We recently looked at the licensing and permit requirements to obtain a firearm. Following on from that, we now take a look at firearms offences.
We warn you firearms offences carry heavy penalties including substantial imprisonment sentences. As with obtaining a firearm, you must have a genuine reason for possessing one. Genuine reasons include being the owner of a rural property or memberships of shooting clubs.
It is an offence to possess a firearm without a licence or permit. If found to have a firearm without a proper licence or permit, you face a maximum penalty of five (5) years imprisonment.
If you are found with a “Prohibited Firearm” you face a prison sentence of fourteen (14) years. “Prohibited Firearms” can include pump action shotguns and machine guns and many more. You can also be charged for supplying, acquiring, possessing or using a firearm that is unregistered. Unregistered firearms will incur a maximum prison term of five (5) years and supplying, acquiring, possessing or using prohibited firearms has a maximum of fourteen (14) years prison sentence.
You can also face terms of five (5) to fourteen (14) years in prison if you contravene a Prohibition Order. Prohibition Orders are made if you are deemed an unfit person to possess a firearm.
There are also offences for a failure to ensure safekeeping of firearms. These offences range from failure to keep firearms away from a person who is not authorised to use them and failing to store firearms correctly and securely. Penalties range from $2,200.00 up to two (2) years imprisonment for this type of offence.
These are just the penalties with respect to holding firearms, the penalties for the misuse of firearms or using firearms in the commission of a crime are much much harsher.
Firearm offences can be quite complex. If you require legal advice with respect to a firearm offence, contact Everingham Solomons because Helping You is Our Business.
Assault is a very common crime dealt with by the Courts, but it is often misunderstood by the lay person.
Originally at common law, there were two separate offences, assault, and battery. An assault being where one person causes another to fear the imminent infliction of unlawful force, whilst battery involved the actual infliction of unlawful force. Today these two previously separate offences have collapsed into one, codified in the Crimes Act 1900 (NSW).
The most frequent charge of assault before the Courts is common assault, found in section 61 of the Act. It carries a maximum penalty of 2 years in prison and/or a fine of $5,500. To be guilty of common assault the police must prove:
• That you caused another person to fear imminent and unlawful violence, or that you made physical contact with another person, and
• That the other person did not consent, and
• That your actions were intentional or reckless.
The question then arises just how imminent does the threat of violence need to be to constitute an assault?
The case of Zanker v Vartzokas (1988) 34 A Crim R 11, considered this point. It involved a young woman accepting a lift from a man she didn’t know. The man sexually propositioned her whilst driving and the woman asked to be let out of the vehicle. The man increased the speed of the vehicle and said “I am going to take you to my mate’s house. He will really fix you up.” Such was her fear, the woman opened the door of the vehicle and leapt out whilst it was travelling at around 60 kilometres per hour.
The driver was charged with assault. It was accepted by the Court that his words and acceleration of the vehicle were enough to cause the woman to fear for her future safety – when they arrived at the mate’s house. But was this fear immediate enough to constitute assault?
The Court held that the feared injury or harm need not be immediate, it was enough that the threat of harm operated immediately upon the victim’s mind. The defendant was convicted of the assault. The law around assault can be quite complex. Should you be charged with an assault, it is important to ensure you are represented by someone with knowledge and expertise in this area.
Our experienced team at Everingham Solomons can look after you in this regard as Helping You is Our Business.
In NSW a demerit point system applies to traffic offences. Different categories of drivers have differing numbers of points on their licence. For instance, a professional driver has 14 points, unrestricted drivers have 13 points, P2 licence holders have 7 points and drivers on their P1 licence or learner’s licence have 4 points.
The demerit point system works by allocating demerit point penalties for different types of driving offences. If the driver accumulates more demerit points than allowed based on their category of licence, within a three-year period, their licence will automatically be suspended.
The length of a demerit point suspension depends upon the amount of points accumulated in the 3 year period. For professional or unrestricted licence holders, demerit point suspensions can range from 3 to 5 months suspension, whilst restricted licence holders (P and L platers) face a standard 3 month suspension.
In rural areas a licence suspension can have serious consequences in relation to employment and family life. For this reason, many people on an unrestricted licence choose to serve a 12 month period on a “good behaviour” licence rather than serve the mandated suspension period.
A good behaviour licence will give the driver a further two demerit points for a 12 month period. If the driver exceeds this 2 demerit point limit during this 12 month period of good behaviour, the suspension period will then be double the original suspension imposed. For this reason, a good behaviour licence is sometimes known colloquially as “double or nothing” licence.
Whilst it is not ideal to be charged with driving offence whilst on a good behaviour licence, it is possible to challenge the matter in Court. If a driver is found not guilty of the offence, no demerit points will apply and they will be able to keep their licence.
Alternatively, in some limited situations, it may be possible to enter a guilty plea and have the Court deal with the matter leniently and not record a conviction for the offence. No conviction means no demerit points accrue and no suspension from driving.
Traffic law can be quite a complex area and thus it is important to ensure you are represented by someone with thorough knowledge of how the system works. If you have any traffic related queries please contact the experienced team at Everingham Solomons as Helping You is our Business.
The phrase above isn’t an introduction to a joke, but rather the exact scenario in Darby v Director of Public Prosecutions [2004] NSWCA 431.
Mr Darby was standing outside a nightclub in Sydney. A plain clothes police officer and his drug detection dog, Rocky, were walking past on their way to enter the club. As Rocky walked past Darby he began sniffing the air and then walked up to and placed his nose on Darby’s pocket. Rocky’s actions in placing his nose on Darby’s pockets, involved him “bunting and ferreting” Darby’s pocket and genital areas. Police subsequently searched Darby and found him to be carrying drugs.
The crux of the matter was whether Rocky’s actions constituted a search, and if so, did the police have “reasonable suspicion” to conduct the search, as any search conducted before having reasonable suspicion would be illegal, and the drugs found during this search could be excluded as inadmissible evidence in Court. Thus much turned on whether Rocky “searched” Mr Darby or not.
At first instance, the Magistrate found that Rocky’s actions constituted a search of Mr Darby, the search was illegal as it was not based on reasonable suspicion, and the drugs found on Darby during the search were held to be inadmissible evidence. Consequently, the charges were dismissed.
The DPP appealed the decision of the Magistrate to the Supreme Court of New South Wales. Here O’Keefe J found that the actions of Rocky were not a search but rather identification and this identification gave police reasonable suspicion to search Darby.
Mr Darby appealed this decision to the New South Wales Court of Appeal. Darby’s counsel raised the point that Rocky’s actions of “ferreting and bunting” constituted an assault and battery and thus Rocky’s actions were illegal.
In a majority decision (2 -1), the Court of Appeal upheld the decision of the Supreme Court. It was held unanimously by the Court of Appeal that using a dog to sniff in the vicinity of a person for the purpose of drug detection does not constitute a search. However, in his dissenting judgment, Giles JA held that the actions of Rocky in bunting Mr Darby constituted battery and thus were unlawful.
Today most police powers can be found in the Law Enforcement (Powers and Responsibilities) Act 2002. Should you have any criminal law matters, please feel free to contact our experienced team of solicitors at Everingham Solomons because Helping You is Our Business.
Did you know that for certain traffic and parking offences committed within a school zone you can incur an additional demerit point?
So not only will you incur the demerit points for whatever offence you committed, you may get an additional point for committing the offence in a School Zone. If that’s not enough, the fines that you will face are substantially higher for offences committed in a School Zone.
Take for example a Class A vehicle caught speeding, less than 10/km over the speed limit. This offence would usually get you a $121.00 fine and one demerit point. This offence committed in a School Zone would be a $200.00 fine and two demerit points.
So what are school zones and when do they apply?
Well the simple answer is they are the immediate area surrounding all NSW schools that are in effect when the lights flash. Typically, and for the majority of NSW Schools, School Zones are in effect between the hours of 8.00am – 9.30am and 2.30pm – 4.00pm on school days. School days are Monday – Fridays excluding Public Holidays and publicly notified school holidays for government schools.
However, there are some schools in NSW that have different hours of operation than the ones mentioned above. If you are worried about how you will be able to tell if a school zone is operational, these select Schools have signs that make it clear the hours in which the school zone is in effect.
Be careful though! On days such as pupil free days, where the children are not necessarily at school, these school zone speed limits can still apply.
At Everingham Solomons our team can offer advice and representation with respect to licencing matters and traffic offences because Helping You is Our Business.
“Life in the fast lane” is the title of one of the Eagles’ biggest hits from the 1970s. Unfortunately however, it is also a turn of phrase that can be used to describe the driving habits of many drivers.
If you have, to quote Meatloaf, been driving “like a bat out of hell” and had your licence suspended, in certain circumstances you are able to appeal a licence suspension made by either Transport for NSW (TfNSW) or the Police. Examples of appellable decisions include:
– TfNSW licence suspensions for exceeding the speed limit by more than 30 but less than 45 kilometres per hour;
– Police on the spot licence suspensions for exceeding the speed limit by more than 45 kilometres per hour; and
– TfNSW decisions to suspend P1 or P2 provisional drivers licence for loss of demerit points.
An appellant only has 28 days from receiving the suspension letter from TfNSW to lodge an appeal. The appeal form can be obtained from the Local Court registry or Local Court website. If you do not lodge your appeal within the 28 day time limit, you will be prohibited from appealing and will have to serve the suspension.
You must show the Court that circumstances exist that justify the lifting or varying of the suspension. Generally, appellants need to show:
– that they are of good character and thus a fit and proper person to hold a licence;
– that they require their licence for work and/or family purposes;
– that their driving behaviour does not expose the community to an excessive risk; and/or
– that there are other exceptional circumstances that are relevant to the appeal.
To help in this process it is advisable to compile a number of strong references that attest to your good character, including a reference from your employer explaining your need for a licence in your job. You will also need to complete the Traffic Offenders Intervention Program to demonstrate a willingness to improve future driving behaviour.
If you have a licence issue that you need help with please contact Everingham Solomons because Helping You is Our Business.
Mobile Drug Testing (MDT) has become common procedure when motorists are pulled over for a random breath test.
Some illicit substances can stay in your system for weeks after you use them and as such, drug driving offences are becoming more common.
MDT utilises technology that can detect the presence of illegal drugs such as ecstasy, cannabis, cocaine and methamphetamine. Most Police vehicles now have the capacity to test for these illicit substances roadside by way of an oral fluid swab.
If your roadside test is positive, you will be required to attend a police station or mobile drug testing vehicle to give a second sample. The second sample will then be sent to a laboratory for analysis. If this test is positive you will then be charged. One of the most common drug driving offences is driving with an illicit drug present in oral fluid, blood or urine.
A first time offender will likely be given a penalty notice (fine) of $572.00 and a three (3) month suspension, however you will not be required to attend Court. A subsequent offence will incur much higher penalties and you are required to attend Court to have your matter heard. Fines of up to $3,300.00 may apply with your licence being disqualified for a minimum 6 month period.
The other common offence is driving under the influence of alcohol or another drug. This offence is far more serious and as such imposes much harsher penalties. First time offenders will receive a minimum disqualification period of twelve (12) months and fines of up to $3,300.00. Further, this offence can be subject to a term of imprisonment.
Subsequent offences can incur fines of up to $5,500.00, a disqualification period the court decides appropriate (but which is not capped) and a term of imprisonment of up to two (2) years.
Due to the serious nature of these offences, and the risk of imprisonment, if you are charged with drug related driving offences, we would suggest that you obtain legal advice as soon as possible.
At Everingham Solomons our team can offer advice and representations with respect to licence suspensions and disqualifications because Helping You is Our Business.
The Wiggles are entertaining the kiddies, there is peace in the backseat and you just have to pop in to pay for petrol, surely its ok to leave the children for just a couple of minutes?
We hear stories of people leaving their children in the car all the time and some of the tragic consequences that can arise when they do. But is it an offence to leave the children in the car? Well, yes it certainly can be.
The Legislation that deals with these circumstances is the Children and Young Persons (Care and Protection) Act 1998 (NSW). Under this legislation, it is an offence for a person to leave a child or young person unsupervised in a motor vehicle in circumstances where:
• The child or young person becomes or is likely to become emotionally distressed, or
• The child’s or young person’s health becomes or is likely to become permanently or temporarily impaired.
Fines of up to $22,000.00 apply if you are found guilty of this offence.
Further, if a child is injured or endangered as a result of being left unsupervised in a motor vehicle, you can be charged under Criminal Law. These offences vary, but you may be charged with offences such as, abandonment of a child and causing grievous bodily harm. These offences are very serious and if convicted, you may face a lengthy term of imprisonment.
So think twice before popping to the shops or paying for that fuel, because little lives are in your hands and the consequences of this decision can be devastating.
Everingham Solomons have Solicitors with a wide range of knowledge of the Law, from traffic infringements to negligence, no matter your legal problem, we have the expertise to help because Helping You is Our Business.
The recent case that has been reported regarding Matthew Leveson whose body has been found in the National Park south of Sydney, raises many interesting legal questions but not as many answers.
The facts in short are that in 2007 Matthew Leveson was killed and Michael Atkins was charged with his murder. Atkins was tried and in 2009 he was found not guilty of that murder.
There was subsequently a Coronial Inquest and Atkins refused to give evidence, as he is able to do, presumably on the basis that the evidence he gave may incriminate himself. The Coroner, to force Atkins to give evidence, subsequently gave him a certificate under section 61 of the Coroner’s Act, which means that evidence he gives cannot be used against him in any criminal proceedings.
In October 2016, Atkins gave evidence, however a lot of what he said, by his own admission, was untrue. This could have opened him up to being charged with perjury as the section 61 certificate only protected him from any murder charges.
Atkins then said to the Police, if you indemnify me from any charges for perjury I will take you to the body of Leveson.
There was subsequently a lot of a discussions between the Coroner, the NSW Attorney General, the Police and the family of the deceased. It was agreed that Atkins would show the Police where the body was, but only on the basis that he would not be charged with perjury.
Atkins subsequently showed the Police where the body was and it was exhumed a couple of weeks ago.
The question is, can Atkins be put back on trial for his involvement in the killing of Leveson? There would need to be fresh and compelling evidence that is admissible, that shows that Atkins was responsible for his death.
Knowledge of the place of the body would not be sufficient as he may have discovered it whilst bushwalking or by some other cause. Atkins DNA on Leveson would also not be enough, as they knew each other well and you would expect to find Atkins DNA on the body.
A farfetched example of what might be fresh and compelling evidence is, if a gun was found with the body and it was established that the cause of death was a shot from that gun. Further there would need to be fingerprints on the gun of Atkins. That may be fresh and compelling evidence.
What happens next, from a legal perspective, may not be fresh, but it will be compelling.
At Everingham Solomons we have the expertise and experience to assist you because Helping You is Our Business.
In NSW it is an offence to drive a motor vehicle on any road without being licensed for that purpose.
NEVER LICENSED
If you drive a motor vehicle on a road without having held a licence of any kind in Australia for the previous 5 years, you have committed the offence of driving while never licensed.
For a first offence the maximum penalty is a fine of $2,200. For a second or subsequent offence the maximum penalty is a fine of $3,300 or imprisonment for a period of 18 months or both.
DRIVE WHILE SUSPENDED OR DISQUALIFIED
Your licence can be suspended by the Roads and Maritime Service (RMS) for example for speeding or accumulation of demerit points whereas licence disqualification is a penalty imposed by the court for a traffic related offence. To drive while disqualified is to contravene a court order and is the more serious of the two offences.
For a first offence the maximum penalty is a fine of $3,300 or imprisonment for 18 months or both and a minimum disqualification period of 12 months. For a second or subsequent offence the maximum penalty is a fine of $5,500 or imprisonment of 2 years or both and a minimum disqualification period of 2 years.
If you have been charged with driving without a licence the Solicitors at Everingham Solomons can assist you in preparing and presenting your case to obtain the best possible result because Helping You is Our Business.
We recently looked at the licensing and permit requirements to obtain a firearm. Following on from that, we now take a look at firearms offences.
Assault is a very common crime dealt with by the Courts, but it is often misunderstood by the lay person.
