Clarity Law

Specialist Criminal Law Firm Queensland
Steven Brough

Steven Brough

Wednesday, 17 February 2021 05:19

Case Conferencing Assault Charges in Queensland

In Queensland, if you are charged with an assault charge, it is quite common for your lawyer to try and negotiate that charge with the Police Prosecution Unit or the Department of Public Prosecutions (“DPP”) to try and get a better outcome for you. This process is known as case conferencing. The case conferencing process is designed to try and streamline the facts the Court will get, or in some cases for the Prosecutor to decide whether or not the charge should proceed at all or at least in its current form. Because we have carried out so many assault charges, we are often asked what type of case conferencing can occur and this article is designed to try and summarize some of the case conferencing successes that we have had with assault charges.

In our opinion people in Queensland far too easily give up their right to silence when speaking to police. Often a person’s willingness to talk to police results in charges being bought or harsher penalties in court.

With limited exceptions you only need to go with the police station for an interview if you are formally arrested for an offence or formally detained for questioning about an indictable offence.

Over the past 20 years I have had hundreds of calls from people asking my advice on whether to talk to police. In those 20 years I have never once advised a client to give a voluntary statement to police. I hope in this article to explain why.

Sunday, 24 November 2019 00:02

Shoplifting in Queensland

Stealing items from a shop (shoplifting) is one of the more common charges Queensland magistrate courts deal with on a day to day basis. There is no defined group that commit this charge, more than other types of criminal charges it spans all genders, races and socio-economic groups.

Wednesday, 06 November 2019 07:09

Quick Guide to Assault Occasioning Bodily Harm

As part of our ongoing quick guide series we are looking at various criminal charges in Queensland in more detail. Today we are looking at assault occasioning bodily harm mostly abbreviated to AOBH.

Tuesday, 05 November 2019 23:58

Negotiating with a Prosecutor in Queensland

Whenever you are charged with a criminal offence there is usually the scope to try and negotiate those charges with the police prosecutor or the Office of the Department of Public Prosecutions (“DPP”). This is known as case conferencing in Queensland.

For the purpose of this article, we will use two examples. One is an assault occasioning bodily harm charge, the other is a trafficking in drugs charge.

Negotiations with the police prosecution unit or DPP are almost exclusively done by lawyers. You can of course self-represent yourself and negotiate with the prosecutor and prosecutors are always willing to listen to unrepresented people, however, most people simply don't have the skills to properly negotiate with the prosecutor as it is simply not skill that they have learnt or indeed would want or need to learn.

So let's first take the first example of assault occasioning bodily harm charge (“AOBH”). AOBH is a charge that can often lead to a prison sentence. The prosecutor must prove that;

  • The assault took place;
  • The assault was unlawful; and
  • That the injury amounted to bodily harm.

Bodily harm means any injury that interferes with the complainant’s health or comfort.

Case conferencing often occurs once the police prosecutors brief (or most commonly known as the QP9) is provided to you or your lawyer. The QP9 will set out what the police prosecutor intends to tell the court happened. This includes the details of the alleged assault, what background or build up to the alleged assault occurred and the alleged injury to the complainant.

The charge of AOBH can be heard in the Magistrates court only if the defendant agrees, if they do not agree the charge must be heard in the District Court. The charge carries a maximum penalty of 7 years imprisonment or 10 years if the assault took place in company with another person or if the defendant was armed or pretended to be armed with a weapon.

When looking at negotiating with the prosecutor we would in most cases take a detailed statement from the client, see if any CCTV exists, check social media to see if the complainant has posted anything about the alleged assault, check medical records of the complainant and take statements from any person who may have seen the alleged assault. We would then see what, if any, negotiations with the prosecutor could take place.

Some examples of successful case conferencing we have achieved are;

  • Had the AOBH charge withdrawn as our client was acting in their own self-defence after being confronted and threatened by the complainant in a pub.
  • Had the AOBH charge withdrawn as our client was protecting his partner after she was attacked by the complainant.
  • Convinced the prosecutor to reduce the charge to common assault as we were able to show the injuries did not fit the definition of AOBH. Reducing the charge to common assault meant the client was punished with a fine only and no conviction was recorded.
  • Having the prosecutor withdraw the charge after we were able to show our client was provoked by a number of racial remarks were yelled at him over an extended period.
  • Being able to convince the prosecutor to withdraw the charge after convincing them that the complainant’s statement was unreliable and he was grossly intoxicated at the time of the offence.
  • Having the AOBH charge withdrawn by the prosecutor after we showed that the CCTV footage was unclear and that they could not be satisfied that it was our client that assaulted the complainant and that other person’s present could have inflicted the injury.

Negotiations are an informal process referred to amongst lawyers and prosecutors as case conferencing. It is not specified how case conferencing or negotiations need to take place, however, typically it is either face to face, over the phone or where the lawyer sends written submissions to the prosecutor to consider.

What would typically happen is if the charge is reduced or withdrawn than on the next court date or on the first date if the first court mention date has not occurred yet the prosecutor would seek to amend the current charges to that reduced charge or if they are withdrawing the charge they will offer no evidence in regards to the charge and the court will dismiss the charge and the client is free to go without any punishment.

It's like take a look at another example, that is trafficking in drugs. This is a very serious charge and will almost certainly lead to a person serving time in prison if convicted. Trafficking is where a person carries on the business of selling or supplying drugs. The critical question is whether the defendant was in the business of trafficking drugs and this usually means a course of conduct engaged over a period of time for commercial reward. However even a single supply or sale could technically be charged as trafficking and the reward does not have to be money or might be for instance a payment of drugs for the defendant’s personal use. The prosecutor might build their case on informants, telephone intercepts, downloads of messages or surveillance of the defendant.

Negotiating this charge usually involves getting a full brief of evidence and going through that brief carefully to look to see if we can convince the prosecutor that;

  • It was not our client that was the one trafficking the drugs
  • That if our client sold drugs it was not trafficking and the charge should be reduced to supplying drugs
  • That the evidence is not sufficient to convince a jury our client is guilty and the charge should be discontinued.

Always ensure you engage experienced criminal lawyers if you are charged with a crime as we have found negotiating with the prosecutor after the client first tried by themselves and failed or less experienced lawyers were engaged and they had a failed negotiation can be difficult to correct.

If you need any advice on a criminal charge in Queensland and have a court appearance in any South East Queensland court we can help you. We can be contacted on 1300 952 255 seven days a week. Our website is at www.claritylaw.com.au

The law provides that for certain offences committed where a person is intoxicated, when setting a penalty the court must impose some period of community service as part of that order. The changes were made with the Safe Night Out Legislation Amendment Bill in 2014. It provides that where a person is charged with an offence such as obstructing or assaulting police, or common assault where a person is intoxicated and in a public place then the court must make an order for community service ordering the offender perform unpaid community service unless they're convinced the person suffers from physical, intellectual or psychiatric disability. The maximum amount of community service that can be imposed is 240 hours, while the minimum amount that must be imposed is 40 hours.

A community service order requires that the Department of Corrective Services arrange with a person to conduct the community service work within a set period, generally 12 months. This type of work is tailored as much as possible to the person doing the community service work, and the area in which they reside. The other requirements of the community service order include the person must not commit another offence during the period of the order, must generally report to an authorised Corrective Services officer within one to two business days of the order being made and must perform in a satisfactory way the community service order as directed by an authorised Corrective Services officer.

The other requirements are that the person must comply with every reasonable direction of an authorised Corrective Services officer, must not leave or stay out of the state without the permission of that Corrective Services officer, and they must notify of any change in their place of residence or employment within two business days.

Where a person is facing the possibility of a community service order and does suffer from any medical problem that might prevent them from doing that order, it's important that those medical documents are brought before the court before they sentence that person.

The types of offences that are now included within the mandatory community service order include;

·         affray

·         grievous bodily harm

·         wounding

·         common assault

·         assault occasioning bodily harm

·         serious assault

·         assault or obstruction of police.

 

As noted above the mandatory periods of community service only applies where the offence has taken place in a public place, and while the person as adversely affected by an intoxicating substance. That intoxicating substance could be alcohol or a drug.

If you need any additional information you can contact clarity law on 1300 952 255 or visit our website at www.claritylaw.com.au.  We appear in all South East Queensland courts assisting people charged with criminal offences, if you need a criminal lawyer please give us a call to discuss your charges.

 

This article provides general information and does not constitute legal advice.  The law may have changed since this article was written.  Always obtain legal advice when you are charged with a criminal offence.

A police court brief or more commonly called a QP9 (Queensland Police Form 9) is a document prepared by the Queensland Police Prosecutions when someone is charged with an offence. The QP9 lists the exact charge with a brief description of the facts which the Police are alleging against you. Depending on what Court your matter is to be heard in and how busy the Police Prosecutions are the document will be provided prior to your Court date or at Court.

It is essential to carefully go over the document prior to entering a plea before the Court, as you are not only pleading guilty to the charge but also to all the facts and circumstances surrounding the charge that the Police allege in the QP9, this may include the way you acted towards the Police, things that you said or admitted or information recorded by the Police that you believe is incorrect or inaccurate etc. This should be remembered when being charged as harsher penalties or less leniency can apply if the document states that you were rude, unruly, unhelpful etc. Also being aggressive when being charged can easily result in a further charge of resisting arrest or obstructing or assaulting police.

Obtaining the QP9 or having a Lawyer obtain the document for you and having a thorough look over the documents before you enter your plea is essential so that if there is any discrepancies they are looked into.

In Court the Police will read out the charge and a brief rundown of their version of events from the QP9. It is then that your Lawyer, or yourself if you are self-represented, can have your say and voice your version of events if they differ to the QP9. If there are significant factors from the QP9 in which you disagree with it may be possible to draft submissions and put them forward to the Police Prosecutions asking them to reconsider the facts alleged or the charge.   A Lawyer can advise you on, after going over the QP9, the possibility of making submissions and if so what the likely chances of the Prosecution accepting them would be.  It is important to note if what you say is materially different to what the police say in the QP9 then the Magistrate will need to list the matter for a trial or a disputed facts hearing.

In more serious matters, if necessary, it is possible to request a full brief of evidence at the first Court appearance. This document is like a QP9 but much more detailed and will include any witness statements, CCTV or audio footage etc. The Police can take up to 6-8 weeks to produce this material.

Some examples of our success in getting the Police Prosecutions to lower or dismiss charges including:

  1. Our client had been charged with common assault. Upon receiving and reviewing the QP9 we were able to put submissions to the Police Prosecutions and were successful in having the charge downgraded to public nuisance.
  1. Our client was charged with stealing as a servant in the sum in excess of $3,000. Upon review of the QP9 and obtaining CCTV footage we were able to have the Police reduce the alleged amount of money stolen to $750, helping the client to avoid jail time.
  1. Our client was charged with sexual assault. This was successfully downgraded to common assault after submissions to the Police Prosecutions unit.
  1. Our client was charged with supply of a dangerous drug. After analysing and conferring with the Police Prosecutions we were able to have the charge downgraded to possession of a dangerous drug, which is a much less serious charge.
  1. Our client was charged with theft, after reviewing the CCTV footage we were able to show the client had paid for the goods and the charge was dropped.
  1. Our client was charged with Dangerous Driving.  After reviewing the dash camera footage we were able to get the charge reduced to careless driving.

Here at Clarity Law we represent clients in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients by exploring all aspects of their charges and ensuring they do not plead guilty to something they do not need to.  We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice.  If you want to engage us or just need further information or advice then you can either;

For more information visit our webpage or call 1300 952 255 7am – 7pm seven days a week

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice.  Its represents information about the law in Queensland and since publishing the law or the interpretation of that law may have changed.

Wednesday, 03 May 2017 23:08

Supplying a Schedule 1 Drug in Queensland

Supplying a Schedule 1 Drug in Queensland

Drug laws in Queensland classify drugs into different schedules.  Schedule 1 drugs are the drugs the Government classify as potentially the most harmful, schedule 2 drugs are comparatively less harmful.

What many people don’t understand is that the supply of even a small amount of schedule 1 drugs, even for no money, can have serious consequences for a Defendant.

Schedule 1 drugs include

  • Steroids
  • Cocaine
  • Heroin
  • Meth
  •  LSD

Schedule 2 drugs include;

  • Cannabis
  • Methadone
  • Ketamine

While the minor supply of schedule 2 drugs, if the police do not allege a commercial purpose, can be dealt with in the Magistrates Court the supply of any amount of a schedule 1 drug must be dealt with in the District Court.

It is not necessary that the person who supplied a schedule 1 drug to have made money on the deal.  Many of our clients have simply supplied drugs to friends for free or for the repayment of small debts.  The definition of supply under the Drugs Misuse Act is very wide.  In one particular case our client supplied what he thought were ecstasy tablets but they turned out to contain a mixture of legal chemicals including caffeine.  In that case the fact the client supplied the drugs on the basis he thought they were ecstasy was enough to satisfy the definition of supply of a schedule 1 drug.

We have appeared for many clients charged with this type of  offence. Generally if this was the first supply of drugs a person undertook and they have no criminal history (and the drugs were not supplied to a person under 16 nor a mentally impaired person) a Defendant could be looking at probation for a guilty plea. 

The requirements for probation are generally;

  • report to an authorised corrective services officer (“probation officer) when they require it (generally at least initially weekly)
  • must not commit another offence
  • must take part in counselling and programs as directed
  • not allowed to leave the state without permission
  • must notify an authorised officer of any change of address or employment
  • requirements to stay clean and undergo drug tests

The court could possibly also add a requirement for community service to the probation order. 

If the court imposes a probation order the Court has the discretion whether or not to record a conviction.  In all cases we have conducted for similar charges we have had no conviction recorded.  The lack of a conviction being recorded means the clients are generally not prevented from travelling overseas and their employment prospects are not restricted. 

If you have been charged with supplying drugs then take advantage of our free initial advice and call us on 1300 952 255 7am to 7pm seven days a week or visit our webpage.  Remember we appear in every court in South East Queensland.

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice.  It represents information about the law in Queensland as at the date of publishing and since publishing the law or the interpretation of that law may have changed.

Wednesday, 03 May 2017 03:16

Stealing as a Servant

Stealing as a servant means stealing money or goods through your employment.  It is an extremely serious charge and is not dealt with lightly by the courts.  

Generally we have found these charges involve the taking of cash directly from the till or taking of stock. The charges with higher amounts usually involved the changing of invoices, the transfer of money from the business bank account or manipulation of the EFTPOS machine.

 

What court will hear this charge?

In most cases the Magistrates Court will hear the charge, if the amount stolen exceeds $30,000 then in some cases the District Court will hear the charge. Whatever the cases the charge will always start out in the Magistrates Court.

 

What does the prosecutor have to prove?

The prosecutor would need to prove all of the following

  1. The defendant was an employee, clerk or servant
  2. The item taken was capable of being stolen
  3. The item taken was owned by the employer
  4. The item was taken without the consent of the employer
  5. The item was taken with fraudulent intent

For more information see our stealing webpage

 

What defences exist?

A number of possible defences exists including;

  1. There was not fraudulent intent in talking the item
  2. Mistake of fact
  3. The Employer gave consent to take the item

 

Could the charges be reduced or withdrawn?

It is possible to negotiate with the prosecutor over the charges. This is known as case conferencing and usually occurs once the police prosecutors brief (known as the QP9) is provided to the defendant or their lawyer. The QP9 will set out what the police prosecutor intends to tell the court happened. This includes the details of the alleged stealing, the amount involved and the general circumstances.

It takes an experienced criminal lawyer to advise on the possibility of negotiating the charge with the prosecutor.

 

What is the likely penalty?

The maximum penalty is 10 years if heard in the District Court or 3 years if heard in the Magistrates Court.

In any circumstances where money or goods are obtained deceitfully or fraudulently, whether from an employer, business or an individual client the charge is dealt with harshly and can easily result in a person serving jail time and having a conviction recorded. Stealing as a servant has always tended to result in harsh sentences due to the opportunities for concealment it provides and the betrayal of trust it involves.  It will always be more harshly punished than stealing.

When sentencing you the Magistrate or Judge will look at the facts and circumstances including the amount stolen, whether it has been paid back, the time span in which the stealing was carried out, the defendants criminal history, personal circumstances i.e. financial hardship, mental health issues, remorse etc.

An example of the severity of the nature of this charge can be demonstrated in a Queensland case, R v Jenkins, wherein a man was found guilty of 3 separate charges of theft of less than a total of $3,000 in cash and liquor from his employment over a period of less than 3 months.

His charges were comprised of the following:

Charge 1 - stealing the sum of $170 from his employer

Charge 2 -  stealing the sum of $1,995 from his employer

Charge 3 -  dishonestly applying to his own use a quantity of liquor belonging to his employer to the value of $765.60 (incl GST).

The total amount being $2,930.60.

The matter was dealt with in the Brisbane District Court and the sentence handed down was 9 months imprisonment for each offence, to be served concurrently and suspended after 3 months (meaning after serving 3 months actual jail time Jenkins was released).  In that case the court said

Stealing as a servant has always tended to attract heavier sentences because of the opportunities for concealment it provides and the betrayal of trust it involves

If you are charged with stealing as a servant there are multiple steps we can take to help ensure you receive the best possible outcome.

 

Can no conviction be recorded?

When deciding whether to record a conviction to court looks at the following;

  • The nature of the offence
  • The offenders character and age
  • The impact on the offenders
    • Economic or social wellbeing; or
    • Changes of finding employment

In R v Bryant the stated in regards to regarding a conviction for a stealing as a servant charge;

It is the recording of the conviction that is the applicant's real concern because it may put her at a disadvantage in applying for future employment of this or other kinds. But I consider that prospective employers are entitled to know about such matters and to make up their own minds about the risks involved in employing persons who have committed offences of this kind. It is no part of or function of judges to conceal such information from them. 

As you can see getting no conviction is tough, not impossible by very difficult.  For more information on what the recording of a conviction means click here.

 

Why engage a Lawyer?

Its simple, experienced criminal lawyers know the law, the magistrates, the prosecutors and the court process. A person without that knowledge will quickly become overwhelmed.

Every week we get calls from people who represented themselves, had a harsh penalty imposed or conviction recorded and are desperate to try and change the outcome which at that stage is almost impossible. We also often get calls from desperate relatives who have seen their family members sentenced to serve time in prison.

This is not a charge you go to court for without an experienced criminal lawyer.

 

What courts do you cover?

We cover all courts in South East Queensland from Southport to Gympie and out to Toowoomba.

We are also a criminal law firm, we don’t do any other type of law so we are in the courts every day helping people with charges like this.

Just some of the courts we appear in for stealing are;

Beaudesert Magistrates Court

Beenleigh Magistrates Court

Brisbane Magistrates Court

Caloundra Magistrates Court

Caboolture Magistrates Court

Cleveland Magistrates Court

Coolangatta Magistrates Court

Gatton Magistrates Court

Gympie Magistrates Court

Holland Park Magistrates Court

Ipswich Magistrates Court

Maroochydore Magistrates Court

Nambour Magistrates Court

Noosa Magistrates Court

Pine Rivers Magistrates Court

Richlands Magistrates Court

Redcliffe Magistrates Court

Sandgate Magistrates Court

Southport Magistrates Court

Toowoomba Magistrates Court

Wynnum Magistrates Court

 

What do you charge?

We charge a flat upfront fee for our services that means no hidden charges or unexpected bills. 

Our prices include;

  • full preparation for court including checking for defences and devising strategy to minimise penalty
  • negotiations with the police prosecution unit including obtaining criminal history and charge documents
  • drafting submissions for the court
  • all telephone calls, emails and meetings with you
  • detailed information to you on the likely penalty and information on what will happen at court and afterwards
  • appearing in the court with you to conduct your guilty plea

To see what we will for a guilty plea on a stealing charge click here or contact us for a quote.

 

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

If you want to engage us or just need no obligation 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. Visit our website at www.claritylaw.com.au 
  3. Call us on 1300 952 255 seven days a week, 7am to 7pm
  4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice.  Its represents information about the law in Queensland and since publishing the law or the interpretation of that law may have changed.

Thursday, 27 April 2017 06:18

Degrees of Assault Charges

Assault is defined as forceful contact or threatening forceful contact with a person. Depending on the severity of circumstances and injuries will determine the degree of assault you are charged with.

The different types of assault charges in Queensland are as follows, in order of most minor to most severe:

 

Common Assault

A Common assault is the lowest of the possible assault charges and can come about from anything as minor as a bodily gesture, poking, nudging or touching someone, and even just threatening to do such acts.

 

Assault occasioning bodily harm

An assault occasioning bodily harm charge occurs when the victim suffers injuries interfering with their health or comfort. Penalties for this charge are increased if there is a statement that the Defendant had a weapon or is in the company of another person.

 

Assault causing Grievous Bodily Harm

An assault causing grievous bodily harm charge occurs when a person is left permanently injured, scarred or impaired as a result of the assault.

 

Serious assault (any charge of assaulting a Police officer will automatically come under this charge also)

Serious assault charges occur when the assault is on a person over the age of 60 or is handicapped or dependant on a remedial device. If an assault is on a Police officer is serious it will automatically be placed under this degree of assault. If biting, spitting or any bodily fluid is involved the penalty can be doubled, resulting in a possible maximum penalty of 14 years imprisonment.

 

Sexual assault

A Sexual assault charge is a result of any unwanted or forced sexual advancement or behaviour towards a person.  

 

When you are charged with any form of assault charge it is extremely important to seek legal representation immediately. Assault charges more than ever are treated very seriously by the courts and can easily result in jail time.

Here at Clarity Law we represent clients in all degrees of assault charges in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients. We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice.  If you want to engage us or just need further information or advice then you can either;

For more information visit our webpage or call 1300 952 255 7am – 7pm seven days a week

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice.  Its represents information about the law in Queensland and since publishing the law or the interpretation of that law may have changed.

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