as well as rubbish removal, ground maintenance and bush regeneration projects.

Considerations in making a Community Service Order

Section 86 of the Crimes (Sentencing Procedure) Act 1999 (NSW) lists the criteria that must be considered by the courts when determining the suitability of an offender for a Community Service Order. The court must be satisfied that:

(a) the offender is a suitable person for community service work

(b) it is appropriate in all of the circumstances that the offender be required to perform community service work

(c) arrangements exist in the area in which the offender resides or intends to reside for the offender to perform community service work, and

(d) community service work can be provided in accordance with those arrangements.

The court may also take into account the contents of any assessment report on the offender, as well as any other evidence provided by the NSW Probation and Parole Service.

Breaches of a Community Service Order

The courts treat very seriously any breaches of Community Service Orders by offenders, because they believe allowing such breaches to persist risks undermining their legitimacy as a sentencing option to the wider community. If an offender fails to complete the community services hours ordered by the court within the set time period, the NSW Probation and Parole Service may advise the court and a summons may be issued for the offender to address the failure. If the court finds that there has been a breach as a result of the offender failing to comply with the Community Service Order, it may completely revoke the order and resentence the offender for the original offence. While doing so, the court must take into account that they were previously subject to an order, and it may also take into account any time already served in custody for the offence.

If you have any questions about Community Service Orders or just 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