Criminal Law

Why You Should Choose Us as Your Criminal Defence Solicitors in Sydney

Criminal & Traffic Law is home to leading Sydney criminal defence lawyers and some of the best assault and domestic violence lawyers, sex crime solicitors, and drug charges lawyers in Sydney. Explore the information below and read more to find our why you should retain us.

Depending on your instructions and the case against you, we may seek to have the charges against you withdrawn or downgraded, defend the charges at hearing or trial, or obtain the most lenient penalty available if you instruct us to plead guilty.CTL1

Be assured that the criminal defence solicitor assigned to your matter has the expertise, experience and familiarity with the intricacies of the criminal justice system necessary to provide the best criminal defence possible. If you are facing a fraud charge, you will be assigned a fraud activity lawyer. If you are facing a domestic violence charge your lawyer will be have expert knowledge of the Crimes (Domestic and Personal Violence) Act 2007.  Need to speak to a sexual assault lawyer? You r lawyer will have real understanding of what you’re up against.

Where necessary, such as in Supreme Court and District Court trials, your senior criminal solicitor can recommend one of our carefully selected barristers, including QCs and Senior Counsel. We also have access to the expert opinions of impeccably credentialed biochemists, psychologists, psychiatrists and other medical specialists, as well as, DNA experts, engineers, and other criminal law experts in Sydney.

If you have been charged with any criminal offence, contact us now to speak to a senior criminal solicitor at our Sydney office.

BAIL APPLICATIONS

When a person is charged with an offence that attracts a gaol term as a penalty, he or she needs a grant of bail to maintain his or her freedom from the time
they are charged by police to the time the matter is finalised
by a court.

Bail may be unconditional or conditional, for instance, subject to reporting to police; surrendering a passport; maintaining a curfew; or paying a surety (a sum of money or title to property).

In the vast majority of matters police exercise their discretion to grant bail. If the police refuse to grant bail, the person must be brought before a court as soon as reasonably practicable, to determine the issue of whether bail should be granted.

The following factors must be taken into consideration when police or a court consider whether or not to grant bail:

-The probability the person will appear in court when required.

- The interests of the person charged.

- The protection of a particular person or persons for instance, the alleged victim, or a potential witness.

-The protection and welfare of the community.

(For more detail – See Section 32 Bail Act 1978 at the following link: http://www.austlii.edu.au/au/legis/nsw/consol_act/ba197841 )

The Bail Act stipulates that the following issues are relevant to the courts deliberation: the seriousness of the offence; the accuseds criminal history (particularly similar offences and previous breaches of bail); the accused persons community ties (relatives, employment and people in the community dependent on the accused).

The law relating to bail applications was tightened significantly in 2009 when Section 22A of the Act was introduced. This amendment to the Act effectively prohibits an accused from making more than one application for bail in the Local Court, unless fresh circumstances arise, or an application is made to the Supreme Court.  An accused person whose application for bail is refused remains in custody until their charges are finalised by a court.

The new strict laws regarding bail applications make it imperative that you retain a legal team that has intimate knowledge of this specialised area of practice, including knowledge of the latest interpretations of the Bail Act, 1978, by the High Court of Australia and NSW Court of Criminal Appeal.

Significant amendments to the New South Wales Bail Act in are soon to become law.

We are expert advocates in sentencing hearings, with a reputation for obtaining the most lenient penalties available for our clients.

If a court finds an offence proved it may impose any of the following penalties, ranging from least serious to most serious: -

Dismissal under section 10 Crimes (Sentencing Procedure) Act 1999

The court has the discretion to either dismiss a charge or infringement unconditionally under section 10(1)(a) of the act, or on condition that the person charged enters a good behaviour bond under section 10(1)(b) of the act.

Having a matter dismissed under section10 and avoiding a conviction can be critical for people working in certain professions and industries, including the security industry, and for people intending to travel to some countries.

Having a major traffic offence, such as drink driving/PCA, drive while suspended and drive while disqualified, dismissed under section 10 means that the person charged is not disqualified from holding a licence.

If a section 10 dismissal is obtained in relation to a traffic infringement, the RMS cannot impose demerit points for the infringement.

Conviction without other penalty

The court may record a conviction for an offence, but impose no other penalty under section 10A Crimes (Sentencing Procedure) Act 1999.

Fine

A conviction is recorded when a court imposes a fine. A fine may be imposed in addition to a good behaviour bond or term of imprisonment.

The court may take into account a defendant’s financial circumstances when considering the size of a fine. A court cannot impose a fine above the maximum stipulated for an offence in the relevant legislation.

Good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999

A court may impose a good behaviour bond under section 9 instead of imprisonment. The bond may be unconditional or subject to a wide variety of conditions, such as the person being supervised by the Probation & Parole Service, having to attend counselling or rehabilitation, or refraining from consuming alcohol or prohibited drugs.

A court may impose a section 9 bond without obtaining a pre-sentence report from the Probation and Parole Service.

A court cannot impose a good behaviour bond as well as a community service order for the same offence.

Good behaviour bond under section 11 Crimes (Sentencing Procedure) Act 1999

A good behaviour bond under section 11 is usually imposed where the person convicted has a drug or alcohol dependency, to allow time (usually a number of months) to prove themselves before a final sentence is imposed by the court.

Community Service Order

Where a court imposes a custodial sentence it may order that the sentence be served by way of a community service order, where the defendant is ordered to complete a number of hours community work. The work often involves maintenance of playing fields, parks and gardens or cleaning graffiti.

A court may not impose a community service order in addition to a good behaviour bond for the same offence.

Before imposing a Community Service Order, the court must first obtain a Pre-Sentence report from the Probation and Parole Service to assess the person’s suitability to do the work.

Suspended Sentence

When a court imposes a custodial sentence it may suspend the serving of the sentence on condition the person enters a good behaviour bond under section 12 Crimes (Sentencing Procedure) Act 1999. The bond may contain a variety of conditions, often including accepting the supervision of the Probation and Parole Service. The effect of such an order is that the person does not have to go to gaol unless they breach the good behaviour bond.

A court cannot suspend a sentence longer than 2 years. A court may not impose a section 12 bond and a Community Service Order for the same offence.

A court will usually obtain a Pre-Sentence report from the Probation and Parole Service before imposing a suspended sentence.

Intensive Correctional Order

A court may impose a custodial sentence but order that it be served by way of an Intensive Correctional Order under section 7 Crimes (Sentencing Procedure) Act 1999. A report from the Probation and Parole Service assessing the person’s suitability for an Intensive Correctional Order must be obtained before a court can impose such an order.

An Intensive Correctional Order will typically involve a community service component as well as involvement in programs organised by the Probation and Parole Service that address the person’s offending behaviour.

Full time custodial sentence

Even if the maximum penalty for an offence includes a term of imprisonment, a court cannot impose a full time sentence unless satisfied that no other alternative sentence is appropriate.

A court cannot impose a sentence of imprisonment longer than the maximum stipulated in the legislation relevant to the offence.

If a sentence is over 6 months, the court must set a non-parole period, the part of the sentence that must be actually served in prison, as well as a parole period, during which the person can be granted conditional liberty in the community. The court cannot set a parole period longer than 1/3 the length of the non-parole period, unless the court can be convinced that ‘special circumstances’ exist.

A Local Court cannot impose a custodial sentence longer than 2 years. However, where a person is facing sentencing for more than one offence, a Local Court may accumulate sentences up to 5 years.

DEFINITIONS AND PENALTIES FOR SOME COMMON OFFENCES

The successful defence of the charges listed below involves introducing evidence that creates a reasonable doubt in the court’s mind that the accused person either did not do the act described, or did the act without the necessary state of mind:

Affray is committed when a person uses or threatens unlawful violence towards another and the conduct would cause a person of reasonable firmness present at the scene to fear for their safety.

Where two or more persons use or threaten unlawful violence it is their conduct together that is considered.

A threat, for the purposes of affray, cannot be made by the use of words alone.

No “person of reasonable firmness” need be, or be likely to be, present at the scene.

The maximum penalty for affray is 10 years imprisonment. However, if dealt with in the Local Court affray attracts a maximum penalty of 2 years imprisonment.

Assaults

An assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence.

Assault can be committed recklessly, where the person forsees the likelihood of inflicting injury or fear, but ignores the risk.

It is not an assault where a threat causes apprehension that violence may be inflicted at some future time.

Maximum penalty is 2 years imprisonment. However, when dealt with in the local court assault attracts a maximum penalty of 12 months imprisonment and/or a fine of up to $2200. In the vast majority of cases of assault are dealt with in the Local Court.

For the prosecution to prove assault occasioning actual bodily harm the court must be convinced beyond a reasonable doubt that there was an assault (see definition) that caused injury or harm that “need not be permanent but must be more than merely transient or trifling”.

Maximum penalty is 5 years imprisonment, but when the charge is dealt with in the Local Court it attracts a maximum penalty of 2 years imprisonment and/or a fine of up to $5500. As with ‘assault’, ‘assault occasioning actual bodily harm’ is dealt with in the local court unless the DPP or the person charged elects to have the matter dealt with in the District Court before a judge and jury.

Reckless wounding attracts a maximum penalty of 7 years. Reckless wounding committed in the company of others has a maximum penalty of 10 years imprisonment (section 35 Crimes Act 1900).

Recklessly causing gbh has a maximum penalty of 10 years imprisonment. Recklessly causing gbh in the company of others has a maximum penalty of 14 years imprisonment (section 35 Crimes Act 1900)

This offence involves a person wounding or causing grievous bodily harm to another person with the intent of causing grievous bodily harm to the other person.

Maximum penalty is 25 years imprisonment (section 33 Crimes Act 1900).

A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

Self defence is a complete defence to charges of affray, assault, assault occasioning actual bodily harm, reckless wounding, cause grievous bodily harm (gbh), manslaughter and murder.

A person carries out conduct in self-defence if the person believes the conduct is necessary:

- To defend himself or herself or another person, or

- To prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

- To prevent property from unlawful taking, destruction, damage or interference, or

- To prevent criminal trespass to any land or premises or to remove a person

committing any such criminal trespass, and

the conduct is a reasonable response in the circumstances as he or she perceives them.

If you are nominated as the defendant in a provisional or interim Apprehended (Domestic or Personal) Violence Order, your choices are basically threefold: – contest the making a final order; consent to the making of a final order, without making any admissions as to the allegations contained in the AVO; or seek variation to the order.

After a final AVO has been made by a court, it is possible to seek an order of the court varying the order, or revoking the order.

The court will make an Apprehended Violence Order if it finds, on the balance of probabilities, that the applicant has reasonable grounds to fear, and in fact fears, the commission of a personal violence offence, or conduct that amounts to stalking or intimidation.

The offence of contravening an AVO is committed when the defendant nominated in an AVO knowingly contravenes a prohibition or restriction in the AVO.

Maximum penalty is imprisonment for two years and/or a $5500 fine.

DRUG OFFENCES

A person found guilty of a charge of possess prohibited drug is liable to a maximum penalty of 2 years imprisonment and/or a $2200 fine.

The successfully prosecute a charge of possess prohibited drug, the prosecution must prove beyond reasonable doubt that the accused person knew of the existence of the drug in his or her custody and control.

The prosecution must also prove that the amount of the drug is not “so small or so dispersed or mixed up with other material that the substance cannot in practice be used in the way contemplated by the act” (Williams v R (1978) 140 CLR 591).

Possession of more than the trafficable quantity of a prohibited drug is deemed to be possession for the purposes of supply, meaning a person allegedly in possession of more than a trafficable quantity is charged with the more serious offence, ‘supply prohibited drug’. However, the supply charge will be dismissed if defence counsel can prove either: (1) – That the person did not have possession for the purposes of supply; or (2) – In relation to some drugs, that the drugs were prescribed by a medical practitioner, nurse, midwife, dentist, or vet.

The offence of supply a prohibited drug attracts different penalties according to the type and amount of drug involved. Supplying a prohibited drug to a person under the age of 16 years attracts more serious penalties.

Possession of more than the trafficable quantity of a prohibited drug is deemed to be possession for the purposes of supply, meaning a person allegedly in possession of more than a trafficable quantity is charged with the more serious offence, ‘supply prohibited drug’. However, the supply charge will be dismissed if defence counsel can prove either: (1) – That the person did not have possession for the purposes of supply; or (2) – In relation to some drugs, that the drugs were prescribed by a medical practitioner, nurse, midwife, dentist, or vet.

Supplying up to an indictable quantity of a prohibited drug attracts a maximum penalty of 15 years imprisonment and/or a $220,000 fine (or 2 years and a $5500 fine if dealt with in the Local Court).

Supplying more than the indictable quantity of a prohibited drug attracts a maximum penalty of 15 years imprisonment and/or a $220,000 fine, and cannot be dealt with in the Local Court.

Supplying more than a commercial quantity of a prohibited drug attracts a maximum penalty of 20 years imprisonment and/or a $385,000 fine.

Fraud involves a person either intentionally or recklessly using deception to dishonestly:

- obtain property belonging to another, or

- obtain a financial advantage, or

- cause a financial disadvantage

“Dishonest” means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

Maximum penalty is 10 years imprisonment.

The offence of goods in custody involves the alleged offender having a thing in his or her custody, the custody of another person, or in or on premises, where the thing in question is reasonably expected of being stolen or otherwise unlawfully obtained (section 527C Crimes Act 1900).

The maximum penalty for goods in custody is 12 months imprisonment and/or an $1100 fine where the thing is a motor vehicle or motor vehicle part or vessel or vessel part. The maximum penalty is 6 months imprisonment in the case of any other thing.

Intimidation is conduct that amounts to harassment or molestation of a person, or an approach that causes a person to fear for his or her safety. To prove the offence of intimidation the prosecution must prove that the accused person acted with the intention of causing the alleged victim to fear physical or mental harm.

The maximum penalty for intimidation is 5 years imprisonment and/or a fine of $5,500.

Resist Officer involves a person using force to oppose some lawful course of action which a police officer is attempting to pursue whilst in the execution of their duty.

Robbery involves using a threat or force to put the person in possession of property in fear and unlawfully taking the property, with the intention of permanently depriving the person of the property.

The maximum penalty for robbery is 14 years imprisonment. If dealt with in the Local Court the maximum penalty is 12 months imprisonment and/or a $5500 fine.

Aggravated robbery involves robbery where corporal violence is used, or actual bodily harm is intententionally or recklessly caused, or a person is deprived of their liberty.

Maximum penalty is 20 years imprisonment.

Armed robbery involves robbery whilst being armed with an offensive weapon.

The offence attracts a maximum penalty of 20 years imprisonment.

Robbery in company attracts a maximum penalty of 20 years imprisonment.

Robbery that involves causing wounding or grievous bodily harm (gbh) to any person attracts a maximum penalty of 25 years imprisonment.

Sexual assault (or rape) involves a person having “sexual intercourse” with another person without the consent of the other person and with knowledge that the other person does not consent (section 61I Crimes Act 1900).

“Sexual intercourse”, includes the penetration of female genitalia or the anus of any person by any body part or object, as well as oral sex (section 61H Crimes Act 1900).

The maximum penalty for sexual assault is 14 years imprisonment.

Aggravated sexual assault involves sexual assault where:

- Actual bodily harm is intentionally or recklessly inflicted, or

- Actual bodily harm is threatened, or

- The offence is committed in the company of another person or other people, or

- The alleged victim is under the authority of the alleged offender, or

- The alleged victim is under the age of 16 years, or

- The alleged victim suffers from a physical disability, or

- The alleged victim suffers from a cognitive impairment, or

- The alleged offender breaks and enters a dwelling house or other building with the intention of committing the offence, or

- The alleged offender deprives the alleged victim of his or her liberty (section 61J Crimes Act 1900).

The maximum penalty for aggravated sexual assault is 20 years imprisonment.

Stalking includes following, watching, or frequenting the vicinity of a person, or approaching a place where the person lives, works, or frequents, with the intention of causing the person to fear physical or mental harm (sections 7 and 13 Crimes (Domestic and Personal Violence) Act 2007.

The maximum penalty for stalking is 5 years imprisonment and/or a fine of $5,500.