Author name: Zoe Whetham

A ‘Serious Indictable Offence’ is an indictable offence that carries a maximum penalty of more than 5 years imprisonment.

Indictable offences are criminal charges that can be prosecuted on indictment. In other words, a judge can hear these charges in the District or Supreme Court.

However, a higher court will not always hear serious indictable offences. Many serious indictable offences are dealt with summarily in the Local Court. This includes offences like Assault Occasioning Actual Bodily Harm, Damage Property and Stalk/Intimidate. Whether these charges are kept in the Local Court will ultimately depend on how serious the alleged offending is.

Offences such as Murder and Sexual Assault are ‘Strictly Indictable Offences’, meaning they must be dealt with in a higher court. These charges will start in the Local Court, before being committed to a higher court for trial or sentence.

What does it mean?

Generally, serious indictable offences will attract a harsher sentence. This is because they are more serious offences, due to the higher maximum penalties that apply. For example, Assault Occasioning Actual Bodily Harm is a more serious charge than Common Assault, which carries 2 years imprisonment.

The other important consideration is in relation to bail. If you commit a serious indictable offence while you are on bail or parole, it is harder to get bail. This is because the new offence becomes a ‘show cause offence’, under section 16B(h) of the Bail Act 2013 (NSW). As a result, you will need to demonstrate why your release is justified.

What should I do if I’m charged with a Serious Indictable Offence?

Obtaining legal advice is the most important thing you can do. It is important that you understand what you have been charged with, and the maximum penalty that applies. But it is also important that you understand your options. Sometimes, police do not have enough evidence to prove someone committed an offence. Other times, police may agree to negotiate and proceed with a less serious charge. In addition, discounts apply to the sentence you receive, depending on the timing of your plea of guilty.

W & Co. Lawyers specialise in criminal and traffic law. We offer FREE initial consultations, so that you can receive quality advice and understand your charge.

Call us now on 0421 700 497.

A ‘major offence’ is relevant to traffic offences. The definition of a major offence is found in section 4 of the Road Transport Act (see below).

It’s important to know whether an offence is a major offence, because it affects the penalty imposed by a Court. For example, if you’ve previously committed a major offence, such as negligent driving causing grievous bodily harm, it will mean that the penalty is more serious for a future traffic offence, such as mid range drink driving. As a result, the drink driving offence becomes a “second or subsequent offence”. Therefore, the maximum penalty increases from $2,200 and 9 months imprisonment, to $3,300 and 12 months imprisonment.

Major Offence Road Transport Act Definition

A major offence includes the following:

• A driving offence that resulted in the death or bodily harm of another
• High range drink driving, mid range drink driving, low range drink driving and novice range or special range drink driving
• Driving with a prohibited drug present in blood
• Driving a vehicle under the influence of alcohol or a prohibited drug
• Negligent driving occasioning death or grievous bodily harm

We can help

Call us on 0421 700 497 to speak to an Expert Traffic Lawyer now. We offer FREE initial consultations.

The difference between the Local and District Court, is that the District Court is a higher court that hears more serious matters. For example, if you plead guilty to drug possession, you will be sentenced in the Local Court. However, if you are charged with a large drug supply, your matter will be heard by the District Court.

Magistrate or Judge?

A key difference between the Local and District Court is the judicial officer who hears the matters. In the Local Court, your matter will be before a magistrate. In the District Court, your matter will be before a judge.

Why is my serious charge in the Local Court?

Despite these differences, all criminal charges will initially begin in the Local Court. Serious charges will eventually end up in the District Court. However they will start in the Local Court where the magistrate will automatically order the brief of evidence.

For example, if you are charged with sexual assault your first court appearance will be in the Local Court. The charge will then go through the ‘Early Appropriate Guilty Plea’ (EAGP) process. During this process the evidence against you will be provided to you and your lawyer. The charges will then be certified by the Director of Public Prosecutions (DPP). Your lawyer will then have an opportunity to negotiate your charges with the DPP. Once the EAGP process is complete, you will need to tell the magistrate whether you wish to plead guilty or plead not guilty. The magistrate will record this, and then send your matter to the District Court for either trial or sentence.

For less serious matters, such as common assault, the matter will finalise in the Local Court by way of sentence or defended hearing. For these matters, the only way to review the evidence against you is to enter a plea of not guilty.

We can help

Our lawyers appear regularly in both complex and minor matters in Local and District Courts throughout Newcastle, Sydney and New South Wales.

We are committed to providing you with a first class service, while ensuring you remain informed and consulted every step of the way.

Contact us today on 0421 700 497 for a free initial consultation.

Is it possible to get a work licence for a disqualified driver in NSW? This is a common question but unfortunately, the answer is no.

In NSW, it is not possible to obtain a ‘work licence’, or an exemption that allows you to drive for work purposes during a disqualification or suspension period. A suspended or disqualified driver in NSW is unable to drive for any reason. This is regardless of whether you need your licence for work.

Neither the RMS nor the Court have the power to grant you a conditional licence to drive to and from work. Therefore, it’s important that you provide evidence regarding your need for a licence to the magistrate or judge before you are sentenced.

However, you may be able to obtain your licence back in other ways. For example:

• Appealing an RMS suspension
• Appealing a police suspension
• Removing disqualification periods
  

We can help

 Our lawyers are experienced traffic lawyers. We appear regularly in criminal and traffic matters in Local Court’s throughout Sydney, Newcastle and New South Wales. Our commitment is to provide quality advice and ensure you get the best possible outcome for your case.

Contact us today on 0421 700 497 for a free initial consultation. 

Image source: Car photo created by standret – www.freepik.com

When a person is charged with a criminal offence, they will usually have 2 options; plead guilty, or plead not guilty. However, there is an additional option available to those suffering from a mental illness or impairment to have the charges dismissed under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. This is known as a ‘Section 14 Application’.

What is the result of a Section 14 Application?

A successful section 14 application will mean that there is no formal finding of guilt made against you. As a result, no criminal conviction recorded.

Instead, the Court will discharge you either conditionally, or unconditionally. For example, you may be ordered to comply with a treatment plan for 12 months.

How do I make a Section 14 application?

A magistrate will only consider an application if you have a mental health impairment or a cognitive impairment (or both). Accordingly, the first step is to obtain evidence or confirmation of your mental health condition. A lawyer will then provide advice about the strength of your application.

If you wish to proceed with making the application, you will then need to undergo an assessment and obtain a report from a forensic psychologist or psychiatrist. It is important that this report addresses certain criteria outlined in the legislation. Therefore, you should speak with a lawyer before obtaining the report.

The Court will allocate time consider your application on a specified date. Usually, you will need to serve the report on the Court and Prosecutor prior to this date.

Considerations

The existence of a mental health impairment, or a cognitive impairment, of itself will not entitle you to have your charges dismissed. The magistrate is required to take into account a number of considerations. These include:

• The nature of your mental health impairment or cognitive impairment
• The seriousness of the criminal charges
• The sentencing options available
• Any relevant changes in your circumstances since the alleged offence occurred
• Your criminal history
• Whether you have made a similar application before
• The contents of any treatment plan proposed
• Whether you are a risk to the safety of a victim, the public or yourself
• Any other relevant factors.

Ultimately, the magistrate will decide whether it’s more appropriate for you to be discharged under section 14, or dealt with in accordance with the law (i.e. through a plea of guilty or not guilty).

Length of the Order

The order can be for up to 12 months. As a result, you need to obey any orders made by the Court in relation to your treatment throughout this period.

Breaching a Section 14 order

If you do not obey the conditions made by the magistrate, you will be in breach of the order.

For example, a Court may make an order that for 12 months you must obey all reasonable directions of a named treatment provider e.g. your GP or psychologist. Therefore, if you fail to attend appointments or you stop taking prescribed medication during that period, the treatment provider will notify the Court of the non compliance.

As a result, the magistrate can order you to appear in Court and if appropriate, deal with your charge as if you had not been discharged.

We Can Help

If you need assistance, our lawyers are here to help. Contact Us to arrange a free initial consultation.

Last week, Parliament introduced a new law that imposes punishment for people driving under the influence of both drugs and alcohol. Previously, the Road Transport Act 2013 did not cater for a combined alcohol and drug driving offence. Instead, there were individual charges for drink driving and drug driving.

Penalty for combined alcohol and drug driving

Under the Road Transport Legislation Amendment (Drink and Drug Driving Offence) Bill 2021 the maximum penalty for this new combined offence is a fine of $11,000, and/or imprisonment for 2 years. In addition, the new laws:

• Impose licence disqualifications, and
• Expand the mandatory alcohol interlock order for the combined offence, and
• Require drivers to undertake a drivers education course, and
• Allow for vehicle sanctions.

By comparison, driving under the influence of drugs alone carries a maximum penalty of $3,300 and/or 18 months imprisonment. Similarly, a first offence High Range PCA carries the same penalty. Evidently, the penalties for the new law have increased significantly. The law is designed to send a message to the community about the seriousness of this type of offending.

High risk drivers: How the new law will work

When introducing the Bill, the Hon. Jonathan Richard O’Dea explained how the new laws will work in practice. Essentially, the process currently imposed for drug and alcohol testing in NSW will remain the same, with the difference being to detect “high risk” drivers. For example, if a driver returns a positive reading for alcohol within the low range and they have a prior offence on their record, they then need to undertake a drug test.

Four Angels Law

The new law was first drafted in response to the tragic death of four young children, as a result of a driver who was under the influence of both alcohol and drugs while driving. When introducing the Bill, the Speaker stated, “This bill is for Antony, Angelina, Sienna and Veronique and will forever be known as the Four Angels Law.”

If you have any questions, contact us on 0421 700 497 for free advice.

The cannabis caution scheme operates in NSW. As a result, you can receive a caution from police instead of being charged with drug possession.

Police can issue a person up to two cautions. The first caution will come with a notice which aims to provide education about the effects of cannabis use. The second notice requires a person to undergo a mandatory education program on cannabis use. 

However, the caution only relates to possession of cannabis, not supply. Therefore, a caution cannot be given even if the cannabis supplied was a small amount. Instead, police will issue a Court Attendance Notice for drug supply.

Am I able to receive a cannabis caution?

You can receive a cannabis caution if:

1. The amount of cannabis in your possession is 15 grams or less; and
2. You have not previously received more than one caution; and
3. You have no prior convictions for drug related offences; and
4. You do not have a criminal history relating to violent or sexual assault offences. 

However, the caution is discretionary. This means that police can decide whether or not to issue you with a caution, even if you fit into the categories outlined above. 

Do I need to attend court?

You do not need to attend court if you receive a caution,.  

However, if you are charged with possession of cannabis, you will be issued a Court Attendance Notice and will need to appear before a magistrate. 

Do cautions show up on criminal checks?

No, a cannabis caution will not show up in a routine criminal record check. However, this does not mean that it is not recorded. It will still appear on your criminal history held by police.

We can help 

Our lawyers are experts in defending drug charges, and in advocating for leniency during sentence proceedings. We’re committed to providing you with quality advice, and we will assist you to obtain the best possible outcome for your case. 

Contact us today on 0421 700 497 for a free initial consultation. 

If your licence has been disqualified by a court in NSW, there are some options available to get your licence back. For example, by filing an appeal to the District Court. Alternatively, in some instances an application to remove the disqualification can be made. We have explored these options in further detail below.

Appealing a licence disqualification

Your licence is automatically disqualified after conviction for certain traffic offences in NSW. For example, Driving While Suspended or Drink Driving. This can only be avoided if no conviction is recorded.

If you’ve already been sentenced, you can appeal to the District Court. However, the appeal must be lodged within 28 days.

If a Judge allows the appeal and does not record a conviction, the disqualification period will no longer be in place.

However, if the Judge decides that the conviction should remain, it may be possible to ask for a shorter disqualification period. To do this, you should submit evidence of your need for a licence. This can include an employment contract or medical documentation.

Removing Licence Disqualification Periods

If you are out of time to appeal the Local Court decision, then the disqualification period will remain in place.

However, an application to remove a disqualification period can be made if there has been an “offence-free period”. In other words, you have not committed any new traffic offences. An offence-free period will either be 2 years or 4 years, depending on the type of offence that you were disqualified for.

However, you cannot apply to have your disqualification removed if the original offence was a serious offence. For example, Police Pursuit or Dangerous Driving Occasioning Death or Grievous Bodily Harm.

Removing Licence Suspensions

The above procedures only relate to disqualification periods. If you have lost your licence as a result of a suspension, there are different options available.

Police or the RMS can issue licence suspension. As a result, the Court has the power to review this decision. The following articles provide more information:

• Appealing a Police Suspension
• Appealing an RMS Licence Suspension

We can help 

Our lawyers are experts in traffic law. We provide you with first class legal representation. That is why we offer a free initial consultation, so that you can ask questions and receive quality advice.

Contact us today on 0421 700 497, or email info@wcolawyers.com.au.