Office: 02 4307 1602 Fax: 02 4353 8140

Criminal Law

Criminal Law

Arrest

You should try to contact our firm if you are arrested. We will:

  • attend the police station with you
  • advise you of your rights
  • explain the alternatives before you
  • make a bail application for you, and
  • represent you in court.

A police officer can arrest you if, for example:

  • they suspect on reasonable grounds that you have committed an offence
  • a warrant (written authority) for your arrest has been issued by a court, or
  • you have committed or are about to commit an offence.

A police officer may use as much force as necessary to arrest you. Unreasonable force however is assault. After an arrest, a police officer may handcuff you if you attempt to escape or the officer considers it necessary to prevent you from escaping.

It is an offence to resist arrest, even if, you believe that you are completely innocent of committing any offence. If you resist an arrest, you are committing an offence and you may be charged, even if the police do not charge you with any other offences.

When you have been arrested, be polite to Police at all times and insist that you be allowed to contact your lawyer. You have the right to have a lawyer present while you are being questioned to give you legal advice. You are not obligated to give a statement to police. However, if the arrest concerns a motor vehicle, you are required to give your name and address and particulars of the incident to the police.

If you are charged, you will usually be released on bail, with or without conditions. If you are refused bail, or cannot meet the conditions set, you must be brought as soon as practicable before a Court where you can apply for bail.

If you fail to comply with your bail conditions, you can be arrested by police for breaching your bail conditions and brought before a Court. If the breach of bail is proven, the Court can either refuse bail or release you on fresh or continued bail conditions.

Pleading not guilty

In most cases if you plead not guilty, the Magistrate will order a ‘Brief’ to be served upon us. The Brief contains the evidence the police will rely on to prove their case. You will be given a date to come back to Court after the Brief has been served, to confirm you are still pleading not guilty to the offences you have been charged with.

You will not be given a Brief for a minor matter, including most traffic matters. The Court will need to be advised as to how many witnesses you will be calling, if an interpreter is required, and whether all of the police officers are required to give evidence. The Magistrate will then set a date for the hearing.

The Magistrate, after hearing both the police and your case will either decide that:

  • Your case is dismissed, which means you are free to go and you have been found not guilty, or
  • You have been found guilty. If this happens the Magistrate will then consider the penalty to impose against you. 

Pleading guilty

If you plead guilty to the offences that you have been charged with, the Police Facts Sheet will be provided to the Court. This is the police’s version of events that will be read by the Magistrate. If you agree that you are guilty of the offence, but disagree with some of the things said in the Facts Sheet, you need to advise us, as it may be possible to make some changes to the Police Facts Sheet, or we may need to make representations on your behalf to police.  Your matter will normally be adjourned for 6 weeks for representations to be processed and dealt with.

When your matter is heard by the Magistrate, we will provide the Magistrate with an explanation about how and why the offences occurred, some information about yourself, your current financial situation, personal circumstances and general character and any rehabilitation you have undertaken. Speak to us about what documents can assist you in Court.

Penalties

The Magistrate will then consider the penalty to impose upon you. Penalties range from dismissal without conviction through to conviction with a fine, good behaviour bond, community service order, suspended sentence, intensive correction order, home detention or full time custodial sentence.

If you think that you may be facing a custodial sentence, we recommend that you contact us and get legal advice as soon as possible.

If the Magistrate is considering a serious penalty or wants further information, you may be referred to the Probation and Parole Service to get a presentence report. This report tells the court about you and what sort of penalties are suitable for you.

Sometimes, if the offence is very minor and you have previously been of good character, the Magistrate may decide not to record a conviction against you and issue a penalty. This is referred to as a Section 10 dismissal.

Fines

Fines are often given for less serious offences. If you receive a fine, there will be a set time to pay, usually 28 days. If you cannot pay within the set time, you can make an application to pay your fine by way of instalments. You will need to speak to the Court Registry before you leave Court to make your application.

Bonds

A bond is an agreement by you to be of good behaviour, that means not committing any more offences. The Magistrate may also impose other conditions, for example attending drug and alcohol counselling or anger management courses.

If you break your bond, either by committing another offence or by not complying with any of the conditions, you can be brought back to Court. Unless there was a very good reason for breaking the bond, the Magistrate will resentence you. This means giving you another penalty for the offence. Often that means getting a more severe penalty.

Suspended sentences

Suspended sentences should be taken very seriously. If you have been given a suspended sentence, it means that the Magistrate thought that a custodial sentence was appropriate for you, but that there were good reasons not to send you to gaol straight away. If you are given a suspended sentence, you will be placed on a bond, called a section 12 bond. You may have conditions attached to your bond.

If you break your suspended sentence, either by committing another offence or by not complying with any of the conditions, it is very likely that the Magistrate will impose a custodial sentence.

Other penalties

Other penalties, such as community service orders, intensive correction orders and home detention, are possible penalties for serious matters. Generally you would have spoken to a probation and parole officer before the Magistrate gives you any of these penalties. It is very important to make sure that you understand what you must do if you are given any of these penalties.

If the Court decides that none of these options are appropriate, the Court may impose a full-time custodial sentence.

Appeals

If you are not happy about the Magistrate’s decision and you want to appeal, contact us immediately as you must lodge your appeal within 28 days of the sentence date. There is a Court fee if you wish to appeal a decision.

Contact us today for assistance.

Legal Services Testimonials Contact us