Preparing for Imprisonment

I’m going to jail, what do I need to do?

Preparing for Imprisonment

The reality for many people charged with any offence is that if found guilty they will go to jail. There are a number of things you should do to prepare yourself and your family:

  • Get your affairs in order. Make sure arrangements are made to pay the mortgage or rent before you go in to custody. This may be achieved by discussing your situation with your bank and requesting a period of time where your mortgage is frozen and you are released from any repayments or ensuring there is enough money in the account when payments are due.
  • If you have school aged children who are being made aware of your situation, speak with the school counsellor or someone in a similar role to ensure appropriate arrangements are made.
  • Sort out your pets. It is not nice to lose your liberty only to discover your pets are home alone or at the pound. Make sure you make arrangements for their care or rehoming.
  • Ensure you have spoken with a family member or friend who is willing to be responsible for depositing funds each month into your prison phone and spend account. You are a captive market in custody and the cost of everything is inflated.
  • Obtain a detailed letter from your general practitioner confirming any medical issues you have and what medications you have been taking. While you may not be able to have the same medications in the prison, the report from your GP will assist you in being prescribed the most appropriate medication without undue delay.
  • Obtain full details of any person you would like to have on your prison phone list. You will need their full name, address, date of birth and phone numbers.
  • Consider appointing a limited power of attorney who can attend to your affairs while you are in custody.

Pleading Guilty in Court

How to prepare for a plea of guilty at Court

Pleading Guilty in Court

A large part of defence work is negotiating charges our clients face. If we are able to negotiate an acceptable resolution of the charges, your case will be listed for a plea hearing. This general information applies whether you are pleading guilty in the Magistrates’, County or Supreme Court.

It is important to ensure that every effort is made to present your case in the best and most detailed way. The Court will expect evidence to support the submissions made by your lawyer, for example if you instruct your lawyer that you have competed a drug rehabilitation program, the Court will expect to see a report from your treating professionals and evidence of your abstinence from drugs in the form of drug urine analysis results.

In our experience, the amount of effort that you make to prepare your plea hearing is always reflected in the outcome.

A non-exhaustive list of some of the material to obtain in preparation of the plea hearing is listed in the table below. You should speak with your lawyer about material you can obtain to best suit your particular type of case.

Issue Evidence
Previous good character Character references (see our reference guide)

Speak with people who can attend Court to provide evidence in Court in support of your plea

Employment history A copy of your CV/Resume

Obtain a letter from your current or former employers confirming your employment history

Academic study or courses completed A copy of your academic transcript

Course completion notice/letter

Copy of certificate of completion

Treatment for drug or alcohol abuse Report from treating professional/counsellor

Letter from GP confirming referrals obtained

Letter from GP confirming prescriptions provided

Urine screen results (ideally over a period of months to confirm abstinence)

Mental health Referral from GP for a mental health care plan

Report from treating professional (if any)

Report from forensic psychologist/psychiatrist

Letter from GP/professional confirming medications prescribed

Dependent Family Members or Employees If you have dependents with special needs (for example children or elderly parents) letters from treating professionals confirming the existence of the special need and also how you are important to their care

 

Penalties in Criminal Cases

What sentences can the Court impose?

Penalties in Criminal Cases

The Sentencing Act 1991 (Vic) is the legislation that governs criminal penalties.

The maximum penalty for any offence is stated in the law that governs the criminal offence and is most often found in either the Crimes Act 1958 (Vic), the Summary Offences Act 1966 (Vic) or the Commonwealth Crimes Act 1914 for federal offences. This page will detail sentences as they apply for state based (Victorian) offences for adult offenders.

Section 9 of the Sentencing Act 1991 states that the only purposes for which a sentence may be imposed are:

  1. To punish the offender to the extent and in a manner that is just in all the circumstances
  2. To deter the offender or other persons from committing offences of the same or similar character
  3. To establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated
  4. To manifest the denunciation by the Court of the type of conduct
  5. To protect the community from the offender
  6. A combination of two or more of the above purposes.

Penalties

Dismissal Discharge
Adjourned Undertaking Fines
Diversion Community Corrections Order
Imprisonment Suspended Sentence
Licence cancellation Compensation

Dismissal
A dismissal applies where the Magistrate finds you guilty of an offence but orders that they will not impose a conviction or penalty against you.

Discharge
A discharge is if the Magistrate finds you guilty but does not impose any penalty. The finding of guilt will be recorded and appear on a criminal record.

Adjourned Undertaking
Adjourned Undertakings replaced the old good behaviour bonds. An adjourned undertaking is a promise that you make to the Court to be of good behaviour and comply with any conditions of the Undertaking (for example to make a charitable donation) in the adjourned period. An Adjourned Undertaking can be imposed with or without conviction and will appear on a criminal record.

Fines
A large number of criminal matters heard in the Magistrates’ Court are dealt with by the offender being sentenced to pay a fine, financial penalty for the criminal conduct is the sentence imposed. Enforcement of payment is now regulated by Fines Victoria and any offender retains the option to convert a fine to unpaid community work in lieu of payment.  

Diversion
Diversion is the opportunity generally for first time offenders to avoid a criminal record by literally diverting their case out of the Court room. To be eligible for diversion your offending must meet the criteria set by Victoria Police and you must be recommended for Diversion by the Police for this sentencing outcome to be an option. A Diversion plan will often include conditions such as writing a letter of apology to any victim, making a charitable donation, paying compensation for any damage caused and writing a letter of thanks to the Police.

Community Corrections Order
Community Corrections Orders (CCO) are a sentence that is served in the community. A CCO is generally a supervisory order incorporating punitive and therapeutic conditions. The conditions can include:

  • Supervision by Corrections (including attending at Corrections and receiving visits from Corrections at home and/or employment)
  • Completing a prescribed number of unpaid community work hours
  • Attend treatment for Drug and Alcohol addiction or abuse
  • Attend a psychologist or other medical practitioner for assessment and treatment
  • Comply with a non-association condition with a person or class of persons
  • Place or area exclusion zones
  • Be subject to a curfew between certain hours

Where a CCO is breached by either re-offending or non-compliance, the offender is returned to Court and can face re-sentencing.

Imprisonment
A period of time ordered to be served in prison. This time can be either a straight sentence or if more than 12 months, a term incorporating a period of supervised release in the community on parole.

Suspended Sentence
Although now an abolished penalty, for offences committed prior to the abolition date a Magistrate can impose a term of imprisonment and due to exceptional circumstances personal to the offender decide to suspend that term and allow the offender to serve the term in the community.

Licence Cancellation
Certain offences carry a mandatory penalty that involves the imposition of an order cancelling an offender’s licence. These include drink driving, dangerous driving and theft of motor vehicle.

Where an offence is committed involving a motor vehicle, the Court retains a discretion to impose an order against a person’s ability to drive.  

Compensation
The Court can order Compensation for damage to property, a victim’s loss of income or medical expenses.

 

What is Metadata – Cell Phone Towers and Police Investigations

Metadata is the data you don’t see when you read your email or SMS message or take a phone call. Metadata is the information about the content of an electronic communication, but does not include the content.

Metadata is the data that provides all the details the recipient, the author, the length, the language, the date and time of the message,

but not what the message says.

Metadata will disclose the location of a cell tower that a mobile telephone utilises, without pinpointing the location of the mobile phone itself. Whilst, metadata is different to content data, it provides you with everything you need to recreate, or reverse engineer the content. Consider the image below:

meta-data

Metadata is relevant to police investigations when they rely on cell phone tower locations to attempt to identify that a person (or their phone) is in the vicinity of a crime scene. Such evidence is commonly relied upon in drug trafficking cases or cases where police rely on circumstantial evidence to identify an offender.

Drug Court – Eligibility and procedure

What is Drug Court?

Drug Court – Eligibility and procedure

What is the Drug Court?

The Drug Court is a separate division of the Magistrates’ Court that provides for supervised treatment of offenders who have committed crimes while under the influence of drugs or alcohol or their offending is motivated by their drug or alcohol addiction. The Drug Court currently operates as part of the Melbourne and Dandenong Magistrates’ Courts.  

Who is eligible for Drug Court?

There are specific preconditions that must be met for a person to enter the Drug Court process.

  • You must not be subject to any other current Court order (eg: parole, CCO)
  • You must be pleading guilty to the charges
  • Your usual place of residence must be within the postcode area serviced by the Drug Court
  • The offences you committed must be within the sentencing jurisdiction of the Magistrates’ Court
  • The offence must not be a sexual offence or a charge involving infliction of actual bodily harm on  a person
  • You must be dependent on drugs or alcohol or your addiction to drugs or alcohol contributed to your motivation for offending

What is a Drug Court Sentence?

A Drug Treatment Order can be for up to two years incorporating two parts:

  • Treatment and supervision; and
  • Imprisonment

The term of imprisonment imposed must not exceed two years. That term is not immediately served but rather held in lieu of compliance with the treatment component of the Drug Treatment Order. Treatment will include regular urine screening, engagement with Court ordered drug treatment and regular attendances at Court for supervision of progress on the order.   A Drug Court Sentence can be breached by reoffending or non-compliance with conditions of treatment. Consequences for breach include cancellation of the DTO and resentencing on the original charges.

Court Procedure – Summary Hearings in the Magistrates’ Court

What is the procedure in a Summary Case in the Magistrates’ Court

Court Procedure – Summary Hearings in the Magistrates’ Court

The Magistrates’ Court is divided into two streams:

  • Summary Stream – for cases that will begin and end in the Magistrates’ Court
  • Committal Stream – for cases that are more serious and will likely proceed to trial in either the Supreme Court of the County Court.

This page provides an outline of the Court hearings for a case proceeding through the Summary Stream of the Magistrates’ Court. The summary criminal process begins when you are served with a charge or bailed to appear at a mention in the Magistrates’ Court.

First mention date
The summary criminal process is the first step in the Court process. On this date, your lawyers will obtain a copy of the preliminary brief of evidence, if it has not been provided earlier. A case conference will be held with the prosecutors where the issues in your case will be discussed. It may be a guilty plea can be negotiated on terms you are happy with. If this is the case, the case can either finalise on that day or be adjourned to a plea hearing. If your case does not resolve it will be adjourned to a contest mention or if there is outstanding police disclosure necessary or other investigations required, a further mention date may be listed.

Contest mention
The contest mention is the first step in the line when you are pleading not guilty to some or all charges. The purpose of the contest mention is for the Court to engage with the parties in an attempt to resolve the charges. The Court will provide a sentencing indication at the contest mention. A sentence indication is the Court will tell you what sentence they would impose if you were to plead guilty to the charge/s. The Court is motivated to resolve cases and this is usually reflected in the indication given. If the case remains unresolved, it will be adjourned to a contested hearing.

Contested Hearing
A contested hearing is a trial in the Magistrates’ Court. The case commences with the prosecution calling their witnesses in an effort to prove the charges against you. The defence have the opportunity to call evidence, including expert witnesses if relevant.

 

Court Procedure – Committal Cases

What is the procedure in a Committal Case in the Magistrates’ Court

Court Procedure – Committal Cases

The Magistrates’ Court is divided into two streams:

  • Summary Stream – for cases that will begin and end in the Magistrates’ Court
  • Committal Stream – for cases that are more serious and will likely proceed to trial in either the Supreme Court of the County Court.

This page provides an outline of the Court hearings for a case proceeding through the Committal Stream of the Magistrates’ Court.

Filing Hearing

The first hearing date is about the administration of your case. At the filing hearing the Court will set a timetable for your case.

  • Date for service of the Hand-up Brief – this is the date that the police are required to provide the brief of evidence to you or your solicitors. The hand-up brief contains a summary of the allegations, the witness statements, copies of exhibits and a transcript of your record of interview.
  • Committal mention date – this is the first time you will return to Court. You will be provided with the date for the committal mention during the filing hearing.

Committal Mention

The committal mention is the first hearing where the evidence in your case may be discussed. In advance of the committal mention your lawyer is required to file a document called a Form 32 that details whether you intend to plead guilty or not guilty to some or all of the charges.

Where you are intending to plead not guilty, your lawyer will discuss with you whether you should seek leave of the Court to cross examine witnesses at a committal hearing. If you decide to seek a committal hearing, your lawyer will make an application for cross examination at your committal mention.

Ordinarily the committal mention is largely procedural in nature. It is unusual for witnesses to attend Court on this occasion. If you are pleading guilty to the charge, that can occur at the committal mention.

Preparation for Committal Hearing

This is an important time for your lawyers to prepare your case. The delay between committal mention and committal may seem lengthy to you, but your lawyers will consider this a short timeframe. Subpoenas may need to be issued to defence witnesses, reports may be required for expert witnesses and it may be that you provide a list of possible witnesses or evidence that requires investigation. Further disclosure about the conduct of the case will be sought, which might include accessing hospital records for victims or police notes about the police investigation.

Committal Hearing

A contested committal hearing is an opportunity for your lawyer to cross examine witnesses and test the scope of the witness evidence against you. A committal hearing is a critical point in the case where the strength of the case against you is often clarified.

At the conclusion of the cross examination, a Magistrate will decide if there is evidence of a sufficient weight that a properly instructed jury could convict you. This is a low threshold and most cases proceed to trial in either the County or Supreme Courts. At this stage you are formally committed for trial.

 

Common Defences

Defence to criminal charges

To be guilty of any criminal charge, the prosecution must establish beyond reasonable doubt all of the elements of the offence/s charged. Each crime has a set of elements that the prosecution must establish before criminal liability can be proven.

Even where all the elements of the offence are made out, a person is not guilty of a charge if they can successfully argue they have a defence. Once a defence is raised it is ordinarily a matter for the prosecution to disprove that defence beyond reasonable doubt. For example if a person raises they acted in self defence, the prosecution must establish beyond reasonable doubt that they were not acting in self defence. All defences must be supported by evidence; that is there needs to be some evidentiary basis for the defence to be raised. Some common defences are outlined below.

 

Consent Mental Impairment
Duress Claim of Right
Self Defence Intoxication
Sudden or Extraordinary Emergency Honest and Reasonable Mistake

 

Consent

Consent can be both a defence and the absence of consent can be an element of the offence charged. For example for an accused person to be guilty of rape or indecent assault, the prosecution must prove beyond reasonable doubt that there was an absence of consent. The law defines consent as free agreement.

The Crimes Act 1958 (Vic) section 36(2) lists 12 circumstances in which a person does not consent. The section specifically states it is a non-exhaustive list. The legislation prescribes that a person does not consent where:

  1. A person submits because of force or fear of force
  2. A person submits because of fear of harm of any type, whether to that person, someone else or an animal
  3. A person submits because they are unlawfully detained
  4. The person is asleep or unconscious
  5. The person is so affected by drugs or alcohol to be incapable of consenting
  6. The person is so affected by drugs or alcohol to be incapable of withdrawing consent.

Duress

An act is committed under duress if it is committed due to a threat of physical harm if the act is not done. The defence of duress recognises that sometimes people commit offences to avoid a threatened harm/injury from a third person. Where duress is raised as a defence, the prosecution must eliminate any reasonable possibility that the accused acted under duress.

Mental impairment

The defence is mental impairment is governed by the Crimes (Mental Impairment and Unfitness to the Tried) Act 1997 (Vic). An alleged offender will have a defence of mental impairment available if at the time they committed the act, they were suffering from a mental impairment that had the effect that they either:

  1. Did not know the nature and quality of what they were doing; or
  2. Did not know that their conduct was wrong.

The question of mental impairment can be raised at any time prior to or during trial, and can be raised by either the defence or prosecution. ‘Mental impairment’ is not defined however certain conditions have been held by the Court to be diseases of the mind include schizophrenia, hyperglycaemia (caused by excessive blood sugar levels) and some cases of dissociation and epilepsy.

Self-Defence

Self-defence arises where the accused person believed upon reasonable grounds that it was necessary in self-defence to do what they did. There are two elements to the offence:

  1. The accused must have believed at the time that the act was committed that what they were doing was necessary (even if mistaken, the belief must be genuine); and

 

  1. That belief must have been based on reasonable grounds. In determining whether reasonable grounds exist the Court will consider:

 

  1. The surrounding circumstances
  2. All facts within the accused person’s knowledge
  3. The relationship between the parties
  4. The prior conduct of the victim
  5. How proportionate the accused person’s response was to the threat perceived
  6. The failure to retreat

Once raised by the defence, the prosecution must disprove one of the above two elements or the accused person is entitled to be acquitted (found not guilty).

Claim of Right

A claim of right if a genuine belief held by a person that they have a claim over certain money or property. The defence is available to any person who takes property, either on their own behalf or on behalf of another, if they believe another person has a bona fide claim of right to the money or property in question. Once raised in evidence, the prosecution must negate the defence of claim of right beyond reasonable doubt.

Honest and Reasonable Mistake

The defence of honest and reasonable mistake applies only to strict liability offences (most commonly seen in driving charges such as driving while suspended or exceeding the speed limit). The defence can be raised where you honestly believed that you were acting lawfully when you committed the offence and that you would not have acted that way if you knew what you were doing was against the law. The mistake must be honest and the belief in the mistake must be reasonable.

Sudden or Extraordinary Emergency

This defence only applies to cases of homicide and is set out in section 9AI Crimes Act 1958 (Vic). For this defence to be successful you need to believe that the emergency involves a risk of death or really serious injury and that you believed your actions were the only reasonable actions in the situation.

Intoxication

Intoxication is addressed in both the Victorian legislation and the common law. Intoxication is generally not a defence but can have used to assess whether the required mental element is proven by the prosecution. Intoxication can impact upon whether you intended to commit a crime or whether you foresaw the consequences of your conduct.

Children and Criminal Responsibility

Children and Criminal Responsibility

At what age can a child be held criminally liable for their behaviour?

A child under the age of 10 cannot be prosecuted for a criminal offence – this is known as the doli incapax principle.

If a child is aged between 10 and 14, the doli incapax principle applies on a rebuttable basis. Doli incapax is not a defence but rather an element that the prosecution must prove beyond reasonable doubt where the alleged offender is between 10 and 14 years of age.

What do the police have to prove to pursue charges against a child between 10 and 14 years?

The following must be satisfied before guilt of a child between the age of ten and 14:

  1. The presumption of doli incapax must be rebutted as part of the Crown case;
  2. The Court must be satisfied that the child knew the act was wrong, not simply naughty or mischievous;
  3. The evidence must be strong and clear beyond all doubt and contradiction; and
  4. The evidence to prove doli capax needs to be something more than simply proof of the offence charged.

How do the police try to prove a child is capable of criminal responsibility?

The behaviour of a child during the police investigation is ordinarily the first opportunity for the police to gather evidence that a child understands that the conduct was wrong. Interviews and reports from expert witnesses together with evidence of the child’s home environment, prior convictions or prior court appearances and answers (if any) in the record of interview with police can all be relevant.

Applications for Bail

How to prepare for a bail application

When the police charge a person with an offence they can do so by sending them a summons requiring them to appear at Court, they can charge and release them on an undertaking of bail to appear at Court or they can remand them in custody pending their Court appearance.

When a person is remanded in custody, your defence lawyers at Emma Turnbull Lawyers will give you advice about applying for bail. Where police consider a person to be an unacceptable risk they will oppose bail.

Depending on the charge and general circumstances of the case, one of two legal tests apply:

  1. You must show compelling reasons why bail ought be granted; or
  2. You must show exceptional circumstances as to why bail ought be granted.

Compelling reasons or exceptional circumstances can be made up of one or a combination of matters including:

  • Delay in the progress of the case
  • Weaknesses in the prosecution case
  • The age of the accused
  • Whether it is the first time the accused has been in police custody
  • Family obligations of the accused
  • Family supports and ties to the community
  • Health of accused
  • Any treatment regime available if the accused is released – including either medical, psychological or substance use treatment (most commonly being drug rehabilitation)
  • Employment commitments or availability
  • Availability of a surety
  • Whether the accused has a suitable home address available
  • Whether any co-accused has been granted bail

Where a Court makes a grant of bail, they will attach a number of conditions to that conditional freedom. The first condition always being that they attend Court on the next listed hearing date. Other conditions can include:

  • Static residential address
  • Reporting to the local police station
  • Undergoing drug treatment
  • Attendance at a psychologist
  • Compliance with a curfew (being home during certain hours of the day)
  • Not to leave the state of Victoria
  • Not to attend any points of international departure
  • Not to contact witnesses for the prosecution
  • Not to associate with any co-accused