COMMONWEALTH PENALTY UNIT

On 28 November 2012, the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012 received royal assent.

Penalty Increase

This act increases the value of a penalty unit from $110 to $170.00 and requires the value of a penalty unit to be reviewed every three (3) years. The value of a penalty unit has not increased since 1997. The change affects the value of a penalty unit in most Commonwealth laws, including the Taxation Administration Act 1953.

The new value of a penalty unit applies where the matter at giving rise to the penalty occurs on or after 28 December 2012.

MANDATORY SENTENCES

 

Mandatory sentencing has always been actively contested and denounced for years by bodies such as the Queensland Law Society, the Queensland Sentencing Advisory Council as well as other civil libertarian associations throughout the state.
Jail Cell
Mandatory sentences do not work.

 

Magistrates and Judges, although bound by legislation, are usually given a wide discretion to determine the appropriate penalty for various offences. The legislation generally prescribes minimum and maximum penalties that ought be imposed.
One of the cornerstones of a just and fair judicial system, is the discretion afforded to our courts in sentencing offenders. There is no such thing as a “standard offence”. The circumstances  of each  offence, like the personal circumstances and antecedents of an offender  are almost never the same. A judicial discretion takes these matters into account.
All mandatory sentencing does is increase the prison population at substantial additional cost with no benefit to the community.   It has been proved to be unreasonable and counter-productive in the past in Queensland, the Northern Territory and Western Australia.”
Qld Law Society President John de Groot.
Generally, a sentencing ranges are established through precedent and the decisions of the superior courts (District, Supreme, Court of Appeal and ultimately High Court). An aggrieved party, either the Attorney General or the convicted person, can appeal the decision based upon either the inadequacy of the sentence or its excessive term.
Sentences imposed by the superior courts generally bind both Magistrates and Judges, as they must show parity across the sentencing range with their judicial colleagues.  Nevertheless, sentencing judges still hold the ultimate discretion in deciding what the appropriate sentence range is having regard to the circumstances and nature of the offence and the offender.
Gatenby Criminal Lawyers is opposed to any mandatory sentences either in respect of periods of imprisonment, fines to be imposed or disqualification periods. It is our view that all matters turn on the merit of the facts and the circumstances of the offender. The “one sentence suits all” is misguided and leads to unfairness and prejudice.
If you have been charged with an offence that carries a mandatory sentence, call Gatenby Criminal Lawyers now  on (07) 55800 120 and speak with one of our experienced criminal solicitors. The first consultation is free.  We may be able to highlight a defence to the charge or alternatively negotiate an alternate charge not having a mandatory sentence.

EVADING POLICE – MANDATORY FINES AND DISQUALIFICATION. WHAT ARE MY OPTIONS?

The Queensland Government in reaction to a number of police pursuits has imposed mandatory fines and disqualification periods for all offences of Evade Police.  While this may seem appropriate for substantial offences involving dangerous, high speed, police pursuits, the reality is that minor infringements will also see the imposition of these mandatory sentences.
Section 754 of the Police Powers and Responsibilities Act 2000, makes it an offence for a driver of a motor vehicle to fail to stop if a police officer, using a police service vehicle, gives the driver a direction to stop the motor vehicle.
A police officer will usually give a driver a direction to stop the motor vehicle by activating the standard red and blue flashing lights and/or siren.
The driver is then compelled, under section 754(2) of the  Police Powers and Responsibilities Act 2000, to stop the motor vehicle as soon as reasonably practicable, if a reasonable person, would do so in the circumstances.
The penalty for failing to stop was recently amended by the Criminal Law Amendment Bill 2012, to include a  mandatory minimum sentence.
A driver who fails to stop when directed, or evades police, faces a minimum fine of 50 penalty units. In dollar terms, that is a minimum fine of $5500.00.
In addition to this fine, if a person is convicted of the offence, the court must also impose a minimum disqualification period of two years.
To be found guilty of this offence, the legislation states that it is sufficient evidence that, in failing to stop, the driver “took action” to avoid being intercepted by police.
Evading Police
Evade police – $5,500 & 2 years loss of licence.
A minimum fine of $5500 and  mandatory two-year disqualification is a significant penalty for this offence considering the following scenario:
  1. John Doe, a provisional licence holder is intercepted driving along the Gold Coast Highway, at night, with more than one passenger in the vehicle, contrary to the restrictions on his licence.
  2. He sees the flashing blue and red lights behind him, and in a moment of foolishness accelerates away to avoid police and the potential loss of licence.
  3. He quickly sees the foolishness of his situation and pulls over allowing police to catch up with him. He has, albeit for an instant “taken action” to avoid police detection.
  4. Police charge him with an offence of “evading police”.
  5. He now faces a minimum $5500 fine and a mandatory two-year disqualification of his licence, causing him severe financial hardship, the loss of his employment and the inability to transport his young children to school.

 

If John Doe contacted Gatenby Criminal Lawyers immediately, our experience solicitors would explore a number of avenues to reduce the severity of the charge.  We routinely make submissions to the prosecution asking them to proceed on a lesser allegation thereby enabling the Magistrate to utilise their discretion as to both the duration of any disqualification period and the amount of any fine.
If you have been charged with evading police, call Gatenby Criminal Lawyers now on (07) 55  800  120 and speak with one of our experienced criminal solicitors. The first consultation is free.
We will sit down with you and provide professional advice along with an obligation free estimate of the cost of our representation with respect to your matter.

Mobile Phone Laws

New mobile phone laws came into effect last year on 1st November in New South Wales, where if your car is moving or stationary, you can not

Police have a zero tolerance attitude to the use of Mobile Phones while driving.

Police have a zero tolerance attitude to the use of Mobile Phones while driving.

utilise your mobile phone in any way. This includes phone calls and texting obviously, but also includes playing music or having your phone switched on and in your lap.

Queensland counterparts have yet to confirm whether they are introducing the new laws although police have a zero tolerance attitude toward mobile phone usage by drivers. Last financial year, Queensland Police fined 30,780 drivers for talking or texting on phones at the wheel, including 76 cyclists.

In New South Wales the changes state that while a vehicle is moving or stationary (but not parked), a driver may only use a mobile phone to make or receive a call or use the audio playing function if:

  • the mobile phone is secured in a fixed mounting; or
  • if not in a mounting, must not require a driver to touch or manipulate the phone in any way.

All other functions including texting, video messaging, online chatting, reading preview messages and emailing are prohibited. The new laws make it clear that a driver in a moving or stationary vehicle MUST NOT HOLD a phone in his or her hand other than to pass the phone to a passenger.

State penalties:
QLD – 3 points – $330
NSW – 3 points – $298 (if in a school zone 4 points – $397)

WEAPONS ACT

New mandatory imprisonment for selected firearm offences.

New mandatory imprisonment for selected firearm offences.

The Weapons and Other Legislation Amendment Bill 2012, amended the Weapons Act 1990 (the Act), the Corrective Services Act 2006 (CSA) and the Penalties and Sentences Act 1992 (PSA) to impose mandatory minimum periods of imprisonment where the offences of unlawful possession (s 50), unlawful supply (s 50B) and unlawful trafficking (s 65) of weapons are committed in certain circumstances.

The legislation now provides 18 months imprisonment served wholly in a corrective services facility where an adult unlawfully possesses a firearm and it uses the firearm to commit an indictable offence where the unlawful possession is related to:

  1. 10 or more weapons where at least Category D, E, H or R weapons; or
  2. 10 or more weapons; or
  3.  A category D, H or R weapons; or
  4. A category C or E weapon.

One year imprisonment in a corrective services facility where an adult unlawfully possesses a firearm for the purpose of committing or facilitating the commission of an indictable offence in circumstances where the unlawful possession is related to:

  1. 10 or more weapons where at least Category D, E, H or R weapons; or
  2. 10 or more weapons; or
  3.  A category D, H or R weapons; or
  4. A category C or E weapon.

One year imprisonment in a corrective services facility where an adult unlawfully possesses a short firearm in a public place without a reasonable excuse where the unlawful possession is related to:

  1. 10 or more weapons where at least Category D, E, H or R weapons; or
  2. 10 or more weapons; or
  3.  A category D, H or R weapons; or
  4. A category C or E weapon.

Nine months imprisonment served wholly in a corrective services facility where an adult unlawfully possesses a category A or B firearm and uses that firearm to commit an indictable offence.

Six months imprisonment served wholly in a corrective services facility where an adult unlawfully possesses a category A or B firearm for the purpose of committing or facilitating the commission of an indictable offence.

An adult who unlawfully supplies five or more weapons where at least one of the weapons supplied is a short firearm, without a reasonable excuse, is liable to 3 years imprisonment served wholly in a corrective services facility.

An adult who is unlawfully supplies less than five weapons, where at least one of the weapons supplied is a short firearm, without a reasonable excuse, is liable to 2 1/2 years imprisonment served wholly in a corrective services facility.

An adult who unlawfully traffics in category H or R weapons, without a reasonable excuse and at least one of the weapons is a firearm is liable to 5 years imprisonment, served wholly in a corrective services facility.

An adult who unlawfully traffics in category A, B, C, D or E weapons, a category M crossbow or explosives without reasonable excuse and at least one of the weapons is a firearm, is liable to 3 1/2 years imprisonment served wholly in a corrective services facility.

In our view the fettering of judicial discretion is unfair, unworkable and contrary to our international treaty obligations. Nonetheless the bill has now passed and mainly Tory periods of imprisonment apply or possession of weapons as categorised above.

SENTENCING CONSIDERATIONS

It is an important sentencing principle that parity exist in sentences imposed for like offences.  In a diverse state such a Queensland, with three levels of Courts; Magistrates, District and Supreme, there needs to be an overriding set of guidelines to ensure that sentences imposed upon offenders are consistent.  The Penalties and Sentences Act sets out the parameters within which the courts must operate.

The legislation does this by setting out the purpose of imposing sentences and then establishes the principles that the Court is to apply in achieving those purposes.

The purpose of imposing a sentence can be classified as one or more of the following:

  1. To punish the offender to an extent or in a way that is just in all the circumstances;
  2. To provide conditions will help the offender to be rehabilitated;
  3. Deterrence, both personal and general;
  4. Denunciation of the offending conduct;
  5. Protection of the Queensland community from the offender;

In most non-violent offences the starting point in sentencing is that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable.

The Court must also have regard to the maximum and any minimum penalty prescribed for the offence and how serious the offence was, including any physical, mental or emotional harm done to a victim.  Particular regard is to be had to the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence.  The court should also have regard to the prevalence of the offence.

Consideration is also had to the extent to which the offender is to blame for the offence and the presence of any aggravating or mitigating factors such as any damage, injury or loss caused by the offender.

Matters particular to the accused are also relevant such as the offender’s:

  1. character,
  2. age;
  3. intellectual capacity;
  4. assistance given to law enforcement agencies in the investigation of the offence or other offences.
  5. time spent in custody awaiting sentence;
  6. sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing;
  7. compliance with previous community based orders
  8. attendance at a rehabilitation, treatment or other intervention program or course while on bail.

Each of these principles is to be taken into account in determining the appropriate sentence.  What often becomes difficult for the sentencing court is to balancing the various competing interests.  An experienced criminal lawyer is able to highlight the positive features, and mitigate the sentence imposed.

OFFENDER LEVY

Defendants found guilty of offences in the Supreme, District and Magistrates Courts will pay an offender levy with recent amendments to the Penalties and Sentences Act 1992 (“the Act”).

The levy will apply as follows:

  • Supreme Court       $300.00
  • District Court          $300.00
  • Magistrates Court    $100.00

This levy will apply to all adult offenders; there are no exceptions regardless of the nature of the offence or the offender’s personal circumstances.

The offender levy is automatically imposed at the conclusion of sentencing as an administrative levy and is in addition to any other sentence imposed.

The levy must not form part of the sentence with the court prohibited under section 48 of the Act from taking the levy into account when considering the financial circumstances of an offender. Section 9 of the Act also precludes the court from considering the levy when imposing its sentence

The levy is payable per sentencing event regardless of the number of convictions or whether or not a conviction is recorded.

Defendants will need to be vigilant to ensure that summary matters associated with more serious offences are resolved at the same time. The practice of clearing up minor offences following sentence in a superior court would not seem to meet the definition of a sentencing proceeding and would attract a second offender levy.

No further levy is payable by the offender where the Court is called upon to resentence by:

  1. Substituting another sentence;
  2. Further deal with the offender including the making of a further order; or
  3. Confirming, varying or amending the sentence or order made on the original sentence.

If upon appeal all convictions that resulted in the imposition of the offender levy are quashed the proper officer must refund to the offender any amount paid to the proper officer for the offender levy.

The act is retrospective; that is the relevant date is conviction and not the offence date.  Therefore those convicted of an offence after 21 August 2012 will be required to pay the offender levy in addition to any other sentence imposed.

The Court is required to pass on the offender’s details to the State Penalties Enforcement Register (SPER). The proper officer of SPER is then required to collect the levy in the usual course of its business.  Caution will need to be exercised, as the recording of incorrect particulars with SPER will result in a default.  SPER has far reaching powers including the ability to suspend a persons Queensland Drivers Licence.

The Penalties and Sentences and Other Legislation Amendment Bill 2012 also included an increase to the value of the penalty unit from $100 to $110.

The penalty unit is the basic monetary value for most fines and penalty infringement notices issued by courts, police and other Queensland agencies.

TWO STRIKE LAW FOR SEX OFFENDERS

The Criminal Law (Two Strike Child Sex Offenders) Amendment Bill 2012 amends the Penalties And Sentences Act 1992 to insert a new major Tory sentencing regime of life imprisonment for certain repeat child sex offenders and further amends the Corrective Services Act 2006 to prescribe a minimum non-parole period of 20 years imprisonment for an offender sentenced to mandatory life imprisonment under the new sentencing regime.

The new regime applies where:

  1. An adult offender is convicted of a relevant serious child sex offence (as defined in the Bill):
  2. Such offences committed after the commencement of the bill:
  3. The offender has a prior conviction as an adult for a relevant serious child sex offence stop paragraph the second offence is committed after the conviction of the first offence.

The court in sentencing the offender on that second occasion, must impose life imprisonment which cannot be mitigated or varied.

In our view the fettering of judicial discretion is unfair, unworkable and contrary to our international treaty obligations. Nonetheless the bill has now passed and mandatory periods of imprisonment apply or possession of weapons as categorised above.