Facing the possibility of being arrested is a frightening experience. Police and prosecutors try to make you feel helpless and alone. If you are arrested or being investigated on criminal charges , your freedom, your reputation – even your life as you know it – could depend on the decisions you make in the first 24 hours.

You should not talk to police, your employer, the newspapers, or anyone else about your arrest. Just like you wouldn't trust a butcher to do open heart surgery on you, so too you shouldn't trust anyone with the details of your case.

If you endeavour to explain your situation, it could make matters worse – and can possibly work against you in certain legal defences. The only person you should talk to is an experienced criminal defence lawyer.

We represent clients in the local, district courts and Supreme Court as well as the court of criminal appeal, where the cases we present have been carefully prepared in such a manner to ensure the best possible outcome.

At George Sten & Co we handle all types of criminal law including:

• Affray
• Appeals
• AVO Hearings
• Bail Applications
• Centrelink Cases
• Computer Crimes
• Drink Driving Offences
• Drug Related Matters
• Fraud
• Murder & Attempt
• Police Interviews
• Riot
• Robbery
• Sexual Offences / Indecent Assault
• Traffic Offences
• Weapon Offences

We are here to help you and if you have questions in relation to your case our staff are always on hand.

You can contact us during normal business hours or if your request is of an urgent nature please contact us 24 hours a day on 0412 423 569.

Please be aware that as lawyers we do charge for our service. If you would like free information please browse our Information Sheets that cover the basics of most areas of criminal law.

If you are charged with an offence, you will not automatically receive the maximum penalty - there are a variety of matters a court looks at to determine your sentence. You can, however, get an indication as to how serious the courts consider the offence by referring to its maximum penalty. You will be able to find this information in the relevant legislation, which in New South Wales consists of the Drugs Misuse and Trafficking Act 1985 (NSW) and the Customs Act 1901 (Commonwealth).

If you refer to those acts you will see that maximum sentences for drug offences range from 2 years and 20 penalty units (one penalty unit, or pu, equals $110) for an offence such as possession, to a sentence of life imprisonment for importation. For major offences you can pay fines of up to $550,000, and be ordered to forfeit assets.

Listed below are the maximum penalties for the most common drug offences in New South Wales:

• possession of a prohibited drug: 20 pu and/or 2 years imprisonment;
• An offence with respect to prohibited plants: from 50 pu and/or 2 years, to 5000 pu and/or 20 years;
• Manufacture and production of prohibited drug: from 50 pu and/or 2 years, to 5000 pu and/or life imprisonment;
• possession of precursors (ie. the basic materials) intended for use in the manufacture or production of a prohibited drug: from 100 pu and/or 2 years, to 2000 pu and/or 10 years;
• Supply of a prohibited drug:
  • of less than a small quantity: 50 pu and/or 2 years
  • of less than an indictable quantity: 100 pu and/or 2 years
  • of less than a commercial quantity - cannabis leaf or plant, where defined as a summary offence (ie. a small amount of drug is involved): 100 pu or 2 years
  • of less than a commercial quantity - cannabis leaf or plant: 2000 pu and/or 10 years
  • of less than a commercial quantity: 2000 pu and/or 15 years
  • of a commercial quantity - cannabis leaf of plant: 3500 pu and/or 15 years
  • of a commercial quantity: 3500 pu and/or 20 years
  • of a large commercial quantity - cannabis leaf or plant: 5000 pu and/or 20 years
  • of a large commercial quantity: 5000 pu and/or life;
• Supply by an adult of a prohibited drug (other than cannabis) to a child under 16 years old:
  • of less than a small quantity: 50 pu and/or 30 months
  • of less than an indictable quantity: 100 pu and/or 30 months
  • of less than a commercial quantity: 2400 pu and/or 18 years
  • of a commercial quantity: 4200 and/or 25 years
  • of a large commercial quantity: 6000 pu and/or life;
• Supply of a prohibited drug (other than cannabis) on an ongoing basis: 3500 pu and/or 20 years;
• Importation of a prohibited drug:
  • of a commercial quantity: life
  • of a trafficable quantity where you have a previous conviction: life
  • of a trafficable quantity: $100,000 and/or 25 years
  • of a trafficable quantity of cannabis: $4,000 and/or 10 years
  • of a trafficable quantity but where you're not for dealing: $2,000 and/or 2 years
  • of less than a trafficable quantity: $2,000 and/or 2 years

Your solicitor will be able to go through with you the amounts of each drug that constitute the various quantities (ie. small, indictable, trafficable and commercial). These amounts obviously vary from drug to drug. Generally, however, the drugs to which the more serious sentences attach are heroin and cocaine. Mid-range sentences attach to amphetamines such as speed and ecstasy, and the lowest sentences attach to cannabis. Large amounts of low and mid-range drugs can still, however, attract significant penalties.

To determine what offence/s you have been charged with, and the amount of drugs the police consider are involved, you can refer to either the charge sheet or the notice to appear, one of which the arresting officer will have given you.

If you are given a notice, this is called a Court Attendance Notice (CAN), or Field Court Attendance Notice (FCAN). This notice will require you to appear before a local court in a few weeks. It is essential you appear at court as designated by the notice. If you do not, a warrant will be issued for your arrest.

Alternatively, you will be charged and bail will be considered. If you are not granted bail, you will be remanded in custody. This means you will remain at the watchhouse and appear before the local court the following day. If you are granted bail, the bail form will state when you are to appear in court. Again, it is essential you appear at court on the date designated. Your bail form - or if you are not charged, your notice - will also tell you which court you are to attend. Make sure you know where the courthouse is well in advance.

At this point it is a good idea to consult a lawyer. There is always a solicitor, called a duty lawyer, available to deal with simple matters before the local court. To receive detailed advice and representation at all stages of your matter, however, you will probably need to employ a solicitor. This is especially important if you are entering a plea of not guilty.

When you do appear before the local court, your matter will either be dealt with by that court, or it will be sent up to the District or Supreme Court if it is a more serious type of offence. Your solicitor will let you know which will occur. The less serious matters are called summary offences, and even if you plead not guilty, you will be dealt with by a magistrate. This means your case will not go to a District or Supreme Court, and will not be dealt with as a trial before a jury.

If, however, your matter is more serious, it is what's called an indictable offence and it will be sent up to either the District Court or, for the most serious drug matters, the Supreme Court. Sending a matter for trial from the local court to either of these higher courts is called committing a matter for trial. Before this can be done, there is a hearing in the local court called a committal hearing. This is a type of mini-trial before a magistrate (no jury), who decides whether there is a case to be heard. The magistrate may consider the matter insubstantial and not commit it for trial at all, but this is rare.

If you are charged with a minor offence and you decide to enter a plea of guilty, it is still advisable you get legal advice from a private solicitor. There are a variety of things the Crown must prove in order to convict you, and a solicitor is best placed to determine whether they will be able to do so.

If you are entering a plea of not guilty, however, it is essential you receive legal advice. Your solicitor can advise you of your chances before the court, the details of the court process, and the likely penalties you will face if convicted.

There are two types of drink driving offences with which you can be charged, both of which are established by the Road Transport (Safety and Traffic Management) Act 1999 (NSW). The first is for driving while under the influence of alcohol (s 12) and the second is for driving with the prescribed concentration of alcohol (s 9).

It is most often the case that the police will charge you with the second offence because they will usually have a precise blood alcohol reading. The police will charge you with driving under the influence of alcohol, however, if they do not have a reading. This would occur if you refused to be tested, there was a technical problem, or there was some other reason why a reading could not be obtained. You should note, however, that refusing a breath test and refusing a blood analysis are offences in themselves.

If you are charged under s 9 your offence will be categorised according to the prescribed concentration of alcohol (pCA). The more alcohol in your blood, the severer the penalty.

Whether or not you wish to plead guilty to the drink driving offence you are charged with, it is advisable that you get legal advice. In some circumstances you may be able to get a legal aid solicitor to deal with your matter, but in most instances you will need to retain a private solicitor.

A solicitor will be familiar with the procedures of the local court - where your matter will be heard - and will be best placed to present your case in the appropriate and indeed, most advantageous fashion. If you refer to a solicitor well in advance of your court date they will be able to ensure all evidence is provided to the court on the day, and further, that other action that will assist your case is taken prior to your appearance.

It is particularly important that you consult a solicitor if you have been charged with a major drink driving offence (for example, your prescribed concentration of alcohol is 0.15 or more) and you have already been charged with a major traffic offence, or if there are significant aggravating features. Aggravating features include the following:

• There were passengers in the car (particularly if of a young age)
• The drink driving lead to an accident
• The drink driving led to an accident and somebody was injured

If either is the case, you may be running the risk of a custodial sentence and your solicitor will need to consider asking that a pre-sentence report be prepared. The report must be ordered by a magistrate, so you would first need to appear in court and your solicitor would request your matter be adjourned so that the report could be prepared. Once ordered, you would need to see a probation or parole officer. The magistrate would make an order that you see an officer closest to where you live.

A solicitor will also be able to enquire whether the court before which you are to appear makes available a traffic offender program. Not all local courts make provision for such a program. Again, you would need to have your matter adjourned so you could take part. The programs are run by organisations and individuals external to the court, but upon completion they can provide you with and attendance and achievement report, which your solicitor gives to the magistrate when you again appear before the court, this time to be sentenced.

If you are able to successfully complete a traffic offender program, this may assist in an application for what is called a 'section 10 dismissal'. You do not have to have participated in the course to apply for one of these, but it can certainly help. A 'section 10 dismissal' refers to the power of the magistrate hearing your case to find you guilty but to discharge you without recording a conviction. You will only be successful in your application for such a dismissal if your offence is relatively minor. Further, in many cases the magistrate will make the dismissal conditional upon you entering into a good behaviour bond. Ask your solicitor whether application for a dismissal would be appropriate in your case.

Other steps you can take to improve your chances include providing your solicitor with full and detailed instructions, and providing references from members of the community. References should be arranged well in advance of your court appearance. They should be from friends, colleagues or family, and refer to your character, work ethic, community involvement and achievements. They should be addressed to 'The presiding Magistrate' and should note that the referee is aware of the specific offence with which you are charged.

Instructions you should provide to your solicitor include the following:

• your age
• your martial status
• whether you have children
• the ages of any children you might have
• whether you are working and what you do
• how long you have been working
• how much you earn a week
• whether you rent or own your home
• how much you may in rent or on your mortgage a week
• why you were driving after drinking
• an assurance you will not drink in the future
• whether you have a work or personal need for a license (a license may be essential to your work, or you or a family member may have a disability or other health problems)
• any community courses you are undertaking, or any other community work or study

Finally, if you feel you have a drinking problem it is worth seeking treatment prior to your appearance at court. Alcoholics Anonymous (AA) or a doctor or other clinic can provide treatment and, with the exception of AA, a certificate evidencing the treatment you've undergone and any progress you've made can be provided. While AA will not provide you with documentation to this effect you should be able to get written references from other attendees confirming your attendance.

There are a few other things you should be aware of before you go to court. Firstly, make sure you do not drive to court. It sounds basic, but many a time a defendant has been stranded at court after being disqualified from driving. Secondly, make sure you do not drive during the period of your disqualification. You can be sentenced to 18 months gaol and fined up to $3,3000, as well as have your license disqualified for a minimum of an additional 12 months. Thirdly, if you will have difficulties paying any fine within 28 days, ensure you make a 'time to pay' arrangement with the court registry.

Appearing in Court to answer a criminal charge will be a difficult and stressful time. Not only will your future be on the line you will be dealing with a process that is complicated and confusing. Indeed, Court processes are alien to most people and legal language and etiquette will be unfamiliar. Of course, managing and arguing a legal case is difficult if not impossible for most people to do successfully. The reality is that in order to navigate yourself through this difficult time and emerge with the most just and fair result you will need the services of a qualified criminal law lawyer.

This article will take you through some of the processes that you will face in Court, both in the committal hearing and, generally, in the trial itself. This article is merely an introduction to many of the complicated issues that will emerge during a trial, so it is important to consult your criminal law specialist for more information.

Meeting with your Lawyer

After having been arrested and having retained the services of a criminal law specialist you will need to work with your legal representative on setting out your case. While the details of the circumstances of your arrest may be hard to remember the more information you are able to give your Lawyer, the better they will be able to build your case. Your Lawyer will also build your case by gaining witnesses, and character statements.

Your Lawyer will also be able to advise you on your prospects of success of gaining bail at the committal hearing and for a successful ‘not guilty’ plea at the trial (if you choose to plead this way).

The committal hearing

The committal hearing will be before a Magistrate in the Local Court and traditionally operated to filter out cases that had little or no merit. While the committal hearing is not the trial it is still an extremely important step in the process. At the committal hearing you cannot be judged guilty or not guilty but the Magistrate hearing your case will judge on the following matters:

• whether the charged person should be given bail or sent into custody to await trial; and
• whether there is a enough evidence for the charge to be proven at trial.

Generally, the power of the Magistrate to determine whether the charge shall proceed to trial is limited by the powers of the Department of public prosecutions who can choose to commence trial against a charged person without a ‘hearing’ of the charge. However, the determination by the Magistrate will carry considerable weight.

Also, at the committal hearing the evidence against you will be heard and you will have a chance to bring forth your own evidence to answer the charge. You will also be able to use this evidence to argue for bail and, later, in the trial. If the charge proceeds to a trial the committal hearing can aid your defence by providing a preview to the case that will be brought against you.

The trial

The trial itself will be a long and complicated process in which, like the committal hearing, all the evidence will be presented. However, unlike at the committal hearing, the Judge or Magistrate (and, less often, a jury) will make a decision on whether the charge has been proven against you. If it is found that the charge has been proven the Magistrate or Judge will then pass sentence.

Magistrates and Judges will also make a large number of smaller decisions throughout the trial as to which evidence may be admitted for consideration, and will ‘sum up’ the case for the jury (if there is one) in which they will guide the jury in the making of the decision. The actions of the judge will most commonly be the subject of appeals.

It is important to understand what your rights are in the trial. Simply put, the rights of the accused person are to have a fair trial. These will include:

• to not be judged by prejudicial evidence;
• the presumption of innocence;
• to be judged by an impartial judge;
• to be judged by a jury in certain types of trials; and
• given a chance to hear the evidence against you and to present your own.

In the trial, your lawyer will be a passionate defender of these rights and will be constantly vigilant to be sure that you are given every chance of gaining a fair and just outcome. If it emerges that there were defects in any of these things, and you were convicted because of them, your lawyer will be able to advise you on the options of appealing in a higher court.

protecting your future

It is important to remember that the Court (whether it is a Local Court, a District Court or the Supreme Court) will be making decisions that will affect your future and the future of those around you. During your trial, your legal representative will become an important figure in your life. putting your future in the hands of any one other than a qualified criminal law specialist is very risky and should be avoided.

If you are facing a criminal charge, don’t risk taking on the case yourself, leaving it to a legal aid duty lawyer or a lawyer without specialist criminal law experience. When your future hangs in the balance get the right advice from the criminal law specialists George Sten & Co.

Protecting yourself when Under Arrest

Being arrested will be a frightening, traumatic and confusing time for most people. While it is important to be cooperative with Police, it is also extremely important that you understand your rights and are prepared to be sure that they are respected and upheld.

Policing is an important and necessary part of everyday life. Indeed, we come into contact with Police Officers regularly, whether it is when Police are patrolling, undertaking traffic duties or taking part in community events. However, sometimes we can come into contact with Police in somewhat less amicable circumstances such as during the investigation of a crime, your involvement in an investigation or your own arrest.

This article will give a brief introduction to the process and powers of arrest, and what your rights are as an arrested person. Remember that getting the right advice from a specialist criminal lawyer can be crucial in getting through the arresting process with your livelihood intact.

It is important to remember that this is only an introduction and that for more information contact your specialist criminal lawyer.

Powers of Arrest

You may become a suspect in a crime by having been in the proximity of a crime that has been committed. Others may have seen or heard something which may bring you under suspicion from Police that you committed, or were involved in the commission of, an offence.

The powers of arrest are given to all Police Constables and allow them to arrest any person who they reasonably suspect of having committed an offence, or are about to commit an offence. This power is fundamental to the operation of the Police and of the law. In order to uphold the law, Police must have the ability to be able to detain and question those who they suspect have committed a crime.

You cannot be arrested to simply answer questions. If Police wish for you to help them with their investigation into a crime your cooperation is voluntary. However, while cooperation with these inquiries is generally advised, and you should insist on having a legal representative present during these interviews.

When arresting you the Police Constable involved should make it clear that they are in fact arresting you and direct you on how to comply with the order, such as accompanying them to a Police station. Police are allowed to use reasonable physical force such as holding and handcuffing to make you comply with the arrest. If you believe that unreasonable violence was used in your arrest your legal representative will be able to advise you of further action that can be taken.

You should be aware that resisting lawful arrest is a serious offence and you are best advised to comply with the arrest. Even if you are innocent of the offence, if you resist them Police may wish to charge you with resisting arrest if nothing else.

What happens after being Arrested?

The following will occur after having been arrested:

• Police will take you to a Police station or similar in order for investigative interviews to take place;
• Police will want to take basic details from you such as your name, address and occupation;
• Police will take fingerprints, and photographs to assist their investigations;
• The Police Custody Manager will inform you of your rights to contact an external person such as a relative, friend or legal representative;
• Police must inform you that you will be held for a period of four hours, with the possibility of a further extension, before being charged;
• Police will then undertake investigative interviews with you asking you questions about the crime they believe you were involved in; and
• Police may then choose to charge you with a crime before a Magistrate or release you.

What are my rights under Arrest?

While the powers of arrest are fundamental to the operation of the Police and their upholding of the law, equally as important are the countervailing civil rights of those who have been arrested. The Police are required by law to allow an arrested person the following rights:

• Police may not hold you for an unreasonable period without charge. Police are allowed to hold a person for four hours (without warrant) in order to undertake an investigation, or can apply for a warrant to hold a suspect for a further eight hours;
• You have the right to have a legal representative present during the interviews; and
• You have the right to not answer any specific questions, unless compelled by a specific law (such as offences regarding motor vehicles and the investigation of terrorist activities) to do so. Police must inform you that any answers you give may be used in evidence against you in court.

You are compelled to submit to fingerprinting and a personal search. Though, searches are limited to the following:

• Quick search of outer garments and bags; and
• Scanning with a metal detector.

Police cannot compel you to participate in identification parades that feature in many television programs, though witnesses may be asked to identify you from a collection of photographs.

Getting the right representation

Being arrested will be a traumatic experience, and it can be easy to feel intimidated and forget to ensure that your rights are protected. It is therefore important that you have the right legal representation present to ensure that you have all the right information and alternatives in mind.

If you arrested, ensure that you have the best chance of getting through the arresting process with your livelihood intact by getting the good legal guidance. Call the criminal law specialists George Sten & Co. for the right advice.

Section 19A of the Crimes Act NSW provides that a person who commits the crime of murder is liable to imprisonment for life. The elements of the crime that must be proven are:

• that the person accused caused the death of another either by an act or by omitting to act;



• intention to kill (this second element can include an intention to inflict grievous bodily harm, being bodily harm of a very serious nature. It can also include acting with a reckless indifference to human life, meaning that the accused foresaw the probability that death would result from his or her act or failure to act).

There is also such a thing as “felony murder”, which is a killing committed by the accused or by an accomplice, in an attempt to commit, or during or immediately after the commission of a crime punishable by penal servitude for up to 25 years, such as aggravated armed robbery. This means that people who are involved in committing extremely serious crimes, and in so doing unlawfully kill someone, can be convicted of murder regardless of whether or not they intended or foresaw the particular consequences of their actions.

What is the difference between murder and manslaughter?

If an unlawful killing does not fall into one of the categories above (which are generally referred to as “punishable homicide”), that act will be taken to be manslaughter. Essentially, the guilty act is the same, but the intent of the accused person is different.

There are two categories of manslaughter:

• Voluntary manslaughter - the Prosecution is required to prove the same mental state as is generally required for murder. However, the accused will only be convicted of voluntary manslaughter (instead of murder) where his or her mental state was affected in a way which is recognised by law to reduce culpability for the killing. For example where the accused was provoked.



• Involuntary manslaughter – this is an unlawful killing by a person who cannot be proven to have the requisite guilty mind for murder, but whose conduct falls short of the conduct expected of a reasonable person in similar circumstances.

A brief outline of possible defences

• Duress . Where an accused person claims to have been compelled by a threat to commit the offence charged.



• Self-defence – This defence is premised on the principle of “individual autonomy”. Individuals should have a basic right to repel an unlawful attack in situations where society cannot provide the protection wither against themselves or another. Self-defence is a justification. Society regards an accused's act of self-defence as rightful conduct.



• Intoxication – An individual may have been so intoxicated as to lack free and rational choice in her or his actions. Consequently, such a person should be acquitted, following the principle of individual autonomy with its insistence on sufficient choice or control over one's actions before criminal responsibility could lie.

In NSW, the position is that self-induced intoxication can only be taken into account (so as to affect criminal responsibility) where the crime involved is one involving specific intent (eg intent to kill) and where the accused did not resolve to perform that act prior to becoming intoxicated.

• Insanity – If at the time of committing the murder an accused was insane, that person cannot be convicted of the offence – the verdict is not guilty on the basis of insanity, but that person will still be reprimanded in the custody at the pleasure of the Governor.



• Automatism – The Prosecution has the burden of proving that the conduct of the accused was voluntary. Voluntariness is usually assumed unless some evidence can be shown to the contrary. If there is some evidence that the jury could rely upon, the assumption is displaced and the Crown bears the burden of negating the evidence beyond a reasonable doubt. They have to show that the accused had physical control over their own actions.

What is the punishment for murder?

A person convicted of murder is liable to imprisonment for life.

Murder trials are to be carried out in the Supreme Court, which has jurisdiction to hear the matter.

Why use a lawyer?

Given the gravity of the possibly punishment and the complexity of the elements and defences of the crime, it is always wise to have the assistance of a lawyer.

George Sten & Co's lawyers specialise in this area of criminal law and are able to provide sound legal advice from the time of arrest to the trial and we can also provide advice during parole or bail applications.

We charge $300 (plus GST) per hour.

Introduction

When it comes to drugs and the law, behaviour is grouped into a number categories. These relate to the type and amount of the substance in question, and the type of activity involved.

The other important distinction is between offences of possession and offences of dealing, or supply. The information below examines two particular aspects of drug law:

• Low level Drug Possession
• Low Level Dealing

Different types of drugs

Almost 250 plants and drugs are prohibited by law in NSW (the relevant Act is the Drug Misuse and Trafficking Act 1985 (NSW)). Some of these are referred to by their common names, such as heroin, cocaine and cannabis, while some have technical names that are almost un-pronounceable, such as 3,4-Methylenedioxymethylamphetamine (more commonly known as ecstasy).

Possession

"Possession" of any one of these almost 250 substances is an offence. As simple as this sounds, there are three technical legal questions that must be answered in order to determine possession.

• Was the substance a Prohibited Drug?
  This is answered by scientific analysis which concludes with the issuing of a certificate from the Analytical Laboratories operated by the government.
  
  
• Did the accused have physical control over the substance?
  This is not as simple as it sounds. A person does not need to have something in their pocket before possession can be proved. Possession can be de facto or actual, and can be joint or independent.
  
  
• Did the person have knowledge of the substance in their possession?
  As with all criminal offences, this mental element must also be satisfied.

The best summary of these elements comes from a famous legal judgement which states that possession arises where the substance is "to one's own knowledge, physically in one's custody, or under one's physical control".

Quantities of Drug and Severity of Offence

Offences relating to possession revolve around the quantity of drug:

• Small quantity
• Trafficable quantity
• Indictable quantity
• Commercial quantity
• Large commercial quantity

How much of a Drug makes the Offence Serious?

Indictable offences are serious (and dealt with in the District and Supreme courts), while summary offences are regarded as minor (and dealt with in the Local Court).

• Summary offences involve "small quantities" of Drugs.
• If a person is caught with either a "trafficable quantity" or an "indictable quantity", the police can elect to charge them with an indictable offence, but unless this election is made, these quantities are dealt with as summary offences.
• Commercial quantities always involve indictable offences.

Police Power to Stop and Search

Although this power is not specifically a "drug" matter, the fact is that Police powers of search have increased dramatically in recent years. Most people will be aware by now of the introduction of authorisation to use drug-sniffer dogs into public places. When these powers are added to the very basic elements of possession and quantity outlined above, the implications become grave for persons contemplating carrying a prohibited substance around in their pocket or back-pack.

Low Level Dealing

In legal terms, dealing is known as Supply. Courts generally regard supply very seriously, however, if the quantity of substance is equal to or less than the defined "small quantity" there are reduced penalties. Even with the reduced penalties, a person can still be sentenced to a maximum of 2 years in gaol, or receive a fine of up to $2200.

When does a small drug offence go to court?

If Police believe a small (or summary) offence has been committed, they can commence proceedings and this can happen in three ways.

• laying charges;
• issuing a Court Attendance Notice (CAN); or
• issuing a Field Court Attendance Notice (FCAN); and
• issuing a summons.

The exact details of each of these is not important. It is enough to say that if any of these options is employed against a person then that person will end up in front of a magistrate in the local court.

What about a Lawyer?

Clearly, if there are four different roads to Court, there are lots potholes and traps to be avoided. It is therefore crucial to seek good legal advice. If you receive a CAN, FCAN, summons or are charged, the very first thing to do is to get some legal advice. If you intend to plead not guilty, the importance of legal representation increases dramatically. The Courts can be confusing and daunting. A lawyer can be your guide to help gain the best possible outcome in the circumstances.

The outcome of all this will depend on the circumstances; obviously, the more severe an offence the more severe the penalty. The courts do not treat drug offences lightly, and nor should anyone who is ordered to appear in court accused of drug offences. Even the low level offences can result in gaol terms. Of course, there is also the choice between pleading guilty and not guilty, but even each of these will have different outcomes depending on circumstances.

So, if trouble arises: Stay calm, don't panic, call a lawyer and work carefully towards figuring out how you wish to proceed in the legal process.

Introduction

Home Invasion, Burglary and Theft cases are all property offences. These crimes are dealt with in the District Court. The severity of these crimes increases where there are aggravating circumstances. If charged with one of these offences you must attend court and hiring a lawyer to represent you is strongly recommended.

Types of Offences

Burglary and Home Invasion are covered by a number of offences in New South Wales. The most common is known as “break, enter and steal”. This means to break into a house or other dwelling (or enter without breaking).

Aggravating circumstances include that the alleged offender is armed with a weapon, uses violence on a person or deprives a person of his or her liberty. There are special types of offences where a person breaks into a house with the intent to commit murder or grievous bodily harm.

Theft in NSW is covered by the offence of larceny. This means to take away from the owner something with intent to permanently deprive the owner of the object. The property stolen can be anything as long as it is a physical entity. An intangible thing cannot be the subject of larceny in New South Wales, though may be the subject of another offence.

Court Process

The court process begins when you are sent a court attendance notice after release on bail. In the more serious cases you will be refused bail and be remanded in custody before your court appearance. You must then attend court to answer the charge made against you.

Criminal cases always begin in the Local Court and will be referred to the District Court if serious enough. They are first put before a committal hearing to decide whether there is enough evidence to make a case. If there is enough evidence an indictment will be prepared, which is a document listing the charges made against you. This will then be sent to the District Court. At this stage you must decide whether to plead guilty or not guilty. Seeking legal advice will help you make the best decision. If you plead guilty your case will be sent to the District Court for sentencing. If you plead not guilty it will be sent for trial.

Criminal trials in the District Court are heard before a Judge and a Jury. In some cases a Judge will hear the case alone, but this must be agreed upon by the Prosecutor and the accused. A Jury is a group comprised of members of the community who listen to all the evidence in a case and decide the outcome.

Outcomes

If a court finds you guilty, a number of possible punishments follow. The punishment will depend on the seriousness of the offence, your previous criminal record and various other factors. The Judge will decide on the sentence taking into account these factors.

For more serious offences, imprisonment or suspended sentences are the most common. The Judge will decide the most appropriate sentence in the circumstances from a range of sentences set down by the law. The least serious burglary offence carries a sentence of up to 10 years imprisonment. For larceny the sentence set by the law is imprisonment for up to 5 years. These are the upper limits which can be imposed by the court.

Why should I hire a lawyer?

If charged with a burglary/theft/home invasion crime you can choose to represent yourself or hire a lawyer to represent you. Arguing your own case can be difficult. It is important to put your best case forward in a criminal case as imprisonment is a potential outcome.

Hiring a lawyer with experience and expertise in the area will increase the chances of a successful outcome. A lawyer understands the court processes, the law and importantly your needs as a client. The process will be easier when the services of a lawyer are engaged.

Being arrested and charged with a criminal offence will be without doubt one of the most difficult and stressful times in your life; certainly not a time that you should go through alone. You will not only be dealing with an alien process that can be complicated and confusing, but also with the distressing prospect of heavy fines, community service orders or even imprisonment. These distressing outcomes will not only negatively impact upon your life but also on the lives of those you love and who depend upon you.

To best pass through this process with your livelihood intact you need the services of an experienced criminal law specialist helping, representing and advising you from the point of arrest, through the committal hearing, and the trial.

This article will set out some of what a specialist criminal lawyer will do through all stages of the criminal justice system (from arrest to trial) to help safeguard the future of you and your family by gaining a fair and just outcome.

Being Arrested

After being arrested your rights will include being able to have a lawyer represent you throughout all dealings with the Police who have arrested you and who are investigating the offence they believe you were involved in. The Police Custody Manager should inform you of this right when you arrive at the Police Station.

At this point your lawyer will be able advise you of your rights while under arrest, explain your alternatives and the nature of the criminal law process you will go through. Your lawyer will also be able to ensure that your rights are not violated and that the Police proceed with their interviews with you in a lawful manner.

The Committal Hearing or Mention

If, after interviewing you, the Police believe they have enough evidence to charge you with an offence your lawyer will be able to make a bail application for you and represent you in the ‘committal hearing' or ‘mention' (depending on whether the offence was ‘indictable' or ‘summary'). The hearing is held before a Magistrate in the Local Court and is the next step in the criminal law process.

At this hearing you will hear the charges that are being brought against you and you will be asked to plead. Evidence will be presented that will present a ‘preview' to what may happen in a full trial. At the committal hearing your lawyer will be able to bring forward evidence in order to answer the charge, which will also be used to argue for you to be given bail.

For some summary offences such as drink driving this hearing will operate more as a chance to hear the charges and move to the next step, rather than hold a preview of the case. In legal tradition the committal hearing was intended to filter out criminal cases that have little evidence to back them up and to enable those that have merit to continue to the next step; at the committal hearing the Magistrate therefore must determine whether:

• the charged person should be given bail or sent into custody to await trial; and
• there is a enough evidence for the charge to be proven at trial.

While the Magistrate's decision on this question will most often be final, you should be aware that the Department of Public Prosecutions is empowered (in certain circumstances) to bring a person to trial without the charge being heard at a committal hearing.

For charges being ‘mentioned' by the Court, the accused will be given the chance to plead. If they plead ‘guilty' then a Magistrate will give sentence at a later stage. If the charged person pleads ‘not guilty' then the case will go to a contested hearing.

The Trial

If the Magistrate determines that there is enough evidence for the charge to be proven at trial then you will either be bailed to face a trial later or be held in custody until the trial proceeds. The trial will most often take place before a Judge and less often before a Judge and a jury.

During the trial the Prosecution will present evidence that they believe prove your guilt and your lawyer will present evidence that rebuts this. Where the evidence is in the form of statements from witnesses, your lawyer will have the chance to ‘cross-examine' and challenge the interpretation of events as given by particular witnesses.

Apart from ruling on the final outcome of the trial, the Judge will make many smaller decisions on what evidence may be presented and, if there is a jury, will ‘sum up' the case for the jury, providing them guidance on how they should make their decision. During the trial your lawyer will be the defender of your rights in the trial and will be constantly vigilant of them to be sure that you are given every chance of gaining a fair outcome.

When the judgment is handed down and it is against your interests, your lawyer will be able to advise on the best ways of appealing the decision in a higher Court.

Do I really need a lawyer?

The art of successfully arguing a legal case in Court is a very difficult skill to learn. Specialist criminal lawyers spend years learning about the law and practicing to build their skills; in order to navigate yourself through this difficult time and emerge with the most just and fair result you will need the services of such a qualified criminal law specialist.

During your passage through the criminal justice system your criminal law specialist lawyer will become an indispensable champion for your rights, keeping you informed and ensuring that you receive a just and fair outcome.

If you are facing criminal charges, don't risk leaving your future to a duty solicitor or a lawyer without specialist criminal law experience. When you need to ensure that you get the best and fairest outcome from the criminal justice system, call the specialists at George Sten & Co. who know the system the best. Indeed, you should not think of whether you can afford to have the services of criminal law specialist lawyers, but whether you can afford not to have them; at $300 for an hour consultation with a specialist at George Sten & Co., it could be the very best money you have ever spent.