Crime

 

APPREHENDED VIOLENCE ORDERS (OR A.V.O.’S)

There are two types of Apprehended Violence Orders:

  1. Apprehended Domestic Violence Orders (ADVOs): Being an order that protects a person from violence, threats and harassment from a spouse, de facto partner, ex-partner, family member, carer or person, who generally lives in the same home. These are applications generally made through a Police Officer, and are sometimes accompanied with substantive criminal charges.
  2. Apprehended Personal Violence Orders (AVPOs): An order protecting a person from violence, threats and harassment from anyone you are not in a domestic or family relationship with, and have never been in a relationship in. These are applications generally made through a private solicitor.

AVO’s are a preventative measure from having someone stalk, intimidate, assault, threaten, harass, molest or interfere with your day to day life, including a person the protected person is in a relationship with. The words stalk, intimidate  etc. are interpreted very widely.

The Criminal Law Centre can assist with all, aspects of any AVO proceedings .We are, having regard to the substantial experience of Paul Wiggins (i.e. exceeding 33 years as an admitted legal practitioner and over 4,000 court attendances) is able to negotiate or make representations with the Police (if you are a defendant) to have less onerous orders placed against you or attempt to have them withdrawn.

If you are a defendant in any AVO, proceedings call us on (02) 9891 4200 to discuss how we can assist you.

Breaching an AVO is a criminal offence.

 

APPEALS

The Criminal Law Centre can assist with all appeals, whether they are appeals from the Local Court to the District Court or from the District Court/Supreme Court to the Supreme Court or the highest court in the state, the Criminal Court of Appeal.

Severity Appeals, Conviction Appeals and All Grounds Appeals

There are a few types of appeals. Generally speaking, when appealing from the Local Court to the District Court, depending on whether you have pleaded guilty or not in the Local Court, you can appeal on:

  1. A Severity Appeal basis (that the penalty you received was too severe);
  2. Conviction Appeal (appealing a conviction in the Local Court), or
  3. All Grounds Appeal (a combination of the above).

Note with the above appeals, they must be filed within 28 days from the date you are convicted in the Local Court. If the appeal is filed outside the 28 days, leave (or permission) will need to be sought to the court, explaining why the appeal was filed out of time.

Annulment Applications

If you do not attend court, the court can convict you in your absence, including imposing a fine. The Criminal Law Centre can assist with any Annulment Application. There are multiple grounds in which you can conduct Annulment Applications, including mistaking the date you were supposed to attend court, or illness. In these situations, we can advise you whether there is any merit in running the Annulment Application.

Supreme Court Appeals and Court of Criminal Appeals

When there has been a misapplication or jurisdictional error of law, the Court of Criminal Appeal (CCA) hears appeals from the District Court and Supreme Court.

The effect of these appeals, similar to appeals from the Local Court to the District Court, can be:

  • Reducing your penalty/time in gaol
  • Overturning or quash your conviction
  • And in some instances, if there is a Crown appeal, increase your penalty/time in gaol

 

Paul Wiggins at The Criminal Law Centre provides sound and measured advice based on over 33 years experience and having conducted over 4,000 court appearances as to whether there are any grounds available to you on appeal.

 

ASSAULT

There are different types of assault. They include.

  • Common Assault
  • Assault Occasioning Actual Bodily Harm
  • Wound or grievous bodily harm with intent
  • Reckless grievous bodily harm or wounding

In NSW, common assault is considered the least serious assault. Its maximum penalty is 2 years imprisonment. There are a number of penalties available to the court besides a full time gaol imprisonment when considering penalty. The difference with common assault and other assaults is that the injury generally is not too serious.

Examples of common assault are:

Raising your fist of threatening someone (no physical contact is required for an assault to occur)

Physically striking someone without causing actual bodily harm.

Mere use of words may in certain circumstances amount to a common assault. Threats made over the telephone have been considered to more than mere words. It all depends on the circumstances of each individual case. Mere silence, as in being involved in a telephone call and not speaking may also constitute a common assault.

You should consider whether there are any one or more defences available to you if you are charged with any type of assault type of offence (including any form of violence). Defences that should be explored are:

  • Self defence/defending another person or property
  • A case of mistaken identity
  • Necessity
  • Consent from the complainant/victim
  • Complete lack of intention

The ramifications of an assault conviction can be serious. Call us today for a free appraisal of your case.

There are different types of assault:

  • Common Assault
  • Assault Occasioning Actual Bodily Harm
  • Wound or grievous bodily harm with intent
  • Reckless grievous bodily harm or wounding

In NSW, common assault is considered the least serious assault. Its maximum penalty is 2 years imprisonment. There are a number of penalties available to the court besides a full time gaol term when considering penalty. The difference with common assault and other assaults is that the injury, with any common assault is, generally less serious.

Before you engage any criminal defence lawyer please  note that these types of matters are , potentially serious in the extreme, and MUST  be negotiated (where relevant and permissible at law)   and ultimately resolved with great care that gives you the opportunity to utilise the wisdom and substantial experience only available to you by a very senior specialist criminal defence lawyer.

If you are charged or approached by any prosecuting authority please Call us on (02) 9891 4200 to discuss how we can assist you.

 

BAIL APPLICATIONS (INCLUDING WEEK ENDS AND PUBLIC HOLIDAY BAIL APPLICATION APPEARANCES)

There have been significant changes to the law in relation to the granting of Bail in recent times.

When considering whether you have sufficient grounds for bail being granted, Paul Wiggins trading as the Criminal Law Centre takes into account all factors that are relevant to you.

When making a bail application, the court considers whether the offence is a Show Cause Offence. If it is a show cause offence, the court must refuse bail unless the accused person shows cause why his or her detention is not justified.

If the accused person demonstrates why their detention is not justified, the Magistrate or Judge must make a bail decision in accordance with the Unacceptable Risk Test. To consider the Unacceptable Risk Test, the court takes into account, if you are granted bail:

  • Whether you will fail to appear at any future court dates
  • If you will commit another offence whilst on bail
  • Is there a danger to the safety of the victims or the community
  • And where applicable, if any witnesses or evidence will be tampered with

Following this test, the court then decides whether your risk can be mitigated (or reduced) by bail conditions.

The court considers your bail in accordance with whether you are a ‘flight risk’ and considerations in protecting the community, and where applicable, any complainants or victims.

The court has the power to:

  • Grant bail conditionally (i.e. subject to court ordered conditions that must be complied with whilst on bail) or bail can be granted unconditionally (i.e. without conditions other than you attending court)
  • Dispense with bail (where a person is released from custody without any conditions)
  • Refuse bail.
  • Committing an offence whilst on bail is very serious.

If your matter is pending in court, and you are incarcerated we can make an application for bail for the purposes of having you reside at a residential rehabilitation facility if you have any underlying drug or alcohol problem. Generally, certain conditions must be met, including you having a placement available to you

Call us on (02) 9891 4200 to discuss how we can assist you.

We are also available to assist you at any weekend or public holiday bail court that generally sits at Parramatta on the weekends and public holidays.

The Lindt Cafe siege inquest made recommendations regarding bail.

The learned Coroner recommends “that the DPP [i.e.the office of the Director of Public Prosecutions] develop a policy for the overseeing lawyers’ exercise of the discretion not to oppose bail that takes into account the seriousness of the offences involved; the experience of the prosecutor appearing; and the views of the police officer in charge of the investigation, insofar as those views are based on facts relevant to bail determinations.”

See paragraphs 31 and 187 of the report of the “Inquest into the deaths arising from the LIndt Cafe’ siege”. Findings and recommendations, The State Coroner of New South Wales, May 2017

Will bail become more difficult to obtain as a result of the findings of the learned Coroner?

 

CHILD PORNOGRAPHY AND CHILD ABUSE MATERIAL

The law is covered by legislation from both the State of NSW and the Commonwealth of Australia Parliaments.

At times people are charged with both State and Commonwealth offences.

The Commonwealth offences include; using a postal service for child pornography or child abuse material, possessing, controlling, producing, supplying or obtaining child pornography or child abuse material for use through a postal or similar service, using a carriage service to access, transmit (or cause to be transmitted to him or her self), make available, publish, distribute, advertise, promote or solicit child pornography or child abuse material, possessing, controlling, producing, supplying or obtaining child pornography or child abuse material for the use by the person charged or under certain circumstances another person.

It is also an offence for an I.S.P. (or internet content host) who must (at law) be aware that a service they provide can be used to access material they believe, on reasonable grounds, is either child pornography or child abuse material AND to not advise the Australian Federal Police (i.e. the A.F.P.) of these details, is an offence under certain circumstances.

Importing or exporting child pornography or child abuse material is also an offence pursuant to the Commonwealth Customs Act of 1901.

The State offences include; using a child to produce child abuse material, producing child abuse material, disseminating child abuse material and, possessing child abuse material.

Under the relevant State Act,

disseminate child abuse material, includes:

(a)  send, supply, exhibit, transmit or communicate it to another person, or

(b)  make it available for access by another person, or

(c)  enter into any agreement or arrangement to do so.

possess child abuse material includes, in relation to material in the form of data, being in possession or control of data

produce child abuse material includes:

(a)  film, photograph, print or otherwise make child abuse material, or

(b)  alter or manipulate any image for the purpose of making child abuse material, or

(c)  enter into any agreement or arrangement to do so.

In some instances, offences of this type can be finalised in the Local Court unless there has been an election by the prosecutor to finalise the matter in the District Court.

If the matter is finalised in the District Court, harsher penalties can be imposed than the penalties that can be imposed in the Local Court.

With both Commonwealth and State matters the Courts, generally adopt a scale to determine or categorise child abuse material. It varies from images (including still or moving pictures, animated images or cartoons) of children partly clothed, to children in sexually suggestive poses to being engaged in more serious or degrading activities.

Before you engage any criminal defence lawyer please  note that these types of matters are serious in the extreme, and MUST  be negotiated (where relevant and permissible at law)   and ultimately resolved with great care that gives you the opportunity to utilise the wisdom and substantial experience only available to you by a very senior specialist criminal defence lawyer.

If you are charged or approached by any prosecuting authority please using a Call us on (02) 9891 4200 to discuss how we can assist you.

 

DRINK DRIVING

All drink driving offences carry mandatory and minimum disqualification periods, whether it be a Novice Range Drink Drive, Low Range PCA, Mid Range, or High Range PCA.

For repeat drink drivers, gaol sentences are often seriously considered by magistrates and judges, given the risk they present to other drivers.

Drivers in the Low Range PCA are those who have a blood alcohol concentration between 0.05 to 0.079. Offences in this range do not carry a gaol sentence. They do, however, have a 3 month minimum disqualification period with an automatic and not maximum 6 months disqualification period. For second or subsequent offenders, the minimum disqualification period is doubled to 6 months, with an automatic disqualification period of 12 months.

Drivers in the Mid Range PCA are those who have a blood alcohol concentration between 0.080 to 0.14. Offences in this range carries a maximum gaol term of 9 months, and for second or subsequent offences, 12 months. A minimum 6 months driver licence disqualification period is applicable for first time offenders, but the minimum disqualification period is doubled for second or subsequent offenders.

The High Range PCA category is the highest level of drink driving. Not only does it carry a maximum gaol term of 18 months for first offenders (and 2 years gaol term for second/subsequent offenders). From 1 February 2015, new laws passed which now requires offenders to fit alcohol interlock devices to their vehicles. An interlock is an electronic breath testing device connected to the ignition of a vehicle. It prevents the vehicle from starting if alcohol is detected. The court will order offenders to complete their licence disqualification period and time to drive one designated vehicle with an interlock device installed in it.

The offender must pay for the costs of installation, maintenance and removal of the interlock device.

A mandatory interlock device order is also imposed when a person has committed a second or subsequent offence for any other alcohol-related major offence (including refusing to submit to a breath analysis).

If you are charged or approached by any prosecuting authority please call us on (02) 9891 4200 to discuss how we can assist you.

DRINK DRIVING

All drink driving offences carry mandatory and minimum disqualification periods, whether it be a Novice Range Drink Drive, Low Range (Prescribed concentration of alcohol) or, PCA, Mid Range, or High Range PCA.

For repeat drink drivers, gaol sentences are often seriously considered by magistrates and judges, given the risk they present to other drivers.

Drivers in the Low Range PCA are those who have a blood alcohol concentration between 0.05 to 0.079. Offences in this range do not carry a gaol sentence. They do, however, have a 3 month minimum disqualification period with an automatic and not maximum 6 months disqualification period. For second or subsequent offenders, the minimum disqualification period is doubled to 6 months, with an automatic disqualification period of 12 months.

Drivers in the Mid Range PCA are those who have a blood alcohol concentration between 0.080 to 0.14. Offences in this range carries a maximum gaol term of 9 months, and for second or subsequent offences, 12 months. A minimum 6 months driver licence disqualification period is applicable for first time offenders, but the minimum disqualification period is doubled for second or subsequent offenders.

The High Range PCA category is the highest level of drink driving. Not only does it carry a maximum gaol term of 18 months for first offenders (and 2 years gaol term for second/subsequent offenders). From 1 February 2015, new laws passed which now requires offenders to fit alcohol interlock devices to their vehicles. An interlock is an electronic breath testing device connected to the ignition of a vehicle. It prevents the vehicle from starting if alcohol is detected. The court will order offenders to complete their licence disqualification period and time to drive one designated vehicle with an interlock device installed in it.

The offender must pay for the costs of installation, maintenance and removal of the interlock device.

A mandatory interlock device order is also imposed when a person has committed a second or subsequent offence for other alcohol-related major offences (including refusing to submit to a breath analysis). 

If you are charged or approached by any prosecuting authority please call us on (02) 9891 4200 to discuss how we can assist you.

 

FIREARMS

Firearm and weapons offences are considered as being very serious in NSW. Most firearm offences carry, potentially substantial gaol terms, particularly firearms that are unregistered, or are loaded and carried in public. The Firearms Act 1996 governs how people possess, store, buy, use, manufacture and supply firearms, including ammunition. The harsh laws are a result of the activities of the former Prime Minister John Howard and his efforts in overhauling the gun laws following the Port Arthur massacre.

Imitation firearms are also seriously considered by police due to their physical appearance. Permits are required for those wishing to possess or use them.

A firearm is defined as “a gun or other weapon, that was/is capable of propelling a projectile by means of an explosive”, including blank firearms and air guns. Imitation or replica firearms that are not produced and identified as a children’s toy, are treated as seriously as real firearms.

If the person who has possessed the firearm did not know or could not reasonably be expected to have known that the firearm was unregistered and was not the owner at the time of the offence, they may have a defence available to them.

Importing firearms and manufacturing firearms also serious criminal offences.

The Firearms Registry of the NSW Police controls licensing issues including the; issuing, suspension, variation and cancelation of licences and the issuing of certain permits including a permit to acquire a firearm. They also administer the; Suspension, Refusal, and Revocation of licences and certain Rights of Review available. Under certain circumstances some decision made by the Police in relation to Firearms, including licensing issues can be challenged in the NSW Civil and Administrative Tribunal (or NCAT).

Paul Wiggins at The Criminal Law Centre provides sound and measured advice based on over 33 years experience and having conducted over 4,000 court appearances as to whether there are any grounds available to you on appeal.

If you have any problems with Firearms please call us on (02) 9891 4200 to discuss how we can assist you.

FRAUD

Fraud offences are related to dishonesty. The Parliaments of both the Commonwealth of Australia and the State of NSW have enacted fraud offences. To a certain degree it depends on the type o fraud.

For Centrelink, Medicare, or GST fraud type offences, they are prosecuted by the Commonwealth Director of Public Prosecutions despite, at times the NSW police laying the charges.

In state offences, a person who, by any deception or dishonesty obtains property belonging to another person, or obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud.

The offence of Goods in custody is a less serious offence. Here the police only need to establish that a “reasonable suspicion” exists that goods (including cash monies) were stolen or otherwise unlawfully obtained. A statutory defence is available to any charge of Goods- in- custody.

Paul Wiggins at The Criminal Law Centre provides sound and measured advice based on over 33 years experience and having conducted over 4,000 court appearances as to the issues you need to consider and any evidentiary problems you may encounter if you are charged with any fraud.

Please call us on (02) 9891 4200 to discuss how we can assist you with any fraud or any other offence involving allegations of dishonesty.

 

INDECENT ASSAULT

Indecent assault means committing an act of indecency on or in the presence of another person.

What the police or the Crown need to prove to establish the offence is:

  1. That you assaulted the complainant/victim
  2. That the assault was indecent,
  3. There was no consent of the complainant/victim
  4. That you knew the complainant or victim did not consent, or you knew that there was a possibility that the complainant/victim was not consenting but you continued indecently assaulting them, or you did not even think about whether the complainant/victim was consenting or not (in short, you did not care whether they were consenting).

In our experience, indecent assault can be:

  • Touching someone’s breasts, the outside of their anus, vagina or penis
  • Kissing someone, or even fondling someone’s ears
  • Rubbing against another person

Paul Wiggins at The Criminal Law Centre provides sound and measured advice based on over 33 years experience and having conducted over 4,000 court appearances regarding any aspect of this type of any indecent assault or similar type of offence.Please call us on (02) 9891 4200 if we can be of assistance to you.

 

 

DESTROYING OR DAMAGING PROPERTY

ALSO KNOWN AS INTENTIONALLY OR RECKLESSLY DAMAGING PROPERTY

OR IN EARLIER TIMES MALICIOUS DAMAGE TO PROPERTY

The offence of destroying or damaging property is generally dealt with in the Local Court. Because it is a tabled offence, it is possible, under certain circumstances to have this type of matter dealt with on indictment in the District Court before a Judge and a jury.

Malicious Damage of Property can be defined as intending to cause damage to the property, or an intending to destroy it. Damage can mean defacing, marking, removing the property or even causing it to be broken. It can be as simple as kicking a door or punching a wall. The damage does not have to be permanent.

The intention behind damaging the property can be either reckless or intentional. If you are reckless with your intention, you would have regard to the potential damage you could have caused to the property, but continued in your actions.

If you have been charged with malicious damage, the prosecutor will need to prove:

  1. The damage or destruction of the property was caused by you
  2. The property was owned by another person or co-owned by you and another person.
  3. The intention of causing the damage (it cannot be an accident) beyond a reasonable doubt.

 

Prosecutions have occurred for factual situations including ; spitting inside a police station on heavy duty furniture that was not marked and removing air from a tyre (that could be easily remedied by driving to a pump and replenishing the air: particularly when no damage is made to the tyre.)

Please call us on (02) 9891 4200 if we can be of assistance to you.

 

MALICIOUS WOUNDING

This offence requires one to have a specific intention of wounding or causing grievous bodily harm on another person.

What is wounding? Wounding is defined as the breaking of the upper and lower layer (sometimes also referred to as the dermis) of the skin. Causing ‘grievous bodily harm’ is a legal term for very serious injuries including permanent or serious disfigurement. Grievous bodily harm should be differentiated from simply a fracture in a bone where the injury is not life threatening.

Because there is a specific intent for this offence, the prosecutor or police sometimes lay a back up charge of reckless wounding generally when they cannot prove there was an intention to cause an injury which would amount to grievous bodily harm.

Paul Wiggins at The Criminal Law Centre provides sound and measured advice based on over 33 years experience and having conducted over 4,000 court appearances regarding any malicious wounding or similar offences aspect of this type of any indecent assault or similar type of offence.

Paul Wiggins at The Criminal Law Centre by having over 33 years experience and having conducted over 4,000 court appearances can assist you Please telephone him on (02) 98914200.

 

 

ROBBERY

Robbery is the taking of property belonging to a person, or money from a business with violence or threatening violence.

The threat of violence can be by using words, or by signalling to a person.

In circumstances where an offensive weapon, instrument, or if it is in the company of another person is involved, the maximum penalty increases .

An offensive weapon is defined under the Act as:

(a)  a dangerous weapon, or

(b)  any thing that is made or adapted for offensive purposes, or

(c)  any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm.

The penalty can increase when the offence is aggravated.

These offences are generally dealt with in the District Court. In instances where the value of the property is under $5,000, we have been successful in having these matters finalised in the Local Court, thereby significantly reducing the applicable penalty.

Paul Wiggins at The Criminal Law Centre can assist you if you are charged with any robbery matter or any dishonesty matter associated with any violence. Please telephone us on (02) 98914200

 

SEXUAL ASSAULT (RAPE)

Having sexual intercourse with a person without their consent is an extremely serious offence. Where there are circumstances of aggravation, namely:

(a)  at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(b)  at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

(c)  the alleged offender is in the company of another person or persons, or

(d)  the alleged victim is under the age of 16 years, or

(e)  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(f)  the alleged victim has a serious physical disability, or

(g)  the alleged victim has a cognitive impairment, or

(h)  the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or

(i)  the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

The penalties increase.

A defence to this type of offence  may be consent or a mistake of age.

However, consent can be revoked even without there being any verbal communication. If an alleged victim was intoxicated when consent occurred , the courts may not ultimately regard it as formal consent.

At the time of the offence, the accused must have known there to be consent or a reasonable belief that there is consent. If the alleged victim has told the accused that they are above the age of 16, that is a defence that is closely considered by the court. In instances where the complainant has acted above what is perceived to be her age, that is also carefully considered by the court.

Please telephone us on (02) 98914200 if we can assist you.

 

SUPPLY PROHIBITED DRUGS

People, who have been charged by Police with supplying drugs, have their matters dealt in the Local Court or District Court, generally depending on the weight of the drug.

The police do not have to catch you in the act of actually supplying the drug. If there is drug paraphernalia such as clear plastic resealable bags, tick book, a number of mobile phones, electronic scales and calculators, this is sufficient for a circumstantial case for the Police to attempt to prove supply.

In some instances, if the weight of the drug is equal to or above the trafficable weight of that type of drug, your possession of the drug will be considered what is commonly referred as a ‘Deemed Supply’ – i.e. you had possession of the prohibited drug for the purposes of supply, unless:

  • You can prove the prohibited drug was in your possession for a purpose other than for supply, or
  • except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner

Supply Prohibited Drug can also occur by way of other definitions, i.e. agreeing to supply, selling, distributing, offering to sell, having it in your possession for supply, or causing prohibited drugs to be transferred.

Police also lay Possess Prohibited Drug charges as back-up charges to supply prohibited drug.

There are a number of defences available to you if you have been charged with supply or possess prohibited drug. Call us on (02) 9891 4200 if you require any further assistance.

 

 

 

 

 

 

 

 

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