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Section 10 – Crimes (Sentencing Procedure) Act
What is section 10?
Section 10 allows a magistrate to dismiss a charge even where the offence is proven.
What is the effect of being dealt with under section 10?
The offence is not recorded as a criminal conviction on your criminal record.
What offences can be dealt with under section 10?
Less serious offences.
How does a magistate decide whether to deal with you under s 10?
Your lawyer has to convince the court that because of your personal circumstances, the circumstances of the offence or other factors it is appropriate to deal with you under section 10.
By Amendra Singh – Barrister | April 2nd, 2014 | http://crimlawyer.com.au/
What is a “financial advantage”?
Scope of the section
Statutory interpretation
Coelho v Durban
Did the submitting of false identities constitute a “financial advantage”?
Stare decisis
Further Reading
By Amendra Singh – Barrister | January 19th, 2016 | http://crimlawyer.com.au/
Can a Prisoner be brought to Court in a Civil Matter?
While criminal courts regularly direct that persons in custody be brought to court in relation to their criminal proceedings, what is the position when a person in custody wants to or is required to attend court for civil proceedings?
The answer is found in the Crimes (Administration of Sentences) Act 1999. Section 77(1) of the Act allows an “appropriate authority” to make an order directing the Commissioner of Corrective Services to ensure that the prisoner is produced before the court where the proceeding is being held.
The section gives the “appropriate authority” a wide discretion as to when it can make such an order. The appropriate authority need only be satisfied that:
“(a) it is necessary that an inmate should attend before it for the purposes of any legal proceeding, inquest or inquiry, and
(b) the absence of the inmate may prejudice the rights of a party.”
“Appropriate authority” is also broadly defined. Under S77(5) of the Act, “appropriate authority” is defined as:
“(a) a court, or
(b) a coroner, or
(c) the Independent Commission Against Corruption, or
(d) a Royal Commission, or
(e) the Civil and Administrative Tribunal, or
(f) the senior administrative officer (such as the clerk or registrar) of a court, or
(g) a person prescribed by the regulations for the purposes of this definition.”
The definition of “court” is also broadly defined in S77(5).
Thus, if practitioners require the attendance of a prisoner in a court or tribunal in proceedings other than the prisoner’s own criminal matter, they can also seek an order pursuant to S77.
By Amendra Singh – Barrister | October 21st, 2015 | http://crimlawyer.com.au/
What form should a character reference be in?
A character reference:
- is usually in the form of a letter, giving the author’s address;
- should be addressed to “The Presiding Magistrate (or Judge) ”;
- should be typed or be in clear handwriting;
- must be dated;
- must be signed, with the author’s full name clearly written below the signature; and
- if provided electronically, must be in pdf or other format that is clearly readable.
Other matters
a character reference should be written by the referee in his own words; and
the court will place no value on a “general reference” where the defendant has not disclosed that the reference will be used in court.
A character reference should not suggest to the court to impose a particular penalty or a particular outcome.
SHOULD I OBTAIN CHARACTER REFERENCES FOR MY SENTENCE HEARING?
Character references can make a significant difference to the sentence that a defendant receives. However, for a character reference to have any impact on a defendant’s sentence, it is essential that it is in a proper form and that it contains only relevant evidence.
Why obtain character references?
One of the matters a court favourably considers when sentencing a defendant in criminal and traffic matters (and when making orders in disciplinary matters) is whether the defendant is otherwise of good character.
However, the court must have evidence of good character. Such evidence is usually presented to the court through character references.
Who should provide character references?
A character reference should be provided by a person who personally knows the defendant.
Commonly character references are obtained from employers, business associates, professionals, public figures, friends and charitable organisations, sporting clubs, religious groups, cultural associations or other organisations in which the defendant has been involved in or has assisted.
What the reference writer should be told
The person writing the reference:
must be informed of all the charges preferred against the defendant;
must be provided with the facts sheet or full details of the facts of the offence/s committed;
must be advised of the prior criminal and/or traffic record of the defendant; and
should be told whether the defendant pleaded guilty, not guilty or whether the reference is for an appeal.
What should be included in a reference?
A character reference:
must confirm that the defendant has discussed the charges with the writer, disclosed the full facts and any prior criminal or traffic record;
should explain how the defendant is known to the author, for how long and how well;
should express the referee’s opinion as to what kind of person the defendant is;
should, if the defendant has expressed his feelings about committing the offence (eg, regret, distress, embarrassment etc), articulate what the defendant said to the writer.
should state the writer’s occupation or background;
may contain any other matter relevant to the offence before the court (eg, personal observations of the driving of the defendant in a driving matter or opinion as to the usual honesty of the defendant in a charge involving dishonesty); and
may explain the consequences of the imposition of a particular penalty or sentence (eg, the consequences of loss of licence) by the court.
By Amendra Singh – Barrister | August 23rd, 2020 | http://crimlawyer.com.au/