Clarity Law
Steven Brough
Steven Brough is a criminal defence lawyer and founder of Clarity Law with over 22 years experience he has appeared in almost every court in Queensland representing clients charged with criminal offences and getting them the best outcome possible.
Understanding Threat Charges under Section 359 of Queensland's Criminal Code
Criminal cases in Queensland can be incredibly complex, and charges involving threats carry significant weight and potential repercussions. Threat charges, as outlined in Section 359 of Queensland's Criminal Code are very serious. This comprehensive guide is designed to provide detailed insights into the gravity of these charges, the penalties that can be imposed, and how individuals can protect their rights and understand the intricacies of the law.
Understanding the Charge
Section 359 of Queensland's Criminal Code addresses the act of threatening a person to cause detriment with the intent to prevent or hinder them, compel them to act, or cause public alarm or anxiety. Such a charge, when proven in court, can result in severe penalties and is treated with the utmost seriousness by the legal system.
The Prosecution's Burden of Proof
When a threat charge is brought before the court, the prosecution must meet several conditions to secure a conviction. These include proving beyond a reasonable doubt the elements of the threat, as well as demonstrating the intent behind the threat and the resulting circumstance of harm or public concern.
In general the prosecution must prove;
- The defendant threatened to cause a detriment to another.
- With intent to:
- prevent or hinder any person from doing any act which the other person is lawfully entitled to do; or
- compel any person to do any act which the other person islawfully entitled to abstain from doing; or
- cause public alarm or anxiety.
The Meaning of Threatened
The definition of 'threatens' is given its ordinary meaning, and a threat must be of such a nature and extent that it might intimidate or cause apprehension in an ordinary person. Furthermore, Section 359 requires that the threat be made with specific intentions and against specific individuals or members of the community.
The Meaning of Detriment
"detriment" includes the following—
(a) apprehension or fear of violence to, or against property of, the stalked person or another person;
(b) serious mental, psychological or emotional harm;
(c) prevention or hindrance from doing an act a person is lawfully entitled to do;
(d) compulsion to do an act a person is lawfully entitled to abstain from doing.
Examples—
A person no longer walks outside the person’s place of residence or employment.
A person significantly changes the route or form of transport the person would ordinarily use to travel to work or other places.
A person sells a property the person would not otherwise sell.
Circumstances of Aggravation
Certain factors, known as circumstances of aggravation, can intensify a threat charge. These involve making a threat to a law enforcement officer or an individual assisting with law enforcement duties, particularly when related to the investigation of a criminal organization.
Circumstances of aggravation have a sobering effect on the severity of a threat charge, and they can lead to heightened penalties upon conviction. Defendants must approach these aspects of the law with the utmost seriousness and strategic legal guidance tailored to their specific case.
Penalty for Threats
The maximum penalty for making a threat is 5 years imprisonment. If however the threat is to a police officer investigating a criminal organisation the maximum penalty increases to 10 years imprisonment.
Which Court Hears the Charge?
While the charge will first start in the Magistrates court it must be finalised in the District Court.
Defending Against Threat Charges
Facing a threat charge is a daunting prospect, but it is not without avenues of defence. Each case is unique, and the defence strategy must be built on the individual facts and circumstances surrounding the charge.
Some possible defences might include;
- It was not the defendant who made the threat or the police cannot prove it was the defendant;
- The words or actions were not in fact a threat
- No threat to cause detriment was made
- There was no intention by the defendant to prevent, hinder, cause alarm or anxiety to the other person
Engage an Experienced Lawyer
The most vital initial step for anyone confronted with a threat charge is to seek legal advice from a seasoned professional adept at navigating Queensland's criminal justice system. An experienced lawyer can provide invaluable insights, helping to formulate a comprehensive defence strategy and ensuring that the individual's rights and interests are protected.
Conclusion
The charge of threats under Section 359 of Queensland's Criminal Code is a profoundly serious matter, with the potential to impact individuals on multiple levels. It is a complex charge, drawing a fine line between protected speech and the law's protection of individuals and public order.
For those navigating the intricate details and potential ramifications of a threat charge, the guidance of an experienced legal partner can make a significant difference in the process and the ultimate outcome.
Understanding the Charges of Forgery and Uttering in Queensland
In the complex landscape of criminal law, the charges of forgery and uttering stand out for their nuanced legal definitions and significant implications for the accused. Under section 488 of the Criminal Code in Queensland, these charges are treated with utmost seriousness, reflecting the potential harm to individuals and the broader societal trust in the integrity of documents and records. This blog aims to demystify the legal intricacies of forgery and uttering.
What Constitutes Forgery?
At its core, forgery involves the creation, alteration, or manipulation of a document with the intent to deceive or defraud. The legal definition encapsulates a range of actions that result in a document falsely purporting to be something it is not, whether by presenting itself as authorised by a non-consenting individual or as originating from a non-existent entity. The term "document" is broadly defined to include any written, coded, or symbolically marked medium capable of conveying meaning, thereby encompassing both tangible and digital records.
Legal Elements of Forgery
To secure a conviction for forgery, the prosecution must demonstrate two critical elements beyond a reasonable doubt:
- The Act of Forgery: The accused must have engaged in making, altering, or dealing with a document in a manner that misrepresents its authenticity, origin, or authority. This encompasses actions that suggest a document was authorised by someone who did not give such authority, or that alter a document’s appearance or content to misrepresent its true nature.
- Intent to Defraud: The essence of forgery lies in the intent to practise fraud upon another, which is established if the forgery could potentially prejudice any individual's rights or compel them to act against their duty or interest. Crucially, the intent to defraud does not necessitate an aim to cause financial loss, broadening the scope of actions considered fraudulent.
The Charge of Uttering
Uttering, closely related to forgery, involves knowingly passing off a forged document as genuine, with the intention of deceiving someone into accepting it as legitimate. Like forgery, the offence of uttering hinges on the intent to defraud, underscoring the perpetrator’s aim to leverage the forged document to deceive and potentially harm others.
In essence Forgery is the creation of a false document while uttering is the act of using that forged documents to defraud another person.
Defences
The main defences for forgery or uttering would likely be;
- The defendant did not, or at least the prosecutor cannot prove that the defendant forged a document
- That the document was not in fact forged
- That if the document was forged the document was not uttered
- If the document was forged and was uttered that the defendant did not do it with an intention to defraud.
Penalty
The maximum penalty for forgery and uttering is 3 years in prison. If however the document was a power of attorney or document issued by a lawful authority the maximum penalty increases to 7 years.
If the forgery involved a security, insurance policy, will or birth certificate the maximum penalty increases to 14 years.
Which Court hears the Forgery Charge?
The Magistrates courts hears the charge.
Relevant Cases
In the case of R v Perrin [2017] QCA 194, the appellant, Mr. Perrin, appealed against his conviction on the grounds that the trial judge failed to leave an exculpatory provision for the jury’s consideration. The provision stated that a person is not criminally responsible if they act in the exercise of an honest claim of right.
The appeal was dismissed as proof of the offences precluded the application of the provision. The charges stemmed from transactions with the Commonwealth Bank of Australia involving forged signatures. The appellant argued that he had authority to sign the documents on behalf of his wife. However, the court held that proof of dishonesty in the offences negated the possibility of an honest claim of right defence. Additionally, the jury directions were deemed adequate. Both grounds of appeal were dismissed.
Conclusion
In Queensland, forgery and uttering are serious charges with significant legal implications. Forgery involves creating or altering a document with the intent to deceive, while uttering is knowingly passing off a forged document as genuine. To secure a conviction, the prosecution must prove the act of forgery and the intent to defraud beyond a reasonable doubt.
Defences may include disputing the act of forgery or uttering, or challenging the intent to defraud. Penalties for forgery and uttering vary based on the type of document involved, with maximum sentences ranging from 3 to 14 years. These charges are heard in the Magistrates Court.
For those facing allegations of forgery or uttering, it is crucial to consult with legal professionals who can provide expert advice and representation, ensuring that the accused's rights are fully protected and upheld within the legal system.
Bomb Hoax: The Law in Queensland
In an era where public safety is paramount, the law takes a severe stance against actions that threaten communal well-being. Among these, the offence of making a bomb hoax is treated with particular severity. Under section 321A of the Queensland Criminal Code, the act of misleading others into believing that a dangerous or destructive substance is present, constitutes a serious crime.
This blog post aims to dissect the legal framework surrounding bomb hoaxes in Queensland, offering insights into its consequences and highlighting a pivotal case to underscore the judiciary's approach to such offences.
The Law
Section 321A of the Criminal Code articulates the offence of bomb hoaxes, outlining the necessary elements that constitute this crime. The law is clear: anyone who falsely claims or suggests that an explosive or harmful substance has been placed in a location within Queensland commits a criminal offence. The legislative intent is to deter individuals from inducing panic or fear through misinformation, a goal that aligns with broader societal aims of ensuring public safety and order.
The statute mandates a maximum penalty of five years imprisonment for those found guilty of stating that a bomb exists while someone who sends or places an article or substance designed to make people think it is a bomb faces a maximum 7 years in prison.
Legal Requirements for Conviction
There are two separate charges under the act;
- People who send or place a substance designed to look or act like a bomb (section 321A(1))
- People who just say that a bomb is in a particular location (section 321A(2))
Lets look at each charge.
Sending or placing a fake bomb
The law states it is an offence nny person who—
(a) places an article or substance in any place; or
(b) sends an article or substance in any way;
with the intention of inducing in another person a belief that the article or substance is likely to explode, ignite, or discharge a dangerous or noxious substance, commits a crime.
The maximum penalty is 7 years in prison.
To be found guilty of the offence the prosecution would need to prove that:
-
The defendant placed or sent the article (or substance) in the place; and
-
The defendant intended to induce in another person a belief that the article (or substance) was likely to explode (or ignite or discharge a dangerous or noxious substance)
It is not necessary that the prosecution prove that some particular person was intended to be induced to the belief. It is sufficient that the defendant intended any other person or persons to be induced to that belief.
It is immaterial that the article (or substance) was not in fact likely to explode (or ignite or discharge a dangerous or noxious substance).
Saying there is a bomb
For a conviction under section 321A(2), the prosecution must satisfy three critical criteria beyond reasonable doubt:
-
The Act of Making a False Statement: It must be proven that the defendant intentionally conveyed false information or made a statement to another individual.
-
Knowledge of Falsity: The individual accused of the hoax must have known, or believed, the information or statement to be false at the time of communication.
-
Intent to Induce Belief in the Threat: There must be a clear intention behind the defendant's actions to make another person believe that an explosive, noxious substance, or other dangerous items are present in a place within Queensland.
It is noteworthy that the perpetrator's location during the commission of the offence is irrelevant under the statute, placing emphasis on the conveyed threat's impact rather than the defendant's physical presence.
The maximum penalty for this offence is 5 years imprisonment.
A Notable Case:
The case of R v Tobin [2008] QCA 54 involved an appeal against a sentence in the Supreme Court of Queensland - Court of Appeal. The appellant, Martin Francis Anthony Tobin, was convicted on his pleas of guilty to two counts of bomb threats. Initially, he was sentenced to six months imprisonment, wholly suspended for two years. However, the sentence was appealed on the grounds that it was manifestly excessive considering the circumstances, including significant mitigating factors and the fact that the bomb threat was not taken seriously.
The appeal was allowed, and the Court ordered that no conviction be recorded. Instead, Tobin was sentenced to probation for six months with conditions, including compliance with anger management and alcohol management as directed by an authorized Corrective Services Officer.
Which Courts hears the charge?
While the matter starts in the Magistrates court it must be finalised in the District Court.
Are there any defences to a bomb hoax charge?
Possible defences include;
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It was not the defendant who made the false statement about the bomb or planted the article pretending to be a bomb or the police cant prove it was
-
The defendant did not intend anyone to believe there was a bomb
-
Mistake of fact
Childrens Court
Children (those under 18 years old) are often charged with this offence especially when it involves a bomb hoax at a school.
Children are treated differently than adults and go through the children’s court and not the adult courts.
The charge is however treated very seriously by the children’s court.
Conclusion
If you are charged with making bomb hoax it is critical that you get legal advice BEFORE talking to the police. Never ever talk to police without first getting legal advice.
A key component of the charge is the intention to make people believe a bomb exists and if you say the wrong thing to the police this may be easy to prove.
Engaging Clarity Law to act for you
Engaging us gives you the best chance at trying to avoid serving time in prison. We are one of the leading criminal law firms in South East Queensland. Just some of the benefits of us acting for you include:
-
we know the judges and what they want to hear to give you the best outcome
-
we have good relationships with the prosecutors meaning we can often have them not seek an actual prison sentence
-
we are there to help you through the process and make everything as stress free as possible
-
engaging us shows the court you are taking your charges seriously
-
you will be fully informed of what is to happen in court and what this means for you after court
-
unlike the police or the Judge, we are there to look after you, your privacy and your interests
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;
-
Use our contact form and we will contact you by email or phone at a time that suits you
-
Call us on 1300 952 255seven days a week, 7am to 7pm
-
Click here to select a time for us to have a free 15 minute telephone conference with you
-
Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.
-
Send us a message on Facebook Messenger
-
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.
Understanding Deprivation of Liberty Charges in Queensland
In Queensland, 'Deprivation of Liberty' is a serious charge that encompasses unlawfully confining or detaining a person against their will. This offence is particularly sensitive because it infringes on the fundamental human right to freedom of movement. If you find yourself accused of this charge, it is crucial to understand what it entails legally and the consequences you may be facing.
The Origin of the Law
Deprivation of liberty offenses arise under various laws and statutes in Queensland, which are part of the larger framework of Australian criminal law that seeks to protect individuals from harm and protect their rights. This legal concept has evolved through case law, where past judgments have shaped the understanding and application of what amounts to deprivation of one's liberty.
The Law
Section 355 of the Criminal Code states that
355 Deprivation of liberty
Any person who unlawfully confines or detains another in any place against the other person’s will, or otherwise unlawfully deprives another of the other person’s personal liberty, is guilty of a misdemeanour, and is liable to imprisonment for 3 years
What does the Prosecution have to prove?
The prosecution must prove that:
1. The defendant:
- confined or detained another in any place against the other person’s will; or
- otherwise deprived another of the other person’s personal liberty.
2. The defendant did so unlawfully. That is, not authorised, justified or excused by law.
Definitions
Detain means keep in confinement or under restraint. Restraint can be exercised by threats. The defendant does not have to use force or physical restraints. If the defendant compels the person by threats to remain in a place against that person’s will, that is sufficient. Depriving of liberty simply means taking away the free choice of a person to move about as he or she wants.
Unlawfully Deprives includes the denial of enjoyment of something.
Personal Liberty is ‘the condition of being able to act in any desired way without restraint; power to do as one likes.’ Unlawfully deprives means taking away the free choice of a person to move about as he or she wants. A person may be deprived of their liberty not only against their will but also where the deprivation was achieved by fraud, done without knowledge or where the complainant lacks capacity.
Which Court hears the charge?
The matter is dealt with in the Magstrates court where the offence occurred.
Defences to the Charge
Every individual is entitled to a defence, and in the context of a deprivation of liberty charge, several defences may be applicable depending on the circumstances of the case. For example:
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Consent: If the person alleged to be deprived of their liberty consented to the restrictions, this could be a viable defence.
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Lawful Authority: Actions taken under lawful authority, such as those by police officers or under mental health laws, or parents lawfully dealing with their children may not constitute unlawful deprivation.
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Mistake: A genuine mistake about the legal status or entitlement to confine another person may at times be a defence.
However, it's important to note that every case is unique and the success of such defences depends greatly on the specific facts of your case.
Penalties
The maximum penalty is 3 years in prison.
The penalty for deprivation of liberty depends on a number of factors including
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The circumstances of why the offence occurred
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What exactly happened
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Was any violence threaten or used
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The defendants criminal history
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Whether the parties were in a domestic relationship
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How long the offending lasted
- Whether other charges like an assault charge or breach of a DVO is also bought.
While the maximum penalty would be rare In about 50% of cases before the courts a term of imprisonment is imposed but the court can in appropriate circumstances choose to suspended that or release a person on probation without them serving any actual time in prison.
If the offence involved people in a domestic relationship the police or the courts may issue a domestic violence order or vary an existing one.
Case Example of the charge of Deprivation of Liberty Charge Queensland
In R v East the defendant was found guilty of deprivation of liberty when he locked 2 federal police officers in his businesses reception when they were there trying to serve official documents.
In R v Adams the defendant pleaded guilty of deprivation of liberty after he entered a liquor store and locked the automatic door trapping two staff members inside until the police arrived.
What if a Police Officer wants to talk to me?
Never talk to the police without getting legal advice first. Its rare you can explain a situation away and even if you are innocent or have a defence you can make the situation worse by talking to the police.
Read more with our article: Police Questioning and your Right to Silence
Legal Representation Matters
If you are facing a charge for deprivation of liberty, the importance of seeking experienced legal representation cannot be overstated. Legal professionals specializing in criminal law, such as Clarity Law, possess the expertise necessary to provide valuable guidance and build a robust strategy, tailored to the specifics of your case.
For anyone charged with or accused of deprivation of liberty in Queensland, remember that this article serves merely to inform and should not be taken as legal advice. Every situation is unique and demands the personalized attention of a professional. If you require assistance or more information, it is recommended that you contact a legal practitioner who can provide specific guidance related to your case, what the law is, how the offence is dealt with in the Magistrates Court and whether you will have any defences to the offence or if negotiations with the prosecutor is possible.
For immediate assistance, you can reach out to Clarity Law at 1300 952 255 for support from a team of dedicated lawyers who pride themselves on ensuring that good people make it through tough times.
Engaging Clarity Law to act for you
Engaging us gives you the best chance at trying to avoid serving time in prison. We are one of the leading criminal law firms in South East Queensland. Just some of the benefits of us acting for you include:
-
we know the judges and what they want to hear to give you the best outcome
-
we have good relationships with the prosecutors meaning we can often have them not seek an actual prison sentence
-
we are there to help you through the process and make everything as stress free as possible
-
engaging us shows the court you are taking your charges seriously
-
you will be fully informed of what is to happen in court and what this means for you after court
-
unlike the police or the Judge, we are there to look after you, your privacy and your interests
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;
-
Use our contact form and we will contact you by email or phone at a time that suits you
-
Call us on 1300 952 255seven days a week, 7am to 7pm
-
Click hereto select a time for us to have a free 15 minute telephone conference with you
-
Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.
-
Send us a message on Facebook Messenger
-
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.
What to wear in Court | Queensland Guide 2024
Facing a criminal charge in Queensland can be a daunting experience, but presenting yourself in court with appropriate attire can help convey respect for the legal process and possibly influence the perception of the judge and jury. While there's no strict dress code outlined in Queensland law, dressing conservatively and professionally is generally advisable. Here's a comprehensive guide on what to wear to court when you're facing a criminal charge in Queensland.
Understanding the Importance of Dressing Appropriately
First impressions matter, especially in a courtroom setting where judgments can be swift and influenced by various factors. Knowing what to wear to court can potentially impact how you're perceived by the judge, jury, and other courtroom personnel. Dressing appropriately demonstrates respect for the legal proceedings and can reflect positively on your character and attitude towards the charges you're facing.
General Guidelines for Courtroom Attire
When selecting your attire for a court appearance, it's crucial to opt for clothing that is conservative, neat, professional but comfortable. Here are some general guidelines to follow:
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Business Attire: Aim for clothing typically worn in professional settings, such, dress shirts, and trousers/skirts. Solid colours or subtle patterns are preferable over flashy or loud designs. You don’t necessarily need to wea a suit but if you are comfortable in a suit that would be the most appropriate thing to wear. Aim to wear no less than what you would wear to a job interview.
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Neat and Clean: Ensure your clothing is clean, ironed, and free of wrinkles or stains. Pay attention to small details like loose threads or missing buttons, as they can detract from your overall presentation.
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Comfortable Yet Respectful: While comfort is important, avoid overly casual clothing like t-shirts, jeans, shorts, or sneakers. Opt for closed-toe shoes and avoid excessive jewellery or accessories.
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Cover Tattoos and Piercings: If you have visible tattoos or piercings, consider covering them if possible, as they may distract or prejudice certain individuals in the courtroom.
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Hair and Personal Grooming: Maintain a well-groomed appearance with neatly trimmed hair and facial hair. Avoid extreme hairstyles or colours that may be deemed inappropriate for a formal setting.
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Minimal Fragrance: Refrain from wearing strong perfumes or colognes, as they can be distracting or trigger allergies for others in the courtroom.
Specific Considerations for Defendants
As a defendant facing criminal charges, your attire should convey sincerity, humility, and respect for the judicial process. The courts are conservative places. Here are additional tips tailored specifically for defendants:
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Avoid Clothing Associated with Crime: Steer clear of attire commonly associated with stereotypes or criminal imagery, such as hoodies, baggy pants, or clothing with offensive slogans or graphics.
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Blend In, Don't Stand Out: Aim to blend in with the general demeanour of the courtroom rather than drawing undue attention to yourself through your clothing choices. The focus should be on your case, not your attire.
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Shirts Should have Collars: But surf wear, even with collars is never acceptable.
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Flip Flops are a Major NO NO: Anything that you would wear to the beach should never be worn in court. This means no hats or sunglasses.
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Consult with your Lawyer: If unsure about what to wear, consult with your lawyer for guidance. They can provide valuable insights based on their knowledge of courtroom etiquette and the specific circumstances of your case.
Remember lots of defendants will not dress appropriately. Aim to be one that does and show you are taking your charges seriously, the Judges and Magistrates appreciate the effort you would have put in to dress appropriately for court. Avoid being this person.
Conclusion
In Queensland, as in other jurisdictions in Australia, dressing appropriately for court is an essential aspect of presenting yourself in the best possible light during legal proceedings. By adhering to the principles of professionalism, conservatism, and respect, defendants can enhance their credibility and demonstrate their commitment to the judicial process. While clothing alone won't determine the outcome of your case, it can contribute to a favourable impression and convey a sense of responsibility and seriousness regarding the charges you're facing.
Some of the Areas of Law we can Assist People in
- Drink Driving
- Drug Driving
- Unlicensed Driving
- Careless Driving
- Dangerous Driving
- Disqualified Driving
- Hooning
- Driving 40 kmh over speed limit
- Work Licences
- Hardship Licences
- Evading Police
- Drugs Charge
- Assault Charges
- Fraud Charges
- Obstruct or Assault Police
- Stealing
- Driving Offences
- Centrelink fraud
- Breach Domestic Violence Order
- Wilful Damage
- Unlawful Stalking
- Appeals
- Trespass
- Bail
- Work Health Offences
How do I find my court date?
Facing criminal charges can be a stressful and overwhelming experience. One crucial aspect of navigating the legal process is keeping track of your court dates. In Queensland staying informed about when you are required to appear in court for a criminal or traffic matter is essential.
This article will guide you through the steps to check the date of your criminal court appearance in Queensland.
How do I find out my court date?
Bail Documents
If you have been granted bail in court or by the police then the bail document will contain the next court date.
Notice to appear
If the police issue you with a notice to appear in court then that document will have listed your first mention date in court.
QP9
The court brief or more commonly called the QP9 contains on the first page the date of the first mention date in court for the charges.
Online lookup
The easiest way to find your court date is to use the criminal case lookup portal run by the courts. This has information on all criminal and traffic offences listed in the Magistrate, District and Supreme courts in Queensland. It also covers special hardship and work licence applications.
To access the criminal case lookup you need your first and last name as well as your date of birth.
Click here to access the Criminal Case Lookup
Contact the court
You can contact the court registry for the court you are appearing in by clicking on the court contact list.
Speak to your lawyer
If you have engaged a Criminal Lawyer or Traffic Lawyer who has already been to court on the matter they will know your next court date. This is most common when your lawyer was permitted to attend on your behalf so you would not have been in court to hear the new court date.
What happens if I miss my court date?
If you miss a court date in Queensland, there's likely a warrant for your arrest. You can contact the court to check for a warrant and surrender yourself for a better outcome.
Surrendering promptly is advised to avoid arrest. The surrender process involves appearing at the court registry, explaining reasons for missing the date, and stating your intentions (guilty plea, legal advice, or challenging the offence).
You can surrender at any court, not necessarily the one issuing the warrant, as per the Police Powers and Responsibilities Act 2000.
Getting a lawyer for surrender is recommended, especially for serious offences or if you lack confidence. Hiring a lawyer for surrender doesn't obligate you to retain them for the entire case. Dealing with the charge causing the warrant immediately depends on the offence; legal advice is crucial. The key message is clear: take proactive steps and surrender before waiting to be arrested.
Learn More: We have a whole article on What do I do when you have missed your court date!
I’m sick and won’t be able to attend court, what should I do?
Contact the court and explain the situation. Depending on the circumstances the court may require you to provide a medical certificate or appear by phone. Different courts will have different approaches to people who are sick on their court date, so what occurs in one court may not occur in another.
I’m running late for court what can I do?
Ring the courthouse you are going to and explain the situation. Don’t just hope everything will be fine.
I have a court date coming up but my lawyer told me I don’t need to attend
If you have legal representation, your lawyer should keep you informed about upcoming court dates. In many cases where bail has been granted a lawyer can appear on your behalf without you needing to attend the court.
Useful links
Observations or Recordings in Breach of Privacy
Queensland has instituted various laws to protect individuals' rights and privacy. Section 227A of the Criminal Code addresses the serious offence of making observations or recordings in breach of privacy. This provision aims to safeguard individuals from invasive and unwarranted surveillance, reinforcing the importance of privacy in the digital age.
Understanding Section 227A
Section 227A - Observations or Recordings in Breach of Privacy specifically targets the act of making observations or recordings without consent, infringing upon an individual's right to privacy. The provision encompasses a range of activities, including but not limited to, photographing, filming, or recording someone without their knowledge or consent in situations where they have a reasonable expectation of privacy.
What does the Law say?
Section 227A(1) sest out that:
A person who observes or visually records another person, in circumstances where a reasonable adult would expect to be afforded privacy—
(a) without the other person’s consent; and
(b) when the other person—
(i) is in a private place; or
(ii) is engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act;
commits a misdemeanour.
In addition a separate offence is set out in section 227A(2)
A person who observes or visually records another person’s genital or anal region, in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region—
(a) without the other person’s consent; and
(b) when the observation or visual recording is made for the purpose of observing or visually recording the other person’s genital or anal region;
commits a misdemeanour.
Elements of the Offence
For a charge under Section 227A to be established, several key elements must be satisfied:
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Observations or Recordings:
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The accused must have engaged in the act of making observations or recordings. This can involve visual surveillance, such as taking photographs, as well as audio recordings without the subject's consent.
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“Observe” is defined as observe by any means.
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“Visually record a person” means record by any means, moving or still images of the person or part of the subject.
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Lack of Consent:
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The observations or recordings must have occurred without the explicit consent of the individual being observed or recorded. Consent is a critical factor in determining the legality of such actions.
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Consent” must be freely and voluntarily given by a person with the cognitive capacity to give the consent.
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Reasonable Expectation of Privacy:
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The person being observed or recorded must have had a reasonable expectation of privacy in the given circumstances. For instance, activities within private spaces like homes, backyards or washrooms typically carry a higher expectation of privacy than public spaces.
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It comes down to the test of whether a “reasonable adult” could expect to be afforded privacy in all the circumstances.
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Where the charge is not related to filming the genital or anal region but just that they filmed the other person then that other person must be in either a private place or engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act.
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Examples
Example 1: Beach
Generally, a person at the beach does not expect a high degree of privacy. So a person who films the beach scene as a whole wouldn’t breach the law. However if someone were to specifically film a persons genital or anal region this could be considered a breach of section 227A(2) as this offence does not require the subject to be in a private place.
Example 2: Backyard
Generally, a person in their backyard expects a high degree of privacy. The degree of privacy might be influenced by how many neighbours they have and where the neighbours houses are located. There is however likely not many examples where a person could be filmed in their backyard and this not considered a breach of the law against observations or recordings in breach of privacy.
Example 3: Home
Generally a person in their house expects the very highest degree of privacy. Any filming of someone in their house would breach the law against observations or recordings in breach of privacy.
Which Court will hear the Charge?
The charge of observations or recordings in breach of privacy will be heard in the Magistrates court closet to where the offence occurred.
Penalties
A breach of Section 227A is considered a misdemeanour criminal offence in Queensland. It carries a maximum penalty of up to 3 years in prison.
The severity of the penalties may depend on factors such as
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the nature of the breach
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the extent of the invasion of privacy
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the intention of the accused in doing the filming
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any potential harm caused to the victim
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the age of the victim
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the length of time or the number of times the recording occurred
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the defendants criminal history
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how sophisticated the filming setup was
In most cases a prison sentence will be imposed however the defendant may not have to serve time in prison if the sentence is wholly suspended or if an immediate parole release date is set.
Legal Defences
Defendants charged under Section 227A may explore various legal defences, including but not limited to:
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Lack of Intent:
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Demonstrating that the observations or recordings were unintentional or accidental may serve as a defence. Proving a lack of malicious intent can be crucial in such cases.
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Consent:
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If the accused can establish that they had obtained valid consent from the individual being observed or recorded, it could serve as a defence against the charges.
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Public Domain:
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Arguing that the observations or recordings occurred in a public space where individuals generally have a diminished expectation of privacy may be a viable defence strategy. The law requires that the recordings where done in the situation that that person would expect to be afforded privacy.
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If the charge was under section 227(1) then proving the filmed person was not a private place or engaging in a private act and the recording was not made for the purpose of observing a private act could be a defence.
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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 filing was excused by law or that there was a valid reason for the filming.
Will I get a criminal conviction if I plead guilty to the charge?
The answer is most likely. 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 this charge. Note however if imprisonment is part of the penalty then a conviction must be recorded.
Learn more about the difference between a conviction and non-conviction
The police want to talk to me about a observations or recordings in breach of privacy charge
Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.
The police are not on your side, get immediate legal advice.
Learn more about your right to silence.
I’m not guilty of observations or recordings in breach of privacy
Still don’t talk to the police. A lawyer would require the prosecutor to give them all their evidence and statements. This is known as the full brief of evidence. Once the brief was received then negotiations with the prosecutor to drop the charge can occur.
Learn more about what to do if accused of a crime you didn’t commit.
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;
-
Use our contact form and we will contact you by email or phone at a time that suits you
-
Call us on 1300 952 255seven days a week, 7am to 7pm
-
Click here to select a time for us to have a free 15 minute telephone conference with you
-
Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.
-
Send us a message on Facebook Messenger
-
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.
Conclusion
Section 227A of the Queensland Criminal Code - Observations or Recordings in Breach of Privacy serves as a crucial safeguard for privacy rights in the digital age. Understanding the elements of this offence and potential legal defences is essential for those navigating the complexities of criminal law in Queensland. As technology continues to advance, the legal system must adapt to ensure that individuals' right to privacy is upheld and protected.
Christmas Closure
We will be closed for the Christmas break from 12pm on 22 December until 8:30am on 8 January 2024.
Over the Christmas break you can leave a telephone message and from 2 January, until we reopen, we will be checking the messages and responding once per day. We do have availability to represent clients in January.
Alternatively if you would like to book a free telephone conference for when we fully reopen on 8 January you can click this link www.calendly.com/clarity_law
We'd like to thank everyone who supported the firm this year and wish everyone a safe and happy festive season.
Arson Charge
Arson is a serious criminal offence in Queensland, carrying significant penalties. If someone is charged or accused of arson in Queensland it’s crucial to comprehend the law around arson charges, the elements of the offence, and the potential consequences for offenders. In this article, we delve into the specifics of arson law in Queensland, providing essential information for those facing this charge.
What constitutes arson?
Arson involves the wilful and unlawful act of setting fire to various types of property. These include:
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A building or structure
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A motor vehicle, train, aircraft, or vessel
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Stacks of cultivated vegetable produce or mineral/vegetable fuel
Examples of arson scenarios:
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Setting fire to a house
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Setting fire to a car
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Setting fire to a door to a unit
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Setting fire to a chair in a house
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Setting fire to a business to collect on the insurance
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Setting fire to a boat
What does the law say?
Section 461 of the Criminal Code sets out the charge of arson as:
(1) Any person who wilfully and unlawfully sets fire to any of the things following, that is to say—
(a) a building or structure;
(b) a motor vehicle, train, aircraft or vessel;
(c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel;
(d) a mine, or the workings, fittings, or appliances of a mine;
is guilty of a crime, and is liable to imprisonment for life.
(2) It is immaterial whether or not a thing mentioned in subsection (1) (a) or (b) is complete.
Elements of the offence
To secure a conviction for arson, the prosecution must prove:
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The accused set fire to the property; and
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The act was wilful; and
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The defendant did so unlawfully.
Looks look at those elements in more detail.
The accused set fire to the property
There must be some actual damage caused by the fire. It is not enough that the accused was going to set fire to the property, a fire must have started.
It is however not required that the whole property is destroyed, merely that some component of the property is damaged by fire. It is also not a requirement that the property was complete, it is still an offence if say the property was a house and it was only half completed.
The act was wilful
The act of setting fire to the property must be intentional or acting with indifference to the likelihood of a foreseen result occurring. In R v Lockwood; ex parte Attorney-General the court specifically found that that the word “wilfully” applies to an accused person who deliberately did an act (that is, that it was a willed act) aware at the time he did it, that the result, i.e. a fire was, the likely consequence of his act and that he recklessly did the act regardless of the risk.
If at the time of the arson the accused was intoxicated this may, depending on the level of the intoxication, mean the accused could not have formed the necessary intent to damage the property.
The defendant did so unlawfully
It is immaterial whether the person had lawful possession of the property at the time of the arson or indeed owned or part owned the property.
If an accused has a valid defence then the offence cannot be unlawfully.
Defences to arson
Defences against arson charges may include:
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Lack of intent
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Lawful reasons for setting fire
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No actual property damage
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Accident
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Intoxication
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Mistake
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Identification
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Necessity
Which court hears the matter?
The matter will start in the Magistrates Court closet to where the alleged arson occurred. The charge is however too serious for the Magistrates Court to determine and will therefore ultimately be finalised in the District Court.
Penalties and sentencing for arson
Arson carries a maximum penalty of imprisonment for life. The most likely penalty will be a term of imprisonment between 19 and 48 months.
However the penalty depends on a number of factors including;
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The sentencing principles in the Penalties and Sentences Act;
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Relevant case law (previously decided cases);
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the maximum penalty of the offence;
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the penalty submissions made by the prosecution;
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the penalties submissions made by the defence;
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the personal circumstances of the defendant;
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the circumstances of the offence;
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any victim impact statement;
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the impact the offence had on an individual or the public generally;
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how much planning went in the arson offence
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the value of the property destroyed by the fire
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If any person was injured by the fire
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any time in custody the defendant has already served before the sentence and;
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the criminal history of the defendant.
Don’t try and guess what a penalty may be or rely on google searches, contact an expert criminal lawyer who can properly advise you on a potential sentence and if any defences exist.
See out article on How Does the Court Set a Prison Sentence?
See also the Queensland Sentencing Advisory Council for details of the sentences for arson that have been imposed in the past.
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 element of the charge aren’t made out or the defendant has a defence and therefore the charge should be withdrawn.
We once acted for a client charged with arson. He was found near a burning car with clothes the police described as smelling strongly of smoke. We were able to have the charge withdrawn as we argued they did not have enough evidence to convince a jury that it was our client who committed the arson.
Will I get a criminal conviction if I plead guilty to the charge?
The answer in almost all cases will be yes.
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 this charge. Note however if imprisonment is part of the penalty, as it almost always is for arson charges, then a conviction must be recorded.
The police want to talk to me about an arson charge
Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.
The police are not on your side, get immediate legal advice before talking to police and if you can’t get that legal advice don’t talk to the police.
Learn more about your right to silence.
FAQ
Q: Can an accidental fire be considered arson?
A: No, arson requires wilful and unlawful intent. Accidental fires do not fall under this category.
Q: What if the accused was mentally impaired?
A: If the accused lacked the capacity to understand their actions due to mental impairment, it may be a valid defence.
Q: Is arson treated differently for juveniles?
A: Yes, age-related factors play a role. Juveniles (under 18) will have different legal considerations and a different sentences law.
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;
-
Use our contact form and we will contact you by email or phone at a time that suits you
-
Call us on 1300 952 255 seven days a week, 7am to 7pm
-
Click here to select a time for us to have a free 15 minute telephone conference with you
-
Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.
-
Send us a message on Facebook Messenger
-
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.
Unlawful Wounding in Queensland
In the complex realm of criminal law, the charge of unlawful wounding in Queensland carries serious implications. Understanding the nuances of this offence is crucial for individuals facing such allegations. This article provides a comprehensive guide to Queensland's unlawful wounding charge, covering key elements, defences and the role of criminal defence lawyers.
What does the law say?
Section 323 of the Criminal Code sets out the law in regarding to unlawful wounding.
Its states that;
A person who unlawfully wounds anyone else commits a misdemeanour
What does the Prosecution need to prove?
In order to make out a charge of unlawful wounding the prosecutor must prove;
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That the defendant wounded the complainant
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That the wounding was unlawful. A wounding is unlawful unless it is authorised or justified or excused by law
In order to constitute a wound the “true skin” must be broken and penetrated, not merely the cuticle or outer skin.
Does a weapon need to be used?
No, also long as the skin (not the outer skin) is broken and penetrated then it does not matter if a weapon was used or not.
We often see this offences occur where someone is ”glassed” i.e. hit with a bottle or glass and that causes the wound. Glassing is often the action that lead most first time offenders to be charged with unlawful wounding.
What is the penalty for wounding?
The maximum penalty is 7 years imprisonment. In addition if the defendant was in a public place and intoxicated then community service must also be imposed.
How does the court decide a penalty?
The court has a wide discretion to decide on a penalty and how much importance to give to mitigating factor in each case. The court will likely consider factors, such as:
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the maximum penalty prescribed for that offence
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the nature and seriousness of the harm done
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the previous convictions of the offender
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the offender's age, character and intellectual capacity
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the prevalence of the offence
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any other relevant circumstances
Once the court looks at the main factors in determining a sentence they will look at the mitigating factors of the defendant. Mitigating factors are any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence
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Early guilty plea: This is one of the most significant mitigating factors, as it can result in a discount of up to 33% on the sentence . It also demonstrates remorse and cooperation with the justice system as well as an acceptance of responsibility for the offence
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No criminal history: This can show that the offender is of good character and that their offending was out of character or an isolated incident. It can also indicate a low risk of reoffending
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Significant physical or mental health issues or low intellectual capacity: These factors can affect the offender's culpability, meaning their level of blame or responsibility for their actions.
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Rehabilitation efforts after the offence: These can include things like attending counselling, completing courses, seeking treatment, paying compensation or apologising to the victim. They can show that the offender is genuinely remorseful and willing to address their underlying issues or problems that led to their offending
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Providing the court with character references
Important information on our blog that explains more on how a court decides a penalty.
How Does the Court Set a Prison Sentence?
Mitigation: How the court sets a sentence in Queensland
Will I go to jail for a unlawful wounding charge?
That’s impossible to answer without all the information circumstances known.
What we can say is that the Court of Appeal (our highest court) has made it clear that wounding charges, even from a first time offenders, would ordinarily require the court to sentence them to actual time in prison.
It all depends on the facts of a particular charge. The court might in the right circumstances wholly suspended a sentence or impose probation or immediate parole release all of which means no time is served in prison for the wounding charge.
Which court hears the wounding charge?
While the charge will start in the Magistrates court it must be ultimately determined in the District Court.
Are there defences to unlawful wounding?
The most likely defence someone would use to a wounding charge is self defence. In its most straight-forward formulation, self defence means protecting ourselves (or someone else) from violence, or anticipated violence. Self-defence is only available as a legal defence if the force used is “reasonable to repel the attack”
Once a defence is raised then the prosecutor has the burden to disprove the defence. Learn more about Self-Defence and the use of force: Your rights in Queensland
As unlawful wounding is a not an assault charge therefore the defence of provocation is not available.
Another defence might be what is known as an identification defence. While not a true defence in essence it means the prosecutor can’t provide beyond a reasonable doubt that it was definitely the defendant that caused the wound. For example there might have been a brawl involving lots of people and anyone could have caused the wound. Another example might be a glassing in a dark nightclub where it if difficult to positively identify the offender.
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 wounding was excused by law or the medical evidence does not meet the standard for a wounding charge and therefore 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 this charge. Note however if imprisonment is part of the penalty then a conviction must be recorded.
The police want to talk to me about a wounding charge
Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.
The police are not on your side, get immediate legal advice.
Learn more about your right to silence.
I’m not guilty of the wounding
Still don’t talk to the police. A lawyer would require the prosecutor to give them all their evidence and statements. This is known as the full brief of evidence. Once the brief was received then negotiations with the prosecutor to drop the charge can occur.
Learn more about what to do if accused of a crime you didn’t commit.
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;
-
Use our contact form and we will contact you by email or phone at a time that suits you
-
Call us on 1300 952 255 seven days a week, 7am to 7pm
-
Click here to select a time for us to have a free 15 minute telephone conference with you
-
Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.
-
Send us a message on Facebook Messenger
-
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.