- Apprehended Violence Orders
- Criminal Offences
- Section 10 and Section 32 Orders
- Drink Driving and Traffic Offences
The ‘defendant’ is the person against whom the AVO is made and the person in need of protection (PINOP) is the person requiring protection.
There are two types of AVOs – an Apprehended Personal Violence Order (APVO) which is ordered when the parties are not related, and an Apprehended Domestic Violence Order (ADVO) for when the parties are related, in or previously in a relationship, or living together.
A police officer who believes that a person is in imminent danger of domestic violence and, it is necessary to ensure the safety and protection of that person and his or her children, may bypass the usual application process and request a provisional order via telephone, facsimile or other communication process.
The Court may impose whatever restrictions and prohibitions on the defendant’s behaviour considered necessary for the protection of the PINOP and any children of the PINOP.
The AVO will restrain the defendant from assaulting, harassing,
The application is made through the Local Court and the defendant is served with the application which will have a Court hearing date.
The parties attend on the hearing date. If the defendant does not appear then the order may be made in his or her absence.
The issue of an AVO is a civil remedy and accordingly does not constitute a criminal offence. However, breaching an AVO is a criminal matter which can result in a conviction.
When the AVO is made, the defendant must give any firearms in his or her possession or control to the police. Details of the AVO are retained in a database.
If you are served with an application for an AVO you can either consent to the AVO being made or oppose the AVO. Consenting to an AVO is not an admission of what you have been accused of. If you do not turn up on the Court date, then the AVO is likely to be granted in your absence.
If you wish to oppose the AVO we recommend you obtain legal advice immediately. Our Lawyers can advise on the process involved and represent you in Court. The AVO will be assessed on the evidence presented by the parties, usually in the form of written statements. The Court may also allow verbal evidence.
AVOs may be issued during family law proceedings, as a result of ongoing run-ins between neighbours or other people in regular contact, or incidental to an assault. Consequently, there are a range of factors leading to the AVO which are usually intermingled in a complex history between the parties.
AVOs issued in family law proceedings require special consideration – they should not be used vexatiously or to prevent a person from having contact with their child or children, (without reasonable grounds). Such applications result in excess costs and complexity and will be frowned upon by the Court.
Our Lawyers have experience in dealing with all types of AVO matters and can assist you in applying for, opposing or negotiating an AVO.
Police bail is determined by the police after the time of arrest. If bail is refused, then an application can be made to the Local Court.
The starting point is whether there is an ‘unacceptable risk’ in granting bail which cannot be mitigated by imposing certain conditions. Additionally, bail must be refused for certain types of offences unless the accused can show that his or her detention is not justified.
The ‘unacceptable risks’ that must be assessed are that the accused may:
• fail to appear in Court;
• commit a serious offence;
• endanger a victim or other persons;
• interfere with a witness or evidence.
If one or more of these risks cannot be alleviated by imposing conditions, then bail is not likely to be granted.
In determining the existence of an unacceptable risk, the Court considers several factors including the personal circumstances of the accused, their community ties, criminal history, the seriousness of the crime, the strength of the Prosecutor’s case and how long the accused will spend in custody if bail is refused. Risks of violence or criminal association or previous non-compliance with bail, bail conditions, Apprehended Violence Orders or parole will weigh against the application.
We will discuss risk factors with you before the hearing and consider likely bail conditions such as depositing cash into a trust account as security for the bail. If necessary, we can contact family and friends to obtain their assistance in putting up bail, collecting documents and other matters.
Discussions with the Prosecutor before the bail hearing will ascertain their position on the Court granting bail. If the Prosecutor is likely to oppose bail, then we will be better equipped to deal with this in Court and to answer any concerns.
The Prosecutor will be asked whether bail is opposed and, if so, make submissions as to why. If the application is opposed, your Lawyer will make submissions on your behalf and answer questions from the Magistrate regarding any proposed bail conditions to mitigate unacceptable risk. The Magistrate will then make a decision.
If bail is refused the accused is returned to custody pending transportation to prison. In these circumstances Lawyers are not usually able to see their client immediately after the bail application hearing so will need to make arrangements to visit later to discuss the outcome and recommend whether a further application can be made.
If bail is granted, we will explain any conditions imposed and may offer assistance in making sure these conditions are in place.
Our criminal legal team regularly appear in the Local and District Courts representing people who have been charged with a criminal or traffic offence.
We understand that a criminal charge is life-changing
Our experienced Lawyers can assist in the following criminal matters:
• Drink driving and traffic offences
• Drug matters, possession, cultivation, dealing
• Sexual assault, indecent assault
• Arson, robbery, larceny, break and enter, theft, malicious damage
• Murder, attempted murder, manslaughter
• Fraud and tax offences
• Appeals and defended hearings.
Proceedings for most criminal charges commence in the Local Court. Less serious offences are called summary offences and remain in the Local Court and are dealt with by a Magistrate. More serious offences, known as indictable offences, are transferred to the higher courts,
For indictable offences, a committal hearing will take place in the Local Court and the Magistrate will decide whether sufficient evidence exists for the matter to proceed to trial.
A person charged with an offence will receive a Court Attendance Notice (CAN) and Police Fact Sheet. The CAN will indicate when and where you must attend Court. The Fact Sheet gives details of the offence and sets out the police version of events, in other words the case against the accused person.
Your attendance at Court will likely be daunting so it is important that you are well prepared and you assist your Lawyer in putting forward the best case on your behalf.
You should bring the CAN, Fact Sheet and other relevant information to the first meeting.
If you are in custody, we will make arrangements to come to you.
We will ask you to recount your version of the facts and then consider whether there are any defences available, noting that each element of the alleged offence must be proven beyond reasonable doubt. We will then be in a better position to take your instructions regarding how you will plead to the charges made against you. We will discuss the type of offence and applicable penalties at the highest and lowest end.
If a defence is plausible we will explain the process involved and consider the additional evidence needed to defend the charges.
Prior to or during the Court proceedings it is not uncommon to contact the Prosecutor to see if the Fact Sheet can be amended or charges negotiated. A successful charge negotiation may result in having a more serious charge replaced with a lesser charge, having one of a series of charges withdrawn, or recommendations made to the Court regarding the type and severity of a proposed sentence.
At the first Court attendance the Magistrate will ask whether the case is to be dealt with immediately. Depending on your instructions, we may:
• request an adjournment to further consider your plea;
• plead guilty and proceed to sentencing;
• enter a plea of not-guilty on your behalf.
An early plea of guilt will be taken into consideration on sentencing. If you plead guilty the Magistrate may be provided with statements from witnesses, photographs and interview records from the Prosecutor. The defence may also tender documents on behalf of the accused such as written statements, character references or other reports. This is our opportunity to present your case and tell the Court about your personal circumstances including any remorse, counselling, attendance at intervention programs and the like.
The Magistrate considers the penalty taking into account the offence, the plea and the evidence presented.
The way a criminal matter proceeds depends on the charges laid, the response to those charges and the surrounding circumstances. We appreciate that people accused of a criminal offence are anxious and will provide sound advice and guidance through the Court process. Contact us if you or if someone you know is in need assistance.
If you have been charged with a criminal offence it may be appropriate for your Lawyer to request the Court that the offence be dealt with under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
An intervention program is a program providing for alternative measures to deal with persons who have committed an offence. The programs aim to reduce the likelihood of future offending and promote treatment, rehabilitation and personal accountability. The Traffic Offender Intervention Program (TOIP) and Magistrate’s Early Referral Into Treatment (MERIT) are examples.
Section 10 orders may be appropriate for minor offences or first-time offenders.
The Court has discretion to grant an order under section 10 if it is convinced that it is appropriate or expedient to do so. The Court will consider:
• the trivial nature of the offence;
• other relevant factors.
Submissions will set out the accused’s personal circumstances and family support, background and employment, his or her involvement in community work and sporting associations, the impact the charge has had, and is likely to have if a conviction is made, remorse for the offence and any other matters to be taken into consideration. Medical reports and references in support of character are often included.
Submissions and supporting documents are handed to the Court during the hearing for a determination prior to sentencing.
An accused person who has an intellectual disability falling within the eligible criteria under the Mental Health (Forensic Provisions) Act 1990 (NSW), may be dealt with under that Act rather than the general law.
The general requirement is that the accused is eligible under the criteria and that treatment is available for the accused. A successful application will result in the accused being discharged without conviction, usually subject to taking part in a treatment plan.
Supporting evidence in the form of a report from a psychiatrist or psychologist is required when making submissions. The Magistrate must be convinced that the accused person is eligible on the facts and that it is appropriate to deal with the accused under the relevant provisions rather than the general law.
A section 32 order may be made at any time throughout criminal proceedings for offences that may be dealt with summarily. Ideally however an application should be raised early in the proceedings.
An unsuccessful application for a section 32 order does not prevent the accused person from pursuing an application under section 10 of the Crimes (Sentencing Procedure) Act 1999.
We have represented clients in both section 10 and section 32 orders in the Local Court.
Traffic matters generally proceed quickly and the Court process can be confusing. The strength of answering to the charge will be influenced by obtaining dependable, timely advice. It is important to get legal advice immediately after the offence occurs.
Most traffic and driving offences are contained in the Road Transport Act 2013 (NSW). Common offences include registration and licensing matters (driving unlicensed or whilst disqualified or suspended), driving under the influence (DUI), prescribed concentration of alcohol charges (PCA) at the various ranges and speeding and dangerous driving.
Our Lawyers have expertise in all traffic offences and can explain your rights and options if you have been charged
The appropriate way to respond to a charge depends on a range of factors – the seriousness of the offence, the events surrounding the incident, whether the accused person has a criminal history and, for offences such as PCA and DUI, participation in rehabilitation and pre-sentencing programs.
We will discuss the charges and applicable penalties and the best way moving forward. In most traffic offence cases this will involve pleading guilty to the charge and attending the Local Court before a Magistrate.
Traffic offences generally have an automatic disqualification period and a minimum disqualification period. The automatic disqualification operates as a ‘default’ and may be reduced provided there is sufficient and appropriate cause to do so.
No two cases are alike and various factors are considered before advising on the most appropriate manner in which to put forward a case to the Court. Matters to be considered include:
• details of your character, work history and family circumstances including involvement in the community;
• whether there are medical issues relevant to the offending behaviour or other plausible reasons for having committed the offence;
• your reliance on a driver’s licence for work or other reasons such as a need for ongoing medical treatment, and the impact the loss of a licence has or will have on your future;
• whether you have prior criminal convictions.
Sometimes, it will be appropriate to apply for an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 which may result in the charges being dismissed. Refer to our content on ‘Section 10 Orders’.
Programs such as the Magistrates Early Referral Into Treatment (MERIT) or Traffic Offender Intervention Program (TOIP) may be appropriate.
The MERIT program is a deterrence program for eligible persons charged with a drug offence.
The level of participation in an intervention program is taken into account on sentencing and the prospects of rehabilitation are also important for those enrolled in the MERIT program.
A reference from a respected person who can vouch for the accused’s character, is aware of the charges being made and addresses specific aspects of the matter in light of the circumstances, will also support the case.
We appreciate the Court process can be confusing and unfamiliar. You may wish to read our section on ‘Criminal Offences’ to get an idea of what to expect when attending Court.
Once the Magistrate has determined your case
Being charged with a traffic offence can be humiliating and stressful. Our Lawyers are experienced in traffic matters. We will give you reasonable expectations but fight hard to put the best case forward on your behalf.
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