Criminal Law FAQ
Two types of apprehended violence orders (AVO) exist; those made privately by an individual or those by police on behalf of someone else.
Private AVO’s are those applied for by a victim of an offence themselves (also known as the applicant). This type of AVO can be dropped if and when the applicant decides to withdraw it. The applicant can do this by writing to the court or by asking the court in person for leave to withdraw the application.
Police AVO’s are those applied for by police on behalf of a victim. When police attend a domestic incident and they form the view that one of the persons is the perpetrator of a domestic violence offence over someone else, they can apply for a provisional AVO to protect the alleged victim.
The provisional AVO will be in place until the court determines the matter.
As the police apply for the AVO in this situation, they are considered the applicant not the person the AVO is in place to protect. Therefore it is at the police’s discretion as to whether the AVO remains in place until the matter goes to court, or whether it is dropped.
Police cannot force you to attend the police station unless they have arrested you. If they simply ask you to accompany them for questioning, you are not obliged to go with them.
If the police arrest you, they must first announce that you are under arrest and the reason for doing so. It is best not to argue or resist at this point, as hindering police is an offence.
Police can lawfully arrest you for a number of reasons, some of which include:
- they suspect (on reasonable grounds) that you have committed an offence
- you have breached the conditions of your AVO or bail conditions
- a warrant is issued for your arrest, or
- you are breaching the peace.
You have the right to contact a lawyer once you arrive at the police station.
Police cannot detain you for any longer than six hours for questioning, unless you’re held on suspicion of terrorism or police have obtained a detention warrant, which grants them an additional six hours. During this time, you are allowed special ‘time outs’, which are not included in the six-hour period, to use the toilet, speak with a lawyer or support person or receive medical attention.
You should not enter a plea at Court before seeking legal advice first. Before deciding, you should know that pleading not guilty means the following:
- You did not commit the crime, and/or
- You did commit the crime but you have a defence, and/or
- You don’t want to admit whether you did or did not commit the crime but you want to make the prosecution prove their case (if they cannot, you will not be found guilty).
Professional legal advice on your matter is crucial prior to you attending court.
An agent solicitor is a lawyer who is instructed by us to appear in court on your (and our) behalf, either when we are not able to or simply because it is more time/cost effective. It would be appropriate to use an agent solicitor if your matter was listed for a simple mention or reply date, which is administrative in nature.
In criminal matters in particular, this is a common practice, as it can save on unnecessary travel time and costs. When we engage an agent, we instruct them on your matter and they then appear before the court and report to us on the outcome. They charge a small fee for their service.
A CAN stands for Court Attendance Notice, and it tells you where and when to be at Court and what you’ve been charged with. Police prepare this document and should give it to you at the police station.
A facts sheet is often attached to the CAN and as the name suggests outlines the ‘facts’ of your offence. This account is written from the perspective of police and any witnesses. The facts sheet is subject to change if you do not agree with the details it contains.
A brief of evidence is a series of documents that police have compiled to form their case against you. It consists of the abovementioned CAN and facts sheet, as well as transcripts of any interviews held between you and police and statements from other assisting police officers and witnesses. A brief of evidence is essential for you to have before you go to a final hearing, so that you are presented with all the facts of the case.
Yes, this is common. While the court may give specific directions for police to prepare the brief of evidence for a certain date, it is not uncommon for them to provide documentation that is incomplete by the deadline. In those circumstances, the court can give further directions for police to provide the balance of the brief of evidence and adjourn the proceedings to a later date.
Regardless of how long the police take to serve the brief, any outstanding items must be served to you no later than 14 days before your hearing. If they are not served to you by then, the police and/or prosecution may not be able to rely on that material at the hearing.
A section 10 of the Crimes (Sentencing Procedure) Act 1999 enables a court, upon a plea or finding of guilty, to order the dismissal of charges without recording a conviction. It is one of the best outcomes you could hope for and, if granted it would mean there is no criminal conviction or fine and, in driving matters no license suspension. Furthermore, in infringement driving matters, no demerit points apply.
A section 10 gives the Court the power to do one of the following (after an admission or finding of guilt to the offence):
- Dismiss the charge(s) completely – known as a section 10(1)(a)
- Discharge the person into a good behaviour bond for up to two years - section 10(1)(b)
- Discharge the person into a program such as the traffic offender’s intervention program, or a drug and alcohol program for treatment – known as a section 10(1)(c).
There are a few ways in which a person can improve his or her chances of being granted a section 10; contact us about this to find out more.
With the exception of those facing committal proceedings, a section 32 of the Mental Health (Forensic Procedure) Act is an application that can be made to have a criminal charge against you dismissed, without recording a conviction, on the grounds that you suffer from a mental illness condition or intellectual disability.
If the Court approves your application, you will be diverted from being dealt with by the criminal justice system to abide by a treatment plan set out by a health care professional.
A section 32 differs from a section 10 in that there would not be a finding of guilty recorded to the offence.
Where a person is sentenced to imprisonment of up to two years, the court may make an order directing that their sentence be served as an Intensive Correction Order (ICO). This type of sentence involves performing community service for a certain number of hours under the supervision of Corrective Services NSW. There is no parole set for an ICO, which means that offenders must serve the whole term of the sentence handed down.
A person must be deemed ‘suitable’ to be granted an ICO and they must adhere to strict conditions, such as:
- Be of good behaviour and not commit offences
- Reside only at premises approved by a supervisor
- Undertake alcohol and drug testing
- Undertake a minimum of 32 hours of community service work per month
- Comply with a curfew, and
- Be subjected to unannounced home visits.
If you would like to know more about ICOs, contact us today.
Home detention is another alternative to full-time imprisonment for people who have been found guilty of an offence and sentenced to up to 18 months imprisonment. The person is electronically monitored and is also supervised closely by community corrections personnel. As the name suggests, a person granted home detention is confined to an approved place of residence for the entire duration of their imprisonment, unless they are given specific permission to leave for work, doctor’s visits, etc.
For a home detention order to be granted, the court must find that no penalty other than imprisonment is an appropriate penalty for the offence in question. It is not available for certain criminal convictions or people with particular criminal histories.
Furthermore, there are strict conditions a person granted a home detention order must adhere to, such as:
- Residing at a certain specified address for the duration of the sentence
- Wearing an electronic monitoring device and not tampering with it in any way
- Abstaining from prohibited drugs or alcohol for the term of the order, and undergoing drug and alcohol testing
- Refraining from committing an offence
- Reporting regularly to a nominated supervisor
- Agreeing to searches of property and possessions
- Not associating with certain people as specified by the order, and
- Agreeing to undertake any rehabilitation or counselling programs as directed by a supervisor.
If you would like more information on home detention orders, please contact us.
A good behaviour bond is an undertaking or promise by you, to the Court that you will have ‘good behaviour’ for a defined period of time in lieu of a harsher penalty, such as a fine or gaol. Good behaviour bonds relate to criminal or traffic matters and carry strict conditions you must adhere to to avoid breaching your bond and potentially receiving a harsher penalty.
There are three types of good behaviour bonds; these are a section 10 bond, a section 9 bond or a section 12 bond.
With a section 10 bond, you have escaped a criminal conviction being recorded against your name and your good behaviour ‘bond’ period can last up to two years.
(Please see FAQ "I was granted a section 10, what does that mean for me?" for more detail).
With a section 9 bond, you have been convicted or found guilty of the offence, and your good behaviour ‘bond’ period is determined by the court. Furthermore, if you commit an offence during the bond period of a section 9, you can be called back to court and re-sentenced for your original offence.
The court can also impose other conditions with section 9 bonds, such as supervision by the probation and parole service or various other intervention programs.
With a section 12 bond, or suspended sentence, you have been convicted or found guilty of an offence and given a gaol sentence of up to two years, however the court has ‘suspended’ your gaol term. Provided you obey the conditions of this type of good behaviour bond, the gaol sentence will not be imposed.
- For good behaviour bonds in New South Wales, if the bond is a section 12 bond and it is breached, the court must revoke (cancel) it unless it is satisfied that any failure to comply with the conditions of the bond was minor or that there are good reasons to excuse that failure.
- Once a bond is revoked the original sentence of imprisonment starts immediately. The court can order that the sentence is served by way of full time jail or that is served by way of an intensive correction order or by home detention (if you are assessed as being suitable for one of those options).
- If the bond is breached because you have committed a fresh offence, when you are sentenced for that offence you are likely to receive a more severe penalty because it was committed even though you previously undertook to abide by the conditions of the bond instead of being sent to jail.
For more information, contact us.
For those subject to good behaviour bonds in New South Wales, there are a number of penalties that could be imposed if the terms of the bond are breached.
In most instances, you will be summonsed to return to court, but in some instances the Court will issue a warrant for your arrest.
At court, you might receive a warning and have no further action taken. The court also has the power to change the conditions in the bond, or to revoke (cancel) the bond, and after revoking it, if they choose, to impose a different penalty for the offence. This will often mean that you receive a more severe penalty.
If the bond was a section 10 bond, the court may also enter a conviction for the offence.
If the bond is breached because you have committed a fresh offence, when you are sentenced for that offence you are likely to receive a more severe penalty because it was committed while you were on conditional release.
For more information, contact us.
For most convictions, a charge becomes spent after a ten year crime fine period for adults and after three years for children. A spent conviction means any charges are disregarded and you are no longer obliged to disclose the details of the charges to others. In the case of a Section 10(1)(a) good behaviour bond, your conviction is spent immediately and in the case of a section 10(1)(b), your conviction is spent at the end of the good behaviour bond (up to two years).
For more information, contact us.
Whether a criminal conviction will stop you from travelling overseas depends on the policies of the country you are trying to visit. Each country has different policies and they tend to change frequently.
If you have a criminal record, it is best to contact the embassy of your destination country before making travel arrangements.
For more information, you can also contact us.
The ‘home safe rule’ applies to drink driving matters and stipulates that police are not allowed to take a breath sample from you if you are within the confines of your property or home. If they do, this evidence may become inadmissible before a court and police would then need to prove that you were intoxicated without the aid of that evidence.
Defining ‘home’ is key to whether this defence can be used in your case. Past decisions don’t provide a concrete definition – judges tend to decide on a case-by-case basis, however they do provide some guide as to what is and is not considered a home for the purpose of this defence.
Based on past cases:
- you’re home at your ordinary residential property when you’re within the property boundary
- even if part of your property isn’t fenced off or enclosed, it may still be home if it’s clearly part of where you live and enjoy your property
- the entire grounds of a hospital or caravan park aren’t generally accepted as a home – the boundary of your residence within those grounds is your home
- there’s no difference between single or multi-occupancy properties
- a car park may be considered part of your home. You may be home if you park in your driveway or carport, or car space within the car park of the block of apartments where you live.
If your lawyer can prove to the court the breath test was conducted after you’d arrived home safe, there could be several outcomes:
- the court can throw out the evidence of the breath test, the arrest and further breath analysis based on the evidence being obtained illegally
- the evidence can be judged as invalid, and not able to be used in court
- you can challenge any charges of refusing to provide a breath test (if you refused at your home).
- There are a number of situations appealing against your licence suspension is possible, including
- You are a provisional or learner licence holder and Roads and Maritime Services (RMS) has suspended your licence because you accrued too many demerit points
- You have been issued an infringement and suspension notice for speeding more than 30 km/hr over the speed limit.
- You been issued an infringement and suspension notice for speeding more than 45 km/hr over the speed limit.
The Local Court does not have the power to hear license suspension appeals if you hold an unrestricted license and your license has been suspended due to demerit points, or if you breach a good behaviour bond license.
However, in the matters that can be heard by the local court magistrate, your appeal may either be dismissed or your suspension period could be overturned or reduced.
In New South Wales, there is no such thing as a ‘work licence’. However, if you’re a taxi, bus, or truck driver, you can be recognised as a professional driver by applying to the RMS. This will allow you to apply for additional points.
Furthermore, you can also apply for a good behaviour licence. This is applicable to drivers who have accumulated too many demerit points for minor traffic offences and face losing their licence for a period of time. Rather than accept the suspension period, they can may choose to apply for a good behaviour licence, which allows them to continue to drive, without suspension, but on restricted points.
A good behaviour licence is available only to unrestricted licence holders who accumulate 13 or more points in a three-year period. This type of licence runs for a twelve-month period during which the holder must not accumulate more than two demerit points. If they accumulate more than two demerit points, they will lose their licence for double the initial suspension period. The initial suspension period will depend on the number of points they originally accumulated:
13 – 15
16 – 19
P-Plates and L-Plates
You do not have to go anywhere with the police unless they have told you that you are under arrest. If you are under arrest, you should ask the police "what for?", and they are required to tell you. You should then ask to speak with your Solicitor to get advice and hopefully, for him or her to accompany you to the Police Station. At the Police Station, you must be given the opportunity to speak with a Solicitor and a friend or relative.
Without your consent, the police can only search your house if they have a search warrant or if the site is declared a crime scene. The police may search your car if they have a reasonable suspicion of some illegal act. As a general rule, you should refuse the Police permission to search your car or house but do not physically resist them.
The Police may detain you for a reasonable time which is now regarded to be about six hours, although, the Police can apply to have the period of detention extended.
The Sergeant in charge of the Police Station is responsible for making the decision about your bail but realistically, he or she will be influenced by the Police officer charging you.
Unless you have already done so speak with your Solicitor immediately. You must be brought before the court at the first reasonable opportunity, either the same day or first thing the next morning. At court your Solicitor should make a detailed application for bail, the conditions of which may include, someone signing as an acceptable person for you and/or lodging some money with the court, you reporting to the Police Station on specific days of the week, or you being restricted from attending certain areas.
You shouldn't enter any plea regardless of whether or not you committed the offence alleged, without obtaining your Solicitor’s advice. If your Solicitor is not present at court and you have not obtained that advice, you should ask the court to adjourn (postpone) your matter to enable you to get that advice.
In the determination of sentence, there are a number of factors upon which a Judge or Magistrate will rely, including, the seriousness of the offence, an early plea of guilty, your criminal history (if any), any extenuating circumstances, and any other mitigating factors.
The rules in relation to children are similar to those for adults (see above), although there are some exceptions including that, if the child (under 18) is to be interviewed by the Police, the child must have with him or her a "support person", usually, but not necessarily, one or both parents or a Solicitor. There is also specific legislation and courts relating to children.
Our costs are dependant on a number of matters, including which Solicitor in our firm is to represent you, the type/seriousness of offence, and whether you are pleading guilty or not guilty, amongst other things. We will be able to provide you with a cost estimate when we know what will be involved in your matter.