Welcome Return Of Drug Court To Queensland Courts

Law BooksIn acknowledging the link between addiction and the commission of criminal offences, the Queensland government has reinstated the Drug Court in Queensland.  This court recognises that rehabilitation is often the best way of achieving the objective of keeping the community safe from recidivist offenders, who might otherwise be unable to give up their drug and/or alcohol addiction.

On 24 October, the Queensland parliament passed the Penalties and Sentences (Drug and Alcohol Treatment Orders) and Other Legislation Amendment Bill 2017.  This bill is not only re-established the previous regime but expands it to include alcohol as a relevant drug.

In her August 10 Media Release, the Attorney General said that the bill introduces  “a new sentencing option that allows a court to place a Drug and Alcohol Treatment Order on those whose offending is directly linked to their severe drug or alcohol use, which will help put them back on the right path in life, away from re-offending in the long term.”

The primary policy objective of the legislation is to insert a new sentencing option into the Penalties and Sentences Act 1992 to respond to those offenders whose offending is linked to their severe drug or alcohol use.

The legislation follows 2016, Drug and Specialist Courts Review.  The drug court is aimed at addressing severe substance abuse.  The Review’s Final Report was tabled in the Queensland Legislative Assembly on 13 June 2017 and included 39 key recommendations.

 

Mrs D’Ath in her 24 October media release said the new Drug and Alcohol Court pilot in Brisbane should be operational in November.

Creation of a Drug and Alcohol Treatment Order

The Bill will insert a new part 8A into the Penalties and Sentences Act to provide for the establishment, imposition and management of a new sentencing order in Queensland called a Drug and Alcohol Treatment Order (treatment order).

New part 8A of the Penalties and Sentences Act will provide for the making of a treatment order.  The order is designed to facilitate the rehabilitation of offenders by providing judicial supervision combined with therapeutic treatment, to reduce the offender’s substance use.  The previous drug court demonstrated that this regime reduced the level of criminal activity associated with addiction.

Eligibility for a drug court treatment order

A treatment order may only be made for an offender if the offender has a severe substance use disorder and the disorder has contributed to the commission of an offence.

Severe substance use disorder

“Severe substance use disorder” is defined as a disorder prescribed by Regulation, or if not prescribed, as a substance use disorder estimated to be severe under the Diagnostic and Statistical Manual of Mental Disorders 5th Edition, as published by the American Psychiatric Association in 2013.

This ensures that the legislation will be able to adapt to any developments in the science surrounding the recognition and classification of disorders associated with the use of drugs or alcohol.

Types of offences

An offender may proceed through the drug court in respect of either:

  1. a summary offence; or
  2. an indictable offence, that is dealt with summarily.

Included offences

Offences involving violence may be subject to a drug court treatment order, however, as the person will be released back into the community as part of the sentence, the court must not make a treatment order if it is satisfied that the offender would pose an unacceptable risk to the safety and welfare of community members.

Excluded offences

  1. sexual assault offences,
  2. offenders who are subject to a parole order; or
  3. offenders who are serving a term of imprisonment

Balance of treatment order

A drug court treatment order comprises of two parts:

Custodial part – A term of imprisonment of up to four years which is suspended for a designated period of up to five years;

Rehabilitation part  – A period of at least two years that requires compliance with core conditions including:

  1. not commit another offence,
  2. appear before the court as and when directed;
  3. report any change in residence;
  4. report any change in employment;
  5. report to a review team member or an authorised corrective services officer as required; and
  6. to comply with every reasonable direction given by the court, a review team member, or an authorised corrective services officer.

Consequence of non-compliance with treatment order

The court must have regard to a number of considerations, including:

  1. the extent of the offender’s general compliance,
  2. the nature and seriousness of the non-compliance; and
  3. any other consideration that would make the particular order unjust in the circumstances.

Where the court is satisfied that the offender has demonstrated non-compliance with the rehabilitation part of the treatment order the court may:

  1. impose further conditions to achieve the purpose of the treatment order;
  2. require the offender to perform community service; order the person serve a period of the suspended sentence of up to seven days; or
  3. revoke the rehabilitation part of the treatment order and order that the offender serve all or part of the suspended sentence.

Recognition of compliance with a treatment order

The court may cancel either the whole or part of a rehabilitation part of the treatment order if it considers that the offender has complied or substantially complied with the treatment program and that continuation of the rehabilitation part is not necessary to achieve the purpose of the treatment order.

The court may amend the rehabilitation part by amending the conditions of the treatment order, including amending the type or frequency of alcohol or drug testing.

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.

 

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.

M1 Traffic Restrictions

Truck drivers need to be aware that from, 1 August 2017, all trucks with a Gross Vehicle Mass (GVM) over 4.5t will be restricted to travelling in the left 2 lanes in both directions between Springwood and Robina.  Penalties including fines and loss of demerit points will apply.

The restrictions are from the M1 motorway between exit 20 at Springwood and exit 82 Southbound and exit 79 northbound at Robina.  The rationale is that the measures will improve the traffic flow for the more than 152,000 vehicles using the M1 each day, particularly during the Commonwealth Games in 2018.

The Department of Transport will provide a report on the effectiveness of the measures following the Gold Coast Commonwealth Games on April 4 2018.  Queensland Trucking Association CEO, Gary Mahon is reported as saying that the measures are likely to continue beyond the Gold Coast Commonwealth Games Owner Driver News.

Affected Trucks

A truck is defined as a vehicle that weighs more than 4.5t but does not include a bus.

The 4.5t relates only to the GVM and excludes any trailer attached to the vehicle.

For more detail see Qld Transport Restrictions

Penalties

Individual – Fine of $126.00 and 3 demerit points

Businesses – Fine of $630.00

Additional measures

  1. Use of the hard shoulder for vehicles carrying athletes and officials under police escort;
  2. Reduce speed limit from Eight Mile Plains to Logan Motorway interchange from 100km/h to 90km/h
  3. Reduce from Logan Motorway interchange to Smith Street exit from 110km/h to 100km/h
  4. Additional resources for breakdowns
  5. Temporary Ramp Management.

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.

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.

Recording Private Conversations – Is it lawful?

recording private conversationsThe Moreton Bay Council recently announced that they have rolled out 330 CCTV cameras that have the capacity to record private conversations.

In 2013 the then Queensland Transport Minister sought to introduce audio recording in taxi cabs. This raises the question, “Is it ok to record other peoples conversations?”

Invasion of Privacy Act

Section 43 of the Invasion of Privacy Act provides a maximum penalty of two years imprisonment where the person uses a listening device to overhear, record, monitor or listen to a private conversation.  The legislation clearly intends that private conversations will be kept private.  There are a number of exceptions such as the unintentional hearing of a private conversation by means of a telephone.

Importantly, where the person using the listening device is a party to the private conversation the conduct can be lawful.  In some situations parties have been known to record the conversation without advising the other party.

In relation to the Council there can be no dispute that they are not a party to the conversation. Accordingly many are suggesting that the conduct is unlawful.

Communicating private conversations

The Council has suggested that they will provide the audio to the police in relevant situations.  This is again covered by the Invasion of Privacy Act.  Section 44 provides a maximum of two years imprisonment where a person communicates a private conversation…  The phone conversation would also likely be inadmissible pursuant to section 46 of the Act.

Reasonable expectation

The turning point for the council may be the issue of whether there is a reasonable expectation that the words are overheard or recorded.  The act provides the following definition of ‘private conversation’.

Any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so.

If there were clear signs indicating that conversations were being recorded, monitored or listened to, the Council may need to establish that there was no reasonable expectation of privacy.

There are difference rules for organisations and individuals.  We have all had the telemarketers run through their consent spiel.  There are also different rules throughout Australia.  While two people on a telephone in Qld might be acceptable, if one of the parties is interstate the rules can differ.  If you are considering recording a conversation, it would be prudent to seek 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.

What to consider when contesting a Domestic Violence Application

Domestic Violence

Contesting a Domestic Violence Application under Queensland’s Domestic Violence legislation can be a daunting.  You should carefully consider the Application before you decide how to respond to it.  We provide our tips for challenging a Protection Order.

Does a relevant relationship exist?

Not all relationships are protected by the Domestic and Family Violence Protection Act.  For an order to be granted the Applicant must establish that the relationship is:

  • an intimate personal relationship;
  • a family relationship; or
  • an informal care relationship.

If the Applicant can not establish this then the Court can not grant a Protection Order.

Does the application establish that Domestic Violence has occurred?

The Applicant must establish that an act of Domestic Violence has occurred.  Domestic Violence means behaviour towards another person that is abusive, threatening, coercive or controlling of the other person.

If the behaviour does not meet the threshold of Domestic Violence then the Court can not grant a Protection Order.

Does the application set out why it is necessary or desirable for an Order to be made?

If you agree that there was an act of domestic violence and that you are in a relevant relationship, you may still contest the making of a protection order.

The Applicant has to satisfy the Court that the making of a Protection Order is necessary or desirable

Are the conditions sought reasonable?

The Applicant can seek an order with the mandatory conditions, to be of good behaviour and not to commit acts of Domestic Violence.

The Applicant can also seek more restrictive conditions such as no contact direct or indirect.  They may also seek conditions  that require you to leave the family home and not return.

You should very carefully consider the conditions that are being sought and think about whether they are reasonable.  In some instances it may not be practicable to have no contact with the Applicant, for example if there is a need to see mutual children or attend a joint workplace.

In considering whether it is necessary or desirable to make a protection order the court must consider the principles set out in Section 4 Domestic and Family Violence Protection Act 2012 and whether any voluntary intervention has been entered into.

Who else does the order seek to protect?

A domestic violence application can seek to protect:

  1. the aggrieved;
  2. children who usually live with the aggrieved; and
  3. relatives and associates of the aggrieved.

A protection order can restrict contact with not only the Aggrieved but also, children, relatives and other associates.

Will a Lawyer Help?

Our lawyers have a wealth of experience in Domestic Violence matters and can provide you with pragmatic advice.  We can assist you in understanding the conditions that are being sought and appear as advocates.

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.

 

Freedom of Information Laws to be reviewed

Community Review of Freedom of Information Law

The Queensland Government is seeking input from the community on a review of the Queensland’s Right to Information Act 2009 and Information Privacy Act 2009.

History of Freedom of Information Laws

Criminal lawFollowing the Fitzgeral Inquiry (1987 – 1989), the Electoral and Administrative Review Commission recommended that Freedom of Information laws be introduced in Queensland. The Freedom of Information Act 1992 was the governments response.  It permitted access to information upon application.

In June 2008 the Solomon Report was handed down.  It proposed a difference approach, in that government bodies ought publish information unless there was a good reason not to. The response was the Right to Information Act 2009 and Information Privacy Act 2009.

Both of these Acts are an important part of Queensland’s legal framework.  They balance the need for access to government information and the rights of individuals to have information remain confidential.

Public Submissions

The Attorney-General (Qld) now seeks submissions from the public.  Any comments or submissions are to be provided by Friday 3 February 2017.

Click on the link below to access the discussion paper:

The State of Queensland (Department of Justice and Attorney-General), 2016 Consultation on the Review of the Right to Information Act 2009 and Information Privacy Act 2009.

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.

Reforms to Youth Justice Laws Brings Qld in Line With UN Convention

Youth Justice Reforms

Teenager under arrestQueensland’s 17 year old offenders are the only youths in the Country being sentenced outside the youth justice system.

By treating 17 year olds as adults in the criminal justice system, Queensland has been inconsistent not only with the rest of the country, but also in breach the United Nations Convention on the Rights of the Child.

Under proposed youth justice reforms, 17 year olds are to be considered children.  It is anticipated that all children under the age of 18 year will proceed through the Youth Justice System.  The proposed reforms are hoped to reduce the rate of recidivism by diverting the youths from the Adult system and providing assistance.

Benefits

It is well recognised amongst stakeholders that the youth justice system provides:

  1. Greater capacity for offenders to be diverted away from the Court system;
  2. Access to age appropriate education, training and programs;
  3. Age appropriate support and supervision in custody;
  4. Reduced access to the influence of adult offenders; and
  5. The benefit of sentencing principles with prioritise support and rehabilitation in the community.

Children who do not have their basic health and welfare needs being met are at a greater risk of re-offending.  Youth require greater levels of education, training and engagement in employment if they are to avoid the statistics of returning to custody. The youth justice system is better suited to meeting these needs.

Amendment to Youth Justice Act

On 15 September 2016, the Attorney General, Ms D’Ath introduced the Youth Justice and Other Legislation (inclusion of 17 year old Persons) Amendment Bill 2016.  The purpose of the Bill is to recognise that 17 year olds are youths and not adults.  Importantly 17 year olds are to be included in the upper age of a ‘child’ for the purposes of the Youth Justice Act.  The definition of a ‘child’ will now include a person under the age of 18 years.

Commencement

The Bill will commence by proclamation 12 months after passage.  The delay is to account for the need to ensure that necessary planning is undertaken to facilitate a safe and proper transition.

Application

It is envisaged that there will be broadly three categories of youth that the amendment will apply to:

  1. 17 year old charged after proclamation;
  2. 17 year olds subject to current proceedings; and
  3. 17 year olds currently serving a custodial sentence.

17 year olds yet to be charged

This group will be treated as a child for the purpose of the Act.  The traditional application of part 6, division 11 of the Act will continue to govern the principles where a juvenile offender turns 18 prior to the commencement of proceedings.

17 year olds subject to current proceedings

The Bill proposes that the Court will have a discretion as to how to deal with those who are turning 18 close the finalisation of their sentence. The new subsection 390(3) will provide a broad power for a court to make an order or give a direction of ensure that any unanticipated scenarios can be dealt with appropriately.

17 year olds service a sentence

The Bill does not interfere with Sentence Orders made prior to commencement.  It will however, provide for the administration of those orders as 17 year olds in the Youth Justice System rather than the adult system.

If a 17 year old was sentenced to an adult probation order, that order would continue. The supervision of the Order would however be administered as though it were a Youth Justice Probation Order.

Similarly, a 17 year old, sentenced to imprisonment would serve that term of imprisonment in a youth detention centre.  The detention would be subject to the relevant provisions of the Youth Justice Act.  The youth would be released on a Supervised Release Order in place of Parole and/or would transition to an adult corrective services facility on reaching a certain age.

Further Reading

Click here to read more about the Inclusion of 17- year-old Persons Amendment Bill 2016

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.

Queensland Sentencing Advisory Council

Sentencing law to be assisted by Sentencing Advisory Council

Sentencing LawSentencing law is a complex and often controversial part of the Criminal process.  In considering the competing elements of the sentencing discretion, Magistrates and Judges are often criticised as being too harsh or too lenient.

In March 2016 the Queensland Premier introduced the Penalties and Sentences (Queensland Sentencing Advisory Council) Amendment Bill into the Queensland Parliament. The purpose was to re-establish the Sentencing Advisory Council.  The new council is largely modelled on regime abolished by the former government in 2012.

Purpose

The proposed purpose of the Council is to:

  1. Ensure public confidence in the administration of justice;
  2. Improve the effectiveness of sentencing practices;
  3. Support the principles of sentencing

Functions

The primary job of the Council is two-fold.

  1. To provide information to the wider community about the sentencing process; and
  2. Obtain the communities views on sentencing and matters about sentencing.

Section 9 of the Penalties and Sentences Act 1992, relevantly provides that the Court must make it clear that the community acting through the court, denounces the sort of conduct in which the offender was involved.  The Court is often critisised as being out of touch with community expectation.  The Sentencing Advisory Committee is able to assist the Court.

The Court of Appeal may request input from the Council when delivering or reviewing a guideline judgement.  It is hoped that this will make sentencing law more transparent.

Membership

The council is to be an independent body comprised of up to 12 members.  Members are to be appointed by the Governor in Council on recommendation from the Attorney General.  Given the misrepresentation of Aboriginals or Torres Strait Islander Persons in the Judicial System, at least one member of the Council is to be an Aboriginal or Torres Strait Islander.

The Bill provides a non-exhaustive list people with experience in sentencing law including:

  1. victims of crime;
  2. crime prevention;
  3. law enforcement;
  4. criminal prosecutions;
  5. criminal defence representatives;
  6. corrective services;
  7. juvenile justice
  8. justice matters relating to Domestic and Family Violence matters.

Expectation.

Provided the Bill passes through the Parliament, expectation is that the Council will be operational in the latter half of 2016.  It is proposed that terms of reference will be issued to consider “sentencing practices associated with Domestic and Family Violence Offences.”

Further Reading

To read more about sentencing law, particuarly the Penalties and Sentences (Queensland Sentencing Advisory Council) Amendment Bill  in full go to Sentencing Advisory Council Bill

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.