Bail
What is Court Bail?
Court bail is a written agreement between you and the Court. It is an assurance from you that if you are released from custody, you will abide by certain conditions and turn up to your next court date. When you are arrested and charged, you may not be released by the police. If this occurs, you will be brought before a court for a magistrate to make a decision as to whether or not you will be released.
There are a number of tests within the Bail Act that a Magistrate must consider when deciding whether a person should be granted bail. Navigating these tests is a complex task that involves many intricacies. To ensure you maximise your chances of being released from custody, it is important that you are represented by an experienced criminal lawyer.
Before initiating a bail application on your behalf, we conduct a thorough case evaluation to understand the specifics of your situation. We provide expert advice to address all of the tests the Court must consider when hearing your application for release. This allows a strategic approach to your application to ensure that we maximise your chances of being released from custody. When bail is granted, we ensure that any bail condition sought by the police or considered by the Court is both appropriate and necessary for your individual case.
If you or a loved one has been charged by police and is seeking release from custody, complete our enquiry form below for a free consultation.
Sentencing
If you are found guilty of an offence, the court will impose a sentence on you. Sentencing in New South Wales occurs pursuant to the Crimes (Sentencing Procedure) Act. There are many considerations that must be taken in to account to ensure the sentence is appropriate. As well as considering the aggravating and mitigating circumstances of the offence, the court must also address the purposes of sentencing. These include:
Ensuring adequate punishment.
Deterring the offender and other persons from committing similar offences.
Protecting the community.
Promoting rehabilitation.
Making the offender accountable.
Denouncing the offending conduct.
Recognising the harm occasioned to the victim and/or community.
There are many sentencing options available to the Court when determining an appropriate sentence. The penalties include non-convictions (section 10), fines, conditional release orders, community correction orders, intensive correction orders (ICO) and full-time imprisonment.
There is no set formula when determining an appropriate sentence. Although the court will follow the same method when delivering a sentence, having determined the objective seriousness of the offence, the court must then have regard to the subjective circumstances of the offender. These are the personal circumstances of the offender, which can have a large impact on the sentence imposed. It is important that all details of your case are well presented prior to the Court delivering a sentence.
To ensure you maximise your chance of obtaining leniency form the Court when being sentenced, it is important that you obtain legal advice from an experienced criminal lawyer. This will allow you to place all material relevant to your sentence before the court for consideration.
To obtain a free consultation for a sentence matter for you or a loved one, complete our enquiry form and let us know what you need.
Applications for Dismissal Under the Mental Health Act
The Mental Health & Cognitive Impairment Forensic Provisions Act allows the Court to dismiss a matter for which you are charged. This is commonly referred to as a section 14 application. This means a person charged with a criminal offence is diverted away from ordinary forms of punishment under the Crimes (Sentencing Procedure) Act, and instead discharged into mental health care. This means that the magistrate can make an order dismissing the matter and discharging the accused person either into the care of a responsible person, on certain conditions, or unconditionally. Importantly, if the matter is dealt with under this section, no conviction is recorded on your criminal record.
For the court to be persuaded that a matter should be dealt with under the mental health provisions, the magistrate must be satisfied that the person charged:
a. has (or had at the time of the alleged offence) a mental health impairment or cognitive impairment, or both; and
b. that on the assessment of the facts of the alleged offence (and any other relevant information) it is more appropriate to deal with the matter under these provisions otherwise in accordance with law.
What is a Mental Health Impairment?
A mental health impairment is:
a temporary or ongoing disturbance of thought, mood, volition, perception or memory;
that disturbance is significant for clinical diagnostic purposes; and
that disturbance impairs your emotional wellbeing, judgement or behaviour.
Examples of a mental health impairment can include:
Anxiety disorder.
Affective disorder, including clinical depression and bipolar disorder.
Psychotic disorder.
Substance induced mental disorder that is not temporary.
What is a Cognitive impairment?
A cognitive impairment is:
an ongoing impairment in adaptive functioning; and
the person has an ongoing impairment in comprehension, reason, judgment, learning or memory; and
the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition for a particular reason.
Reasons why a cognitive impairment may arise include:
Intellectual disability.
Borderline intellectual functioning.
Dementia.
An acquired brain injury.
Drug or alcohol related brain damage, including foetal alcohol spectrum disorder.
Autism spectrum disorder.
For a section 14 application to be successful, you will require a detailed report from either a forensic psychologist or psychiatrist. You will also require a mental health treatment plan that has been prepared by a treating psychologist or psychiatrist. This plan will detail requirements including:
Taking prescribed medication.
Attending regular sessions with a treating psychologist or psychiatrist.
Engaging in therapy.
Complying with all reasonable directions of medical practitioners.
If you are discharged under the provisions of the Mental Health & Cognitive Impairment Forensic Provisions Act and you fail to comply with the treatment plan, you may be brought back before the Court and dealt with according to law. This means you will be resentenced in acordance with the Crimes (Sentencing Procedure) Act.
To obtain a free consultation on whether you or a loved one meets the criteria for a section 14 application, complete our enquiry form and let us know what you need.
Forensic Procedures
The Crimes (Forensic Procedures) Act provides the legislative framework with respect to the when and how forensic material may be taken from a person’s body. This includes the taking, testing, storage and destruction of forensic samples.
There are two types of forensic procedures available to police who want to obtain evidence to be used in court. Both procedures are defined in section 3 of the Crimes (Forensic Procedures) Act. These are:
Intimate forensic procedures; and
Non-intimate forensic procedures.
Both intimate and non-intimate forensic procedures involve police obtaining identifying particulars from a suspect. The most common non-intimate forensic procedures include taking DNA through a self-administered buccal swap, taking a sample of hair (other than pubic hair), taking a sample of your fingernails or from under fingernails, taking photographs, and taking fingerprints and palmprints.
An intimate forensic procedure includes police obtaining identifying particulars through the carrying out of external examination of private parts, taking a blood sample, a sample of pubic hair, dental impressions and taking photographs of private parts.
The Crimes (Forensic Procedures) Act allows adults to consent to a forensic procedure as long as they have been informed of their rights. However, consent must be informed consent, which requires that police provide a person with the opportunity to communicate with a lawyer of their choice prior to carrying out the forensic procedure.
If the suspect is lawfully under arrest and does not consent to a non-intimate forensic procedure, a senior police officer (Sergeant or above) can give an order for the forensic procedure to take place. To carry out an intimate forensic procedure, the police will require either the consent of the suspect or an order by a magistrate or authorised officer (usually a registrar).
If the suspect is not under arrest, to carry out an intimate or non-intimate forensic procedure, the police will require either the consent of the suspect or an order by a magistrate or authorised officer.
If you find yourself in police custody it is important to remember that the police are required to provide you with the opportunity to communicate with a lawyer of your choice prior to carrying out the procedure. If you have been served with notice of an application for a forensic procedure to be carried out upon you, complete our enquiry form for a free consultation.
We understand the importance of finding the right criminal lawyer to assist you. We understand that all people and cases are individual. That’s why we tailor our approach to each case to help you achieve the best possible outcome.
If you require the assistance of an experienced criminal lawyer, complete our enquiry form for an obligation free consultation.