19 Comments Criminal law, traffic matters, DUI, assault, theft, fraud
I'm not overly familiar with NSW law but you state it is his second offence as he has had an AVO... Do you mean there was an offence committed which resulted in the AVO or just the AVO itself?
Having an AVO placed against you in itself does not constitute an offence and from my understanding cannot be used in court in the calculation of any punishment or sentence.
A mental illness will definately be taken into consideration in regards to sentencing, as long as it can be established that the illness existed at the time of the offence. For example if your boyfriend was medicated at the time, psychiatric reports etc.
Unfortunately being intoxicated in NSW precludes your boyfriend from using the 'diminished responsibility' defence. There are a bucketload of precedents and generally it will not be taken into account unless there were other mitigating factors in conjunction with the intoxication.
Charges commonly get reduced, sometimes at the last minute. In QLD it is common that charges float through the lower courts (Magistrate generally) but as soon as the Crown Prosecutor gets their hands on the brief (as opposed to the police prosecutor in the Magistrats Court) the charges are downgraded, or occasionally dropped entirely. This is because there is a high degree of accountability placed on the CP, far more so than police prosecutors who when seeing a charge that will be more than likely heard in a higher court, just flip it on with not much more than a cursory glance. Basically the CP wants a conviction, if it feels in the slightest that they will be in trouble prosecuting a GBH charge, they will knock it down in the blink of an eye.
That probably confuses the issue even more but hopefully it helped a little!
In NSW, as well as all other states as far as i'm a aware, a guilty plea MUST be taken into consideration by a jude or magistrate when sentencing. So yes a plea of guilty will definately reduce the punishment handed down to your boyfriend had he otherwise entered a plea of not guilty and was found guilty by a jury.
GBH is a strange old charge... it can range from a fairly mild assult to something just short of attempted murder. That is why you see a vast difference in sentences handed down. The fact that your boyfriend was not armed at the time also works in his favour.
Can i ask what injuries the other person received? As this will be an important factor in sentencing.
Thanks again for the quick reply.
The victim was severely injured. I havent personally looked at the victim statement but from my understanding, his injuries werent life threatening. I dont know the specifics im afraid.
If the charge gets reduced to a common assault charge or similar is it possible that he wont be sentenced to imprisonment? Are suspended sentences and community service possible outcomes? Its a lot of speculation I know. Im just trying to prepare myself i guess.
Sorry for being a tad on the slow side replying, have been run off my feet!
While obviously i can't promise anything, do not assume that a GBH conviction (or common assault for that matter) will automatically result in a custodial sentence. This doesn't mean he won't go to jail of course, but it's certainly not inevitable depending on cirxstances.
Injuries of a non life threatening, or that won't have permanent repurcussions are a good start. However the more serious the injuries, the higher likelihood that a jail sentence will result.
The matter of provocation will also be raised by your bf's defence lawyer (hopefully anyway!). Was your boyfriend provoked in any way? Was there anything that the victim said/did that could have resulting in your boyfriend committing the assault? To use an example, the victim could have stated 'i sodomised your 2 year old daughter' or something like that. While this is on the extreme side, and i apologise for the xogy, you could see that even a reasonable person could be pushed to violence in the situation.
Complicating the issue further is that NSW has a greater range of sentencing options, including periodic detention (which isn't available in QLD as a sentencing option). A common form of punishment is an 'Intensive Corrections/Corrective Order' (ICO). This is actually classified as a custodial sentence (in QLD anyway) much the same as a suspended sentence but it is a sentence served in the community. It generally consists of community service, reporting to a corrections officer on a regular basis and any number of other oders required by the court, incuding angr management counselling, drug and alcohol testing etc. I cannot vouch for NSW courts but in QLD it is a common sentence for assaults, including GBH in QLD (provided there isn't a history of similar convictions, and usually ICO's are placed on people who are on the younger side, it would be rare to see a 40 year old issued with an ICO). If the ICO is breached though it becomes a very serious matter and almost always sees the person being thrown in jail.
If he is jailed, just remember that a 2 year sentence (just a figure plucked from thin air, not at all applicable to this matter) does not mean that he will remain jailed for 2 years. All states have varying forms of remission, conditional release, suspended sentences and parole. Commonly a person will usually spend somewhere between 25%-75% of their original sentence behind bars. A sentence of 2 years may be suspended after 6 months, meaning the person is released after 6 months (but if they stuff up in the operational period of time nominated by the judge they will almost certainly have to serve the remainder of the sentence, plus whatever is thrown on top for the new offence). Parole eligibility is generally set at 50% of the head sentence unless otherwise nominated by the judge or magistrate (can be lower or higher than 50%). Parole is often dependent on rehabilitation attempts, attending courses while incarcerated etc and showing a demonstrated attempt to curb the offending behaviour. Remissions and conditional release (and similar) differ from state to state, but are usually in the order of 2/3rds of the head sentence. Usually this comes in to play mainly on shorter sentences with no set parole period and is generally guaranteed unless there has been excessive bad behaviour while incarcerated. The reason that it generally doesn't apply to longer sentences is simply because parole/suspended sentence conditions usually are attached to the original sentence whereas a sentence of say 3 months won't have such conditions a lot of the time, simply because it isn't long enough to demonstrate rehabilitation efforts or prospects. This is not always the case but it is often the case.
Anyway i'm sure your boyfriends legal rep will go through all the scenarios for you and hopefully he will be granted bail at some stage. His lawyer will look for precedents which involve similar offences committed by those with similar histories. A judge will not sentence someone to 5 years jail where a similar offence attracted a 12 month suspended sentence, or if they do it will almost certainly be overturned on appeal. The judicial system is bound heavily by precedents.
Good luck, and feel free to ask any questions. For the record i'm not a lawyer so take all my advice/statements with a grain of salt but i have completed a law degree so i do have a basic understanding!
Fingers crossed for your bf!
Thank you so much for your reply!! It was extremely helpful. And gives me hope!!
His lawyer has actually advised that he plead not guilty to the GBH charge and guilty to a lesser charge. I'm not sure how that'll affect the sentencing if he is found guilty of the GBH charge instead?
Also, his court hearing has been scheduled already, is it likely or common that the date will change? Its in 6 weeks time, I only ask because I have just started a new job and taking leave and all that....
Anyway, thanks again. All this is really new to me so im just trying to prepare myself for the worst.
We did apply for bail, but it was refused. He is still currently in remand. His family and legal reps have advised not to re-apply for bail as it is too costly and probably unlikely as well, as the court appearence is only one month away now. So.. I dont know. I guess we wait it out. Theres not much I can do to help the case.
Thank you so much for your previous reply though.
Just thought Id update on our situation. And hopefully you can ease this constant fear and unknown in me!!
He's still in MRRC in remand, court hearing is on 17th Feb, but I realise that he may not get sentenced that date, is that right?
We will be applying for bail then though.
His solicitor is anything but encouraging. I understand its not his job to be, but its also not his job to make personal judgements. Anyway thats another issue sorry.
In your previous post you said that it is fairly common for charges to get reduced. Is it a likely occurence do you think?
And just in case it doesnt get reduced, should he plead guilty or not guilty to the GBH charge. What is the possible length of sentence if he does?
Im so scared and confused and its really difficult to get any idea of what to expect.
Any reply is appreciated.
It is in the realms of possibility that he may be sentenced on that date, but highly unlikely.
Is the matter being heard in the Local Court or District Court? If the matter is still before the Local Court he will not be sentenced as an offence of this nature will not be finalised in the Local Court, unless of course the charge is downgraded to an offence which can be heard in the Local Court.
A basic rundown of what will happen is the evidence will have been presented to the prosecutor and will decide to either proceed with the current charge, reduce it to a lesser charge, or withdraw the charge.
Your bf will then be asked to make a plea. If a plea of not guilty is entered then the matter will be set down for trial (if already at District level), or if still at Local level it will be referred to the District Court.
If a plea of guilty is made a few things could happen. He could be sentenced then and there, or could sentencing could be adjourned for a later date (District) or once again it could be referred to the District for sentencing (if still in the Local court). Of course if the charge has been reduced to assault or similar, the Local Court would have jurisdiction to impose a sentence then and there also.
A bail application can be made, even if a plea of guilty is entered and sentencing has been adjourned, however if the Magistrate or Judge considers it likely that a custodial sentence will be imposed it's extremely unlikely bail would be granted. However if a plea of not guilty is entered bail becomes much more likely, depending on the exact circumstances of course.
I don't know the circumstances and injuries inflicted on the other person and i can understand you wouldn't be keen to post them on a public forum! However without that sort of information i really can't even hazard a guess what the punishment might be, much less whether a plea of guilty should be entered.
I have seen sentences for GBH ranging from a good behaviour bond all the way up to 15 years in jail (was for a very serious gang assault which left the victim permanently disabled). It depends on many things, previous history, if there was any provocation and extent of the injuries inflicted.
If you would like to discuss matters further and give me a little more information off this forum feel free, but your boyfriends solicitor would be the logical person to shoot these questions to.
Which brings me to the issue of your (bfs) solicitor passing personal judgement. The role of the solicitor is to defend their client to the extent allowed by law, nothing more, nothing less. Personal comments or judgements are unneccesary and unprofessional. Sure, a legal representative has no obligation to be supportive in the situation, or to even like their client... but personal issues have no place in a legal defence. The job of the solicitor is to give the best defence possible. That's it.
If you wish to make a formal complaint there are various avenues for this. I am assuming your solicitor has been appointed by Legal Aid? If so you can make an application to have another solicitor take over the case. Unprofessional personal comments are grounds to make such a request because there could be a belief that he would give your boyfriend something less than the best defence. Of course if the solicitor is one of your choosing, you can always appoint another representative.
I know i have not been of much help, but you are certainly free to contact me by email etc if you wish to elaborate on the case, i can't guarantee anything of course, but i can give you an indication of what is likely to happen when he appears in court next.
Thank you so much for your offer. I would love to respond with further details via email if that would be okay? If you like you can forward your email address to mine (***@hotmail.com) so that you dont have to post it here. I really would like to go into some of the details, as I think that will help you provide a better indication of what to expect.
As for his solicitor, he's not from Legal Aid, we only just hired him or had the agreement finalised rather. It was only a couple of side comments referring to what "he" thinks should happen to my bf. Not very substantial and not enough to warrant a formal complaint on his record. I think its just more of a personality clash.
Anyway, I look forward to hearing from you. I cant thank you enough!!
dee7484 2009-02-14 04:22:03
Just bumping up this thread. Hoping someone may be able to help or offer any more information.
Just an update... my bf just had a hearing and apparently the DPP is pushing the GBH with INTENT charge because of the victim statement that was presented to the court. So if our lawyer cant get the charge reduced by the next court date, we wont be able to apply for bail and well I guess it goes trial.
I'm just a little baffled as to WHY the DPP is still going with the GBH with Intent charge when our lawyer says they cant prove that he intended to cause the injuries which he did on the victim.
Is there anything we can do to try and assist in getting the charges downgraded???
Dee, firstly my apologies for not getting back to you sooner. My personal life has been somewhat of a shambles lately!
I have been casually following proceedings both here and also on PrisonTalk (i assume that's you over there lol) in the meantime.
If the Crown is refusing to budge on the charge, this can actually be a blessing in disguise for your boyfriend. Albeit he will be held in custody until the trial, but if your solicitor is questioning the validity of the charge there must be some evidence to suggest this and it may well be easier to get an acquittal as opposed to a lesser charge which may be far harder to defend.
The Crown can't stop halfway through the trial, reaslising that they aren't going to be able to successfully prosecute and say 'Your Honour, we are in deep sh*t and don't think we will secure a conviction, we would now like to amend the charges!'. The prosecution is only allowed one bite at the cherry, if they stuff it by trying a trumped up charge, that's it!