Will I be going to gaol?
Secondly the charge that you have been convicted of has to carry a term of imprisonment as a penalty if you are to be sent to gaol. Some relatively serious charges like low range PCA do not carry a term of imprisonment as a penalty.
Finally the Magistrate or Judge must consider that having considered all other sentencing options, and there are a great many of them; these alternate options are inappropriate and the only appropriate sentence that can be imposed is fulltime gaol. When making this decision the Magistrate or Judge will consider such things as the circumstances in which the offence was committed, your personal circumstances and your criminal history.
Should I be interviewed by the police?
The police are generally trying to prove a case against you and any information you give them will generally assist them to do this.
There are some circumstances where you are obliged to speak to the police, but these are relatively few.
Always speak to a lawyer first before you speak to the police. If the lawyer considers that you are obliged or there is a benefit in you speaking to the police, they will advise you how best to do so.
Do I need a criminal lawyer when I go to court?
Most likely we couldn’t do it at all and even if we could the results would be very poor. It’s the same with people who self represent themselves in court. They might get the job done but to nowhere near the standard of an experienced professional and at what cost to themselves
Similarly, being represented by a lawyer who’s primary area of practice is not criminal law, is less likely to achieve your very best result.
I have been charged with drink driving but I need my driver’s licence for work or the kids. Will I keep it?
Generally however, the Court’s attitude is “if your driver’s licence is so important to you to get to and from work or to help look after your kids then you shouldn’t have put it at risk by getting behind the wheel of a vehicle after drinking”.
Your personal circumstances would only be a minor consideration in the court’s decision when they decide whether a disqualification period should be imposed and if so, for what length of time.
If I do lose my driver’s licence can I get a daytime licence, just for work?
The RMS, the body formerly known as the RTA, does have the power to issue a restrictive licence such as a licence when a driver can only drive a certain distance from home or during certain hours.
However, when the Court disqualifies a driver, they disqualify that driver from holding any licence, a full licence or a restricted one, until that period of disqualification has concluded.
What happens when we go to court if I plead guilty?
The matter usually starts in a callover and then when the plea of guilty is entered is referred on to a Magistrate for your penalty to be imposed.
For most matters the Magistrate will read the police version of the facts surrounding your committing of the crime and peruse your criminal record before asking to hear from your lawyer, or yourself if you are self represented.
After hearing from your lawyer or yourself the Magistrate will then impose your penalty which in most cases would included a fine and or a good behaviour bond.
Would getting a parking fine breach a good behaviour bond and if so, what happens then?
If you do breach a good behaviour bond you may be brought back before the court that imposed the bond and re-sentenced in relation to the original offence as well as being sentenced for the new offence. The court may however decide not to breach your bond, give you a warning and allow the bond to continue.
What is the procedure if I want to plead not guilty and fight a charge?
A police brief of evidence is essentially all of the evidence that the police intend to lead, to prove the case against you. This will generally include witness statements, police statements, photographs, expert reports, doctor’s reports, etc.
When the matter returns to court, and if it is not a very serious matter that will be moved to and dealt with in a higher court, the matter is generally then given a hearing date.
At the hearing both the prosecution and the defence will produce all of their witnesses and evidence, and both will have an opportunity to test the others evidence, and make final submissions to the court. The Magistrate, having heard all of the evidence, will then determine the matter.
What exactly is an AVO?
The restrictions may include not contacting a person, not going near a person’s residence or place of work, or not contacting someone after drinking. All AVO’s include the restrictions of not harassing or assaulting the other person and not stalking them.
There are two types of AVO’s. Apprehended Domestic Violence Orders (ADVO’s) and Apprehended Personal Violence Orders (AVPO’s).
The first is when the person in need of protection (PINOP) has some form of domestic relationship with the defendant such as spouse, child, parent, de-facto, ex-partner, etc. The second category APVO’s is for everyone else other than domestic situations where people have come in to conflict, such a neighbours, work colleagues, community organisations, etc
If someone applies for an AVO against me, what are my options?
- You can consent to the order being made and it will be.
- You can consent to the order being made, but put on the court record that you do not agree with the allegations made in the AVO application. The order will be made and your no admissions noted
- You can try and negotiate with the applicant and possibly give undertakings to the court that you will behave appropriately towards the PINOP. . If your undertakings are accepted, the applicant usually withdraws the AVO.
- You can go off to the Community Justice Centre to seek assistance in settling the dispute between you and the other party. If a settlement is reached the AVO is usually withdrawn by the applicant. If no settlement is reached, the AVO usual goes back to court.
- You can oppose the order being made and a timetable is set for the matter to be eventually heard before a Magistrate who will determine whether an AVO is warranted.
If I have an AVO made against me, do I then have a criminal record?
However, if a person has an AVO made against them, and they are charged and convicted of breaching that AVO, then that would create a criminal record.