ByLawyers News and Updates

Bail and sentencing – WA

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Bail and sentencing options have changed with commencement of the final tranche of amendments under the Family Violence Legislation Reform Act 2024.

From 18 December 2024 Bail authorities can impose electronic monitoring as part of bail and sentencing conditions for certain family violence offenders. In some cases,  an electronic monitoring condition must be applied.

Bail

Schedule 1 of the Bail Act 1982 creates a rebuttable presumption against bail being granted for certain offences. For offences in these categories, the presumption can be rebutted if there are exceptional reasons why the accused should not be kept in custody and the bail authority is satisfied that bail may properly be granted.

The amendments create new circumstances where the presumption applies, namely to family violence offences as defined in clause 3F(1A) and offenders who have been declared a serial family violence offender as defined in s 3 of the Act. In these cases, bail can only be granted by a judicial officer and must include an electronic monitoring condition.

Clause 3G creates a rebuttable presumption against bail for a person charged with a family violence offence (category A) as defined in the clause who is bound by a family violence restraining order that protects a victim of the current offence. In these cases, bail can only be granted by a judicial officer and must include an electronic monitoring condition. See Schedule 1 Part D and Part E.

Sentencing

When the court is sentencing:

  • for a family violence offence and the offender has been declared a serial family violence offender, if making a CSI the court must impose an electronic monitoring requirement unless satisfied that there are exceptional circumstances;
  • an offender who has been declared a serial family violence offender, if making a PSO the court must consider and may impose an electronic monitoring requirement for the term of the PSO, and must do so if the offence is a family violence offence;
  • an offender for a family violence offence or who has been declared a serial family violence offender, if when making a CBO or an ISO the court must impose an electronic monitoring requirement unless satisfied that there are exceptional circumstances.

Publication updates

The By Lawyers Magistrates Court – Criminal (WA) guide has been updated accordingly. See Bail and Sentencing.

For information on legislative amendments and publication updates arising from the previously commenced parts of the amending Act, see the By Lawyers Restraining Order (WA) guide, and our previous News & Updates post

Bail conditions – SA

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New mandatory bail conditions apply for certain applicants in South Australia from 1 October 2024.

The Bail (Conditions) Amendment Act 2024 introduces new sub-section (2ae) into s 11 of the Bail Act 1985 that provides for mandatory conditions to apply if bail is granted for charges that constitute a breach of intervention orders involving physical violence or threats of physical violence.

If bail is granted to a person charged with the relevant offences, it must be subject to conditions that the bailee remains at their residential address except for work, medical, or emergency reasons, and agrees to be fitted with an electronic monitoring device.

The new provisions concerning mandatory conditions only apply to adult offenders.

The transitional provisions in the amending Act provide that the new provisions concerning mandatory conditions only apply to bail applicants taken into custody on a charge for an offence allegedly committed after the commencement of the amending Act on 1 October 2024.

The By Lawyers Magistrates Court Criminal (SA) publication has been updated accordingly. In the course of making these changes, new commentary has also been added including a section concerning second or subsequent applications for bail.

Apprehended violence orders amendments- NSW

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On 1 December 2018 a number of provisions strengthening apprehended violence orders in NSW commenced:

  1. a new ‘without consent’ version of the s 37 Crimes Act 1900 offence of choking, suffocation and strangulation, created specifically for the domestic violence context by the Crimes Legislation Amendment Act 2018;
  2. provisions in the Crimes (Domestic and Personal Violence) Amendment Act 2018 making it clear that stalking and intimidation can be by internet or other such electronic means;
  3. new Crimes Legislation Amendment (Victims) Act 2018 provisions providing that proceedings for apprehended violence orders will be held in a closed court if they involve any person under the age of 18 years, with such persons entitled to have a support person present.

The By Lawyers Apprehended Violence Orders (NSW) guide has been updated accordingly.

Further, commencing 17 December, certain provisions of the Justice Legislation Amendment Act (No 3) 2018 mean that an apprehended domestic violence order can be made against a paid carer for the protection of a dependant, but not against a dependant for the protection of the paid carer.

There are also amendments pending proclamation in the Crimes Legislation Amendment Act 2018 which change the default duration of apprehended domestic violence orders.

The By Lawyers Apprehended Violence Orders (NSW) guide will be updated when these further amending provisions commence.

WA Criminal – Costs determination

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For costs applications by a successful accused at the conclusion of criminal proceedings in WA Magistrates Court, the amount of any award of costs may be determined in accordance with the relevant determination made under the Legal Profession Act 2008 for the purposes of the Official Prosecutions (Accused’s Costs) Act 1973 and in accordance with s 280 Legal Profession Act 2008 and s 67(3) Criminal Procedure Act 2004.

A link to the current costs determination produced by the Legal Costs Committee in accordance with s 278 of the Legal Profession Act 2008 has been added to the By Lawyers Criminal  commentary.

New Publication – Criminal Magistrates Court SA

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We are very pleased to announce the release of another comprehensive step-by-step guide for South Australian practitioners, being Criminal Magistrates Court SA

This publication covers all aspects of criminal practice and procedure, for both summary and indictable offences, when acting for the defendant in criminal proceedings in the Magistrates Court.

The guide assists practitioners with all aspects of conducting a criminal matter from arrest and bail, or a first appointment in the office, through to hearing and/or sentencing, including avenues of appeal and possible costs applications. The commentary is practical and easy to understand, with numerous helpful precedents and all current Magistrates Court forms included.

Key content includes:

  • Law and procedures relating to arrest and bail, including the right to silence, the record of interview and practical tips for lawyers attending at the police station. Retainer instructions, including for a bail application, are included on the matter plan.
  • Practical guidance in preparing for court, with detailed commentary on analysing the charge and conducting plea negotiations. Precedent letters to the Crown are included on the matter plan for this purpose, as well as an instruction sheet for a plea and mitigation.
  • Procedures involved when attending court for both summary and indictable matters, obtaining pre-sentence reports and conducting the plea.
  • Preparing for hearing when a plea of not guilty has been entered.
  • Sentencing options in the Magistrates Court.
  • Client mental health considerations, with a letter of instruction to a psychiatrist or psychologist.
  • Example written submissions on sentence are included on the matter plan.
  • Information on appeal rights and time limits.

This guide is a valuable resource for all practitioners who conduct criminal matters in the Magistrates Court, especially those with limited experience in criminal work, or those supervising younger lawyers.

NSW – Criminal – Proposed 2018 sentencing amendments

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The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Crimes (High Risk Offenders) Amendment Act 2017 and the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 are awaiting proclamation, but are expected to commence in May 2018. The cumulative effect of the amendments is a very significant overhaul of criminal procedure in the Local Court and of sentencing options in all courts, the likes of which has not occurred since the Crimes (Sentencing Procedure) Act 1999 was introduced.

The intent of the legislation is to (a) reduce the number of offenders in custody, by replacing largely unsupervised sentencing options with highly supervised ones and providing fixed discounts for early pleas; and (b) reduce the backlog of trials by speeding up the process, mandating case conferences and encouraging more early pleas of guilty. The likely overall intention is to have fewer and quicker trials and fewer people in gaol for breaches of bonds/orders.

The forthcoming amendments include:

  • Intensive Correction Orders (already existing) – substantially augmented and strengthened.
  • Community Correction Orders introduced – replaces bonds under s 9
  • Community Release Orders introduced – replaces bonds under s 10(1)(b)
  • New procedure in the Local Court following charge
  • Paper Committals abolished
  • Codified discounts for early pleas of guilty
  • Simplified brief of evidence requirements
  • Eligibility for the High Risk Offenders Scheme expanded

These changes are likely to cause some disturbance and take a while to work themselves out. They may or may not achieve their objectives, but regardless the impact is potentially significant. The commentary will be updated when the legislation commences.

For a full summary of the proposed changes, see the commentary heading “2018 proposed sentencing amendments” in the NSW Criminal Commentary.

NSW – Criminal – Proposed 2018 sentencing amendments

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The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Crimes (High Risk Offenders) Amendment Act 2017 and the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 are awaiting proclamation, but are expected to commence in May 2018. The cumulative effect of the amendments is a very significant overhaul of criminal procedure in the Local Court and of sentencing options in all courts, the likes of which has not occurred since the Crimes (Sentencing Procedure) Act 1999 was introduced.

These changes are likely to cause some disturbance and take a while to work themselves out. They may or may not achieve their objectives, but regardless the impact is potentially significant. The commentary will be updated when the legislation commences.

For a full summary of the proposed changes, see the heading “2018 proposed sentencing amendments” in the Criminal NSW commentary.

Criminal Magistrates’ Court QLD

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OCTOBER
  • Costs Agreements – Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
SEPTEMBER
  • New commentary added on making an application for a protection order.

Criminal (Local Court) NSW

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Criminal (Local Court)

OCTOBER
  • Costs Agreements – Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
SEPTEMBER
  • Apprehended Violence Order
    • New commentary on applying for an AVO through the Local Court.
    • Example wording for application for APVO – new precedent providing example wording to support an application for an APVO.
JUNE
  • ALERT – The Bail Amendment Act 2015 will amend the Bail Act 2013 to make further provision for bail decisions. It has received assent however commencement is yet to be proclaimed.
  • ALERT – Apprehended Violence Order Commentary- The Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Act 2016 has received assent however commencement is yet to be proclaimed. It will give effect to the NSW component of a national recognition scheme for domestic violence orders.
MAY
  • Providing a character reference information sheet – name change and re-write to ensure clear information.
  • New precedent – Declaration for foreign resident capital gains withholding payment purposes.
APRIL
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
FEBRUARY 
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.

Criminal Magistrates’ Court VIC

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Criminal Magistrates Court

OCTOBER 
  • Costs Agreements
    • Included reference to time limit for bringing costs assessment, total estimate of legal costs section with provision for variables, and authority to receive money into trust.
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
SEPTEMBER 
  • Intervention Orders
    • Further information added on applying for intervention orders
    • New further information link to SmartSafe’s Legal Guide to Family Violence Intervention Orders
APRIL 
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
  • Commentary added under Bail regarding The Bail Amendment Act 2016 which will commence on the 2nd May 2016.
FEBRUARY
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.

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