Schoolies week legal issues can impact your future.

Dancing, drinkingIt is that time of year again when school leavers get the chance to celebrate their graduation at the annual ‘Schoolies’ festival. Although we are hopeful that it is a week of fun, laughter and celebration we understand that there may be some schoolies that face legal issues.  Some schoolies week legal issues can have a real and significant impact on your future.

With a number of arrests already made over the first part of the week, we are here to provide advice on your rights and possible outcomes of common legal issues you may face.

Common ‘on the spot fine’ Offences

We understand that many schoolies are under 18 years of age however under Queensland Law you are still considered to be an adult and will be treated the same by the courts.

If you are under 18, albeit the temptation, it is illegal to use or make a fake ID’s. Large monetary fines will be issued on the spot and your ID will be confiscated. These include but not limited to:

  • Using a fake ID – $378.00;
  • Lending your ID to a friend – $630.00.

We all know alcohol plays the main role at schoolies and the majority of the festival are on the streets and beach. These areas are categorised as a public place by law. If you are caught drinking alcohol in a public place you will be issued with an on the spot fine of $126.00. This fine will be increased if you are under the age of 18 to $378.00. Please be wary this will include holding a drink for your friend.

We advise you to consume all alcohol within your apartments or licenced venues.

Serious Criminal Offences

On a more serious note and circumstances where you can be brought before the Court are for drug-related offences. Common offences include:

  1. Possessing a dangerous drug (eg. cannabis, MDMA, ecstasy pills, methyl amphetamine);
  2. Supplying a dangerous drug;
  3. Possession of utensils used for consuming illicit drugs (eg. Pipes, bongs, needles and grinders).

These are serious criminal offences and can range in penalties from fines to imprisonment. Engaging a solicitor who is familiar with this area of law and an experienced advocate on these Magistrates Court matters will enable you to receive a sentence far less serious than if you were to appear self-represented.

More importantly, given schoolies are only 17 and 18 years of age, the effects of a criminal conviction can be extremely detrimental. A criminal conviction may be recorded in relation to any matter before the court. The Magistrate has a discretion whether to record a conviction after hearing submissions by both the Prosecution and the Defence. It is vital to have an advocate on your side to elaborate on any mitigating factors and target the key issues to the Magistrate.

Recording a conviction can affect:

  1. Employment opportunities;
  2. Travel arrangements; and
  3. The ability to obtain various licences (blue card etc.).

Don’t let a mistake ruin your life, we are here to support you every step of the way.

Your rights

The starting point is that you have the right to remain silent regardless of whether you have been placed under arrest or not.

Remember:

  1. If the Police approach you on the street or during the beach party, you do need to provide them with your name and your address. If you do not comply with this direction you may be breaking the law;
  2. The Police must have a ‘reasonable suspicion’ that you’re breaking the law, have broken the law, or are about to break the law before placing you under arrest or detaining you for the purpose of a search. You are not required to provide your phone or passcodes unless they have a warrant;
  3. You are not required to attend the Police Station unless you are under arrest;
  4. You should never participate in a Police interview unless you have contacted your lawyer or family/friend. We advise strongly to contact your lawyer or family/friend once arrested. The Police are required to oblige to the same as this is a right under the law;
  5. If you obstruct Police in the course of their duty, this can lead to a criminal offence.

We are experienced in the above and many other criminal matters. We can provide legal advice throughout each step of the process including but not limited to:

  1. Your arrest;
  2. Attendance at the Police Station to provide an interview;
  3.  Sentencing options.

Our role is to answer any questions you have about your criminal matter and make the process less stressful, expedient and deliver the best possible outcome.

If you have been convicted of an offence whilst attending schoolies or you require a lawyer to attend a police interview, please contact Gatenby Criminal Law without delay on (07) 55800120 or send us a message online.

About the Author.

Sam RigbySam Rigby is a Criminal Lawyer at Gatenby Criminal Lawyers.  He is available to discuss any issues that might arise over the Schoolies festival.  You can contact us on 0477800880 or book an appointment at our office on (07)55800120.

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.

 

Sentencing Advisory Council – Intermediate Sentencing Options and Parole

Criminal lawOn 26 October 2017, the Sentencing Advisory Council received Terms of Reference from the Attorney General regarding “community-based sentencing orders, imprisonment and parole options”.  At the core of the sentencing process is the effective rehabilitation, reintegration and supervision of prisoners released into the community.  Other than those serving a life sentence, there must be an acknowledgment that at some point an offender will be released back into the community.  Parole is crucial in reducing the risk of re-offending by those under supervision, prior to the end of their sentence.

Sofronoff Report

The terms of reference are in response to the recommendations in the 2016 Queensland Parole System Review Final Report undertaken by the new president of the Court of Appeal, Walter Sofronoff.  The examination of the parole system in followed widely published media reports of the alleged murder of Elizabeth Kippin by a man on parole.

Sentencing Advisory Council terms of reference

During the 18-month review, the Sentencing Advisory Council will look at recommendations 2–5 of the Sofronoff Report:

  • Recommendation 2: Court ordered parole should be retained.
  • Recommendation 3: A Court should have the discretion to set a parole release date or a parole eligibility date for sentences of greater than three years where the offender has served a period of time on remand and the Court considers that the appropriate further period in custody before parole should be no more than 12 months from the date of sentence.
  • Recommendation 4: A suitable entity, such as the Sentencing Advisory Council, should undertake a review into sentencing options and in particular, community-based orders to advise the Government of any necessary changes to sentencing options.
  • Recommendation 5: Court ordered parole should apply to a sentence imposed for a sexual offence.

Legislation

The review will consider the relevant legislation, including

  1. Penalties and Sentences Act 1992; and
  2. Corrective Services Act 2006

Consultation

As part of the review, The Queensland Sentencing Advisory Council will consult with:

  1. Members of the public;
  2. the judiciary;
  3. legal profession;
  4. victim of crime groups;
  5. prisoner advocacy and support groups; and
  6. relevant government agencies.

Key Dates

  1. consultation paper and call for submissions – 2018:
  2. The Queensland Sentencing Advisory Council is to report back by 30 April 2019.

 

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.

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.

 

Proposed penalties for driving offences leading to death or serious injury

The Queensland government is currently considering introducing a new mid-range driving offence between the existing Criminal Code offence of Dangerous Driving, and the TORUM offence of Driving without Due Care and Attention offence.  The proposed offence will include a circumstance of aggravation for offending drivers who cause death or grievous bodily harm in the commission of the offence of Driving without Due Care and Attention, where they were driving whilst unlicensed or their license was suspended, or disqualified.  The proposal follows the Coroners recommendations in the matter of Audrey Anne Dow.

Inquest into the death of Audrey Anne Dow

Audrey Anne Dow passed away at Mackay Base Hospital on 31 July 2013, from injuries sustained in a motor vehicle accident. The collision occurred when Aaron John Kite crossed over the continuous double centre line and collided head-on with Ms Dow’s vehicle. Mr Kite was disqualified from driving at the time of the collision.  Mr Kite was fined $4000 for the offence of driving without due care and attention.  He was again disqualified from holding or obtaining a drivers license.

The Coroner David O’Connell examined whether the available offences applicable to the circumstances of the incident should be reviewed.  He delivered his findings of inquest on 6 March 2015.

In particular the Coroner O’Connell determined that:

Clearly the law in Queensland needs to change to allow for a mid-range offence. In addition it may be appropriate that the present driving laws be amended to have a specific circumstance of aggravation for driving without due care and attention where the offending driver causes grievous bodily harm or death; and where they were driving while either unlicensed, suspended, or disqualified.

Careless Driving

The offence of careless driving of motor vehicles, is less serious than the criminal offence of Dangerous Operation of a motor vehicle. In order to make out the offence, the prosecution must prove that a person drove without due care and attention or without reasonable consideration for other road users.

It is suggested that effect could be given to the coroner’s recommendation by amending section 83 of the TORUM to create a circumstance of aggravation (punishable by a higher maximum penalty) where the careless driving caused the death of or the grievous bodily harm to another person.

A further aggravated penalty could apply where the driving caused the death of or the grievous bodily harm to another person and at the time of the driving, the offender had been disqualified from driving or was unlicensed to hold a driver license.

Proposed mandatory minimum licence disqualification

The changes include proposed mandatory minimum licence disqualification periods and an increase to the maximum penalty for offences causing death or grievous bodily harm.

Careless Driving causing death or GBH

  • Current max penalty – $5,046 or 6 months imprisonment (3 demerit points).
    • No minimum licence disqualification period.
  • Proposed max penalty – $10,092 or 12 months imprisonment (3 demerit points) and
    • Minimum licence disqualification period of at least 6 months.
  • Proposed max penalty (with circumstances of aggravation) – $20, 184 or 2 years imprisonment and
    • minimum licence disqualification of at least 6 months.

Dangerous Driving causing death or GBH

  • Current max penalty – 10 years imprisonment; and
    • minimum licence disqualification period 6 months
  • Proposed max penalty -10 years imprisonment; and
    • minimum licence disqualification period of at least 12 months
  • Current max penalty (with circumstances of aggravation) – 14 years imprisonment; and
    • minimum licence disqualification period 6 months
  • Proposed max penalty (with circumstances of aggravation) -14 years imprisonment; and
    • minimum licence disqualification period of at least 12 months.

Are you facing charges relating to dangerous driving or careless driving? Contact the traffic law experts at Gatenby Criminal Law today on  (07) 5580 0120 or contact us online.

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.

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.

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.

Domestic & Family Violence Protection Bill 2016

DV LAW SET TO BE STRENGTHENED AND PENALTIES INCREASED.

Domestic Violence Law

Domestic Violence LawOn 16 August 2016, the Minister for Child Safety and Minister for the Protection of Domestic and Family Violence introduced the Domestic and Family Violence and other Legislation Amendment Bill.  When introducing the new Domestic Violence Law the minister noted that during 2016, there had been 9 coronial investigations into the deaths that had occurred in domestic or family relationships in Queensland.

It was said that the purpose of the amendment was to:

  1. Better protect and support victims of Domestic and Family Violence;
  2. Hold perpetrators of Domestic and Family Violence accountable; and
  3. Provide police and the Courts with improved tools to save lives and protect victims.

National Scheme

The Bill enables Queensland to participate in the National Domestic Violence Order Scheme. This scheme has been agreed to by COAG.  One of the Key findings from the Coronial Inquest into Luke Batty’s death was the failure by counsellors, police, courts, medical practitioners and others to share information.  This Bill seeks to enable the sharing of information between key Government and non-government entities.

Currently the Act provides that DVO made anywhere in Australia or New Zealand are recognised and enforceable in Queensland. Such recognition is provided that the Aggrieved manually registers their order with a Magistrate Court in Queensland. This requirement will be done away with.  The proposal is that all jurisdictions will:

  1. Enjoy automatic recognition of interstate orders;
  2. Treat the contravention of and interstate DVO as if it were a Queensland DVO;
  3. Recognise and interstate disqualification such as cancellation of a weapons licence;
  4. Allow for the exchange of information.

Section 169J of the new domestic violence law will override the existing principles and rights under the Criminal Law (Rehabilitation of Offenders) Act 1986. It shall enable information to be shared, notwithstanding the conviction having been spent.

Grounds for Protection Orders

Domestic Violence is defined in Section 8 of the Domestic and Family Violence Protection Act. It includes the phrase ‘has committed domestic violence‘.  It is believed that this has created a misapprehension that an act of physical violence must occur before a protection order can be obtained.  The new domestic violence law clarifies that a Court may issue a DV order on the basis that the victim has been threatened or has a fear that the Respondent will commit an act of domestic violence.

Police Protection Notices

The 2012 amendments to the Act introduced Police Protection Notices.  Currently the legislation permits only the alleged victim of Domestic and Family violence to be protected. The Bill expands police powers to include the victim’s children, relatives and other associated people on the Notice.

The new domestic violence law widens the operation of the notice. It expands the conditions which may be included.  Presently, police may only include two (2) conditions. They may do so only if, they are at the same location as the Respondent. The current domestic violence law permits conditions:

  1. that the Respondent not commit acts of Domestic Violence; and
  2. a 24 hour cool down condition.

Police will be able to include extra conditions.  Included is the power to:

  1. remove alleged offenders from the family home until a Court Hearing.
  2. prohibit the respondent from having contact with the victim;
  3. prohibit the respondent from having contact with their children.

Police Protection Orders are enforceable in the same way as Domestic Violence Orders.  Respondents will commit an offence if they breach a condition that the Police Officer has told them about.  The breach will occur, even if they have not been served with a copy of the Order.

The maximum penalty for breaching a Police Protection Order or Release Condition is to be increased to three years imprisonment or 120 penalty units.

Duration of Court Protection Orders.

Currently, under section 97 of the Domestic and Family Violence Protection Act, Protection Orders are made for a period of two years. The Bill expands the operational period by setting an expectation that orders will be for a minimum of five  years from the date the PO is made. A Court may only make a PO for a period of less than five (5) years if it is satisfied that there are reasons for doing so.

If the Court does not specify a time frame the PO is held to be in operation for a period of five (5) years from the date the PO is made.

Courts will continue to have to consider what conditions are necessary and desirable to protect the Applicant.

The new domestic violence law will make Queensland objectively the toughest, compared to other jurisdictions, which have the following periods:

  • South Australia – Indefinite Order or until discharged, must wait twelve (12) months before application;
  • New Zealand – Indefinite Order or until discharged;
  • ACT – Two (2) years unless exceptional circumstances require longer period;
  • NSW – Court to determine, or one (1) year if no determination;
  • Western Australia – Court to determine or two (2) years if no determination;
  • Victoria – Court to determine, nil default period;
  • Tasmania – Court to determine, nil default period;
  • Northern Territory – Court to determine, nil default period.

Compliance with ‘Voluntary’ Intervention Order.

The proposed domestic violence law clarifies the weight that a Court is to attribute to an Offenders participating in a voluntary intervention order.  Presently, Courts are required to take into account such participation in deciding whether to make an Order and its duration.  Under the amendment the Court will still be entitled to take into account a Respondents compliance with an Intervention program, but the Court must not refuse to make an Order, or vary an Order merely because the Respondent has complied.

Conversely the Court is required to specifically take into account a Respondents failure or non-compliance while on the Intervention program.

The Bill will remove the word ‘voluntary’ from the definition. This will reflect that Intervention Orders are not voluntary and carry the weight of a Court Order.

Further Information

To read the new Bill click on the attached link Domestic Violence Law 2016 or to discuss how these changes may apply to your situation, contact our lawyers experienced in domestic violence cases today.

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.