Frequently Asked Questions About Criminal Law

It is important to obtain legal advice for any criminal offence. Criminal law is a complex area of the law that should be handled by a Lawyer with experience in the area. Criminal Lawyers understand the elements of each offence (what the Police will need to prove to secure a conviction) and can provide advice as to your options. Even if you plead guilty to the offence, Criminal Lawyers are also experienced in determining whether there are mitigating factors that should be brought to the Court’s attention and present your matter to the Court so that all relevant factors are taken into consideration.

Making inadvertent admissions when participating in an interview with Police can mean the difference between being charged with an offence or not. Obtaining independent legal advice prior to speaking with Police could also mean the difference between a defence being available, or not. Even if you plead guilty and appear before the Court for sentencing, failing to bring subjective matters to the Court’s attention could result in a more severe penalty.

In criminal matters, including traffic offences, obtaining legal advice at the earliest opportunity is crucial. Time can be of the essence in traffic offences, especially where there is a timeframe in which an appeal must be lodged. We also recommend obtaining advice before making any decisions, including entering a plea of guilty, electing to have a traffic offence dealt with by the Court or participating in a Police interview.

There are a number of offences dealing with assault in New South Wales, with the punishment for each offence varying in severity. Common assault is punishable by up to 2 years imprisonment. Assault occasioning actual bodily harm is punishable by a term of imprisonment of up to 5 years. However, there is a range of options available to the Court, including a Conditional Release Order with or without conviction. It is important to get legal advice and a strong advocate to represent you in Court to minimise any potential penalty imposed.

If you have been charged with common assault under section 61 of the Crimes Act 1900 NSW, the prosecution believes you have assaulted the victim, but it has not resulted in an injury. Common assault can also encompass a threat of violence if the person that has made the threat had the ability to carry it out. Common assault can encompass the following:

1. Punching, hitting, slapping, pushing, or kicking,
2. Raising a fist towards someone,
3. Spitting on another person,
4. Threatening to hurt someone,
5. Throwing an item at someone (whether it makes contact or not)
6. Physically restraining someone against their will.

If the prosecution is successful in proving the elements of common assault the maximum penalty is two years imprisonment and/or a fine of up to $5,500.

Assault and battery are treated distinctively different in NSW. An assault is an act where a person causes another to apprehend the immediate infliction of unlawful force. This can be an act done by omission, intention or an act that has recklessly occurred.

Battery is the actual infliction of unlawful force onto another.

There are numerous defences to assault charges in NSW including the following:

1. Self-defence,
2. Duress,
3. Necessity,
4. Lawful correction, and
5. Automatism.

There are numerous drug offences dealt with under both Federal and State legislation. For example, importing and/or exporting prohibited substances, administering an illegal drug, possession, cultivating and/or supplying of illegal drugs.

The penalties relating to the different drug offences vary in content and severity. For example, the penalties associated with the possession and supply of drugs range from a $400 fine to life imprisonment dependant on the category of the drug and the amount of the prohibited substance.

Major traffic offences are recorded on your criminal record. These driving offences include:

1. Drink driving,
2. Driving while under the influence of an illicit substance,
3. Negligent driving,
4. Driving whilst suspended,
5. Police pursuit, and
6. Reckless driving.

The maximum fine for speeding over 10km of the speed limit, when the matter is dealt with by the Court is $2,200. The penalties relating to speeding fines will increase given the speed and, when dealt with by the Court, the subjective circumstances. For example, if you are found to have sped 45km over the speed limit, the maximum fine is $3,300 and a 6-month minimum licence disqualification period.

The most serious sexual offence in NSW would involve the sexual assault of a child under 10 years old. This offence holds the maximum penalty of life imprisonment.

The penalties for sexual assault in NSW vary depending on the offence that was committed.

For example, if someone is found guilty of sexual assault, the offence is punishable by a maximum of 14 years imprisonment which would be further aggravated in circumstances where there was an infliction or threat of harm, the victim was disabled, or the offender was in the company of another person.

If someone is found to be guilty of non-consensual sexual touching, the maximum penalty would be five years imprisonment and would similarly vary if there was the presence of any aggravating factors.

Larceny is the theft of personal property and the penalty associated will be in accordance with the value of the property. For example, if the property stolen does not exceed $2,000, the offender may be charged with a fine of up to $2,200. However, the penalties can range from a fine to imprisonment, dependent on the situation and the property stolen.

Larceny is a legal term that encompasses offences where a person took and carried away property from another without the person’s consent and with the intention to permanently deprive the owner of the property.

Theft encompasses a broad range of offences that includes aggravated factors like robbery, fraud, embezzlement and receiving stolen goods.

The most common form of larceny in NSW is shoplifting. Shoplifting offences hold the maximum penalty of five years however, this penalty is dependent on the type of property stolen, its value and whether there were any aggravating factors.

Murder is defined as causing another person’s death with reckless indifference to human life, the intent to kill or inflict grievous bodily harm or in an attempt to commit a crime.

The maximum sentence for murder is imprisonment for the remainder of the offender’s life however, a lesser penalty can be imposed. If someone is convicted of manslaughter, the maximum penalty is 25 years imprisonment.

A reckless indifference to human life encompasses a person committing an act with the foreseeable probability of death occurring however, continued the act. This was defined in the case of The Queen v Crabbe and remains the current definition.

If someone is convicted of murder, they are found to have killed a person with the intent to kill and malice. If a person is found guilty of manslaughter, they have committed homicide without the intent to kill and/or without a reckless indifference to human life. Therefore, murder encompasses more planned and premeditated thought whilst manslaughter is often accidental or random.

Fraud is defined as the false representation of facts, whether by intentionally withholding information or providing false statements. The offence of fraud is pertained in section 192E of the Crimes Act 1900 and requires the prosecution to prove beyond reasonable doubt:

1. You acted deceptively or dishonestly,
2. To obtain some form of property or financial advantage, or
3. To cause another person a disadvantage.

If you are found guilty of fraud the maximum penalty is 10 years imprisonment. However, this sentence will vary depending on the facts of the case, seriousness, and nature of the offence.

The six most common types of fraud in NSW include:

1. Identity theft- the theft of someone’s personal information,
2. Remote access scams- providing the person committing fraud remote access to their device,
3. Relationship scams- fraud in relation to the use of dating apps with the motivation to steal money or identity credentials,
4. Investment fraud- where there is a fraudulent investment opportunity,
5. Employment scams- for example, money laundering, and
6. Business email compromise- where there has been a data breach, legal impersonation, invoicing, or payroll fraud.

The penalties for driving with the presence of an illegal drug in your system ranges from fines, license suspension, license disqualification and imprisonment. The penalty that is imposed will be dependant on a variety of factors including the type of drug, the amount in your system, the presence of any aggravating factors, seriousness, and nature of the offence.

Second or subsequent offences hold more serious penalties. Please see the below table for a comparison

The results of the blood test are not provided immediately at the police station. The sample will be sent away for analysis at a forensic science laboratory. It can take between six to eight weeks for the results to come back.

If you are convicted of drink driving, the offence will remain on your criminal record.

NSW Police can immediately suspend your license if you commit a low range drink driving offence.

If it is your first offence, there is a minimum disqualification period of 3 months, a maximum disqualification of 6 months and an automatic disqualification of 6 months.

If it is your second or subsequent offence, there is a minimum disqualification period of 6 months, a maximum is unlimited and an automatic disqualification of 12 months.

The penalties imposed for drink driving in NSW are dependant on the range. For instance, low range drink driving would have less serious penalties than mid or high range drink driving. Additionally, penalties will differ if it is your first or subsequent offence.

Low Range

Mid-Range

High Range

Prohibited weapons are itemised in Schedule 1 of the Weapons Prohibition Act 1998 and includes certain types of knives, explosives, slingshots, darts, guns etc.

A prohibited weapon permit will be issued by the Firearms Registry if it can be proven that the possession or use of the weapon is for a genuine reason under section 11 of the Weapons Prohibition Act 1998.

A firearms prohibition order (‘FPO’) prohibits a person from acquiring, possessing, or using a firearm in the interest of public safety. An FPO does not lapse in time therefore, it can continue indefinitely.

Other than body armour vests, it is illegal to carry a weapon even for self-defence purposes. In NSW, possessing or using a prohibited weapon for self-defence or to protect someone else is not considered a ‘genuine reason’ to have a weapon.

In NSW, the maximum penalty for possessing a taser is 14 years imprisonment. However, this sentence would vary considering the seriousness and nature of the offence and whether there were any aggravating factors.

An apprehended violence order (AVO) is an order made by the Court against a person that makes you fear for your safety, to protect from future violence, intimidation, or harassment. Typically, an AVO will prohibit the defendant from assaulting, harassing, threatening, stalking, or intimidating the protected person.

There are two types of AVO’s; apprehended domestic violence order (ADVO) in circumstances where the people involved are related, live together or are in a relationship with each other, and apprehended personal violence orders (APVO).

There are many options available in this circumstance. The AVO can be defended, or amendments could be sought through negotiations with Police to ensure fair and reasonable conditions.

If the Police have fears for your safety, they can apply for an AVO to be made for you. You may also apply for an AVO at the Local Court through a private application.

The AVO may be rejected by the Court if they believe it to be frivolous, vexatious or has no reasonable chance of success

If you had an AVO taken out against you, it is not a criminal offence. It will only be recorded on your criminal record if you breach the orders that are made in the AVO. However, there are some immediate repercussions. Your firearm license will be revoked and there may also be issues in obtaining a working with children’s check if the AVO concerns children.

Condition 1 is mandatory for all AVO’s and reads:

The defendant must not do any of the following to the protected people or anyone they have a domestic relationship with:

1. Assault or threaten,
2. Stalk, harass or intimidate, and
3. Deliberately or recklessly destroy anything that belongs to them.

However, the Court may include Orders that restrict the defendant from:

• Residing at the family home,
• Contacting the protected person/people,
• Being within a certain distance from the person’s residence, work, or school,
• Being in the company of the protected person for at least 12 hours after consuming alcohol or drugs,
• Possessing firearms or prohibited weapons, or
• Trying to locate the protected person/people.

An AVO is not a criminal offence and therefore, would not be shown on a criminal record unless there was a breach of the Orders.

An AVO remains in place usually for 24 months unless specified otherwise but can be made for whatever period the Magistrate deems necessary.

Robbery is a serious criminal offence. You will be found guilty of robbery if the prosecution can prove beyond reasonable doubt that:

1. You intended to steal
2. You took the property from the victim’s possession or control
3. Using violence or putting the victim in fear

There are numerous offences under the robbery category including: robbery, stealing property from a dwelling, aggravated robbery, aggravated robbery with wounding, armed robbery, or in company and armed robbery or in company resulting in wounding. The penalties will vary for the above offences.

Armed robbery is classified as an indictable offence and must be heard in the District or Supreme Court. Armed robbery carries a maximum penalty of 20 years imprisonment.

When a burglary is committed, the victim may have had zero contact with the perpetrator. However, the offence of robbery requires violence or a threat of violence to have occurred when stealing the item.

The maximum penalty for committing a robbery in ‘circumstance of aggravation’ is 20 years imprisonment.