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“ As one of the most trusted criminal law firms in Sydney, we approach every case with a strategic focus on achieving the best possible outcome for our clients. ”

BEN WILLCOX

Principal Lawyer

Our Expertise

Drug Offences Assault Related Offences Stealing and Fraud Offences AVO Offences Knife and Firearm Related Offences Sex Offences Police Offences Drink Driving and Traffic Offences Bail

Drug Offences

The offence of supplying a prohibited drug includes both the actual supply of a prohibited drug and situations where a person is found in possession of an amount not less than traffickable quantity, (known as ‘deemed supply.’)

Once possession of not less than traffickable quantity is proved by the prosecution, the accused has the onus of proving, on the balance of probabilities, that he or she had the drug for a purpose other than for supply (self-use for example). If the accused does this, the charge is automatically downgraded to possession.

 

Drug Possession

Possession of a prohibited drug carries a maximum penalty of up to two years’ imprisonment and/or a fine of up to $2,200.

To prove a person guilty of the offence of drug possession, the prosecution must prove, beyond reasonable doubt, the following:

  • That the person had a drug in their possession, and
  • That the person knew that they had that drug in their possession.

What is possession?

The concept of possession at law is that, at the relevant time, the person intentionally has control over the item in question. Regardless of whether the person owns the item or not, if they are found to be in possession of it, and the police can prove so by introducing admissible evidence, they will likely be found guilty of drug possession.

What is a prohibited drug?

Schedule 1 of the Drug Misuse and Trafficking Act 1985 provides an exhaustive list of prohibited drugs. Some of the most common types found in the community are:

  • Cannabis
  • MDMA / Ecstasy
  • Heroin
  • Ice (methylamphetamine / methamphetamine)
  • Cocaine

Defences to drug possession

Common defences to drug possession include:

  • Arguing the admissibility of the search that led to the detection of drugs,
  • Knowledge of possession (also known as a ‘Filippetti defence’, see below),
  • Knowledge of the item being a prohibited drug.

What is a ‘Filippetti defence’?

As is always the case in any criminal prosecution, the prosecution must prove every that makes up the offence charged, beyond a reasonable doubt. The case of Filippetti is authority for the proposition that for a charge of drug possession to be established, it is necessary for the prosecution to prove beyond reasonable doubt that the drug is in the accused “exclusive physical control”.

The case of Filippetti dates back to 1978, when Mr Filippetti’s home was searched by NSW Police by virtue of a search warrant. As a result of that search, 800 grams of cannabis, in the form of buddha sticks, was found stashed under a cushion of a lounge that was situated in the living area of the home. Mr Filipetti was charged with drug supply (under the deeming provisions, see below) and stood trial in the District Court of NSW. Despite hearing uncontested evidence that 5 other people lived at the premises, the Court found Mr Filippetti guilty and he was sentenced to a term of imprisonment. He later appealed this verdict to the NSW Court of Criminal Appeal (CCA).

In the NSW Court of Criminal Appeal, his Honour Chief Justice Sir Laurence Street found that the prosecution failed to prove their case beyond reasonable doubt, as the buddha sticks were found in the “communal lounge room”, and not in Mr Filippetti’s exclusive physical control.

Drug Supply

The offence of supplying a prohibited drug includes both the actual supply of a prohibited drug and situations where a person is found in possession of a certain quantity, known as a ‘traffickable quantity’,

Once possession of not less than a ‘traffickable’ amount of a drug is proved beyond reasonable doubt, the person charged has the onus of proving on the balance of probabilities that he or she had the drug for a purpose other than for supply. If the accused does this, the charge is automatically downgraded to possession.

Schedule 1 of the Drug Misuse and Trafficking Act categorises the various quantities of different prohibited drugs as follows:

Traffickable Quantity Small Quantity Indictable Quantity Commercial Quantity Large Commercial Quantity
Cannabis 300.g 30g 1kg 25kg 100kg
Cocaine 3g 1g 5g .25kg 1kg
Methylamphetamine 3g 1g 5g .25kg .5kg
Ketamine 7.5g 2.5g 12.5g 1.25kg 5kg
Gamma butyrolactone 30g 10g 50g 1kg 4kg
Heroin 3g 1g 5g .25kg 1kg

Drug Manufacture

It is an offence under section 24(1) Drug Misuse and Trafficking Act 1985 (NSW) to manufacture, produce, or knowingly to take part in the manufacture or production of a prohibited drug. Depending on the weight of the drug manufactured, sentences range from 10 years imprisonment (less than commercial quantity) to life imprisonment (not less than large commercial quantity).

It is also an offence under section 24A Drug Misuse and Trafficking Act 1985 (NSW) to possess precursors intended for use in the manufacture or production of prohibited drugs. The penalty for this offence is 10 years imprisonment and/or a fine of $22,000.

If you are charged with an offence of manufacturing or producing a prohibited drug or manufacturing a controlled drug for commercial purposes it is important you engage an experienced criminal lawyer to act on your behalf as a conviction for this type of offending almost always results in a lengthy term of imprisonment.

Drug Importation (Importing border-controlled drug or border-controlled plant)

Importing border-controlled drugs is a federal offence carrying severe penalties. Drug quantities are classified to determine whether the offence involves a commercial or marketable quantity. The weight of the drug is a key factor in determining the severity of the sentence, along with the offender’s knowledge, role in the importation process, and the potential reward they anticipated from their involvement.

In order to be convicted of this offence, the prosecution must prove beyond a reasonable doubt that:

  1. The person imported or exported a substance; and
  2. The substance was a border-controlled drug or border-controlled plant
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Assault Offences

Assault offences vary depending on the extent of the injuries inflicted and whether the offending is committed in the company of others.

This includes:

  • Common Assault
  • Assault occasioning actual bodily harm
  • Recklessly causing grievous bodily harm or wounding

Common Assault

Common assault is a criminal offence under section 61 Crimes Act 1900 (NSW). An assault may be established by proof of either physical contact (battery), or an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence.

In either case, the prosecution must prove, beyond reasonable doubt, that:

  • The person acted intentionally or recklessly, and
  • The victim did not consent to the conduct, and
  • The conduct was without lawful excuse.

Common assault is one of the most common charges in NSW courts, carrying a maximum penalty of up to 2 years’ imprisonment.

Assault occasioning actual bodily harm

Assault occasioning actual bodily harm is a criminal offence under section 59 Crimes Act 1900 (NSW). To be found guilty of this offence, the assault must result in an injury to the victim.

The Crimes Act does not define ‘actual bodily harm’; however, the New South Wales Court of Criminal Appeal has held that the typical examples of injuries that are capable of amounting to actual bodily harm include scratches and bruises.

Assault occasioning actual bodily harm attracts a maximum penalty of 5 years imprisonment, or 7 years if committed in company.

Recklessly causing grievous bodily harm or wounding

Recklessly cause grievous bodily harm or wounding is a criminal offence under section 35 Crimes Act 1900 (NSW).

This type of offending is divided into four categories of offences:

  1. Reckless wounding
  2. Reckless wounding in company
  3. Recklessly causing grievous bodily harm
  4. Recklessly causing grievous bodily harm in company.

The law defines “grievous bodily harm” to include any permanent or serious disfiguring of the person, the destruction of a foetus, and any grievous bodily disease.

“Wounding” is not defined in the Crimes Act. It has been defined at common law to involve the breaking of the skin

Generally speaking, the seriousness of the offence will significantly depend upon the seriousness of the wounding. However, the injury inflicted is not the only factor in determining the seriousness of an offence, the nature of the attack and surrounding circumstances are also highly relevant.

Legal Defences

Legal defences to assault include:

  1. Duress,
  2. Necessity, and
  3. Self-defence.

Duress

There are three elements which make up duress. An accused acts under duress, and therefore will not be held to be criminally responsible if the accused actions were performed:

  • because of threats of death or really serious injury to themself or a member of their family;
  • those threats were of such a nature that a person:
    • of ordinary firmness and strength of will,
    • of the same maturity and sex as the accused, and
    • in the accused’s position;

would have given in to them and committed the crime demanded of them

Necessity

The common law defence of necessity operates in situations where a criminal act is committed in order to avoid certain consequences which would have otherwise inflicted serious harm to that person or another person.

The defence of necessity involves two questions that must be addressed: first, was the accused conduct in truth a response to a threat of death or serious injury; and second, if so, did the accused act honestly believing, on reasonable grounds, that it was necessary to do so to avoid the threatened death or serious injury.

The accused bears the evidentiary onus of establishing a basis for a defence of necessity.

Self-defence

Section 418(1) Crimes Act provides that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. Section 418(2) provides that a person carries out conduct in self-defence if that person believes the conduct is necessary to:

  1. to defend himself or herself or another person, or
  2. to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
  3. to protect property from unlawful taking, destruction, damage or interference, or
  4. to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

The conduct must also be a reasonable response in the circumstances as the accused person perceives them.

Section 419 Crimes Act 1900 (NSW) provides that the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

It may do this by proving beyond reasonable doubt either:

  1. that the accused did not believe at the time of the alleged conduct that it was necessary to do what they did in order to defend themselves, or
  2. the alleged by the accused was not a reasonable response in the circumstances as they perceived them.
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Stealing and Fraud offences

Larceny

Larceny (or stealing) is an offence in which a person takes someone else’s property with the intent to permanently deprive them of it. The maximum penalty for larceny is 5 years’ imprisonment.

To prove someone guilty of the offence of larceny, the prosecution must prove beyond reasonable doubt each of the following:

  1. The property belonged to someone other than the accused;
  2. The property was taken and carried away;
  3. The property was taken without the consent of the owner.
  4. The property was taken with the intention of permanently depriving the owner of it; and
  5. The property was taken dishonestly.

Possible defences to larceny include:

1. No intention to permanently deprive

It can be defence to larceny if the intention to permanently deprive the owner of property wasn’t formed at the time the property was taken.

2. Claim of right

If the person honestly believed that they had a claim of right to the property at the time they took it, they may have a defence of claim of right. The person would need to show that they genuinely believed that they had a legal right to the property taken.

Fraud

Any person who, by any deception, dishonestly obtains property belonging to another or obtains a financial advantage or causes any financial disadvantage, is guilty of fraud. Fraud carries a maximum penalty of 10 years’ imprisonment and is considered a serious offence.

To be found guilty of fraud, the prosecution must prove beyond reasonable doubt that when deceiving the victim and obtaining the property, the accused acted dishonestly. Fraud offences in New South Wales include:

  1. Dishonestly obtain property by deception,
  2. Dishonestly obtain financial disadvantage by deception,
  3. Intention to Defraud by Destroying or Concealing Accounting Records,
  4. Intention to Defraud by False of Misleading Statement, and
  5. Intention to Deceive Members or Creditors by False or Misleading Statement of Officer of Organisation.

Break and enter offences

Part 4 of the Crimes Act (NSW) contains a number of break and enter offences:

  1. Enter a dwelling house with intent to commit a serious indictable offence,
  2. Break, enter and commit a serious indictable offence,
  3. Break and enter with intent to commit a serious indictable offence,
  4. Break, enter and assault with intent to murder.

A ‘serious indictable offence’ is an offence that carries 5 years imprisonment or more as a maximum penalty.

If the offence is committed in ‘circumstances of aggravation’ the maximum penalty for this offence is 20 years imprisonment. ‘Circumstances of aggravation’ include having a weapon, being in the company of another person or knowing that there is someone else inside the house.

Examples of break and enter offences include:

  1. Breaking into someone’s home and stealing their property,
  2. Breaking into a worksite and taking tools,
  3. Breaking into storage cages of unit complexes and stealing personal items.

To be found guilty of this offence, the police must prove the following, beyond reasonable doubt:

  1. The accused broke and entered the premises, and
  2. Having entered the premises, the accused committed a serious indictable offence (stealing for example).

There is no definition of “breaking” in the Crimes Act 1900. In Stanford v R (2007), the court held that there is no “breaking” involved in further opening an already opened window. However, to open a closed but unlocked door could amount to “breaking” since the common law definition of breaking includes pushing open a closed but secured door or opening a closed but unfastened window: DPP (NSW) v Trudgett [2013].

A person who has lawful authority to enter the premises, such as by being a leaseholder, will not be guilty of “breaking and entering”, even if they use force to gain entry. The Crown must prove beyond reasonable doubt the accused had no lawful authority to enter the premises.

Goods in custody

‘Goods in custody’ is a colloquial term for the offence of ‘persons unlawfully in possession of property’. It is a criminal offence under section 61 Crimes Act 1900 (NSW) and reads as follows:

Any person who

a) has anything in his or her custody,

b) has anything in the custody of another person,

c) has anything in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or

d) gives custody of anything to a person who is not lawfully entitled to possession of the thing,

which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court.

The Crimes Act does not define ‘custody’ for the purposes of section 527C. The decision of Ex parte McPherson (1933) 50 WN 25 is authority for the proposition that custody is “the immediate de facto control or charge of the article in question.”

Legal defences for ‘goods in custody’ include:

Personal custody: To be guilty of goods in custody, the police must be able to prove that you had custody of the thing in question at the time of arrest. The leading authority for this is the decision of R v English (1989) whereby Chief Justice Gleeson held that the offence of goods in custody retains its historical connotation of being caught red-handed.

Disputing reasonable suspicion: Reasonable suspicion must attach to the goods and not the person or persons the subject of police inquiry. The Court must be satisfied beyond reasonable doubt that ‘the thing in question’ may reasonably be suspected of being stolen or otherwise unlawfully obtained. Previous cases that consider the this defence include O’Sullivan v Tregaskis [1948] SASR 12 and Yeo v Capper [1964] SASR 1.

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AVO Offences

Apprehended violence orders, or AVO’s for short, are orders made by the court to protect individuals from violence, threats of violence, harassment and intimidation. There are two types of AVO’s in New South Wales, they are:

  • Apprehended Domestic Violence Orders (ADVOs): When the victim has a domestic relationship with the defendant, such as a spouse, de facto partner, family member, house mate or intimate partner.
  • Apprehended Personal Violence Orders (APVOs): When the victim has no domestic relationship with the defendant, such as a neighbour, colleague, or stranger.

Regardless of whether the AVO is domestic or personal, every AVO includes the following ‘mandatory’ condition:

  1. The defendant must not do any of the following to the protected person or anyone the protected person has a domestic relationship with:
  2. assault or threaten them,
  3. stalk, harass or intimidate them, or
  4. intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of them.

Depending on the circumstances that give rise to the order, additional conditions may be sought by the police to protect the ‘person in need of protection’. These conditions can restrict someone from approaching the ‘protected person’ or contacting them in any way. They can also prohibit the defendant from attending the ‘protected person’s’ home or work.

It is important to understand that an AVO itself is not a criminal order. However, if the defendant named in an AVO breaches any of the orders, they are committing a criminal offence. The maximum penalty for breaching an AVO is a $5,500 fine, or two years imprisonment, or both.

To be found guilty of an offence of ‘contravene prohibition or restriction in an apprehended violence order’ the police must prove each of the following, beyond reasonable doubt:

  1. That you were the defendant named in an enforceable order, and
  2. That you were served with a copy of the order before the alleged breach, and
  3. That you were prohibited from certain conduct, and
  4. That you committed conduct that was prohibited.
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Knife, Weapon and Firearm Offences

Custody of knife in a public place or school

The offence of custody of a knife in a public place or a school is a criminal offence under section 93IB Crimes Act1900.

To be found guilty of this offence, the police must prove each of the following beyond reasonable doubt:

  1. The accused had in their personal custody a knife whilst in either a public place or school, and
  2. The accused had that knife without reasonable excuse.

In 2023, the maximum penalty for having custody of a knife in a public place or school increased from 2 years imprisonment to 4 years imprisonment. The NSW Attorney general Michael Daley announced that the tougher penalty would send a strong message about the gravity of knife-related crime.

It has been argued that these reforms will disproportionately affect Indigenous young people and negatively impact Aboriginal and Torres Strait Islander adults, vulnerable itinerant people, and individuals with a cognitive and mental health impairment.

Whilst there is no definition at law for ‘reasonable excuse’, an accused person who has a knife in their custody for one of the following reasons would likely be found not guilty:

  1. Work-related purposes
  2. Religious or cultural reasons
  3. Recreational activities

Firearm related offences

In New South Wales, firearms and weapons offences are regulated under the Firearms Act 1996 (NSW). This legislation controls the possession, use, purchase, manufacture, and supply of firearms and their components. The Firearms Act 1996 (NSW) and was introduced as part of a national campaign to implement firearms control following the Port Arthur massacre in April 1996.

Section 4(1) of the Firearms Act defines a firearm as “a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive and includes a blank fire firearm, or an air gun”. The legislation also treats imitation (“replica”) firearms the same as actual firearms, unless clearly marked as children’s toy.

The offence of unauthorised possession or use of a pistol or prohibited firearm in section 7 of the Firearms Act 1996 (NSW) has a maximum penalty of 14 years’ imprisonment. Other offences under the Act include:

  1. The offence of supplying, acquiring, possessing, or using an unregistered pistol or prohibited firearm,
  2. The offence of acquiring, possessing, or using a pistol or prohibited firearm in contravention of a firearms prohibition order
  3. The offence of shortening a firearm, or possessing or supplying a shortened firearm.

Other weapon offences

Section 7(1) of the Weapons Prohibition Act 1998 prohibits the possession of a prohibited weapon unless the person is authorised to do so by a permit. Section 7(2) outlines that even if an individual holds a permit if the use of the weapon is outside of scope of what the permit allows, they will be guilty of an offence.

The definition of a ‘prohibited weapon’ includes a number of items, including:

  1. certain types of knives,
  2. crossbows,
  3. spear guns,
  4. bombs/grenades,
  5. mace,
  6. certain types of whips,
  7. kung-fu sticks,
  8. batons,
  9. tasers,
  10. knuckle-dusters.

The full list of prohibited weapons is set out in Schedule 1 of the Weapons Prohibition Act 1998.

An accused person who has a knife in their custody for one of the following ”reasonable excuses” would likely be found not guilty:

a) the lawful pursuit of the person’s occupation, education or training, or

b) the preparation or consumption of food or drink, or

c) participation in a lawful entertainment, recreation or sport, or

d) the exhibition of knives for retail or other trade purposes, or

e) an organised exhibition by knife collectors, or

f) the wearing of an official uniform

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Sex Offences

There is an array of sex related offences in New South Wales, each vary in terms of objective seriousness and complexity.

Regardless of the charge you face, it’s crucial to have the support of an experienced criminal lawyer who can help navigate the complexities of the law and work towards achieving the best possible outcome.

Indecent exposure

Indecent exposure is the act of intentionally exposing one’s body in public in a way that is considered inappropriate. It can include exposing genitals, buttocks, or other private body parts. This offence carries a maximum penalty of imprisonment for one year.

Sexual Act

The offence of sexual act is punishable by a maximum of 18 months’ imprisonment and a maximum of 3 years’ imprisonment if aggravated.

To be found guilty of committing a sexual act the prosecution needs to prove beyond a reasonable doubt that you intentionally, did one of the following:

  1. carried out a sexual act with or towards the alleged victim, or
  2. incited the alleged victim to carry out a sexual act with or towards you, or
  3. incited a third person to carry out a sexual act with or towards the alleged victim, or
  4. incited the alleged victim to carry out a sexual act with or towards a third person,

and it was done:

i. without consent of the alleged victim; and

ii. knowing the alleged victim did not consent; and

iii. if the offence is an aggravated offence, that there was a circumstance of aggravation.

“Circumstances of aggravation” means circumstances in which:

  1. the alleged offender is in the company of another person or persons, or
  2. the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
  3. the alleged victim has a serious physical disability, or
  4. the alleged victim has a cognitive impairment.

Sexual Touching

Depending on the age of the victim and circumstances of the alleged conduct, penalties for sexual touching offences range from 5 years to 16 years imprisonment. To be found guilty of sexual touching the prosecution needs to prove beyond a reasonable doubt that the accused intentionally, did one of the following:

  1. sexually touched the alleged victim, or
  2. incited the alleged victim to sexually touch him/her, or
  3. incited a third person to sexually touch the alleged victim, or
  4. incited the alleged victim to sexually touch a third person.

and it was done:

i. without consent of the alleged victim;

ii. knowing the alleged victim did not consent; and

iii. if the offence is an aggravated offence, there was a circumstance of aggravation

Sexual Assault

A person commits sexual assault if they have sexual intercourse with another person without the other person’s consent. Sexual assault carries a maximum penalty of 14 years or a maximum penalty of 20 years if the sexual assault is aggravated.

Sexual intercourse is defined by law and includes both:

  1. Penetration of the vagina or anus of a person using a body part or an object, or
  2. Oral sex

“Circumstances of aggravation” means circumstances in which:

  1. at the time of, or immediately before or after, the commission of the offence, the accused person intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby, or
  2. at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
  3. (b1) at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict grievous bodily harm or wounding on the complainant or any other person who is present or nearby, or
  4. the accused person is in the company of another person or persons, or
  5. the complainant is under the age of 16 years, or
  6. the complainant is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or
  7. the complainant has a serious physical disability, or
  8. the complainant has a cognitive impairment, or
  9. the accused person breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
  10. the accused person deprives the complainant of his or her liberty for a period before or after the commission of the offence.

If you or someone you know is facing charges related to a sexual offence in Sydney, securing the best possible legal representation is essential. These cases are particularly sensitive and complex, requiring specialised expertise and experience. Our lawyers have successfully defended many charges of sexual intercourse without consent, including one of the most spoken of cases in New South Wales of late, R v Martinez [2023] NSWDC 552, whereby our lawyers successfully defended all counts of sexual intercourse without consent and obtained a costs order against the Crown.

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Police Offences

Assault Police

Assaulting a police officer is a criminal offence under section 60A(1) Crimes Act 1900 (NSW). This offence occurs when a person assaults a police officer whilst they are performing their duties.

The maximum penalty increases to 7 years in prison if the accused inflicts ‘actual bodily harm’ on the officer, and 12 years if the accused inflicts ‘grevious bodily harm’.

There are circumstances whereby an offence under this section can be made out even if the officer was not on police duty at the relevant time. These circumstances include:

a) the assault occurred as a consequence of, or in retaliation for, action taken whilst the officer was on duty; or

b) if the assault occurred because the person is a police officer.

Resist Arrest

Resisting an officer in the execution of their duty is an offence under section 60A(1AA) Crimes Act 1900 (NSW).

In order to be convicted of this offence, the prosecution must prove beyond a reasonable doubt:

  1. That the accused person resisted or hindered, or incited any other person to assault, resist or hinder;
  2. The victim or person concerned was a police officer; and
  3. The police officer was acting in the execution of his or her duty at the time.

In R v Galvin (No. 2) 1961, the Court held that the word ‘resist’ carries with it the idea of opposing by force some course of action which the person resisted is attempting to pursue.

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Drink Driving and Traffic Offences

One of the most common offences in the Local Court of NSW is drink driving. This offence is captured by section 110 of the Road Transport Act and prohibits the operation of a vehicle when the driver has a prescribed concentration of alcohol in their breath or blood.

There are different categories of offending, depending on the level of intoxication and drivers licence status.

Low-range, special or novice drink driving

The offence of driving with a Low Range PCA (prescribed concentration of alcohol) is committed when a person drives a motor vehicle on a road or road related area with a blood alcohol concentration (BAC) of 0.05 to 0.079. The offence is also known as low range drink driving or Low range PCA.

If you are caught driving with a low range PCA and it is your first drink driving offence, the police can do either of the following:

a) Issue you with an on the spot fine of $603, or

b) Issue you with a Court Attendance Notice.

If you receive an on-the-spot fine, you will receive either of the following:

a) An immediate licence suspension from the police for a period of three months, or

b) After paying the penalty notice, a Notice of Suspension from Transport NSW suspending your licence for a period of three months under Section 59 of the Road Transport Act 2013.

If it is your second or subsequent offence, a minimum disqualification period of 6 months applies upon conviction. If you are charged with an offence of low-range PCA, the only way to keep your licence is by convincing the court that you should not receive a conviction (criminal record). This can be challenging, depending on the circumstances of each case, which is why it is important to be prepared and to have an experienced solicitor assist you in court.

Mid-range drink driving

A mid-range offence is when a driver is found to have a blood alcohol level above 0.08 and less than 0.15. If a person is convicted by a court of this offence the maximum penalty for a first offender is imprisonment for 9 months and a fine of $2,200.

Second or subsequent offences carry stricter penalties, such as 12 months disqualification and a fine of up the $3,300. Mid-range PCA offences are also subject to mandatory interlock orders.

High range drink driving

A high range PCA offence is when a driver is found to have a BAC above 0.15. This offence is treated seriously by the courts, particularly where a person has had prior drink driving offences.

A first high range drink driving offence attracts a maximum penalty of 18 imprisonment and a fine of up to $3,300. A second or subsequent offence carries 2 years imprisonment and/or a fine of up to $5,500. This offence is also subject to a mandatory disqualification period and interlock order.

Drug Driving

A drug driving charge (commonly known as “DUI” or “driving under the influence”) involves driving under the influence of drugs or driving with the presence of a certain drug in oral fluid, blood or urine.

Penalties for drug driving can vary and are dependent on your previous convictions. For a first-time drug driving offence, the automatic disqualification period is 6 months. Unlike drink driving offences this is a fine-only offence (you cannot go to jail for this offence).

A second offence can result in a $2,200 fine and an automatic disqualification of 12 months.

Licence Appeals

Some licence suspensions by Transport NSW can be appealed, whereas others cannot.

What can be appealed?

If a person commits a speeding offence of either 35kph or 45kph over the speed limit, Transport NSW will issue an immediate licence suspension under section 59 Road Transport Act 2013. The decision to suspend your licence in these circumstances may be appealed.

Additionally, if you are a provisional licence holder and you have accrued demerit points for speed-related offences and this has resulted in a suspension of your drivers licence, you can appeal your licence suspension in the Local Court.

When hearing an appeal, the Court may decide to do any of the following:

  1. Allow the appeal and remove the suspension in full,
  2. Allow the appeal and reduce the period of suspension,
  3. Dismiss the appeal.

Matters relevant to the courts determination on appeal include things like:

  • The age and experience of the driver
  • The circumstances of the speeding offences
  • The need for a driver’s licence including whether the person works or cares for others.

Court Elected Penalty Notices

Court elected fines are different to appeals against licence suspensions. When someone court elects a fine, they are essentially disputing their guilt and will be required to attend court and enter a plea of guilty or not guilty.

If the person pleads guilty, they may ask the court to sentence them on that day, or they may ask for time to gather subjective material (for example, they may wish to complete a traffic offenders course before sentencing).

It is not uncommon for people to court elect a traffic fine because they are worried that by accepting responsibility for the traffic offence alleged, they will accrue too many demerit points and lose their licence. If this sounds familiar, it is important that you understand that the only way to avoid incurring demerit points for the offence, is if you receive a non-conviction.

There are two types of non-convictions in New South Wales, they are:

  1. Section 10(1)(a) dismissal.
  2. Conditional Release Orders (CRO) without conviction (which is like a good behaviour bond).

A sentence other than either of the above, including a court fine, is a conviction (criminal record).

If you are facing traffic charges or if you have received a fine that you want to take to court, please contact us. We will provide you with advice regarding potential sentencing outcomes, including whether we think the court will convict you of your traffic offence.

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Bail

What is Bail?

When you’re arrested and charged with an offence, you may be either detained in custody or released on bail. Bail allows you to remain free in the community while your case is being processed in court.

While on bail, you must adhere to certain conditions, such as living at a specified address or reporting to a police station. A third party, such as a friend or relative, may be required to ensure you comply with these conditions. This person is known as a “surety.” The surety may also be asked to deposit money with the court on your behalf.

If you fail to meet the conditions of your bail, not only will a warrant be issued for your arrest, but any money deposited may be forfeited

What is the procedure?

If the police refuse to grant bail, you will be brought before a Local Court where you can apply for bail before a magistrate.

It’s important to seek legal advice as soon as possible after your arrest to ensure that your bail application is properly prepared and presented to the court. Generally speaking, you only get the once opportunity to apply for bail unless you can demonstrate a ‘change of circumstances’.

When deciding whether to grant bail, the court will consider two matters: whether the offence is classified as a “show cause” offence, and whether you present an “unacceptable risk.”

If you are charged with a show cause offence, you will need to demonstrate to the court why your continued detention is not justified. In this situation, the burden of proof is on you, not the police. When determining if you pose an “unacceptable risk,” the court will only consider the factors outlined in Section 18 of the Bail Act. If the court determines that you pose an unacceptable risk, or that you have failed to show cause as to why your detention is not justified, the court will refuse your application for bail.

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Section 10

A Section 10 is one of the sentencing options available to the court.

An order under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows the court to dismiss the matter without recording a conviction, despite the offence being proven.

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Appeals

Two appeal types exist: conviction appeals and severity appeals.

A conviction appeal challenges the finding of guilt following a disputed hearing, a severity appeal challenges the sentence imposed by the court after a guilty plea or finding of guilt. If you appeal both your conviction and your sentence this is called an ‘all grounds appeal.’ An appeal must then be lodged within 28 days of sentencing.

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Legal Aid

Legal Aid NSW provides legal advice and representation to the community.

Legal Aid NSW is a government organisation and is contingent upon certain eligibility criteria. In some cases, Legal Aid will assign criminal matters to private solicitors who are on the relevant Legal Aid Panel. If you are eligible for a Legal Aid grant, you may ask to have your case assigned to us

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Section 14

Section 14 allows dismissal of charges with mental health treatment.

A section 14 order allows a defendant charged with a criminal offence, who suffers from a mental health condition, to apply to have their matter dismissed upon entering into an agreement to undertake mental health treatment.

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Frequently Asked Questions

1. Can I take back a court elected fine?

Unfortunately you cannot take back a court elected fine. Once you have elected, you must attend Court.

2. If I appeal, can the sentence get worse?

Technically, yes. However, if the sentencing judge is considering a harsher penalty, they must inform you and your lawyer. This warning is known as Parker Direction. If you receive a Parker Direction, the best thing to do is to seek leave to withdraw the appeal. In these circumstances, the original sentence stands.

3. Do I have to enter a plea of guilty in order to make an application under section 14?

No, you do not need to plead guilty in order to bring an application under section 14.

4. How do I know if I am eligible for Legal Aid?

Eligibility for Legal Aid in Sydney is based on several factors, with the primary focus being financial need and the nature of the legal issue. To qualify, applicants must prove they cannot afford to hire a private lawyer. This usually involves assessing income, assets, and overall financial situation.

The Legal Aid Commission sets specific income thresholds that applicants must meet. If your income exceeds these limits, you may not qualify for assistance. In addition to financial factors, the type of legal issue is also important in determining eligibility. Legal Aid typically covers serious criminal cases, family law matters, and certain civil issues. If you are facing criminal charges that could lead to imprisonment, you are more likely to qualify for Legal Aid than if you are dealing with a minor civil dispute.

Understanding these eligibility criteria is crucial for anyone seeking assistance, as it helps set realistic expectations regarding the support available through Legal Aid.

5. Is there anything I can do to increase my chances of getting a section 10?

To improve your chances of receiving a section 10 dismissal, it’s important to provide the court with supporting material that demonstrates the following:

  1. Good Character and Strong Community Ties: Submitting up to three character references can help establish your good character and demonstrate you have strong community ties.
  2. Show the Court why you will not offend again: If the offence occurred during a challenging period in your life, it is important to tell your lawyer this. Explaining to the Court why the offending won’t happen again helps to establish a strong argument that you have ‘good prospects of rehabilitation’.
  3. Efforts to Address Underlying Issues: Show that you’ve taken steps to address any underlying issues, such as attending counseling, completing relevant courses (e.g., anger management, drug and alcohol programs), or seeing a psychologist/psychiatrist. Your lawyer can then obtain a report based on this progress.

For driving offences, completing a Traffic Offender Program can also improve your chances of a section 10 dismissal.

6. Why choose Willcox Criminal and Civil Lawyers Pty Ltd?

Our team of lawyers specialise in criminal law. We are passionate and consistently strive to achieve the best possible outcome for our clients. We have an outstanding level of client satisfaction, we offer fixed fees to ensure our clients have complete transparency from the outset, and we offer an initial consultation without charge.

Perhaps our greatest accolade, however, is the recognition we receive from others in the legal profession, including the judiciary, for our knowledge of the law and attention to detail. We do not pay for advertising that place us on lists like ‘Sydney’s Best Lawyers’, we simply rely on our reputation for being among the best and most trusted Criminal Defence Lawyers in Sydney.

Delivering results, one case at a time.

Request a Free Consultation by calling (02) 8251 0067 or by completing the online form.

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Testimonials

Here are some of the reviews left by our esteemed clients.

Excellent Result

“Your efforts in negotiating with the police on my behalf made all the difference, and I’m extremely grateful for the excellent result you were able to achieve. Your approach gave me confidence throughout the process, and I truly felt supported every step of the way. I can’t thank you enough for your hard work, and l’m beyond appreciative of how you both handled everything with care and expertise. Thanks heaps.”

- Tim, NSW


Testimonials

Here are some of the reviews left by our esteemed clients.

Highly Professional

“I recently used the services of Ben at Wilcox Criminal and Civil Lawyers for my case, and I couldn’t be more satisfied with the outcome. Ben managed to secure a result with no conviction recorded, which was exactly what I was hoping for. The team was professional, thorough, and communicated clearly throughout the process. They understood the nuances of the legal system and knew how to navigate it to achieve the best possible outcome for my situation. I highly recommend their services to anyone in need of skilled criminal defence representation.”

- Chris, NSW