Driving Disqualified – The Risk of Gaol

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The ever increasing penalties for driving offences in South Australia mean that there are unprecedented numbers of drivers who receive a disqualification for some period of time. What many people do not know however, is that even in standard, first offence, driving disqualified matters the starting point for penalty is a sentence of immediate imprisonment. Immediate imprisonment differs from a sentence of suspended imprisonment in that a defendant will immediately be taken to gaol to serve out that term. It is regrettable that many people will continue to drive under a disqualification thinking that the offending is considered minor and would likely be punished by fine or further disqualification. The South Australian Court of Criminal Appeal has long reinforced Parliament’s intention that driving while disqualified by an order of the Court will attract, even for a first offender, a term of immediate imprisonment.

In circumstance, for example, where a defendant had previously been disqualified by the Magistrates Court for an offence such as drink driving and subsequently drives during that period of disqualification and is apprehended, then that offending will be considered contumacious. The word contumacious, in a juridical context, refers to a defendant stubbornly, wilfully or contemptuously being disobedient to the authority of the Court. Given the propensity of certain defendants to continually and wilfully ignore disqualification and drive in any event, the South Australia Parliament has determined that the punishment for behaving contumacious towards our Courts must be severe enough to provide a true deterrent to ignoring orders of the Court.

What is perhaps more regrettable is that often a defendant, being unaware or ignorant of the serious risk of immediate imprisonment, will plead guilty without the advice of a solicitor and without representation to make submissions in mitigation and as a consequence be surprised when they, despite being of otherwise good character and having no serious antecedent history, are sent to gaol. While, as we have discussed, the Criminal Court of Appeal has held that immediate term of imprisonment will be the starting point for contumacious disqualification offences it does not mean that every defendant will serve an immediate term of imprisonment. In the first instance a defence may be available on the facts or there may be insufficient evidence for the Police to obtain a conviction. In the second instance the circumstances pertaining to either the offending or the defendant personally may persuade the court to impose a suspended sentence, that is one that does not need to be served immediately but is rather subject to the defendant entering into a bound to be a good behaviour, or alternatively some other lesser sentence entirely including a simple good behaviour bound or a monetary penalty. The same factors that will militate in favour of the imposition of a suspended sentence or lesser penalty under the Sentencing Act will apply equally in dealing with contumacious drive disqualified offences. Generally the Court will have regard to factors such as youth, contrition an early plea of guilty and a variety of other matters particular when determining a whether a sentence of imprisonment should be served immediately or suspended pursuant to a bond.

If you require advice regarding a drive disqualified offence you can contact Culshaw Miller Criminal Lawyers on 08 8464 0033, if you have been arrested or require immediate advice or attendance of a solicitor call us on 0418 421 153, alternatively make an appointment now.

Think Before You Plead Guilty: Minor Convictions & Major Consequences

Blog post by Tom Cuthbertson

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Should I Plead Guilty?

Pleading guilty to an offence, even when you believe you are not guilty or that the Crown may struggle to prove the allegation is termed a ‘plea of convenience’ and can be attractive in saving time and money, particularly if the offending alleged is very minor.

Guilty pleas also often arise out of the process of ‘charge bargaining’ – whereby serious charges are downgraded to lesser charges on the basis of a guilty plea. Charge bargaining can be a very useful tool for defendants; robust negotiations can often be the difference between a term of imprisonment and a lesser sentence. It is, however, important to carefully look at the consequences of a guilty plea – sometimes a plea of convenience can be anything but convenient and serious consequences can flow from them.

Major Consequences 

In the first instance, particularly in the case of charge bargaining from serious ‘major indictable’ offending to minor indictable offending, it must be remembered that, in South Australia, both Magistrates and Judges cannot bind themselves to any sentencing indication.

It is also imperative to recognise that even if the prosecution agrees that they will not seek immediate imprisonment, this does not bind or necessarily persuade the Magistrate or Judge. It can and often is the case that while the defence lawyer and prosecutor agree on the appropriate range of penalties, the Magistrate or Judge determines that something more severe is required and a defendant is gaoled. It is also important to remember that if someone has a criminal history, even as a youth, this can impact the sentence to be imposed depending on the nexus between the old and new offending.

Criminal Conviction

It is crucial to consider the effect of a conviction by entering a guilty plea on antecedent records as, depending on the offence, this can have severe consequences on one’s ability to be employed in particular places and therefore can have far-reaching ramifications into the future – particularly if one is seeking to become a lawyer, doctor, licensee of a bar or restaurant, security guard, member of the Australian Defence Force or a great many other roles.

While a quick and easy guilty plea can seem like a simple decision at the time, one must be fully informed of the potential impact on his or her life and livelihood into the future. If you have been charged with a criminal offence and require legal advice, contact Culshaw Miller Criminal Lawyers on (08) 8464 0033.

Charged With Drug Trafficking? Be Prepared.

Blog post by Tom Cuthbertson

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Drug trafficking charges can be extremely stressful. The maximum penalties, depending on the specific offending, can even include a life sentence. Given what is at stake, it is crucial to recognise the serious potential of a lengthy term of imprisonment if convicted, and to be prepared at the outset with an effective defence, either in full or in mitigation of the drug trafficking charges.

The Evidence

Often the Prosecution will rely on a combination of the actual substance alleged to be a drug, telephone intercepts, observations and ‘indicia of trafficking’, which include unexplained cash, scales, press-seal bags, mobile phone content of the accused and tick lists. It is commonly thought that by using ‘code’, traffickers can escape the inference that they have been selling drugs – this is not true. The Courts are able to find that the reference to some seemingly innocuous item in a text message or phone call is, in fact, a reference to a specific drug or an amount of drugs. This can be readily inferred by patterns of conduct and intercepts.

Strict Liability

Trafficking prosecutions are made all the more complex by the ‘strict liability’ nature of certain drug offences – this means that, rather than the prosecution bearing the burden of needing to prove beyond reasonable doubt that one was in possession of drugs, simply finding the drugs on an accused’s person or in a vehicle or other property in the control of that person can be sufficient to discharge the burden of proof.

Your Defence Team

Defending drug matters will, on the basis of the legislative burden and complexity of the evidence, often be a difficult task; however, where a lawyer is involved at the outset, an accused person can be satisfied that they will receive the strongest possible protection of their legal rights.

The team at Culshaw Miller Criminal Lawyers have experience in dealing with drug possession and trafficking matters. Our team has assisted with the defence of significant drug trafficking and production matters involving the AFP, Victorian Police and South Australian Police. If you have been charged with a drug-related offence, contact us for 24 Hour advice on 0418 421 153.

Drink Driving: Serious Consequences (SA)

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What is meant by ‘drink driving’?

There are three distinct offences in South Australia which fall into the category of ‘drink driving’. These are:

  • Driving Under the Influence;
  • Driving with a Prescribed Concentration of Alcohol; and
  • Refusing or Failing to Comply with a Breath Test.

Driving Under the Influence does not require the police to prove a specific reading (i.e. you can be convicted of this offence if you blow under 0.05). Police will often rely on their or other people’s observations about the driving behaviour, which can show that you were so under the effect of an intoxicating substance that you were unable to exercise effective control of the vehicle.

Driving with a Prescribed Concentration of Alcohol is the most common drink driving offence. This is if you are caught driving above the legal limit (0.05 for full licensed drivers). The blood alcohol concentration at the time of driving will determine the penalty range which you may be facing. There are many very technical requirements that the police must adhere to when charging a person with this offence, and their failure to do so may render the test invalid. You should seek legal advice to examine if the police have complied with these requirements.

Refusing or Failing to Comply with a Breath Test is an offence which is committed when the person refuses to give the police a sample of their breath, or behaves in a way in which a reading is unable to be obtained. This is a very serious offence as refusing or failing to comply makes a person liable to the highest penalties available. Again, there are a number of technicalities the police must adhere to, or the charge may not be made out.

Should I get a blood test?

Yes. In most cases a blood test is the only way to contradict the reading taken by the breath analysis instrument. The police are required to offer you a blood test kit, and you should always accept it and have your blood promptly tested. It often will not make a difference to the reading taken by the breath analysis instrument, but there have been numerous cases where instruments have been shown to be inaccurate.

I have been caught drink driving. What should I do?

Drink driving has serious consequences for most people, often the biggest of which is the loss of their licence for a substantial period of time, which can impact work, family and your social life. This is why it is essential to get proper legal advice as early as possible about your drink driving offence.

Please contact Culshaw Miller Criminal Lawyers to make an appointment to discuss your legal options.

Defend Your Criminal Law Charge With Our Fixed-Fee Costs (SA)

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Being arrested or charged by police can be extremely stressful, particularly when it is the result of one bad decision or mistake. Regrettably, when you are charged with offending such as drink driving, driving disqualified, shoplifting, stealing, minor drug possession or minor assault, the ramifications can be significant. Penalties can include fines, convictions on your criminal record and even jail.

The ramifications of these penalties can have enormous impact on your life for years to come; some countries, for example, may refuse a visa for entry if you have a conviction recorded for any drug-related or violent offence. Many forms of employment now require Police Checks as a prerequisite, and having convictions recorded can seriously impact your ability to gain or maintain employment. Even though a particular offence may be considered ‘minor’, it is still extremely important to ensure that a mistake does not turn into a lifetime of punishment.

The team at Culshaw Miller Criminal Lawyers understands that everyone can make mistakes, our barristers & solicitors are dedicated to ensuring our clients receive the best possible outcome and avoid being punished too harshly for a simple mistake or minor offence; in many cases, we are able to obtain an outcome where no conviction is recorded and no further penalty is applied.

Culshaw Miller Criminal Lawyers is pleased to offer fixed-fee representation for many common offences – this allows you to ensure that your interests and future are protected by dedicated and experienced barristers & solicitors, while ensuring that bills for legal fees are not causing you even more trouble. Our fixed fees apply to pleas in mitigation for a wide variety of offences, but if you are charged with an offence that is not on our fixed-fee schedule, we still may be able to arrange a customised fixed-fee agreement to suit your circumstances.

Click here to see our fixed-fee schedule for Minor Criminal Offences.

Contact Culshaw Miller Criminal Lawyers today to ensure that your future is protected.

Intervention Orders – The Basics (SA)

Blog post by Rachael Grauwelman-Smith

intervention1In South Australia, intervention orders (‘IOs’), previously called restraining orders, are Court orders made to stop someone (the defendant) from physically or otherwise harming the protected person or a number of protected persons. A protected person can be a child who hears, sees, or is otherwise exposed to an act of abuse against another person protected by an IO, such as the child’s parent.

An IO can also tell the defendant to follow certain directions from the Court. The defendant does not have to be living near the protected person – an order can be made for a defendant living anywhere in Australia. An IO is an order under civil law, which means it is not a criminal charge against the defendant. However, criminal penalties may apply if the defendant breaches the IO. There is no time limit on how long an IO will last for – they are ongoing until a Court revokes it.

An IO can be made to help you if you think it is likely that someone will commit an act of abuse against you, and it is appropriate in all the circumstances (see Intervention Orders (Prevention of Abuse) Act 2009 (SA)). An act of abuse includes more than physical injury; it can also include:

– emotional or psychological harm;
– damage to property; and
– ‘indirect abuse’, such as:

  • where a defendant threatens to hurt someone close to you and this makes you distressed; and/or
  • where a person causes someone else to abuse you.

Intervention orders can be made for domestic abuse cases or non-domestic abuse cases. Domestic abuse cases include abuse against a person who is in a relationship with the defendant, or who used to be in a relationship with the defendant. Where the abuse occurs in a domestic situation, proceedings in the Magistrates Court are usually quicker, with less or no adjournments.

INTERIM INTERVENTION ORDER

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If you urgently need protection, call the police. They are able to issue an interim IO if the defendant is present or in custody. You will then be protected as soon as the defendant is notified. This means you are protected immediately without having to go to court first.

Court-ordered

If you do not need immediate protection, or if the police do not grant you an interim IO, you can apply to the Magistrates Court for an IO. At the preliminary hearing (the first hearing) a magistrate will examine your application and if she or he decides there is enough evidence, an interim IO will be made. For this to happen, the Court must be sure it is reasonable to suspect that the defendant will commit an act of abuse.

ONGOING INTERVENTION ORDER

Once made, the interim IO will require the defendant to appear in the Magistrates Court, usually within 8 days, for the Court to decide if the order should be confirmed (made into an ongoing IO), or revoked, which means the IO stops and you are no longer a protected person under the IO.

BREACH OF INTERVENTION ORDER

If a defendant breaches a term of the IO, he or she is guilty of a criminal offence and could receive a penalty of up to two years in prison. Under the new domestic violence law, if you are protected by an IO and you contravene it, you are not guilty of an offence if your behaviour does not involve another person protected by the IO, such as a child.

If a police officer has reason to suspect a person has breached a term of an IO, the officer may arrest and detain that person.

If you have an IO, you should always report any breach to the police and ask that the police give you the report number. Reporting all breaches of an IO can make it easier for charges to be laid against the defendant.

The Courts Administration Authority of South Australia have published a video for people who want to know more about getting an intervention order.

For more information on intervention orders contact Culshaw Miller Criminal Lawyers.

I’ve Been Arrested! Now What? (SA)

Blog post by Tom Cuthbertson

prisonIf you’ve been arrested then you might have already been charged with a crime. If you have not yet been charged, you may still be charged at a later date. This could mean that you might be served with a summons to go to court on a particular date, required to enter into a bail agreement with the police or even arrested again and held in custody.

Seek Legal Advice!

It is recommended that you seek legal advice as soon as you have been arrested and it is a good idea to consider whether you need to speak with a solicitor prior to any interview being undertaken with the Police. These interviews are recorded with audio-visual equipment and the Police are entitled to present those interviews to the court as evidence against you if you are charged with an offence. During these interviews and all dealings with the Police you have a broad right to refuse to answer any questions; this refusal cannot be used as evidence of your potential guilt. There are some exceptions however, and these include providing your name, address and personal particulars, identifying the driver of a motor vehicle and registration information.

If you are charged with a more serious offence, the Police may decide to refuse you bail and hold you in custody until the next available opportunity for you to appear in court. The law requires that in such circumstances you appear before a court no later than 4pm on the next business day. At this hearing you will have the opportunity to seek bail from a magistrate, which if successful allows you back into the community while your matter proceeds through court. Usually there are some conditions on this release, including curfew times, not contacting any witnesses and, of course, not breaching any laws.

Categories Of Offences

There are a number of broad categories of criminal conduct that determine the seriousness of the charge you are facing.

Expiable offences are the least serious – these include parking and traffic fines or any other offence for which you receive either an ‘on-the-spot’ fine notice or receive one later through the post. You do not need to attend court in relation to these offences provided you pay the fine, which amounts to a technical admission of guilt. If you wish to plead not guilty, then you will have your matter heard before a magistrate. If you are subsequently found guilty in the magistrates court, the fines will often be higher and court-fees will be payable as well.

Summary and minor indictable offences are also generally heard in the Magistrates Court. These offences are defined by the Summary Procedure Act, and although the precise characterisation of these offences is quite technically complex, a good rule of thumb is that summary offences are those punishable by a maximum of 2 years in prison. Some common summary offences include hindering police, various drug and drink driving charges, driving while disqualified, basic assault and disorderly conduct.

Major indictable offences are those that are extremely serious and carry extremely heavy penalties, they include murder, rape, aggravated robbery and aggravated assaults and drug trafficking. If you are charged with a major indictable offence, then the matter will automatically be listed for hearing by a magistrate in a process known as committal. A committal will determine whether, on the crown or police case, there is sufficient evidence for the matter to be committed to trial in one of the higher courts. These courts are the District Court, which is the main court for dealing with serious criminal offending – rape, assaults and drug trafficking – and the Supreme Court which deals, generally, only with murder cases. In the higher jurisdictions a charged person is able to elect to stand trial by a jury or by a judge sitting alone.

If you committed the acts that have been alleged by Police, it might still be the case that you are only guilty of a lesser offence. For example, in drug-related matters, it might be that while the police have alleged that you have been trafficking or dealing commercially with drugs, they were in fact for personal consumption. This can have an enormous impact on the penalties that apply. It is extremely important to seek legal advice before entering a plea in relation to criminal matters. It might even be, in some instances, that even though you have done the acts alleged by Police, they are not technically illegal.

Contact Us

Being charged with a summary, minor or major indictable offence can be an enormous burden; criminal proceedings are often complex, lengthy and result in psychological strain. Culshaw Miller Criminal Lawyers has experience in all areas of criminal law – contact us today to discuss your options with our criminal defence team.