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”.

Online Plea Of Guilty

Minor Traffic offences commenced by way of a complaint and summons, can now be resolved by way of an online plea of guilty.  The days of attending the bulk traffic call over and waiting to have minor traffic offences determined by a Magistrate can be avoided.  The new online guilty plea form allows the Court to take into account your timely plea of guilty and other relevant factors without the need to attend in person.

Anyone wishing to plead guilty online should give thought to using the process.  They need to be cautious however as to the consequences of pleading guilty before a Magistrate as many of the Hooning provisions are triggered once a plea of guilty is heard by a Magistrate.

What can proceed online?

The following offences are currently allowed for the online service:

  • vehicles used on roads must be registered
  • disobeying the speed limit
  • driving without a licence
  • drive without due care and attention.

When can the matter not proceed online?

Currently an online guilty plea is not allowed if the person has received a Notice to Appear and has not yet appeared in court.  More serious offences that are to proceed upon indictment are also not allowed.  The Court does not have a capacity to disqualify a driver licence if the person is not present.  Accordingly if the Court considers that a  licence disqualification is required they will not proceed to sentence, but instead order that you personally appear at a further date.

Offender Levy

If you are sentenced in the Magistrates Court, whether you appear or not, you are still liable for payment of the Offender Levy.  The offender levy is not part of the sentence, it is imposed in addition to any fine or sentence imposed.

The online form is located here https://www.qld.gov.au/law/court/going-to-court/submit-your-guilty-plea/

Which Courts have an online capacity?

The following magistrate courts currently have this function:

  • Beaudesert Magistrates Court
  • Beenleigh Magistrates Court
  • Brisbane Magistrates Court
  • Cleveland Magistrates Court
  • Coolangatta Magistrates Court
  • Goondiwindi Magistrates Court
  • Holland Park Magistrates Court
  • Ipswich Magistrates Court
  • Pine Rivers Magistrates Court
  • Redcliffe Magistrates Court
  • Richlands Magistrates Court
  • Sandgate Magistrates Court
  • Southport Magistrates Court
  • Stanthorpe Magistrates Court
  • Warwick Magistrates Court
  • Wynnum Magistrates Court

Disqualified Driving Sentence

Gatenby Criminal Lawyers LogoMollie Roper obtained an exceptional result for this mornings disqualified driving sentence.  Our client was charged with one count of disqualified driving and another count of disqualified driving whilst intoxicated.  The second offence was committed in the same week and while on bail for the original offence.

Our client was originally disqualified from driving for a high range drink drive charge.

Generally, for offending of this type a community based order and/or a period of imprisonment would be imposed.

After hearing extensive submissions made by Ms Roper the Magistrate sentenced the client to:

  1. A fine; and
  2. The minimum mandatory periods of disqualification.

While the mandatory disqualification period was still lengthy, the client  stayed out of jail and is able to maintain his employment and family commitments.

Sentencing Ranges

Disqualified driving is a serious offence and attracts a maximum penalty of up to $6,600.00 or imprisonment for up to 18 months.  As part of any disqualified driving sentence the Court must disqualify you from holding or obtaining a driver licence for a period of between two (2) and five (5) years.

As has been discussed earlier in our site, Queensland Magistrates are routinely imposing sentences of imprisonment for repeat disqualified driving offences and in circumstances where there is a circumstance of aggravation, such as drink or drug driving the prospects of imprisonment are increased.

Gatenby Criminal Lawyers provides an initial half hour appointment at no cost and we can provide you with specific advice about your disqualified driving sentence.

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.

New Traffic Laws and Increased Penalties for Cycle Offences.

New Traffic Laws Introduce Cycling Reforms.

Ciclisti al tourQueensland has new traffic laws following the introductions of the Transport Legislation and Another Regulation Amendment Regulation (No. 1) 2014.  These new traffic laws are primarily aimed at addressing the road safety of cyclists by introducing a new minimum distance of up to 1.5 metres between any vehicle and a cyclist.  The offence is set to carry a maximum penalty of 40 penalty units and the loss of three (3) demerit points.

The new traffic laws follow the Parliamentary Transport, Housing and Local Government Committee  report “A new direction for cycling in Queensland”.  The report, released in November 2013, outlined recommendations designed to improve the interactions between cyclists and other road users.

Safety Reforms.

To increase safety for cyclists, the report  recommended that a minimum overtaking distance should be introduced.  The Committee noted a number of studies in Australia and in other jurisdictions have identified passing too closely (or side-swiping) as a frequent and significant factor in incidents resulting in death or serious injury to cyclists. This amendment regulation introduces a minimum passing distance for motorists passing a cyclist.

This regulation amends the Queensland Road Rules to provide that:

Motorists must leave a minimum distance of 1 metre between their vehicle and any cyclist they are overtaking on a road where the speed limit is 60 km/h or below and at least 1.5 metres where the speed limit is more than 60 km/h.

To facilitate these minimum passing distances, the amendments provide that a driver may straddle lane lines, drive to the right of the centre of the road (including crossing dividing lines) or drive on a painted island or dividing strip that is the same level as the road provided the driver has a clear view of any approaching traffic and it is safe to do so.

A breach of the new minimum passing distance requirement will carry a maximum court penalty of 40 penalty units.

If police issue an infringement notice roadside the Infringement Notice is a fine of three penalty units and three (3) demerit points.  This is a consistent penalty to offences of a similar risk including, for example, disobeying a red traffic light, failing to wear a motorbike helmet and entering a level crossing when a train is approaching.

Infringement Penalties

In its report, the Committee noted that “the current imbalance between cyclists and other vehicle drivers in relation to infringement penalties warrants review”. It commented that there is significant potential for cyclists to endanger other vulnerable road users and do harm to themselves. It recommended that the penalties for road rules offences for cyclists should be increased to the level that applies to motorists where the potential to endanger other road users is greatest (Recommendation 31).

This amendment regulation implements and, for simplicity, extends that recommendation by providing that:

  1. where cyclists currently receive a lower infringement notice fine than motorists for any road rules offence, the fine for cyclists will be increased to the level that applies to motorists; and
  2. where the offence can only be committed by a cyclist and the current infringement notice fine is less than one penalty unit, the fine will be increased to one penalty unit.

Loss of licence.

If you have lost your licence through an accumulation of demerit points and will suffer special hardship as a consequence of these new traffic laws, you may be eligible for a Special Hardship Order.  To find out more about a special hardship order, read on further in the traffic law section of our website, or contact our experienced traffic lawyers for 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.

Life imprisonment for so called “Coward Punches”

Qld criminal Laws

New offence set to attract life imprisonment.

The Government today outlined its new coward punch laws and other increased penalties under its draft ‘Safe Night Out Strategy.  In what seems to be a theme of the current government’s legislative platform, existing charges are to be replicated with newly created offences and penalties increased.  The government has adopted the big stick approach by increasing the maximum penalty for drunken behaviour in an effort to deter outrageous drunken violence.  The problem with this approach is that young, drunken, predominately men, are unlikely to consider the outcome of their actions whilst drunk and accordingly, unlikely to think about the massive penalties the government proposes to roll out.

Coward Punch Laws

The so called ‘coward punch’ deaths will be punishable through a new offence of ‘Unlawful striking causing death’, punishable by a maximum penalty of life imprisonment, with the offender required to serve 80 per cent of their sentence of imprisonment before being able to apply for parole. We look forward to looking at the specifics of the charge to determine where it differs from Manslaughter.

Penalties to rise.

  1. Aggravated serious assaults on public officers, such as ambulance officers, will go up from 7 years to 14 years imprisonment.
  2. On-the-spot fines for causing a public nuisance will go up to $660 or a maximum fine of $2,750 or six months in prison.
  3. On-the-spot fines for refusing to leave licensed premises will go up to $550 or a maximum fine of $5,500.
  4. Penalties for obstructing police will go up to $6,600 or 12 months in prison.
  5. Penalties for using anabolic steroids will be strengthened to make sure they are similar to the heavy penalties that already apply to other dangerous drugs such as methamphetamine and ecstasy.

Key elements:

  1. The establishment of 15 Safe Night Precincts with local boards to safely and effectively manage key entertainment areas across Queensland and continued funding of existing support services
  2. Compulsory alcohol and drug education would be introduced in all Queensland schools from Years 7 to 12
  3. Tougher penalties for people behaving badly or violently around licensed premises including increased on the spot fines for causing a public nuisance, refusing to leave licensed premises and obstructing police
  4. ‘Coward punch’ deaths will be punishable through a new offence of unlawful striking causing death with a maximum penalty of life imprisonment and offenders required to serve 80% of their sentence before being able to apply for parole
  5. A 12 month trial of ‘sober safe centres’ in the Brisbane CBD where police can detain severely intoxicated people in a secure, supervised centre for up to eight hours
  6. Empowering police to issue banning orders and ensuring police have the resources to have a presence and ability to respond quickly to alcohol and drug related violence
  7. Stronger and better co-ordinated action to ensure licensees provide a safe environment and comply with liquor licensing rules, including ‘mystery shopper’ style tests
  8. Mandatory ID scanners in venues trading after midnight in ‘Safe Night Precincts’
  9. An awareness campaign, including advertising, to promote clear standards of responsible behaviour for patrons, licensees and police
  10. An extension of the moratorium on decisions about late night trading hours to 31 August 2014 to allow the measures in the action plan to be established and take effect.

To comment on the proposal, follow the link to the survey.

https://www.getinvolved.qld.gov.au/gi/consultation/2004/view.html

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.

Attorney-General to appeal Cowan sentence

Appeal decisionsThe Attorney-General is to appeal the Cowan sentence imposed in the Brisbane Supreme Court.   Attorney-General and Minister for Justice Jarrod Bleijie has instructed the Director of Public Prosecutions to appeal the sentence of Brett Peter Cowan, who was convicted of murdering Sunshine Coast teenager Daniel Morcombe in 2003.

The Attorney-General has advised Crown Prosecutors that he is of the view that the non-parole period that was sentence must be appealed because it is manifestly inadequate, is not in line with community expectations and does not set an adequate deterrent.

The sentence imposed by The Honourable Justice R Atkinson in the Supreme Court on 14/3/14 was one of life imprisonment with a non parole period of 20 years.  In imposing her sentence Her Honour accepted the submissions of the Crown Prosecutor and increased the non parole period from the minimum period of 15 years.

This sentence means that Mr Cowan will need to apply for Parole after he has served 20 years.  There is no right to parole and in our view it is unlikely that he would be granted parole, on his first application.

It is very easy to get caught up in the hysteria of particular cases, but Justice Atkinson’s reasons for the sentence imposed were well articulated and will be provided to any future parole board.

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.

Corrupt Betting Offences to carry 10 year maximum

Corrupt betting set to face 10 year imprisonment.

Corrupt betting set to face 10 year imprisonment.

Sports betting and corruption

New laws targeting sports betting and corruption are set to be introduced into Queensland Parliament.  The laws are expected to mirror those of New South Wales, Victoria, South Australia, the Northern Territory and the Australian Capital Territory, in legislating specific offences relating to the integrity of sporting contests.

Maximum Penalties for Corrupt Sports Betting

The government has announced that it is set to introduce five new offences. The new laws and the proposed maximum penalties are:

  1. Engaging in conduct that corrupts a betting outcome (10 years imprisonment)
  2. Facilitating conduct that corrupts a betting outcome (10 years imprisonment)
  3. Concealing conduct that corrupts a betting outcome (10 years imprisonment)
  4. Using corrupt conduct information about an event for betting purposes (10 years imprisonment)
  5. Using inside information for betting purposes (2 years imprisonment).
Courtsiding as alleged in the 2013 Australian Open will be an offence.

Courtsiding as alleged in the 2013 Australian Open will be an offence.

Interstate history

The legislation was recently seen used in Victoria where a 22 year old UK man was  charged with “courtsiding” at the Australian Open, with police alleging he placed bets on point outcomes during a match.  Like the Queensland legislation the man was facing up to 10 years in jail.

Under the laws introduced last year by the Victorian government it is an offence for anyone to “engage in or facilitate any conduct that corrupts or would corrupt a betting outcome of a sport or racing event resulting in financial advantage”.  Despite much publicity surrounding the arrest the prosecution withdrew its charge in the Melbourne Magistrates Court at the first mention of the matter.

While we are yet to see a conviction with this type of legislation there is material to suggest that sporting bodies are actively seeking to investigate sports betting and corrupt practices.

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.

Penalty Unit Costs Set For Automatic Increase.

GCL Dollar1Penalties Units Set for Rise

The Penalties and Sentences (Indexation) Amendment Act 2013 was passed on 5 March 2014.  This legislation allows for the annual indexing of penalty units under the State Penalties Enforcement Act 1999 such that further legislation is not required to increase the penalty rate (unless an increase is to be above the indexed rate).

The value of a penalty unit will automatically increase each year at a rate to be published by the Treasurer and if no rate is published, by 3.5%.

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.

Party Hosts face 3 years imprisonment for “out of control” parties

goldcoastOut of Control Party Laws

Organisers of out-of-control parties could face hefty fines or jail time under new out of control party laws to go before State Parliament this week.

Under the out of control party laws, a person who organises a party that becomes an out-of-control event, their parents or gate crashers face a maximum penalty of 12 months jail or $12,100. If police face aggravated and violent circumstances when shutting down wild parties, the party organisers may face fines up to $18,150 and three years in prison.

The out of control party laws provide a defence for a person who has taken reasonable steps to ensure the event does not become out-of-control, or where a third party has caused the offence.

Out-of-control conduct is said to include behaviour such as fighting, damaging property, throwing objects to harm people, disorderly conduct, making unreasonable noise and trespassing.

Police Powers

The new out of control party laws give police the power to:

  1. make directions;
  2. take steps reasonably necessary to effectively respond to ‘out of control’ events; and
  3. includes the provision for a person convicted of a relevant offence to pay all or some of the costs incurred by police.

This legislation is expected to be passed by the Government later this week.

While the term out of control party conjures up images of 100’s of drunken teenagers spilling out on suburban streets the reality of the proposed legislation is quite different.  According to the draft bill, a party is a gathering of twelve or more people.

A party is considered “out-of-control” if three people at that party are deemed by police to be drunk in a public place, cause excessive noise, or use “indecent” language.

The difficulty we have with these proposed laws is that the police already have the powers to arrest people for being drunk and disorderly, being a public nuisance, assault, wilful damage, exposure etc.  This new legislation is at best redundant but at worst seeks to make responsible those that are hosting events for the behaviour of their guests.

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.