Author Archive mydefence

If you grew up playing cowboys and Indians and bought toy guns from the local market, you may be surprised to know that possessing many of them is illegal.

Section 5AB of the Control of Weapons Act 1990 makes it an offence to possess an imitation firearm.

Go to any toy retailer these days and you’ll not see any toy guns that look real, they are all brightly coloured with ridiculous form factors to conform with the law.

To prove the offence, police just need to demonstrate that the toy gun could be reasonably mistaken for a real one. This is why you often find red nozzles on toy guns to make it obvious.

The law came into force in the year 2000 which means anyone who bought any movie memorabilia such as a James Bond Goldeneye Walther PPK or a Lone Star Luger cap gun when they were kids is unknowingly committing an offence.

We’ve run into cases where search warrants have been executed on client’s homes only for them to be charged with this offence when police found toy guns in the backs of cupboards that haven’t been played with for years.

Consequences of a criminal conviction in Australia

The greatest concern of clients pleading guilty to an offence is the effect this will have on their employment. In most Australian States and Territories there are spent conviction laws that operate so that any sentences given with or without conviction will not appear on police checks.

The principle behind spent convictions is that people should not have a life sentence for bad decisions in the past that were a one-off instance or an error of judgment.

Previously, the only way in Victoria to avoid this was to be accepted on the Diversion Program or to have the charges fully withdrawn.

Spent convictions laws

The Victorian Parliament has passed the Spent Convictions Act 2021 which has the effect that:

• Convictions for non-serious convictions will be spent after 10 years for adults and 5 years for children provided there was no further offending;
• Sentences given "without conviction" will be immediately spent;
• Convictions for children under 15 will be spent immediately;
• It will be unlawful to discriminate against a person who has had a spent conviction.

A 'serious conviction' is defined as finding of guilt which resulted in a jail sentence of more than 30 months, a finding of guilt for a sexual offence or a finding of guilt for a serious violence offence. For these convictions, a person can apply to the court to have their conviction classed as spent.

MyDefence lawyers assist their clients in avoiding convictions by creating strategies and crafting pleas of guilty to be designed to offer the best chance of being sentence without conviction.

This will also mean that clients do not have to go to the expense and risk of taking their matter to a Contested Hearing if a sentencing indication from a magistrate indicates a sentence without conviction.

Criminal charges from violent threats

Threatening another person with violence can include:

• Threats to inflict serious injury; or
• Threats to kill.

However, it is not always the case that the threat can be proved by police beyond reasonable doubt.

Elements of the offence

1. The accused made a threat to the complainant to inflict serious injury/or kill upon either the complainant or another person;
2. The accused either:
   1. intended the complainant to fear that the threat would be carried out; or
   2. was reckless (in that they probably should have known) as to whether or not the complainant would fear that the threat would be carried out; and
3. The threat was made without lawful excuse.

The grey area - only serious threats matter

At first it may appear that these are difficult charges to defend as it is easy to be reckless in making a threat. If you think about environments where passions run hot such as football games, or even out socialising with friends and have had a few too many drinks.

However the circumstances and the nature of the relationship between the victim and accused person is important. If a relationship between two persons is dysfunctional and words such as "do that again and I'll kill you" becomes between the two people, then the threat is not a threat that would attract a criminal penalty.

Words in the context of the relationship matter which means that only serious threats can be successfully prosecuted.