Clarity Law

The Queensland laws that regulate the possession of illegal drugs are The Drugs Misuse Act and the Drugs Misuse Regulation. To determine the seriousness of drug possession, the law distinguishes by the quantity, type, and purpose of the drug possessed. For example, possession of a small amount of cannabis for personal use as compared to 50 grams of methylamphetamine for commercial sale, will have starkly different legal consequences for the defendant.

What is Commercial Possession?

The Drugs Misuse Regulation 1987 classifies drugs into schedule 1 and schedule 2. Then the quantity of each classification is split into three quantity scales, specified under schedule 3 and schedule 4. These classifications are relevant for the purposes of punishment.

The most common schedule 1 drugs are: types of amphetamines, cocaine, heroin, and anabolic steroids.

The most common schedule 2 drugs are: cannabis, alprazolam, codeine, diazepam, and hallucinogenic compounds.

Section 9 of the Drugs Misuse Act 1986 penalises drug possession in this manner:

In short, possession of a drug is presumed to be commercial if it is over 200 grams for schedule 1 drugs or over 500 grams for cannabis.

It is not always the quantity which is determinative of whether possession is commercial. Sometimes the prosecution will allege that a drug was possessed for a commercial purpose even if it is not over schedule 4. For example, if one person had 15 grams of methylamphetamine in his possession, then it is highly likely that the prosecution would allege there was at least the potential for the drugs to be applied in a commercial way. Another example might be where a person has 1.9 grams of cocaine in his possession, plus $2,500 cash, plus text messages on a phone which appeared to be arranging the supply of drugs. In such a situation, the prosecution would almost certainly allege that the drug possession was for a commercial purpose.

Which court would the case be heard in?

Possessing a schedule 1 drug in excess of schedule 3 or 4 – Supreme Court.

Possessing a schedule 2 drug in excess of schedule 3 – District Court.

Possessing a schedule 1 or 2 drug below schedule 3 – District Court.

All offences can be heard in the Magistrates Court, but only at the prosecution’s discretion. In our experience, it is not common for the prosecution to elect a summary/Magistrates Court hearing in instances where the drug (excluding cannabis) is in excess of 2 grams, and especially where there are allegations of commerciality. We will, however, always try to keep a client’s case in the Magistrates Court to minimise expense, delay, and penalty.

What is the Punishment for Commercial Possession?

Like with any sentencing, there is no one sentence which would be imposed for possession of dangerous drugs, because there are many different circumstances for these offences. They can include the quantity of the drug, the type of drug, whether the drug was possessed for a commercial purpose, whether there are other charges surrounding the drug [supplying, for example], the criminal history of the defendant, any rehabilitation undertaken, and other personal circumstances of the defendant.

Suffice it to say, actual imprisonment is available to the Court for these offences. The arguments of the defence lawyer tend to focus on whether the defendant should be released on parole the day of his sentence, or, if that is not possible, then minimising the time spent in actual custody.

Can I get Drug Diversion?

Drug diversion is available for some drug offences, but this is in relation to possession of small amounts of drugs for personal use, and it would be heard in the Magistrates Court. Drug diversion is not considered appropriate by the District or Supreme Court.

Conclusion

If you are charged with any kind of drug possession, but especially possessing larger amounts, we highly recommend quality representation. We at Clarity Law are highly experienced, and with over 100 happy clients leaving 5-star Google reviews, we are confident we can get you results.

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

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

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

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

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

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

5. Send us a message on Facebook Messenger

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

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

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

Other articles that may be of interest

• Your right to silence

• Negotiating with a Prosecutor in Queensland

• Court character references

• The difference between a conviction and non-conviction

• Declining a police interview

• Why You Should Never Represent Yourself in Court

• Mitigation: How the court sets a sentence in Queensland

• What is an arrest warrant?

• What do I do when I have missed my court date!

• Do you have to give the police access to your phone?

• Contravene direction or requirement

• Should I hire a Criminal Defence Lawyer?

• Police questioning and your right to silence in Queensland

• Drink Driving

• • Drink Driving Lawyers Brisbane

  • Drink Driving Lawyers Gold Coast

  • Drink Driving Lawyers Sunshine Coast

  • Drink Driving Lawyer Ipswich

  • Drink Driving Lawyer Beenleigh

Introduction

How you prepare for a court case is very much dependent on the type of matter you have and what you intend to do with it. This article covers some of the basic preparation you should do if represented by Clarity Law.

Instructions

The most basic thing you need to do is provide us with “instructions”. Providing instructions means you tell us what you want to do with your case. It also means giving us information and documents which could be helpful for your case. Your instructions will also provide us with useful background about you and your case. We will confirm your instructions in writing so we are clear on what you want us to do.

Sometimes, instructions are straightforward. If you wish to plead guilty to a mid-range drink driving offence and make an application for a work licence, then we know we need to prepare affidavits and then represent you in court.

If you want us to commence negotiations with the prosecution, then we would analyse prosecution evidence and draft arguments.

In essence, your instructions guide the direction of the case.

Personal or Trial Statements

If you want us to represent you for a plea of guilty for a serious offence, we will often ask you to provide a personal statement. This will tell us information about your background, such as: where you grew up, what grade you got to in school, and whether both parents were around. It will include your work history and may contain psychiatric and substance use history. The purpose is for us to get a better understanding of who you are, and then to present that in a way most helpful to you in court.

Let us assume your charge is drug possession. If you grew up in a household where drug taking was normal, and you first tried drugs when you were 13, this would be important for the Court to know. We could only share such things with the Court by getting it from you.

A trial statement is something different in nature. If you want to take your case to trial, then we will need the exact basis on which you are contesting each charge. We will ask you to write a paragraph-by-paragraph response to the police case / complainant’s statement. This allows us to understand the grounds on which you contest the case, and helps us form the basis for a case theory. The case theory informs the case strategy. We need a case strategy to win.

Documents

We will commonly ask you to give us documents such as character references, medical notes, or any proof of rehabilitation, if relevant. These will be used as supporting material in court.

Sometimes your documents can help us with drafting negotiations to the prosecution. Let us say you are charged with unlicensed driving while SPER suspended. Maybe you did not know your driver licence was suspended because SPER sent a letter to your old address. If you gave us a copy of your driver licence confirming your current address, we could use that to back-up your claim you did not know.

Rehabilitation

When a Court sentences you, it must consider sentencing principles. One of the principles in your favour is rehabilitation. Rehabilitation means any efforts you have made to change your habits or circumstances since the offence.

If you are charged with a drink or drug driving offence, then we will usually recommend you undertake the "Queensland Traffic Offenders Program".

If you are charged with an offence of violence, then it is often wise to undertake anger management or other counselling.

If you are charged with a domestic violence offence, then undertaking a program such as “Men Choosing Change” would be a good choice.

If you are charged with a drug offence, then getting clean drug screens or residential rehabilitation would be suitable.

Writing a letter of apology to the complainant would show that you have insight into your wrongdoing, and demonstrates remorse. Demonstrating remorse can persuade a Court you are more likely to rehabilitate.

There are many ways to prove rehabilitation, and we can advise you of the most effective way to do so, based on the circumstances of your case. The key is to do it and then prove you have done it.

Choosing an Outfit

When attending a court, we recommend business wear; something that looks professional. This shows a degree of respect to the Court and shows that you are taking the case seriously. You may be surprised some people present to Court in a singlet, shorts, and thongs. We cannot prove they get worse outcomes due to their appearance, but basic psychology would suggest it could be a factor.

Conclusion

These are some, but not all, of the main ways in which you can prepare for your case. If you are engaging us then you will naturally expect us to do most of the work, but there are some things we will need you to do to help us prepare your case. Suffice it to say, if you follow through on the preparation that we ask of you, it will only help things go in your favour when we represent your interests.

Theoretically, our system of criminal justice is set up to give the best possible chance to an innocent person to avoid a criminal conviction. If you are falsely accused of a crime there are strategies to give you the best defence.

Fundamental Principles

There are a few fundamental principles that are intended to act as safeguards in the event of a falsely accused person. They are called:

• Innocent until proven guilty,
• The burden of proof,
• Proof beyond reasonable doubt.

Innocent until proven guilty.

This means exactly what it sounds like: an accused person is presumed innocent until he is proven guilty of a charge. The prosecution must prove the charge through admissible evidence. This evidence can be witness statements, CCTV, forensics, documentary evidence, photographs, or even the accused person's own confession.

The burden of proof.

The prosecution must prove the charges against the defendant. This is known as the burden of proof, because they have the burden of proving their case. The defendant does not have to prove anything. If the defendant wishes, he can try to set up a positive case proving his innocence. But the jury is not allowed to draw an adverse inference against him if he chooses not to do that.

Proof beyond reasonable doubt.

This means the prosecution must prove their case to such an extent that the jury is left with no reasonable doubt about the person's guilt. It isn’t that the accused might be guilty or is even probably guilty, but the jury must be left without any sensible doubt of their guilt.

Interview

Nine times out of 10, our advice is for you not to give an interview to police. There are various reasons for this. One of the big ones is, if the police don’t have enough evidence, or have very thin evidence, but then you give an interview, there is a possibility you will say something self-incriminating. Most police are seasoned interrogators, and in our experience, it is only on TV programs that a defendant manages to outsmart or bamboozle police in an interview. Think about it: they interview suspects as part of their day job; you may have never even interacted with police before this moment. So, you are already at a distinct disadvantage.

However, there may be rare instances where giving an interview is the right move. You do not want to try this without legal advice and without a lawyer attending with you. For example, if you are accused of being at East Brisbane on the night of the alleged offence, but you can prove you were at Toowoomba that night, then it may be worth confirming that early with police in an interview. But as I said earlier, this would only be in rare cases and after careful consideration with legal advice. There is a chance in giving the interview that police will not choose to charge you because of what you tell them or what you can prove to them.

If you want to learn more see our article on your right to silence.

Negotiations

If you are charged, then the next port of call is to negotiate with the prosecutors. The intention here is to persuade them to drop the charge(s) against you. There are various ways this can be argued: either they have a lack of evidence, or you are able to present evidence that shows your innocence. For example, we had a client who was charged with drink driving. The car was parked in a car park, the client was seated in the passenger seat, and the car was registered to a different owner. We were able to present a statutory declaration from the client’s friend that he in fact drove his car to the location with our client as a passenger, and then left our client in the car while he went and got himself a haircut. Police confirmed the car belonged to our client’s friend, had no evidence that contradicted the friend’s statutory declaration, and therefore decided to drop the charge.

The above is a simple example of negotiations, but the point is they can be essential in getting you out of wrongly laid charges.

Check out our article on negotiating with a prosecutor.

Disclosure

The accused is legally entitled to ask for disclosure from the prosecution. What this means is we will ask the prosecution to provide us with all of the evidence they have in their possession to do with the case, whether helpful to the prosecution or helpful to the defence. Disclosure can include conferencing notes with witnesses, the internal police narrative on their database, criminal histories of prosecution witnesses, among others. With the widespread use of body worn camera footage, this can occasionally be quite helpful for a defendant. It may show a rather different version of events than what is reported in the police version of the facts.

Obtaining disclosure and analysing it carefully is critical, because it can provide an advantage to a defendant for negotiations or for trial. For example, internal police notes may show that their main prosecution witness has made allegations against other people previously and that those allegations had not been prosecuted due to insufficient evidence. Or perhaps a prosecution witness’s criminal history shows they are a person of poor character. Sometimes you might even strike gold with body worn footage and it may capture illegal police conduct which allows for the exclusion of certain evidence.

In any case, in an instance where you are falsely accused of an offence, you want the prosecution to give you everything they have which they say proves their case, so we can search for inconsistencies, or, if they don't have much evidence, then we can start to set up a an affirmative case against their case to make our case look much stronger than theirs.

Trial

Sometimes, despite our best efforts, the prosecution stubbornly presses on with the charges and forces us to take the case to trial. It is an unfortunate reality that they can press on with a weak case right up to the week before a trial. In the meantime, the poor defendant is losing sleep with stress and worry about his fate. Nevertheless, there will be times where an innocent person will have to take the case all the way to the conclusion of a trial. A trial means there will be a judge and jury, and the jury must decide if the defendant is guilty of the offences ‘beyond reasonable doubt’.

For a trial, preparation is half the battle. That means we come to court prepared with a case strategy, with a comprehensive version of your instructions, a carefully constructed case plan which breaks down all the weaknesses in the prosecution case, and ways in which to best exploit those weaknesses. In a sexual assault case, the defence case theory may be “it was consensual”. Then the defence strategy would centre around trying to show that the evidence supports the defence case.

Obviously, every case is different, and it can only really be with expert legal advice and representation that you can properly set yourself up for a trial if you are forced to take it all the way to the end.

Conclusion

The foregoing is only a brief overview of the different things you can do, and the different strategies you can try if you are wrongly accused of an offence. To have the best chance possible, you are going to need experienced lawyers. Clarity Law does no legal aid cases. That mean all attention will be focused on giving you the best defence possible. Our aim will always be to get a favourable outcome without the need of going to trial. But if a trial becomes necessary, then we have the experience to do the best preparation and give you the best chance possible.

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

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

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

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

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

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

5. Send us a message on Facebook Messenger

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

We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information.

Other articles that may be of interest

• Supplying dangerous drugs
• Your right to silence
• Negotiating with a Prosecutor in Queensland
• Court character references
• The difference between a conviction and non-conviction
• Declining a police interview 

We all know it is against the law to use violence against someone. We also know that there are some exceptions to this general rule. Defending ourselves or someone else is one of these exceptions.

What is Self Defence?

In its most straight-forward formulation, self defence means protecting ourselves (or someone else) from violence, or anticipated violence.

For example, a man starts randomly punching you at the pub. In this situation, you are legally entitled to defend yourself. There are a variety of ways you could do this: punching back, tackling him to the ground, or smashing a bottle and stabbing him with it.

Maybe instead of getting punched yourself, a female patron at the pub attacks your fiancé by pulling her hair and kicking her in the legs. In this case, you leap to your fiancé’s defence by either trying to pry the aggressive female’s fingers open so she will release the hair, or, grabbing a pool cue and whacking the aggressor in the face with it.

Reasonableness

In two of the above scenarios, there is a degree of force that might fairly be called excessive. Self-defence is only available as a legal defence if the force used is “reasonable to repel the attack”. To use the first example above, punching or tackling may be reasonable, but stabbing him with a broken bottle probably is not, with the well-known dangers that come with such an action. For the second example, trying to pry open her fingers appears reasonable, but whacking her in the face with a hard weapon like a pool cue probably is not.

While an element of reasonableness is necessary, the courts do not expect a person defending himself, who has to react instantly to danger to “weigh precisely the exact measure of self-defensive action which is required”. That is to say, while the force used to defend yourself must be reasonable, the courts make some allowance for people acting in the heat of the moment, under a highly stressful circumstances, with little time to carefully weigh the reasonableness of their actions.

Pre-emptive Strike

There are circumstances where it is lawful for you to assault another because you reasonably believe you are about to be attacked, without having been attacked first. This will depend on the circumstances.

For example, if in the heat of an argument about footy, a man says to you, ‘To hell with this, I’m going to give you the flogging of a lifetime’ and draws his arm back with a clenched fist, it may be reasonable for you to believe an assault is imminent, and crash tackle the man to the ground, or punch him pre-emptively.

For another example, if a man yells across a wide street to you, ‘Where’s that 10 bucks you owe me? Maybe I should come over there and take it!’, it would not be reasonable for you to take 15 seconds to cross the street to him and push him over. Even if you claimed to believe you would be attacked, the circumstances would suggest it was not reasonable for you to believe an attack was imminent. Following the same example, if the man was striding across the street towards you with an angry facial expression with his hands curled into fists, then it may be reasonable for you to pre-emptively strike him.

As can be seen, much of the above is common sense. Whether self-defence is established is a question for a jury.

Defence of Someone Else

As premised earlier in this article, you are entitled to use force in defence of someone else as well as yourself. It need not be a person known to you. If you were to intervene in a fight and separate two people by pushing one of the women away from the fight, you would likely have a legal defence for the pushing.

Charges the Defence Applies To

In Queensland, there are multiple charges that can be laid in relation to violence: common assault, serious assault, assault occasioning bodily harm, wounding, choking, grievous bodily harm, and even murder.

Self-defence can be raised as a defence for each of these charges.

Defence of Property

Queenslanders have a limited legal right to defence their property, for example, ejecting trespassers from their property. As explained earlier, this must be reasonable. You can push a person off your land, but not clobber him with a weapon. This, of course, can be different if trying to repel a home invasion by armed burglars.

Who Must Prove it?

If the defence is raised on the evidence, then the burden is on the prosecution to disprove the defence.

Consequences of the Defence

If the jury is persuaded you used violence while acting in self-defence, you will be acquitted and found ‘not guilty’ of the charge. You are free to go about your life and there is no punishment by the Court.

Conclusion

This article is merely an overview. This defence will necessarily be applied where no two scenarios are alike. Needless to say, expert legal advice will be critical in assessment of such matters.

For criminal and traffic cases, the Queensland courts have multiple sentencing options at their disposal.

This article will concentrate on suspended sentences of imprisonment.

What is a Suspended Term of Imprisonment?

Somewhat artificially, a suspended term of imprisonment (sometimes called a ‘suspended sentence’) is a term of imprisonment wholly or partially served in the community. For example, a person can be sentenced to a term of imprisonment of 12 months, suspended after three months, with an operational period of two years. This would mean that the person served three months in custody and nine months are then still ‘hanging over his head’ for two years after that. If he was to be convicted of an offence ‘punishable by imprisonment’ within those two years, he would then be dealt with for the ‘breaching’ offence and after that, sentenced for breaching the suspended term of imprisonment.

Once the suspended sentence is breached, the court has a few legislated options available to it, according to section 147 of the Penalties and Sentences Act.

The first, and default, option is to order the person to serve the whole of the remaining part of the suspended term of imprisonment. That is, using our above example, nine months imprisonment.

The second option is to order the person to serve part of the outstanding suspended term of imprisonment, such as four of the remaining nine months.

The third option is to extend the ‘operational period’ of the suspended sentence. So, again using our example, the two years operational period might be extended for another two months, adding two months to the remaining operational period.

Options two and three are only available when the Judge or Magistrate decides it would be “unjust” to require the person to serve the whole of the remaining period of suspended imprisonment.

There is a legal test to assist the Court in deciding whether it would be unjust to require the person to serve the whole of the remaining period of suspended imprisonment:

“The court must have regard to—

(a) whether the subsequent offence is trivial having regard to—

(i) the nature of the offence and the circumstances in which it was committed; and

(ii) the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and

(iii) the antecedents and any criminal history of the offender; and

(iv) the prevalence of the original and subsequent offences; and

(v) anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example—

(A) the relative length of any period of good behaviour during the operational period; and

(B) community service performed; and

(C) fines, compensation or restitution paid; and

(D) anything mentioned in a pre-sentence report; and

(vi) the degree to which the offender has reverted to criminal conduct of any kind; and

(vii) the motivation for the subsequent offence; and

(b) the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and

(c) any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment.”

A Scenario

Clarity Law had a client^[1] who was sentenced in the District Court for violence offences. He was sentenced to 18 months imprisonment, suspended after four months, with an operational period of three years. That is, he served four months in custody before he was released from jail to serve the rest of his sentence in the community.

Then, about nine months into the District Court suspended sentence, he committed a shop steal offence, taking a bottle of alcohol valued less than $40. He was fined in the Magistrates Court for that offence. The law then required him to be committed to the District Court to be dealt with for the breach of suspended sentence. The District Court decided to extend the operational period of his suspended sentence, noting the offence was of a different type from the original offences and was far less serious, and it would be unjust to require him to serve any time in custody.

About two months, later he committed more offences of violence; he was charged with common assault for a punch and charged with a beach of domestic violence order. Thanks to our skilful negotiations, we were able to get the common assault withdrawn and the facts of the DVO breach changed to a push. In the Magistrates Court he was sentenced to nine months’ probation. He was then committed to the District Court to be dealt with for breaching his suspended sentence.

In the District Court, the Judge commented he was ‘skating on thin ice’. Ultimately, the judge decided to activate the remaining portion of the suspended term of imprisonment, but then place the client on immediate parole. This meant that he had 14 months to perform on parole, or risk being sent to custody by the authorities. That is, he did not have to commit another offence to risk having his parole cancelled, as the parole board has the authority to suspend or cancel his parole if he has failed to comply with the parole order.

Although it may not be obvious from the scenario described above, our client was actually very fortunate that he was not required to serve any additional time in custody.

Conclusion

As can be seen, dealing with a suspended sentence can be complicated, particularly if it is imposed by a higher court and then breached by offences dealt with in the Magistrates Court. We highly recommend getting expert legal advice if you find yourself in such a position.

^[1] We have changed the details to maintain client confidentiality.

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

What this article is specifically concerned with is the most prosecuted offence under the section:

Using a carriage service to menace, harass or cause offence.

Elements of the offence

The text of the offence is:

 (1)  A person commits an offence if:

                     (a)  the person uses a carriage service; and

                     (b)  the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

The burden of proof is always with the police and prosecutors. What they must prove for this offence is:

A person used a carriage service

And

A ‘reasonable person’ would regard it as being menacing, harassing, or offensive

And

The person (using the carriage service) was at least aware of a substantial risk that a reasonable person would regard her conduct as menacing, harassing or offensive.

A ‘carriage service’ is defined as ‘… a service for carrying communications by means of guided and/or unguided electromagnetic energy.’ In other words, mobile communication devices or computers. Additionally, the following acts constitute a use of a carriage service: “making a telephone call, sending a message by facsimile, sending an SMS message, or sending a message by email or some other means using the Internet.”

The word ‘uses’ should be attributed its ordinary meaning. If data was transferred from a defendant to another person, we can assume the defendant was ‘using’ a mobile phone or computer to enable that transmission.

A ‘reasonable person’ is a hypothetical person, but in reality, it requires a magistrate to assess what such a person who consider to be menacing, harassing, or offensive. One judge stated this to be “the need to view the circumstances of allegedly offensive conduct through objective eyes and to put to one side subjective reactions which may be related to specific individual attitudes or sensitivities.”

So far as the meaning of the words ‘menace’, ‘harass’ or ‘offence’, legally, “[t]he words ‘menacing’ and ‘harassing’ imply a serious potential effect upon a [recipient], one which causes apprehension, if not a fear, for that person's safety.”

Putting the above in layman’s terms, this offence is concerned with a person using a mobile phone or computer to transmit information that a reasonable person would find menacing, harassing or offensive. The information transmitted can be spoken words, as in a phone call, written words, as in a text message, or the sending of a static or moving image, as in photos or videos.

There is, additionally, an ‘aggravated’ version of the offence, which incorporates what is written above, but with the addition of ‘private sexual material’. For example, a woman using per phone to transmit ‘nudes’ of her ex-boyfriend to the internet without his consent.

Penalties

The offence in its ‘simpliciter’ form has a maximum penalty of 5 years imprisonment.

The offence when it is ‘aggravated’ has a maximum penalty of 6 years.

In practise, these offences, save for those that are exceptionally serious, are penalised by way of a fine or the equivalent of a probation order.

Some examples of Menacing, Harassing or Offensive

In one case, a defendant phoned the employee of a TAFE and said she was going to attend the TAFE with a shotgun and start shooting, and would ‘shove the shotgun up [his] arse’ and pull the trigger. This was deemed to be menacing by a magistrate.

In a different case, after a woman lost a case in the federal court, she proceeded to repeatedly call staff of judges of that court 189 times in an 18-hour window. This was deemed to be harassing.

Another defendant sent emails and Facebook messages to his former solicitor, threatening to sue him, and personally confront him, as said he would ‘hunt you down’. This was after the solicitor [unsurprisingly] found it impossible to work with the defendant, and withdrew from acting for him.

Defences

One defence is the police were simply mistaken about who transmitted menacing, harassing or offensive data. That is, they charged the wrong person.

Another is the prosecution cannot prove that the defendant sincerely did not intend for the communications to be harassing, menacing or offensive.

Conclusion

That is an overview for this offence. As can be seen, this offence can be a little technical, and we recommend seeking expert legal advice if you are charged with such an offence.

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

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

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

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

3. Book a time for us to call you

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

5. Send us a message on Facebook Messenger

Introduction

This article is aiming to help clarify some issues people may come across in the interaction between civil domestic violence orders (DVO), criminal charges for breaching those orders, and family law orders – particularly in connection with parenting issues.

Credit is due to Justice Hogan of the Federal Circuit and Family Court, from whom I adapted some of the material in this article.

I would also like to make clear that Clarity Law specialises in Criminal and Traffic law. We do not practise in the DV space (except for breaches of a DVO which we can help with) or family law space. In other words, what is shared here must not be relied upon as legal advice. It will not serve as a substitute for specialised legal advice.

Social Context

According to Queensland police statistics, there were 53,075 breach domestic violence order offences prosecuted in 2022. This is compared to 6,961 offences in 2002. This does not necessarily mean that the prevalence of domestic violence has increased based on those numbers alone (and indeed, if that was the case, then the government’s efforts to tackle domestic violence would be a massive failure), but it does confirm that the overlap between the criminal law and family law is as relevant as ever.

We can only assume that prosecutions for breaches of domestic violence orders will increase even more, due to the Queensland government’s recent introduction of legislation regulating ‘coercive control’ within domestic relationships. The concept of coercive control is better explored in a separate article, but suffice it to say, it broadens the definition of domestic violence so widely that we are guaranteed to see more applications for domestic violence orders, and correspondingly, more breaches of those orders. Clink here for a guide targeted particularly at charges for breaching a domestic violence order.

A Scenario

Consider this scenario: a husband and wife live together with three children. There is a domestic violence order in place. The husband gets drunk, has an argument with his partner about previous infidelity, and during the argument he slams his hand down on the kitchen bench and threatens to “belt” his wife and calls her a “whore”. She calls police, and he grabs her phone and throws in hard onto the ground, smashing it. This is all within the earshot of the young children.

Police arrest the husband for breaching a domestic violence order. Police apply for, despite the wife’s objections, much more restrictive conditions in the current domestic violence order.

Eventually, the husband pleads guilty to common assault, breaching a DVO, and wilful damage (with the assistance of Clarity Law, of course). On the day of sentence, the Court confirms an order which prevents the husband from having interactions with the ‘aggreived’ (the wife) or the children, without written permission of the aggreived. After he is sentenced and the DVO is varied, he texts the wife to arrange to have contact with the children. She replies “they don’t want to see you.”

Suddenly, he has a big problem: he can’t persistently contact her without risking a breach of the DVO. So, where to from here?

Some Options to Get Contact

He could leave the legal system out of it, and continue to try and interact with his wife in an amicable way. This option is not recommended. In my experience, this option leaves the person who must obey the order open to further charges. It only takes a little deviation from the rules of the DVO for him to get charged with a criminal offence. Even if the wife is not going to call police over trivial breaches, there is a likelihood that there is going to be a disagreement between them at some stage. There will always be the looming threat of a DVO breach allegation in the background.

He could go back to the Magistrate’s Court to seek a ‘variation’ of the recently changed DVO. The variation aim to make the order less restrictive and make it easier for him to see his children. Trying to do this without the aid of a solicitor is not recommended. The Court may agree to change the order, but this is unlikely in circumstances where it has been varied recently. It is generally quite difficult for a ‘respondent’ (the husband in this scenario) to get a DVO varied.

He could go to the Family Court and ask for ‘parenting orders’ which will allow for him to have regulated contact with his children. Even if this seems like a ‘hassle’, it is likely the safest and most effective way for him to get legal contact with his children. At the least, he should seek an initial consultation and some advice.

How DVO Orders and Family Court Proceedings Interact

If he has decided to initiate family law proceedings, it may be helpful to know how the domestic violence orders/convictions interact with family law proceedings.

The Family Court, when considering what parenting orders to make, must keep the ‘best interests of the child’ squarely in mind.

The Family Law Act specifically tells the Court, when considering this question of ‘best interests’, that it must give primary regard to:

(a)  “the benefit to the child of having a meaningful relationship with both of the child’s parents;

and

(b) “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

The law states the need to protect the child must be given higher priority than the child having a meaningful relationship with both parents.

The Family Court is additionally obliged to consider, when assessing a child’s best interests:

• “any family violence involving the child or a member of the child’s family;
• if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

o   the nature of the order;

o   the circumstances in which the order was made;

o   any evidence admitted in proceedings for the order;

o   any findings made by the court in, or in proceedings for, the order;

o   any other relevant matter”.

It is significant to note that a party to a proceeding is required under the family law legislation to inform the court of family violence orders:

“60CF Informing court of relevant family violence orders

(1)  If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.

(2)  If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.

(3)  Failure to inform the court of the family violence order does not affect the validity of any order made by the court.”

The Court is additionally instructed to make its own assessment of the possible risk of family violence. This will necessitate the Court considering all available material when making that assessment, regardless of what has happened in other courts:

“60CG Court to consider risk of family violence

(1)  In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

                     (a)  is consistent with any family violence order; and

                     (b)  does not expose a person to an unacceptable risk of family violence.

(2)  For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.”

There is a legal preference, then, to make family court orders which are consistent with any domestic violence order, however, family court orders will invalidate parts of domestic violence orders to the extent the domestic violence order conflicts with a parenting order.

Presumption of equal shared parental responsibility

The Family Law Act presumes equal shared parental responsibility, that does not mean, as is often mistakenly believed, that this means equal time in parental contact. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

The presumption equal shared parental responsibility does not apply where there are reasonable grounds to believe that a parent of the child has abused the child or engaged in family violence.

Summary

The foregoing means, in laymen’s terms, that the Family Court judge will inevitably know about the domestic violence order allegations. Even if a person has consented ‘without admissions’ (this is, agreed to a DVO without admitting the facts constituting the application for the DVO), the allegations are something the Court is obliged to take into account. People sometimes think if they have consented without admissions to a DVO the Family Court will then simply put that aspect of the case to one side. Not true.

Sometimes there will be criminal charges involving alleged domestic violence and a person is acquitted of those charges. The nature of those allegations will still be considered by the Family Court and the other party in the family law case is not prevented from rehashing those allegations in the Family Court.

Part of the reason why the Family Court considers what has happened in civil DVO orders and criminal proceedings is because one legal test the Court must apply, in relation to parenting orders, is an assessment of whether there is an ‘unacceptable risk’ to the child. This is quite a different legal test from ‘proof beyond reasonable doubt’, which is the legal test in a criminal case, or ‘the balance of probabilities’ which is the civil/DVO application test.

The Family Court does have the legal authority to overrule parts of domestic violence orders to facilitate its parenting orders.

What Does it all Mean?

Practically speaking, once a person initiates or responds to Family Court proceedings, the person should expect any allegations (proven or otherwise) of domestic violence to make their way into the Family Court proceedings. The Court will give any allegations of domestic violence serious consideration, even if the allegations do not state the child or children were involved in any way. This is not necessarily fatal to the person getting contact with their children, but it may mean supervised contact with the children at first. It will also mean the person may be obliged to explain or put the allegations into context in response. The person will likely help their cause by engaging in efforts to demonstrate rehabilitation to the Court, as this will inform the Court’s assessment of ‘unacceptable risk’. Rehabilitation may involve participating in such programs as “Men Choosing Change’ or alcohol counselling if alcohol was involved.

Conclusion

This is as far as I can take my guidance, but I hope the reader, if nothing else, takes from this article the importance of getting expert advice in relation to domestic violence orders and possible family law proceedings. People who fail to act in this space can be prevented from seeing their children for a long time. It is a hard road to fight it out in court, but is probably the easier option compared to giving up or doing nothing.

How Can Clarity Law Help Me?

Despite the content of this article, we do not involve ourselves in domestic violence orders or family law. We specialise in criminal and traffic law. If you have a contravention of a DVO charge we can absolutely help. Because we specialise, we are very good at what we do. We are able to assist with criminal charges related to domestic violence, and offer referrals to law firms we trust for something beyond our practice areas.

Recently, we succeeded in an appeal to the District Court. We appealed a magistrate’s decision to record a conviction on our client’s criminal record. At the appeal hearing the judge decided to change the magistrate’s order so a conviction was not recorded in her criminal record.

This is significant for our client because it means her conviction will now not be revealed in any criminal history check. I also means she will not have to declare the conviction for the purposes of travel.

How we did it

In the Queensland court system, if a Magistrates Court imposes a penalty for a criminal offence which the defendant (or his lawyer) deem as being excessive or not imposed by proper application of the law, the defendant can then appeal to a higher authority to change magistrate's decision, that higher authority is the District Court.

To appeal a magistrate's decision, the person appealing (or their layer) needs to file a notice of appeal within 28 days of the decision. After that you are required to file a written outline of argument with the District Court registry, and serve a copy of that outline on the Director of Public Prosecutions. The DPP will represent the Commissioner of Police in the appeal.

In this particular case our client pleaded guilty to a charge of assault occasioning bodily harm. The assault was the pulling of a barmaid's hair and ripping some of the hair out from her scalp. The offence was aggravated because it was committed in a licenced venue within a safe night out precinct of the Sunshine Coast.

Balanced against this, in our client's favour, was the fact that she had absolutely no criminal or traffic history, she had written an unreserved apology to the complainant, she had undertaken alcohol and psychological counselling, she was gainfully employed, and she pleaded guilty at an early opportunity. She was also supported by her husband in court and by character references which spoke very highly of her usual demeanour and absence of aggression.

I personally appeared for the client in the Magistrates Court and argued that a period of probation without conviction was a suitable penalty.

The police prosecutor argued for a sentence of imprisonment, where my client was either to serve some actual time in prison, or her sentence should be wholly suspended. This outcome would necessitate the recording of her conviction.

The magistrate decided to impose probation on my client. However, the sticking point was he did not make me or the client aware that he was going to record a conviction until the at the very end of the hearing of the case. After I heard this I jumped up and asked for an opportunity to make further submissions about the recording of a conviction. The magistrate rebuffed my request, stating that in his opinion given the pain and suffering caused to the complainant and the fact my client held onto her hair for about a minute, that a recording of a conviction was suitable.

We appealed the case on the ground that it was “manifestly excessive”. I prepared the written argument and argued the case in the District Court personally.

The “manifestly excessive” appeal ground means that if the District Court judge hearing the appeal agrees with the argument that the penalty imposed by the magistrate was so harsh that it did not fall within the magistrate's proper exercise of his sentencing discretion, then the District Court ought to change the outcome.

I supported my arguments with a case from the Court of Appeal [R v ZB [2021] QCA 9], and a case from the District Court [NHR v The Commissioner of Police [2021] QDC 67]. The judge in the NHR case decided that a magistrate recording a conviction for a first time offender who punched another patron in a pub, was manifestly excessive. The judge also reviewed other similar cases where a judge had determined that the recording of a conviction for a first-time offender for a charge of assault occasioning bodily harm was excessive.

The short version is, my argument was supported by good cases.

Representatives for the Director of Public Prosecutions opposed my arguments, stating that the magistrate's decision did fall within the proper bounds of his sentencing discretion.

Conclusion

Ultimately, the judge agreed that the recording of the conviction was manifestly excessive, but also identified an appeal point himself, which was our client had been denied “natural justice” because we were taken by surprise by the recording of a conviction, and I was not given an opportunity to respond to that aspect of the magistrate’s decision.

The judge overruled the magistrate’s order and ordered that no conviction should be recorded in our client’s criminal history.

Experience matters

We at Clarity Law are all experienced lawyers. I practised as a barrister for years before joining Clarity Law as a solicitor. Our experience means we are able to identify when a magistrate has made an error, and properly protect our clients’ rights by appealing that error when it matters; as it did in this case. Fortunately, we very rarely appeal because we have a proven track record for excellent results for our clients!

WorkCover is a taxpayer funded, government run insurer. A person can claim WorkCover if the person has suffered an injury at, or because of, work and due to that injury, the person must take time off work or can only work at reduced capacity. The injured person can then claim compensation to help keep them financially secure, while also working towards rehabilitation and getting back to work. 

The law governing the WorkCover rules is the Workers’ Compensation and Rehabilitation Act 2003.

A person must be entirely honest in their dealings with WorkCover. It is an offence to falsely claim an injury, or continue to work at full capacity while receiving Workcover payments or not to inform Workcover if the person returns to work while still receiving payments.

How offences are detected

Offences under the Workcover legislation are detected by direct investigations. For example, investigators appointed by Workcover may shadow a claimant to make sure he is not continuing to work despite receiving compensation. The investigation may involve confirming or assessing the extent of claimed injuries, so if a roofer claims he has injured his back such that he is unable to work on the top of a roof, the investigator may covertly follow him to make sure he is not working on any roofs. The investigator has the power to require a person to give information or documents relevant to an investigation (such as bank records).

Offences

A person who misleads Workcover about the extent she is working or the extent of her injuries, and simultaneously receives compensation or has a claim for compensation pending, commits an offence.

The two offences under the Act with the highest maximum penalties are fraud and providing false or misleading information. These are section 533 and 534 respectively.

Penalties

Section 533 makes it an offence to defraud, or attempt to defraud, Workcover. The penalty is a maximum fine of $71,875 or maximum imprisonment of 5 years.

Section 534 makes it an offence provide false or misleading information or documents to Workcover. The penalty for this is a maximum fine of $21,577 or a maximum of 1 year imprisonment.

Usual Penalties

The two main offences under the Workers’ Compensation and Rehabilitation Act 2003 are generally punished firmly. The penalty will normally be harsher the higher the amount defrauded or attempted to be defrauded. The usual penalty will be imprisonment, whether some actual imprisonment or a period of wholly suspended imprisonment. For a useful summary of case outcomes can be found here.

Possible Defences

For a fraud offence, all Workcover must establish is a worker who is receiving compensation engaged in work and did not notify Workcover or, to establish attempted fraud, the person lodged an application for compensation, engaged in work, and did not notify Workcover (before receiving compensation). This is easily established if someone earns money while receiving Workcover compensation. Usually, to successfully defend a charge of Workcover fraud, defence would have to show how, despite Workcover’s evidence, the defendant did not earn money while receiving Workcover compensation, or if she did so, it was a genuine mistake. Given Workcover will require the defendant to sign a document undertaking to inform Workcover of any change of circumstances, and will provide the defendant documents stressing the importance of reporting any changes in circumstances (i.e. improvements in injuries, starting a new job etc), a defence of mistake would require a high bar to succeed. 

Can Clarity Law Help Me?

We have experience in assisting with these types of cases. For the last case we had, we were able to reduce the alleged fraud by thousands of dollars, and we reduced the time period the client was alleged to have worked for while receiving compensation by months. We were able to do this by careful case analysis and negotiations with the prosecutors. However, these types of cases are time consuming and can be complicated, so we highly recommend you engage experienced private lawyers (such as us) to assist.

Conclusion

This article is by no means a complete guide to Workcover prosecutions, but we trust it serves as a useful introduction. If you are charged by Workcover, or are requested to give an interview, please contact our office for a free initial consultation. 

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

If you want to engage us or just need further 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.

Anyone can be charged with a criminal offence. It can happen unexpectedly and suddenly. A night out with friends can end in someone getting punched, or a temporary domestic violence order can lead to a string of breach allegations. Sometimes, a moment of inattention while driving can lead to catastrophic consequences. In any of these cases of more, you are suddenly in a situation where expert advice is critical.

Can a Criminal Lawyer Help Me?

Lawyers are professionals. They learn for years in university, then undertake a practical legal training course, then undergo at least two years of supervision as a junior lawyer before being able to manage cases of their own. All this gathered knowledge and experience is intended to prepare the lawyer to professionally represent the interests of his or her clients.

If you are defending a criminal charge, what are your interests? To have the charges dropped, to successfully defend the charges in court, or get the most lenient possible penalty after a plea of guilty.

So, how can a lawyer help you with this? The legal system is complex, and it is very hard for someone untrained to properly navigate it. The chance of you getting the best possible outcome on your own is very low.

What does a Criminal Lawyer do?

Analyse your case

Understand your situation. Find out exactly what you are charged with and the probable evidence to support each charge. Examine your criminal or traffic history (if any) and form a strategy for dealing with that in court. Take your detailed instructions about the charges to see if you have been correctly charged and if there are defences available.

Are you charged with assaulting someone at a licenced venue? Perhaps the full story is the person was assaulted by you, but only because he hit you first and you retaliated. In that case, the defences of self-defence and provocation could be explored.

What if you are charged with breaching a domestic violence order? Maybe you legitimately contacted the other party to make child arrangements, and you can prove this by producing text messages.

Maybe the prosecution simply cannot prove the charge. For example, have you been charged with driving under the influence of alcohol because police breathalysed you near, but not inside, your car? Then maybe you could argue that you got intoxication after you arrived at the location.

All these options and possibilities might be explored by a lawyer, but you will simply not have the technical knowledge or experience to do that yourself.

Negotiate with the prosecution

We at Clarity Law have a great track record for successfully negotiation with the prosecutors. Did you know it is possible, for the right case, to get charges dropped or downgraded?

For example, I recently persuaded the prosecutors to downgrade a charge of dangerous driving to a charge of careless driving. This was a massive deal for the client because dangerous driving has a mandatory minimum 6 months licence disqualification, whereas careless driving has no mandatory minimum. The client was a truck driver, so thanks to our negotiations he was able to keep his livelihood.

Another example is where I persuaded the prosecution, through careful analysis of body-worn footage, family law orders and text messages, to drop a charge of breaching a domestic violence order. That kind of outcome does not come around too often, I can tell you!

Sometimes, we can negotiate the “facts” of the charge to something more favourable. For example, I once had a case where the client was accused of a serious assault by poking a 60 year-old in the stomach with his finger, then spear tackling him to the ground. Those facts were amended to only reflect the poking to the stomach, which of course sounded a lot better for the client in court!

Represent you in Court

I cannot tell you how many times I have seen people turn up to court with no plan at all, and end up representing themselves, or, at best, getting a busy and time-short duty lawyer to do it. In my experience, most people are not particularly good advocates for themselves, and if they say the right things in court, it is more good luck than good planning.

If you engage an experienced lawyer ahead of time, then we are able form a strategy, gather the documents that will help you (such as character references) and say (or not say) just the right things to get you a favourable outcome.

Won’t the Outcome be the same if I just get a Duty Lawyer or Represent Myself?

No, it really won’t. Quality representation can make a massive difference to the outcome of your case. Do you not want a conviction? We know the laws and cases to make that argument. Do you want to minimise the penalty? Then we know the right submissions to make.

Another thing which is very important is we know the judges and magistrates. For better or worse, this makes a big difference to the outcome. For example, I recently represented a client for a middle-range drink driving offence, but the blood-alcohol content reading was right at the top of the middle-range. Most of the time, it would be 5 – 6 months licence disqualification, but because I knew it was a new magistrate, I thought I would have a shot at getting the minimum disqualification for that offence, which is 3 months. It worked. The prosecutor looked stunned, and the client overjoyed as we left the court.

We are aware of another magistrate who will not grant work licences if the defendant has not completed the QTOP program. This has led to many a disappointed self-represented person who has had his or her work licence application rejected for that reason alone.

 Conclusion

Being charged with a criminal offence is a big deal. The outcome can have lasting consequences for your future. We at Clarity Law all have considerable experience in criminal and traffic law. We also know our fees are reasonable compared to our competitors. If you want competent, responsive and experienced representation for a matter, give us a call or email for a free consultation. We are confident you will not regret using Clarity Law for your case.

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

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

1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Call us on 1300 952 255 seven days a week, 7am to 7pm
3. Book a time for us to call you
4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

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