Criminal charges

Frequently asked questions about criminal law

If you have been charged with an “indictable” offence it is particularly important to retain a lawyer the moment you are aware that you may be facing criminal prosecution. The issue of whether an indictable offence is dealt with in the District Court or Local Court is of paramount importance. A lawyer can be of great assistance in negotiating a plea agreement with the police or prosecution, to ensure that the matter proceeds in the Local Court, where a lower maximum penalty is likely to apply.

If you plead guilty to a criminal offence, the court will generally impose a penalty and record a conviction against you. If the court records a conviction, then you will have a criminal record. Whenever possible, we will endeavour to convince the court not to record a conviction against you. This is called a “section 10 dismissal”. In all criminal cases, the court has the discretion to deal with the case according to the provisions of section 10. As a condition of a section 10 dismissal, you may be required to sign an undertaking to be of good behaviour for a certain period of time, up to two years. However, with a section 10 dismissal there is no additional penalty, and you will not have a criminal record.

If you are convicted of a criminal or traffic offence, or you receive a section 10 dismissal, the court may impose a good behaviour bond. This is a much better alternative to the harsher penalties of large fines or prison time. You will be required to meet the conditions of the bond for a specified period of time. These conditions of will vary depending on your offence. For example, you might have to attend a traffic offender program or mandatory alcohol rehabilitation. If you breach the conditions of a good behaviour bond, you may be summoned before the court to be resentenced for the original offence. Good behaviour bonds can be imposed for periods up to five years.

The court is likely to look more favourably on your case if:

  • You are able to provide good character references
  • There were extenuating circumstances (eg anything unusual that was happening at the time which may have influenced your committing the offence)
  • You have taken steps to address any issues that might have contributed to your committing the offence (eg you are attending drug or alcohol rehabilitation.)
  • You are a first time offender

Stacks can provide specific advice about how to improve your chances of receiving a good behaviour bond.

A “custodial sentence” is a penalty which involves a prison sentence, or a penalty which acts as an alternative to imprisonment. The following are all examples of custodial penalties.

The court can choose to make a community service order (CSO) rather than imposing a prison sentence. This means you will need to perform community service work for a specified number of hours, performing tasks that benefit the community (eg environmental projects or helping care for the elderly.) The maximum number of hours of community service that can be imposed is 500. If the Court imposes a CSO, you will be required to report to your local Community Corrections office within seven days. Community Corrections will determine what community service work you will be required to undertake. If you breach the conditions of a CSO you may be summoned before the court and resentenced for the original offence.

This means that the court has imposed a prison sentence but it is suspended on condition that you enter into a good behaviour bond. You won’t have to serve prison time as long as you meet the conditions of the bond. A suspended sentence can only be issued for sentences of imprisonment up to two years.

This is an order of the court that requires you to complete 32 hours of community service per month, strictly supervised by Community Corrections, as well as meeting other conditions. The court will need to have imposed a sentence of imprisonment before an Intensive Correction Order (ICO) can be considered. Not everybody is deemed suitable for an ICO – Corrective Services will first do an assessment to decide whether it is appropriate for a particular offender. ICOs can only be considered for sentences under two years.

The court can issue a home detention order in lieu of serving prison time. It means that the offender is confined to an approved residence for a specified period of time. The offender is strictly supervised and subject to electronic monitoring. Home detention orders are limited to a maximum period of 18 months.

Bail is (theoretically) available for all criminal charges. However, for certain serious offences, and for people with a history of failing to attend court or breaching their parole or bail, they will need to show cause why their detention is not justified.

Generally, when deciding whether to grant bail the court will consider:

  • Whether the person accused is a flight risk
  • Whether the person accused is dangerous to the community
  • Whether the person accused is likely to commit a serious offence
  • Whether the person is likely to interfere with evidence in relation to the charge

Summary offences are offences that must be heard in the Local Court by a magistrate. Offences that carry maximum penalties less than two years’ imprisonment are summary offences. Some other offences are identified as summary offences in the relevant legislation.

Certain other offences can be dealt with in the Local Court, with the agreement of the prosecution or the defence, even if the maximum penalty exceeds two years’ imprisonment. These are known as ‘Table 1’ and ‘Table 2’ offences.

It is almost always better to have your case dealt with in the Local Court if you can, because the Local Court can’t impose penalties for criminal offences beyond two years’ imprisonment (even if the maximum penalty quoted in the legislation is higher.) Stacks can negotiate with the prosecution on your behalf to try to have your case dealt with in the Local Court.

Indictable offences are offences that carry a maximum penalty of two years’ imprisonment or more. If the offence is “strictly indictable” (for particularly serious charges) then it must be heard by a judge and jury. It is possible for indictable offences that are less serious to be heard in the Local Court by a magistrate, if the prosecution agrees.

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