Zoe’s Law

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthNew South Wales is the first state of Australia which has introduced Laws that makes it a criminal offence to cause the loss of an unborn child.

The legislation came into effect in late March and includes two new offences.

The first is a stand-alone offence which makes it a crime to cause the loss of a fetus. Previously, NSW laws only recognised the loss of an unborn child as an injury to the gestational parent. Now, there is a separate charge for the loss of a fetus.

This new law will be used in circumstances where the parent survives but loses an unborn child because of a crime being committed. This will now apply to a range of crimes including driving offences, bodily harm offences and the like.

This offence can carry a punishment of five (5) years to twenty-eight (28) years imprisonment, depending on the circumstances of the offence.

The second offence will be charged when a gestational parent is killed because of a crime. The punishment for this offence will be an additional three (3) years in prison (added to the sentence for killing the parent).

It is important to note that a person can only be charged with causing the loss of a fetus in circumstances where the fetus is at least 400g in weight or once the gestation period exceeds 20 weeks.

The new legislation also means that family members will also be able to submit victim impact statements to the Court addressing the loss of the unborn child. Victim impact statements are used by the Court when determining what sentence is appropriate for an offender.

The NSW Government have also announced a bereavement payment of $3,000.00 to be paid to the family of the victim/s if a person is charged with one of these offences.

For all your legal needs contact Everingham Solomons because Helping You is Our Business.

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All I Want for Christmas is You

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthIf you want them for your own…… more than they could ever know…… then you should know there has been recent changes in sexual consent Laws in NSW.

NSW Parliament has recently passed consent reforms to assist with the prosecution of sexual offences in NSW Courts in attempt to clarify and make the approach more “common sense”.

So what are the changes?

The new reforms require for there to be consent to sexual activity, a person must now expressly say or do something to communicate consent.

It further puts the onus on the parties to do or say something to find out if the other person consents to sexual activities.

The reforms aim to overcome Defendants of sexual assault charges from being able to suggest they have ‘reasonable grounds’ to believe that the other person had consented to the sexual activity, without taking steps to establish consent. Defendants will now be required to prove they took steps to ascertain that consent was given by the other person.

Under the new law, a person cannot reasonably believe that the other person has consented simply because they did not say “no”.

The legislative reform does not amend the requirement that consent must be free and voluntarily given. Nor does it stop a person from withdrawing their consent at any time.

And just as a brief reminder while we are on the topic of consent, the legal age of consent for sexual activity in NSW is 16 years. A person cannot give consent if they are under that age. A person also cannot give consent if they are asleep, unconscious, drunk or affected by drugs.

If you require legal assistance, contact the Solicitors at Everingham Solomons because Helping You is Our Business.

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The Unwelcome House Guests

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthKnock Knock,
Who’s there?
The Police.
The Police who…..Oh.

Despite the terrible, knock knock joke above, there are times when the Police are legally allowed to enter your home without an invitation. And sometimes they don’t even knock!

The Legislation that gives Police their power of entry is the Law Enforcement (Powers and Responsibilities) Act 2002.

The Legislation allows legal entry to a property in the following circumstances:
1. By invitation.
2. In an emergency.
3. In the event of a breach of the peace.
4. To arrest or detain a person.
5. To exercise a warrant.

By invitation

It is not necessary for more than one occupant to extend an invitation into the house. If one occupant allows entry, and Police suspect that the safety of one occupant is at risk, they are able to stay, despite the lack of invitation from other occupants.

Remember however, if the Police are invited into your home, and they see something illegal, that gives them the power to search the premises. This may lead to further issues for you, so be careful if you extend the invitation.

In an emergency

Police may enter a property if they believe that a person has sustained significant physical injury or there is an immediate risk of significant physical injury. They must only enter if they have reasonable grounds to believe that.

In the event of a breach of the peace

If there is or is likely to be a breach of the peace the Police may enter a Property. They can also enter if it is necessary to end or prevent a breach of the peace.

To arrest or detain a person

Police are allowed to enter a property to carry out an arrest. They can do this with a warrant, or in circumstances where they reasonably believe a person avoiding detainment may be.

To exercise a search or arrest warrant

It should be noted that the Police can carry out a search warrant without you being home, pending the terms of the warrant. This kind of warrant is referred to as a covert warrant, and they must be given the specific covert powers when the warrant is granted.

But unlike those pesky house guests that just won’t leave, the Police are required to only stay as long as is reasonably necessary for them to carry out their specific duties.

Contact Everingham Solomons if you need assistance with the police because Helping You is Our Business.

National Firearms Amnesty

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthRecently, the Federal Government announced a permanent Australian-wide firearms amnesty, commencing on 1 July 2021. The amnesty will allow a person to produce illegal or unregistered firearm or firearm related item for registration, sale or destruction without penalty. The process of producing firearms for sale or destruction, can be done anonymously.

Items for surrender can be produced to your Local Police station or to a participating licenced firearms dealer.

Should you wish to surrender a firearm or related item/s for destruction, there is no cost to do so.

There is also the option to surrender your firearm with the view to registering it and adding it to your licence. This can be done at the Police station or at a licenced firearms dealer as well. There are some fees that are associated with this including registration fees and fees for a replacement (once updated) licence. There is no guarantee that the firearm can be registered, but the Police or your firearms dealer can provide further details on the requirements.

You may also be able to enter into a private sale arrangement to sell the firearm to a Licenced Firearms dealer. This will have to be negotiated between the dealer and yourself, but the amnesty makes provisions for this.

The Police and registered dealers will also accept the surrender of any registered firearms that are no longer required or wanted.

Don’t forget to book in for an appointment in advance with the Police or firearms dealer, because if you get caught with the unregistered firearms, fines and penalties will apply!
For help with any firearm offences, contact Everingham Solomons because Helping You is Our Business.

Firearms: To hold and protect

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthWe 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.

Click here for more information on Sarah Rayner.

The Common Crime of Common Assault

Headshot of Dan Daley - Solicitor at Everingham Solomons TamworthAssault 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.

Click here for more information on Dan Daley.

Good behavior driver licence

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.

Click here for more information on Dan Daley.

A policeman and a dog walk into a bar….

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.

Click here for more information on Dan Daley.

In the Zone? Extra points for you!

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.

Click here for more information on Sarah Rayner.

70’s Rock & Traffic Law

“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.

Click here for more information on Dan Daley.