Burglary and Home Invasion Brisbane Criminal Defence Lawyer and Appealing Sentences

In the Magistrates Court at Brisbane, like any other Magistrates Court, serious offences like Burglary and commit indictable offence under section 419(4) of the Criminal Code Queensland and Possessing dangerous Drugs under s 9 of the Drugs Misuse Act Queensland can easily result in jail time. The fact that the matter is at the Brisbane Magistrates Court level does not mean that serious penalties are not imposed for such criminal law offences. For example in 2016, a man suffering the ill-effects of taking Ice was charged with home invasion in Bundamba, part of the Ipswich district. He was eventually sentenced in front of the Brisbane Courts, to 30 months non-parole of 8 months, as criminal law offences can usually be shifted from one jurisdiction to another for a sentence.

Just after midnight, the Applicant was observed by his mother to be pacing backwards and forwards, and to become more and more agitated. He eventually left the property and without any reason, he ended up a few doors down at the complainants’ residence.  The defendant did not know the complainants. He broke in the front door. He instructs he remembers that that once inside, he knocked some pictures off the wall. He recalls snapping out of it, realising he was somewhere he shouldn’t be and doing something he did not want to be doing. The defendant apologised to the male, walked across the road, and waited for the police to arrive.  As such it was one of the shortest home invasions one could imagine. His actions confirmed that he did not recall forming an intention in relation to the burglary. If anything, it was fleeting, and once he realised what he was doing, he desisted. He did not cause any violence, nor take anything. The damage that was caused was part of his immediate conduct on breaking in the front door.

Unfortunately, the defendant had a prior offence for a similar charge of enter dwelling and commit an indictable offence, and had been to jail. As such he had one existing serious criminal law conviction for a similar offence, which would be taken into account by the sentencing magistrate in Brisbane.

Comparative Cases for Home Invasions in Brisbane

In the case of R v Button DC No 134 of 2012 in the criminal law registry, the defendant committed one burglary and stole about $30,000 worth of jewellery.  He had a prior conviction for an offence of enter dwelling and commit an indictable offence several years earlier, but the Judge accepted that was trivial. The defendant had the benefit of youth, but it is significant that only about $700 of the jewellery was recovered, and that the defendant in that case had clear intent to steal, and did so. He was sentenced to 12 months, wholly suspended for 18 months.

In the case of R v Harris DC No 95 of 2011 in the criminal law registry, the defendant smashed into a woman’s house when she was not there, and ransacked the whole house, stealing a number of items. Discovering the ransacked house would have caused her distress. The defendant had made good steps to rehabilitating himself. The defendant had a serious problem with drugs and there were obvious periods where his drug use led to reoffending followed by periods where he was drug free. The head sentence may have been 18-24 months with actual time, but due to having a good relationship, having rehabilitated to an extent, he was sentenced to 12 months wholly suspended for three years.

In the case of the R v Dargan DC at Bowen 18 November 2015 in the criminal law registry, the defendant was found guilty by a jury of burglary and stealing. It was serious but considered opportunistic. The defendant had the benefit of youth, and had cooperated. He had the support of his family and partner. He had no criminal history, but after the offence, had history for breaches of domestic violence orders. He was sentenced to six months wholly suspended for 18 months.

After applying for Bail to the Brisbane District Court in the criminal law registry, and appealing against sentence, a new figure of 18 months was substituted. The case is a good reminder of the need to ensure that first offences do not result in jail time, which can easily occur when they are handled without an exploration of the cases, as the defendant had great difficulty avoiding actual prison time on the second offence.

Contact www.brisbanecrimelawyer.com.au

Call 0731814396

 

Brisbane Crime Lawyer defends criminal charge in Brisbane where one punch was thrown in self defence

Justin Sibley Brisbane Crime Lawyer and Williamson and Associates Lawyers Brisbane successfully defended an innocent man put on trial for assault occasioning bodily harm in Brisbane in circumstances where the police prosecutor should never have proceeded. Police were called to a supposed ‘one punch scenario’ where a male had been rendered unconscious in Brisbane City one evening. The defendant’s story, not assessed at all closely by the police, was that he had been ascended upon by a group. The CCTV footage, not viewed until much later by the police who had already dismissed the defendant as the wrong doer, showed that he had been surrounded by the group, repeatedly taunted by members of the group, and assaulted viciously by one of them. Despite clear provocation, followed by a serious and violent assault upon him by one of the group, the defendant was seen to be turning the other cheek and attempting to avoid a fight. This occurred even after one of his attackers held him in a strangle hold. This male then viciously assaults him, trying to pull him down to knee him in the head. The defendant successfully breaks this hold and pushes him away, and then punches him several times in a clear proportionate use of force to defend himself. While defending himself against this vicious attack, the group that had sought to antogonise him pull back. One of the group approaches him, seemingly to continue the assault, but then withdraws.  A third party walks in towards the defendant, with his hands up in a very similar posture to the male who had strangled him. Sadly, the defendant, having to make a snap decision to assess this person, believes that he is just another member of the group coming to assault him. He struck this person with one punch, in self defence, and this caused that person to lose consciousness. As the defendant said, he was outnumbered, and on the CCTV it was clear he was outnumbered by several males and a number of females. Clearly the defence of Mistake of Fact under s 24 of the Criminal Code and s 271 Self Defence were raised and obvious on the CCTV, and the prosecution could point to no evidence to negative the defence beyond a reasonable doubt. To make matters worse, only one of the individuals who had been in the group that had tried to antagonize and assault the defendant, was interviewed by the police, and that person was quick to seek to paint the defendant as the aggressor. The actions of the group picking on and eventually assaulting an innocent person, led to another innocent person being hurt. As regrettable as that was, the defendant should not have been prosecuted simply because someone was hurt. A value judgement was clearly made by the police and the prosecutions, regardless of whether the defendant himself was a victim of a cowardly group offensive. A submission to the police prosecutions in Brisbane to drop the charge was dismissed with no justification, requiring the defendant to defend himself before the criminal jurisdiction of the magistrates court in Brisbane. In summing up and awarding costs, the magistrate was critical of the police prosecutor for pursuing the prosecution in circumstances where they had no reasonable prospect of success. He dismissed the charges, acquitting the defendant of the criminal charge of assault occasioning bodily harm heard before the court in Brisbane. The magistrate had earlier ruled there was no case to answer on a charge of public nuisance.

Contact www.brisbanecrimelawyer.com.au

Call 0731814396

Criminal Defence Lawyer helps Southport Defendant Resolve Criminal Assault Charges

Many cases of assault involve a he said she said version of events, and defending criminal assault charges at Southport Court is no different. In criminal assault cases, there are usually three sides to the story, the victim’s, the defendant’s and the truth being the third. It is often the case that what starts as a consensual fight between adults becomes an allegation involving the police by one party. Recently Justin Sibley criminal lawyer became involved in such a case involving a Chinese student. For Chinese students on visas, the risks from a criminal record, even a minor one, can be severe as Border Force can act with disastrous consequences. Depending on your history, a criminal record may be difficult to avoid. However, Justin Sibley criminal lawyer is used to sorting out opposing versions and giving advice on the best way to proceed. Talking to a criminal defence lawyer with a background in law enforcement early can assist, as many cases can be improved through case conferencing with the prosecutor.

Contact www.brisbanecrimelawyer.com.au

Call 0731814396

Criminal Lawyer helps Cleveland Defendant Resolve criminal charges of Home Invasion assault and motor vehicle offences

Justin Sibley crime lawyer recently reviewed a case of home invasion, assault and theft in company at Cleveland. The circumstances were not unfamiliar. A defendant who had been tricked into being a part of something that he ordinarily would not have, and aggressive actions on the part of the others that he didn’t anticipate. Worse still, is when all the other offenders got away leaving him to take the blame. If you have been charged with serious criminal offences in Cleveland, there is benefit in seeking advice early from a crime lawyer with a background in policing, to negotiate with the prosecutions and the detectives. On this occasion, the Cleveland detectives were interested in getting to the truth, not just an easy arrest. Justin Sibley crime lawyer is available to assist with advice and representation.

Brisbane Drug Trafficking and Drug Importation Offences and Evidence

When the Australian Federal Police and Queensland Police Service liaise with Border Force on a drug trafficking or importation offence in Brisbane, highly effective surveillance and interception capabilities are deployed. Border force take advantage of a lack of understanding of legislation controlling the arrivals lounge, to intimidate inbound passengers into believing they don’t have any rights in this ‘international space’. The law in this regard is questionable and should be tested. Passengers arriving into Brisbane International Airport can be deliberately targeted from as early as the time the manifest is lodged by their airline, triggering a task with border force at the airport with ample time to prepare, which in turn allows that passenger to be closely monitored and disrupted from the moment they leave the plane. The inbound passenger may think they are participating in a random search. They will be pulled aside and ‘randomly’ searched and their baggage x-rayed. Any citizen, let alone one accused of drug trafficking coming into Brisbane needs to be particularly careful about providing access to their phones and the pins to unlock them, as there is no power to specifically require this without a warrant. These days a smart phone is a personal computer, and all manner of material is available, effectively unlocking evidence into an individual’s life. One needs to be aware of law enforcement embarking on a fishing expedition, seeking to obtain evidence that they could not have hoped to build through lawful means. Recently the use of such powers by border force officers in international terminals was ventilated at the Brisbane Supreme Court level in pre-trial s 590AA hearings on a drug importation of a commercial quantity charge. The issues were not satisfactorily resolved in my view. When facing a drug trafficking or drug importation charge in Brisbane, consult with Justin Sibley Brisbane Crime Lawyer as quickly as possible to determine if evidence should be excluded.

Redcliffe Traffic Offences Demonstrates Flaws in Radar Detection

As a criminal defence lawyer it is essential that we maintain justice at the Magistrates Courts level when it comes to traffic offences and the resultant infringements. Recently a hearing conducted in the Richlands Magistrates Court indicated the danger of human error in the operation of LIDAR devices. These devices are inherently reliable when properly calibrated and when operated properly. However, this does not remove the human factor both in calibrating and in operating these devices which leads to the allegation of so many traffic offences and the consequential infringement notices. Richlands Magistrates Court is a busy and often overloaded court house, but that should not discourage individuals from contesting traffic offences in the right circumstances. Getting advice early on traffic offences is critical. Speeding offences can easily result in loss of licences, and this can have an impact on your ability to earn a living. Special hardship orders are available in only a small number of categories. Work licences are only available for Drink Driving and Drug Driving offences. Losing a licence is for some a severe a penalty. Engage a Brisbane Crime Lawyer early to discuss your options.

Brisbane Criminal Defence and Immigration Detention

In May 2014 the Abbott government announced, with typical bombast, the arrival of a new super-agency into an already cluttered law enforcement environment. Backed by fresh legislation and armed troops fitted out in coal-black uniforms, the Australian Border Force (ABF) was to epitomise an increasingly belligerent approach to policing a frontier that the then-Immigration Minister Scott Morrison termed a “strategic national asset.”

This is only further confirmed by their recent intervention into the case of Omar, a young Kuwaiti man who came to Australia to commence a university degree.
Omar’s dream fell apart on a cool, wet Monday in June of 2016. That afternoon, he was visiting a suburban shopping centre in Brisbane when he was arrested. The police alleged he was responsible for a minor sexual assault on a minor constituted by brushing past him in a shopping aisle.

In his time as a detective having investigated many accusations of sexual offences against minors, Sibley suspected that Omar’s account was unlikely to be taken at face value, certainly not without corroborating evidence. He also knew that false complaints of sexual assault are uncommon. Nonetheless, from the outset it was clear that the acts alleged, even if substantiated, were at the lower end of the criminal spectrum.

Sibley was therefore unsurprised when the Magistrate approved bail subject to certain conditions, including the surrendering of Omar’s passport to the court. When he received a telephone call from his client later that afternoon, he expected it to be confirmation of his release.

What Omar instead told him shocked the lawyer: he was now being held at the Brisbane Immigration Transit Centre at Pinkenba. The ABF had stepped out of the shadows and were about to take things in an entirely different direction.

How the ABF became aware of Omar’s arrest remains a mystery. What is apparent is that sometime after the Magistrate bailed Omar but before he was freed from custody, someone in authority contacted the ABF in an evident attempt to subvert the court’s decision.
Up until then, the denial of bail had been entirely a function of Omar’s status as a foreign national; once it was granted, his citizenship became at law immaterial. But the rule of law, not to mention procedural fairness and common decency, tends to count for little when the ABF becomes involved. Ostensibly on the grounds that he failed the Migration Act’s vague “character test,” they grabbed Omar before his court-ordered liberty could be exercised, transferring him directly to Pinkenba and a highly ambiguous form of custody.

Tales of asylum seekers languishing for years in immigration detention are depressingly commonplace. In Omar’s case, conversely, the ABF acted with astonishing haste. Barely two weeks elapsed between his incarceration and deportation. In the fringe world of immigration detention, where actions can be hidden behind the blanket justification of “operational matters” and judicial process overridden by executive discretion, the principal strategy is to cut the individual off from society. Ignoring any basic right as to the presumption of innocence, the ABF presented Omar with two equally unpalatable choices: remain incarcerated at the very least until the court proceedings were finalised, likely to take twelve months or more, or accept an immediate one-way ticket back to Kuwait. Predictably enough, he chose the latter.

The furtive nature of the ABF’s role in Omar’s case was further demonstrated when the matter went back before the Magistrate in July. The prosecutor, acknowledging the accused’s departure from the country, asked for a bench warrant to be issued. This means that the proceedings will remain open indefinitely, in the unlikely event that Omar returns to Australia. Some weeks later, to Hannah’s surprise two uniformed police came looking for Omar; they in turn seemed astonished to find he had left the country. There is little doubt the officers were there to execute the warrant, and the Queensland Police Service have bizarrely claimed that their investigations are continuing, despite Omar’s deportation.
This palpable lack of communication between the ABF and the Director of Public Prosecutions and Queensland Police implies that almost certainly the alleged child victim and his family too have been left completely in the dark, badly let down by the combination of overreach and incompetence on display. For Sibley, the entire affair constitutes an unconscionable failure of process on behalf of the authorities involved.

Ultimately, Omar’s case is not about guilt or innocence, nebulous concepts at best and here rendered obsolete by the intervention of the ABF. It is about justice: for Omar, the complainant child and his family, and most importantly society as a whole. That in contemporary Australia we are so prepared to manipulate justice in the name of “national security” – in areas as disparate as denying the human rights of refugees and visa students to being complicit in unlawful drone attacks upon foreign nations – is tantamount to conceding that there is no longer any justice at all.

Australian Border Force Intervention in Criminal Matters

 

Over the last 15 years or more, I have observed Australian immigration policy bring Australia into disrepute internationally, and help to fuel an ever growing problem of hatred towards the West and Australia in particular in the Middle East. Recently I worked on a case to free a young Middle Eastern student accused of offences in Brisbane, while on a Student Visa. The evidence was circumstantial, and the young man had good prospects in his defence. The risk of Border Force getting involved was brought to his attention, but the client’s decision was to seek Bail as he was having a difficult time coping in the Watch House. Having secured the release of this young man on bail, Border Force immediately picked him up from the Watch House, determining that the young man’s presence in Australia “is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals”. This was enough to put him in immigration detention, cancel his visa and deport him. The Police did not exercise their power to seek a Criminal Justice Visa. The Border Force officers made it clear that they were happy to act on a Police allegation as enunciated in the QP9.

Active Shooter Marauding Terrorist Firearms Attacks

Following on from our observations of the recent events in Paris and Jakarta, we were pleased to deliver a training session to a range of Country Risk Managers on ASMTFA at the Strategic Risk Forum in Singapore on behalf of NYA International at the request of AIG. The session was well received and covered issues of planning and risk mitigation, as well as PR, legal and compliance issues.  Unfortunately the outlook for Australia is not positive, and we suspect that many venues present soft targets, such as airports, shopping centres, schools and the like. Intelligence and security collection is unlikely to detect and disrupt these attacks before they happen, and so planning for a realistic scenario is the most preferred option to reduce risk, loss of reputation and civil liability.

Should Multiple Drink Driving Disqualifications result in Cumulative Sentences?

Today we argued that s 90B of the Traffic Operations (Road Use Management) Act (TORUM) 1995 (Qld) does not mandate that two separate drink driving offences committed within a short period of each other must lead to cumulative disqualifications. Magistrate Carmody agreed and concluded that the sentencing function of the Magistrate is discretionary, and therefore the totality principle should be applied.

In this case the first minor drink driving offence (over the general and under the medium limit) took place while the defendant was not the holder of a driver license, and the second took place within a few hours when the defendant attempted to move their car.
A Traffic Operations (Road Use Management) Act (TORUM) 1995 (Qld) s 79(2) offence carries a mandatory minimum of a three month disqualification by virtue of s 86 (2) (e). The first offence of driving while unlicensed does not carry a mandatory disqualification period. The second offending just after the defendant had been released by the police, resulted in him being charged with another unlicensed offence, and a drink driving offence over the 0.00 limit (due to the defendant being unlicensed they were required to be 0.00). The defendant’s licence had expired two weeks previously.

Totality Principle

We argued that the drink driving disqualifications should be served concurrently, applying the totality principle. R v. Kendrick [2015] QCA 27 discusses the principal of totality, and while the application was in relation to much more serious offences, it is helpful here. At paragraph 31 his Honour Morrison JA said of the Totality Principal:
That principle was explained in Mill v The Queen when the High Court approved this statement from Thomas, Principles of Sentencing “The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’”

At paragraph 39, quoting Azzopardi v The Queen, his Honour noted that there are two ways to apply the principal, either by “….making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred”.

Section 90B creates confusion, but has been relied upon by Police and Qld Transport (using the so called ‘Dummies Guide’ to the TORUM) to submit that cumulative disqualifications would apply in such a case.

Section 90 B states:
90B Cumulative periods of disqualification for offences committed at different times
(1) This section applies if—
(a) a person is disqualified (the initiating disqualification)—
(i) under a relevant disqualifying provision for a drink driving offence; or
(ii) under a section 89 disqualification; or
(iii) under a section 90 disqualification; and
(b) before the period of disqualification for the initiating disqualification ends, the person is disqualified again on 1 or more occasions (a later disqualification) as mentioned in paragraph (a).
(2) However, this section does not apply if section 90C applies.
(3) Each period of disqualification whether for an initiating disqualification or later disqualification takes effect cumulatively with each other period of disqualification.
Examples—
1 D is charged with a drink driving offence. Before the court hears that charge D is charged again with a drink driving offence. The court convicts D of both offences and disqualifies D for a period of 2 months for 1 offence and a period of 4 months for the other offence. The total period of disqualification is 6 months.
2 D commits a drink driving offence on 25 December 2008 and commits another drink driving offence on 1 January 2009. A court convicts D of the 1 January offence on 2 January 2009 and disqualifies D for a period of 2 months. On 1 February, the court convicts D of the 25 December offence and disqualifies D for a period of 4 months. The total period of disqualification is 6 months.

Kumar v Garvey discusses s 90 B. In obiter McGill DCJ, who allowed an appeal in that case on other issues said: “I should also refer to s 90B of the Act. The effect of this provision appears to be that the two periods of disqualification imposed by the magistrate were cumulative. I say “appears to be” because the section is strangely worded, and to me produces that result only if one assumes that a person is disqualified at the time the offence is committed, rather than at the time when an order is made under the Act imposing the disqualification, or by the terms of the Act, a disqualification is imposed. That it would apply to the present case is consistent with example 1, which is part of the section, though it seems to me that otherwise it would be difficult to tease that outcome out of the words used by the legislature”.

When dealing with mandatory minimums, it is appropriate to consider the combined effect of all the disqualification periods, and consider whether the aggregate is ‘just and appropriate’.

In this case the defendant had only a very minor traffic history, and no drink driving offences in the defendant’s past. If two mandatory disqualifications of three months had been ordered to be served cumulatively, the impact would have been unjust and harsh, and would not be appropriate given the level of the defendant’s culpability.

While a minor piece of advocacy in the greater scheme of things, in our view the TORUM is a legislative nightmare for practitioners and defendants alike, and it is appropriate that it be carefully considered. As McGill DCJ stated (para 22) “Mandatory sentencing provisions are frequently the subject of judicial and academic condemnation whenever they appear. Generally, Queensland is mercifully free from some of the worst excesses in this area which may be found in other states, but ss 78, 79, and 86 of the Act contain detailed and complex mandatory sentencing provisions which deserve all the principled criticism directed at mandatory sentencing. The sections have been much amended over the years, in what appears to be a process of populism”.