@Maitland Local Court
Our client was charged with common assault. It was alleged that she assaulted a nurse by scratch to the neck and chest area. The conduct was accepted the client. The maximum penalty for the offence is 2 years imprisonment. The client suffered from Post-Traumatic Stress Disorder and Major Depressive Disorder. We obtained a comprehensive Section 14 Report from the client’s treating psychiatrist, setting out her diagnosis and a proposed treatment plan. The difficulty in this case was that the client had already had the benefit of the mental health legislation for an identical offence in recent years. The law indicates that the Magistrate may consider “whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW)” (Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 15(f)). We ultimately persuaded the magistrate that the proposed Treatment Plan would better treat the diagnoses. Submissions were made distinguishing the current Treatment Plan to the previous one and outlined significant deficiencies in that earlier Treatment Plan. The Court dismissed the charge, and discharged the client into the care of her treating psychiatrist on the condition that she complies with the Treatment Plan.
@Maitland Local Court
Our client was a 32 year old male with a minor criminal history. The police were called to locate the client due to concerns about his mental health. Police found the client and informed him that he was being detained, which he resisted. The client punched an officer to the eye with a closed fist causing bruising, and then hit him again to the ear causing a laceration and swelling. He made several threats to each of the officers. The client was charged with resisting an officer in execution of duty, assaulting police officer causing actual bodily harm, and intimidation on police officer. Each of the offences are treated very seriously by the courts. The most serious of the charges being the assault police causing actual bodily harm, which attracts a maximum penalty of 7 years imprisonment, if dealt with on indictment. The maximum penalty for each of the resist officer and intimidation offences is 5 years imprisonment. The client had a history of mental health issues. He had been diagnosed with Major Recurrent Depression and Anxiety disorder. His mental health issues were exacerbated at the time of the offending due to personal circumstances. After a lengthy adjournment enabling the client to commence appropriate treatment, we made a Section 14 Application seeking to have the client diverted out of the criminal justice system and in to the mental health system. The Magistrate was ultimately persuaded to grant the Section 14 Application, and all of the charges were dismissed on the condition that the client comply with the supervised Treatment Plan.
@Campbelltown Local Court
Our client was a 64 year old male. He had no criminal history. The complainant was an officer authorised to disconnect electricity. The officer had entered the client’s property in order to disconnect electricity for non-payment of bills. The client disputed that there were outstanding bills and challenged the officer. The officer proceeded to the electricity box to disconnect the electricity. The client pushed the officer, causing him to fall over and sustain a laceration to his eye. He was subsequently charged with common assault. We raised two issues with the prosecution case. Firstly, whether the complainant had the legal right to enter the client’s property and disconnect his electricity. It was argued a number of preconditions to exercising that power of entry had not been complied with. The second issue was whether the client was acting in self-defence. It was submitted that the client acted to protect his property from unlawful damage or interference, and was not guilty of the offence under the self-defence provisions (section 418(1)(c) of the Crimes Act 1900 (NSW)). Both the officer and the client gave evidence at hearing. At the conclusion of the hearing, the matter was adjourned for written submissions to be provided to the Court. Ultimately, the Magistrate was not persuaded that the officer’s entry was lawful. The client was found not guilty due to self-defence. The allegation was dismissed. The client was thrilled because he was able to maintain his clean criminal record.
@Penrith Local Court
Our client was a 48 year old man with limited criminal antecedents. He was previously employed as a NSW police officer and left the NSW police force due to developing significant mental health issues as a result of what he witnessed during his time as a serving police officer. He was charged with two counts of common assault domestic violence related after an argument occurred in the family home with his 16-year-old daughter. His 16-year-old daughter was the named victim in both counts.
The first count related to our client’s act of excessively disciplining his daughter for how she spoke to her mother. The second count related to the physical act he took to prevent his daughter running away from home. Common assault domestic violence related carries a maximum term of imprisonment of 2 years and/or a maximum fine of $5,500. Our client was concerned about the impact of criminal convictions on his employment, particularly as he had commenced a new role with his new employer and was subject to a probationary period and criminal background check. He engaged Jelena as his legal representative. From the outset, Jelena was transparent and explained to him that there may be difficulties in avoiding a criminal conviction, due to the offences being aggravated by the fact that the victim was a child and that the offence occurred in the family home.
Our client was also subject to an Apprehended Domestic Violence Order (ADVO) which prevented him from being in the family home with his wife and the victim. He instructed Jelena to vary the ADVO and his bail conditions to allow him back in the family home. In obtaining detailed instructions from our client about his version of events, it became apparent to Jelena that whilst our client instructed us to plead guilty, there were issues with the police facts sheet. Through working closely with our client, Jelena prepared formal representations seeking an amendment to the police facts sheet in line with our client’s instructions. Jelena was able to successfully persuade Nepean PAC to agree to our amended facts sheet. Jelena comprehensively prepared for an ADVO and bail variation application to the court to amend the ADVO and bail conditions in line with our client’s instructions. Jelena gathered relevant subjective material to support our variation applications and evidence that our client was undergoing significant rehabilitation for his mental health and that he was committed to continuing his rehabilitation. In building a good relationship with the client, our client was able to trust Jelena to explain to her his history of mental health issues. Jelena explained the process of making a section 14 application under the Mental Health and Cognitive Impairment Provisions Act 2020. Jelena assisted our client by organising a section 14 report to be prepared by a psychologist and further medical material in support of the application.
The matter was listed for a section 14 hearing before a Magistrate in Penrith Local Court. In support of this section 14 application, Jelena filed psychological and medical material to Penrith Local Court and Penrith prosecutors. When the matter proceeded, Jelena was able to persuade the Magistrate to deal with the two offences under the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 (‘the Act’) than otherwise in accordance with the law. The Magistrate dismissed both offences under a section 14(1)(a) order under the Act. This meant that our client avoided criminal convictions for both counts of common assault domestic violence related. In turn, he was able to continue in his place of employment.
@Liverpool Local Court
Our client was a 38 year old man previously known to police. Jelena had previously successfully represented him in two older, separate matters at Liverpool Local Court. As a result of the client previously receiving good outcomes in court and trusting Jelena to handle his legal matters, when he found himself in legal trouble again, he contacted Jelena again to represent him for his third matter in Liverpool Local Court. Our client was charged with three domestic violence offences relating to an evening he returned home intoxicated to his partner. It was alleged by NSW police that he became physically violent with her, assaulting her and assaulting her occasioning actual bodily harm. The first offence he was charged with was common assault domestic violence related, which carries a maximum term of imprisonment of 2 years and/or a maximum fine of $5,500. The second offence he was charged with was assault occasioning actual bodily harm domestic violence related, which carries a maximum term of imprisonment of 5 years if dealt with in the District Court, or 2 years if dealt with in the Local Court jurisdiction and/or a fine of $5,500. The third offence he was charged with was contravene prohibition/restriction in AVO (domestic), which carries a maximum term of imprisonment of 2 years and/or a fine of $5,500. Our client instructed us to plead not guilty to the offences of common assault domestic violence related and assault occasioning actual bodily harm domestic violence related. From the moment he engaged Jelena as his solicitor again, our client was adamant that the alleged assaults never took place and that he, in fact, was assaulted by the alleged victim. Our client instructed us to enter a plea of guilty to the offence contravene prohibition/restriction in AVO, as he had been in breach of an AVO due to breaching condition 4 of the AVO, which prohibited him from contacting or approaching his partner within 12 hours of consuming alcohol. Our client had made admissions to police that he had been drinking within the 12 hour period, but he firmly denied ever assaulting the alleged victim. The matter was listed for a defended hearing at Liverpool Local Court. Jelena worked together with our client to obtain detailed instructions from him about the evening in question. Jelena diligently prepared for the defended hearing. Jelena rigorously cross-examined the alleged victim in the matter, putting our client’s detailed version of events to her and questioning her about whether she told police the full truth about the events of the evening our client arrived home. Through Jelena’s cross-examination of the alleged victim, the alleged victim conceded that she had previously been charged with common assault domestic violence related and that she was currently subject to an Apprehended Violence Order, with our client named as a the victim and protected person, which persuaded the court that she had a history of domestic violence as a perpetrator against our client. Through lengthy and rigorous cross-examination and compelling oral submissions, Jelena was able to persuade the Magistrate that there were significant inconsistencies in the complainant’s evidence, which suggested that she was not a credible nor truthful police witness. Ultimately, the Magistrate found our client not guilty of both assault offences and the charges were dismissed. As for the plea of guilty which was entered to the contravene prohibition/restriction in AVO (domestic) for the act of contacting or approaching the victim within 12 hours of consuming alcohol, his Honour convicted our client and fined him a reduced fine of $1,100. Our client was immensely thankful to Jelena for handling his third and final matter with confidence and ease.
@Picton Local Court
Our client was a 31 year old mother with no prior criminal record. She was charged with the offence drive with middle range PCA – first offence, with a reading of 0.134 grams of alcohol in 210 litres of breath. This was a significant reading falling towards the upper end of readings for a middle range PCA. She was stopped for the purpose of a random breath test at a random breath testing site. When she was stopped, she was travelling from Moore Park, NSW, to her home in Teresa Park, NSW – a significant distance. When our client first came to Jelena to few days before her sentencing date, she explained to her that she was previously legally represented by another law firm. She had already entered a plea of guilty to the offence and her matter was set down for Local Court sentence before a Magistrate in Picton Local Court. Our client was panicked and explained to Jelena that the lawyer she had previously instructed did not want to appear before this particular Magistrate. Above all, our client was concerned about the impact of a criminal conviction and subsequent licence disqualification given her line of work and that she often volunteers in her spare time with a children’s charity. The offence drive with middle range PCA – first offence carries a maximum term of imprisonment of 9 months and a maximum fine of $2,200. Upon conviction, there is also an automatic period of licence disqualification of 6 months, or a minimum licence disqualification of 3 months, with a 12 month mandatory interlock order. In the absence of an interlock order, it carries an automatic period of licence disqualification of 12 months or a minimum licence disqualification of 6 months. Jelena was able to reassure our client that she would be in capable and good hands and that we would be available and ready to represent her in her sentence before his Honour. Jelena also re-assured our client that she had experience appearing before this Magistrate in other courts. Jelena explained to our client that it is statistically common that offenders do receive a conviction, licence disqualification, mandatory interlock order and fine, but that we would be well prepared and seek a section 10(1)(b) Conditional Release Order (CRO) without conviction (in other words, a ‘good behaviour bond without conviction’). Jelena worked together with our client to prepare comprehensive subjective material. In court, compelling oral submissions were made by Jelena to his Honour. On our client’s instruction, Jelena submitted to the court that our client was a mother to an infant child and she also came to learn that was expecting her second child with her husband, which meant that she would not be consuming any alcohol for the duration of the pregnancy. Jelena also submitted to the court that our client had a real need for a licence. Our client is gainfully employed as a digital marketing creator in the media industry, which sees her regularly travelling to media events that are often held in the Sydney City area. Jelena also went into significant detail in her submissions about the significant distance our client is required to travel for work from her home in Theresa Park to Sydney City and the late hours involved in her work. Our client’s nearest bus stop is several kilometres away, which meant that it would be difficult for her to rely on public transportation, especially as she progresses through her pregnancy – a concern our client had after recently suffering a miscarriage. Jelena also went into detail in her submissions about how our client is also involved with a children’s charity foundation, which sees her regularly visit sick children in the children’s hospital as a volunteer. Given this, Jelena submitted that if our client is convicted of a criminal offence, it would jeopardise her working with children check. Jelena was able to successfully persuade the Magistrate to deal with our client by way of a Conditional Release Order without conviction. His Honour ordered that our client enter into a CRO without conviction, for a period of 18 months, with an additional condition that she abstain from alcohol for the duration of the RO. Our client was pleased to have trusted Jelena to appear on her behalf. Above all, she was pleased to be able to avoid a criminal conviction and to avoid a licence disqualification.
@Picton Local Court
Our client was a 43 year old man employed as a rigger across NSW. He was charged with negligent driving occasioning death – first offence, following a tragic set of circumstances that occurred as he was making his way from rural NSW to visit his partner in Sydney’s South West. Our client had collided with the victim, who was on a motorcycle, whilst conducting a right hand turn at an intersection. Our client had been travelling at a slow speed as he conducted the right-hand turn. Upon collision, the victim was ejected from his motorcycle and landed approximately ten metres away from the point of impact. First responders attempted to revive the victim, however, it was not long until he was pronounced deceased at the site. The offence negligent driving occasioning death – first offence carries a maximum term of imprisonment of 18 months. It also carries a maximum fine of $3,300 as well as an automatic period of licence disqualification of 3 years, or a minimum period of licence disqualification of 12 months. When our client first contacted us, he was very distressed as a result of the tragic accident. Jelena was patient and calm with our client and explained the court process to him. Jelena also obtained detailed instructions from our client. In taking these instructions, it became apparent that our client was suspended from driving by NSW police as a result of this offence and that as part of his bail conditions, he was not permitted to occupy the driver’s seat of a vehicle. As a result, our client lost his employment and was out of work. He was concerned about potentially facing jail time and being out of work. Before the substantive charge matter reached court, Jelena filed a licence suspension appeal against NSW police’s decision to suspend his licence for the offence negligent driving occasioning death. A bail variation application was also filed in support. The licence suspension appeal against police was listed in Picton Local Court a Magistrate. Compelling submissions were made by Jelena on behalf of our client and some subjective material was tendered to the court by Jelena in support of our application. The Magistrate agreed to allow our appeal and to vary our client’s bail conditions. This meant that the licence suspension was lifted and that the bail conditions were varied to delete the condition that he could not occupy a driver’s seat of a vehicle. Our client was able to drive and go back to work. As is common for these kinds of matters, the matter was referred to the Director of Public Prosecutions (DPP) in accordance with the Singh protocol. The matter, however, remained a police matter and was to be dealt with locally in Picton Local Court. Our client initially instructed us to plead not guilty. An order was made by the Magistrate for police to serve the brief of evidence to us. Jelena carefully reviewed the brief of evidence with our client and obtained comprehensive instructions from our client. Our client placed his trust in Jelena’s legal expertise and was detailed in his instructions, meaning that we could work together to carefully prepare for court. Upon review of the brief and instructions, our client instructed Jelena to enter a plea of guilty to the offence. The Magistrate requested a Sentencing Assessment Report (SAR) and the matter was adjourned for the report and for Local Court sentence. Police then contacted Jelena to advise her that an additional sequence would be added for the offence drive motor vehicle with illicit drug present in oral fluid etc. – first offence. This came as a result of a positive reading to the illicit drug cannabis appearing in our client’s bloodwork. Our client’s blood sample was taken at the local hospital not long after the tragic accident took place. It took some time for these results to come through, however, when they did, it became apparent on our client’s instructions and the evidence, that he was driving a motor vehicle with illicit drug present in oral fluid. A plea of guilty to this offence was entered when the charge was added. Jelena briefed a barrister in the matter to appear for the Local Court sentence. Together, Jelena and our barrister, as well as our client, prepared for the Local Court sentence. Jelena assisted counsel by gathering some compelling subjective material in support of our client’s subjective circumstances. Written submissions were prepared by counsel. It was a very difficult and emotional day in court, with the deceased victim’s family present in court. The Magistrate sentenced our client to 10 months imprisonment to be served by way of an Intensive Corrections Order (ICO). This means that our client was able to avoid full-time jail. Instead, he was subject to an ICO with supervision by his local community corrections office and ordered to undertake 80 hours of community serve work. As is mandatory upon conviction, our client was disqualified from driving. The Magistrate was persuaded to reduce the automatic period of licence disqualification, down to a period of 17 months. In relation to the offence drive with illicit drug present in oral fluid – first offence, our client was convicted and fined $1,100 (reduced from maximum fine of $2,200). As a result of the conviction, the Magistrate disqualified our client from driving for the automatic period of 6 months. Our client was very grateful to have avoided a custodial sentence and to have been able to serve a term of imprisonment in the community.
@Parramatta Local Court
Our client was 66 years of age and is retired. His wife and he own a property in which they live in and let out rooms to renters. He was charged with sexual intercourse without consent, with the alleged victim being one of his tenants in his home. The offence sexual intercourse without consent is a strictly indictable offence that carries a maximum term of imprisonment of 14 years, with a standard non-parole period of 7 years. Strictly indictable offences go through a different process in the courts compared to non-strictly indictable offences that can often simply and swiftly be resolved in the Local Court. It is often a lengthier process that involves police serving the brief to us and the matter being referred to the Director of Public Prosecutions (DPP). Once referred to the DPP, a charge certificate is prepared, and case conferences take place between the defence and prosecution. The process started with NSW police arresting and charging our client. The matter was first listed in Liverpool Local Court in which our solicitor, Jelena, appeared. As is common for these types of strictly indictable criminal matters, the DPP took carriage of the matter. Our client instructed us that sexual intercourse did take place, but that it was consensual, which became the key issue. Jelena continued to represent our client throughout the entire court process and organised for a barrister to be briefed in the matter. Through the committal process, the matter was eventually set down for a five day trial at Parramatta District Court. The trial took place in Parramatta District Court before a Judge. Towards the end of the prosecution evidence during the trial, there was a procedural fairness issue that arose. An application under section 132 of the Criminal Procedure Act 1986 was made by us to the court to have a Judge alone trial, which was granted by his Honour. On day five of the trial, Judge McGrath found our client not guilty of the offence sexual intercourse without consent. Our client was very grateful to have avoided a term of imprisonment. All that remained was the Apprehended Domestic Violence Order (ADVO) which NSW police had applied for at the commencement of the proceedings. Jelena appeared again in Liverpool Local Court after the trial was finalised in Parramatta. NSW police agreed to withdraw their application for the ADVO. As a result, Magistrate Abdul-Karim dismissed the police application for the ADVO.
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