• Serious crime

• Grievous bodily harm

• Assault

• Kidnapping

• Torture

• Threats to kill

• Stalking 

• Sexual offences, rape, sexual assault, child sex tourism, child exploitation material (pornography)

• Trafficking, supply, possession, and importation of a dangerous drug

DO I HAVE TO TALK TO THE POLICE?

Generally, you do not have to answer questions except to provide your name and address. We are often approached by clients asking for help when they are expecting a call from the police. We can speak on your behalf with the police so that you do not have to. We can give you advice about what you should and should not say. This step is very important because it can affect the whole of your case later.

WHAT IS A QP9?

Qp9 is a document completed by the police and lists the facts and evidence of the case. If you plead guilty, the facts will be read from the Qp9 to the Magistrate. Or it may also reveal a defect in the evidence and so we can enter negotiations with the prosecutor to settle the case early or advise you to go to trial. You are entitled to the Qp9 and we can request it and then give you advice before the first court appearance. 

HOW CAN THE POLICE CHARGE ME?

The police can charge you with a criminal offence in four ways: 

• The police can arrest you and keep you in their custody until you are required to appear in court.

• You could be arrested but receive bail, which means you are free to go home but must attend court on a specified date.

• A notice to appear, which is a document stating the offence and the day you must appear in court. You may be issued this document on the spot or after arrest. 

• Summons, which is a charge sworn on oath before a justice of the peace. If you receive a summons you must appear in court on the day specified in the document.

WHAT ARE THE TYPES OF PENALTIES A COURT CAN IMPOSE?

There are a range of penalties that a court can impose on a person found guilty of an offence. These sentences can be imposed separately, or in some cases can be a combination of one or more options. The sentencing options available to a court include:

• fines

• community service

• probation

• intensive correction order

• suspended sentence

• partially suspended sentence

• actual imprisonment

For every offence a person may be charged with there is a maximum penalty. The maximum penalty will only be given when the case falls within the “worst” category of cases for which the penalty is prescribed

CAN THE POLICE IMPOUND OR IMMOBILISE MY CAR?

The law grants police the power to impound or immobilise a person’s vehicle if they are involved in specific traffic offences classed as ‘hooning’ offences. The type of impound or immobilisation penalty a person may receive depends on the type of hooning offence he or she commits. Hooning offences are divided into two groups. Type one offences are:

• dangerous driving

• careless driving

• organising, promoting or taking part in racing and speed trials

• wilfully starting a motor vehicle or driving in way that makes unnecessary noise or smoke

• evading police.

Type two offences are:

• driving a vehicle that is uninsured and unregistered

• driving without a licence or when your licence has been suspended

• high range drink driving — with a blood alcohol level above 0.15%

• exceeding the speed limit by more than 40km/h

• driving a modified vehicle that does not comply with vehicle safety standards

• driving while under a 24 hour suspension order.

• If a person commits a type one hooning offence, his or her vehicle may be impounded for up to 90 days. If a person commits a second type one offence his or her vehicle may be confiscated (taken off the driver permanently) at the end of legal proceedings.

If a person is charged with a type two offence their vehicle cannot be impounded. However, if he or she is charged with further type two offences their vehicle can be impounded or immobilised. For a second type two offence, the person’s vehicle may be impounded or immobilised for 7 days. For a thirds type to offence, the vehicle may be impound or immobilised for 90 days. If a person commits four type two offences their vehicle will be impounded and may be confiscated at the end of legal proceedings.

The person charged with the hooning offence must pay for costs associated with towing and impounding the vehicle.

WHAT IS CHILD EXPLOITATION MATERIAL?

Child exploitation material means material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person who is, or who apparently is, a child under 16 years:

• in a sexual context, including for example, engaging in a sexual activity; or

• in an offensive or demeaning context; or

• being subject to abuse, cruelty or torture.

“Someone”, in the context of a description or depiction, includes the body parts of someone, including for example, someone’s breast or genitalia.

“Material” includes anything that contains data from which text, images or sound can be generated. 

WHAT ARE ILLEGAL DRUGS?

It is illegal to have dangerous drugs which have not been lawfully prescribed to you. There are two main categories of illegal drugs in Queensland:

• Schedule 1 drugs include drugs such as amphetamines cocaine, heroin LSD, MDMA (Ecstasy) as well as anabolic and androgenic steroidal agents.

• Schedule 2 is a much longer list of drugs which includes cannabis (marijuana), ketamine, morphine and various other opioids.

WHAT TYPE OF DRUG OFFENCES ARE THERE?

In Queensland there are various types of drug offences. The most common offences are possession, supply, or trafficking of a dangerous drug.

• Possession requires that you have control over the drug. It does not necessarily mean you have ownership. A person can be in possession if they know of the drug’s existence and have laid claim or exercised some control over it.

• Supplying illegal drugs has a wide-ranging definition in Queensland. It includes giving, distributing, selling, administering, transporting or supplying illegal drugs. Further, even offering to supply or doing something in preparation to supply illegal drugs is an offence.

• Trafficking usually involves dealings with larger quantities of illegal drugs in a commercial manner. If you trade, sell or otherwise deal with illegal drugs as a means of carrying on a business, you can be charged with a trafficking offence.

WHAT HAPPENS IF I AM CHARGED WITH A CRIME?

The police will generally issue you with a Notice to Appear which is states the charge and also the day for the first appearance in Court. You should speak to a lawyer early after receiving the Notice. In more serious cases, the police may arrest you and take you to the watchhouse. You may be granted bail at the watchhouse. If not, bail will need to argued before a Magistrate. You should contact a lawyer immediately. 

WHAT HAPPENS AT COURT?

After you have been charged with a criminal offence, you will have to appear in the Magistrates court for what is known as the ‘first mention’. The purpose of this appearance is to inform the court about how the matter is going to proceed. There are three main ways your matter could progress:

• You could plead guilty to the offence and be sentenced on the same day.

• You may have your matter adjourned for a second mention date which is usually 2-3 weeks in the future. The purpose of this is usually to allow your lawyer to prepare your case or discuss your case with the prosecution. 

• Your case may be adjourned for a callover, so that you can review the evidence. 

WILL I BE GRANTED BAIL?

Bail is the release of a person accused of a crime from custody prior to their trial. When deciding whether to grant a person bail the court needs to determine whether it is likely a person will behave appropriately in the community and return to court when required. A court must not grant bail if the court believes there is an unacceptable risk that the you:

• will not appear in accordance with bail conditions and surrender into custody

• will commit further offences

• will endanger the safety or welfare of the public

• will interfere with witnesses or obstruct justice

• will harm himself or herself

In order to determine whether one of the above risks is likely, the court is required to consider a variety of factors. These include:

• the seriousness and nature of the offence

• character and background

• employment and education history

• history of previous grants of bail

• criminal history (particularly similar offences in the recent past)

• strength of evidence against the defendant

• whether a surety is available

The court will consider these factors to determine whether the risk the defendant poses to the community or the risk they will not return to court outweighs the defendant’s right to bail. If bail is granted there are often special conditions attached which the defendant must comply with. Whether conditions are attached and the type of conditions attached depends on the circumstances of the offence and the background of the defendant. Some common conditions include:

• The requirement to provide a residential address

• The requirement to report to a police station each week

• A requirement to abstain from consumption of alcohol

• Curfews

• A requirement not to approach certain addresses or locations

• Requirements to continue attendance on medical practitioners

• The provision of a surety

HOW DO JUDGES DECIDE WHAT SENTENCE TO IMPOSE?

The principles that relate to sentencing defendants are contained in the Penalties and Sentences Act (Qld) 1972. When sentencing a defendant, the court must consider a variety of factors relating to the defendant and the offence he or she committed. This explains why defendants charged with the same offence may receive different sentences. The factors the court must have regard to when determining what sentence to impose are:

• the maximum and any minimum penalty for the offence;

• the nature of the offence and how serious the offence was, including:

  • any physical, mental or emotional harm done to a victim; and

  • the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence;

• the extent to which the offender is to blame for the offence;

• any damage, injury or loss caused by the offender;

• the offender's character, age and intellectual capacity;

• the presence of any aggravating or mitigating factor concerning the offender;

• the prevalence of the offence;

• how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences;

• time spent in custody by the offender for the offence before being sentenced;

• sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing; and

• sentences already imposed on the offender that have not been served;

• sentences that the offender is liable to serve because of the revocation of orders made for contraventions of conditions by the offender’

• if the offender is the subject of a community based order—the offender's compliance with the order as disclosed in an oral or written report given by an authorised corrective services officer;

• if the offender is on bail and is required under the offender's undertaking to attend a rehabilitation, treatment or other intervention program or course—the offender's successful completion of the program or course;

• if the offender is an Aboriginal or Torres Strait Islander person, any submissions made by a representative of the community justice group in the offender's community that are relevant to sentencing the offender, including, for example:

  • the offender's relationship to the offender's community; or

  • any cultural considerations; or

  •  any considerations relating to programs and services established for offenders in which the community justice group participates; and

• anything else prescribed by the Penalties and Sentences Act to which the court must have regard; and

• any other relevant circumstances

WHAT IS THE PENALTY FOR DRUG OFFENCES?

The maximum penalty is 25 years for schedule 1 drugs and 20 years for schedule 2 drugs. Whilst this is the case, the penalties imposed can vary greatly. Minor drug driving offences can result in diversionary measures such as a good behaviour bond, or traditional penalties such as fines or probation orders. Higher level offences on the other hand can result in lengthy terms of imprisonment.

In determining the appropriate penalty, the court will consider all the circumstances of the offence including:

• The type of illegal drug

• The quantity of the illegal drug

• The type of drug offence

• The age of the offender

• Whether the offender has committed any past offences

• Whether the offender uses the drug for personal consumption or intends to sell or supply it to another