Industrial Manslaughter Offence Introduced to Queensland

Drink Driving OffenceOn 12 October 2017, the Minister for Employment and Industrial Relations, Grace Grace, announced the introduction of “Tough new industrial manslaughter laws” in Queensland.  With maximum penalties of 20 years imprisonment for an individual, and a maximum fine of $10 million for a corporate offender, the new Industrial Manslaughter laws are significant.

The new Industrial Manslaughter laws were prompted by the 2016, workplace fatalities at Dreamworld, where four people lost their lives on the Thunder River Rapids Ride; and at Eagle Farm, where two workers were crushed when a precast concrete slab toppled over.  These incidents prompted the Government to engage Tim Lyons to review the Workplace Health and Safety Laws.  His report, “Best Practice Review of Workplace Health and Safety Queensland” was completed on 3 July 2017.

The Work Health and Safety and Other Legislation Amendment Bill 2017, creates two new offences: a senior officer offence and a corporate offence, where conduct negligently causes the death of a worker. The existing standard for criminal negligence is proposed to be applied, with a maximum penalty for an individual of 20 years imprisonment and a maximum fine of 100,000 penalty units, or $10 million for a body corporate.

The Bill introduces a new part 2A titled “Industrial Manslaughter” into the Work Health and Safety Act 2011.  The legislation defines in section 34A two classes of people:

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

senior officer, of a person conducting a business or undertaking, means—

(a)if the person is a corporation—an executive officer of the corporation; or

(b)otherwise—the holder of an executive position (however described) in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part, of the person’s functions.

Offence

(1) A person conducting a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the person’s conduct causes the death of the worker; and

(c) the person is negligent about causing the death of the worker by the conduct.

Maximum penalty—

(a) for an individual—20 years imprisonment; or

(b) for a body corporate—100,000 penalty units.

Conduct

A persons conduct causes death if the conduct substantially contributes to the death.  Further the Act provides that conduct includes not only a positive act but an omission to do an act.  It is imperative that employers are aware of their obligations to ensure that workplace undertakings are not conducted negligently.

Negligence

While the existing standard of proof in Queensland for criminal negligence will be applied industrial manslaughter offences, the new charge is for behaviour and attitudes that exceed that of recklessness under category 1 offences.

The guidelines for industrial manslaughter prosecutions are identical to those for manslaughter under the Criminal Code.

Defences

It is a defence to the charge to demonstrate that the accused is a volunteer.

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.

It’s just a drink driving offence, I can’t go to jail. Can I?

Close up of beer glass with frothMost motorists pleading guilty to their first drink driving charge will receive a fine and a loss of their licence.  It is however open for the Magistrate to impose an actual period of imprisonment, especially where it is a repeat drink driving charge.

For some drink driving offences, the law says that the court must impose, as the whole or part of the punishment, imprisonment.

Sentence

When you enter a plea of guilty to a traffic matter the Magistrate must decide, not only the length of your disqualification, but also whether you will be fined, given a community based order or sentenced to a period of imprisonment.

The Court will look at various factors including:

  1. your reading at the time of the offence;
  2. the circumstances surrounding the offence; and
  3. your criminal and traffic history.

First time drink driving penalties

For a first time drink driver the maximum penalties are:

BACLicence DisqualificationMaximum fineMaximum Imprisonment
0.0%3 to 9 months$1,7063 Months
0.05 and over, under 0.101 to 9 months$1,7063 Months
0.10 and over, under 0.153 to 12 months$2,4386 Months
0.15 and over, Minimum of 6 months$3,4139 Months

Read more about BAC limits in our previous blog post.

Repeat Drink Driving Charge

Imprisonment becomes an option where the court is sentencing you for a repeat drink driving charge.  Repeat drink drivers face higher penalties than first time drink drivers.  In addition to the power to impose a period of imprisonment the court can also:

  1. Have your car impounded (if you refuse to provide a specimen of breath or blow over 0.15%;  Read more about impoundment powers here.
  2. Disqualify your licence for up to two years;

What is a Repeat Drink Driver?

A repeat drink driver is a person who has been sentenced for an offence outlined above within the last 5 years.  The Court will look at the totality of your traffic history in deciding which penalty to apply, however the legislation defines a repeat drink driver as a person convicted within the last five years.

What should I do if I am a repeat drink driver?

If you are intending to enter a plea of guilty to a repeat drink driving offence you should consider your reading, the circumstances of the offence and your traffic history.  If you are concerned that you might be facing a period of imprisonment you should contact a traffic lawyer for advice.

A program such as the Queensland Traffic Offenders Program will assist you to demonstrate rehabilitation.

More Drink Driving Articles

Disclaimer

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

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

Liability limited by a scheme approved under professional standards legislation.

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

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

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

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

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

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

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

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

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”.

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.

Drink Driving – Go Straight to Jail, Do Not Pass Go.

Gold Coast Drink Driving Lawyers

Most Queensland motorists understand that if they are caught drinking and driving, they will be disqualified from holding or obtaining a Queensland driver’s licence for a period of time.  By and large our job as experienced Gold Coast Drink Driving Lawyers is to minimise the period of disqualification or to secure a restricted work licence or special hardship order.

Mandatory Imprisonment for multiple drink driving offences.

Mandatory Imprisonment for multiple drink driving offences.

When people attend upon us for traffic law advice they are often shocked to learn that in prescribed circumstances they must receive a mandatory prison sentence.

The  legislation provides that if you are convicted of driving under the influence of alcohol for a third time within a period of five years, then you must receive a penalty of imprisonment as the whole or part of your punishment. A person is deemed to be under the influence of alcohol if they have a blood alcohol concentration that equals or exceeds 0.15%.

This means that if you have two drink driving offences over .15% within the last five years and are convicted of a third offence, the Magistrate or Judge has no option but to impose a penalty that includes imprisonment (whether actual or suspended). This will be in addition to any disqualification of your driver’s licence and any other punishments that may be imposed.
If you find yourself in the situation where you are looking at a third drink driving offence it is imperative that you speak with a Lawyer who specialises in traffic law to make certain that you obtain proper advice and representation.

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 Law Grants Qld’s Attorney General Power of Indefinite Detention.

New powers enable Qld's Attorney General to indefinitely detain prisoners

New powers enable Qld’s Attorney General to indefinitely detain prisoners

The Public Interest Declarations Act amending the Dangerous Prisoners (Sexual Offenders) Act represents a significant change to the way the law is applied in Queensland and throughout Australia.

We have, until now had a clear delineation between the role of the executive and the implementation of the law by the judiciary.  The parliament has been elected to make law and our courts have interpreted and applied those laws.  This new piece of legislation departs from that process, by enabling the Attorney General to overrule the decision of the court and detain a person.

Previously, applications to have prisoners detained indefinitely were brought by the Attorney General. The cases were determined by reference to the principles set out in the Dangerous Prisoners (Sexual Offenders) Act and in accordance with the evidence.

The new Act allows the Attorney General to:

  1. Imprison an offender without scrutiny and,
  2. Imprison an offender without evidence for the first 12 months and,
  3. If he thinks the case is “urgent” he need not give the offender an opportunity to argue against his imprisonment.

There are no limitation or established set of principles established in the legislation to guide the Attorney General in his decision making process or to determine which of the many offenders presently supervised under the Dangerous Prisoners (Sexual Offenders) Act may be imprisoned on the Attorney General’s declaration.

The Attorney is not required to give reasons to justify his action, or to ex­plain why he thought an offender should be removed from the jurisdiction of the court and the law.

Effectively the parliament has granted the Attorney General the power of arbitrary detention to a minister of the Crown.  The only feasible rationale for the new legislation is that the Attorney General has lost confidence in the Judiciary to appropriately exercise discretion.

Vicious Lawless Association Disestablishment Bill

Criminal motorcycle gang members will face mandatory jail terms of up to 25 years as part of a range of new and increased penalties to be introduced in Parliament by the Newman Government today.

Under our Vicious Lawless Association Disestablishment Bill, criminal gang members convicted of certain offences will be declared ‘vicious lawless associates’ and hit with an extra 15 years mandatory jail time on top of their sentence.

A further mandatory term of 10 years will apply if the offender is an office bearer of the criminal organisation.

Tattoo parlours will also require licenses from next year. Current and prospective proprietors will need to be fit and proper persons and will undergo police checks before their application is approved.

Three new offences, specifically targeting criminal gangs, would also be created.

The new offences are:

  • Knowingly gathering in groups of three or more members in a public place (including riding)
  • Going to banned locations (e.g. clubhouses)
  • Promoting or recruiting for the organisation.

These new offences will carry mandatory six month jail terms, with a maximum of three years in prison.

Increased penalties include:

  • Mandatory one year in prison for serious assault of a police officer
  • Mandatory six months in prison for affray with the maximum penalty increased from one year to seven years
  • An $11,000 fine (double the current penalty) and disqualified license for two years for evading police.

The reforms would also strengthen Queensland’s crime fighting bodies and courts. The Crime and Misconduct Commission unprecedented powers to haul in CMG members and question them for intelligence gathering purposes. If members don’t co-operate, they face mandatory jail time, if they don’t answer questions during coercive hearings by the Crime and Misconduct Commission, they face mandatory jail time for contempt. If they refuse again, they get more jail time.

Mandatory jail terms for contempt are:

  • First offence – at the Supreme Court’s discretion
  • Second offence – two-and-half years
  • Third offence – five years.

Criminal motorcycle gang members also face losing their Motor Cycles which the Government proposes to crush. If a member uses his bike immediately before, during or after committing many of these offences, we will confiscate it and crush it. Without his bike. Other vehicles used by gangs will also be able to be confiscated and crushed under the reforms.

In our view this is an appalling piece of legislation that unfairly discriminates against a group or class of people based solely on the their membership of a particular organisation.

We are reminded of the words of Niemöller:

First they came for the communist,
and I didn’t speak out because I wasn’t a communist.

Then they came for the socialist,
and I didn’t speak out because I wasn’t a socialist.

Then they came for the trade unionist,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for me,
and there was no one left to speak for me.

If you or someone you care about is facing Criminal Motorcycle Gang charges or offences for being associated with a Criminal Motorcycle gang, contact Gatenby Criminal Lawyers immediately.

Super jail’ for criminal bikie gangs

Southport Watchhouse

OMCG Members are to be housed in a special purpose jail and face being in their cells for 23 out of 24 hours

A special ultra-secure facility at Woodford Correctional Centre will house the highest risk members of criminal motorcycle gangs.
In prison, criminal motorcycle gang members will face:

  1. Restricted hours out of their cell (potentially as little as one hour a day)
  2. Increased drug testing
  3. Frequent, proactive cell searches
  4. Only one hour non-contact visits with family members per week
  5. No TVs in their cells
  6. No access to gymnasium facilities
  7. All phone calls, other than to legal representatives, will be monitored by intelligence staff
  8. Mail to be opened, searched and censored.

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.