Headphones while driving: Are you asking for treble?

In NSW it is not expressly illegal to wear headphones while operating a motor vehicle.

Music to your ears, right?

Not quite. There is a bit of a ‘catch all’ road rule which could see the wearing of headphones as being problematic and in some circumstances illegal. This rule being NSW Road Rule 197(1) essentially make something illegal if it is a distraction that causes a driver to not have proper control of a vehicle.

This rule generally is invoked if your driving causes an accident or if you are witnessed to be driving erratically.

So, would a Police Officer charge you for wearing headphones while driving in these circumstances? Well, that beats me!

Police have discretionary power with respect to this offence, meaning that they alone would decide if you wearing headphones was deemed to be a distraction and therefore, if it would be deemed an offence. In some circumstances, you may be able to fight any charges laid in Court, but the Police will have the discretionary power to charge you initially.

If you were charged under this road rule for not having proper control of the car, you’d be looking at three demerits and a $481 fine. The Court could impose higher penalties, should the matter be referred there.

In addition to the possible fines, you face if you are charged with this offence, insurance companies may not pay on a claim arising from an accident. This is because there are usually clauses in their PDS noting if you are negligent or knowingly dangerous in your driving, then your claim may be denied. This is ultimately a matter for the insurance companies to decide.

Generally, it is considered that the practice of wearing headphones is unsafe, as it inhibits your ability to hear emergency sirens and horns used by other drivers as well as generally dulling your awareness of your surroundings. Plus, generally speaking, in order to use headphones, you need to connect to your mobile phone. Mobile phone use while driving carries many possible offences as well.

As the law is unclear and there is a lot of discretionary powers, the best position in NSW lends to being one where you err on the side of caution and refrain from using headphones while you drive.

If you need some sound legal advice, contact Everingham Solomons, because Helping You is Our Business.

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Sentencing Options in Criminal Matters

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.

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Questioning the accuracy of speed cameras

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.

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Legal Options Available if Police Revoke your Firearms Licence

Headshot of Dan Daley - Solicitor at Everingham Solomons TamworthUnder 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.

Click here for more information on Dan Daley.

Driving on an interstate licence in NSW

Headshot of Dan Daley - Solicitor at Everingham Solomons TamworthSection 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:

  1. Attend Service NSW and attempt to apply for a NSW licence, given that he now resided in NSW.
  2. Request that he be provided “notice of licence ineligibility” upon his application for NSW licence being refused due to the demerit points accumulated.
  3. 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.

Click here for more information on Dan Daley.

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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AVOs – What are they and how do they work?

Headshot of Dan Daley - Solicitor at Everingham Solomons TamworthAn 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.

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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.