MyDefence Staff, Author at MyDefence

What is a Plea Hearing and why does it matter?

MyDefence lawyers work hard to either get charges withdrawn or lowered. Sometimes this happens in a plea deal with the prosecutor where our client agrees to plead guilty to lesser or fewer charges in order to get the more serious charges withdrawn.

We will only recommend this if we advise that the evidence that the prosecutor has will prove an offence. A plea of guilty also gets a sentencing discount of around 25% less than if a client ran a case to trial.

Pleading guilty - discretion of Magistrate

Even though a client may plead guilty, that does not mean our job is done. The magistrate or judge has wide discretion as to what penalty to impose at sentence such as whether:

the offence is recorded with or without conviction on your criminal record;
a good behaviour bond, corrections order or jail sentence should be imposed;
the maximum penalty or a very small penalty such as a fine versus a jail sentence should be imposed;
to defer a sentence to see how the accused person behaves over a period of time before imposing the sentence.

The Plea Hearing

For the court to make this decision, a Plea Hearing is held. We get an opportunity to inform the court about the circumstances of the offence and the background of our client. Factors that the court looks for are:

Where the client acknowledges and admits their wrongdoing;
Is apologetic and remorseful;
A client's prior criminal history;
Takes steps to make amends such as undertaking courses that provides insight to the offending, e.g. drug rehabilitation, anger management;
Character references from employers, family, colleagues;
Support from family and friends.

MyDefence lawyers have pleas down to a fine art. We connect our clients with services and character reference templates to get all the information aimed at securing the most minimum penalty.

ByMyDefence Staff

Getting bail – what are compelling reasons or exceptional circumstances?

In the wake of well publicised crimes committed by persons on bail, the Victorian Government changed the bail laws to make it more difficult to be granted bail. As a consequence, our remand centres have unprecedented numbers of persons awaiting resolution of their matters.

When the police oppose bail, the person charged has to establish either “compelling reasons” or “exceptional circumstances” that they should be granted bail. The difference between these two depends on the charges.

Harder to get bail - Exceptional Circumstances.

Exceptional circumstances applies if you commit serious offences, have committed further offences on bail, or failed to appear at court while on bail. This is a higher bar to meet and therefore more difficult to get bail.

It is not impossible to show exceptional circumstances. We regularly get clients out on bail because we know what combination of circumstances will make it likely that a court will find that the threshold has been met.

This includes arranging evidence of:

A surety;
Stable employment;
Stable accommodation;
Family supervision;
Mental or physical illness that will make incarceration harder on our client;
Rehabilitation.

Easier to get bail - Compelling Reasons.

At the same time, showing compelling reasons was made more onerous to the previous test which was to“show cause”. Compelling reasons at law means that you have to show:

"forceful, and therefore convincing, reasons showing that, in all the circumstances, the continued detention of the applicant in custody was not justified" (Re Ceylan [2018] VSC 361).

Example case of Compelling Reasons

We had a client who was charged with intentionally causing injury by ramming his car into another car. The police initially said that he needed to show compelling reasons. However the prosecutors decided that he needed to show exceptional circumstances. They contended that the car was deemed an “offensive weapon”.

In our view this was absurd. In front of Magistrate Kumar, we argued that an offensive weapon required an ordinary object to somehow be modified. An example is such a glass bottle having been smashed and the jagged ends used to cause injury to another person. The magistrate agreed.

His Honour released our client on bail by showing he had established compelling reasons due to the following:

That the underlying charges, if our client was found guilty would not warrant a custodial sentence and therefore remanding him would be out of proportion;
That he had a minimal criminal history;
That he was only 22 years old;
That bail conditions can be imposed to deal with any concerns by the police – this included a curfew and daily reporting to his local police station.

Court can still remand where there is an "Unacceptable Risk".

Even where a court finds that there are exceptional circumstances and compelling reasons to grant bail, bail can still be denied where there is an unacceptable risk.

Police may alleged there is a risk that the person:

will commit offences on bail;
fail to appear at court;
endanger persons while on bail;
interfere with witnesses.

MyDefence lawyers will argue that the risk can be made acceptable by imposing strict bail conditions such as:

signing into a police station;
a curfew;
reside at a fixed address;
only have access to one mobile phone;
not to use drugs or consume alcohol;
not to contact co-accused or witnesses for the prosecution.

It is for the police to prove that there is an unacceptable risk, this needs to be supported by admissible evidence. It is not enough for police to merely speculate as to he risk.

ByMyDefence Staff

Can police just search you for ANY reason?

A client of ours was talking with two other people on a footpath in the inner city on a Friday evening when police interrupted them. They asked what they were up to and asked for her name and identification.

She complied and said that she was waiting for someone who owed her some money in the units behind them. There was some graffiti on a wall on the units saying that a person was owed money.

Pat down search

On this basis police conducted a pat down search of our client under section 82 of the Drugs Poisons and Controlled Substances Act. This section allows police to search a person where they hold a reasonable suspicion that there is a drug of dependence on the person.

The search found no drugs but our client had around $1000 in her pocket and police seized that money on the basis that they suspected that it was the proceeds of crime.

Challenging the lawfulness of the search in court

We challenged the lawfulness of the search and succeeded in having the charge withdrawn and the money returned to our client. The prosecutor agreed that the search was illegal.

It is important to note that the “suspicion” that the police hold that someone has drugs on them must be reasonable and not just a mere possibility. Without “reasonable suspicion” police have no right to search a citizen.

Further to this, police do not even have a right to ask you for your name or identification unless they believe that you have committed an indictable offence. Side note: Police can also ask for personal details if you are driving a car.

Even if the police believed that our client wrote the graffiti on the wall, it is only a summary offence which made the request to provide her name and address unlawful.

Author Archive MyDefence Staff

What is a Plea Hearing and why does it matter?

Pleading guilty - discretion of Magistrate

The Plea Hearing

Need help on your defence?

Getting bail – what are compelling reasons or exceptional circumstances?

Harder to get bail - Exceptional Circumstances.

Easier to get bail - Compelling Reasons.

Example case of Compelling Reasons

Court can still remand where there is an "Unacceptable Risk".

Need help on your defence?

Can police just search you for ANY reason?

Pat down search

Challenging the lawfulness of the search in court

Need help on your defence?