Criminal Charges can have serious consequences on you and your family’s lives. Most people who seek our advice are charged with offences that could result in penalties including a custodial sentence or Community Corrections Order (CCO). In these circumstances, you need a firm that has extensive experience in criminal law to ensure that you receive the best outcome possible. Our team of criminal lawyers handle a wide range of criminal cases, including but not limited to a breach of intervention orders (IVO), assaults, drug matters, theft, fraud and sexual and indecent assaults. Our team is lead by Christopher Andrews a former member of Victoria Police wherein he served as an instructor at the Victoria Police Academy giving us a unique perspective.
At Berwick Legal Lawyers we understand that being a summons to court or charged can be a confusing and overwhelming process. Our lawyers are skilled at guiding you through the proceedings and keeping you informed of developments in your case.
Do I really need a Lawyer?
It is, of course, your choice whether to represent yourself or have a solicitor represent you. If you are worried about a criminal conviction, loss of license or possible period of imprisonment, we would advise having a solicitor represent you. For someone who is unfamiliar with the Court system, navigating an assault charge, for example, can be daunting and we can guide you through the process.
Offences which are listed before a court are resolved in the local Magistrates’ Court subject to you submitting to summary jurisdiction. These types of matters are charges which can be heard summarily. The Criminal Procedure Act 2009 (Vic), as well as other matters, outlines how a criminal charge can be listed and the procedures for hearing in Court.
Section 28 and 29 of the Criminal Procedure Act states that a charge may be dealt with in the Magistrates’ Court if:
- The maximum penalty does not exceed 10 years’ imprisonment or a fine of more than 1,200 penalty units; and,
- The Court considers that it is appropriate for the charge to be heard in the Magistrates’ Court; and,
- The accused person agrees that the matter should be heard in the Magistrates’ Court.
Schedule 2 of the Criminal Procedure Act also provides a list of further offences which may have a higher penalty than 10 years’ imprisonment or a fine of 1,200 penalty units but may still be determined in the Magistrates’ Court. An example of this is section 71B of the Drugs, Poisons and Controlled Substances Act which states that a person cannot supply a drug of dependence to a child for the use of that drug by the child. Whilst the maximum penalty for that offence is 15 years’ imprisonment or 1,000 penalty units, the matter may be heard in the Magistrates’ Court.
Once you have been charged with a criminal offence, you will receive a court date and time to appear at a Magistrates’ Court.
The summons or charge sheet will have a box ticked as to whether “you should go to court” or, whether “you must go to court”. If you are on bail it is very important that you attend court at the stated date and time. As failure to appear may result in further charges being laid and the Magistrate issuing a bench warrant for your arrest. Once you have failed to appear at court it may become more difficult to obtain bail again. If you are not on bail it is still very important to appear at Court. In our experience, you will not receive as good of a result from the Court if you do not attend. By appearing at Court the Magistrate will take into consideration that you understand the seriousness of the matter.
The maximum penalty for an offence heard in the Magistrates’ Court is 2 years’ imprisonment for a single charge and 5 years’ imprisonment for charges which are heard together (an aggregate sentence). This is regardless as to the maximum penalty in the legislation.
Filing of Criminal Charges
A summary offence is an offence which has a maximum penalty of 2 years’ imprisonment or a fine of up to 240 penalty units unless the legislation states otherwise.
Most summary offences which are heard in the Magistrates’ Court are offences under the Summary Offences Act or the Road Safety Act. Victoria Police or any other prosecuting authority has up to 12 months from the date of an alleged offence to charge a person if the charge is a summary offence.
An indictable offence is an offence which has a maximum penalty of more than 2 years’ imprisonment or a fine exceeding 240 penalty units unless the legislation states otherwise.
There are no time limits for the Victoria Police to charge a person with an indictable offence.
The charge sheet must be provided to you in accordance with section 32 of the Criminal Procedure Act. A charge sheet must be filed with a Registrar of the Magistrates’ Court. Once the charge sheet has been filed, the Registrar will provide the Police with the date, time and place your matter will be listed before the Court.
A person who receives a charge sheet is entitled to a preliminary brief of evidence. A preliminary brief of evidence should contain the following items:
- A copy of the charge sheets;
- Notices concerning your right to legal representation;
- A statement from the Informant (the police officer charging you);
- A copy of your criminal record (if applicable);
- A statement of alleged facts;
- A description of the background to, and consequences of, the alleged offence;
- A list of possible police witnesses;
- A summary of any statements or admissions made by accused;
- A list of possible exhibits; and,
- Any other item which may assist the accused in understanding the charge/s laid.
If a lawyer makes a request in writing for a copy of the preliminary brief of evidence, the Police are required to provide a copy within 14 days of the request. Notwithstanding this, the police brief of evidence is usually given to the person charged at the time of being charged or is available on the first mention date.
The first court listing of a summary offence is known as the first mention. This listing will happen in the Magistrates’ Court stated on the charge sheet or summons. If you plead guilty (PG) then your matter will usually be resolved on that day. If you plead not guilty (PNG) then Section 54 of the Criminal Procedure Act states that a case conference is to be conducted where possible on the same day.
A case conference is a conference between the prosecution and the accused of the purpose of managing the progression of the case including:
- identifying and providing to the accused any information, document or thing in the possession of the prosecution that may assist the accused to understand the evidence available to the prosecution; and,
- identifying any issues in dispute; and,
- identifying the steps required to advance the case; and,
- any other purpose prescribed by the rules of court.
Case Conferences are a very useful tool to “narrow the issues” between the parties and help determine the strengths and weaknesses of both parties’ cases. This advice will assist you in making a decision about whether to enter a plea of guilty or a plea of not guilty to each charge. If the matter is not resolved at the case conference, then the matter will be adjourned to another date for a contest mention.
Sentence indications are described in Division 3 of Part 3.3 of the Criminal Procedure Act 2009, sentence indication schemes have been available in Victorian Courts since 2008. In some matters, it is useful to obtain a sentence indication before deciding to enter a plea. A sentence indication allows an accused to obtain an indication of the sentence that they would face if they were to enter a plea of guilty (PG) to an offence. In the Magistrates’ Court, a sentence indication may be given at any time during criminal proceedings. A Magistrate may give a sentence indication without a request from the parties. A sentence indication may indicate whether the court would be likely to impose a sentence of immediate imprisonment or the type of sentence that the court would be likely to impose (for example, a fine or a community correction order).
A contest mention is a hearing before a Magistrate where the parties narrow the issues in dispute and perhaps negotiate in an attempt to resolve the matter without the need for a contested hearing. Pursuant to section 39 of the Criminal Procedure Act 2009, Victoria Police must serve all evidence they have on an accused or the accused’s legal representative 14 days prior to a contest mention hearing. Often at contest mention, the magistrate will make enquiries of the accused and the prosecutor to assist in negotiations between the parties and indicate whether a case can be resolved by finding common ground between them. This is the final court appearance before the matter proceeds to a summary hearing where witnesses are called to give evidence and the matter is finally determined.
A summary contested hearing takes place if an accused pleads not guilty to the charges laid against them and the matter has not resolved at either the first mention, case conference or the contest mention.
At a contested hearing a Magistrate will determine the innocence or guilt of an accused based upon the evidence given in court. Witnesses may be called to give evidence. The prosecution must prove beyond a reasonable doubt each element of an offence. If an accused is found to be not guilty then no penalty will be imposed, and the offence will be withdrawn and struck out. If an accused is found to be guilty, the matter will proceed to a sentence usually on the same day.
Penalty and fee units are used in Acts of Parliament and Regulations to describe the amount of a fine or a fee. The way that penalty and fee units are set and calculated is set out in the Monetary Units Act 2004.
Penalty units are also used to define the amount payable for fines for many offences. The rate for penalty units is indexed each financial year so that it is raised in line with inflation. Any change to the value of a penalty unit will happen on 1 July each year. The rate for penalty units is indexed each financial year so that it is raised in line with inflation. Any change to the value of a penalty unit takes effect on 1 July each year.
Fee units are used to calculate the cost of a certificate, registration or licence that is set out in an Act or Regulation. For example, the cost of depositing a Will with the supreme court registrar of probates is 1.6 fee units. The value of one fee unit is currently $14.45. This value may increase on 1 July 2019, at the same time as penalty units.
The cost of fees and penalties is calculated by multiplying the number of units by the current value of the fee or unit. The exact cost may be rounded up or down.
Please contact our offices for further information or an appointment to discuss.