Understanding the Law....
Criminal Law

The following Q&A's have been provided to help you better understand Criminal Law. If you have a suggestion for a question we should list on this page, please complete this form.

Q. Am I likely to get off a speeding charge if I can prove that my car’s speedo was in error?

A. No, but this would be taken into account when you are sentenced.

Q. Unfortunately I do not have a good driving record; I am separated from my wife who does not have a driver’s licence which means that I have to take my son to and from child care. Will this be taken into account although I have recently committed another driving offence?

A. Yes. The court takes a very poor view of repeated transgressions by drivers particularly where they are young and have a bad driving history. Courts often take into account these circumstances but more particularly where the offender’s continuing employment is likely to be affected.

Q. I have just ended a short term relationship with my former girlfriend who is threatening that if I do not return to her she will report me to the police saying that I sexually assaulted her?

A. This situation is not uncommon and involves both males and females alike. Irrespective of gender if you are blackmailed by someone to return to a relationship which you have terminated then do not hesitate to approach your lawyer and have them contact the police to ensure that you are adequately protected.

Q. I am 40 years old and involved in sales and I have recently been charged for the second time with high range PCA. What should I do?

A. The courts do not like drink-driving offences and more so where they are high range PCA. Where this type of offence has been repeated within a period of five years then the penalties are severe involving disqualification, fine and/or imprisonment. In all such cases proper legal advice should be obtained in order to mitigate the sentence and questions of financial hardship associated with losing your licence need to be ventilated with the court to obtain consideration.

Q. Recently I was picked up for exceeding the speed limit by more than 30 kph and I am concerned that I am may lose my driver’s licence when this matter comes before the court. I need to know what to do?

A. In NSW where you are exceeding the speed limit by over 30 kph it is an serious offence as it constitute dangerous driving. Aggravated dangerous driving occurs where a person exceeds the speed limit by more than 45kph which involves automatic suspension of licence and in some cases a term of imprisonment.

Q. Do courts take into account a prior drink driving record and does it have any appreciable effect on the sentence handed down?

A. In NSW a prior drink driving offence within a period of five years has an appreciable effect on the sentence imposed by any court. For a low range PCA for a first offender there is an automatic minimum disqualification period of three months apart from the question of fines or imprisonment. In the case of a second offence committed within a five year period there is an automatic minimum disqualification period of six months apart from the questions of fine and imprisonment once again. The lesson is, if you have been caught once for drink driving don’t get caught again irrespective of whether the courts are only meant to take a prior offence into account within a five year period as they are entitled to consider the whole of your driving record when imposing sentence.

Q. I was recently at a sporting event and my conduct was a bit untidy. As a result I said some derogatory things about one of the teams playing and unfortunately I was sitting amongst a lot of their supporters. Apparently they called the police. Whilst I was standing up cheering I felt an arm on my shoulder which I attempted to shrug off. The next thing I knew I was being wrestled to the ground by police and taken to a nearby police station where I was subsequently charged. The charges included - resisting arrest and striking a policeman whilst on duty. Is this serious?

A. Yes. Unfortunately resisting arrest and striking a police office in the performance of his duties carries an extended gaol term. In your case the matter needs to be properly explained to the court to mitigate your sentence.

Q. I am a young person who has had a AVO taken out against me as it is alleged that I have had a sexual relationship with a minor. What do I do in the circumstances?

A. You will need to obtain the services of a competent criminal lawyer to aggressively defend you with respect to the AVO. Under no circumstances whatsoever should you speak to the police given the gravity of the allegations against you and rely upon your right to silence. If the police call on you then you should refer them to your lawyer and if arrested the police should give you the opportunity to contact them prior to being interviewed. In all these cases it is absolutely imperative that you be properly represented and say nothing to anybody in any context whatsoever about this matter. The success or otherwise of these types of cases often depend upon whether you have made admissions including what other evidence you have furnished to the police which provides them with an opportunity to obtain further information against you.

Q. Recently I was charged with sexual assault by my ex-wife who suffers from mental illness. She has a history of bizarre behavioural problems but despite this the police would not listen. What should I do?

A. Any form of sexual assault is a serious matter which can lead to a long term of imprisonment. Under no circumstances should you make any admissions to the police thereby exercising your right to silence. Given the seriousness of the allegation you should retain a competent criminal lawyer who can assist you to deal with this matter. Fortunately you will be put to unnecessary expense and unless the police have acted maliciously the costs to defend yourself are not recoverable.

Q. I lent some money to a friend who was in financial trouble on strict terms and conditions about repayment. Subsequently he defaulted and I continued to discuss the matter with him until he indicated he wasn’t going to pay me back. During the course of discussions it was agreed I would visit him at his home to ascertain what could be done to remedy the situation. I attended his home and after much discussion a fight broke out which led to him being hospitalised. What should I do?

A. Given the serious nature of what happened you should immediately retain a competent criminal lawyer to assist you. Serious assault cases can lead to extended periods of imprisonment if there are no mitigating circumstances.