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.
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  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.
Barclay Churchill Solicitors and Barristers
111 Elizabeth Street
Sydney NSW 2000