Are Judges out of touch?

Last week, the Queensland Sentencing Advisory Council launched their new website, “Judge for Yourself”. It is hoped that the tool will change the perception that judges are out of touch with the public. Legal Director, Dan Rogers is a member of the Sentencing Advisory Council and participated in the launch of the project.

Visitors to the site are invited to engage in three sentencing hearings and then decide the sentence they think is appropriate. The program has been endorsed by much of the legal community, including Attorney-General Yvette D’Ath.

“We have thousands of people sentenced every year, a very small percentage go on to appeal and an even smaller percentage of those are overturned,” Ms D’Ath said.

“So the majority of sentences are never challenged and are accepted by the victims, the offenders and the broader public.”

“But there is a misconception out there about whether some sentences are too harsh or too lenient.”

Former Supreme Court judge George Fryberg has also endorsed the program, acknowledging that “Too often the public is misled by inadequate descriptions of sentences, particularly in cases of violence.”

Council member Dan Rogers has pointed out that “Research has shown that when the community has all the facts, their sentences are slightly more lenient than judges.”

“The reality is the judges are not out of touch.”

Explore the resource here.

Robertson O’Gorman represents defendants at sentences to ensure the optimal outcome. Call us today on (07) 3034 0000.

Consorting Laws

With the coming into effect a week ago the new consorting provisions of the Serious Organised Crime legislation there were already signs of Police aggressively starting to implement the new Consorting laws.

It is an indictable offence for a person to consort with what is described as ‘recognised offenders’ after having been given an official warning by police with respect to each of those individuals.

A ‘recognised offender’ is a person aged 18 years or over who has a recorded conviction for an indictable offence punishable by a maximum of at least five years jail.

A person who ‘consorts’ with another person if they associate with the person in a way that involves seeking or accepting the other person’s company.  For an act of consorting to be captured there needs to be an intentional seeking out of a personal or social relationship with another person.

There is a reverse onus defence whereby certain acts of consorting will be disregarded if they are reasonable such as those that are necessary for participation in civic life, for example, consorting with close family members or for the purpose of legitimate employment or generally obtaining education or health services.

The consorting offence replaces the anti-association offence of the Newman-Bleijie VLAD legislation era.

The consorting offence makes it a criminal offence for a person to associate with two other people who have previous convictions.

The official warning in relation to consorting can be given orally or in writing and must be given in relation to each convicted offender.

Warnings can be given pre-emptively, for example, the official warning can be issued by police without any consorting ever having occurred, but the person must then consort with those people on two occasions, post-receipt of the warning.  Warnings can also be given retrospectively, for example, non-contemporaneously based on video footage.

There is no right of review for the issue of an official warning.

It is, therefore, important that anyone the subject of an official warning particularly in the first number of months of the new law being implemented by Queensland Police urgently obtain legal advice.

Magistrate Court Pleas of Guilty: The Devil is in the Detail

The vast majority of those charged with a criminal offence will have their matters resolved in the Magistrates Court.

Statistically, a great number of these people will plead guilty to the offences which they are charged with.

As a result of this, there can be a tendency in the Magistrates Court to favour expediency rather than presenting the case of a client in a balanced and well prepared fashion.  What is imperative to remember is that the Magistrates Court is a dynamic jurisdiction and one which calls for significant preparation of matters which are proceeding to a plea of guilty.

This preparation can take many guises however will often involve the taking of a detailed personal statement from the client (with particular focus given to relevant factors at play at the time of offending).  References should be not only obtained but carefully scrutinised to ensure that they add some meaningful value to the sentence proceedings.  A well-tailored reference can, for example, give a greater insight into the person’s personal circumstances which could save the advocate themselves from having to submit on same.  Whilst increasingly practitioners are being forced to make submissions on penalty in the Magistrates Court without reference to authority, it is also imperative that the research be done should the Magistrate take umbrage with your ultimate submissions on the appropriate sentence.

Essential to the preparation for a Magistrates Court plea is also consideration of the growing list of diversionary programs including police and Court drug diversion and the Queensland Integrated Court Referral (QICR) program.  A well-developed knowledge of these referral programs will show that they are not solely directed at those who are marginalised in society but rather can have a wider remit and application, particularly for those who are motivated in addressing the underlying causes of their criminal behaviour.

Of course, all of this material needs to be bundled and condensed into a concise package.  It is important to have all the information to hand should the Magistrate query any particular area.  A failure to do so can result in the matter having to be needlessly adjourned or the Magistrate making a negative finding against your client.

Preparation is therefore key and the experienced Magistrate will be able to detect very quickly those who are lacking in this department.

Top tips for Magistrate Court plea preparation

  1. Know your client’s personal circumstances;
  2. Gather relevant and concise references from those who know your client best;
  3. Understand the factual basis on which your client will be sentenced on;
  4. Always have a valid authority up your sleeve for your sentencing submissions;
  5. Keep the submissions concise.

All of this comes as second nature to an experienced practitioner.  Here at Robertson O’Gorman we have a combined 75+ years of experience in preparing such matters and are able to tailor a sentencing solution to meet your needs.

The proposed No body No parole law change

Civil Liberties lawyer Terry O’Gorman this week welcomed the recommendations of the Sofronoff Inquiry into Queensland Parole with the exception of the ‘no body no parole’ proposed change to parole laws.

Terry O’Gorman said that he particularly welcomed the proposal for the establishment of an independent Inspectorate of prisons.

Mr O’Gorman said that the independent Inspectorate would report to Parliament rather than secretly to the prisons’ Minister.

“The beauty of the independent Inspectorate is that it will hopefully end the ‘out of sight out of mind’ attitude to Queensland’s prisons”, Mr O’Gorman said.

Mr O’Gorman said that an independent Inspectorate of prisons will hopefully bring out in the open the unacceptable degree of sexual assault, overcrowding and often quite substandard conditions that prevail in Queensland’s jails.

However Mr O’Gorman expressed considerable reservation about the practicality of the ‘no body no parole’ proposed changes.

“While sympathising enormously with the surviving family of a murder victim, the reality is that the proposed ‘no body no parole’ law change is simplistic”, Mr O’Gorman said.

Mr O’Gorman said that if the ‘no body no parole’ law change had existed in the Northern Territory when Lindy Chamberlain was the victim of a miscarriage of justice when convicted of the murder of baby Azaria in 1980, she would have been kept in jail for the rest of her life thus compounding the miscarriage of justice that a Royal Commission eventually found that she was the victim of.

Mr O’Gorman said that there are also other circumstances where a body may not be able to be found even if there is cooperation by a prisoner.

“If the body has been buried at sea or buried and then the area has been inundated by flood there will be no possibility of the victim’s family getting the closure that they so deservedly need”, Mr O’Gorman said.

Mr O’Gorman said that if there was to be a change to the law that brought in a ‘no body no parole’ law change the extent to which a convicted murderer had cooperated with police should not be decided by the police but rather should be decided by the Supreme Court.

Rehabilitation Services for Prisoners & Queensland’s Parole Changes

Civil Liberties lawyer, Terry O’Gorman this week welcomed more rehabilitation services in Queensland prisons and the establishment of a single Statewide Parole Board as part of the State Government’s parole revamp.

Civil Liberties lawyer said that with the State’s prisons’ overcrowding at almost 120%, mental health and rehabilitation services risk being pushed further down the list of priorities for Queensland prisons as more and more money in the State’s prison budget risks being spent on more jails and more prison officers.

“Currently Wolston Correctional Centre has a capacity of 600 but has inmate numbers of 750, and that significant level of overcrowding is repeated in all prisons around the State”, Mr O’Gorman said.

Mr O’Gorman said that recidivism for prisoners in Queensland is above 60% and the sheer economics of the costs of this number of people repeatedly being returned to jail in Queensland needs to be confronted.

“More and more money is being spent on prisons which means less and less money for hospitals and schools”, Mr O’Gorman said.

Mr O’Gorman said that if any other State Government department had a 65% failure rate, it would be shut down.

Mr O’Gorman said that both the high rates of recidivism and overcrowding was significantly caused by too little money being available for jail programmes which prisoners have to undertake before being eligible for parole.

“Prison numbers are necessarily high because prisoners cannot get on to internal jail programmes until well into their sentence with some prisoners serving well beyond their parole eligibility date because of dwindling money being available for programmes”, Mr O’Gorman said.

Mr O’Gorman called for a further shake-up of the Prison and Parole System by the appointment of an Independent Prisons Inspectorate similar to that which operates in Western Australia and the UK.

“An Independent Prisons Inspectorate can report to Parliament and not to the Minister, and this opens up to public scrutiny inefficiencies and problems in both the Prison and Parole System”, Mr O’Gorman said.

“Not only will that result in bringing greater efficiencies to both the Prison Estate and the Parole Board and thereby save money but it would get rid of the ‘out of sight out of mind’ mentality which has characterised the Queensland Prison and Parole System for decades”, Mr O’Gorman said.

Privacy Issues with Mastercard Selfies

Civil Liberties’ lawyer Terry O’Gorman this week criticised the lack of privacy safeguards in respect of Mastercard’s announcement that Australian users of Mastercard can use photographs of selfies to authenticate credit card transactions.

Mr O’Gorman said that while it was reasonable for a major credit card provider such as Mastercard to develop more effective technology to prevent credit card fraud, it is equally important that the Australian Federal Privacy Commissioner lay down strong and enforceable regulations to Mastercard to ensure the photos produced for authentication of credit card transactions are not onsold to other data companies.

“Last month Europe’s highest Court handed down a ruling affecting Google and other multinational companies requiring that the free for all onsale of data gathered by Google and other large data companies be significantly reined in”, Mr O’Gorman said.

“It is not within the power of individual Mastercard holders to approach Mastercard to ensure that the selfie photos are not onsold to companies who make large amounts of money by passing such data on to advertising companies”, Mr O’Gorman said.

Mr O’Gorman said that it is for this reason that it is absolutely critical that, before the Mastercard selfie photo authentication process is rolled out in Australia, the Federal Privacy Commissioner imposes a strong and effective regime on Mastercard to prevent unauthorised onsale of the photographic details.

The Australian Building and Construction Commission – Your Rights

Building and Construction Commission.  Under the Act, you do not have the right to refuse to answer questions during an examination because the answers would be self-incriminating.  However, any responses given during an examination cannot be used as evidence against you in further criminal proceedings (except under limited circumstances such as giving false statements).

If you give information under an examination notice you are not liable to any proceedings for contravening any other law because of that conduct.  Any documents inspected or copied, or information obtained from the coping or inspection of the documents, is not admissible as evidence in criminal proceedings other than in limited circumstances set out in the Act.

In relation to kept documents or records, while authorised officers have the power to retain the documents, they must allow certain people (the person who gave the documents or person entitled to possess the documents for example) to access or make copies of the relevant documents at all reasonable times.  Further, you are entitled to be supplied with a certified copy of the documents as soon as practicable.  These copies must be received in all courts and tribunals as though they were originals.

Upon entering a premises, officers must show their identity cards to the occupier or owner as soon as practicable.  While authorised officers have the power to enter premises (without force) they can only do so under certain circumstances, such as if they believe building work is being performed, there has been a breach of the Act, or, for business premises, they believe there are documents relevant to compliance purposes on, or accessible from, the premises.  Under the Act there are further restrictions regarding entry.  If you have questions regarding whether the entry of officers is lawful, it is recommended that you obtain legal advice.

Obtaining legal advice when under an investigation, particularly regarding examination notices, is a very important step to protect your rights and interests.  Robertson O’Gorman regularly assist and appear on behalf of individuals under these circumstances.  We understand that experienced lawyers are key to protecting you during investigations or inquiries.

The Australian Building and Construction Commission

The existence of a body to regulate unions in the building sector has been a concern for a number of years.  After the Cole royal commission in 2003, the Howard Government established the Australian Building and Construction Commission to regulate this area.  This body was then abolished by the Gillard Government in 2012, and was replaced by Fair Work Building and Construction.  More recently, the Abbott, and later Turnbull Governments, moved to re-establish a watchdog for this sector, and, when its re-establishment met resistance, it became a trigger for a double dissolution by the Turnbull Government, which was returned to office and subsequently passed legislation to establish a new commission.

The Australian and Building Construction Commission, the current watchdog, was re-established by the Building and Construction Industry (Improving Productivity) Act 2016 (‘The Act’).  Its role is to enforce compliance with legislation such as the Fair Work Act 2009 and the Independent Contractors Act 2006 amongst others.  To do this, the Commission has a number of powers, including requiring a person to attend an examination to give answers, to provide information and produce documents.

It is an offence to not comply with an examination notice, such as by non-attendance or answer relevant questions, the penalty for which is six (6) months imprisonment.  Other powers of the authorised officers include entering a premises (without force), inspect work, interview any person, require a person to tell the officer who has custody, or access to, a record or document and can request the custodian to produce the document.  Under the Act, authorised officers may also copy and/or keep documents for as long as necessary. Authorised officers may also inspect or make copies of any record or document that is either on the premises or is accessible via computer from the premises.  Under some circumstances, authorised officers also have the power to require you to give your name and address.

Robertson O’Gorman regularly appear on behalf of individuals who face a commission of inquiry or investigation. Having an experienced lawyer protecting your rights and interests is vital.

Dan Rogers Obtains Specialist Accreditation in Criminal Law

Legal director of this firm, Dan Rogers recently obtained a Specialist Accreditation in Criminal Law from the Queensland Law Society.

The award is an acknowledgement of Dan’s high level of practical skill and knowledge in criminal law. Fewer than thirty practitioners around the state have achieved the accreditation.

Dan joins Leigh Rollason and Terry O’Gorman as Accredited Specialists in Criminal Law working at Robertson O’Gorman. The firm continues to ensure that our clients are receiving the highest level of representation.

To speak with an Accredited Specialist today, call us on (07) 3034 0000.

The Right to Protest: Intended lifetime ban for refugees who travel to Australia by sea

On Monday, 21 November 2016, Dan Rogers appeared pro bono for a group of three protestors that were charged with unlawfully doing an unregulated high risk activity and obstruct police. The ‘high risk activity’ was sitting on top of an awning at Immigration Minister Peter Dutton’s office.

The three protestors were each charged with the offending after staging a protest against Mr Dutton’s proposals to permanently ban refugees who travel to Australia by sea. All three plead guilty to the charge and received a $100 fine with no conviction being recorded.

In a democratic society, the right to protest is just as important as the right to vote. Public protests are a way for the general population to express their disagreement with the actions of the executive or the parliament. In most cases, Australian protests are very safe and peaceful. There are, however, a number of laws which attempt to limit protests. In pleading guilty, the clients acknowledged that they broke the law. However, their actions were motivated by the human rights abuses concerning Australia’s immigration policy.

To speak with a solicitor today, call Robertson O’Gorman on 3034 0000.