Clarity Law

Specialist Criminal Law Firm Queensland
Jacob Pruden

Jacob Pruden

Jacob is a former barrister and now criminal defence lawyer with over 8 years experience appearing in courts throughout South East Queensland representing clients charged with criminal offences.

Website URL: https://www.claritylaw.com.au/about-us/our-team/jacob-pruden.html Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Using Carriage Service to Menace or Harass 2

 

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.

  1. 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.

 

Wednesday, 23 November 2022 17:26

Should I hire a Criminal Defence Lawyer?

 

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.

 

Other Areas of Law

 Drink Driving Lawyer Noosa

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Drink Driving lawyer Caloundra

 

 

The offence of choking, suffocation or strangulation (to be “choking” hereafter) is contained in section 315A of the Criminal Code Act 1899.

The section states:

(1) A person commits a crime if—

(a) the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and

(b) either—

(i) the person is in a domestic relationship with the other person; or

(ii) the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012.

The penalty is a maximum of 7 years imprisonment.

 

Meaning of Choking, Suffocation, or Strangulation

The Queensland Court of Appeal has held that the act of choking requires that the defendant hinders or restricts the breathing of the complainant. The choking does not require proof that breathing was completely stopped, and the choking requires some detrimental effect on the breathing of the complainant.

A Supreme Court Justice has said, “Even if the restriction of the breathing, as a result of the action of choking the victim, is of short duration, without any lasting injury and does not result in a complete stoppage of the breath of the victim, that will be sufficient, as the offence is directed at deterring that type of conduct from occurring at all.”

It will not be enough, however, for the defendant to “merely put his or her hands to the neck of the victim.”

 

Possible Defences

No Domestic Relationship

This offence only occurs in the context of a domestic relationship. A domestic relationship is defined under section 13 of the Domestic and Family Violence Protection Act 2012 as:

(a) an intimate personal relationship; or

(b) a family relationship; or

(c) an informal care relationship.

This will cover every family relationships, even if the family relationship is not by blood. It will also cover many sexual relationships, but possibly not a casual sexual encounter.

Therefore, it would be a defence to this charge if the evidence showed there was no domestic relationship between the complainant and the defendant.

It is important to note that this charge does not apply in situations where the person choked is a stranger or friend to the defendant. In that case it would likely be a charge of assault or grievous bodily harm, depending on the extent of the injuries to the complainant.

If the jury found there was not a domestic relationship between the defendant and the complainant, then the jury would be obliged to find the defendant not guilty based on the prosecution being unable to prove the charge.

 

Self-defence  

Self-defence is available. The action of choking would have to be proportionate to the threat or violence experienced by the defendant.

To use a clear-cut example, if the complainant was coming at the defendant with a knife and defendant stopped the attack by choking the complainant, this would be an argument for self-defence as it would seem proportionate to the threat the defendant experienced at the time.

To use a different example, if the complainant had slapped the defendant to the face, and the defendant responded by choking the complainant, it is unlikely this would hold up as a defence as the defendant’s was an unreasonable/disproportionate response to the violence/threat.

If a jury was to find the defence of self-defence applied, then the defendant would be acquitted or found not guilty of the offence.

 

Provocation not a defence.

The law states that “assault” is not an element of the offence, the main point which flows from this is that the defence of provocation is not available to someone who commits a choking offence. Put another way, the defence of provocation is only available as a defence for offences which have “assault” as an element of the offence. This includes common assault, assault occasioning bodily harm, and serious assault.

 

The choking did not happen.

It is a defence to the charge if it did not happen. This defence might be used when the defendant argues the complainant simply made up the allegation. The defence is more likely to succeed if there are no photographs of injury to the neck or there was no “recent complaint” – i.e., the complainant goes to the police to make the allegation weeks or months later.

Another argument could be that there was some violence, but it was not choking. For example, the complainant was grabbed roughly by the shoulders or hands were placed on his or her neck, but the breathing was not restricted.

 

Alternate charges

Defence lawyers can write to the prosecution and argue that a charge of assault occasioning bodily harm or common assault should be in place of a choking offence. This will sometimes succeed if it is ambiguous whether the complainant’s breathing was actually restricted, or there has been a push on the neck or touching of the neck rather than a restriction of breath.

 

Court which will hear the case

This offence is classified as an ‘indictable offence’, which means it will only be heard in the District Court or (in some situations, if certain other charges are present) the Supreme Court. Although it will start in the Magistrates Court, this will only be for the ‘committal’ process, and it will eventually be transferred to a higher court. This means any trial will be heard by a judge and jury, and proceedings will generally take longer to conclude than if it remained in the Magistrates Court.

Assault Occasioning Bodily Harm Queensland

 

Bail

The offence of choking is designated as a “show cause” offence according to section 16 of the Bail Act 1980. This means a person charged with this offence will (usually) not be granted bail by police, and will then need to make a bail application to the court to be released from custody. The defendant would be required to “show cause” to a court why his or her detention in custody (pending resolution of his charge) is not justified.

 

Usual Penalties

This offence is considered to be very serious by the courts and the parliament. As such, the most common outcome is the defendant spends some time in prison. The explanatory notes for the legislation introducing this charge stated “The new strangulation offence and the significant penalty attached, reflect that this behaviour is not only inherently dangerous, but is a predictive indicator of escalation in domestic violence offending, including homicide.”

Generally, sentences for choking offences can range from approximately 2 to 4 years imprisonment, depending on the seriousness of the violence and the criminal history of the offender. There are cases where the sentence is less than 2 years, although these cases are exceptional. There are also cases where the sentence is longer than 4 years, but these cases generally deal with more than one offence.

Offenders will ordinarily be required to serve a third of the sentence in actual jail if it was a plea of guilty, or serve half or more of the sentence in jail if it was a trial and a plea of not guilty. In rare cases, an offender will serve no time in jail, even though the “head sentence” is 2 years.

It is clear then, that an offender should generally expect to spend some time in jail for a conviction for this offence.

 

Conclusion

If you are charged with this offence, or police wish to interview you for such an offence, Clarity Law can help. We are experts in criminal and traffic law; it is all we do. With our reasonable fees, expert advice and experienced representation, we will give you a fighting chance should you ever have the misfortune of having to deal with a choking allegation.

low res group

 

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.

 

Sunday, 20 November 2022 18:59

Fines for Criminal Offences in Queensland

 

Fines are the most common penalty imposed by the Queensland Courts for criminal matters. They are used to punish criminal offences, traffic offences, and regulatory breaches.

Fines can be imposed for offences as wide ranging as assault, producing drugs and possessing weapons. It all depends, like other penalties, on the circumstances of the offence, the circumstances of the defendant, and the defendant’s criminal or traffic history.

The size of the fine will depend on the how serious the court considers the offence. For example, a low range drink driving offence might attract a fine of around $350, while a corporation breaching workplace safety regulations could be fined tens of thousands of dollars.

If a court punishes you by imposing a fine and no other penalty, it has the discretion to not record a conviction.

A fine will not be appropriate for the more serious types of offences, such as drug trafficking, sexual offences, and home burglaries.

 

Compensation and Restitution

Compensation and Restitution function like fines, but they are for a different purpose than punishment.

Compensation is usually ordered where the defendant has committed a violent offence against someone. The compensation will be a monetary amount. Its purpose is to compensate the complainant for the personal injury suffered because of the defendant’s actions.

Restitution is ordered for the purpose of restoring the complainant to the position they were at before the offence was committed. For example, if the defendant damaged property, they may have to pay restitution according to the cost of the property damaged or the cost to repair the damage.

 

Offender Levy

The offender levy is separate from any fine the court may impose.  It is a levy imposed for all adults who plead guilty or found guilty.  The levy is meant to pay the cost of law enforcement and administration.

 

Ways to Pay

The most usual way for someone to pay a court-imposed fine is for it to be referred to the State Penalty Enforcement Register (“SPER”) . This is a government body separate from the courts which enforces the payment of fines. You will be able to enter into a pay arrangement to pay fines off over time, according to your financial circumstances.

There are also time-to-pay arrangements. That is where the court gives you a specific deadline by which you must pay the fine.

 

What happens if you don’t pay

SPER has the power to enforce the debt.  In order to enforce the debt SPER might

  1. Suspend your drivers licence
  2. Take the money from your bank account
  3. Immobilize your motor vehicle
  4. Seize property

 

I have had recent cases which has shown the, at times, confusing aspects of domestic violence orders in Queensland. These cases have motivated me to provide some additional points which I did not include in my original article: The Ultimate Guide to Breaching a DVO.

 

How Do I Know If I Am Breaching My DVO?

The easiest way to figure out what would constitute a DVO breach is to read the order itself. There are three types of orders:

  1. A Police Protection Notice
    1. This is an order police can make if police believe a person is in need of protection and this police protection notice is necessary and desirable to protect that person.
    2. It is an offence punishable by a maximum of 3 years to breach one of these orders.
  2. A Temporary Protection Order.
    1. This is an order which a court may make if the Court is satisfied of a relevant relationship between the aggreived and respondent and, the Court’s view is the respondent has committed domestic violence against the aggreived. It only lasts until a Domestic Violence Order is made or the (DVO application) proceedings otherwise end.
    2. It is an offence punishable by a maximum of 3 years to breach one of these orders.
  3. A Domestic Violence Order.
    1. The Court may make this order, often for a period of 5 years, if the Court is satisfied of a relevant relationship between the aggreived and respondent and, the Court’s view is the respondent has committed domestic violence against the aggreived, and the order is necessary or desirable to protect the aggreived from domestic violence.
    2. It is an offence punishable by a maximum of 3 years to breach one of these orders. The maximum penalty increases to 5 years if, within 5 years beforehand the defendant has been previously convicted of a domestic violence offence.

Bear in mind, even if you do not agree with the order and even if it is a “Temporary Protection Order”, the conditions still carry equal legal force compared to a “Domestic Violence Order” which is the final order.

 

Protection Orders Serve an Important Social Function

As I am about to make some comments which may appear to be critical of protection orders and the prosecution of DVO breaches, I wish to make it clear that I am in no way denying that there are cases where people need protection and that protection orders are an important way of doing so. I acknowledge police have a difficult and unenviable job in investigating and prosecuting domestic violence allegations. I am certainly not attempting to make excuses for domestic violence abusers, far from it. What I am trying to do is give helpful guidance and tips in what can be a confusing area of the criminal (and by necessary overlap, civil) law.

 

Can I Breach a DVO if I Didn’t Agree to It?

Absolutely. A “temporary protection order” is routinely made while the parties wait for a final decision on the order to be made. This can often result, from the defendant’s perspective, in unfair outcomes.

We had a recent client who disputed the order all the way along to a “hearing” (or trial), in the belief he had not committed domestic violence (he wasn’t a client at the time). Even though the magistrate accepted the conduct did not appear to be threatening or violent, he still made a domestic violence order for two years anyway, placing severe restrictions on the contact our client could have with his children and in what circumstances.  

Then, our client appealed the decision to the District Court, arguing that he didn’t get a fair hearing. The District Court agreed with him and ordered for the domestic violence order to be heard by a different magistrate. Despite all of this, our client was still restricted by a temporary domestic violence order the entire time. The process took over a year. And yet the whole time, he still had to abide by the conditions of the order.

We see people make this mistake a lot, so we need to make it as clear as possible: even if you disagree with the order, you still have to abide by the order, even if you haven’t had your say in court yet. The standards of evidence are very different compared to criminal cases, and every day of the week magistrates are making temporary orders based on only one side of the story, usually written down in a form.

 

How Can I Be Charged with Breaching a DVO When I Wasn’t Violent or Threatening?

Even though the overriding purpose of these orders is to protect people, once an order is made, it can be very restrictive. It can kick people out of their homes, prevent them from going near their children, contacting someone, or even posting something on social media that might in some way refer to a person protected by the order.

A lot of people get tripped up by this.

So, understand you can still breach a DVO even if your actions were in no way violent or threatening. We had a client who, as part of the order, was allowed to telephone his daughter on certain days of the week. One week, he slipped up and called on the wrong day. That was charged as a breach.

We had another client, who accidentally sent an email to his ex, instead of his accountant. Because he was only allowed to contact the ex to make child arrangements, that was charged as a breach.

Once an order in place, the point is not only about domestic violence; it is also about controlling the actions of the person with the order on them.

We emphasise again, it is very important for a person who is restricted by an order to know exactly what the restrictions are.

 

How Do I Know What I Can and Can’t Do Under a DVO?

There is generally one of two ways. If an order was made in court and you were present at the time, then the magistrate will have explained the conditions to you. However, we do recognise it is usually hard to take in the information when you are on the spot in a court environment.

The other way you know what you can and can’t do is by reading a written copy of the order. The words used can be unfamiliar and unusual, but it is important to try and understand as best you can. If there is anything on the order you simply cannot get your head around, we recommend you seek the advice of a lawyer. The conditions of DVOs can sometimes be long and convoluted, but understanding exactly what the conditions are is the best way to protect yourself from being charged.

 

Is a Breach of a DVO Serious?

This is another thing people get tripped up on. You might think a particular breach is not serious (sending a text saying “hey”, or waving to your ex when you see her down the street) and would therefore not be treated seriously by a Court. This is incorrect. Once a court order is made (which is what temporary protection orders and domestic violence orders are), then any breach is to defy the Court’s authority. This is an important point to understand. Courts protect their authority rather fiercely. There are good reasons for this. If people think they can just ignore Court Orders and face no serious consequences, then it makes a mockery of the justice system. So, the Courts need to treat breaches of DVOs seriously. Repeated breaches, even if they are text messages trying to repair a relationship, can still lead to someone going to jail if the breaches are too numerous and persistent.

 

But I Didn’t Breach, The Other Side is Just Making Things Up!

If this is your situation, and it does happen, then you need to get some legal advice. We find it is rare that a breach is completely fabricated, usually there is something the accused has done, no matter how insignificant, that has been twisted into a breach. You need to be the judge of what the other person is likely to do. Will they try to breach you on something small? Will they try to entice you to interact with them and then go running to the police? If this is who you are dealing with, then you need to find a way to move on, or make sure absolutely every (legal) interaction is in writing.

 

Some Further General Tips

  • Even if there has been abuse from both sides of the relationship, the police operations manual specifically instructs police not to apply for “cross-orders”. That means police will pick a side and apply for an order for one side only.
  • The legislation specifically says a person protected by a DVO can’t be charged with an offence of aiding and abetting a breach of the DVO. This means a person will not be charged with an offence or get into trouble in any way, even if they told you that you could visit them or they have been bombarding you with phone calls and text messages.
  • Although it is an unnatural way of communicating, if there is an exception in the DVO allowing you to contact the other parent of your child or children to make child arrangements, you must not stray from the subject of making child arrangements whatsoever when contacting the protected person. We routinely see people breached for pushing the boundaries of these exceptions, even a little.
  • Even if you think you can prove the other side has lied to police or has done the wrong thing to you, do not expect the police to do anything about it. Once there is a DVO on you, all the police care about is whether you have breached it or not. They have very little interest in your side of the story. If you want to tell your side, tell a lawyer or the Court.
  • Don’t yell at or abuse police. They have a difficult job to do, and you only make things harder on yourself by trying to get into a debate with them. Trust us when we say, the police never back down from someone challenging them verbally or physically.
  • Sometimes, people think that police will drop the charges if the protected person goes to police and says they want to change their statement or withdraw the charge. Take it from us; the police won’t. Equally, it is rare for police to withdraw a DVO application just because a protected person says they do not want it.

 

Conclusion

I trust this further information has been of some help in understanding this area of the criminal law. If you are in trouble for breaching a DVO and need some expert advice, give our office a call and we will support you to navigate through this difficult time.

If it is a traffic matter, you probably cannot.

If it is a criminal matter, you can, but in many circumstances may not want to.

 

What is a duty lawyer?

A lawyer who assists people at Magistrates Courts some days of the week, for no fee. The duty lawyer service is funded by Legal Aid Queensland. Employees of Legal Aid Queensland  or solicitors from firms that Legal Aid cases, serve as duty lawyers. Duty lawyers will provide legal advice and will sometimes provide representation in court. A duty lawyer can appear for simple pleas of guilty (for criminal matters) and adjournments.

 

Why can’t I use a Duty Lawyer for a Traffic Matter?

Magistrates Courts allocate different types of cases to different days of the week, such as: general criminal matters on a Monday, traffic matters on a Tuesday, Children’s Court matters on a Wednesday, and domestic violence applications on a Thursday.

Legal Aid Queensland will not fund a duty lawyer service for days when only traffic court is held, this is because Legal Aid’s guidelines direct that a duty lawyer is not to assist a person with a traffic matter unless the defendant is at risk of imprisonment. Even then, a duty lawyer will frequently decline to represent a person who is at risk of imprisonment, recommending instead that the defendant gets their own lawyer, who can then prepare the case properly.

 

Why shouldn’t I use a Duty Lawyer for a Criminal Matter?

Duty lawyers are professional and caring but they are busy. I have provided duty lawyer services in the past, and I considered it a good day if the number of cases I dealt with was only 10. A duty lawyer does not have much time to spend with you on your case, as time must be managed between many people. Generally, I would allocate about 10 to 15 minutes per person to look at their case and give them some rough advice.

Another reason is duty lawyers vary in experience. There are many fine duty lawyers, but equally, Legal Aid’s guidelines only require a minimum of 6 months’ criminal law experience before a person can become accredited as a duty lawyer (traffic law experience is not a requirement).

 

What are the Advantages of Using a Duty Lawyer?

  • If you did not already have a lawyer and you were nervous about asking for an adjournment by yourself, then a duty lawyer would be helpful for that purpose.
  • If you have a multi-page criminal history, you may not be concerned about ‘adding one to the pile.’
  • It is a free service.

 

What are the Advantages of Using Clarity Law?

  • Our lawyers give your case the personal attention that a duty lawyer does not, by necessity, have time for. We speak with you before court, appear with you at court, and explain everything after court. We are your personal guide through the court system.
  • We work on a fixed fee basis. There is no confusion around what you are getting for your money.
  • All our lawyers have at least six years’ experience in traffic law and criminal law.
  • Our legal expertise leads to great outcomes:
    • o Minimum disqualifications,
    • o No convictions recorded,
    • o Perfect success rate for special licence applications,
    • o Low fine and other penalties.
  • We have many 5-star reviews; see our Brisbane office and our Sunshine Coast office. We think that’s a good sign.

 

Conclusion

Having been a duty lawyer, I can say from experience that it is unlikely a duty lawyer (if available) will assist you with a traffic matter and may not be the best choice for resolving a criminal matter. There is too much at stake to rely on a duty lawyer, even for a ‘minor’ offence, and our strong recommendation is for you to seek personal legal representation.

 

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.
Wednesday, 23 March 2022 12:23

Serious Assaults in Queensland

 

There are various offences of assaults, which are created by section 340 of the Criminal Code. This article concentrates on serious assaults under Queensland Law.  To make an assault ‘serious’, a person must commit an ‘assault’ within one of nine categories.

 

What is ‘Assault’?

Many people think assault is a straightforward matter. Either you have struck someone or you have not. However, the criminal definition of assault is more complicated.

‘Assault’ is defined in the Criminal Code to mean: ‘A person who strikes, touches, or moves, or otherwise applied force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person.’

In other words, an assault can be committed by a minimal use of force, or no use of force at all, if a threat to do so is made with the apparent ability to carry out the threat.

Is it complicated enough yet? It is about to be.

 

What is ‘Serious’?

There are nine categories of serious assaults, which can have different maximum penalties depending on further categories.

To make an assault ‘serious’ a person must commit an assault in the circumstances below:

  1. The assault is with intent to commit a crime, or with intent to resist or prevent arrest or detention of himself or herself or any other person.
  2. The person assaults, resists, or obstructs a police officer who is doing their job, or anyone who is helping a police officer who is doing their job.
  3. The person assaults anyone who is performing a duty imposed on them by law.
  4. The assault is because someone has performed a duty imposed on them by law.
  5. The assault occurs while pursuing a conspiracy concerning any manufacture, trade, business, or occupation, or respecting any person concerned with any manufacture, trade, business, or occupation, or the wages of any such person.
  6. Assaults someone who is 60 years old or more.
  7. Assaults someone who uses a wheelchair, assistance dog or remedial device.
  8. A prisoner assaults a prison officer.
  9. Assaults, or resists or wilfully obstructs, a public officerwhile the officer is performing a function of the officer’s office or assaults a public officer because the officer has performed a function of the officer’s office. A ‘public officer’ is someone who is a health service employee, or authorised officer under the child protection Act, or a public transport transit officer.

The person must have committed an ‘assault’ in all categories except categories 2 and 9, which may be only resisting or obstructing a police or public officer.

 

Maximum Punishment

For categories 1 to 9, the punishment is a maximum of 7 years.

However, for categories 2, 8 and 9, if a police, prison or public officer is assaulted in circumstances where:

  1. the offender bites or spits on the officer or throws at, or smears on, the officer a body fluid or faeces,
  2. the offender causes bodily harm (bodily harm means causing greater injury than pain alone),
  3. the offender is or pretends to be armed with a weapon.

The punishment is 14 years maximum.

A public officer is someone who is a health service employee, and authorised officer under the child protection Act, or a public transport transit officer.

 

Possible Defences

  • Identification—as with any case, if it was not you who committed the offence, then you cannot be guilty of it.
  • Self defence—if you were defending yourself, or someone else, then even if you did commit an assault, it may be lawful. Note, assaulting an officer in the lawful execution of his or her duty will exclude self defence as an option.
  • Provocation—if you are provoked (see provocation explained in greater detail here)
  • Accident—although a difficult defence to run, if it can be shown the assault was genuinely an accident, and not foreseeable as a possible consequence of your actions, it can be a defence.

For greater detail concerning these defences, speak to one of our experience lawyers or visit our article on defences to an assault charge.

 

What Court Will to be Heard In?

A serious assault, by default, will be heard in the District Court. The prosecution, however, has the power to decide whether a serious assault should be heard in the Magistrates Court instead. In the writer’s experience, the prosecution does usually decide to have these matters heard in the Magistrates Court unless it is an exceptionally violent serious assault. 

 

Likely Punishments

The Supreme Court has made plain that offenders who are guilty of serious assaults in the more serious circumstances—where the punishment is 14 years max—should generally be sentenced to imprisonment. This does not always mean imprisonment in actual gaol, as a suspended term of imprisonment may also be an option.

The sentencing principle of ‘general deterrence’ is an important consideration. General deterrence is the idea of sentencing someone so as to deter others who may be inclined to do the same. In cases such as these, the more severe the assault, the more severe the punishment is likely to be.

 

Conclusion

Although there are multiple categories of serious assault, in the writer’s experience the most commonly committed are in relation to police officers or people over the age of 60.

Needless to say, if you are charged with a serious assault of any description, you need a lawyer. We at Clarity Law know the judges, the cases and the law. We are to advise on likely punishments or whether there are viable defences or the ability to negotiate with the prosecutor for a lessor charge.

 

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.