Double demerit points to target texting drivers

PursuitMotorists repeatedly caught texting or using their mobile phone while driving will face stiffer penalties under changes announced today.

The penalties are among a range of recommendations arising from last month’s Safer Roads, Safer Queensland forum.

Drivers caught committing repeat mobile phone offences within a year can expect double demerits, similar to those imposed on repeat offenders who don’t wear a seatbelt or a motorcycle helmet, or who exceed the speed limit by more than 20 kilometres.

Safe Night Out Legislation Amendment Bill

The Safe Night Out Legislation Amendment Bill is part of a Queensland Government strategy aiming to restore responsible behaviour, stamp out alcohol and drug-related violence and ultimately ensure Queensland’s nightlife is safe for all. The Safe Night Out Legislation Amendment Bill is an Act that amends other legislation in order to achieve this objective. This legislation sees an increase in policing powers, and introduces new penalties and compulsory community service orders.

This reform aims to amend the Criminal Code by:

  • Creating a new offence of Unlawful striking causing death (section 302A). This section will be added directly after Murder (section 302) and will also carry a maximum penalty of life imprisonment. If a person is sentenced under this new section, the Court must make an order that the person must not be released from prison until they have served at least 80% of their sentence or 15 years.
  • Amending the definition of Manslaughter to include unlawful striking causing death.
  • Amending section 340, which deals with serious assaults, by increasing the maximum penalty for assaults on Public Officers. These are assaults which involve: spitting; biting; application of a bodily fluid or faeces; cause bodily harm; or where the offender is, or pretends to be, armed. The maximum penalty is 7 years imprisonment, unless the offender had, or pretended to have a weapon, in which case the maximum penalty is 14 years.
  • Inserting a new chapter, namely 35A, to provide for the circumstances where a person, charged with certain serious offences of violence committed in a public place and while adversely affected, is to be taken to be (in the case of alcohol) or presumed to be (in the case of drugs) adversely affected by an intoxicating substance at the time of the offending.

This reform aims to amend the Penalties and Sentences Act by:

  • Requiring a sentencing Court to impose a community service order, in addition to any other sentence, where an offender commits an offence of violence in a public place and is adversely affected by an intoxicating substance.
  • Ensuring that voluntary intoxication of an offender by alcohol or drugs is not a mitigating factor for a court to have regard to in sentencing the offender.
  • Allowing a court to ban an offender from in and around licensed premises for any period of time including a lifetime ban if the court deems it appropriate. With respect to banning orders, the court may impose any other conditions it considers necessary.

New South Wales also recently introduced new laws sanctioning tougher penalties regarding alcohol and drug fuelled violence. These new laws included a mandatory 8-year imprisonment sentence for anyone that fatally punches someone while under the influence of alcohol or drugs. Both Queensland and New South Wales Governments say the reforms are aimed at reducing alcohol and drug related violence and not to stop people from having fun.

IMPRISONMENT NOT A SENTENCE OF LAST RESORT

Sentencing

imprisonment no longer a sentence of last resort.

Sentencing procedure has been significantly amended with the introduction of the  Youth Justice and Other Legislation Amendment Bill 2014.  The act amends section 9 (Sentencing guidelines) by omitting and excluding the sentencing principle that prison is a sentence of last resort.  That is imprisonment is not a sentence of last resort, and is now a starting point in the sentencing process.

This means that in sentencing any offender for any offence punishable by imprisonment, the court must not have regard to any principle, whether under statute or at law, that a sentence of imprisonment should only be imposed as a last resort. Any other Act, law or principle is overridden by this provision.

This amendment impacts on the rights and liberties of individuals, as it represents a fundamental shift to the current purposes of sentencing in Queensland.

While the extent of the impact that this will have cannot be measured in advance, the removal of the sentencing principle will more than likely result in greater rates of actual imprisonment. This will become apparent, as the starting point of sentencing that allows the offender to stay in the community, is no longer preferable.

Furthermore, the omission of this principle applies in the sentencing of any person convicted after commencement, including where the offence was committed or the proceeding started before commencement.

The Youth Justices Act 1992 sees an amendment in the same respect. The Bill abolishes section 208 which required a court to be satisfied that no other sentence was appropriate in the circumstance before making a detention order for an offender under 17 years old. The Bill also inserts a provision overriding any contrary Act or law, which will prevent any conflicting principles.

In introducing the Bill to Parliament, the Attorney General said the amendments are: “critical to respond to the escalating seriousness and devastation currently being caused by young criminals.” These concerns are conflicting with reported evidence from the Queensland Law Society.

The justification for removing these sentencing principles is on the basis that they otherwise prevent the courts in making sentencing orders which appropriately reflect the severity of offending and fail to hold offenders properly accountable for their behavior. The new reform is aimed at reflecting the community’s view of serious offending. The removal is intended to empower courts to use sentencing more effectively for the purposes of punishing, denouncing and deterring offending, and protecting the community. It is intended to better promote the community’s safety and protection from criminal behavior.

In determining appropriate sentences, the courts will still be required to have regard to a range of prescribed mitigating and aggravating factors such as: the wellbeing and rehabilitation of the offender; the seriousness of their offending; the offender’s accountability for their actions; and the interests of victims. How these factors are balanced will continue to be a matter for the courts on a case-by-case basis.

These reforms however, have been labeled as “misguided” and “counter-productive”. Many fear that they are unlikely to have effect on the problems they are intended to resolve and that they are just a “trend to an ever-increasing level of mandatory consequence”.

Increased Penalty For Unlicensed Driving

Coa_QueenslandAmendments to the Transport Operations (Road Use Management) Act 1995 will increase the penalty for unlicensed driving where a person has never held a driver licence.

Current Law

Pursuant to section 78 of the Transport Operations (Road Use Management) Act 1995, A person must not drive a motor vehicle on a road unless the person holds a driver licence authorising the person to drive the vehicle on the road.

Maximum penalty—

  1. (a)  if the person committed the offence while the person was disqualified, by any court order, from holding or obtaining a driver licence—60 penalty units or 18 months imprisonment; or
  2. (b)  otherwise—40 penalty units or 1 year’s imprisonment.

Proposed Law

The Transport and Other Legislation Amendment Bill 2014 amends section 78 of the Transport Operations (Road Use Management) Act 1995 to impose a three (3) month disqualification.

Cumulative Disqualification.

Section 90C of the Transport Operations (Road Use Management) Act 1995 provides for driver licence disqualifications to apply cumulatively where a person is disqualified from driving as a result of both drink or drug driving and unlicensed driving.

The new licensing disqualification (where the person has never held a driver licence) is to be treated as a cumulative disqualification.

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.

When do I have to provide police with a traffic crash report?

traffic lawsCurrent Law.

The Driver of a motor vehicle is required to furnish a traffic crash report to police as soon as possible to the nearest police station.

Section 92 of the Transport Operations (Road Use Management) Act 1995 and section 287 of the Queensland Road Rules require drivers involved in crashes and other incidents that result in more than $2 500 damage to report those incidents to police.

Drivers must also report to police if a person is injured or killed in the crash or a motor vehicle involved in the crash needs to be towed from the scene.

Maximum penalty –

  1.  if death or injury is caused to any person – 20 penalty units or imprisonment for one year; or
  2. otherwise – 10 penalty units or six months imprisonment.

Rationale for Change.

The $2 500 threshold has been in place for many years without being increased and no longer reflects a requirement to only report more serious crashes to police. This amount does not reflect the fact that a majority of crashes now involve damage exceeding $2 500 because modern vehicles are designed to crumple to preserve passenger safety.

Proposed Law

The Transport and Other Legislation Amendment Bill 2014 amends section 92 of the Transport Operations (Road Use Management) Act 1995 to remove the requirement to report crashes to police where property damage exceeds an amount fixed by regulation (currently $2 500).

Subsequently, the same requirement will be removed from the Queensland Road Rules.

Proposed Reporting Requirements

There will be a requirement to report crashes to police where:

  1. a person is injured or killed; or
  2. if any vehicle needs to be towed from the scene.

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.

ANPR camera systems set to detect Unregistered Vehicles

ANPR4The Queensland Government is set to allow automatic number plate recognition camera systems or ANPR camera systems to detect unregistered drivers, through proposed amendments to the Transport Operations (Road Use Management) Act 1995.

Approximately 3% of Queensland’s 4.5 million vehicles could potentially be unregistered (up to 135 000 vehicles).  This looks set to increase when the Government scraps Registration Labels for light vehicles from October 1, 2014. 

Unregistered Vehicle

Generally, when a vehicle is unregistered, that also means it does not have CTP insurance (“uninsured vehicle”). However, CTP insurance continues for a grace period of 30 days after the expiry of a vehicle’s registration. It is possible for a vehicle to be unregistered, but retain CTP insurance during this time.

Enforcement Responsibility.

Police officers and transport inspectors employed by the Department of Transport and Main Roads have been intercepting vehicles and manually issuing infringement notices for unregistered and uninsured vehicle offences for many years. In more recent times, portable automatic number plate recognition camera systems have been used to detect these offences. Once an unregistered vehicle is detected, a police officer or transport inspector must still physically intercept the vehicle and manually issue an infringement notice.

It is proposed that both the Department of Transport and the Queensland Police Service (QPS) will utilise fixed and mobile ANPR Camera Systems to detect unregistered vehicles and automatically issue infringement notices by ordinary mail.

Evidentiary Certificate.

Section 120 of the Transport Operations (Road Use Management) Act 1995 will be amended to allow the chief executive to sign an evidentiary certificate for photographic detection devices operated by the Department of Transport and Main Roads, stating that an image was properly taken by the device and allowing the image to be used as evidence of an offence.

Who is responsible for the offence?

Under current arrangements it is the driver of the vehicles responsibility to confirm that the vehicle is registered and has compulsory third party insurance before it is used on the road.  Following the proposed amendments to the Transport Operations (Road Use Management) Act 1995 the most recent registered operator will be responsible for the offence.  Regardless of who is driving the vehicle, it is the registered operator’s responsibility to ensure that the vehicle is registered.

The registered operator will have a defence where they provide a statutory declaration stating that the vehicle was stolen, illegally taken or had already been sold or disposed of (see amendments to section 114);

How will the notice be served?

An infringement notice issued by an information technology system is taken to be an infringement notice served by an authorised person under the State Penalties Enforcement Act 1999, and in particular section 13(1) of that Act (see new section 113A(3)).

The effect of this amendment is that the notice will be sent, by post to, to the nominated address and will be deemed to have been served.  It will become imperative that all vehicles are promptly transferred with the Department of Transport following sale otherwise a former owner, not receiving the notice could find their licence cancelled.

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.

Criminal Law Amendment Bill 2014

Reforms included in the Criminal Law Amendment Bill 2014 

The Criminal Law Amendment Bill 2014 sees reform in a number of criminal law areas. The proposed amendments include harsher penalties for various offences and further mandatory sentencing provisions.

The proposals are generally in line with the “Tough-on-Crime” mandate set by the Attorney General and Minister for Justice, Mr Jarrod Bleijie.

The creation of further offences, such as the match-fixing provisions, is in line with provisions currently operating in other State jurisdictions.

It is difficult to extrapolate what impact, if any, these provisions will have on offending as harsher penalties and/or mandatory sentencing provisions have proven to be ineffective historically in many other jurisdictions.

We see serious evidentiary difficulties arising with respect to the new Serious Animal Cruelty provisions and fail to grasp how a Prosecuting authority will satisfy the Court’s that an animal suffered “severe pain or injury” or “prolonged suffering” beyond a reasonable doubt.

The new amendments are as follows:

Mandatory one-year imprisonment for a sex offender who removes GPS bracelet

Section 43AA of the Dangerous Prisoners (Sexual Offenders) Act 2003 will be replaced with a new section that holds a mandatory minimum jail sentence of one year for any sex offender who removes or tampers with their GPS bracelet for the purpose of preventing their location. The one-year imprisonment must be served wholly in a corrective services facility; the maximum penalty is a five-year sentence.

The maximum penalty for procuring child, increased

Section 229G of the Criminal Code Act 1899 deals with procuring engagement in prostitution. Previously the maximum penalty when dealing with a child or a person with mental impairment was fourteen years imprisonment, the new reforms have increased this to twenty years.

Predators convicted of child grooming can be listed as Dangerous Offenders

The new reforms allow the Courts to list a predator convicted of child grooming, as a Dangerous Offender, even if he or she was caught by a police officer pretending to be a child.

New offence of Serious Animal Cruelty

A new offence of Serious Animal Cruelty will be inserted into the Criminal Code Act 1899. This section will see a maximum penalty of seven years imprisonment for any person who intentionally kills, causes severe pain or injury, or causes prolonged suffering to an animal.

Amendments will also be made to the Animal Care and Protection Act 2001 by way of a new section, which will allow the Courts to make an order prohibiting someone who has been charged with an animal welfare offence from purchasing, owning or possessing animals.

New match-fixing offences with high penalties

There are six new match-fixing offences, which will be inserted into chapter 43 of the Criminal Code Act 1899. They are as follows:

  • Engaging in match-fixing conduct
  • Facilitating match-fixing conduct or match-fixing arrangement
  • Offering or giving benefit, or causing or threatening detriment, to engage in match-fixing conduct or match-fixing arrangement.
  • Using or disclosing knowledge of match-fixing conduct or match-fixing arrangement for betting
  • Encouraging person not to disclose match-fixing conduct or match-fixing arrangement
  • Using or disclosing inside knowledge for betting

The above match-fixing offences carry a maximum penalty of ten years imprisonment.

Amendments to Queensland’s double jeopardy rules

More amendments are being made to Queensland’s double jeopardy rules retrospectively, which will allow offenders who got away with serious crimes in the past to be retried if new and compelling evidence emerges.

Online pleas of guilty

The new reforms will see offenders afforded the opportunity to enter a plea of guilty online, for a selection of minor offences that can already be dealt with ex-parte.

This reform has been criticised as “Rubber Stamp Justice”. Those who oppose the move say that it removes the “seriousness” of offending by removing the offender from the physical Court process, thereby failing to sufficiently reinforce the consequences of their conduct.

We note that offenders have been able to enter a plea of guilty in writing with respect to the same type of offences for years, and this reform seems to be aimed at simply bringing this process into the 21st century.

Stealing offence amended

The offence of Stealing will be amended to ensure that penalty applies to an offender who steals property from a declared area under the Disaster Management Act 2003, including when the theft occurs immediately after the declaration ends, to ensure victims are appropriately protected until they return to their property.

Expert witnesses to give evidence via video link

A new section of the Evidence Act 1977 will be inserted under division 3A which establishes a presumption that expert witnesses will give evidence in court via a video link. The court may however still require an expert witness to attend a court hearing and give oral evidence.

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.

Police Set to Outsource Service of Notices To Appear

Notices to Appear

Notices to AppearUnder current legislation the Queensland Police Service is required to personally serve Notices to Appear on alleged offenders.  This process ensures that the alleged offender is aware that they have been charged and the date upon which they are required to appear in Court.

The changes proposed by the Police Minister are said to affect service of Notices to Appear in relation to:

  1. Failing to stop a motor vehicle on direction;
  2. Provisional drivers, driving a restricted vehicle;
  3. Exceed speed limit by more than 40kmh;
  4. Failing to stop at a red light;
  5. Public nuisance;
  6. Disorderly behaviour; and
  7. Threatening behaviour.

Service

The service of Notice to Appear by ordinary pre paid post is fraught with danger.  Currently the legislation permits service from Queensland Transport and the State Penalties Enforcement Register, by ordinary pre paid mail.  There are almost daily examples of people who have not received such notices being pulled over for unlicensed driving and facing mandatory loss of licence of up to 6 months.

Traffic infringement notices for offences detected by camera are now sent by registered mail, however under these proposed changes, offences requiring court appearances before a Magistrate will be sent by mail.

A number of these offences can result in the forfeiture of a persons motor vehicle.  A failure to appear will likely result in an arrest warrant issuing and the persons being arrested and held in custody for a traffic or street offence.

People need to be vigilant in terms of maintaining their correct residential details with government bodies and ensuring that any concerns with the delivery of their post is resolved with Australia Post.

If Postmen are to become defacto police officers, delivering Notices to Appear, then the QPS should at the very least be required to serve the Notices by way of Registered Post to ensure that service is effected.  We are extremely concerned about these changes.

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.

 

 

No Smoking in Qld Jails from 5 May 2014.

No Smoking or tobacco products in Qld Jails

With the Queensland government banning tobacco from Qld Jails, the mere possession of tobacco and smoking-related products could see liable to Prosecution under Section 123 of the Corrective Services Act 2006 or proceedings for a breach of discipline.

 From Monday, 5 May 2014 all Queensland Corrective Service facilities will become tobacco and smoke-free.  This will include:

  1.  Tobacco and other smoking-related products becoming prohibited things under Section 20 of the Corrective Services Regulations 2006; and.
  2.  Grounds of a corrective services facility will become smoke-free areas.

Tobacco Free

From Monday, 5 May 2014- prisoners will be prohibited from having in their possession tobacco (including smokeless tobacco products) or other smoking-related products (cigarette lighters, matches, papers, filters etc.). Prisoners in possession of tobacco or other smoking-related products from this date may be liable for Prosecution under Section 123 of the Corrective Services Act 2006 or proceedings for a breach of discipline.

Smoke-Free

From Monday, 5 May 2014- no smoking will be permitted anywhere on the grounds of a corrective services facility.

Smoking Cessation Support Program

Upon reception to a corrective services facility, prisoners will be assessed for a smoking cessation support program (SCSP). Prisoners currently in a corrective services facility may undertake SCSP by nominating with their facility’s Health Centre.

Nicotine replacement therapy (NRT) in the form of patches will be provided to eligible prisoners. This will generally be for a period of up to 12 weeks. Prisoners will generally be supplied one week’s supply of NRT at a time.

Inappropriate use of NRT may result in removal from the program. Inappropriate use includes hoarding, selling, trading or giving away free NRT.

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.

Juvenile Offenders To Be Named and Shamed Under New Laws

Imprisonment no longer a sentence of last resort for childhood offenders in Qld

Imprisonment no longer a sentence of last resort for childhood offenders in Qld

New criminal laws have been passed for juvenile offenders in Queensland with a substantial overhaul of the Qld Childrens Court process.  These changes are substantial in that they remove the requirement for a sentence of imprisonment to be a sentence of last resort and open up the children’s court for repeat offenders.  They go further in that the prohibition against reporting children’s names before, during and after proceedings has been removed for alleged repeat offenders.

Changes to Qld Childrens Court

The changes to Qld Childrens Court include:

  1. Permit repeat offenders’ identifying information to be published;
  2. Open the Childrens Court for youth justice matters involving repeat offenders;
  3. Create a new offence where a child commits a further offence while on bail;
  4. Permit childhood findings of guilt for which no conviction was recorded to be admissible in court when sentencing a person for an adult offence;
  5. Provide for the automatic transfer from detention to adult corrective services facilities of 17 year olds who have six months or more left to serve in detention;
  6. Provide that, in sentencing any adult or child for an offence punishable by imprisonment, the court must not have regard to any principle, whether under statute or at law, that a sentence of imprisonment (in the case of an adult) or detention (in the case of a child) should only be imposed as a last resort;
  7. Allow children who have absconded from Sentenced Youth Boot Camps to be arrested and brought before a court for resentencing without first being given a warning; and
  8. Make a technical amendment to the Youth Justice Act 1992.

Naming repeat offenders

The amendments limit the application of the existing prohibition on publishing identifying information about a child the subject of proceedings to first-time offenders only.

This means repeat offenders who have been found guilty of another offence will be able to be identified and reported in the media, both during and after proceedings against them.  In the past children charged with criminal offences, have been able to escape the public scrutiny of their identities being published or reported on the media.  This has been said to reflect the important principle that children make mistakes, and should be given an opportunity to learn from them.  These new changes will remove that privilege and expose repeat offenders to media exposure.

The Qld Childrens Court can make an order at any time during a proceeding prohibiting publication of a repeat offender’s identifying information where it considers this to be in the interests of justice. This power may be exercised on the court’s own discretion or on application by a specified party. 

Opening the Childrens Court

The Qld Childrens Court will remain closed when hearing matters in relation to first- time offenders.  The legislation provides that Qld Childrens Court proceedings under the Youth Justice Act 1992 which involve repeat offenders are to be held in open court.  Childrens Court proceedings are currently only required to be held in open court where a judge is exercising jurisdiction to hear and determine a charge on indictment.  The court will have the discretion to hold some or all of a proceeding in relation to a repeat offender in closed court where it considers this to be in the interests of justice.

Imprisonment no longer a sentence of last resort

The amendments remove the principle that detention or prison is a sentence of last resort from both the Youth Justice Act 1992 and the Penalties and Sentences Act 1992. 

New offence of committing an offence while on bail

There is a new offence of committing a further offence while on bail. This new offence will be taken to have been committed where a finding of guilt is made against the young person in relation to that further offence.

The maximum penalty for the new breach of bail offence will be 20 penalty units or one year’s imprisonment.  This is half the maximum penalty under section 29 of the Penalties and Sentences Act 1992 for breach of a condition of bail by an adult

Transfer to adult prisons for offenders when they turn 17 years.

The  Youth Justice Act 1992, currently provides for a court to order in certain circumstances that an offender be transferred to an adult correctional facility on turning 18 (or on turning 17 where they have previously been held in prison under a sentence or on remand). The ammendment provides that all offenders sentenced to a period of detention must be automatically transferred to an adult correctional facility on turning 17 if, at that time, they have at least 6 months left to serve in detention. If an offender is already 17 at the time of sentence to a period of detention of six months or more, that sentence will automatically be taken to be a sentence to a period of imprisonment to be served in a corrective services facility.

Retrospective effect

In a proceeding against an adult for an offence, any childhood finding of guilt for which no conviction was recorded will be admissible for the purposes of sentencing. This includes where the adult offence was committed or the proceeding against the adult started before commencement of the 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.