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

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Mob: 0424 1999 04
Fax: (02) 9261 3341
Email: notguilty@astonlegal.com

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

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Mob: 0424 1999 04
Fax: (02) 9261 3341
Email: notguilty@astonlegal.com

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

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Fax: (02) 9261 3341
Mob: 0424 1999 04
Email: notguilty@astonlegal.com

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 the Proceeds 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 Aston Legal at the following numbers.

Getting Help

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Mob: 0424 1999 04
Fax: (02) 9261 3341
Email: notguilty@astonlegal.com

Legal Aid NSW

Contact your nearest Legal Aid office (under L-Z in the telephone directory) or ring Law Access NSW on 1300 888 529 or TTY 1300 889 529 (9am to 5pm Monday to Friday).

Legal Aid NSW Policies and Guidelines links

Policies: http://www.legalaid.nsw.gov.au/asp/index.asp?pgid=758

Guidelines: http://www.legalaid.nsw.gov.au/asp/index.asp?pgid=755&cid=993&policyid=4&chapterid=13

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

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Mob: 0424 1999 04
Fax: (02) 9261 3341
Email: notguilty@astonlegal.com

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

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Mob: 0424 1999 04
Fax: (02) 9261 3341
Email: notguilty@astonlegal.com

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 the Road 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

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Mob: 0424 1999 04
Fax: (02) 9261 3341
Email: notguilty@astonlegal.com

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

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Mob: 0424 1999 04
Fax: (02) 9261 3341
Email: notguilty@astonlegal.com

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

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Mob: 0424 1999 04
Fax: (02) 9261 3341
Email: notguilty@astonlegal.com

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

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Fax: (02) 9261 3341
Mob: 0424 1999 04
Email: notguilty@astonlegal.com