Home Detention: Can I serve my gaol sentence at home?

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The Statutes Amendment (Home Detention) Bill 2016 has passed the House of Assembly and is currently awaiting assent. The gravamen cannot be overstated for those awaiting sentencing for serious matters. Whereas previously,  a court having determined a sentence of imprisonment was appropriate had only to determine whether ‘good reason’ existed to suspend a sentence (that is, the sentence would not actually be required to be served subject to a bond) the amendments to the Sentencing Act now effectively introduce a further step. Upon finding that no good reason exists to suspend a sentence of imprisonment, the question is to be asked whether home detention is suitable.

What is home detention?

Home detention, heretofore reserved for those on a strict form of bail or alternatively for sentenced prisoners having served half of their non-parole period, is a custodial arrangement where the prisoner resides at their home and is allowed to leave only for specific purposes such as medical appointments, arranged shopping visits, legal appointments and, crucially, employment.

The key benefit of the introduction of the home detention sentencing arrangements is that an offender, who for whatever reason is unsuitable for a suspended sentence, is able to serve their term with a minimum of disruption to their employment, family life and without suffering the detrimental alienation from the community that inevitably follows a sentence of imprisonment.

Prisoners on home detention are required to be monitored closely by the Department of Corrections, through the use of GPS ankle bracelets, drug testing and frequent contact.

Will I be eligible?

The amending bill introducing the provisions remains untested and there is no body of law that currently defines a ‘suitable person’. The provisions are broad. The test appears to be centred on the key question of the suitability of the premises proposed for the detention and the protection of the community. Thus, it would appear that in circumstances where they may be an extant threat to a victim of violent offending, or where the prisoner has displayed a tendency for recidivism in the commission of crimes that present a danger to the community, home detention would be difficult to secure. On the other hand, all forms of non-violent offending would likely be appropriate for such a sentence.

The standard considerations with respect to the imposition of a custodial sentence, such as general and personal deterrence would still apply. Where home detention would fail to satisfy those requirements, it remains the case that notwithstanding the offending being ‘non-violent’ such a course could well result in a error of law.

 

If you’ve been charged with an offence and require advice or representation or would like to discuss your matter, call Culshaw Miller Criminal Lawyers on 08 8464 0033 or book an appointment here. For 24 hour advice and representation, call Tom Cuthbertson on 0423 534 621 or e-mail at tom.cuthbertson@culshawmiller.com.au. 

 

Assault- The difference between major and minor indictable offending

There is a distinction to be made between an assault in which a victim (or an alleged victim) is occasioned no significant injuries and an assault in which the victim suffers genuine harm.

 

The basic offence of Assault is defined by section 20 of the Criminal Law Consolidation Act 1945 (SA) (CLCA). An assault occurs if there is any intentional and unwanted physical force against a victim: a typical example being kicking, punching or hitting of a person.

 

Harm is defined by the CLCA as being either physical harm (being pain, disfigurement, unconsciousness or infection with a disease), or mental (psychological) harm.

 

Naturally, more serious penalties are prescribed for the offence of Assault Cause Harm. The maximum penalty prescribed for a basic offence is imprisonment for three years, four years imprisonment for an aggravated offence and five years for an offence aggravated by the use of an offensive weapon.

 

As will be obvious enough, much turns in relation to this offence on whether or not harm has actually or arguably been caused to a relevant victim. It is important to seek legal advice at a very early stage to seek advice and determine whether the correct charge has been laid in respect of the relevant act: it may be that the act or consequence constituting “harm” as in a particular case may be insufficient to sustain a conviction for Assault Cause Harm. In that instance, it may be appropriate to seek to negotiate with the prosecution to have the charge downgraded to one of basic Assault, in exchange for a plea of guilty.

 

Sentences vary widely for the offence of Assault Cause Harm and correlate directly to the severity of the harm caused to a victim: even in the case of relatively significant harm being caused to a victim (but not the infliction “serious harm”, which conduct is covered by a different set of offences), it is not at all uncommon for a defendant of good character and with minimal relevant criminal history to be sentenced to a simple bond to be off good behaviour in lieu of a prison sentence, or a bond to be of good behaviour but subject to the defendant being recalled for sentence following any breach of that bond. In suitable cases, it may be that an application can be made to the court that no conviction be recorded for the offence in question.

 

If you have been charged with an offence of Assault Cause Harm, it is important that you seek the advice of expert criminal lawyers as soon as you are able. Call us today for a review of your matter at no charge. We are available 24-hours a day on (08) 8312 4520 or e-mail Tom or Alex at tom.cuthbertson@culshawmiller.com.au and alex.panousakis@culshawmiller.com.au

Abuse of Public Office & Corruption Offences

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South Australia has a formidable and active anti-corruption policing mechanism and robust laws to deal with corruption offences that arise from being an employee or agent of the public service or a holder of public office. The recent addition of the Independent Commission Against Corruption and the existing Anti-Corruption Branch of South Australia Police are widely known as being aggressive and pro-active in investigating and pursuing allegations of corruption or the abuse of public office.

What is an abuse of public office? 

The present state of the law makes the use of any vestment of public authority in pursuit of a benefit to which the office-holder is not entitled a prima-facie form of corruption; while it is obvious to say that pursuit of a cash-kickback to influence a decision to award a tender would constitute an offence of corruption, the laws have been interpreted widely by both ICAC and anti-corruption branch to cover a host of scenarios that may, at first glance, seem more as a grey area or innocent assumption of a fringe-benefit.

In relation to a police officer who was alleged to have accessed information about motor vehicles, registration and the owners of same and provided it to his brother-in-law who was a debt collector, the Court of Criminal Appeal in R v Austin [2013] SASCFC 133 approved the following directions as to the elements of that offending:

  • 1. that the officer acted contrary to standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by police officers;
  • 2. that the officer knew he was acting improperly or was reckless in acting improperly;
  • 3. that, having regard to the circumstances in his position, the improper conduct of the officer warranted the imposition of a criminal sanction;
  • 4. that the officer did not act in the honest and reasonable belief that he was lawfully entitled to use the information;
  • 5. that the officer did not have lawful authority or a reasonable excuse for accessing and disseminating the information; and
  • 6. that the officer’s conduct was not trivial and could not be said to have caused no significant detriment to the public interest

It was also accepted by the Court that there was no requirement that a benefit was secured by the public servant in question, only that the intent of a benefit vesting in some person (in this case, the brother-in-law) was present at the time of the offending. The benefit need not be monetary.

This example demonstrates the wide net that may be cast in such circumstances; the provision of information, even of a low importance, that may benefit the recipient can put a public servant at risk of serious criminal liability.

ICAC and the Anti-Corruption Branch:

ICAC, by virtue of the Independent Commissioner Against Corruption Act 2012, has both broad powers and an unfettered discretion in the instigation of investigations. There are special requirements attaching to interactions with ICAC that are complex in scope. If you are involved or have been asked to attend at an interview or investigation with ICAC, it is essential that you seek legal advice immediately. This is doubly so where allegations of public corruption are concerned.

South Australia Police Anti-Corruption Branch has traditionally and until the instigation of the ICAC been the primary law-enforcement unit tasked with investigating police and public service corruption and even following the establishment of ICAC plays a frontline role, often working with ICAC.

If you are concerned you are being investigated, interviewed or have been arrested in relation to an offence of public corruption or misuse of a public office, it’s important to seek legal advice as to your specific rights and the merits of a defense at the earliest opportunity. For twenty-four hour advice and representation, call Culshaw Miller Criminal Lawyers on 8464 0033 or 0423 534 621. 

Trafficking in a Controlled Drug: Commercial & Large Commercial Quantities

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In South Australia, there are three forms of “drug trafficking” that are determined on the quantity of the controlled drug that is alleged to have been detected; the differences in penalty, both in terms of maximum and the practical sentence that is likely to be imposed by a court, can vary immensely on the basis of these deeming provisions. The three broad categories, all determined by quantity are:

  1. Trafficable quantity;
  2. Commercial quantity; &
  3. Large commercial quantity

Given that a large commercial quantity offence carries a maximum term of life imprisonment, and is based on ‘deeming’ provisions relating to weight, it’s important to be aware of how this is determined. The Schedule to the Controlled Substances Act provides a thorough guide to the relevant amounts of a huge variety of drugs and the respective amounts required to be caught in one of the more serious categories. While the list is non-exhaustive, it include a great many lesser-known analogous or synthetic variants of more commonly known drugs. We set out the more common substances, and the relevant prohibited amounts, as follows:

Methylamphetamine: An impure quantity of 2 grams of Methylamphetamine will be deemed trafficable, while for a quantity to be commercial, 500 grams of a mixed or 100 grams pure form the threshold. The most serious offending, that of a large commercial quantity, starts at 750 grams of the drug in pure form or 1 kilogram of a mixed quantity.

Cocaine:  An amount of more than 2 grams of cocaine will be deemed to be a trafficable quantity, while 200 grams of mixed Cocaine or 100 grams of pure cocaine will be deemed a commercial quantity; similar to methamphetamine, 750 grams of pure cocaine and a kilogram of the mixed drug will be a large commercial quantity.

Ketamine: Has a high-threshold limit for trafficking, with six-grams being the relevant amount in a mixed quantity; there is no provision for a pure quantity, but 500 grams will be deemed commercial and two kilograms a large commercial quantity.

Ecstasy: MDMA, MDA & MDEA all have relevant thresholds of two grams mixed to be deemed trafficable, (this can include in tablet/pill form); 500 grams mixed and 100 grams pure for a commercial quantity and 1 kilogram mixed or 750 grams pure for a large commercial quantity. This could be said to be surprising given the relatively increased fatalities associated with non-MDMA variants.

Cannabis: Cannabis is treated somewhat difficulty; in terms of growing plants, then 10 plants is the minimum for a trafficable amount, with 20 being commercial and anything over 100 constituting a large commercial quantity. In terms of dried material (excluding resins and oils), 250 grams or more is required for an amount to be traffickable; 2 kilograms of mixed cannabis or 1 kilogram of pure cannabis will make up a commercial quantity and 12.5 kilograms of mixed or 2 kilograms of pure cannabis will constitute a large commercial quantity.

Multiple Drugs: The legislation provides for an algorithm to determine whether someone possessing smaller amounts of multiple proscribed drugs is guilty of an offence; generally, the method is to determine the fractional amount of each drug against the proscribed threshold amount. For example, someone possessing half a kilogram of cocaine, mixed, will have 50% of the large commercial quantity quota. If that person also has one kilogram of Ketamine, then they have another half of that quota. When multiplied, they have at least 100% of the quota and are deemed to be in possession of a large commercial quantity.

Trafficking in even small amounts of controlled drug will usually attract a sentence of imprisonment for at least 18 months for a first offence. If you’ve been charged with drug trafficking or worried that you may be deemed to have in your possession a trafficable amount of a controlled substance, Culshaw Miller Criminal Lawyers are available to provide advice and representation twenty-four hours a day. Tom Cuthbertson can be contacted on 0423 534 621, or telephone 08 8464 0033 to make an appointment today. 

Sentences for Drug Trafficking in South Australia

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Drug trafficking, or trafficking in a controlled substance, is considered a serious offence. While many people may think having possession of a moderate amount of drugs is not such a big deal, the reality is that in most cases possession of particular amounts of drugs is sufficient to give rise to a presumption of trafficking, and further that the penalty for a first-time offence of trafficking in a controlled drug, whether it be heroin, ecstasy or cocaine, is a sentence of imprisonment. Generally, one can expect a sentence of between 12 months and three years. Only in extraordinary circumstances will a penalty other than one of imprisonment flow from a conviction for trafficking. If the matter is one of trafficking in a large commercial quantity, then it becomes even more serious again with very hefty criminal sentences applying.

South Australian Courts remain, however, bound by the ordinary factors that can operate in favour of a sentence of imprisonment being suspended. It is absolutely essential if you are charged with drug trafficking and intend to plead guilty. These factors, focus on the likelihood of the accused to re-offend, this is determined with reference to a multitude of factors and there are a number of ways that a Court may be convinced, even where the accused has a poor criminal record, that the likelihood to re-offend is minimal.

A suspended sentence is a sentence of imprisonment that does not need to be served right away; effectively an accused will enter into a bond with the Court; in that bond the court agrees not to send the accused to gaol and the accused agrees to be of good behaviour (not commit further crimes) for a period of time as well as some other conditions that are occasionally present. If the accused breaches their bond, then they will not only be sentenced for the new crime but will have to go back to Court for the previous crime and may be required to serve the sentence that was suspended in the first place.

If you’ve been charged or interviewed in relation to drug trafficking, it’s important to speak with expert criminal lawyers at the earliest opportunity. Even before you enter a plea, it’s important to make sure that the evidence has been looked at and that negotiations have been entered into with the Crown. Sometimes, being in the possession of drugs will not be enough to secure a conviction and evidence may exist that rebuts one of the presumptions. It’s also important to check whether any search or intercept that may have taken place was lawful, otherwise the evidence may be inadmissible. With so much at stake, it’s important that drug trafficking matters are treated seriously.

To discuss your matter with one of our team or to arrange for a free case review then call us today on 8464 0033 or if you require advice urgently, you can contact Tom Cuthbertson 24 hours a day on (08) 8312 4520 or by e-mail at tom.cuthbertson@culshawmiller.com.au

Intervention Orders: What should I do if I’m served?

-Tom Cuthbertson

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Intervention Orders, arising out of the Intervention Orders (Prevention of Abuse) Act are an incredibly powerful tool that can be used either through the Police or through private applications in order to regulate personal relationships where there is a risk, or alleged risk, of abuse. While such orders have existed in some variety for a long time, the 2009 Act has strengthened the nature of the orders significantly and, as a consequence, if you are served with an intervention order it is essential that you are properly advised as to how to proceed.

Intervention Orders are often coupled with criminal allegations of assault or a similar nature. Ultimately, it is not uncommon to see that the Police will agree to discontinue or ‘tender no evidence’ with respect to the substantive criminal allegations on the basis that the accused agrees to ‘consent’ to the interim Intervention Order being converted to a Final Order. Often, the stress of facing serious criminal charges will induce an accused person to agree to the Intervention Order being finalised as the most apparently expeditious way of ending the proceedings. This is not something that ought to be done without considering the ramifications of an Intervention Order.

Once an Intervention Order has been confirmed, whether following trial or by consent, then it does not expire unless an Application to Vary or Revoke is brought under the Act; even then, such an application must demonstrate some change in circumstances, without which, the Magistrate hearing the application may dismiss it without hearing further evidence. The effect of this is that Intervention Orders are not capable of being simply revisited down the track and a variation sought where there hasn’t been that change in circumstances. The test at trial presents a lesser hurdle; the applicant (usually Police) need to prove on the balance of probabilities that in the absence of an intervention order the accused is likely to commit a further act of abuse against the applicant. While this does not require the police to prove an act of abuse to the criminal standard, generally, a specific allegation of violence or other abuse under the Act’s extraordinarily broad and non-exclusive definitions, will be lead by the Police in support.

It is particularly important for a defendant to be mindful of the ongoing and serious implications of an Intervention Order, including but not limited to:

  • No person, save for those required to carry firearms for very specific employment purposes, may possess firearms while subject to an Intervention Order;
  • Contraventions of Intervention Orders, whether ‘innocent’ or not, which can be as simple as passing on a message through a friend, carry a maximum penalty of 2 years imprisonment;
  • Where the protected person contacts you, attends at your home or otherwise causes a breach they cannot be charged with ‘aid and abet’ or otherwise subject to criminal proceedings, however the accused may still be charged;
  • There are consequences with respect to access to children, workplaces, schools and private property that arise out of an Intervention Order.
  • Intervention Orders, even if agreed to on a ‘no admission basis’ can show up in certain workplace/employment police clearance checks and may affect employment prospect

The Intervention Orders (Prevention of Abuse) Act 2009 is one of the more powerful pieces of legislation at the disposal of Magistrates in South Australia due to the far-reaching consequences, lower threshold for a positive finding and the implications for severely restricting the movement, access to private property and often personal lives of defendants. While they are common, this does not mean they ought to be taken lightly. Breaching an Intervention Order, even with the permission of the protected person, can have serious consequences and carries serious penalties.

If you’ve been served with an Intervention Order, it’s important to seek legal advice immediately and to ensure that you are fully informed of the consequences before making any decision as to how to deal with it. You can call Culshaw Miller Criminal Lawyers for 24 Hour advice on 0423 534 621, or alternatively make and appointment online for a free case review.

 

DNA Evidence: a silver bullet for convictions?

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It’s common to hear the media report that the Crown has DNA evidence that means that DNA found is “4 billion times more likely to have come from the accused than a random person” or similar. Often, people mental equate this position to one of clear inferred guilt. After all, four billion to one are long odds indeed. Jae Gerhard, principal at Independent Forensic Services, reminds us that such calculated statistics are not, in fact, the “odds that the person did it”- rather,like any evidence, it is capable of being interpreted in a variety of ways. The key aspect to DNA in terms of it’s potential in court is the effect that hyperbolic sounded calculated statistics and complex science can provide a veneer of irrefutable objectivity, when the reality is that like any evidence tendered by the Crown, it can and often ought be subject to testing by defence counsel for various subjective biases, misinterpretation, contamination and simple error. We will address two of the more significant issues identified by Independent Forensic Services in relation to the current situation with DNA evidence as utilized in criminal prosecutions.

The Type of DNA is Crucial:

The mere presence of the DNA purported to be that of the accused at a crime scene will often be incapable of giving rise to any inference of guilt; this is especially true where the DNA sample is irrelevant to the scene- while blood may be relevant where the crime is a violent struggle, or semen if the crime is sexual in nature, other forms of DNA may well be entirely irrelevant. Indeed it may not even be able to be taken as far as demonstrating that the accused was present. Transference of DNA can occur; this may be where two people hold the same glass at a party, and person (2) later opens the door to a house and leaves a sample of person (1)’s DNA on the door knob. It is essential, in that sort of instance, to get evidence with respect to transference before a jury as, on the basis of the common “four billion to one”, that the jury will otherwise here, it sounds tremendously likely that person (1) was, in fact, at that house.

The Number of Contributors:

DNA, particularly insofar as a violent, high-traffic, crime-scenes are concerned, will often result in what is called a “mixed profile”: that is a profile containing DNA from two or more contributing people. Significant difficulty can arise when this evidence is assessed and the number of contributors ought to be the subject of rigorous verification when such evidence is produced by the Crown. In the first instance, Independent Forensic Services have found that 76% of “4 person” mixtures, will appear to be 2-3 person mixtures in the context of the current police DNA assessment procedures. The importance of this cannot be understated.

Take the example that a murder had been committed. For arguments sake, assume the innocence of the accused, but the police having identified him as a key suspect very early due to known anger towards the victim. The combination of cognitive bias and weak forensic procedure may well result in evidence as follows:

  1. Mixed profile DNA with two contributors was found at the crime scene;
  2. There is a clear suspect, being the accused;
  3. It is 4 billion times more likely that the accused was a contributor than a random person;
  4. It is 7 billion times more likely that the victim was a contributor than a random person.

On the basis of the above, were the evidence allowed to be presented as such unchallenged, then logically, one would be defending only on the basis of alternate hypotheses as to how the defendant’s DNA ended up at the scene. The weakness, obviously, being the lack of other DNA from a potential “alternate killer”- it’s a case theory that will be difficult from the start. The logical assessment of that evidence, taken unchallenged as is often the case with DNA, appears to be a clear inference of guilt.

Imagine, however, that the number of contributors is re-checked by an independent analysis and determined to be four contributors rather than two. In the first instance, the innate scientific credibility attached to Crown DNA evidence is injured in the eyes of the jury. More importantly, however, you have two additional persons with DNA at the crime scene; as long as those remain ‘unknown persons’, then you indeed have a number of immediate and simply hypotheses consistent with innocence.

Verifying Crown Evidence: A Worthwhile Exercise. 

It is not uncommon that the Crown case appears insurmountable and incontrovertible at first blush. It is equally common, that the seemingly watertight declarations and identification begin to fall apart at the seams once a thread is pulled and scrutiny is applied; either being inconsistent or entirely consistent with a hypothesis consistent with innocence. DNA evidence can be treated similarly; the frightening complexity of some aspects of the science can be dispensed with by way of engaging the appropriate experts at an early stage. Items can be subject to independent testing, and reports can be prepared for the defence. As DNA becomes more commonly the linchpin of criminal prosecutions, then it becomes commensurately more important to subject that evidence to the same dispassionate cynicism with which any declaration is treated; feeling as though you need to plead guilty because the “police have DNA” ignores the fundamental unreliability and inbuilt biases within the reports as they are tendered to the court.

Culshaw Miller Criminal Lawyers are available to provide a case review at no cost. Contact Tom Cuthbertson on 8464 0033 or book a review online for a response within 12 hours.

Independent Forensic Services are able to provide a wide variety of independent DNA analysis, including for those charged with a criminal offence;