Criminal Law.
Criminal Charges
If you have been charged with a criminal offence, drink driving or traffic offence, we are here to help you.
Whether you need urgent legal advice, prompt representation or a free initial consultation with a lawyer or full representation through all stages of your proceedings, we are here to help you every step of the way.
We offer fixed fees pricing and free initial consultation for all criminal law, traffic law and drink driving matters. We are committed to providing meaningful advice to you, making sure that you successfully navigate through this difficult time.
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Court Proceedings:
Magistrates' Court mentions,
Contested hearings,
Bail procedures,
Appeals to the County Court,
Sentencing,
Pleas,
Pre-trial procedures, and
Trials.
Crim
Your Criminal case could be heard in any of the following courts depending on the circumstances of the offending and the nature of the charge.
The Magistrates’ Courts in Victoria and Queensland and the Local Court in New South Wales.
The Magistrates' Courts serve as the first level of the court system, handling a variety of matters, including summary offences, indictable offences triable summarily. The court aims to provide access to justice and reflects the principles of fairness and efficiency in its operations.
The Magistrates' Court’s Criminal Division deals with a wide range of criminal cases, from minor offences such as traffic violations to more serious crimes. The court conducts hearings, determines guilt, and imposes sentences where appropriate.
The County Court in Victoria and the District Court in New South Wales and Queensland.
The Victorian County Court or the District Court serves as a key intermediate court within the hierarchy of the judicial system. It handles a broad range of criminal matters.
In the criminal jurisdiction, the County Court or District Court deals with serious offences that are indictable in nature. This includes charges such as fraud, drug trafficking and sexual offences. The court conducts trials before a judge and, in some cases, a jury, and can impose significant penalties, including custodial sentences.
The Supreme Court and the Court of Appeal
The Supreme Court is the highest court in the state.The court hears serious criminal cases such as murder.
The court operates through two divisions: the Court of Appeal and the Trial Division.
The Trial Division handles the first-instance matters involving indictable criminal charges.
The Court of Appeal hears cases that have been appealed from the Trial Division.
Diversion in Victorian Courts
If you are in Victoria, and this was your first offending, we could negotiate a recommendation for a Diversion Program with Victoria Police on your behalf. We have a good track record of securing Diversion Programs for our clients in Victoria.
Diversion programs within the Victorian judicial system represent an alternative approach to traditional criminal proceedings, particularly for offenders whose circumstances may not warrant full penal sanctions. These programs are designed to redirect (divert) individuals away from the conventional court process, aiming instead at rehabilitation and reintegration into society.
Victorian courts offer diversion options primarily for minor offences and for certain categories of offenders, such as young people or those with mental health issues. The key objective is to address underlying issues that may have contributed to the individual’s criminal behaviour. By focusing on rehabilitation rather than punishment, diversion programs seek to reduce recidivism rates and alleviate the burden on the court system.
The process typically involves an initial assessment where the eligibility of the accused is determined. Upon acceptance into a diversion program, the individual may be required to complete certain conditions, such as community service, counselling, or educational programs. Successful completion of these conditions often results in charges being dismissed, thereby allowing the individual to avoid a criminal record.
Diversion initiatives in Victoria are closely aligned with restorative justice principles, emphasising accountability and community involvement. The aim is to create a collaborative environment where offenders can take responsibility for their actions, while victims may also have a role in the healing process.
The efficacy of diversion programs has been a subject of significant research and discussion. Studies indicate that participants often show improved engagement with community resources and reduced repeat offending rates, suggesting that such alternatives can significantly benefit both the individual and the wider community.
Overall, diversion in Victorian courts embodies a progressive shift in how the legal system addresses crime, prioritising social betterment and reinforcing the idea that justice can be served without the need for conventional punitive measures.
Bails
Bails laws in Victoria operate under the Bail Act 1977, which outlines similar principles:
Bail Decision Process: Bail is generally granted unless specific grounds for refusal exist.
Factors Considered: Factors such as the nature of the offending, the accused's criminal history, and personal circumstances are taken into account.
Breach of Bail Conditions: Breaching bail conditions can lead to arrest and a possible refusal of bail in the future.
Bail laws in Victoria are governed by the Bail Act 1977 (Vic). This legislation outlines the processes involved in the granting or refusal of bail for individuals charged with offences.
When interpreting and applying the Bail Act 1977 (Vic), the Court is required to have regard to the guiding principles set out in section 1B. Section 1B provides:
The Parliament recognises the importance of
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; and
(c) promoting fairness, transparency and consistency in bail decision making; and
(d) promoting public understanding of bail practices and procedures.
The Exceptional Circumstances Test or the Compelling Reason Test:
In each bail application, of the following tests will be applied:
Exceptional Circumstances Test
If the accused is charged for an offence under Schedule 2 of the Bail Act 1977 (mostly serious offences) or is charged with breaching a bail condition, then the accused must satisfy the exceptional circumstances test to be granted bail.
The accused bears the onus of proving to the requisite standard that exceptional circumstances exist to justify the grant of bail. In determining whether exceptional circumstances exist, the court must take into account the relevant surrounding circumstances, including, but not limited to, those prescribed in section 3AAA(1) of the Act.
if the accused were found guilty of the offence with which the accused is charged, it is likely— the accused would be sentenced to a term of imprisonment; and if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment.
nature and seriousness of the alleged offending, including whether it is a serious example of the offence.
the strength of the prosecution case.
the accused's criminal history.
the extent to which the accused has complied with the conditions of any earlier grant of bail.
whether, at the time of the alleged offending, the accused— was on bail for another offence; or was subject to a summons to answer to a charge for another offence; or was at large awaiting trial for another offence.
If the Court is satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test. Bail must be refused if the prosecution satisfies the Court that there is a risk, and that this risk is an unacceptable one. In considering whether any relevant risk is unacceptable, the court must again have regard to the surrounding circumstances (as shown above) and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.
Each case is unique, and the specific circumstances will be pivotal in the court's assessment. Ultimately, the onus lies on the applicant to establish the exceptional circumstances test that their situation qualifies as exceptional, warranting their release on bail despite the standard presumptions against it.
The Compelling Reason test
The Compelling Reason Test is a pivotal component of the Bail Act 1977 in Australia, particularly within the context of determining whether an accused person should be granted bail. This test is applied when a person is charged with a serious offence, as defined under the Act.
Under the Bail Act, a presumption against bail exists for certain serious offences, and the onus is on the accused to demonstrate a compelling reason why bail should be granted. The term "compelling reason" refers to a justification that is strong enough to outweigh the presumption against bail.
When assessing a compelling reason, the Court considers various factors, including but not limited to the nature and seriousness of the charge, the circumstances surrounding the alleged offence, the accused's criminal history, and the likelihood of the accused appearing in Court if granted bail. Additionally, personal circumstances such as employment, family ties, and health conditions may also be considered.
Ultimately, the decision to grant or deny bail based on the compelling reason test involves a careful consideration of the specific facts of each case, ensuring a fair and just outcome in line with the objectives of the Bail Act 1977.
Crimes Committed Against the Person
Common Assault -
Common assault is a criminal offence defined under Australian law. It involves causing apprehension of immediate harmful or offensive contact. It is important to note that common assault does not require physical injury to the victim. The key elements to establish common assault include:
Intent: The accused must have intended to threaten or harm the victim, or acted recklessly in a manner that could lead to fear of harm.
Apprehension: The victim must have experienced a reasonable apprehension of immediate physical harm. This does not require the victim to actually be touched.
No Consent: The victim did not consent to the contact or the threat of contact.
Examples of Common Assault
Common assault can take various forms, including:
Threats: Verbal or non-verbal threats where the victim feels under immediate threat of physical harm.
Physical gestures: Aggressive gestures that communicate an intention to inflict harm, even if no physical contact occurs.
Minor physical contact: Unwanted touching or pushing that does not cause injury.
Sentences
The penalties for common assault can vary depending on the jurisdiction and circumstances surrounding the case. In Australia, common assault is generally classified as a summary offence, which may result in:
Fines
Community service orders
Imprisonment for a short term in more severe cases
Defences
Common defences against a charge of common assault include:
Self-defence: If the accused acts to protect themselves from imminent harm.
Consent: If the victim consented to the conduct.
It is essential for individuals accused of common assault to seek legal advice to understand their rights and the potential consequences of the charges they face
Aggravated Assault
Aggravated assault is a serious offence, characterised by an intention to cause serious harm or the use of a weapon during the commission of the assault. Each state and territory in Australia has its own legislation defining aggravated assault and outlining penalties associated with the crime.
Definition and Elements
Typically, for an assault to be classified as aggravated, it must meet specific criteria:
Intent: The perpetrator must have intended to cause harm or acted recklessly, knowing that their actions could likely cause injury.
Severity of Harm: The assault must result in serious bodily injury or have the potential to do so.
Use of Weapons: In many jurisdictions, the use of a weapon or any object that can inflict injury elevates the charge to aggravated assault.
Victim Types: Aggressive acts against vulnerable individuals, such as children, the elderly, or those in a position of authority (like police officers), can also be classified as aggravated.
Legal Framework
In Australia, each jurisdiction addresses aggravated assault under its criminal laws. For example:
New South Wales: The Crimes Act 1900 outlines aggravated assault, with penalties varying depending on the circumstances and severity of the offence.
Victoria: The Crimes Act 1958 includes provisions for aggravated assault, focusing on the level of injury inflicted and the use of weapons.
Queensland: Under the Criminal Code 1899, aggravated assault charges can be laid against individuals who apply force without consent and cause serious injury.
Sentences
Penalties for aggravated assault can differ significantly across jurisdictions. They may include:
Imprisonment: Sentences can range from several years to over a decade, especially in cases involving serious injury or a weapon.
Fines: Additional financial penalties may be imposed.
Community Service: Offenders might be required to perform community service as part of their sentencing.
Defences
Defendants in aggravated assault cases may argue various legal defences, including:
Self-Defence: Claiming that the force used was necessary to protect oneself or another.
Consent: In some cases, the argument may be made that the victim consented to the confrontation.
Mistake of Fact: Asserting that the actions were based on a genuine misunderstanding of the situation.
Understanding the nature of aggravated assault in Australia is crucial for both potential defendants and victims. The legal implications can be significant, and navigating the judicial process often requires professional legal guidance. Individuals charged with aggravated assault should seek counsel to explore their options and understand their rights under the law.
Intentionally or Recklessly Causing injury
Intentionally causing injury to another person falls under criminal law and is taken very seriously. This can encompass various actions, such as assault or more severe injuries, depending on the circumstances and the degree of harm inflicted.
Types of Offences
Causing Injury Intentionally or Recklessly: section 18 of the Crimes Act 1958 (Vic). This involves when a person without lawful excuse, intentionally or recklessly causes injury to another person. This is an indictable offence.
Assault Occasioning Actual Bodily Harm (ABH): section 339 of the Criminal Code 1899 (QLD). This charge applies when the injury caused is more significant than minor injuries. It requires proof that the accused intended to cause harm or was reckless in doing so.
Wounding or Grievous Bodily Harm with Intent: section 33 of the Crimes Act 1900 (NSW). This indicates a higher level of injury and involves intentionally causing serious injury or being recklessly indifferent to the significant risk of causing such injury.
Reckless Grievous Bodily Harm or Wounding: section 35 of the Crimes Act 1900 (NSW). This offence is about a person, who in the company another person/s, causes previous bodily harm to any person and is reckless as to causing actual bodily harm to that person is guilty of the offence.
Sentences
The penalties for intentionally causing injury vary based on the nature of the offence. Common assault may lead to fines or short-term imprisonment, while more serious charges like GBH can result in lengthy prison sentences, particularly if the injury is premeditated or committed in a violent context.
Defences
There are several potential defences for charges of intentionally causing injury, including:
Self-defence: If an individual can prove they acted in self-defence, the charges may be dismissed.
Consent: In some circumstances, if the victim consented to the act (e.g., contact sports), this may be a valid defence.
Mental incapacity: If the accused was not mentally fit to understand their actions at the time, it may affect liability.
Intentionally causing injury in Australia is a criminal offence with serious consequences, and individuals accused of such acts should seek legal advice to understand their rights and options. assaulting a person where you intended to inflict or were reckless as to inflicting injury on that person,
Rape
Rape under the Crimes Act 1958 (Vic) is defined as a sexual offence involving non-consensual sexual penetration. According to Section 38 of the Act, a person commits the offence of rape if they engage in sexual penetration with another person without that person's consent, and they know that the other person does not consent to the act.
Consent is a critical component in the definition of rape. It must be voluntary and given freely, without coercion, intimidation, or manipulation. A person is deemed to be incapable of giving consent if they are asleep, unconscious, or affected by drugs or alcohol to the extent that they cannot understand the nature of the act.
Rape by Compelling Another – section 39 of the Crimes Act 1958
Rape by compelling another person involves the use of threats, coercion, or force to compel an individual to engage in sexual acts without their consent. This clause highlights the seriousness of sexual offences and reflects the legal framework designed to protect individuals from sexual violence.
The critical elements that constitute this offence include:
the accused intentionally caused a person to sexually penetrate A; or
the accused intentionally caused a person to sexually penetrate themselves; or
the accused intentionally caused a person to sexually penetrate another person or an animal; or
the accused intentionally caused a person to be sexually penetrated by another person or by an animal; and
The person did not consent to the sexual penetration; and
The accused did not reasonably believe that the person consented to the sexual penetration
Defences would include that the other person consented or there was no sexual penetration.
The penalties for rape can vary significantly, reflecting the seriousness of the offence. The Crimes Act 1958 prescribes maximum penalties, which can include lengthy prison sentences. Sentencing may be influenced by factors such as the circumstances of the offence, the degree of force used, the relationship between the perpetrator and the victim, and any prior convictions.
Property Crimes
Theft -
Theft is defined under Australian law as the unlawful taking of someone else’s property with the intention to permanently deprive the owner of it. Each state and territory in Australia has its own criminal legislation that outlines the specifics of theft, but the general principles remain consistent.
Elements of Theft
To secure a conviction for theft, the prosecution must typically prove the following elements:
Taking: The accused must take possession of the property.
Property: The property in question must belong to another person.
Intention to Permanently Deprive: The accused must have the intention to permanently deprive the owner of their property at the time of taking.
Types of Theft
Theft can be classified into various categories including:
Simple Theft: This is the most basic form of theft, where property is taken without the use or threat of force.
Aggravated Theft: Involves circumstances that increase the severity of the crime, such as theft with violence or theft of property valued at a certain amount over a jurisdictional threshold.
Robbery - stealing and in doing so, using force, or making the victim believe that force would be used to commit the theft.
Burglary: Although it is a separate offence, burglary often overlaps with theft when an individual breaks into a property with the intent to commit theft.
Aggravated Burglary - committing a burglary with a firearm or explosive or imitation of firearm or imitation of explosive or an offensive weapon. The person can also be charged with this offence if there is a person present in the building or part of the building and the person committing the burglary knew a person was there or was reckless as to whether there was a person present.
Call us today for tailored legal advice regarding your criminal matter.
Sentences
The penalties for theft offences vary significantly based on the value of the property stolen and the circumstances surrounding the theft. Generally, penalties can range from fines to imprisonment. For example, in New South Wales, the maximum penalty for theft can be as much as five years’ imprisonment for a standard offence, while aggravated theft can attract more severe consequences.
Defences
Individuals accused of theft may raise several defences, which may include:
Consent: If the property owner consented to the taking of the property.
Claim of Right: A belief that the accused has a legal right to the property may mitigate or negate criminal responsibility.
Mistake of Fact: If the accused genuinely believed the property was theirs or that they had permission to take it.
Theft is taken seriously in Australia, with various laws in place across the states and territories aimed at deterring such criminal behaviour. Understanding the elements, classifications, penalties, and potential defences associated with theft is crucial for anyone involved in a related legal situation.dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it,
Fraud - Obtaining Property By Deception
Fraud offences in Australia are governed by a combination of federal and state legislation, making the legal framework somewhat complex. Below is an overview of fraud-related offences across various Australian jurisdictions.
Federal Jurisdiction
At the federal level, fraud is primarily addressed under the Criminal Code Act 1995. Key provisions include:
Section 134.1: This outlines the offence of obtaining property by deception. It involves deceiving another person with the intent to obtain a financial advantage or cause a disadvantage.
Section 135.1: This section pertains to obtaining a financial advantage or causing a loss through false or misleading representations.
Section 136.1: Related to the theft of mail and use of false documents.
These offences are handled in federal courts, and penalties can include imprisonment, fines, or both, depending on the severity of the offence.
NSW
In NSW, fraud offences are covered under the Crimes Act 1900. Key provisions include:
Section 192E: This section makes it an offence to commit fraud through deception. The maximum penalty is typically Imprisonment for up to 10 years.
Section 192C: Concerns the use of false instruments, with similar severe penalties.
Fraud cases in NSW are prosecuted in both Local and District Courts, and the punishment may vary based on the value of the fraud and the offender’s history.
Victoria
In Victoria, fraud is governed by the Crimes Act 1958. Important sections include:
Section 81: This relates to obtaining property by deception.
Section 82: Concerned with fraudulently altering price tags and similar deceptive practices.
Penalties for these offences can include substantial fines and imprisonment, with the exact consequence dependent on the nature and impact of the fraudulent act.
Queensland
Queensland addresses fraud under the Criminal Code Act 1899. Major relevant provisions include:
Section 408C: This section prohibits obtaining property by false pretences.
Section 408D: Concerned with the use of dishonest acts to gain an advantage.
In Queensland, penalties could range from monetary fines to significant prison sentences based on the offence's severity.
South Australia
In South Australia, fraud is primarily outlined in the Criminal Law Consolidation Act 1935. Key offences include:
Section 134.1: This covers obtaining property by deception, similar to other jurisdictions.
Section 135.1: Addresses representations which induce another to part with property.
Convictions can lead to both custodial and non-custodial penalties, which will consider various factors including the personal circumstances of the offender.
Western Australia
In Western Australia, the Criminal Code Compilation Act 1913 includes the following:
Section 400: Pertains to fraudulently obtaining property, with substantial penalties contingent on the value of the loss and intent involved.
Northern and Capital Territory
Both the Northern Territory and the Australian Capital Territory have their own relevant legislation:
Northern Territory: Covered under the Criminal Code Act 1983, particularly related to property offences.
ACT: Governed by the Crimes Act 1900, where similar provisions can be found.
Fraud offences across Australia are subject to varying laws and penalties depending on the specific jurisdiction. Each state and territory has established legislation dealing with fraud, often emphasising deception as a key element of the crime. Legal definitions and penalties for these offences can differ significantly, requiring careful navigation of the legal landscape by offenders and legal practitioners alike.
Destroying or Damaging Property
The offence of destroying or damaging property is governed by state and territory legislation, which varies across jurisdictions. Generally, the charge falls under criminal law and is aimed at protecting property rights.
Elements of the Offence
To establish a charge for destroying or damaging property, the prosecution typically must prove the following elements:
Property Ownership: The property in question must belong to someone other than the accused.
Destruction or Damage: There must be evidence that the property was either destroyed or damaged. Damage can range from minor alterations to complete destruction.
Intent or Recklessness: The accused must have intentionally destroyed the property or acted recklessly, showing a disregard for the potential consequences of their actions.
Sentences
The penalties for destroying or damaging property can vary significantly depending on the extent of the damage and the intent of the offender. Penalties may include fines, restitution for damages, community service, or imprisonment. In some jurisdictions, aggravated circumstances—such as damage to police property or critical infrastructure—can lead to increased penalties.
Defences
Common defences against a charge of destroying or damaging property may include:
Accidental Damage: If it can be shown that the damage was unintentional, this may absolve the accused of liability.
Consent: If the property owner gave permission for the actions that led to the damage, it may be possible to argue that no offence occurred.
Self-Defence: In certain situations, property may be damaged in the course of protecting oneself from harm, potentially providing a defence.
It is essential for individuals facing a charge of destroying or damaging property to seek legal advice. Various factors, including the jurisdiction and specifics of the case, will influence the applicable laws and possible outcomes. Legal representation can help navigate the complexities of the law and ensure a fair process.
Disclaimer:
This guide should not be relied on as a substitute for obtaining legal advice. It is intended to provide general information only and is not intended to be comprehensive. The contents do not constitute legal advice and must not be relied upon as such. You must seek specific legal advice tailored to your personal circumstances before taking any action based on this publication. Should you require tailored legal advice, please contact us.Book an appointment.
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