State Penalties Enforcement Amendment Bill 2017

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Criminal Lawyer, Sam Rigby explains the introduction of the State Penalties Enforcement Amendment Bill 2017 into the Queensland Parliament

The SPER registry oversees and manages debts, amounting to $1.17 billion. The management of such debts has been scrutinised over the past few years in dealing with the structure of debts, dealing with people who are suffering financial hardship or disadvantage and when an infringement should be referred to SPER.

Like many of our clients who appear before the court, their penalties are often referred to SPER. These fines can range in expense and if Sentenced more than once, the amount of debt can add up quickly. The bill introduces other non-monetary methods to pay these debts.

People who are eligible, falling into certain categories such as those who suffer domestic violence, homelessness, substance abuse or financial hardship have a variety of other options now. These options include and are not limited to unpaid community work, drugs and alcohol treatment and other forms of counselling.

The current system, for example, imposes fees for each debt referred to SPER and additional late fees making payment of their fine/s more difficult. The bill will introduce other systems which provide incentives for early payment, fees will now be applied to your SPER debt as a whole and it has included a better debt management process. The system, as it stands, is reliant on people having no more than two outstanding debts at a time. If you go beyond this, it becomes an uphill battle resulting in greater financial hardship. The bill introduces a system where SPER will review your debt as a whole rather than individually.

Day to day we are instructed by clients, who appear before the court in relation to driving offences, that they did not receive a letter from SPER informing of an outstanding account or issuing an infringement. People who rent or move residential addresses frequently face this problem more than most. The court abides by the ‘postal acceptance rule’ whereby if SPER have sent a letter to your most recent residential address it is accepted that the person has received the same. The new amendment provides for better ways to contact each individual. Now SPER correspondence can be sent to a residential address, postal boxes and email addresses. Not only will this allow infringements to be paid more efficiently it will also reduce disputes about whether or not the correspondence has been received. 

Although the bill introduces some more lenient features, as stated above, it has become more strict to those repeat offenders who do not pay the SPER debt. An example of added enforcement, vehicles can now be immobilised for a period of 14 days rather than the previous 5 days, garnishee orders can now be issued to those debtors who hold accounts with financial institutions, this includes the enhancement of current wage garnishee orders as well.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice, you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2016 ‘The Bill’

Sentencing LawOur criminal law clerk, Stefanie Schilkowski outlines the amendment to the Child Protection legislation.

CHILD PROTECTION – TOUGH, STREAMLINED AND HOLISTIC NEW LAWS?

Following the 2013 review by the Crime and Corruption Commission of the Child Protection (Offender Prohibition Order) Act 2008, the bill was introduced late 2016. In short, it means greater police powers (by amending the Police Powers and Responsibilities Act), extending protection to community members/children, an amalgamation of current laws and amendments to offender reporting.

Current Child Protection Reporting Regime

Queensland currently separates its offender reporting legislation into two distinct but linked Acts; The:

  1. Child Protection (Offender Reporting) Act 2004, placing reporting obligations on offenders, reporting personal details and whereabouts.
  2. Child Protection (Offender Prohibition Order) Act 2008, provides for the protection of the lives and sexual safety of children by regulating day to day conduct of relevant* sexual offenders through the issue of Offender Prohibition Orders (OPOs).

New Child Protection Bill

The new Bill amalgamates both laws and the Explanatory Notes state that the policies to be implemented by the Bill include:

  • OPO applications can now be heard concurrent with the associated criminal proceeding. The Court can now make any OPO with the consent of the offender but where the interests of justice are not satisfied the court will be required to conduct a hearing.
  • The court will have wider criteria to determine whether the relevant sexual offender is able to consent to the order, i.e. whether the offender has a cognitive disability, mental illness or an addiction, which impedes the person’s capacity to consent.
  • The maximum penalty has now increased to five years imprisonment or 300 Penalty Units for offences associated with reporting and compliance under the new bill.
  • Who is considered a reportable offender? There are occasions where a person escapes this classification simply because of the manner in which an indictment is presented to the court or because the person pleads to a lesser offence. To this, the Palaszczuk government says no more. Anyone who intends, attempts or commits sexual or particular other serious offences against a child will be liable to an offender reporting order where the court is satisfied that the facts and circumstances of the indicted offence contain elements of a reportable offence.
  • The bill also strengthens the obligations placed on reportable offenders in relation to travel, contact with children and reporting information. In this regard, reportable offenders will be required to report any contact with children who reside outside of Queensland where that contact is beyond the incidental contact of daily life. This includes online contact, telephone contact, written contact and physical contact. Reportable offenders will also be required to report the details of any children they travel with or intend or expect to have contact with the outside of Queensland. The time frames associated with reporting travel have been reduced from seven days to 48 hours, minimising the opportunity for reportable offenders to leave Queensland undetected for short periods of time. The bill will also require reportable offenders to report the cessation of any personal particulars which are required to be reported—for example, the sale of a car or a house. This will ensure that the information held on the National Child Offender System is accurate and relevant.
  • The bill tightens reporting requirements in relation to contact with children interstate. This is a response to the development of information technology and messaging software.
  • Reporting obligations can be suspended where an offender has a significant mental illness.
  • Greater Police Powers – which allow police to require access information (e.g. passwords) to electronic devices where there is a reasonable suspicion that the offender has committed an offence and to allow police to inspect those devices.
  • Other protective mechanisms include restricting the number of times police can inspect a device in the possession of a reportable offender who has been convicted of a prescribed internet offence to four times in each 12-month period. Any further inspections would require approval by a magistrate and must be based on increased risk. All inspections based on increased risk are required to be approved by a magistrate. Every inspection will be recorded in the enforcement acts register and a report detailing the number of inspections undertaken, the outcomes of those inspections and any action taken by police as a result of each inspection will need to be tabled in parliament each year.
  • An offender who fails to provide access information will commit an offence and will be liable to a penalty of up to 300 penalty units or five years imprisonment. While there is no provision for self-incrimination for failing to comply with a requirement to give access information, police must apply to a magistrate for a post approval order after a requirement has been made. A reportable offender will not commit an offence for failing to comply with a requirement for access information where a magistrate does not make a post approval order.
  • The bill also provides police with additional opportunities to take fingerprints and photographs.
  • Last but not least the new section 77B prohibits the cross-examination of child witnesses by unrepresented respondents.

This Bill relocates the provisions of the Child Protection (Offender Prohibition Order) Act 2008 into a newly created Part 3A of the Child Protection (Offender Reporting) Act 2004 to remove inconsistencies which have occurred as a consequence of separate regulatory regimes. The Child Protection (Offender Prohibition Order) Act 2008 will be repealed upon the commencement of the amalgamated legislation.

Explanatory notes

For a more extensive and detailed report on changes to the current laws please see the explanatory notes at Queensland Parliament website – Bill, Explanatory Note, Explanatory Speech

https://www.parliament.qld.gov.au/work-of-committees/committees/ETISBC/inquiries/current-inquiries/13-ChildProtection

*Relevant sexual offenders are reportable offenders, previous reportable offenders and offenders who would have been reportable offenders had their sentences not been completed prior to the introduction of the offender reporting legislation

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice, you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Recording Private Conversations – Is it lawful?

recording private conversationsThe Moreton Bay Council recently announced that they have rolled out 330 CCTV cameras that have the capacity to record private conversations.

In 2013 the then Queensland Transport Minister sought to introduce audio recording in taxi cabs. This raises the question, “Is it ok to record other peoples conversations?”

Invasion of Privacy Act

Section 43 of the Invasion of Privacy Act provides a maximum penalty of two years imprisonment where the person uses a listening device to overhear, record, monitor or listen to a private conversation.  The legislation clearly intends that private conversations will be kept private.  There are a number of exceptions such as the unintentional hearing of a private conversation by means of a telephone.

Importantly, where the person using the listening device is a party to the private conversation the conduct can be lawful.  In some situations parties have been known to record the conversation without advising the other party.

In relation to the Council there can be no dispute that they are not a party to the conversation. Accordingly many are suggesting that the conduct is unlawful.

Communicating private conversations

The Council has suggested that they will provide the audio to the police in relevant situations.  This is again covered by the Invasion of Privacy Act.  Section 44 provides a maximum of two years imprisonment where a person communicates a private conversation…  The phone conversation would also likely be inadmissible pursuant to section 46 of the Act.

Reasonable expectation

The turning point for the council may be the issue of whether there is a reasonable expectation that the words are overheard or recorded.  The act provides the following definition of ‘private conversation’.

Any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so.

If there were clear signs indicating that conversations were being recorded, monitored or listened to, the Council may need to establish that there was no reasonable expectation of privacy.

There are difference rules for organisations and individuals.  We have all had the telemarketers run through their consent spiel.  There are also different rules throughout Australia.  While two people on a telephone in Qld might be acceptable, if one of the parties is interstate the rules can differ.  If you are considering recording a conversation, it would be prudent to seek advice.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Freedom of Information Laws to be reviewed

Community Review of Freedom of Information Law

The Queensland Government is seeking input from the community on a review of the Queensland’s Right to Information Act 2009 and Information Privacy Act 2009.

History of Freedom of Information Laws

Criminal lawFollowing the Fitzgeral Inquiry (1987 – 1989), the Electoral and Administrative Review Commission recommended that Freedom of Information laws be introduced in Queensland. The Freedom of Information Act 1992 was the governments response.  It permitted access to information upon application.

In June 2008 the Solomon Report was handed down.  It proposed a difference approach, in that government bodies ought publish information unless there was a good reason not to. The response was the Right to Information Act 2009 and Information Privacy Act 2009.

Both of these Acts are an important part of Queensland’s legal framework.  They balance the need for access to government information and the rights of individuals to have information remain confidential.

Public Submissions

The Attorney-General (Qld) now seeks submissions from the public.  Any comments or submissions are to be provided by Friday 3 February 2017.

Click on the link below to access the discussion paper:

The State of Queensland (Department of Justice and Attorney-General), 2016 Consultation on the Review of the Right to Information Act 2009 and Information Privacy Act 2009.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Reforms to Youth Justice Laws Brings Qld in Line With UN Convention

Youth Justice Reforms

Teenager under arrestQueensland’s 17 year old offenders are the only youths in the Country being sentenced outside the youth justice system.

By treating 17 year olds as adults in the criminal justice system, Queensland has been inconsistent not only with the rest of the country, but also in breach the United Nations Convention on the Rights of the Child.

Under proposed youth justice reforms, 17 year olds are to be considered children.  It is anticipated that all children under the age of 18 year will proceed through the Youth Justice System.  The proposed reforms are hoped to reduce the rate of recidivism by diverting the youths from the Adult system and providing assistance.

Benefits

It is well recognised amongst stakeholders that the youth justice system provides:

  1. Greater capacity for offenders to be diverted away from the Court system;
  2. Access to age appropriate education, training and programs;
  3. Age appropriate support and supervision in custody;
  4. Reduced access to the influence of adult offenders; and
  5. The benefit of sentencing principles with prioritise support and rehabilitation in the community.

Children who do not have their basic health and welfare needs being met are at a greater risk of re-offending.  Youth require greater levels of education, training and engagement in employment if they are to avoid the statistics of returning to custody. The youth justice system is better suited to meeting these needs.

Amendment to Youth Justice Act

On 15 September 2016, the Attorney General, Ms D’Ath introduced the Youth Justice and Other Legislation (inclusion of 17 year old Persons) Amendment Bill 2016.  The purpose of the Bill is to recognise that 17 year olds are youths and not adults.  Importantly 17 year olds are to be included in the upper age of a ‘child’ for the purposes of the Youth Justice Act.  The definition of a ‘child’ will now include a person under the age of 18 years.

Commencement

The Bill will commence by proclamation 12 months after passage.  The delay is to account for the need to ensure that necessary planning is undertaken to facilitate a safe and proper transition.

Application

It is envisaged that there will be broadly three categories of youth that the amendment will apply to:

  1. 17 year old charged after proclamation;
  2. 17 year olds subject to current proceedings; and
  3. 17 year olds currently serving a custodial sentence.

17 year olds yet to be charged

This group will be treated as a child for the purpose of the Act.  The traditional application of part 6, division 11 of the Act will continue to govern the principles where a juvenile offender turns 18 prior to the commencement of proceedings.

17 year olds subject to current proceedings

The Bill proposes that the Court will have a discretion as to how to deal with those who are turning 18 close the finalisation of their sentence. The new subsection 390(3) will provide a broad power for a court to make an order or give a direction of ensure that any unanticipated scenarios can be dealt with appropriately.

17 year olds service a sentence

The Bill does not interfere with Sentence Orders made prior to commencement.  It will however, provide for the administration of those orders as 17 year olds in the Youth Justice System rather than the adult system.

If a 17 year old was sentenced to an adult probation order, that order would continue. The supervision of the Order would however be administered as though it were a Youth Justice Probation Order.

Similarly, a 17 year old, sentenced to imprisonment would serve that term of imprisonment in a youth detention centre.  The detention would be subject to the relevant provisions of the Youth Justice Act.  The youth would be released on a Supervised Release Order in place of Parole and/or would transition to an adult corrective services facility on reaching a certain age.

Further Reading

Click here to read more about the Inclusion of 17- year-old Persons Amendment Bill 2016

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Domestic & Family Violence Protection Bill 2016

DV LAW SET TO BE STRENGTHENED AND PENALTIES INCREASED.

Domestic Violence Law

Domestic Violence LawOn 16 August 2016, the Minister for Child Safety and Minister for the Protection of Domestic and Family Violence introduced the Domestic and Family Violence and other Legislation Amendment Bill.  When introducing the new Domestic Violence Law the minister noted that during 2016, there had been 9 coronial investigations into the deaths that had occurred in domestic or family relationships in Queensland.

It was said that the purpose of the amendment was to:

  1. Better protect and support victims of Domestic and Family Violence;
  2. Hold perpetrators of Domestic and Family Violence accountable; and
  3. Provide police and the Courts with improved tools to save lives and protect victims.

National Scheme

The Bill enables Queensland to participate in the National Domestic Violence Order Scheme. This scheme has been agreed to by COAG.  One of the Key findings from the Coronial Inquest into Luke Batty’s death was the failure by counsellors, police, courts, medical practitioners and others to share information.  This Bill seeks to enable the sharing of information between key Government and non-government entities.

Currently the Act provides that DVO made anywhere in Australia or New Zealand are recognised and enforceable in Queensland. Such recognition is provided that the Aggrieved manually registers their order with a Magistrate Court in Queensland. This requirement will be done away with.  The proposal is that all jurisdictions will:

  1. Enjoy automatic recognition of interstate orders;
  2. Treat the contravention of and interstate DVO as if it were a Queensland DVO;
  3. Recognise and interstate disqualification such as cancellation of a weapons licence;
  4. Allow for the exchange of information.

Section 169J of the new domestic violence law will override the existing principles and rights under the Criminal Law (Rehabilitation of Offenders) Act 1986. It shall enable information to be shared, notwithstanding the conviction having been spent.

Grounds for Protection Orders

Domestic Violence is defined in Section 8 of the Domestic and Family Violence Protection Act. It includes the phrase ‘has committed domestic violence‘.  It is believed that this has created a misapprehension that an act of physical violence must occur before a protection order can be obtained.  The new domestic violence law clarifies that a Court may issue a DV order on the basis that the victim has been threatened or has a fear that the Respondent will commit an act of domestic violence.

Police Protection Notices

The 2012 amendments to the Act introduced Police Protection Notices.  Currently the legislation permits only the alleged victim of Domestic and Family violence to be protected. The Bill expands police powers to include the victim’s children, relatives and other associated people on the Notice.

The new domestic violence law widens the operation of the notice. It expands the conditions which may be included.  Presently, police may only include two (2) conditions. They may do so only if, they are at the same location as the Respondent. The current domestic violence law permits conditions:

  1. that the Respondent not commit acts of Domestic Violence; and
  2. a 24 hour cool down condition.

Police will be able to include extra conditions.  Included is the power to:

  1. remove alleged offenders from the family home until a Court Hearing.
  2. prohibit the respondent from having contact with the victim;
  3. prohibit the respondent from having contact with their children.

Police Protection Orders are enforceable in the same way as Domestic Violence Orders.  Respondents will commit an offence if they breach a condition that the Police Officer has told them about.  The breach will occur, even if they have not been served with a copy of the Order.

The maximum penalty for breaching a Police Protection Order or Release Condition is to be increased to three years imprisonment or 120 penalty units.

Duration of Court Protection Orders.

Currently, under section 97 of the Domestic and Family Violence Protection Act, Protection Orders are made for a period of two years. The Bill expands the operational period by setting an expectation that orders will be for a minimum of five  years from the date the PO is made. A Court may only make a PO for a period of less than five (5) years if it is satisfied that there are reasons for doing so.

If the Court does not specify a time frame the PO is held to be in operation for a period of five (5) years from the date the PO is made.

Courts will continue to have to consider what conditions are necessary and desirable to protect the Applicant.

The new domestic violence law will make Queensland objectively the toughest, compared to other jurisdictions, which have the following periods:

  • South Australia – Indefinite Order or until discharged, must wait twelve (12) months before application;
  • New Zealand – Indefinite Order or until discharged;
  • ACT – Two (2) years unless exceptional circumstances require longer period;
  • NSW – Court to determine, or one (1) year if no determination;
  • Western Australia – Court to determine or two (2) years if no determination;
  • Victoria – Court to determine, nil default period;
  • Tasmania – Court to determine, nil default period;
  • Northern Territory – Court to determine, nil default period.

Compliance with ‘Voluntary’ Intervention Order.

The proposed domestic violence law clarifies the weight that a Court is to attribute to an Offenders participating in a voluntary intervention order.  Presently, Courts are required to take into account such participation in deciding whether to make an Order and its duration.  Under the amendment the Court will still be entitled to take into account a Respondents compliance with an Intervention program, but the Court must not refuse to make an Order, or vary an Order merely because the Respondent has complied.

Conversely the Court is required to specifically take into account a Respondents failure or non-compliance while on the Intervention program.

The Bill will remove the word ‘voluntary’ from the definition. This will reflect that Intervention Orders are not voluntary and carry the weight of a Court Order.

Further Information

To read the new Bill click on the attached link Domestic Violence Law 2016 or to discuss how these changes may apply to your situation, contact our lawyers experienced in domestic violence cases today.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Overview of Serious and Organised Crime Bill 2016

VLAD LawsOn 13 September 2016, the Attorney General, Ms D’Ath presented the Serious and Organised Crime Bill to the Queensland Parliament.  The Bill is set to amend and/or replace the 2013 raft of legislation commonly known as VLAD.  The legislation is said to be based on the recommendations of the three (3) reviews commissioned by the Government into organised crime:

  1. The Queensland Organised Crime Commission or Inquiry 2015; Inquiry ReportReport
  2. The Taskforce on Organised Crime Legislation; Taskforce Report
  3. The Statutory Review of the Criminal Organisation Act 2009. Statutory Review

The Government is at pains to highlight that the Serious and Organised Crime Bill is not aimed solely at so called outlaw motorcycle gangs, but all serious criminal activity and organised crime.  In particular the new legislation is said to include all forms of organised crime including child exploitation, drug trafficking and financial crimes.

Organised Crime Bill Key Elements

The key elements of the new Bill are:

  1. A new consorting offence;
  2. Public safety protection orders consisting of Public Safety Orders, Restricted Premises Orders and Fortification Removal Orders;
  3. Banning of “colours” to all public places;
  4. New Offences and Increased penalties for child exploitation material offences, sophisticated financial crimes and drug trafficking;
  5. New powers for police to investigate child exploitation and financial crimes.
  6. Reduce the mandatory imprisonment period.
  7. Delete the circumstance of aggravation of being an office bearer

Consorting Offence

  • The new consorting offence is to be substantially based on the New South Wales Legislation.
  • It is the be an offence under the Queensland Criminal Code.
  • It will be an offence for a person to consort with two convicted offenders on two or more occasions.
  • A convicted offender must be a person convicted of an offence that is punishable by at least a maximum penalty of five years imprisonment or another prescribed offence associated with organised crime.
  • A person can not be convicted of the new consorting offence, before they have received an official written warning from a police officer.
  • The offence does not apply to a person under the age of 18 years.
  • There is a defence to the charge that allows for participation in Civic Life.

Public Safety Protection Orders

The scheme contains three (3) new orders:

  1. restricted premises order;
  2. public safety order; and
  3. fortification removal order.

It will be an indictable offence under the Queensland Criminal Code.

1. Restricted Premises Order

  • The order will enable a premises to be declared by the Magistrates Court to be restricted if a police officer has a reasonable suspicion that certain unlawful or disorderly conduct is occurring there.
  • The declaration will enable police to enter and search the premises without warrant at any time.
  • The declaration will enable the police to seize property including furniture, entertainment systems, pool tables, stripper poles and the like.
  • The Commissioner of Police may forfeit any property that is lawfully seized to the State.
  • The OMCG clubhouses that were closed under the 2013 VLAD laws will be automatically declared to be restricted premises that are unable to reopen.

2. Public Safety Order

  • The Order will enable a commissioned police officer or the Magistrates Court to order that a person, or group of persons is prohibited from entering or attending an event or place if their presence is a serious risk to public safety.
  • Police are able to make an Order for seven (7) days
  • Magistrates are able to make an Order for more than seven (7) days.

3. Fortification Removal Order

  • The Order enables the Police to apply to the Magistrates Court to seek an order directing the removal or modification of fortifications that are excessive for the lawful use of a property.
  • If the Order is not complied with, police can enter the property and use any force or equipment necessary to remove or modify the fortifications.
  • Police are able to issue stop and desist notices if they observe excessive fortifications being built on a property.
  • Police have 14 days from the issuing of the cease and desist notice to make an application to the court for a fortification removal order.

Wearing or Carrying Prohibited Items

  • The new Prohibited Items Offence is to be inserted into the Summary Offences Act.
  • The offence criminalises the wearing or carrying of prohibited items in a way that they can be seen in any public place.
  • The definition makes it clear that a public place includes in or on a vehicle in a public place.
  • The offence effectively extends the prohibition on wearing these items that already exists in relation to licence venues.

Criminal Organisation Definitions

  • The new legislation carries a uniform definition of Criminal Organisation and Participant in all legislation.
  • Participant is set to be defined as an individual who is actively involved in a criminal organisation or who identify and promote themselves as being involved in a criminal organisation.

Organised Crime Sentences

  • Those convicted of the circumstance of aggravation will continue to face mandatory sentences that can only be mitigated reduced upon co-operation with the authorities.
  • The fixed mandatory component of the sentence is limited to seven (7) years imprisonment or the equivalent of the maximum penalty for the offencem whichever is lesser.
  • No harsher treatment for Office Bearers
  • The mandatory component is to be wholly served in a correctional facility without any eligibility for parole.
  • Jailed bikies treated the same as everyone els.

Control Order

  • Upon conviction the Court will also be required to make an Organised Crime Control Order.
  • The Organised Crime Control Order will be a mandatory consequence of conviction of the new serious organised crime circumstance of aggravation.
  • The orders will be limited to two (2) years in duration.
  • Conditions will include limiting the person from:
    • attending certain places;
    • place restrictions on their use of electronic devices
    • restrict where they may work
    • restrict who they may have contact with.
  • The Organised Crime Control Order will be a discretionary in three (3) circumstances:
    1. When sentencing a person for an indictable offence, if the court is satisfied on the balance of probabilities that the offender was a participant in a criminal organisation at the time.
    2. When sentencing a person for the consorting offence the court may make a limited control order which can only include place restrictions and conditions that prohibit who the person may have contact with.
    3. When sentencing a person for a contravention of a control order the court may extend the length or conditions of the existing control order.

Transitional Provisions.

  • The Bill provides for transitional arrangements for any individuals that have pleaded guilty and who have been sentenced under the old VLAD Act.

Amendment to Drugs Misuse Act

  • The maximum penalty of 25 years is to apply to all drugs, regardless of whether the drug is heroin, steroids or cannabis.
  • The current mandatory minimum 80 per cent non parole period, which applies to trafficking, will be removed and the offence will be restored to the Serious Violent Offence regime under the Penalties and Sentences Act.

Boiler Room Fraud

  • Increase the maximum penalties for existing aggravated offences of fraud from 12 to 14 years imprisonment
  • New circumstance of aggravation for the offence of fraud carrying a maximum penalty of 20 years imprisonment, where the property or yield to the offender of the fraud is $100,000.00 or more.
  • New circumstance of aggravation for the offence of fraud carrying a maximum penalty of 20 years imprisonment, where the offender participates in carrying on the business of committing fraud.
  • Increase in the maximum penalties for the offence of obtaining or dealing with identification information from three (3)  to five (5) years.

Child Exploitation Material

  • Creates three (3) new offences in the Criminal Code that target administrators of websites connected with child exploitation material.
  1. knowingly administer websites used to distribute child exploitation material.
  2. knowingly encourage the use of, promote or advertise websites used to distribute child exploitation material material
  3. distribute information about how to avoid detection of, or prosecution for, an offence involving child exploitation material.
  • Each new offence will carry a maximum penalty of 14 years imprisonment.
  • increase the maximum penalties for the offence of involving a child in making child exploitation material from 14 to 20 years imprisonment.
  • increase the maximum penalties for the offence of making child exploitation material from 14 to 20 years imprisonment.

Serious and Organised Crime Legislation Amendment Bill

For more detail the Serious and Organised Crime Legislation Amendment Bill can be viewed here: Draft Legislation

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Qld set to overturn Barbaro & Zirilli v The Queen [2014]

Statue of justiceBarbaro & Zirilli is a 2014 High Court Decision which effectively brought to an end the practice of Prosecutors providing the Court with an appropriate sentencing range.  Until 2014 it was usual for the prosecution to provide the Court with assistance not only as to the facts of a sentence but also with a range that the Crown considered appropriate for the offending.

The case itself involved conspiring to traffic a commercial quantity of MDMA, trafficking a commercial quantity of MDMA and attempting to possess a commercial quantity of cocaine.

The accused men, Mr Barbaro and Mr Zirilli agreed to enter pleas of guilty following discussions between their lawyers and the prosecution.  During those discussions, the prosecution expressed its view as to the range of sentences that might be imposed on each applicant. The prosecution told the applicants’ lawyers that the “sentencing range”, in Mr Barbaro’s case, was a head sentence of 32 to 37 years with a non-parole period of 24 to 28 years and, in Mr Zirilli’s case, a head sentence of 21 to 25 years with a non-parole period of 16 to 19 years.

At the sentencing hearing, Justice King, advised that she would not receive from either party submissions about sentencing range.  The prosecution, in those circumstances did not make any submission about what range of sentences could be imposed.  Mr Barbaro was sentenced to life imprisonment with a non‑parole period of 30 years.  Mr Zirilli was sentenced to 26 years’ imprisonment with a non‑parole period of 18 years.

The High Court dismissed both appeals.  The Court held, by majority, that it is neither the role nor the duty of the prosecution to proffer some statement of the bounds within which a sentence may be imposed.  It is for the sentencing judge alone to decide what sentence will be imposed. As a consequence the practice of providing the Sentencing Court with assistance as to the sentencing range came to an end.

The Queensland Government has indicated that it will introduce legislation into Parliament that will reinstate the ability of a court to receive submissions from both the prosecutor and defence on what they considered was the appropriate sentence or range of sentence that should be imposed.

The proposed legislation will return proceedings to the situation that existed prior to the High Court decision in Barbaro & Zirilli v Queen [2014] and will improve consistency in sentencing, as well as assist in the efficient running of courtrooms.

New DPP announced for Queensland

wig 1Congratulations to Michael Roderick Byrne QC who was this month appointed as Queensland’s new Director of Public Prosecutions.

Mr Byrne QC has enjoyed a long and distinguished career as a prosecutor, commencing his legal career with the Office of the Director of Public Prosecutions in 1988.

He was appointed Deputy Director in 2010 and has been acting Director since June this year.

VLAD head announced in Bikie Law Review

Harley DavidsonFormer Supreme Court Judge, Alan Wilson will head the review of VLAD laws as part an extensive review of organised crime, Attorney-General Yvette D’Ath announced today.  The Qld bikie laws were rushed into parliament following the infamous “Broadbeach Brawl”.  At the time there was considerable criticism that the laws were over-reaching and had not been subject to the usual scrutiny.  This review is expected to recommend changes to a number of key elements of the legislation.

Justice Wilson, who retired in March 2015, has enjoyed a distinguished career over more than three decades, Justice Wilson was admitted as a barrister in 1982 and was appointed to the District Court bench in 1998, before rising to the Supreme Court in 2009. He also became the inaugural head of the Queensland Civil and Administrative Tribunal at that time.

 The taskforce looking into the VLAD laws will include high-ranking representatives from the Queensland Law Society, the Bar Association of Queensland, the Public Interest Monitor, the Queensland Police Service, the Queensland Police Union, the Queensland Police Commissioned Officers’ Union of Employees, and senior public servants.

 The VLAD enquiry  will work in tandem with the Government’s Commission of Inquiry, headed by respected criminal barrister Michael Byrne QC, as part of a multi-faceted assault on organised crime.

 The VLAD taskforce will report back to the government by the end this year, incorporating the findings of the commission of inquiry.