Criminal

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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”?

A common charge in fraud matters is an allegation of dishonestly obtaining a “financial advantage” by deception.
In NSW, this offence is found in section 192E of the Crimes Act 1900.
Section 192E(1) provides:
“A person who, by any deception, dishonestly:
(a) obtains property belonging to another, or
(b) obtains any financial advantage or causes any financial disadvantage,
is guilty of the offence of fraud.

 

The offence is a serious one, carrying a maximum penalty of ten years imprisonment.

Scope of the section

While some over-zealous prosecutors may argue that all manner of dubious conduct falls under the scope of this section, this approach is misconceived.
In allegations of fraud, the defence barrister or lawyer must carefully scrutinise the evidentiary case to assess whether the element of “financial advantage” can be established beyond reasonable doubt.
Recently, I was briefed in matter involving s192E. The defendant had attended a bank with two fake identity documents and tried to open a bank account under a false name. The bank suspected that the identity documents were false and called the police. No bank account under the false name was opened.

Statutory interpretation

In advising on such matters, the starting point is the construction of the relevant legislation.
The Crimes Act is not beneficial legislation. Offences created by it must be strictly construed according to their plain meaning.
Had the legislature intended that the concept of “advantage” in s192E to be unrestricted, it would not have constrained it with the word “financial.”
Section 192E can be contrasted with section 86 (kidnapping) of the Crimes Act. Section 86(1) provides:
“A person who takes or detains a person, without the person’s consent:
(a) with the intention of holding the person to ransom, or
(a1) with the intention of committing a serious indictable offence, or
(b) with the intention of obtaining any other advantage,
is liable to imprisonment for 14 years” (emphasis added).

 

This comparison demonstrates that the word “advantage” must be construed more narrowly under s192E as compared to s86.

Coelho v Durban

The NSW Supreme Court considered the term “financial advantage” in a matter involving the predecessor of s192E – s 178BA of the Crimes Act in Coelho v Durban[Supreme Court of NSW, 29 March 1993).
In Coelho, the defendant possessed two Nissan Pintara cars. One was a 1986 model which was unregistered and seriously damaged. The other was a 1988 model which was also unregistered but undamaged.
The defendant transferred the compliance plate from the 1986 vehicle to the 1988 vehicle. He then presented the 1988 vehicle for inspection for the purpose of securing registration.
While dismissing the charge in Coelho, Badgery-Parker J stated relevantly (at pp 2-3):

 

“…it does seem to me that the essence of the concept of financial advantage that the person alleged to have obtained such has obtained a benefit which can be valued in terms of money and a benefit which can be seen to be financial as distinct from benefits of another kind.”

Did the submitting of false identities constitute a “financial advantage”?

In the false identity matter that I appeared in, I submitted to the court that the defendant did not receive any benefit from trying to open the account using the false documents which could be measured in terms of money; and that accordingly he did not receive any “financial” benefit.
The prosecutor argued that the defendant did receive a financial benefit. She cited the Victorian Supreme Court case of Mathews v Fountain [1982] VR 1045. In that case, defendant employer gave a cheque for $200 to an employee as payment for wages, knowing that there were insufficient funds in the employer’s bank account.  The court held that by knowingly proffering a valueless cheque, the defendant obtained a “financial advantage.” The advantage she obtained was that she got temporary relief from paying her employee.
In support of her argument, the prosecutor put forward various speculative theories of how the defendant could have received an “advantage.”

Stare decisis

In response, I submitted that:
a) Under the principle of stare decisis, the court was bound by the NSW Supreme Court decision. The court was not bound by the Victorian decision. Further, if there was a conflict between the Victorian court’s interpretation and the NSW court’s interpretation, the court was bound to follow the NSW decision.
b) In any event, Fountain was distinguishable on its facts.
Ultimately, the court had no option but to dismiss the charge.

Further Reading

A useful discussion on this type of fraud offence can be found in: A Steel, “Money for Nothing, Cheques for Free? The Meaning of ‘Financial Advantage’ in Fraud Offences” (2007) 31 Melbourne University Law Review 201.
Disclaimer: Each case depends on its own facts. Solicitors or accused persons should obtain advice from suitably qualified counsel in the case of fraud matters.
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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.

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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.

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By Amendra Singh – Barrister | August 23rd, 2020 | http://crimlawyer.com.au/