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Apprehended violence legislation – NSW

30 March 2021 by By Lawyers

Apprehended violence legislation in NSW has been further amended.

Amending legislation

Further provisions of the Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 commenced on 27 March 2021.

Duration of ADVOs

Where a defendant is sentenced to a term of imprisonment which is to be served in a correctional centre, the apprehended violence legislation now requires the court to specify that any related apprehended violence order (ADVO) will be in force for a period of two years longer than the sentence imposed. That does not apply if the court otherwise orders, or if the offender is under 18 years of age. The term of imprisonment refers to the full sentence imposed by the court, including non-parole and parole periods. The additional two years is calculated with reference to the total sentence imposed by the court at the time that the ADVO is made.

Harming animals

The apprehended violence legislation has also been amended in relation to harming, or threatening to harm, animals belonging to or in the possession of a protected person.

Conduct that causes a reasonable apprehension of harm to animals belonging to or in the possession of the protected person is now within the definition of ‘intimidation’.

A person who engages in that conduct is guilty of an offence that carries a maximum penalty of five years imprisonment or 50 penalty units or both.

The change to the definition of ‘intimidation’ means that harm to animals belonging to or in the possession of the protected person is now included in the mandatory prohibition in every AVO which prohibits damage or destroying property. This amendment was based on evidence that threatening, injuring or killing family pets is a tactic used to control and coerce partners or other family members in the context of domestic violence.

New standard order

There is a consequential amendment under the Crimes (Domestic and Personal Violence) Amendment (Standard Orders) Regulation 2021, which also commenced on 27 March 2021. This amends the Crimes (Domestic and Personal Violence) Regulation 2019 to include in the standard orders a prohibition on harming any animals owned by or in the possession of the person in need of protection under an order.

By Lawyers Apprehended violence orders (NSW) publication has been updated accordingly.

Mental health provisions – NSW

26 March 2021 by By Lawyers

Mental health provisions in the criminal courts have had their first substantive overhaul in 30 years. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 commenced on 27 March 2021. Division 2, Part 2 of the new Act applies to criminal offences in the Local Court.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 replaces the Mental Health (Forensic Provisions) Act 1990, including what were previously known as ‘section 32 applications’. This re-set of mental health provisions in the criminal context provides a diversionary scheme for people with mental health and cognitive impairment issues who are charged with offences that may be dealt with summarily.

Under s 12 of the Act, if it appears to a magistrate that a defendant has, or had at the time of the commission of the offence, a mental health impairment or a cognitive impairment, or both, then the magistrate can make an order under s 14 to dismiss the charge either conditionally or unconditionally. The magistrate may also adjourn the proceedings under s 13 for assessment or diagnosis, preparation of a treatment plan or to identify a responsible person for the purpose of making an order.

The main changes from the existing law – apart from the new section numbers – are:

‘mental health impairment’ is now defined’;
the existing definition of ‘cognitive impairment’ is slightly amended;
the new Act sets out what the magistrate can consider when deciding whether to make an order, although the court retains ultimate discretion; and
magistrates can now re-call people who are discharged on conditions under the Act, which they fail to comply with, for a period of 12 rather than 6 months.

These changes should see more people with mental health or cognitive impairments successfully diverted from the criminal justice system.

The By Lawyers Criminal Law publication has been updated accordingly. The existing commentary on section 32 applications has been moved to an Appendix at the end of the commentary, as the previous legislation continues to apply to matters which were already on foot before 27 March 2021.

Criminal Magistrates’ Court – VIC

15 January 2021 by By Lawyers

The By Lawyers Criminal Magistrates’ Court publication has been reviewed and enhanced. Improvements following from this review include:

The matter plan and commentary have been revised and re-ordered to better reflect the flow of the criminal Magistrates’ Court processes.
New and amended commentary headings for improved searchability.
The summary of the 2018 bail reforms has been incorporated into the general commentary as those provisions are now entrenched.
The commentary on taking instructions in criminal matters has been expanded.
The commentary on the preliminary issues which may require practitioners’ attention before the first court appearance, or before a plea is entered, has been enhanced.
Commencement of charges is now dealt with in more detail, including notices to appear and the consequently different process which applies compared to a charge and summons, or a warrant.
The importance of identifying whether the charge is summary or indictable has been highlighted and discussion of the different processes which apply to each stream has been enhanced.
Discussion of the process for charges in the indictable stream has been augmented with new headings added, including the Filing hearing, The hand-up brief, Committal mention, Applying for summary jurisdiction, Pleading guilty at the committal mention and Listing a committal hearing.

Practitioners are reminded that the Criminal Magistrates’ Court publication now also includes the By Lawyers guide to Commonwealth Offences, which covers all aspects of dealing with Commonwealth offences in state courts.

This review is part of the continuing commitment of By Lawyers to updating and enhancing our publications to help our subscribers enjoy practice more.

Traffic offences – VIC

12 November 2020 by By Lawyers

The By Lawyers Traffic Offences – VIC publication has been updated and revised.

With the final commencement of the Road Safety and Other Legislation Amendment Act 2020 on 12 November 2020, the Road Safety Act 1986 has been amended to provide for immediate driver licence or learner permit suspensions in certain cases.

This includes excessive speed offences more than 45 kph over the speed limit which are mobile camera detected or for offences where a motor vehicle is used to cause serious injury or death, police can give the driver notice of immediate licence suspension. This requires the driver to surrender their licence for up to 12 months.

There are also immediate suspensions for certain drink and drug-driving offences and heavy vehicle offences.

These legislative amendments have been incorporated in the commentary in the Traffic Offences – VIC publication.

In addition, the commentary has been reviewed with resultant enhancements. The content is re-ordered for better workflow and improved searchability; specific sections have been added for various aspects of sentencing, such as obtaining medical reports; and links to VicRoads and Transport for Victoria online resources are enhanced. The matter plan has been revised to incorporate these revisions.

Discounts for guilty pleas – SA

11 November 2020 by By Lawyers

Provisions relating to discounts for guilty pleas have changed from 2 November, including for matters on foot as at that date.

The By Lawyers Magistrates Court – Criminal SA commentary has been amended accordingly. See particularly the section on Discounts on sentence for early pleas of guilty.

Section 39 of the Sentencing Act 2017 for summary and minor indictable offences treated summarily, and s 40 for other offences, provides that when passing sentence the court must take into account the fact that the offender pleaded guilty and when the offender pleaded guilty. The court can reduce the sentence it would have otherwise imposed up to certain percentages depending upon when the plea is entered.

Section 39(4) and s 40(5) Sentencing Act 2017 set out the considerations to which the court must have regard when determining an appropriate discount, including where the defendant is charged with or has pleaded guilty to more than one offence. Practitioners should note that some of those considerations now only apply to guilty pleas entered on or after 2 November 2020.

Specific percentage discounts for pleas of guilty are provided in the legislation for defendants pleading guilty to all types of offences in the Magistrates Court. To be eligible for the maximum reduction of the sentence that the court would otherwise have imposed, the defendant must enter the plea of guilty within four weeks of the first appearance.

In all cases, the considerations under s 39(4) and s 40(5) Sentencing Act 2017 include when the defendant first indicated an intention to plead guilty – it is therefore important, if seeking the maximum discount to indicate a likely plea of guilty to the court as soon as the instructions are to that effect, preferably on the first appearance, even if the actual plea cannot be entered until a later date due, for example, to negotiations over the facts.

Elder abuse orders – SA

30 September 2020 by By Lawyers

Elder abuse orders are now available in the Magistrates Court.

From 1 October 2020 the criminal division of the Magistrates Court has jurisdiction under Part 4 Division 6 of the Ageing and Adult Safeguarding Act 1995 (‘AASA’) in respect to applications by the Director of the Office for Ageing Well for orders preventing elder abuse, as specified in s 33. This extends to varying such an order, as well as proceedings for alleged contraventions of elder abuse orders.

Section 31 of the AASA provides that if the director reasonably suspects that a vulnerable adult is at risk of abuse and that orders are necessary and appropriate to either protect them or allow further investigation, then the director may apply to the Magistrates Court for an interim or final order.

The procedure for such applications is set out in r 79 Magistrates Court Rules 1992.

Anyone affected by an order may be joined to the proceedings and must be given a reasonable opportunity to be heard. Any other interested party as defined under s 36, may apply to be heard in the proceedings; this includes family members and carers.

Contravention of an order under the AASA is a criminal offence, punishable by heavy fines under s 37.

Commentary on elder abuse applications has been added to the By Lawyers SA Criminal and Intervention Orders commentaries.

Family violence – WA

6 August 2020 by By Lawyers

From 6 August 2020 some provisions of the Family Violence Legislation Reform Act 2020 commence, amending the Criminal Code, Sentencing Act 1995, Bail Act 1982 and Restraining Orders Act 1997, among others.

Family violence – Bail considerations

The court may defer consideration of bail for 30 days for an accused charged with an offence where the accused is in a family relationship with the victim, as defined in s 3 of the Bail Act. The purpose of the deferral is to allow the court to determine what, if any, bail conditions should be imposed to enhance the protection of the victim of the alleged offence.

There are additional provisions relating to the interaction of bail conditions and restraining orders.

Family violence – Restraining orders

Sections 3 to 6A of the Restraining Orders Act define all relevant terms used in the Act, including what constitutes ‘family violence’.

Some of the amendments deal with the conduct of family violence proceedings.

The court must enquire as to whether any family law orders are in place for the parties to a restraining order application before the court makes a restraining order. If family law orders are in place, the court must take reasonable steps to obtain a copy or information about the orders and take their terms into account.

At any defended hearing the court is not bound by the rules of evidence and may inform itself on any matter in such a manner as it sees fit: s 44A. This section also specifically makes hearsay evidence admissible.

Victims of family violence may have one or more support person with them when they give evidence.

The court, either on its own motion or at the request of a party, may use CCTV or other screening arrangements for the giving of evidence by any party or witness in restraining order proceedings, subject to consideration of a number of factors set out in s 44E.

More information

The By Lawyers Criminal and Restraining orders guides have been updated accordingly.

Further provisions of the amending Act will commence in October 2020. By Lawyers guides will be further updated when those amendments commence.

Online applications for criminal matters – QLD

16 July 2020 by By Lawyers

Online applications for criminal matters in the Queensland Magistrates Court was enabled from 9 July 2020. Queensland’s Chief Magistrate Judge Terry Gardiner paved the way for the listing of all criminal matters in the Magistrates Courts electronically via the release of a new practice direction.

Magistrates Court Practice Direction 7 of 2020 allows for either prosecutors or defence legal representatives to submit an electronically lodged form for any matters listed in the Magistrates Court seeking an order for a date for a directions hearing, bail application or sentence. However, such applications must be by consent.

If an application is not by consent parties must approach the court in the usual way and Practice Direction 10 of 2010 continues to apply.

“Where a matter has a current listing date, a party may apply electronically where the consent of the other party – prosecution or defence – has been obtained,” Judge Gardner said when releasing the new practice direction.

Online applications can be made for:

a sentence date, including a short plea, lengthy plea or contested sentence;
an adjournment, other than of a hearing;
a date for a hearing of an application, including a bail application or a directions hearing;
a direction by the court, including for the provision of a brief of evidence.

Any application where the matter already has any date listed must be made at least two clear business days before the currently listed date.

“The Court will advise the parties electronically of the outcome of the application,” the Chief Magistrate advised. “If the application is not granted by the Court, the current listed Court date remains as well as any orders or directions that have been made.”

Online applications for criminal matters are available now on the courts’ website. The By Lawyers Queensland Criminal Magistrates Court publication has been updated accordingly.

Guide to Commonwealth offences – All states

15 April 2020 by By Lawyers

A new Guide to Commonwealth offences dealt with in state magistrates’ courts has been added to all By Lawyers Criminal publications.

This helpful new commentary and additional precedents will assist practitioners in advising and representing clients charged with offences under the Crimes Act 1914 (Cth) and the Commonwealth Criminal Code.

The new commentary sets out the procedure for summary and indictable Commonwealth charges in state courts, from bail considerations to sentencing.

The possible sentencing options are covered in detail and there is a very useful table of the Commonwealth offences most frequently encountered in state magistrates’ courts.

New precedents include:

Example written submissions in support of an application for discharge of an offender without proceeding to conviction; and
Letter to client after sentence – providing for various outcomes.

All existing Retainer Instructions for criminal and bail matters in the respective state Criminal Guides have been enhanced to include Commonwealth offences.

The new Guide to Commonwealth offences can be found in the Related Guides drop-down menu of the Legal Guides tab.

Commonwealth offences – All states

2 April 2020 by By Lawyers

Commentary on Commonwealth offences dealt with in state magistrates’ courts has been added to all By Lawyers Criminal Guides.

This new commentary and additional precedents will assist practitioners advising and representing clients charged with offences under the Crimes Act 1914 (Cth) and the Commonwealth Criminal Code.

The new commentary sets out the procedure for summary and indictable Commonwealth charges in state courts, from bail considerations to sentencing.

The possible sentencing options are covered in detail and there is a very helpful table of the Commonwealth offences most frequently encountered in state magistrates’ courts.