If you’re not happy with the outcome of your court hearing, you can appeal your conviction, your sentence, or both.

If you have been found guilty of a criminal or traffic offence after a trial, you can appeal your conviction. 

If you have been sentenced by a court, after a trial or after pleading guilty, you can appeal the sentence.

The court procedure for appeals is slightly different depending on whether you are appealing the decision of a Magistrate from the Magistrates Court, or if you are appealing the decision of a Judge from the District or Supreme Court.

The main thing to note about appeals is that they are not to provide you with another go at your court hearing. Appeals must be based on specific errors that occurred as a matter of law at your trial or at your sentencing. Therefore, the grounds of appeal that you rely on must allege that the Judge or Magistrate made a specific legal error, or that the verdict reached was not supported by the evidence. 

Bluntly put, appeal courts are not concerned with whether someone is guilty or innocent; they are concerned with whether a legal error was made at your court hearing. 

Appeals from decisions in the Magistrates Court

If your matter was heard in the Magistrates Court, and you would like to appeal the outcome (either the conviction or the sentence imposed), then you will need to lodge the appeal in the Supreme Court and it will be heard by a Supreme Court Judge. These are known as Single Judge Appeals.

The first step in an appeal is to file an Appeal Notice. This is a document that puts the Court and the prosecution on notice that you are appealing, and sets out the grounds of appeal. This Appeal Notice must be filed within 28 days of your sentencing date.

In appeals, the term for the party appealing is the “appellant” and the prosecutor who is responding to the appeal is referred to as the “respondent”. 

You will need to also file a copy of the relevant court transcripts and a certified copy of the prosecution notice, and serve a copy of everything you are filing on the respondent. The respondent in single judge appeals may either be the Office of the Director of Public Prosecutions (DPP) or the State Solicitor’s Office (SSO). 

You will then need to prepare written submissions outlining why you say your appeal should be allowed, and the outcome that you are seeking. The respondent will also file submissions in response and, eventually, a hearing will be listed before a Judge in the Supreme Court for you to argue your case. 

Please be aware that, if your appeal is unsuccessful, the respondent may seek legal costs against you, meaning you may be liable to pay their costs of the appeal.

Appeals from decisions in the District/Supreme Courts

If your charges were heard in the District or Supreme Court, the process for appealing involves a few more steps. These appeals are heard in the Court of Appeal. 

Firstly, you will need to file an Appeal Notice in the Court of Appeal and serve it on the respondent. The respondent in these appeals is the DPP.  This Appeal Notice must be filed within 21 days of your sentencing date.

After an appeal notice is filed, you will be required to file your submissions, known as the Appellant’s Case, within eight weeks. 

Prior to getting a hearing in the Court of Appeal, you must first be granted ‘leave’ or permission to appeal. This is a step by which the Court determines early on whether an appeal has merit and should be allowed to proceed further. 

A judge from the Court of Appeal will then read your documents and determine whether:

1. They are satisfied from reading your submissions that your appeal has some merit and that leave (permission) to appeal should be granted; OR
2. They are not satisfied from reading your submissions that the appeal has merit and they require you to attend at a hearing to argue whether leave to appeal should be granted; OR
3. They are not satisfied from reading your submissions that the appeal has merit and leave to appeal is not granted meaning your appeal is dismissed at this step; OR
4. They simple refer the question of leave to the hearing of the actual appeal.

If you are granted leave, or leave is referred to the actual hearing of the appeal, the next step will be for the respondent to file submissions in response to yours. 

After that, you will be notified that a hearing will be listed.

A hearing is generally listed before three Judges of the Court of Appeal. On the hearing date, all of the Judges presiding would have read all of the paperwork and will generally ask you to answer certain questions or discuss certain points. 

After the hearing, you will be told whether there is a decision that will be delivered immediately, or whether the decision is “reserved” meaning you will need to come back on a later date for the decision. 

An appeal in the Court of Appeal can usually take about 9 months from start to finish. In certain cases, you may be able to apply for an expedited appeal which will be heard sooner. 

The importance of getting legal advice

Because appeals are very technical in nature, and the appeal grounds must focus on specific errors of law, it is important to get legal advice about whether your appeal has any merit and, if so, on what grounds.

A lawyer will be able to read the relevant transcripts, either from your trial or sentencing, and provide you with an opinion about whether there is merit in appealing. A lawyer will also be able to prepare and file and serve all of the necessary paperwork and attend at the court hearings for you. 

It is particularly important to seek advice about whether there is merit in appealing in Single Judge Appeals because you may face the added consequence of having to pay the respondent’s costs where your appeal has no merit and fails. 

Chambers Legal ordinarily obtains the expert advice of a barrister practicing in appeals.

If you would like to discuss your potential appeal, please contact Chambers Legal on (08) 9500 8915 or at [email protected].

Mandatory means something that is required, by rule or law.

In the criminal sentencing process, mandatory sentencing means a sentence that must be given, no matter the circumstances.

What criminal offences carry the term of mandatory sentencing?

There are several offences which carry a term of mandatory sentencing. These include:

1. Reckless driving in circumstances of aggravation to escape pursuit – where there is a police chase
2. Assault of a public officer/police officer in certain circumstances (called “prescribed” circumstances)
3. Being a third-striker for home burglary offences, meaning you have been found guilty of at least three different home burglary charges
4. Sexual assault or grievous bodily harm committed in the course of a burglary

None of these sentences allow for the imprisonment to be suspended. All sentences are for immediate imprisonment only. This means the accused person actually goes to jail for the minimum mandatory period.

The mandatory sentencing approach

Mandatory sentencing is something conceived in parliament as a way to try and put forward a ‘tough on crime’ approach. To the general public, this may sound like positive thing but, in reality, there is no evidence to show that mandatory sentencing has reduced crime.

One of the biggest disadvantages of mandatory sentencing is that it takes away from the Courts being able to consider each case individually and consider the distinct circumstances of each, as well as being able to take into account the circumstances of the accused person (for example, serious mental health issues). 

Criminal defence lawyers, including Chambers Legal, as well as members of the judiciary, strongly oppose mandatory sentencing, as it imposes significant restrictions on Magistrates and Judges, and infringes on judicial independence and discretion. Magistrates and Judges often express regret at having to sentence someone with a mandatory sentence, but their hands are tied by the law. 

No ‘one size fits all’ to criminal sentencing

The sentence should be based on the facts of the offending, the level of criminality and culpability involved, the aggravating and mitigating factors, and the circumstances personal to the accused. It should not be a “one size fits all” approach. Imprisonment should rightfully remain as a sentence of last resort, and should be decided upon on a case by case basis.

There are a large number of accused that come before the court, caught out under the mandatory sentencing laws. This results in people being sent to prison when they would otherwise not reach that sentence of last resort. This also results in people pleading not guilty and proceeding to trial, in an attempt to avoid conviction and the inevitable mandatory sentence. These people may otherwise have pleaded guilty and been sentenced.

This, in turn, clogs up our already overloaded judicial system, causing trials to be listed further and further away in the future.

Seek advice from a criminal lawyer

In some circumstances, these charges can be negotiated with the police and prosecution. The negotiation can involve offering to plead guilty to a lesser charge that doesn’t carry a mandatory sentence, making a submission to remove a circumstance of aggravation that results in a mandatory sentence, or making a submission that the charge should be discontinued altogether.

The right course of action can differ from case to case.

If you are worried about mandatory sentencing and would like advice with your charge, please contact our team of Perth-based criminal lawyers through our contact form, on (08) 9500 8915 or at [email protected].

When you’re being questioned by the police, your first step should always be to seek advice from a criminal lawyer.

If you are under investigation by the police, you may be asked to participate in a video record of interview (also known as an electronic record of interview). The police will often arrest you on suspicion of having committed an offence and then ask you to participate in an interview at the police station.

Exercising your right to silence

When questioned by police, you can exercise your right to silence. You must provide the police with your personal details, being your full name, date of birth and address, but you do not need to answer any other questions. If you choose not to answer any questions, you can answer by saying “no comment”.

You can also inform the officers prior to the interview that you intend on providing a “no comment interview”.

If you do participate in an interview, you will be placed in an interview room with two police officers, and the interview is recorded on video. There will ordinarily be a microphone recording audio in the middle of the table, and a camera recording video off to the side. The officers will also take handwritten notes.

Even if you tell police that you do not wish to participate in the interview, they can still ask you questions, and you will have to decide whether you answer them or not.

The police are required to caution you. As part of the caution, the police must tell you that:

1. You do not have to answer their questions
2. Any answers you give will be recorded and can be played in court if you are charged, and
3. You may answer some questions and not others.

Seek advice from a criminal lawyer

The police must also tell you what your rights are, including that you have the right to communicate with a lawyer. You can exercise this right at any time during the interview, whether it be before the interview, during, or towards the end.

If you exercise your right to speak to a criminal lawyer, the police must stop the interview and recording, and allow you the opportunity to call your lawyer. If you do not have a lawyer, the police will often do an internet search and call one of the firms that come up in the search.

If you do not understand English, an interpreter can also be made available.

It is your decision whether or not to participate in the interview, and there are advantages and disadvantages to this.

Advantages and disadvantages to participating in police interviews

One advantage of participating in an interview is that you get the opportunity to provide your version of events. If you are pleading guilty, you can then submit at sentencing that you assisted police in their investigation by answering their questions. If you are pleading not guilty, your interview will likely be played in court, and this may mean that you can avoid giving evidence at a trial, if your evidence is contained within the interview.

On the other hand, one disadvantage of participating in the interview is that you may be assisting the police in their investigation by providing them with information that they previously did not have evidence of. Also, the police may ask the same question in several different ways, and confuse you, and you may inadvertently answer incorrectly or say something you later regret. 

You may not realise that you are making an admission which can be turned around and used against you later. You also may not be aware of the extent of the evidence against you at the point in time.

It is a matter for the police to investigate the allegation, and to come up with enough evidence to support the charge. There is no need for you to assist police with this.

A ‘no comment interview’

Generally (but not all of the time), it will be best to exercise your right to silence, by refusing to participate in the interview or by providing a “no comment” interview.

If you are intending on providing a “no comment interview”, it is generally best to maintain your response of “no comment” throughout the entire interview, rather than picking or choosing which questions you want to answer. However, you do have the right to answer whichever questions and remain silent on whichever questions you want.

Criminal lawyers are vital to provide support

Lawyers often do not sit in on interviews, as we cannot assist you in answering questions, but can only provide you with advice when asked. Further, if the recording were to fail or any issues were to arise as to whether the interview is admissible as evidence, we may be called as a witness as to what occurred in the interview.

If you have been asked to participate in a police interview and you would like some advice before doing so, please contact our Perth criminal lawyers at Chambers Legal on (08) 9500 8915 or at [email protected].

This is an all-too-common scenario. We have had numerous clients come to us with a charge of assaulting their girlfriend, boyfriend, partner, wife or husband. 

The alleged victim, also known as the ‘complainant’, contacts police and makes a report about the assault.

The police then decide to charge you with assaulting them. This can lead to a few different scenarios, and in all of them, it’s important that you seek the advice of a criminal lawyer immediately.

Assault charges: your options

Sometimes, the police report is false, and there was never any assault, and the complainant now wants to tell the police that.

Sometimes, the police report is true, and there was an assault, but you had a valid defence, such as self-defence, provocation or accident, and the complainant now wants to tell the police that.

In some cases, the police report is true, and there was an assault, but the complainant has changed their mind and no longer wants the charge to continue.

Once a police report of assault has been made, it is then in the hands of the police as to whether or not to lay a charge and continue with a prosecution. Unlike other countries, or in civil proceedings, it is not necessarily up to the complainant whether the charge proceeds. 

Once the police have laid the charge, the matter will proceed to court.

If you are the accused person

We often have clients that then come to us for advice and options as to how this matter can proceed, when the complainant is unwilling or apparently unwilling to come to court and give evidence against them. 

If we become aware that the complainant does not want to proceed with the charge, for whatever reason, we turn our mind to whether the matter can be negotiated with the police. That is, is it practicable for us to send a submission to the police, seeking that the charge be discontinued.

Ordinarily, the accused has bail conditions preventing them from having any contact with the complainant. This must be strictly adhered to, otherwise bail may be revoked, meaning the accused will be held in custody until the charge is resolved. Usually this also results in an additional charge or breaching bail.

An accused person in this position must also be careful not to intimidate or threaten the complainant into withdrawing their complaint, as this can lead to a serious criminal charge of perverting the course of justice. We always advise that you avoiding talking to the complainant at all about the charge or charges, even if there are no bail conditions in place. Passing on messages through other people to the complainant should also be avoided as this kind of indirect contact can still breach bail or can still result in a charge of attempting to pervert the course of justice. 

If you are an accused person in this position, you should seek legal advice as soon as possible and avoid talking to the complainant about the matter, even if you do not have bail conditions that prevent you from doing so. A lawyer will be able to advise you on the options and deal with the police on your behalf. 

If you are the complainant or victim

If you are a complainant or a victim, and you have made a complaint against your partner who has been charged but you no longer want the charge to proceed, you should speak with a criminal lawyer.

If your partner has a lawyer representing them for the criminal charge, you must see a different lawyer. One lawyer cannot advise both of you and you must get independent advice. 

A lawyer will be able to advise you about the options available to you, and what is likely to happen. Even if you have expressed an unwillingness to proceed or go to court to the police, you may still be issued with a summons requiring you to attend court to give evidence. If you are unsure about the consequences of this, speak to a lawyer as soon as possible. 

Dealing with the police about the charge

Depending on the circumstances of your matter, we can consider sending the police a submission seeking that the charge be discontinued.  A prosecution should only proceed when it is in the interests of justice and this includes whether there are reasonable prospects of conviction and whether the prosecution is in the public interest. There may not be reasonable prospects of conviction if a complainant is unwilling to come to court to give evidence. It may also not be in the public interest to proceed with a charge when the complainant does not want a charge to proceed. 

The police may decide to discontinue a charge in certain circumstances. If this occurs, an accused person may be able to recover some of their legal fees through the court process. 

The police may decide to discontinue the charge at an early stage, or at a later stage, including shortly before the trial, or even the day of the trial. There is no set time period for them to respond to our submission.

At a trial, the police will call the complainant as their primary witness to the charge. If they do not answer their summons and do not come to court, the police may seek an adjournment of the trial, or may decide to discontinue the charge. If a witness disobeys a court summons, they may also be arrested and brought to court by police. 

If the complainant comes to court and gives evidence, depending on what they say, an accused person may still be found guilty or not guilty of the charge. 

If the above scenario sounds like something you are experiencing, please contact Chambers Legal’s assault lawyers on (08) 9500 8915 or at [email protected].

When an accused person has been charged and is waiting for their trial or sentencing, they may be released on bail. This means they are out in the community rather than in prison and usually this means there are certain conditions that they must abide by.

One of those conditions may be protective bail. This condition is generally imposed in circumstances where there is an alleged victim to the alleged offence, for example the accused may be charged with assaulting someone and the alleged victim of the alleged assault may be protected by a protective bail condition. 

Witnesses may also be covered by protective bail conditions. The person protected by the bail condition is called the “protected person”. 

In this article, we’ll go through everything you need to know about protective bail and what to expect if bail conditions are breached.

What is protective bail?

Having protective bail conditions usually means that you cannot talk to or go near the protected person. The condition is usually worded in a way that you cannot communicate or attempt to communicate directly or indirectly with the protected person or approach within a certain distance of the Protected Person or where they live, work or are educated.

Communication more commonly includes things like text messages or phone calls, but can also include “liking” a post or sending a friend request on social media. If an accused person is subject to protective bail conditions, they also cannot arrange for someone else to communicate with the protected person on their behalf.

The specific wording of protective bail conditions depends entirely on the case in question and may slightly differentiate in each circumstance so it is important to read through the condition carefully so that you can understand what you can and cannot do. If you are unsure, you should speak with a criminal defence lawyer. 

Why are protective bail conditions imposed?

Protective bail conditions are imposed primarily to protect alleged victims and witnesses. These conditions are imposed to stop an accused person from being threatening or intimidating or otherwise interfering with the criminal justice system running its course.

The condition also protects the administration of justice by prohibiting an accused person from discussing their version of events with potential witnesses. In criminal cases, it is extremely important that each witness be able to independently give their version of events freely and to the best of their own recollection, and without being influenced by others.  

What happens if a protective bail condition is breached?

A breach will result in a further criminal charge of breaching a protective bail condition.

if you are charged with breaching a protective bail condition, in order to be granted bail again, you must satisfy the Court that you have exceptional circumstances. It can be very difficult to show exceptional circumstances, and this may mean that you are remanded in custody, and have to spend time in jail until your matter is resolved.

Therefore, it is extremely important to abide by any protective bail conditions imposed.

The protected person cannot consent to an accused person breaching a protective bail condition. The condition is not imposed by the protected person, but by the court. This means only the court can vary that condition to allow communication and contact. You should speak to a criminal lawyer if you have questions or need advice around this.

What if the protected person wants to talk to me?

Sometimes protective bail conditions can cause significant issues to an accused person. This can happen where, for example, there is a domestic dispute between a husband and wife and one of them is charged with a criminal offence and placed on bail with protective bail conditions prohibiting them from returning to their own house and from speaking to their spouse. This can also indirectly prohibit them from seeing their children or being able to get their personal possessions from their house.

In some cases, the protected person may also not want the condition imposed as the relationship between them and the accused may be continuing and can cause difficulties for both parties. 

An accused person can apply to have a protective bail condition varied or removed entirely. This must be done in court and, until a court has made the change, the condition will be a part of the accused’s bail and must be followed.

In some cases, the condition can be varied to allow contact between the accused and protected person but specify that the accused cannot behave in a derogatory, intimidatory or offensive manner towards the protected person. 

Prior to protective bail conditions being removed or varied, the court will generally require the police or prosecution to speak with the protected person to get their views on whether the condition can or should be removed or varied. In domestic violence cases, there is a specialist family violence team within the court that will be involved in the process and will prepare a report for the court after speaking with the alleged victim. 

Talk to a Perth bail lawyer about your rights

If you are subject to protective bail conditions and you are unsure about what you can or cannot do, or you would like advice applying to the court to vary or remove a bail condition, or you have been charged with breaching a protective bail condition, please contact our experienced criminal lawyers at Chambers Legal on (08) 9500 8915 or at [email protected].

I have committed a criminal offence, but was suffering from a mental health issue at the time. What does this mean for my criminal charge?

When it comes to mental health and the law, you are not alone

The majority of clients that come into our office are people who have been charged with a criminal offence whilst suffering from a mental health issue.

These mental health issues can range from anxiety and depression, to autism spectrum disorder and schizophrenia. 

Some people are aware of their mental illness, whilst others are not. Similarly, some people are already treating their mental illness, whilst others are not.

Either way, criminal charges can be a very harsh reminder that your mental health is important and should be treated appropriately.

Broadly speaking, there are two ways that your mental health is relevant:

Insanity defence

Section 27 of the Criminal Code (WA) sets out what the insanity defence is:

1. A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
2. A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.

To use the insanity defence, a person will need to have a diagnosed mental impairment (which can include a whole range of mental health conditions). A medical practitioner (usually a psychiatrist) will give evidence of this and need to determine whether or not you were able to have capacity to understand what you were doing, control of your actions and understand whether or not you were doing the wrong thing. 

For this reason, mental illnesses such as anxiety and depression are generally speaking, not the kind of condition that would lead to the use of the insanity defence. However, you should still raise this with a criminal lawyer, if you think it might be.

Relevance on sentence

If your mental illness doesn’t amount to a defence, it doesn’t mean that it is completely irrelevant to your criminal matters. 

If you have any kind of mental health condition that played a role in you committing an offence or is a part of your personal circumstances, then the Court will want to know about it when passing a sentence on you. 

If you were in a bad place at the time you committed the criminal offence, but have since then obtained some professional help to address your mental health issues, then the Court will also want to know about that. It is possible for these factors to mitigate any sentence that is imposed on you by the Court. 

Conversely, if you have a mental illness which played a role in you committing an offence and you have not sought treatment, then it is possible that the Court will consider you to be a further risk of re-offending, and you may not receive the benefit of any mitigation.

Overall, dealing with mental health issues can be difficult. It becomes all the more difficult if you have also been charged with a criminal offence. If you have been charged with a criminal offence, and have or believe that you have a mental illness, please contact our criminal lawyers for advice on what this means for your criminal charge.

We can be contacted on (08) 9500 8915 or at [email protected].



Accused of Sexual Assault and Wondering What to Do?

The term sexual offences refers to a range of unlawful acts that are sexual in nature. They are considered serious offences and if found guilty, defendants often face prison time.

If you are accused of a sexual offence, the gravity of the situation may make you feel stressed and confused.  

This is a common experience for many, so we have compiled the information you need to navigate the process. This article outlines the things you should and shouldn’t do to ensure that you can achieve the best possible result.

If you need more information and would like to speak to a sexual offence lawyer, you can book a free 15 minute phone consultation.

What should I do?

Create a record of events

As soon as possible and in as much detail as you can, create a written account of your version of events. You can support this record with other information, such as:

1. Any messages or communication between you and the person who has accused you (complainant).
2. Any CCTV footage of you and the complainant from the time in question. It is important to retrieve this as quickly as possible, as CCTV can be deleted after a certain period of time.
   

Do not let anyone see this document except for you and your lawyer.

This information could be used as helpful evidence should you go to trial. If you don’t collect it as soon as possible, that evidence may be lost.

Make a list of potential witnesses

Consider those who might have been present to witness the incident.

Write down their names and contact details and provide them to your lawyer.

Comply with your bail

If you have been charged and released on bail, make sure you comply with conditions imposed upon you.

Breaching bail is seen as a serious offence and can result in a separate criminal charge.

Click here to read more about applying for bail.

What shouldn’t I do?

Do not contact the person who has accused you (or potential witnesses)

If a person has accused you of sexual assault, do not contact them. If you do, you put yourself at risk of:

1. Witness tampering charges: A charge of attempting to intimidate, influence or harass a witness.
2. Impacting legal proceedings: Contact with the accuser could be used as evidence against you, undermining your credibility in court.
   
3. Breach of bail charges: If you are out on bail, a standard condition is that you must not contact the complainant. If you do, you risk breaching your bail and getting additional charges.
   

The same rules apply to witnesses, so you should not contact any of the people on the witness list that you give to your lawyer.

Make a list of potential witnesses

Consider those who might have been present to witness the incident.

Write down their names and contact details and provide them to your lawyer.

Do not post about the incident on social media

Posting about the incident or the accusation on social media can have serious consequences. These include:

1. Self-incrimination: Anything that you post can be used as evidence in court and harm your defence, regardless of whether it has been taken out of context.
2. Breach of bail: Posting about the incident may be a breach a non-contact or gag order, meaning that you could be charged with breach of bail.
   

Do not ignore the police

Do not ignore any contact you may receive from the police. Instead, contact a criminal lawyer as soon as possible. A lawyer can speak to the police on your behalf and arrange a time for you speak with them.
If you are contacted by the police, you are only required to provide your name, date of birth and address.
Chambers Legal advises that you only answer further questions once you have received legal advice. This is because the police do not always work in your best interests.
There is no legal risk in doing this, as remaining silent cannot be used as evidence of guilt.
You can read more about talking to the police here.

Do I need a lawyer?

Sexual offence charges are serious and often result in imprisonment if the defendant is found guilty. Because of this, Chambers Legal recommends consulting a specialised sexual offence lawyer to ensure you are best prepared for trial.
A lawyer can offer advice on:

1. The charge itself
2. The defences and pleas open to you
   
3. If found guilty, what sentence you may receive
   

A lawyer can also represent you in initial hearings in the Magistrates Court, where you may seek an adjournment and enter your plea. They will then represent you until your hearing and trial end or until you choose otherwise.
Chambers Legal understands that the seriousness of sexual offence charges can place significant stress of the defendant. To help ease this stress, we make sure our clients are fully aware of their rights and options and do so with compassion, integrity and respect.

Find a sexual offence lawyer in Perth

Chambers Legal has an experienced team of sexual offence lawyers who can advise you on legal defences and prospects of success at trial.

Our team prides itself on working with integrity and transparency. We are fair and honest in our pricing, providing proper cost notice. Our legal advice is tailored to each client and always provided in writing.

If you have been charged with a sexual offence and would like legal advice, please contact Chambers Legal on (08) 9500 8915 or at [email protected].

Alternatively, you can book a free 15 minute phone consultation.

In some circumstances, it may be appropriate to make a plea offer or submission to the prosecution in order to discontinue your charge, downgrade or amend your charge to a lesser or different offence, or amend the facts of the charge.

The prosecution is guided by the policies set out in the DPP Statement of Prosecution Policy and Guidelines. These Guidelines set out the factors to consider in determining whether a prosecution is in the public interest, the factors to consider when determining whether there are reasonable prospects of conviction, and the factors to consider in charge negotiations.

It is useful to consider the Guidelines and refer to the relevant parts when negotiating with the prosecution, usually with the assistance of your criminal defence lawyer.

What is the purpose of plea negotiations?

A plea offer or submission to the prosecution may be the difference between proceeding to trial and having your matter dealt with at an early stage, saving you in legal fees in the long run.

The plea offer or submission would set out to explain what we are seeking, the basis in support of what we are seeking, and where applicable, attach additional evidence or documentation in support.

Below are the main types of plea offers you can make, with some real-life examples from cases that our team of Perth criminal defence lawyers have worked on.

Submission to discontinue your charge

The submission to discontinue your charge may be based on a number of factors, either in isolation or in combination. For example, we could submit that the prosecution has a lack of evidence to obtain a conviction, or it may be that it is not in the public interest for the matter to be prosecuted.

If there is a lack of evidence to convict you, we would ordinarily set out the points of prosecution evidence which are weak, and which we say would be unable to prove the charge beyond a reasonable doubt.
Pursuant to the prosecution guidelines, matters should only be prosecuted if they have reasonable prospects of conviction.

Real case example: Our client was charged with Robbery. We wrote to the prosecution pointing out that their case was circumstantial, and would not be able to be proven beyond a reasonable doubt. The prosecution discontinued the charge.

Real case example: Our client was charged with Breach of Family Violence Restraining Order. Our client was retrieving personal property from the marital home, and was waiting in a vehicle on the verge of his neighbour’s house. He breached the restraining order by being within a certain distance of the marital home. Our client had good antecedents, and because of his job, any conviction (even if he got a spent conviction) would have an enormous impact on his life. We made a submission saying that the prosecution would not be in the public interest. The prosecution discontinued the charge.

Submission to downgrade or amend your charge

In support of downgrading or amending your charge, it may be submitted that the facts would still satisfy the elements of a lesser or alternate charge. The benefit of this may be that the lesser or alternate charge may have a lower maximum penalty available, which may result in you obtaining a lesser sentence.

Here is a real case example: Our client was charged with Act with intent to harm causing bodily harm, which carried a maximum penalty of 20 years’ imprisonment. As the client’s criminal defence lawyers, we successfully negotiated to have the charge downgraded to Act causing bodily harm, heard summarily in the Magistrates Court, where the jurisdictional limit on penalty was 3 years imprisonment and a $36,000 fine.

Another client client was charged with reckless driving with a circumstance of aggravation (to evade police), which carried a mandatory term of immediate imprisonment. This means that the Magistrate would have had no choice but to send our client to prison for at least 6 months. We successfully negotiated to remove the circumstance of aggravation, thus removing the mandatory imprisonment requirement, and the charge was also amended to dangerous driving. Our client pleaded guilty to the amended charge and received a fine. He also avoided a licence disqualification.

Submission to amend the facts

In some circumstances, you may agree with the essence of the charge and intend on pleading guilty, but disagree with certain alleged facts which would have a bearing on sentence. It is important to come to an agreement with the prosecution as to the facts, as this is the basis upon which you will be sentenced.

It could be submitted that a plea of guilty on the amended facts could still reasonably reflect the essential criminality of the conduct and provide an adequate basis for sentence. For example, you may agree to an assault, but only say you punched the victim, as opposed to punching and kicking the victim. Your sentence may be more serious if you are sentenced on the basis of having kicked the victim as well.

One of our clients was charged with Act or omission causing bodily harm. We successfully negotiated the facts to include some facts our client says occurred, and to remove some facts our client says didn’t occur. Prior to amending the facts, our client would likely have been facing imprisonment. The facts were amended and our client received a fine.

Hire our top criminal lawyers in Perth for your case

Chambers Legal is an experienced team of criminal defence lawyers that can assist with legal advice and representation. If you want more information regarding plea offers and negotiations, get in touch with our friendly team today.

Sexual Assault Allegations and Affirmative Consent

In May of 2024, the Law Reform Commission of Western Australia tabled its Final Report on Project 113: Sexual Offences in State Parliament.

Commissioned in 2021 by Attorney-General John Quigley, the report made 134 recommendations aimed at helping the Western Australian legal system better address sexual violence.

One of those recommendations was to legislate affirmative consent, a move that would put WA in line with most states.

This would be a significant shift from existing Western Australian law. However, it is a change supported by several political parties and NGOs that would make the law more responsive to the needs of younger people.

Western Australia’s current laws

In WA, consent is defined as a free and voluntary agreement to engage in a sexual act. It must be given without any form of coercion, intimidation, force or deception.

Consent can be withdrawn at any time and cannot be given by someone under the age of 16 years.

Engaging in a sexual act without consent will be judged a sexual offence. These are serious offences and if a defendant is found guilty, their conviction will likely result in jail time.

You can read more about sexual assault charges and how Chambers Legal can assist you with them here.

What is affirmative consent?

Affirmative consent, as defined by the report, is actively sought content where no party feels coerced, threatened, or forced. Under this model:

“a person does not consent to an activity with another person only because the person does not say or do something to resist or prevent the activity”.

This means that silence, inaction or a lack of resistance cannot be considered consent.

Affirmative consent emphasises that consent is ongoing and can be withdrawn at any time. It also makes clear that both parties must take reasonable steps to ensure the other person consents.

The aim is to shift the how we view a sexual offence from “did the victim say no?” to “did all parties actively agree?”

What else did the report recommend?

Besides legislating affirmative consent, the report recommended:

• Government developed training for police, lawyers and judicial officers
• Expanding the list of circumstances where someone cannot consent to sexual activity
• Criminalising “stealthing”, the act of removing or tampering with a condom without consent
• Increasing maximum penalties
• Improving directions to juries

Find a sexual assault lawyer in Perth

If you have been accused of sexual assault, do not hesitate to contact Chambers Legal.

We have an experienced team of sexual assault lawyers who can advise you on legal defences and prospects of success at trial.

Our team prides itself on working with integrity and transparency. We are fair and honest in our pricing, providing proper cost notice. Our legal advice is tailored to each client and always provided in writing.

If you would like legal advice, please contact Chambers Legal on (08) 9500 8915 or at [email protected].

Alternatively, you can book a free 15 minute phone consultation.

A sentencing hearing will occur after an accused person pleads guilty.

Magistrates Court

In less serious cases, where the charges are dealt with in the Magistrates Court, the accused person can be sentenced immediately after pleading guilty.If the matter is complex, or reports are ordered, sentencing can occur on a later date.

District Court

Where the charges must be dealt with in the District Court, there can be a number of hearings after a plea of guilty is entered, and before the sentencing hearing. A “fast-track” plea will require at least one Sentence Mention hearing, before the sentencing hearing.

What happens at a sentencing hearing if I plead guilty?

The process for a sentencing is, firstly, that the charge or charges are read to the accused person by the Magistrate or by the Judge’s Associate.  The accused person responds to each charge by saying “guilty”. After this, the prosecutor reads the Statement of Material Facts and can make submissions about the offending and what type of sentence should be imposed.

The accused person’s defence lawyer will also make submissions about the type of sentence to be imposed, explaining why the accused committed the offence, and telling the Court about the accused’s personal circumstances with the purpose of persuading the sentencing Magistrate or Judge to impose a sentence that takes into account all of the mitigating factors. Mitigating factors are things that make the offending less serious. Because of this, sentencing hearings are also referred to as a “plea in mitigation”.

What the Magistrate or Judge will consider

• At sentencing, the Magistrate or Judge will consider:
• The circumstances of the offending and where it lies on the scale of seriousness for that type of offence;
• The aggravating factors that make the particular offending more serious;
• The mitigating factors that make the offending less serious;
• The offender’s personal circumstances, including their background, employment, family, and medical conditions;
• The explanation provided by the offender for committing the offence;
• Whether the offender is remorseful about committing the offence;
• Whether the offender has insight and is likely to re-offend in a similar way again;
• Whether the offender has taken any steps to rehabilitate him or herself; and
• Whether or not the offender has any prior convictions and, if so, whether they are for similar offences.

The type of sentence that can be imposed

The sentences that can be imposed in Western Australia are:

• A Conditional Release Order (“CRO”) – commonly known as a “good behaviour bond”; where the court may impose a requirement on you to ensure that you comply with the Order, such as a fine payable only if you offend during the term of the order;
• A fine;
• A Community Based Order (“CBO”) – this must involve one or more of the following: supervision requirement, programme requirement and/or a community service requirement;
• An Intensive Supervision Order (“ISO”) – this involves a supervision requirement, and may include one or more of the following: programme requirement, community service requirement and/or a curfew requirement;
• A Suspended Imprisonment Order (“SIO”) – meaning that the term of imprisonment is not to be served unless the offender commits an offence while serving the sentence, and the maximum penalty for the new charge is a term of imprisonment, and you are then ordered to serve the suspended term;
• A Conditional Suspended Imprisonment Order (“CSIO”) – which is similar to suspended imprisonment, but also requires at least one of the following: programme requirement, supervision requirement and/or a curfew requirement.
• Immediate imprisonment – meaning you go to prison immediately to serve your sentence.

Please note that sentences for Commonwealth offences and Children’s Court offences differ from the above.

Other options when pleading guilty

If you are pleading guilty to a charge, there are a number of options to consider that may assist for sentencing:

1. Asking to be put on a Pre-Sentence Order (“PSO”) – which means the offender is placed on a program where there will be one or more of the following: supervision requirement, program requirement and/or a  curfew requirement. Successful completion of the PSO can result in a less serious penalty than what would ordinarily be imposed;
2. Seeking a referral to Drug Court – this is a specialty court which deals with offenders who have a drug related problem. A program can last for about 3-12 months, depending on the offender’s needs. Successful completion of the program can result in a less serious penalty than what would ordinarily be imposed;
3. Seeking a referral to START Court – this is a specialty court which deals with offenders who have a mental health condition. A program can last for about 6 months, depending on the offender’s needs. Successful completion of the program can result in a less serious penalty than what would ordinarily be imposed.
4. Participating in Victim-Offender Mediation – which involves the offender making amends and apologising to the victim with the assistance of a mediation officer. This may involve a face to face meeting with the victim.

Other Orders that can be imposed

A spent conviction can be granted with a CRO, fine or CBO, but cannot be granted if you are sentenced to an ISO, SIO, CSIO or immediate imprisonment. You can find more information regarding spent convictions here.

Other orders may include:

• Reparation;
• Compensation;
• Restitution;
• The making of a Violence Restraining Order or Family Violence Restraining Order; and
• Becoming a reportable offender for sexual related offences.

For further information about a sentencing hearing or to get in touch for representation or advise, get in touch with our friendly team of criminal defence lawyers today!