While most blitzes are set up with the intention of alcohol and drug testing – because driving under the influence is a major killer on our roads – police will conduct a thorough check if you are pulled over and although you might pass the drug or alcohol tests, you can also be charged with other offences.

If pulled over by Poilce, what information do I have to provide?

If you are stopped by police, then you will be asked your name and you will be asked to provide your driver’s license. If you do not have your license on you, then you may be issued with an immediate $110 fine.

What happens during a roadside alcohol or drug test?

If you are requested to undertake either a roadside breath test (RBT) which detects alcohol consumption, or a mobile drug test – a saliva swab test – which detects (at the very least) cannabis, drugs in the amphetamine-class, and cocaine, police are likely to check your license details and run your information through the police database.

Police may also look over your vehicle and you could be charged for anything that is not deemed roadworthy, for example, for not having your phone stored in a secure holder that meets Australian standards, for worn tyres or broken lights. You can be given a fine of $448 in New South Wales if your pet is in the vehicle with you and is considered to be a distraction or not safely restrained.

If you have outstanding driving or traffic offences, if your car is not registered or if you have any other criminal charges against you, then police will take appropriate action in relation to these offences. You are not required by law to answer any questions asked by police except those which confirm your identity – name, address, birthdate etc.

Police can undertake a search of your car and belongings

In New South Wales police do have the power to search your car or your phone, handbag or other belongings without a search warrant if they have a ‘reasonable suspicion’ that you may be involved in criminal activity.

‘Reasonable suspicion’ has a fairly vague definition, it can be simply that a police officer considers that you are acting suspiciously.

It is always recommended that you cooperate with police, but under the Police Powers and Responsibilities Act police have a range of obligations and must also treat you respectfully, and fairly.

Testing positive to a roadside breath test or drug test

If you test positive for a roadside drug or alcohol test, then you will be taken to the roadside testing van or to the local police station to provide another sample. Usually, you’ll be banned from driving for 24 hours. All samples are sent to a laboratory for analysis and if yours comes back positive then tough penalties apply.

Drink and drug driving penalties depend on the amount of drugs or alcohol in your system, the type of drugs detected, and also whether or not it is a first offence.

In 2021, the New South Wales Government passed new laws that created a new combined drug and alcohol driving offence. The penalties for this offence also depend on the amount of alcohol and drugs detected in the driver’s blood stream, and whether or not the offence is a first or subsequent offence.

Do you need to appear in a local court for a traffic offence or a positive roadside alcohol or drug test?

The penalties are severe including jail time, license disqualification, fines and the imposition of interlock devices fitted to their car.

Courts take drink driving and drug driving very seriously. If you have been charged with an offence, you need professional legal advice to help you understand the charges and penalties and to represent your case in court. Contact The Local Court Lawyers for experienced help and guidance.

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

We service NSW, but specifically the area from Coffs Harbour to Byron Bay, Ballina, Mullumbimby and Tweed Heads regions on the Far North NSW Coast.

To learn more about The Local Court Lawyers, see our What We Do page.

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The post What are your rights when pulled over by police? appeared first on Local Court Lawyers.

It’s no secret that drink driving continues to be a prominent road safety issue across New South Wales, despite the multi-millions of dollars that the State Government pours into education and law enforcement year after year.

Every year hundreds of people die, or are seriously injured in road accidents caused by a driver who had been drinking. Sadly, research shows many of these tend to happen in regional areas – often because there are limited options when it comes to taxis and ubers, buses and other public transport, which makes people tend to run the risk.

Just to be clear though, this isn’t an adequate defence if you get caught.

Another interesting fact that the research shows is that most people don’t really know how many alcoholic drinks they can actually have before driving to remain cognisant behind the wheel, and within the legal limit.

There are also plenty of studies which show that the ‘standard drink’ measurements which are often used as a guide, aren’t fail-proof anyway. Size, weight, gender, whether you’ve consumed food and water, your general health and wellbeing and what type of alcohol you were drinking can determine how alcohol is absorbed into your blood steam, affecting your body and brain, and whether you might test over the BAC (Blood Alcohol Concentration) limit if you’re stopped on the side of the road.

What are the limits?

For the record, in New South Wales, if you hold a full drivers licence it is illegal for your BAC to be over 0.05. If you hold a learners or provisional licence you must have a BAC level of 0.00.

Drink Driving penalties are severe in New South Wales. Maximum penalties for drink driving include heavy fines, potentially prison time and suspension of your licence. If you are a repeat offender, meaning you have previously been convicted of drink or drug driving, then the penalties are much harsher for subsequent offences.

If you have an accident which has caused death or injury and you are ‘at fault’, or you are caught driving dangerously, you can be charged with additional offences, including, but not limited to, negligent and dangerous driving.

Drug Driving

In June 2021, new offences for combined drug and drink driving were introduced in New South Wales as a result of numerous studies which show that the combined use of illicit drugs and alcohol increases the risk of a fatal crash by 23 times.

Roadside BreathTests (RBTs) can test for both alcohol and drugs. If you fail to pull over for an RBT when directed to, then you can have your license suspended on the spot. You can also be arrested.

In NSW, police have the power to:

• Stop drivers at random to test for alcohol
• Arrest drivers who test over the legal limit
• Require a driver to take a sobriety test in certain circumstances
• Breath test any driver or supervising driver involved in a crash

Your rights when stopped by Police

You must answer your name and address, and you must show identification to verify those details. If you refuse to take an RBT test, you can be arrested.

If you’re stopped by Police, it’s  important to remember that anything you say or do can be used against you in a court of law. Police wear body cameras for this purpose – so interactions with the general public can be recorded.

You can refuse to answer further questions by police, and request a lawyer to be present, but remember that if you don’t cooperate with police you can be charged with other offences, including obstructing a police officer in the line of duty.

The New South Wales Crimes Act 1900, Section 546C states that:

“Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, ($110 each) or both.”

Cooperate with Police

Drink Driving and Drug Driving offences can be dealt with fairly swiftly and smoothly by the courts if they are straightforward and there are no complicating circumstances or additional charges.

And of course, people do make mistakes from time to time. But Police have been conducting RBTs since the early 1980s, and conduct millions of these tests every year. More than that though, we all know the dangers.

It’s important to be responsible. So, don’t drink alcohol, leave the car at home, or make alternative arrangements, like spending the night on a mate’s sofa.  Also make sure you know the rules about driving and mobile phones, and don’t forget that during the holiday season double demerits are in force.

If you are charged with a drink driving or drug driving offence, get professional legal advice.

This post is informative only. It is not legal advice.
If you have a specific legal matter you’d like to discuss, please contact us.

We service NSW, but specifically the area from Coffs Harbour to Byron Bay, Ballina, Mullumbimby and Tweed Heads regions on the Far North NSW Coast.

The post Driving Under The Influence (DUI) appeared first on Local Court Lawyers.

According to the report, out of the 16,393 private law practices registered across Australia, sole practitioners make up 82 per cent.

One of the key drivers behind this upward trend is the increasing number of females entering the legal profession. Figures published in June this year show there are now 44,581 women in law in Australia and 39,052 men. Over the past decade, two-thirds (67 per cent) of those entering the profession have been women, while just 26 per cent of those becoming lawyers have been men.

For many women, the traditional career path in a mid-size or large law firm, has been pretty demanding, making it very difficult to balance career and family. Firms are changing their out-dated structures, but for many, rising to the top still requires long hours and heavy caseloads.

And it’s for this reason predominantly, that women are starting their own practices in droves — because working by themselves gives them much more flexibility to manage their own hours.

Regional coastal and rural areas benefit

It should be noted that regional Australia has really benefited from the rise in solo practitioners too, with talented lawyers embarking on sea-changes and tree-changes, moving out of the big cities and bringing their expertise with them.

Technology, of course, makes this all possible. Lawyers can still stay in touch with peer groups if they want to peer review cases, or simply obtain a second opinion. A lot of seminars and webinars which keep practitioners up to date with changes to the law, or other information that’s important to the profession as a whole, are also available online.

For clients seeking legal advice, there are significant advantages of this increase in solo practitioners.

Firstly, it makes access to legal advice easier. Whether clients are looking for an employment lawyer, a family lawyer, a criminal lawyer or a specialist local court lawyer to represent them in court, clients can easily search the internet and find what they need quickly and easily.

Secondly, generally speaking, the person who answers the phone when you make an initial inquiry will be the lawyer actually working on the case, which speeds up the process in many instances too (where there isn’t a reliance on other factors, such as dates set by the courts). With fewer people involved in the workflow process, clients benefit from a streamlined service.

More choices when it comes to getting the right legal advice

The final benefit for clients is financial. Because these small practices are cheaper to run than the big firms (they have lower overheads), savings can be passed onto clients via way of lower fees. Increasing competition means that service fees become standardised across practice areas.

In many cases, lawyers are beginning to offer fixed fees for straight forward legal matters, but they’re also in a better position to negotiate if they choose to and the circumstances require it.

It has to be said that although cost shouldn’t be a factor when you’re accessing specialist advice of any kind (medical, technical, legal) most lawyers are aware that it is a consideration for many who find themselves inadvertently in trouble with the law or suddenly needing legal advice.

While it is possible to represent yourself in local court, and there is a proliferation of resources available for free on the internet including template contracts and agreements, the right legal advice for your personal circumstances should never be under-rated.

There are plenty of people who have tried to go it alone, only to end up realising they did need legal advice after all.

The law, no matter what area: commercial, criminal, copyright etc – is incredibly complex – to turn your back on professional knowledge and expertise can be to do so at your peril.

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us. 

If you have a specific legal matter you’d like to discuss, please contact us. We service the area from Coffs Harbour to Byron Bay, Ballina and Tweed Heads regions on the Far North NSW Coast. We also represent children and juveniles in the Children’s Court as well.

To learn more about The Local Court Lawyers, see our What We Do page.

The post The rise of solo legal practitioners … and what that means for clients. appeared first on Local Court Lawyers.

Drink Driving Charges

Tweed Heads is a picturesque border town that not only struggles with the biannual daylight savings shifts in time but residents and holidays goers are often in the dilemma of considerably different drink driving charges and convictions between NSW and Queensland.

In New South Wales, it’s pretty straight forward:  drink driving IS a criminal offence, which means that you will get a criminal record if you are convicted.  As well as resulting in a criminal record, being convicted of drink driving means that you will be disqualified from driving all vehicles for a lengthy period, face a fine, and for some drink-drive offences, you could be required to have an interlock device fitted, and/or could face prison in certain circumstances.

Drink driving, also known as a ‘PCA offence’ (Prescribed Concentration of Alcohol offences), is the most common offence in NSW Local Courts, accounting for around 20% of all cases.

Low range drink driving (LR PCA) is where a driver has a blood alcohol concentration (BAC) of between 0.05 and 0.079 – remarkably that level is actually within legal driving limits in other parts of the world, including the UK and parts of America.

Currently in NSW, offenders of LR PAC are immediately suspended for 3 months (if it’s your first PCA offence within 5 yrs) and a court appearance is not necessary.

Mid range PCA (.08 – .14 in NSW) and high range PCA (above .15) offences are significantly more serious criminal offences and require the driver to attend at court to be sentenced.  This is often when drivers coming before NSW courts want a lawyer – to try and minimise their sentence, particularly the fine and the period of disqualification. Disqualifications range from 6months to indefinitely (as determined by the Magistrate), and interlock devices need to be fitted for periods in excess of 12 months (depending on the offending), and the driver is then only licensed to drive vehicles that have an interlock device fitted to them.  Fines can also greatly vary – from several hundred, to several thousand, dollars.

P and L plate drivers have a limit of zero or .02 BAC limit, so they face different penalties from the above.

In Queensland the levels are slightly different to determine low, mid- and high- range PCA. (Putting aside L and P plater drivers in the information below) looking at full license holders:

To exceed the General Alcohol limit in Queensland is to have a BAC of over .05 but less than .1

Mid range is a BAC of equal to, or more than .1

High range in Queensland is a BAC reading of equal to, or more than .15.

The sentencing regime, fines, periods of disqualification and the rules around whether or not a conviction is recorded, are a little different in Queensland.  You can call us for specific advice.

In both New South Wales and Queensland, failing or refusing to provide a specimen of breath is also a serious offence and attracts penalties not unlike High Range PCA offences.

Having a criminal record is a big deal – you should be aware of all the implications of this.  You are legally required to inform certain individuals of a criminal record, including employers. You may also be asked to show your criminal record when applying for a job involving children, seeking insurance cover or obtaining an overseas visa.

Some wish to attend Court unrepresented and simply plead guilty, accepting the Magistrate’s decision which is likely to result in a conviction.  Drink driving is treated extremely seriously by the courts and even a plea of guilty should be accompanied by an acceptance of responsibility and a demonstration to the Magistrate that you have taken steps to make amends and are unlikely to reoffend.  Sentencing submissions should be made, that include information about factors such as the manner of driving, how you came to police attention, number of passengers, distance being driven, circumstances and reasons for driving, the type of vehicle, the road conditions, how co-operative you were with police, your traffic history, your criminal record, if you’ve ever been charged with a PCA offence in the past (or other serious offences), your ability to pay a fine, the programs you have undertaken to show remorse,….and many other factors that the court considers.

Professional advice from a solicitor at The Local Court Lawyers (such as traffic programmes, ideal and preferred references), as well as that experienced solicitor’s persuasive submissions to the court on your behalf, goes a long way to improving your chances of minimising your sentence or avoiding a conviction altogether.

In rare cases, a review of your case might uncover an inaccurate reading or a legal defence that you may have.

What should I do if I am ordered to appear at Court?

Most importantly, should you receive a notice to attend Court whether NSW or Queensland, do not leave it too late to seek legal advice and/or representation.

A good result, in ANY court matter, is all about the preparation – and the more time you have, the better prepared you will be. Ideally 3 weeks prior to your court attendance you should find a lawyer, if that’s what you plan to do. If you plan to self-represent, start getting organized 3 weeks prior.

This is not legal advice, it is merely a resource to give you some guidance and general assistance. Where we have used an ‘*’ above, you should assume there is more information required by your lawyer to determine if you fall in that category. 

If you need a Lawyer and want us to represent you, the Local Court Lawyers are experts in all local court matters, Contact us for more information.

We come to you, anywhere in NSW, but our head office is on the north coast:  MacLean, Ballina, Byron Bay, Mullumbimby, Murwillumbah or Tweed Heads local courts.

See the Traffic Offences articles at the Local Court Lawyers

The post Tweed Heads Drink Driving Charges appeared first on Local Court Lawyers.

A high-visibility police operation took place at the four-day Byron Bay festival – Splendour In The Grass – with 350 drug detections and a “record ammount” of more than 3kg of illicit drugs seized, predominantly MDMA tablets and to a lesser extent cannabis and cocaine. Approximately 200 people charged with drug offences.  Drug possession and drug supply comprise most of the offending. “This year, a record amount of prohibited drugs was seized at Splendour in the Grass,” Tweed/Byron Police District Commander Superintendent Dave Roptell said.

Byron Bay Local Court has now added extra sitting days to handle the extra workload posed by visitors caught drink driving or those caught in possession of drugs in Byron Bay and the festival.

Tweed Heads Local Court also sees Splendour In The Grass related charges

A 21-year-old man was arrested after he was allegedly caught with more 220 MDMA tablets, cocaine and cannabis inside a car at the site’s campgrounds. He was charged with supplying a prohibited drug greater than an indictable quantity and possessing a prohibited drug. He was granted conditional bail to appear at Tweed Heads Local Court on Monday August 5.

Record crowds at Splendour 2019

Festival crowds were also at a record high this year, with 42,000 people attending the event up from 37,000 in 2018. NSW Health said there were no critical patients transported at the festival.

If you find yourself in the unenviable position of being ordered to appear in the Byron Bay Local Court or Tweed Heads Local Court for drink-driving, any drug related matter, or any other local court matter…. You can call The Local Court Lawyers (click here).

Check out our website for a raft of information for local court appearances.

The Local Court Lawyers, working in criminal and traffic matters in the local courts in Byron Bay, Ballina, Tweed Heads, Lismore, and all round the north coast of NSW.

The post Splendour In The Grass – Local Court Appearances appeared first on Local Court Lawyers.

PENALTIES FOR LOW RANGE DRINK DRIVING

(s110(1) of the Road Transport Act)

THESE PENALTIES APPLY UNLESS YOU TAKE THE MATTER BEFORE THE COURT where you may argue that no conviction (no loss of license and no fine) is the appropriate penalty, once the Magistrate understands (i) your personal circumstances, (ii)  the circumstances of how you came to commit the offence (and the objective seriousness of these circumstances) and (iii) sees your prior traffic and criminal history,

PENALTIES FOR DRIVING WITH A TRACE OF CANNABIS, SPEED/ICE, MDMA/ECSTASY, OR COCAINE IN ORAL FLUID, BLOOD OR URINE

(s111 of the Road Transport Act)

THESE PENALTIES APPLY UNLESS YOU TAKE THE MATTER BEFORE THE COURT where you may argue that no conviction (no loss of license and no fine) is the appropriate penalty, once the Magistrate understands (i) your personal circumstances, (ii)  the circumstances of how you came to commit the offence (and the objective seriousness of these circumstances) and (iii) sees your prior traffic and criminal history

If you are facing a local court appearance, contact us for advice.

The post NEW LAWS: From 20th May 2019 appeared first on Local Court Lawyers.

In 2017, there were 16,418 people who faced a local court in NSW for a drink-driving offence. That’s low-, mid- and high-range drink driving offences, which all fall under s110 of the Road Transport Act.  For anyone charged from 3 December 2017, the penalties for mid-range (1^st offence) drink drivers now includes a mandatory interlock order (or interlock exemption and very long disqualification period).

Assaults are another common charge in a NSW local court.  Common assaults (which tend to be at the lower end of the scale in terms of damage caused to the victim, and the resultant sentence), assault occasioning actual bodily harm (that typically might involve punches and scratches), and then the very serious assault occasioning grievous bodily harm (that might result in bleeding, broken bones, etc), combined, comprised 12,951 matters in the NSW local courts in 2017.

Also making the list, reflecting the need for a license or merely the temptation to drive (despite not being permitted to do so), is drive while disqualified or suspended.  In 2017 there were 12,461 matters before the NSW local courts for these offences, making this a highly prevalent form of offending.  Regional areas, like the Byron and Ballina areas, are rife with this type of offending.

For drug possession, 10,889 faced a local court, in 2017, and this charge canvasses all manner of drugs, and is particularly popular in Byron Bay at Splendour in the Grass, Falls Festival and Bluesfest.  Please don’t think drug possession on the north coast of NSW is limited to these festivals – Byron Bay and Ballina shires frequently have drug-sniffing dog squads patrolling the shops and bars, and it’s common for the dogs to do a round or two of many pubs and clubs in town.  Drug possession is generally a charge under s10 of the Drugs Misuse and Trafficking Act.

Also in 2017, 7,399 people faced the local court for a drug-driving offence.  Virtually all of these people were UNimpaired by drugs at the time they were detected.  The police mobile random drug testing kits will return a positive result for even a small trace of (some) drugs – such as cannabis, meth, MDMA, ecstasy, cocaine, to name a few……. – that are detected in an oral fluid sample of a driver.  The charge falls under s111 (or, to a lesser extent, s112) of the Road Transport Act in NSW and involves a roadside saliva test, a further test on the Dragar machine, and then a final analysis of the oral fluid sample is sent to police forensic testing (FASS), in Sydney.  It can easily take 4-8 weeks from the initial roadside result, until the driver has to face court.

The penalties for these offences vary, depending on many factors, in addition to the maximum penalties set-out in the legislation.  Matters like the defendant’s criminal or driving history, subjective characteristics that might be reflected in character or work references, circumstances surrounding the offending conduct and whether or not there were any mitigating factors, the objective seriousness of the offence (which also takes into account the circumstances in which it was committed), history of similar conduct and/or history of compliance with court orders, need for a license, ability to pay a fine, demonstrated remorse, any aggravating factors, and importantly the law and prevailing range of penalties.

If you need legal advice, please call or email us from the “contact us” page of the website or use FaceBook messenger.  This document is not intended to provide legal advice.  Hopefully it’s been informative, or maybe even be interesting – but it’s not legal advice.

The post The top 5 categories of offences in the NSW local courts, in 2017 appeared first on Local Court Lawyers.

1. Don’t leave it too late to decide if you want the services of a lawyer

A good result, in ANY court matter, is all about the preparation – and the more time you have, the better prepared you will be.  For example, you will need great references that support your submissions; and to complete a course before your court attendance. Ideally 3 weeks prior to your court attendance you should find a lawyer, if that’s what you plan to do. If you plan to self-represent, start getting organized 3 weeks prior.  Start now by accessing our Guide to writing References for Court: https://www.localcourtlawyers.com.au/write-reference-court/

2. Decide if you are going to plead guilty or not guilty

Drink– and drug- driving offences are “strict liability offences”, so generally available defences, that involve intent (on the part of the defendant), don’t assist in a not-guilty plea for drink- and drug driving offences.  The police need only prove that you committed the act of drink- or drug-driving.  If you plan to plead not-guilty I suggest you get legal advice.  Most people plead guilty to these offences.  Importantly, the offence we colloquially call “drug-driving” generally refers to s111of the Road Transport Act (in NSW) – being drive with a trace of the drug in an oral fluid sample.  The allegation by police is not that you were impaired by drugs at the time of driving.  The allegation (and charge) is that you had a trace of the relevant drug in your saliva, when you were driving.  You may have ingested the drug days ago.  Get the Police Facts (they will send these to you a week or so before your court date, or your lawyer can access the Police Facts at any time).

3. If you are pleading guilty, you’ll need references

Generally, 3 is a good idea.  An employer’s reference is valuable if your license is required for your job.  As well as a long-term friend, who can write an abundance about your general character.  A third reference might be written by a person in your community with ‘good standing’ and who knows you well e.g. a priest, doctor, elder, former Judge or police officer – someone like that.

4. Attend the Traffic Offenders Intervention Program (“TOIP”) and complete this course, before court.

It will usually require attendance on at least one day, and an online component.  The programs offered by SAVE and Roadsense are prevalent in the Byron, Ballina, Lismore, Grafton and Tweed areas.

5. Prepare your sentencing submissions

Be clear.  Have a plan of exactly what you want to explain to the Magistrate.  Write it down before court.  Things like: why you were driving, how far, where, how many people in the car, why you need a license, your ability to pay a fine, any mitigating factors, a bit about your character (which will be mirrored in the references you give to the court) and give context to any previous driving offences and any criminal history you have.

If you are self-representing,

I suggest you attend a “list day” in court, before your court attendance date, so you can see the procedure, and what you will be expected to do on the day.  And make sure you have read the entire Police Facts before court, because the moment you enter a guilty plea, the Police Facts are given to the Magistrate (and this is your chance to hand-up your references and to check the Court is aware that you completed the TOIP course).

This is not legal advice, it is merely a resource to give you some guidance and general assistance.

If you need a Lawyer and want us to represent you, the Local Court Lawyers are experts in all local court matters. We come to you, anywhere in NSW, but our head office is on the north coast: Coffs Harbour, Grafton, MacLean, Ballina, Byron Bay, Mullumbimby, Murwillumbah or Tweed local courts.

See What We Do as Local Court Lawyers

The post 5 Things To Do if you’ve been charged with drink or drug driving offence appeared first on Local Court Lawyers.

SPLENDOUR IN THE GRASS legal hotline: 0413 310 008

If you’re charged with an offence at Splendour In The Grass, you’ll likely be appearing in the Byron Bay Local Court on August 21 or 22. THE LOCAL COURT LAWYERS – we are experts in all local court matters, because that’s all we do – Call our Splendour In The Grass legal hotline.

FACTS TO KNOW:

If you’re asked by police then give them your name and address.  (If you’re under 18, tell them your age as well).  That’s all you should say until you call us.

24/7 Splendour/Byron legal hotline: 0413 310 008

Police have the right to search if they have ‘reasonable suspicion’ you may have something unlawful in your possession.  If a police dog sits next to you, if you smell or look drug-affected, or if you look like you’re trying to hide something – they’re all examples of ‘reasonable suspicion’.

There’s no need to admit or deny anything at this stage.  Be pleasant and co-operative, but don’t volunteer information.

If you are charged, you’ll generally be issued with a Field CAN – a court attendance notice.  There’s not much you can do about it at this stage, so go and have fun and call us on Monday (or sooner, if it’s stressing you and you want to get some advice asap).

If you are arrested and taken to the police station, please CALL US:

24/7 Splendour/Byron legal help: 0413 310 008

We recommend you don’t agree to any police interviews until you speak to a lawyer.  (It’s very rare that you should agree to a police interview, so call and talk before you make the decision. Please.)  This is free advice, for your benefit.  Every word you utter to police may be used against you in court, or help the police to make a case against you or a mate.

he**@*******************om.au  //  Ph: 0413 310 008 or see how What We Do and how we can help you (click here)

For General Tips when going to Splendour In The Grass see:

https://www.splendourinthegrass.com/event-info/hot-tips-and-fast-facts/

Banned Items (read this as the security at Splendour WILL check)

https://www.splendourinthegrass.com/event-info/banned-items

The post Splendour In The Grass Legal Hotline appeared first on Local Court Lawyers.

What an odd day: in the morning we defended a guy charged with breaching an ADVO (an Apprehended Domestic Violence Order), and inflicting assault (occasioning actual bodily arm), on his partner.  That same evening I was asked to talk at a public forum hosted by AA, about ‘alcoholism and the law’.

It was a day that again proved two things to me.  The obvious: that a few hours of drinking changes people for the worst; and the less obvious – the law treats recreational drinkers and alcoholics exactly the same, despite the claim that alcoholism is a disease.

What started as a happy couple having a few afternoon drinks at the pub, a meal, hanging with some friends, enjoying a band, and being happy in each others company; turned into a disagreement, that escalated into an argument, that got louder and louder, and ended with a shove, push, punch, kicks, and hospitalisation for bruising, a broken arm, and head injuries requiring stiches.

And the guy?  The perpetrator of the violence?  He was also breaching an AVO at the time of the assault, because he’s done it before to this woman.  Here’s the issue that raised my question: he’s an alcoholic.  It didn’t help his case – “hey your honour I have a disease – it’s alcoholism, so it wasn’t my fault. At the time I laid into her I was consumed by the ravages of the disease, it affected my mind, my ability to control my actions, and now I’m sorry.”   Nope.  If that approach were to be accepted by the courts, it would go some way to making ‘being drunk’ a partial defence – and who, in the community, could accept that a person who beats the crap out of another, is partially excused because they were drunk?

And there’s the issue, right there: if alcoholism is a disease, this accused was stricken with a mental health issue at the time of committing the offence.  But in this situation, the accused is no more entitled to use their (involuntary) mental health condition in their defence, than a recreational drinker who got out-of-control one night and laid one punch (too many), and asserts ‘being (voluntarily) drunk’, as a defence.

Is alcoholism a disease?  The public forum promoting AA (at which I spoke that day) had several guest speakers, and there was a unanimous view that alcoholism is a disease – a curable disease – but a disease, nonetheless.  If it’s a disease, should the law treat alcoholism as a mental health issue?  Should courts allow alcoholism to be raised as a complete or partial defence?  Should courts allow evidence of the ‘disease’ of alcoholism to be admitted as a mitigating factor?  Should courts sentence defendants on the basis they have a mental health issue – like any other mental health issue?  Should sentencing reflect that, to some extent, the alcoholic-accused lacked culpability for their actions because they have a disease that affects their mind?  Because the law doesn’t mandate differentiating sentences for alcoholics, as distinct from recreational drinkers – to most Magistrates the accused was drunk, and this is a voluntary action, and they are sentenced on that basis.  In my experience, being ‘out of it’ on anything doesn’t usually assist in submissions to reduce a sentence.

Is that fair? If alcoholism is a disease that affects mental cognition, should alcoholics be treated differently, and their deteriorating mental health allowed as a defence, or reduce their sentence?

People who have never experienced depression, often see sufferers as ‘unappreciative whingers’ (they’ll say well-meaning, but stupid, things like: “look at all you have? A family, job, home, money ….. what have you got to be depressed about?”); similarly people who have never experienced acute anxiety, often relegate the inaction or paralysis of an anxious people to “laziness”; so too the non- and recreational drinker sees the (diseased?) alcoholic as self-indulgent, and lacking self-control, choosing to get drunk instead of being productive.  Is that a fair characterisation of an alcoholic, if the AA members and speakers are right, and alcoholism is a disease?

Sentencing and Alcoholism:

Having said that I acknowledge that some sentencing options available to Judges and Magistrates (and often masterfully applied by them at appropriate occasions), is to Order participation in an intervention program as part of the sentence.  For example, a bond or bail condition that the accused attend at alcohol counselling, detox or rehab.  In this situation, the Magistrate or Judge is working with the options (and understanding) they have to help the struggling accused person in front of them, and to protect the community.  But this is sentencing.  Not a defence.

Alcoholism and s32:

S32 is a short-hand reference to s32 of the Mental Health (Forensic Procedures) Act, which allows the courts to hear an application that someone’s extreme mental health disorder (such as extreme depression, schizophrenia, bi polar, etc) is so severe, and contributed so greatly to the offence, that the courts should in effect remove the accused from the criminal justice system, and instead have the accused dealt with under the mental health regimes in place.  Often alcoholism is cited in these cases as a part of a mental health condition (for example, cases where extreme depression has seen the accused self-medicate with alcohol), but in these instances alcohol is generally seen as exacerbating a pre-existing condition, not a mental health condition, a disease, in-and-of itself.  (An analysis of s32 is beyond the scope of this paper, but it would be remiss to ignore the existence of this section.)

Conclusion:

I don’t know if alcoholism is a disease.  I’m not sure if the AA speakers are right. But if alcoholism is a disease, should the law recognise alcoholism as a partial defence, or as a mitigating feature of the requisite mens rea (mental/intentional element) of an offence? (instead of an aggravating feature, as it tends to do now)?  If alcoholism is a disease, should recreational drinkers be treated differently from alcoholics?

This is NOT legal advice. I repeat – this is NOT legal advice. We write lots of blogs at the Local Court Lawyers and this one in particular is an opinion piece.  Maybe it will start a conversation that needs to be had.   Maybe it will help answer a question an accused or victim is asking themselves.  But it is NOT legal advice.  Every situation, person, set of circumstances, is unique, and the courts recognise this.

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