Clarity Law

Specialist Criminal Law Firm Queensland
Monday, 11 December 2023 18:00

Leaving a child under 12 unattended

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leaving a child unattended

The law in Queensland provides that it is an offence to leave a child under the age of 12 unattended for an “unreasonable time” without making provision for their supervision and care.

 

Legislation

The relevant legislation is the Criminal Code 1899 - Section 364A.

The law states that;

A person who, having the lawful care or charge of a child under 12 years, leaves the child for an unreasonable time without making reasonable provision for the supervision and care of the child during that time commits a misdemeanour.

Penalty—

Maximum penalty—3 years imprisonment.

Whether the time is unreasonable depends on all the relevant circumstances.

 

What does the prosecutor need to prove?

The prosecutor would need to prove all of the following;

  1. The person had lawful care or charge of a child

  2. The child was under 12

  3. The person left the child

  4. The time the person left the child alone was unreasonable

  5. The person did not make reasonable provision for the supervision or care of the child

 

Determination of unreasonable time

Whether the time is unreasonable depends on all the relevant circumstances. The court would likely look at the following factors

  • The age of the child. Obviously the older the child the more reasonable it is to leave the child alone

  • The maturity of the child. The more mature the child the more likely then could care for themselves

  • The length of time the child was left alone

  • Whether the child had access to neighbours or a phone to seek help if something occurred

  • The reason the child was left alone

 

Penalty for the charge of leaving a child unattended

The maximum penalty for committing an offence against this section is three years imprisonment. The court can impose a lesser sentence and has the option whether to record a conviction or not.

 

Examples of the charge of leaving a child unattended

AJM v Commissioner of Police

The defendant drove his vehicle into an underground carpark attached to a Shopping Centre at New Farm. The recorded temperature on this day was 38 degrees Celsius. The defendant parked his vehicle in the undercover carpark. At this time, his 4 year old son was restrained in a car seat in the front, passenger seat of the vehicle. He had been asleep, but stirred. The defendant asked his young son if he wanted to come into the shops and the child indicated that he did not.

The defendant turned the vehicle off. He left the front, passenger seat window down and he left the vehicle unlocked. He took the car keys with him. A short time later, a witness observed the defendant’s son in the vehicle. The witness remained with the young child while his wife went up the stairs to the shops to look for the defendant. She could not find him. The witness then opened the door to the vehicle so that he could fan the defendant’s son. He attempted to wake the young child but he was unable to do so.

Approximately 15 minutes after first observing the defendant’s son in the vehicle, the witness contacted the police and they arrived about five minutes later. The police also attempted to wake the young child but were unable to do so. It was thought by the police that he was unconscious. The child was removed from the vehicle to an air-conditioned police vehicle and subsequently transported by ambulance to hospital as a precautionary measure. He was released a short time later.

The defendant pleaded guilty.

 

Kim v Commissioner of Police

The victim child was five years old. Approximately 11am police attended a house at Windsor, in relation to reports a young child could be heard calling out at the address and sounding to be in distress.

Upon arrival, police observed the victim child at the address. However, the child could not open the door for police. Police forced entry to the address, located the victim child within the residence alone. The child was located wearing winter clothing. The unit was hot, and observed to be locked up with no fans or windows or doors open. There was food and drink left out for the child. The victim child was changed into cooler clothing by police, and QAS attended. They said the child was in good health, however, was very thirsty.

At 12.25pm that day, the defendant returned to the address. The defendant stated that she was the child’s auntie. The defendant admitted that she had been at work since 9am that morning, that she had returned home on her break at work to check on the victim child, and intended to return to work after she had checked on the child.

There was no supervision or provision for care for the victim child arranged.

The defendant pleaded guilty.

 

Defences

The following might be a defence to the charge;

  1. The person did not have lawful care or charge of the child

  2. The child was over 12

  3. The person did not leave the child unattended

  4. The time the person left the child alone was reasonable in all the circumstances

  5. The person made reasonable provision for the supervision or care of the child

 

What court hears the charge?

The charge is a misdemeanour and so the matter will be heard in the Magistrates Court.

 

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the time the child was left was reasonable in all the circumstances and so the charge should be withdrawn.

 

Will I get a criminal conviction if I plead guilty to the charge?

The answer is possibly. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to a charge of leaving a child unattended.

 

What should I do if the police want to talk to me or charge me with leaving a child unattended?

You need immediate legal advice from an experienced criminal defence lawyer. Saying the wrong thing to the police can assure you will be convicted of the offence or receive a more serious penalty. There are things you can do to protect your interests and rights or minimise the penalty if you plead guilty, a lawyer will be able explain what exactly you need to do or shouldn’t do.

 

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

  1. Use our contact form and we will contact you by email or phone at a time that suits you

  2. Call us on 1300 952 255 seven days a week, 7am to 7pm

  3. Click here to select a time for us to have a free 15 minute telephone conference with you

  4. Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

  5. Send us a message on Facebook Messenger

  6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.

Thursday, 07 December 2023 19:43

What to do if wrongfully accused of shoplifting

Steven Brough

Wrongfully accused of shoplifting

Charged with shoplifting when innocent? If you have been wrongly accused or charged with shoplifting what should you do to protect your rights?

 

What actually is shoplifting?

There are two different charges under Queensland law for shoplifting, that is “shoplifting’ if the alleged theft involved good less than $150 or ‘stealing’ where the goods are alleged to have cost more than $150.

 

What does the law say?

The Regulatory Offences Act defines shoplifting as follows;

5 UNAUTHORISED DEALING WITH SHOP GOODS

(1) Any person who, with respect to goods in a shop of a value of $150 or less—

(a) consumes them without the consent, express or implied, of the person in lawful possession of them; or

(b) deliberately alters, removes, defaces or otherwise renders indistinguishable a price shown on them, without the consent, express or implied, of the person in lawful possession of them; or

(c) whether or not the property in the goods has passed to the person, takes them away without discharging, or attempting honestly, or making proper arrangements, to discharge his or her lawful indebtedness therefor;

is guilty of a regulatory offence and, subject to section 9, is liable to a fine of 6 penalty units.

(1A) Without limiting subsection (1) (b) , a price may be shown on goods by a bar code or a similar device.

(2) It is a defence to a charge of an offence defined in subsection (1) (c) to prove the taking away of the goods was not dishonest.

 

What are the defences to shoplifting?

The main defence would be that you did not take the goods dishonestly. That is, you had an intention and ability to pay for the goods but something has occurred and you have left the premises without paying for the goods but importantly did not do so dishonestly.

For example you may have intended to purchase the store goods but left the store without paying for them because;

  1. You thought you scanned the goods at the self checkout but actually didn’t
  2. The goods were caught up with other goods and you did not notice
  3. You genuinely forgot to pay for some goods

The key thing is that the non payment of the taken goods must not be dishonest.

 

If I had a defence why did the police charge me?

The problem is that dishonestly taking goods and honestly forgetting to pay for goods look basically the same. You have entered a store and then left without paying for some or all of the goods. This is the fundamental difficulty with shoplifting its hard to distinguish between genuine mistake and actual theft.

Generally we have found that the police would do the following when determining if someone should be charged with shoplifting;

  • Talk to any store staff or detectives to see what they say occurred
  • Look to any store footage
  • Look at what goods were allegedly stolen
  • Look at how the goods taken without paying were removed from the store
  • Check the criminal history of the accused

 

I didn’t shoplift, what should I do?

Understanding your rights is fundamental when facing false accusations. You have the right to:

  • Remain silent: You are not obligated to answer questions without legal representation present.
  • Request to speak to a lawyer: Invoke your right to a lawyer immediately, and don't proceed with any questioning until one is present.

It is generally ok to return the goods you didn’t pay for but without legal advice do not give a statement to the police or store employees.

If you are arrested then the first step is to talk to a experienced lawyer who can give you advice and outline how the approach the matter before the courts.

You should also make a written summary of everything people said to you including store members and police. Have a look can you see cameras in the store? Or any witnesses that saw what occurred.

 

What would a lawyer do if I’m not guilty of shoplifting?

First the lawyer would talk you through your different options and best strategies so you understand the process.

Then they would probably;

  1. Request from the prosecutor a copy of their court brief (called the QP9)
  2. Request any footage from the prosecutor
  3. Look at the allegations in the QP9
  4. Take your statement
  5. Determine the strength of the police case
  6. Look to do case conferencing.

Case conferencing is the process of trying to get the prosecutor to drop the charges without the charge needing to go to a trial. This would be the absolute best outcome as the charge would go away and no trial would need to occur.

Learn more about case conferencing.

If the case conferencing did not result in the charge being withdrawn then you would have to make one of two choices, either plead guilty to the charge or plead not guilty and have a Magistrate decide if you are guilty nor not.

 

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

  1. Use our contact form and we will contact you by email or phone at a time that suits you

  2. Call us on 1300 952 255 seven days a week, 7am to 7pm

  3. Click here to select a time for us to have a free 15 minute telephone conference with you

  4. Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

  5. Send us a message on Facebook Messenger

  6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.

Also check out our main shoplifting page for more information.

Monday, 04 December 2023 16:24

Introduction to Liquor Law Infringements

Jacob Pruden

liquor licence offences qld

Under Queensland law, the serving of alcohol by business establishments is regulated by legislation, with hefty penalties for non-compliance with the laws. This article will touch on these penalty provisions, rather than the laws with respect to applications for liquor licences.

 

The Relevant Laws

Liquor Regulation 2002

Liquor (Approval of Adult Entertainment Code) Regulation 2002

Wine Industry Regulation 2009

 

Offences and Penalties

The liquor laws are enforced by specially appointed police and Office of Liquor and Gaming Regulation investigators. The laws apply to those who sell liquor, whether a licenced premises or even online.

Under the Liquor Act 1992, there are more than 100 offences. They are generally dealt with by way of “on the spot” fines, which can be as high as $3,096 or as low as $309. The higher fines are for such infringements as:

  • A manager of a licenced premises selling liquor to a minor.
  • A manager of a licenced premises failing to prevent a minor from being in a pokies area.
  • A manager of a licenced premises allowing liquor to be supplied to a minor.
  • A manager of a licenced premises allowing liquor to be consumed by a minor on the premises.
  • Selling liquor without a licence.
  • Displaying liquor for sale without a licence.

The lower fines are for such infringements as:

  • Failure to comply with Commissioner’s direction to repair ID scanner.
  • Licensee fail to keep premises clean or in good repair.
  • Fail to obtain approval for premises name change.
  • Licensee allow sale, supply or consumption of liquor in car park.

More serious infringements can lead to fines of tens of thousands of dollars and other penalties. For example:

  • Allow a disorderly patron to consume liquor: Maximum $77,400.
  • Licensee engages in practices or promotions that encourage rapid or excessive consumption of liquor: Maximum $15,480.
  • Failure to comply with CCTV conditions: Maximum $15,480.
  • Allow intoxicated patron to consume liquor (how many times would this occur each weekend?): Maximum $77,400.
  • Selling alcohol without a licence: up to $154,800 and 18 months imprisonment.

In case these eye-watering fines were not enough, the laws also give authorities the power to punish breaches of the Act by forcing a business to limit its opening ours, close its premises, or even cancel its liquor licence entirely.

 

What If You are Fined for A Liquor Licensing Matter?

An individual or business need not accept an on-the-spot fine, especially in circumstances where operators of the venue or staff had no knowledge of the offence. Offences like “allowing a disorderly patron to consume liquor” raises some subjective questions such as: what is disorderly? What if the person consumed liquor out of sight of staff? What if the person was briefly ‘disorderly’ and then settled down? In ambiguous cases like these it may well be worth challenging a massive fine or licence restriction.

A matter can be challenged in the Magistrates Court. Assuming a solicitor is engaged, this will then open the door to negotiations with the Office of Liquor and Gaming Regulation, with an aim of getting rid of the infringements entirely, or at least reducing the fines. Liquor licences are costly enough as it is (thousands of dollars) without business owners or employees being hit with hefty fines for possibly unintentional infractions.

If you find yourself in such a situation, Clarity Law can help. We are experienced in defending traffic, criminal and regulatory matters. We don’t take Legal Aid cases which means your case will get the attention it deserves.

gun licence DVO

So what happens to my firearms if a DVO is placed on me?

This is a common question, and one not often understood by people who are going through the process of a Domestic Violence Order.

Having a domestic violence order made against you can have a number of impacts on an individual, including consequences that you did not foresee. One such consequence is the effect on a person’s weapons licence or their ability to get a weapons licence.

 

What does the law say?

The Weapons Act provides that when a person is placed on a temporary protection order, Police Protection Notice or release conditions, their licence is suspended whilst that order, notice or conditions are in force.

The Weapons Act further provides that if a person is subject to a finalised Domestic Violence Order, then their licence is revoked.

 

When does the suspension/revocation take effect?

The suspension or revocation of your firearms licence takes place at the earlier of the following times:

  1. If you are in court when the notice or order is made; or
  2. Once you are served the notice or order.

Effectively, this means that if you attend court and have a Temporary Protection Order or finalised Domestic Violence Order made against you, the suspension or revocation is effective from that time.

If you do not attend court and/or an order is made in your absence, then the suspension/revocation will be effective once the notice or order has been served to you.

Example –

  • John attends the Southport Magistrates Court when Joan has made an application for a Domestic Violence Protection Order against John. John attends court and a final order is made with John as the Respondent. John’s licence is now revoked from that time and John must arrange for the surrender of his licence and firearms.
  • Ross has made an application for protection from his former partner Rachel, who has a weapons licence for sport shooting. Rachel does not attend court nor is legally represented at the court date. A Temporary Protection Order is made for Ross’ protection in Rachel’s absence. The Queensland Police Service call Rachel to attend the Hervey Bay Police Station. Rachel attends 4 days later and is served with a Temporary Protection Order. Rachel’s weapons licence is now suspended from the time she was served that order.

 

What do I do if my licence is suspended or revoked?

Once your licence has been suspended or revoked, you are required to surrender your firearm to an authorised firearms dealer or a police station within 1 day. The rules of transporting your firearm still remain in force.

 

What should I do if I have a weapons licence and proceedings are taken against me?

It is important to obtain legal advice from experienced criminal and domestic violence lawyers, like Clarity Law.

An experienced practitioner can review the application and give advice regarding prosects of successfully defending an application.

 

Conclusion

This article is by no means a comprehensive guide to the impact a Domestic Violence order can have on a person and their obligations with regards to firearms, but serves to give a base understand of the impact an order can have once the process has commenced.

Ipswich Criminal law firm

When facing criminal charges, it's crucial to have the right legal representation by your side. If you find yourself in such a situation in Ipswich, Queensland, Clarity Law is the law firm you can trust. With a proven track record of success and a team of experienced criminal lawyers, we are dedicated to providing top-notch legal support tailored to your specific needs.

Criminal charges we cover

Assaults

There has been and remains a hardening attitude to assaults by the Queensland courts. Where once the court would have merely imposed a fine they are more likely now to impose a harsher sentence. The courts have continued to state that they will be increasing penalties for violence to act as a deterrence. You need a lawyer and a law firm with extensive experience with assault charges.

Learn more about assault charges

 

Bail Applications

Bail is where a person enters a written bond committing to appear before the court to answer criminal charges made against them, promising to pay the sum of money to the court if the accused does not appear.

Learn more about bail in Queensland

 

Centrelink Fraud

Centrelink fraud is one of the most common commonwealth charges that a person can be charged with. Centrelink fraud which involves false claiming of Centrelink benefits. Centrelink fraud is a serious charge and is viewed as such by courts and prosecutors and can often result in a prison sentence being imposed.

Learn more about Centrelink fraud charges

 

DVO Breaches

The charge of breaching a domestic violence order is on the rise in Queensland. Clarity Law can provide information and guidance to someone charged or accused of breaching a domestic violence order in Queensland. The courts are imposing harsher and harsher penalties due to public pressure so act now and get legal advice to protect yourself.

Learn more about DVO Breaches

 

Drugs

A drug charge in Queensland is dealt with very seriously in the courts.  There are a wide variety of drug offences ranging from simple possession to more serious charges such as producing dangerous drugs and trafficking.  The seriousness of a drug charge depends on the drug involved, the amount of the drug and whether a person was merely possessing drugs or had an intention of selling those drugs.  

Learn more about drug charges in Caboolture

 

Fraud

The term “fraud” covers a broad range of behaviours that fall outside the narrower offence of stealing but are nevertheless designed to deprive someone else of their property, or some interest therein. The common thread that ties these behaviours together is that they are done “dishonestly.” Fraud can also related to dishonest actions in regards to tax debts

Learn more about fraud charges

 

Making a false declaration in Queensland

According to the Statutory Declarations Act 1959, making a false declaration is a criminal offence. Section 11 of the Act states that a person must not intentionally make a false statement in a statutory declaration. The maximum penalty for this offence is 4 years imprisonment.

Learn more about Making a false declaration in Queensland

 

Obstruct or Assault Police

The charge of assault or obstruct police is a very common charge in Queensland and one that people who otherwise have never been in trouble with police are often charged with. If the offence was committed in or near a public place then community service may need to be imposed.

Learn more about obstruct or assault police charges

 

Public Order Offences

Public order offences are intended to penalise the use of violence and intimidation by individuals or groups in criminal law. Rioting, affray, drunk and disorderly behaviour, inciting racial or religious hatred or assaulting emergency workers are examples.

 

Stalking

A charge of stalking is a very complex and serious charge under Queensland law, stalking charges are being laid by police at increasing levels.  Queensland was the first state in Australia to have stalking legislation and it has one of the strictest laws about stalking in Australia. It is an extremely complex area of the law.

Learn more about stalking charges

 

Stealing

Stealing is the term used to describe a broad range of offences in Queensland and includes the term “theft” which is widely used in other legal systems. The definition of stealing is broad enough to include many different situations from shoplifting to stealing from an employer. This is a charge where the recording of a conviction can result in serious ongoing punishment.

Learn more about stealing charges

 

Sexual offences

Sexual offences are obviously some of the most sensitive charges under the law. They can range from indecent treatment charges to sexual assault and rape. It is critical to get fast and detailed advice from a lawyer if you have been accused of a sexual offence as it is incredibly easy to say the wrong thing and that mis-statement could lead to charges being bought, bail being denied and a person found guilty even when they are not.

 

Traffic Offences

We undertake all traffic offences that would lead to an appearance or court or applications for a work licence or hardship licence.

Learn more about traffic offences on our dedicated traffic lawyer website

 

Trespass

A trespass charge will arise when a person either unlawfully enters or remains in either a dwelling or place.

Learn more about trespass charges

 

Using Carriage Service to Menace or Harass

The Commonwealth Criminal Code Act 1995, section 474, creates a number of offences connected with the illegal use of phones and computers. This can range from attempting to defraud someone using a phone or computer, to intercepting phones (wiretaps), to threating or menacing another person.

Learn more about Using Carriage Service to Menace or Harass

 

Weapon Charges

Weapon offences are quite common. Then often deal with either possessing a class of weapon the person is not licenced for or involves the incorrect storage of weapons or ammunition.

 

Wilful Damage

Wilful damage is a charge under section 469 of the Queensland criminal code. Wilful damage is an offence where a person intentionally and unlawfully destroys or damages any property. The maximum penalty for wilful damage is 5 years imprisonment 

Learn more about wilful damage charges

 

Wilful Exposure

Wilful exposure is an offence which arises when a person wilfully exposes his, her or their genitals in a public place, unless that person has a reasonable excuse.

A person may also be guilty of Wilful exposure if, from a private place, that is so close to a public place that it could be seen from a public place, they wilfully expose their genitals so that they may be seen from the public place, without reasonable excuse.

Learn more about wilful exposure offences

 

The police want to talk to me what should I do?

Never talk to the police without first speaking to a lawyer. One misspoken sentence could ruin your life.

Its critically important to exercise one's right to silence when facing arrest in Queensland. There is a common tendency for individuals to willingly speak to the police, often resulting in unintended self-incrimination or harsher penalties in court. Unless your lawyer tells you differently (and they 99% of the time won’t) we strongly advise against voluntarily providing statements to the police.

Learn more here

 

Why Choose Clarity Law?

  1. Expertise in Criminal Law: At Clarity Law, we specialize exclusively in criminal law. Our team of experienced lawyers has a deep understanding of Queensland's legal system, ensuring that you receive the best possible defence. We have successfully handled a wide range of cases, from traffic offenses to serious criminal charges, and our expertise covers both state and federal matters.

  2. Proven Track Record: Our firm has a history of achieving favourable outcomes for our clients. We have successfully defended numerous cases, earning a reputation for excellence in criminal defence in Ipswich and beyond. Our lawyers are well-versed in building strong cases, negotiating with prosecutors, and, when necessary, aggressively representing clients in court.

  3. Personalized Approach: We understand that every case is unique, and we treat each client with the individual attention and care they deserve. Our lawyers take the time to thoroughly review the details of your case, ensuring that no stone is left unturned in building a robust defence strategy.

  4. Transparent Communication: Clear and open communication is essential during legal proceedings. At Clarity Law, we make sure our clients are kept informed at every step of the process. We explain complex legal concepts in a straightforward manner, allowing you to make informed decisions about your case.

  5. Local Knowledge: Being based in Queensland, we have a deep understanding of the local legal landscape, including the Ipswich jurisdiction. This local knowledge can be a significant advantage in building a strong defence tailored to the specific circumstances of your case.

  6. Commitment to Client Success: Our ultimate goal is to achieve the best possible outcome for our clients. We work tirelessly to protect your rights and interests, whether that means negotiating a favourable plea deal or mounting a vigorous defence in court.

How We Can Help:

  1. Defending Against Various Charges: Whether you're facing charges related to traffic offenses, drug offenses, assault, or more serious criminal allegations, our team has the expertise to handle a wide range of cases.

  2. Providing Legal Guidance: We understand that the legal process can be overwhelming. Our lawyers are here to guide you through every step, ensuring you have a clear understanding of your options and the potential outcomes of your case.

  3. Aggressive Representation: When necessary, we are prepared to fight vigorously for your rights in court. Our lawyers have a reputation for being tough advocates for our clients, working tirelessly to secure the best possible outcome.

 

Conclusion:

When it comes to choosing a criminal lawyer in Ipswich, Queensland, Clarity Law stands out for its expertise, track record of success, and commitment to client satisfaction. With a personalized approach and a deep understanding of the local legal landscape, we are dedicated to providing the highest level of legal representation. Contact us today for a confidential consultation and take the first step towards securing your future.

 

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

  1. Use our contact form and we will contact you by email or phone at a time that suits you

  2. Call us on 1300 952 255 seven days a week, 7am to 7pm

  3. Click here to select a time for us to have a free 15 minute telephone conference with you

  4. Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

  5. Send us a message on Facebook Messenger

  6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.

Sunday, 29 October 2023 18:28

Will a Criminal Charge Affect a Visa Application?

Jacob Pruden

Will a Criminal Charge Affect a Visa Application

A foreigner who wishes to visit or remain in Australia must be of good character. Character requirements must be met if a person is to continue holding a visa, apply for a visa, or renew a visa. The Australian Department of Home Affairs manages immigration in Australia, and it is the Minister or her delegates who assess the character requirements as they apply to a visa holder or applicant.

 

What are the Character Requirements?

The main legislative section that refers to character requirements is section 501 of the Migration Act 1958.

The overarching requirement is for a person to pass a character test. To this end, the government applies a character test to those applying for a visa. The government may also apply the character test to cancel a visa that has already been granted.

One of the key indications of bad character is if a person has a substantial criminal record. A substantial criminal record, among other things, includes being sentenced to a single or combined term of imprisonment of 12 months or more (it does not matter how much time you serve in prison, if any, just that the head sentence was 12 months or more)

Other indicators of bad character include, but are not limited to:

  • A person has a proven sexual offence involving a child.
  • A person has been convicted of a domestic violence offence or has been subject of a domestic violence order.
  • Having regard to the person's past and present criminal conduct and the person's past and present general conduct, the Minister considers the person not to be of good character.
  • The Minister believes that, in the event the person was allowed to remain in Australia, there is a risk that the person would:
    • engage in criminal conduct in Australia; or
    • harass, molest, intimidate or stalk another person in Australia; or
    • vilify a segment of the Australian community; or
    • incite discord in the Australian community or in a segment of that community; or
    • represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

 

Significance for Criminal Law

There is no specific section of law that states a person’s visa application or visa status will be affected only by a criminal charge. It is possible, however, that the Department of Home Affairs my consider some allegations serious enough to influence a character assessment prior to a conviction.

Once a person is convicted of an offence, however, this can trigger the cancellation of a person’s visa depending on the nature of the offence, and the extent of the penalty.

If a person is in Australia on a visa and they lodge another visa application, and that application is refused on character grounds, then any current visa is also cancelled.

A cancelation or refusal of a visa can be appealed, if the decision was not made by the Minister personally.

 

Conclusion

The more serious the criminal conduct, the more likely it will affect a person’s visa status. A person is unlikely to have his or her visa cancelled for a speeding offence or a parking infringement. If the person is charged with a serious offence, however, it would be wise to obtain legal advice regarding the possible implications this may have for the person’s visa status.

Tuesday, 17 October 2023 17:13

How does a plea of guilty affect my sentence?

Jack Marshall

Pleading guilty

If you have a criminal matter before the court, you have to decide between entering a plea of guilty or not guilty.

A plea of not guilty of course, means taking a matter to trial (also known as hearing), in which evidence will be tested, witnesses called and examined. This may involve a jury being assembled or matter committed to a higher court for the trial.

This article is not going to be exploring what happens during a hearing or trial, this article will look at what the affect of a plea of guilty will have on a sentence.

 

What benefit do I get for a plea of guilty?

In Queensland, the rules on sentencing are governed by the Penalties and Sentences Act 1992 and specifically section 13 of the act deals with how a guilty plea must be taken into account.

When a person pleas guilty, the court must take the guilty plea into account and reduce the penalty it would have imposed otherwise if the offender had not pleaded guilty. This will be balanced against the “timeliness” of any plea or if they informed the relevant law enforcement agencies of their intention to plea guilty.

The court will consider the timeliness of the plea, meaning was the plea entered at an early stage of the matter, or was the matter listed for trial and then proceeded by plea of guilty on the day of trial – or somewhere in between.

You gain a less of a ‘discount’ on sentence if you enter a plea of guilty after a considerable period into a matter. This is not always a black and white scenario though. If a person is self-represented for the majority of their matter and pushes the matter along and lists it for trial, then that person gets legal advice and seeks to plea guilty. The court can consider that once legal advice has been obtained that they entered a plea of guilty and consider it a timely plea.

An early plea of guilty will further assist in your matter by demonstrating remorse and contrition to the court, and you gain the benefit of saving the tax payer the cost of a trial. Another factor considered when applying any reduction in sentence on the basis of an early plea of guilty, is the saving of cross-examination of any victim and witness – this even more relevant where a domestic violence or sexual assault matter is before the court.

 

Should I just plea guilty to get a better sentence?

In short – it depends. Deciding whether to plea guilty will depend on the strength of the evidence, any available alibis or defences. It is important to have a criminal and traffic law practitioner review your case with you to see if there is going to be success at trial or any available defences – or alternatively any case conferencing which might be available to reduce the charge or charges.

An early or timely plea of guilty will give a sentencing discount, by operation of law.

 

Conclusion

This article is not designed to be a comprehensive guide to taking matters to trial or the full intricacies of sentencing for criminal and traffic matters in Queensland. This article was to give a brief overview of how pleading guilty to an offence affects a sentence. This is both at law per section 13 of the Act, and by the demonstration of remorse and the willingness to save the taxpayer the cost of a trial.