If you enter a guilty plea or are found guilty after hearing, your matter will proceed to sentence. The key piece of legislation that governs the sentencing of matters is the Crimes (Sentencing Procedure)Act 1999 NSW (“the Act”).
In sentencing an offender, the Court has a range of options, depending on the maximum penalty applicable to the offence and the jurisdictional sentencing limits.
The most serious sentence that can be imposed is a sentence of full-time imprisonment. However, under s 5(1) of the Act, “A court must not sentence an offender to imprisonment unless it is satisfied …. that no penalty other than imprisonment is appropriate”. For sentences of imprisonment greater than 6 months, the Court must set a non-parole period and the balance of the sentence.
A second type of custodial sentence is called an intensive corrections order (ICO). A Court may order an offender sentenced to imprisonment for not more than 2 years, serve that sentence in the community by way of intensive correction. During an ICO the offender will be monitored by Community Corrections and subject to the Court order conditions that may involve things like: community service, curfews, surveillance or electronic monitoring, non-association conditions and a ban on the consumption of alcohol/illicit drugs. Should the ICO be breached, the State Parole Authority has authority to deal with the breach of the ICO – serious breaches often result in the ICO being revoked and the offender going into prison.
The Court also has a number of non-custodial sentencing options. A Community Corrections Order (CCO) is a Court Order with a maximum term of 3 years. The standard conditions require that the offender be of good behaviour/commit no further offences and appear before Court if required. Additional conditions may include: a curfew, community service work, rehabilitation, abstaining from drugs/alcohol and/or a supervision condition.
Conditional Release Order (CRO) is a type of Court ordered good behaviour bond with a maximum term of 2 years. The standard conditions are the same as the CCO, whilst additional conditions are similar to a CCO, with the exception of a curfew and community service. A conditional release order can be imposed with or without conviction.
The Court can also impose a fine, as either a stand-alone sentence, or on top of other sentences. It is important to note however, that a defendant cannot be fined where the charge is dismissed or a CRO has been imposed.
The Court also has the option to impose a conviction with no other penalty under s 10A of the Act.
Finally, a section 10 dismissal is when the Court finds the offence proven but dismisses the charge.
Sentencing matters can be quite complex, so consider engaging the expertise of our experienced lawyers, as Helping You is Our Business.
When it comes to fences, I often think about the great barriers built around the world throughout the course of history. For instance, The Great Wall of China was built to keep Mongolian raiders out, whilst Hadrian’s Wall in the United Kingdom, was built to keep the Picts out of Roman Britannia. Whilst in Australia, we have the Dingo Fence stretching for some 5,600 kilometres, which was built to keep the dingoes out of the better farming land.
In my work as a lawyer, however, when there is a “fencing matter” rather than involving Genghis Khan and his hordes, clans of marauding Caledonians, or a pack of howling dingoes, it usually involves a dispute between neighbours about the fence that currently exists or is to be built between their adjoining properties.
Issues that arise with boundary fences commonly are:
– that the existing fence is not on the boundary line;
– that one neighbour wants one type/style of fence whilst the other wants something different;
– that there are trees or other vegetation that need to be cleared to construct a fence; and/or
– that one neighbour is refusing to contribute or contribute equally to the construction of the fence.
The key piece of legislation that regulates dividing fences in NSW is the Dividing Fences Act 1991 (NSW) (“the Act”).
Where there is an issue about the boundary line, section 18 of the Act provides that a neighbour can give written notice to the other of intention to have the boundary defined by a registered surveyor.
Where there is an issue about the type/style/standard of the fence, section 4 of the Act sets out the standard is a “sufficient dividing fence” and outlines the various factors that are to be considered in this regard.
Where there is an issue about vegetation needing to be trimmed or removed, sections 3 and 7(3) of the Act outline the requirements for the removal of vegetation for fencing work.
Where there is an issue in terms of financial contribution, sections 6 and 7 of the Act provide that neighbours are liable to contribute in equal proportions for fencing work necessary for a sufficient dividing fence.
Resolving a fencing issue via a negotiated settlement is the ideal way to manage these types of disputes, as like it or not, you have to live next door to the person on the other side of the fence. If negotiation isn’t possible, both the NCAT and the Local Court have jurisdiction to hear these matters pursuant to section 13 of the Act.
Should you require assistance with a boundary fence matter, please call the team at Everingham Solomons because Helping You is Our Business.
Anyone who has spent time on the road would have noticed speed cameras deployed as a tool to prevent excessive speed. Sometimes people who receive speed camera tickets question the accuracy of the camera.
If a request for review of the fine by Revenue NSW is unsuccessful, the only option if the fine is still disputed, is to take the matter to Court.
Whilst it is possible to challenge the accuracy of speed cameras, it is difficult. The legislation is drafted in a way that the speed camera is presumed to be accurate. Sections 137 – 140 of the Road Transport Act 2013 NSW (“RTA”) stipulate that as long as the prosecutor provides a certificate that the speed camera was an “approved traffic enforcement device” that was “approved for speed measurement”, the reading/photographs generated by the camera is taken as prima facie evidence that the speed camera was accurate and reliable.
Under section 141 of the RTA, it is possible to rebut the presumption that the speed camera is accurate and reliable. This presumption can only be rebutted if the evidence rebutting the speed camera’s accuracy/reliability is “adduced from a person who has relevant specialised knowledge”. In plain English, the speed camera is presumed accurate unless this presumption is rebutted and to rebut it there must be an expert report/evidence supporting challenging or contradicting the accuracy of the camera.
I recently became aware of a self-represented bus driver, who was challenging a speed camera fine in the Local Court. His bus was fitted with cameras and GPS tracking which allowed him to determine the speed he was travelling at the exact time the alleged speeding offence took place. The GPS print out showed the bus was travelling below the speed limit when it was alleged he was speeding. The self-represented litigant, no doubt, turned up at Court that morning confident that he would be successful when defending the matter, after all he had a GPS print out.
Unfortunately for him, he was unaware of the expert evidence requirement imposed by section 141 of RTA to overturn the presumption that the speed camera was correct. As he had no expert report, his GPS print outs, on their own, would be insufficient to overturn the presumption that the speed camera was accurate. This is set out in Roads & Maritime Services v Noble-Hiblen [2019] NSWSC 1230.
Luckily for this bus driver, he received some pro bono advice on the day of hearing advising him of this evidentiary requirement and he was able to adjourn the matter to obtain the required expert report.
As the above example demonstrates, traffic law is often quite complex. For efficient and expert advice in traffic matters contact Everingham Solomons where Helping You is Our Business.
Under the Firearms Act 1996 (NSW) (“the Act”), to possess or use a firearm a person must be authorised to do so, by either a firearms licence or permit.
Section 8 of the Act provides a person who holds a firearms licence (“the licensee”) is authorised to possess or use a registered firearm of the kind to which their licence applies, but only for the genuine reason they have for possessing or using the firearm. It is an offence to possess or use a firearm without authorisation.
The Commissioner of Police has broad ranging powers to revoke a firearms licence via automatic, mandatory, and discretionary decisions.
Automatic Decisions
A licensee’s licence is automatically revoked by operation of law if they are subject to a firearms or weapons prohibition order (s 24(1)), a final AVO (s 24(1)) or they cease employment in their position that allowed them to have off duty possession of pistols (like armed security guards).
Mandatory Decisions
These mandatory decisions relate to armed security guards that fail to undertake required firearms training, their Security Licence is revoked under the Security Industry Act 1987 (NSW) and/or the security licensee breaks any condition of the firearms licence.
Discretionary Decisions
Under s 24 of the Act, the Commissioner can revoke a licensee’s firearms licence:
For any reason for which a licence application may be refused;
For any contravention of the Act or Firearm Regulations;
For any contravention of a condition of the licence;
If the Commissioner believes the licensee is not a fit and proper person to hold a licence;
If the Commissioner is satisfied that the licensee through either negligence or fraud has caused a firearm to be lost or stolen; and/or
For any reason prescribed in the Firearm Regulations
What are your options if the NSW Firearms Registry revokes your firearms licence?
Under s 75(1) of the Act, the revocation of a firearms licence is a reviewable decision. The first step is to request an internal review of the decision by the Firearms Registry. If this review is unsuccessful or the registry doesn’t respond within 21 days your only option is to apply to the New South Wales Civil and Administrative Tribunal (NCAT) to review the revocation decision. This will involve presenting evidence to the Tribunal as to why the revocation should be overturned.
Challenging a revocation to a firearms licence can be quite complex, so for this reason we would invite you to speak to one of our specialist team as Helping You is our Business.
Section 53 of the Road Transport Act 2013 (NSW) (“RTA”) provides “A person must not, unless exempted by the statutory rules, drive a motor vehicle on any road without being licensed for that purpose”.
This means that you must have a NSW licence to drive in NSW unless, you are exempted under the statutory rules. However, there are people driving in NSW everyday on interstate or overseas licences, so how can this be?
Regulation 96 of the Road Transport (Driver Licensing) Regulations 2017 (“RTDLR”), provides that a visiting driver licenced in another Australian jurisdiction or a foreign jurisdiction, is exempt from the requirement that they hold a current NSW driver licence. However, Transport for NSW has the power to remove these NSW driving privileges for drivers licenced interstate or overseas for various reasons outlined in 96(4) of RTDLR.
An area that can catch out drivers from outside jurisdictions, is the removal of driving privileges on the basis of loss of demerit points. If the loss of points would be enough for Transport for NSW to suspend a holder of a NSW licence, Transport for NSW have the same power to withdraw the driving privileges for a visiting driver – under regulation 96(4)(n) of RTDLR.
For NSW drivers facing the prospect of a 3-month demerit point licence suspension, they have the option to elect to be of good behaviour for a period of 12 months as an alternative to the licence suspension under – s 36(1)(a) of the RTA. Visiting drivers don’t have this option.
In a recent case a man who had previously lived in Queensland and held a QLD licence but now worked in NSW, was facing a 3-month withdrawal of his driving privileges due to demerit points incurred in NSW. Given his QLD licence, he wasn’t entitled to the good behaviour election.
To resolve this problem, he was advised to:
Attend Service NSW and attempt to apply for a NSW licence, given that he now resided in NSW.
Request that he be provided “notice of licence ineligibility” upon his application for NSW licence being refused due to the demerit points accumulated.
Elect to serve the good behaviour period as an alternative to serving the suspension under section 36(1)(b) of the RTA relying on the notice of licence ineligibility.
This resolved his problem.
Traffic law is quite a complex area of law that requires legal expertise. Given this, it makes sense to see the experienced team at Everingham Solomons where Helping You is Our Business.
An AVO is an Apprehended Violence Order. The relevant legislation that applies to AVOs is the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“the Act”).
Under the Act, there are two types of AVOs. The first and more common type is an Apprehended Domestic Violence Order (ADVO). An ADVO applies when the parties in question are in or were previously in a domestic relationship. What constitutes a domestic relationship is outlined in section 5 of the Act, but suffice to say the definition of a domestic relationship is very broad.
The second type of AVO is an Apprehended Personal Violence Order (APVO). An APVO applies when the parties in question are not connected by way of domestic relationship. A common example being two neighbours in dispute.
AVO matters are very common in the Local Court. For instance, in 2020 NSW Courts issued 37,981 final AVOs, with 33,830 being ADVOs, whilst 4,151 were APVOs. There is no doubt that an AVO can be a very useful tool to protect victims from violence. However, a short coming of the relatively easy application process for AVOs is that applications for AVOs are open to being abused. This sometimes leads to very minor incidents between parties ending up in Court, where these minor conflicts would be better resolved through less formal means.
When it comes to dealing with an AVO there are three main options. Firstly, the defendant can consent to the AVO on a “without admissions” basis. In plain English, this means agree to the AVO being made against them without admitting that they have done anything wrong.
A second option is to try to seek a mediated solution to the issue, commonly by way of written undertakings between the parties as to future conduct.
A third option is to oppose the making of the AVO and have the matter set for hearing. At the hearing it is for the applicant to prove to the Court on the balance of probabilities that he/she has reasonable ground to fear violence, stalking or intimidation on the part of the defendant. If the applicant can prove this, the AVO will be made by the Court. If the applicant can’t, the AVO application will be dismissed.
A final matter to consider upon the successful defence of a AVO is the recovery of costs. Costs in AVO matters are governed by s 99A of the Act. Costs are only to be awarded in AVO matters if the Court finds the application was frivolous or vexatious. Costs in AVO applications run by Police have further elements that must be satisfied.
If you have any AVO related queries please contact the experienced team at Everingham Solomons as 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.
The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) came into effect on 29 March 2021 and replaced the Mental Health (Forensic Provisions) Act 1990 (NSW).
There are a number of changes that this new piece of legislation introduces in relation to the previous act. This new act makes amendments and additions to the previous definitions relating to cognitive impairment and mental illness and/or mental condition, now referred to as a “mental health impairment”.
A mental health impairment is now defined as a “temporary or ongoing disturbance of thought, mood, volition, perception or memory” which “would be regarded as significant for clinical diagnostic purposes” that “impairs the emotional wellbeing, judgment or behaviour of the person.” The mental health impairment can come about due to anxiety, affective disorder, psychotic disorder or a substance-induced disorder that is not of a temporary nature.
Under section 5 of the new act, cognitive impairment is defined as “an ongoing impairment in adaptive functioning and comprehension, reasoning, judgment, learning or memory which result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind.” Cognitive impairment can relate to intellectual disability, borderline intellectual functioning, dementia, acquired brain injury, drug or alcohol related brain damage and autism amongst other causes.
Section 15 of the new act outlines a list of factors that a Magistrate may take into account in deciding whether diversion is more appropriate then dealing with the matter otherwise in accordance with the criminal law. These factors include:
• The nature of the mental health or cognitive impairment,
• The seriousness and circumstances of the alleged offence,
• The suitability of the sentencing options available,
• Any changes in the circumstances of the defendant,
• The defendant’s criminal history,
• Any previous mental health diversion,
• Any treatment plan and its contents,
• Whether the defendant is likely to endanger the safety of themselves, the alleged victim, or any other member of the public, and
• Any other relevant factor.
The intersection between mental health, cognitive impairment and the criminal law can be quite complex. Should issues relating to mental health and/or cognitive impairment arise in criminal law proceedings, 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 these issues for you because 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.
If you enter a guilty plea or are found guilty after hearing, your matter will proceed to sentence. The key piece of legislation that governs the sentencing of matters is the Crimes (Sentencing Procedure) Act 1999 NSW (“the Act”).
Under the Firearms Act 1996 (NSW) (“the Act”), to possess or use a firearm a person must be authorised to do so, by either a firearms licence or permit.