Common Offence Information
A list of Common Offences listed before the local courts of Sydney.
A person who uses or threatens unlawful violence towards another person and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, is guilty of affray and liable to imprisonment for 10 years – however the matter can be dealt with in the Local Court or District Court. Most of these types of charges are completed in the Local Court where the potential penalties are substantially less.
Affray is an increasingly popular charge used by police, often inappropriately, in circumstances where a charge of assault or offensive conduct might suffice, or perhaps to unfairly invoke the harsh bail provisions.
It is worth noting that a person of reasonable firmness need not be present; that a threat cannot be made by the use of words alone; that if 2 or more persons use unlawful conduct, it is their conduct taken together for the purpose of determining whether or not an offence has been committed; he offence can be committed in public or private places.
Common Assault – Assault Occasioning Actual Bodily Harm, Maliciously Inflict Grievous Bodily Harm; Recklessly Inflict Grievous Bodily Harm, Sexual Assault, Indecent Assault, Assault Police, Murder
Assault occurs where a person intentionally or recklessly causes another person to fear immediate violence, which may or may not involve the use of force. Force can include hitting, punching, striking, kicking, pushing, poking, touching or indeed any application of force – it does not matter whether it is soft or hard or whether injury occurs.
There are different categories of assault – some of those reflect the degree of injury and aggravation – such as Assault Occasioning Actual Bodily Harm, Malicious Wounding, Maliciously or Recklessly Inflict Grievous Bodily Harm. Others reflect the nature of the assault such as Sexual Assault and Indecent Assault. There are also offences where a person is assaulted during the course of their occupation – such as Assault Police.
Assault is known at law as an indictable offence that can be dealt with summarily. This means that for a typical assault matter it can be disposed of in the Local Court. Some of the more serious forms of assault however are dealt with in the District Court upon indictment.
The penalties for assault upon conviction can range from a monetary fine to time in gaol.
Assault Police and Resist Police
Assault Police is a category of assault aggravated by the fact that it is carried out on a police officer who is acting at the time in the execution of their duty.
Resist Arrest (also known as Resist Police) is where someone resists the actions of a police officer or police officers who is/are acting at the time in the execution of their duty.
It is not at all uncommon to find that a person charged with Assault Police is also charged with Resist Police. In fact, these 2 charges together with a third offence, typically Offensive Language or similar, were previously used so frequently in combination that they were known as ‘the trifecta’.
An officer can be off-duty but take action, such as to affect an arrest, during which they are assaulted or the accused person resists that officer. The fact that the officer was off-duty, even if they failed to state that they were a police officer, does not invalidate the offence – acting whilst off-duty in the execution of their duties is sufficient – even if there is no intention to assault a police officer.
However, if a police officer was acting unlawfully, then the accused cannot be convicted.
The broad legal definition of assault is the commission intentionally or recklessly causing another person to apprehend or fear immediate violence. We often defend matters where there has been some trivial or minor contact with a police officer in circumstances that the officer could not genuinely claim that they feared immediate violence.
Apprehended Violence Orders and Breach of Apprehended Violence Orders
If you breach an Apprehended Violence Order (AVO), you risk a criminal conviction and criminal record as well as penalties that include steep fines or even imprisonment. You might be forced to move out of your house. You might be prevented or restricted from seeing your children or going to or near a particular location.
For those reasons alone, you should seek the expert assistance of one of our criminal law specialists.
The AVO itself is not a criminal record or conviction – merely an Order of the Court. Sometimes people think that since the AVO is simply an Order, there is no harm or risk in consenting to the AVO being made. **THIS IS A BIG MISTAKE TO MAKE WITHOUT PROPER LEGAL ADVICE***
If you believe the AVO was unnecessary, or obtained by a false complaint, or obtained for some advantage such as preventing one parent from seeing their children, the granting of an AVO can have drastic implications. What is to stop them alleging a breach of the AVO causing you to face criminal prosecution?
How easy is it for a person to simply ring the police and claim that you swore at them, intimidated them, harassed them or perhaps assaulted them – when you know that is a lie? On receiving such a complaint, police would ordinarily take action against you which could involve arrest, refusal of bail or conditional bail, and the necessity to attend Court.
It is therefore essential to seek expert advice from one of our criminal defence lawyers as to what action should be taken in response to an Apprehended Violence order application.
Apprehended Violence Orders (AVO’s) are meant to exist to prevent physical violence, stalking, harassment and intimidation of a person (the PINOP – person in need of protection) by another – usually involving people from a prior or current domestic relationship, but may involve unrelated people who do not have a domestic relationship, such as neighbours.
The intention behind the legislation is good. Some people legitimately need protection just as some people need a Court Order to `behave’.
The problem with AVO’s is that they are so simple to obtain and are often used unnecessarily. Obtaining an AVO, at least on a provisional basis, is as easy as making a complaint to a Court or to a police officer. Complaints do not have to be acted upon, but it is rare that they are not. AVO applications typically arise from a highly emotional response – often justified no doubt, but sometimes a knee-jerk reaction or payback.
The `defendant’ who considers that an AVO has been obtained by a false complaint has to consider carefully what to do. Choices exist of consenting to the AVO being granted with or without admission as to the truth of the complaint. It saves costs, saves time in going back to Court or having to take time off work to attend Court – but at what risk? Alternatively, the application can be defended and in some circumstances attempts can be made to settle the matter by undertakings being given without the formality and consequences of an Order.
Even if an AVO is justified, you should consult one of our criminal law specialists to ensure smooth transition through the criminal justice system.
Successfully defending an application for an AVO sought by your spouse or former partner can be difficult for a number of reasons. Firstly, applications need only be proved on the balance of probabilities, rather than the higher criminal standard of beyond a reasonable doubt. Secondly, applications are often taken out by police on the behalf of the alleged `PINOP’ so you may already find yourself in a position where your spouse or former spouse is legally represented by a police prosecutor and you are not. Thirdly, most allegations occur where there are no witnesses and it is your word against that of someone else.
Often orders will be sought that are `interim’ that apply between your first court date and the date of hearing. These orders can be opposed.
Don’t let an AVO become your worst nightmare sometimes AVO’s should and need to be defended. When you do that you go to a show cause hearing where witnesses are called much like a trial if you were defending a criminal offence.
Break and Enter Offences
When people think of ‘break and enter’ they often think of break enter and steal. However, stealing need not be part of this offence. A person can break and enter and commit an indictable offence such as sexual assault, or intimidation etc.
‘Breaking’ does not necessarily mean breaking a window or door or picking a lock. Simply opening a closed window or door to gain access to premises is sufficient. However, if a person enters through an open window or door, there is no ‘break’ and that offence cannot factually be proved guilty.
There are various forms of aggravating circumstances of a break and enter, including where more than one person breaks into premises, or where a person breaks in knowing a person is at home, or breaks in at night.
The penalties are really severe so you need to get proper advice.
If you have been arrested for buying drugs, dealing drugs, drug charges, or drug importing then you need to be representated by a solicitor who deals in this area of law. .
The most common charge is for drug possession, however other offences include getting caught driving with drugs, failing drug swab testing or the saliva drug test.
All drug offences potentially carry a gaol sentence. Usually though, it is people caught with drugs other than for their personal use that will find themselves in serious trouble. The Drug Misuse and Trafficking Act sets out the penalties for all State drug offences including personal possession and supply of small quantity, trafficable quantity, indictable quantity, commercial quantity and large commercial quantity of the many different types of drugs.
New drug testing laws for drivers involve the use of saliva drug testing essentially to detect if the driver is a recent drug user, whether or not if affects their operation of a motor car.
People caught in possession of drugs or drug dealing may also find their property the subject of assets forfeiture orders, property restraint orders and the like under the Criminal Assets Recovery Act. You do not have to be convicted or even charged with a criminal offence to fall within this legislation.
The bottom line is that if you are in trouble for a drug offence, you need proper legal advice and representation.
Goods in Custody
Offences of goods in custody and receiving involve the unlawful possession of property or unlawful disposing of property.
Section 527C Crimes Act sets out the offence of Goods in Custody. The offence involves the situation where a person has anything in his or her custody, or in the custody of another person, or on premises (whether occupied by that person or not), or gives custody of that thing to person who is not lawfully entitled to possession – in circumstances where the ‘thing’ may be reasonably suspected of being stolen or otherwise unlawfully obtained. Except in cases where the property is a car, the penalty is a maximum fine of $500 and imprisonment for up to 6 months.
There is a statutory defence to police charges of this type if the accused satisfies the court that he or she had no reasonable grounds for suspecting that the item was stolen or otherwise unlawfully obtained.
Police often charge people where they are ‘suspicious’ as to their possession of an item – for example, money, or a nice watch, or a new mobile phone. An example of giving property to a person not entitled lawfully to possession includes pawning the item at a pawn brokers.
Aside from the statutory defence, we often defend these charges on the basis that there are no reasonable grounds for suspecting that the item was stolen or unlawfully obtained. Police suspicion is not always reasonable.
Other technical issues that arise in these matters include the concept of possession, which requires knowledge. If you did not know the item existed, how could you possess it? The timing of the possession is another aspect where we regularly have success.
Receiving is a more serious charge that carries more significant penalties – up to 10 years imprisonment (more if it involves a motor vehicle). It can be dealt with in the Local Court unless an election is made for it to go to the District Court. Receiving involves receiving property knowing it to be stolen, or disposing or attempting to dispose of it.
Receiving is often treated more harshly than the stealing of the goods – “without the receiver there would be no market for the thief” – therefore by deterring the receiver, there is less of a market for stolen goods.
Often when people are charged with Receiving, they will also be charged with Goods in Custody in case it cannot be proved that the accused knew the items were stolen. Goods in Custody is far easier to prove.
Indecent Assault is a particularly serious offence that often carries the risk of imprisonment upon conviction. For that reason alone, you should seek the immediate advice.
The offence of indecent assault involves an act of indecency occurring at the time of the assault. It is not as serious as a sexual assault but is still considered serious. It has sexual overtones because of the nature of the indecent act. The offence does not include penetration
Often the allegation will involve inappropriate touching or fondling of breasts, buttocks or genitalia without the consent of the person touched. Certain offences are aggravated, such as the inappropriate touching of a child – where consent has no part to play.
In certain circumstances, the offence can be dealt with in the Local Court. However, sometimes the factual allegations are so serious that the matter ends up in the District Court where the penalties are much more significant.
There are inherent problems with indecent assault prosecutions unless a person is caught in the act or makes an admission. By the very nature of the offence, it is mostly committed without independent witnesses. There is frequently a delay in the complaint being made due to the age of the alleged victim or due to embarrassment or a lack of recognition that what occurred was ‘wrong’.
We have dealt with a number of defended matters over the years where false complaints have been made for a variety of reasons. Such reasons include perceived rudeness by the adult to the child (resulting in an allegation of indecent assault by touching externally on the vaginal area); an accusation against the new boyfriend of a single mother by her child because the child saw the new boyfriend as a threat to her quality time with her mother (allegation of masturbating over the child); an accusation of groping an fondling where the teenagers immature advances to the adult male were rejected – just to pay him back!
There is no denying that indecent assaults occur and some clients seek our assistance making full admissions, wanting our expert assistance in helping them with the sentencing process. This can include gaining access to pre-trial diversion courses, counselling, pre-sentence reports and character material.
Whether you wish to defend the charge or want assistance in the sentencing process you need proper legal advice. .
Malicious damage means intentionally damaging property. It cannot be accidental – if it is, there is no offence committed. Malicious damage can occur through recklessness. It also includes temporary damage or making something temporarily unusable such as by graffiti or urinating on some object requiring it to be cleaned.
The precise circumstances of an incident may make it difficult to distinguish between malicious, reckless and accidental actions. Someone witnessing an incident might believe the other person’s actions were deliberate, however that person might not agree.
Alcohol and anger often play a part in the damage of property. They might also play a part in the view taken by a witness or owner of the damaged property.
If you have been accused of malicious damage, you need to seek proper legal advice. Penalties can be severe and include the potential for imprisonment.
Stealing or Larceny
Stealing basically involves taking a persons property, without consent, without a claim of right over the property, and with the intention of permanently depriving the person of the use of their property.
It can occur in so many different ways that it is hard to list. It includes shoplifting and it can include finding property (such as money or a watch or wallet) in the street and deciding to keep it – referred to as stealing by finding – whereby the acquisition of the property might not have been unlawful at the time.
Stealing potentially carries a sentence of imprisonment and is treated seriously by the courts. The value of the property may have some part to play in the sentencing process, as will the circumstances in which the offence is alleged to have occurred – such as the degree of planning used in committing the offence or whether there was a relationship of trust between the owner and the person who took the property.
Sometimes however a person has a claim of right of the property that they took. They might honestly hold a belief that they were entitled to take possession of the property – and therefore might not be guilty of any offence.
It is possible to steal your own property! For example, if you took your car for repairs but failed to pay the account and the mechanic refused to hand over your car until payment was made, you could be charged with stealing if you used a spare key to take your car because the mechanic had special ownership over your property.
Stealing is an offence of dishonesty and this is reflected in the punishments imposed by Courts.
If you are charged with a stealing matter, you need to seek proper legal advice.