Bail (Domestic Violence) and Another Act Amendment Bill 2017

Domestic violence bailOn Valentines Day 2017, the Opposition Leader, Tim Nicholls introduced the Bail (Domestic Violence) and Another Act Amendment Bill 2017 into the Queensland Parliament. The Bill will see a massive change to domestic violence bail laws.

The proposed Bill was prompted by the tragic death of Ms Terresa Bradford, who was killed by her estranged husband two weeks earlier.  Sadly the death was not uncommon with eighteen Queensland women dying in DV related incidents in 2016.

Policy Objectives

The Bill has five policy objectives:

  1. Reverse the presumption of bail for an accused charged with a relevant domestic violence offence;
  2. Create a special bail condition for GPS trackers for people charged with a relevant domestic violence offence;
  3. Create a mandatory reporting system to alert an alleged victim of domestic violence when the accused:
    • applies for bail;
    • is released on bail; or
    • receives a variation to a bail condition.
  4. Create a mandatory reporting system when a prisoner (whether or not convicted of domestic violence):
    • applies for parole; and
    • receives parole
  5. A process to stay grants of bail for three (3) days, while bail is appealed by police.

Presumption against domestic violence bail

Where a person is held in custody for an offence that they are yet to be convicted of,  the Court would usually grant bail, unless the police can demonstrate that the person is an unacceptable risk.  This onus is shifted in the Bail Act where the person:

  1. is already on bail and is alleged to have committed an indictable offence;
  2. is charged with an offence that carries mandatory life imprisonment;
  3. is charged with an offence that carries an indefinite sentence;
  4. is alleged to have breached the Bail Act
  5. is charged with contravening a control or public safety order contrary to the Criminal Organisation Act;
  6. is charged with an offence of making threats with a circumstance of aggravation;
  7. if the person has at any time been a participant in a criminal organisation;

The proposal is that the Court would have to refuse bail to an accused where they were charged with a ‘relevant domestic violence offence”.  That is, the legislation will reverse the onus in relation to relevant domestic violence offences and an accused person will need to demonstrate why they should be granted bail.  The definitions provision in section 6 of the bail act will be amended to define a relevant domestic violence offence as:

  1. Choking, suffocation or strangulation in a domestic setting
  2. Deprivation of Liberty
  3. Stalking
  4. Arson
  5. A serious violent offence (SVO) as defined in the Penalties and Sentences Act, if the offence is also a Domestic Violence offence.

GPS Tracker

In our earlier blog post ‘Electronic Tracking for alleged Queensland DVO Offenders‘, we discussed GPS Trackers.

Under the proposed legislation a tracking device is:

an electronic device capable of being worn, and not removed, by a person, for the purpose of the Queensland Police Service finding or monitoring the geographical location of the person.

The Bill requires a court or police officer authorised to grant bail to consider requiring an accused person to wear a tracking device while the person is released on bail.

The Bill also requires that the court consider imposing a special condition that prohibits the accused from approaching within a stated distance of a place regularly frequented by the complainant for the offence such as their place of residence or workplace.

Domestic Violence Bail Alert

Where a person charged with a relevant domestic violence offence (see above) makes an application for bail or an application to vary their bail, the prosecutor must give the aggrieved notice of the application within 24 hours of the application being made.

If bail is granted the Court or Police must give notice to the aggrieved of the date that the person is released and the date that the person is next required to appear at Court.

This information is to be provided immediately to the ‘person at risk’.

Parole Alert for victims of Domestic Violence

The Corrective Services Act 2006 is also amended by the Bill to enable an ‘eligible person’ to receive information about a prisoner.  An eligible person can be any person who satisfies the Chief Executive that they have been the victim of Domestic Violence, perpetrated by the prisoner.  It is not a requirement that the prisoner is in custody for an offence against the eligible person.

The chief executive must provide the person with:

  1. the prisoners eligibility dates for discharge or release;
  2. the prisoners date of discharge or release;
  3. the death or escape of the prisoner; or
  4. any particular circumstance that could reasonably be expected to endanger the physical safety of the person.

Review of Domestic Violence Bail Decisions

A prosecutor can appeal the decision to grant bail to a person charged with a relevant domestic violence offence.  In those circumstances the accused person can be held in custody until 4:00pm, 3 business days after the decision is made.  So that a person granted bail at 10:00am on a Friday morning could be held in custody until 4:00pm the following Wednesday.

If the person has been released prior to the appeal by the prosecutor, the reviewing Court may give effect to the stay, by issuing a warrant of apprehension.

The prosecution has always had the power to appeal the decision of a court to grant bail.  The current amendment is to permit the police to hold the person in custody for up to three business days.  This provision is said to mirror section 40 of the New South Wales Bail Act.

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.

Electronic Tracking for alleged Queensland DVO offenders

Domestic violence offenderFollowing the January 30 death of Teresa Bradshaw, there is a call for bail conditions to include the wearing of a tracking device by alleged domestic violence offenders.  Ms Bradford was killed by her estranged husband, who was on bail for DV offences at the time of her death.

The Queensland Police Minister, Mark Ryan said that he has on ‘open mind’ on the introduction of the technology.  This move has also been supported by the Queensland opposition leader, Tim Nicholls.

Electronic monitoring was first considered by Dr Ralph Schwitzgebel in 1964.  The technology has since been refined and used in American Courts since 1983. It has the ability to ensure that an alleged domestic violence offender does not:

  1. enter proscribed areas;
  2. approach particular people, such as complainants, victims; or
  3. approach co-offenders.

The complainant, can have a device which will alert authorities should the defendant approach within a pre-determined range.  The rationale is that police can be notified before actual contact occurs and thereby prevent further acts of domestic violence.

Interstate Approach to tracking alleged domestic violence offenders

In late 2016 the NSW Department of Justice trialed 60 Electronic Tracking Devices for Domestic Violence Offenders.

Victoria has had the power to order tracking devices and is said to be happy with the results.

The ACT and Northern Territory are said to be closely watching the New South Wales Trial.

Current Queensland Bail Legislation

Currently the Bail Act allows the Court to impose conditions that are necessary, having regard to:

  1. the nature of the offence;
  2. the circumstances of the defendant; and
  3. the public interest.

In Lacey v DPP [2007] QCA 413 the Queensland Court of Appeal was required to consider the issue of tracking devices in a bail application brought by Mr Lacey.  Lacey was charged with a number of offences including attempted murder, torture and deprivation of liberty.  There was some considerable delay with his matter reaching trial.  Lacey applied for bail and offered the condition that he would submit himself to electronic monitoring.  The Court of Appeal said

It is pointless and impractical to impose a condition which cannot be monitored and enforced. As neither police nor Corrective Services personnel have been equipped by government to carry out the necessary monitoring, no such condition could be attached to a bail order.”

While Queensland Courts do have the power to impose such conditions, it is clear that some form of government monitoring is required before such a scheme could be successfully implemented.

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 on Domestic Violence 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.

26 OMCG declared a Criminal Organisation

New Qld Bikie Laws

New Qld Bikie laws have been introduced targeting the illegal activities of criminal gangs in Queensland. The reforms introduce new offences, increased penalties, enhanced powers for Police and the Crime and Misconduct Commission, and stricter bail laws.

Declared Criminal Organisations

Liquor Act Changes

Changes have been made to the Liquor Act 1992 to prohibit people from entering or remaining on premises, subject to a licence or permit under the Liquor Act, if they are wearing or carrying certain prohibited items (outlined below) which are associated with a declared criminal organisation. It also places obligations on licensees/permittees, approved managers, employees and agents of licensees/permittees that they not knowingly allow anyone wearing or carrying the prohibited items to enter or remain on the premises.

The Liquor Act provides for authorised persons, which include the licensee/permittee, employees or agents of the licensee/permittee, and police officers, to tell a person wearing or carrying prohibited items to immediately leave the premises.

Penalties apply and the maximum penalty for the licensee/permittee, approved manager or employee/agent of the licensee/permittee for knowingly allowing a person wearing or carrying prohibited items to enter or remain on the premises is $11,000.

Significant penalties also apply if the person refuses to leave when required, or resists an authorised person who is removing them from the premises (maximum penalty for first offence $41,250, second offence $57,750 or 6 months imprisonment and third or later offences $82,500 or 18 months imprisonment).

Prohibited Item

Prohibited item is defined in the Liquor Act as meaning:
an item of clothing or jewellery or an accessory that displays—

(a)       the name of a declared criminal organisation; or

(b)       the club patch, insignia or logo of a declared criminal

organisation; or

Note
The things mentioned in paragraph (b) are also known as the ‘colours’ of the organisation.

(c)        any image, symbol, abbreviation, acronym or other form

of writing that indicates membership of, or an association with, a declared criminal organisation,

including—

(i)         the symbol ‘1%’; and

(ii)        the symbol ‘1%er’; and

(iii)       any other image, symbol, abbreviation, acronym or other form of writing prescribed under a regulation for this paragraph.

Declared Criminal Organisation

declared criminal organisation is an entity declared to be a criminal organisation under the Criminal Code, section 1, definition criminal organisation, paragraph (c). A list of these organisations as at 17 October 2013 is provided below.

  • the motorcycle club know as the Bandidos
  • the motorcycle club kn
  • ow as the Black Uhlans
  • the motorcycle club know as the Coffin Cheaters
  • the motorcycle club know as the Comancheros
  • the motorcycle club know as the Finks
  • the motorcycle club know as the Fourth Reich
  • the motorcycle club know as the Gladiators
  • the motorcycle club know as the Gypsy Jokers
  • the motorcycle club know as the Hells Angels
  • the motorcycle club know as the Highway 61
  • the motorcycle club know as the Iron Horsemen
  • the motorcycle club know as the Life and Death
  • the motorcycle club know as the Lone Wolf
  • the motorcycle club know as the Mobshitters
  • the motorcycle club know as the Mongols
  • the motorcycle club know as the Muslin Brotherhood Movement
  • the motorcycle club know as the Nomads
  • the motorcycle club know as the Notorious
  • the motorcycle club know as the Odins Warriors
  • the motorcycle club know as the Outcasts
  • the motorcycle club know as the Outlaws
  • the motorcycle club know as the Pheonix
  • the motorcycle club know as the Rebels
  • the motorcycle club know as the Red Devils
  • the motorcycle club know as the Renegades
  • the motorcycle club know as the Scorpions

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.

Fail to Appear – What happens

Jail barsIt an offence to fail to appear in court in accordance with a bail undertaking. The court has the power to revoke the bail undertaking, forfeit any sureties and issue a warrant for your arrest.

What if I had a really good reason for failing to appear?

The Court requires a person to show cause why they have failed to appear and in some exceptional cases, the court will accept a lawful excuse and discharge the person. In showing cause the person needs to establish that they were unable to attend court.  An example might be that the accused person was in hospital with a reasonable medical condition that prevented them from appearing.

The court will not only require you to show that you had reasonable cause for failing to surrender into custody but that you surrendered into custody as soon after the time as is reasonably practicable.

What do I do if I have failed to appear?

The court will generally issue a warrant once a person fails to appear.  This warrant will be provided to the police in an effort to locate you and have you brought before the Court.

The preferable approach is for you to surrender yourself to police rather than have them come looking for you.  The Court will more readily accept that you made a mistake and were not trying to abscond if you hand yourself in.

You will be arrested by police for the offence of fail to appear and will be offered to opportunity to provide a reason.

What will happen to me after I surrender myself to the police?

You will be held in custody and produced to the court that issued the warrant.

Upon production to the court they shall call upon you to prove why you should not be convicted of an offence against the section. If you are unable to show cause you will be sentenced and you will need to reapply for bail on the substantive offence.

What are the penalties for failing to appear?

In some circumstances, it is possible to be found guilty of the offence and not have a conviction recorded. However many courts treat the offence as serious and can impose periods of actual imprisonment.

Regardless of the penalty, a conviction for failing to appear can have an impact on assessing future applications for bail.  A conviction may persuade the court that an accused is an unacceptable risk of failing to appear and result in a refusal of bail.   It may even result in the revocation of bail and forfeiture of monies pledged by a surety.

It is imperative that you surrender yourself as expeditiously as possible and seek professional advice from an experienced criminal lawyer who specialises in bail matters.