Tuesday, 16th of January, 2018

Crime and Punishment

Search and Arrest

Introduction to search and arrest

Most powers of arrest, search and interrogation are contained within statute. However, these powers are not limited to the police, but include other officials such as Parks and Wildlife Service officers, Custom officers and Fisheries officers.

The functions of arrest, search and interrogation exercised by police officers are standard procedures. There are limits to what a police officer can do, or require of a person. There is a complex set of rules which has evolved in an effort to strike a balance between protection of individual rights/liberties and effective law enforcement. A very basic description of these rules is that there is a need to consider the interests of justice and whether a police officer has abused their position of authority.

With some exceptions, the privilege against self-incrimination prevails throughout the process of arrest and interrogation. Indeed, the whole basis of the common law is the right of the individual to refuse to answer questions put by persons in authority and also to refuse to accompany those in authority to any particular place unless arrested.

Detention

The police have no power to detain a person to assist in their enquiries or for any purpose, unless they have been lawfully arrested. To detain a person other than by lawful arrest is ‘false imprisonment’ and is a civil wrong; however it is often difficult to prove unless the circumstances present a serious abuse of police powers. The police can ask a person to accompany them to the police station for questioning if it is made clear that the person need only go if they so wish. If a person is unwilling to accompany police when asked to do so, they should ask whether they are under arrest. Going along without asserting this right may mean the police acted lawfully. Always ask whether you are under arrest. When you are under arrest you have rights.

Police sometimes arrest a person on a 'holding charge'. This means that the person is charged with a minor offence so that they can be interrogated on other matters at the police station. Whether or not the holding charge is eventually prosecuted does not matter so long as when the person was arrested they were at the time liable to a legal arrest by the person who arrested them (Broughton v Williams (1932) 28 Tas LR 1). This is why it is important to know your legal rights before answering any questions.

Your rights when you are NOT under arrest

You always have the right to silence, but police officers also have the right to ask you questions just as any person has such a right. When you are NOT under arrest you have the right to depart, unless the police officer who has stopped to question you has a reasonble ground to believe that you have committed an offence. Think about the situation you are in when a police officer stops you. If you are simply walking on the street and a police officer stops you and asks you for your name and address it is your right to choose whether or not to answer them. Remember to ALWAYS be courteous. Using abusive language to a police officer is an offence in itself. 

You also have the right to refuse a search of your person, but remember - if you have been doing something that would cause an ordinary person to believe that you have committed an offence, then you are obligated to allow a police officer to search you. This is NOT an arrest.

If you believe that a police officer has stopped and searched you with no reasonable grounds and there is a subsequent charge that arises, such as assault police if you try to resist, you need to speak to a legal practitioner straight away. Police actions are carefully scrutinised because each police officer exercises such extraordinary powers to interfere with the privacy and liberty of the individual.

Having rights does not mean that if you are doing the wrong thing that you can get away with it by pointing a finger at a police officer. 

Your rights when you ARE under arrest

When you are under arrest you have a number of rights. The first is that you are arrested with reasonable force (s26, Criminal Code). The second is that you are entitled to know the reasons for your arrest (s301(2), Criminal Code). A police officer will generally lay hands on you and indicate 'you are under arrest for ...'. You have the right to ask WHY. The arresting officer should also tell you something along the lines of 'you have the right to remain silent, anything you say or do may be used against you in a court of law, do you understand?'. In criminal law, silence is golden. 

If you believe that you are being arrested as a means of harassment you need to say something along the lines of 'I do not believe you are arresting me lawfully.' Be polite. Be calm. Be courteous. Make your concern clear to the custody officer at the police station. Do not be aggressive or rude. Police officers are people too. 

Your other right is to communicate with a friend or relative AND a legal practitioner (s6, Criminal Law (Detention & Interrogation) Act). This is to ensure that someone knows where you are, and so that you can seek legal advice before being interviewed. You DO NOT have to consent to an interview. You can insist on having a lawyer present. There is NO power for an interview to be conducted in the absence of a lawyer. Silence, again, is golden.

If you do not want to be interviewed, you can indicate to the investigating officer/s that you would like to have your bail considered. Police have powers of reasonable detention (s4, Criminal Law (Detention & Interrogation) Act) where investigations are being carried out with your cooperation. If you are not consenting to the interview, your bail should be considered as soon as reasonably practicable. If the offence for which you have been arrested is a serious offence, you will likely remanded to the Remand Centre before the question of bail is considered, most probably by a justice or magistrate.

Search of the person

While there are restrictions on the extent of search to which a police officer can subject an individual, dependent on their reasonable belief or permission from a magistrate, when you are placed in a Remand Centre for any period of time there are mandatory protocols of search for entry into those centres. These protocols are in place for your safety, the safety of corrective officers, the safety of other inmates, and for police officers. These protocols involve a strip search to ensure that you are not in possession of any items that are either criminal, evidence of an offence or capable of causing harm to you or others. 

These searches should be conducted with consideration for your dignity, and with as little interference with that as possible.

Search and Seizure Without a Warrant

Reasonable Belief and Reasonable Suspicion

Although reasonable belief and reasonable suspicion may seem like the same thing, they are two different standards at law. Reasonable suspicion is a lower standard, requiring ‘I suspect but I cannot prove’. Belief ‘is an inclination of the mind towards assenting to, rather than rejecting, a proposition’. Simply but: suspicion is like a teetering seesaw, and belief is a seesaw with one side more heavily weighted. Different provisions in statutes will set a standard of reasonable belief or reasonable suspicion.

The statutes that apply most frequently for the purposes of search are: the Police Offences Act 1935 (Tas) and the Misuse of Drugs Act 2001 (Tas).

The police have the power to search a hawker’s pack if he reasonably supsects that it contains stolen goods or goods that it is unlawful to sell (s57A, Police Offences Act).

The police have the power to stop, search and detain any person reasonably suspected to have anything in their possession which is stolen, unlawfully obtained or intended for use in committing an indictable offence.

Stolen Goods

Police have the power to seize suspected stolen goods from a person if the seizure does not cause any harm to the person in the course of the seizure. For example, if the person has a shopping bag the police can seize this, but if the person is wearing stolen underwear, or jewellery, the nature of the item may cause the seizure to be an assault.

Drugs

Under the Misuse of Drugs Act 2001 (MODA) section 29, police officers must have reasonable belief before they can search a person, conveyance, or animal for a controlled substance (drugs).

There are also powers of personal search under MODA section 30, which can mean a cavity search. If a police officer reasonably suspects the presence of controlled substances in a person’s rectum or vagina, they must have a magistrate’s order allowing a medical practitioner to search the person’s body cavity or cavities. Strip searches can be performed if the necessary standard of reasonable belief has been reached.

Other powers in regard to drugs are contained within the Poisons Act 1971 (Tas). Many of the powers are similar in the MODA and the Poisons Act for search and seizure. The Poisons Act authorises the seizure of money or valuables where the MODA does not do so.

Premises

Police can search a person or premises for the purposes of investigating a crime when the owner or occupier consents to the search. Other than in the situations covered by statute, police cannot lawfully enter or remain on premises uninvited merely to question a person. If the person does not consent then a search warrant is required. However, if police are entering premises for the purposes of arrest, they have the power to search the premises if they have reasonable grounds for believing that a person named in a warrant for arrest is present (s26ACriminal Code Act 1924 (Tas)). They can also enter premises if they reasonably suspect that a breach of the peace, or other offence, is likely to take place. If someone is arrested on the premises, police can enter the premises, without a warrant, and search that person and their possessions.

A police officer has the power to enter and remain at premises so long as they consider it necessary to protect a person from violence. This is a special power under state domestic violence legislation that is mainly used in domestic violence situations (s10Family Violence Act 2004 (Tas)).

Firearms

The Firearms Act 1996 (Tas) allows police to search a person, any vehicle, package or thing in that person’s possession and seize any firearm or ammunition found. It also empowers them to retain, inspect and copy any record or document that appears to indicate an offence under the Act. Warrants usually require a police officer to apply to a magistrate or justice of the peace for the warrant.

Search and Seizure with a Warrant

Warrants are largely governed by the Search Warrants Act 1997, however the carrying out of search warrants issued under this Act is regulated under numerous other Acts, including the Poisons Act.

Stolen Goods

The Commissioner of Police may issue a general warrant valid for six months to search for stolen goods (Police Offences Act, s60). This includes on the person and in premises and conveyances.

Commonwealth Law

A police officer may search a named place, and seize things under a warrant issued by a justice (Crimes Act (Cth) s.3E). The search and seizure has to be for an offence against a law of the Commonwealth or a law of a Territory. This is because federal and state legislation are generally separate, and federal warrants will only cover federal crimes, while state warrants will only cover state crimes.

Search After Arrest

Police procedure in Tasmania is that a police officer can search a person if they believe on reasonable grounds that it is necessary. It is also authorised under s58B of the Police Offences Act. There are general powers to search on arrest if the nature of the offence – such as a violent offence, requires it. Other offences would include possession of drugs, or if the offender appeared mentally unstable. See Arrest.

Reasonable force

Where a search or seizure is lawful, so is the use of reasonable force. For example, if entry is barred, police are entitled to force or, if necessary, break the lock of a door.

Valid search warrant

When a search warrant is issued, requirements for its issue must be complied with. The justice must be satisfied that there are good reasons for issuing the warrant. The warrant must specify what premises are to be searched, the sort of items to be searched for (for example, stolen goods), the alleged offence and the grounds on which the warrant is issued. If the requirements have not been complied with, the warrant is probably not valid. Warrants are generally issued under the Search Warrants Act 1997. The requirements to be satisfied are set out at section 5 of the Act.

This does not apply to a general warrant issued by the Commissioner of Police to search for stolen goods, issued under the Police Offences Act, s60. This can be issued for up to six months and its issue is not reviewable by a court.

Unlawful action

Material which is improperly or illegally obtained by a police officer in executing a search can be used as evidence against an accused unless the court exercises its discretion to exclude it on the grounds that it would be unfair to the accused to use it (Evidence Act 2001, s138). This usually requires a deliberate abuse of power on the part of the police officer obtaining the evidence. This could take the form of deliberate harassment of a person, or deliberately going beyond powers given by statute in order to create a situation in which to search a person.

If goods have been unlawfully seized and detained (called ‘detinue’) or premises have been unlawfully entered (‘trespass’), a civil wrong has been committed. An action can be taken for damages. If damages are under $20,000 the case may be heard by a magistrate in the Civil Jurisdiction of the Magistrates Court. However, it is usually preferable to take the case before a judge in the Supreme Court.

Retention of property

In general, police are not entitled to keep property without the owner's permission except as a result of arrest or under a warrant, unless the property is material evidence needed to prove the crime, or the refusal of the owner to allow seizure is unreasonable, or on the condition that the property be returned as soon as is reasonably possible.

Hindering

Generally, it is an offence to resist a police officer in the execution of their duty, see Police Offences Act, 34B.

Arrest

Arrest Without Warrant

Most arrests are made without a warrant. Under the Criminal Code 1924, a police officer can arrest a person without a warrant when the person is committing a crime; when the person is found loitering in circumstances which suggest they may be about to commit a crime; where the police officer believes on reasonable grounds that they have committed a serious crime; or the person is committing, or is about to commit, a breach of the peace.

A police officer has additional powers to arrest people for committing all but trivial offences under the Police Offences Act 1935. However they are duty bound to consider whether using a summons to bring the person before the court should not be used instead.

A police officer may also arrest a person whom they believe to have breached their bail or is reasonably believed likely to do so or appears to be in breach of a restraint order.

Under the Crimes Act (Cth) any police officer can arrest a person without warrant when a breach of the peace has been committed or is thought, on reasonable grounds, to be about to be committed (the breach must involve an offence against the Crimes Act (Cth); or the police officer believes, on reasonable grounds, that a person has committed an offence against a law of the Commonwealth, and a charge against the person could not be effectively dealt with by summons.

Many Acts have powers for arrest without warrant where there is reasonable suspicion of an offence being committed under the Act. Parks and Wildlife Service officers for instance can arrest without warrant where the officer has reasonable grounds for believing that a person has committed an offence under the National Parks and Reserves Management Act 2002 (Tas) and for the purpose of arresting that person can enter, by force if necessary, any premises on which the officer has reasonable grounds for believing that person to be present (s66). Customs officers have similar powers.

Arrest With Warrant

A warrant is a written authority from a justice, magistrate or judge for the arrest of a named person. It can be issued for an offence, failure to pay a fine or failure to appear in court. A warrant authorises all police officers to arrest the person named wherever and whenever they may be found. A person arrested on warrant must be brought before the court.

Valid Arrest

There are three elements of a valid arrest. Firstly, words indicating that the person is being arrested (for example, "you are under arrest"). Secondly either touching the arrested person, or that person submitting by going with the police officer or staying where they are told. Thirdly indicating a reason for the arrest. It is not necessary to specify precisely the charge so long as the person knows why they are being arrested. If it is obvious from the situation, then it is not necessary to formally tell the person. It is not necessary for the police to stop and tell the person the reason if the person makes communication difficult, for example, by trying to escape.

Force in Arrest

A police officer may use as much force as is reasonably necessary to arrest the person. Unreasonable force is assault. It is up to the judge or magistrate to decide whether or not the force used was reasonable in the circumstances. Private citizens are also entitled to use such force as they believe on reasonable grounds to be necessary to prevent the commission of a crime (Criminal Code s39).

Entering Private Property

Whenever a police officer has a right to make an arrest, with or without warrant, they have a right to enter private property to make such an arrest. However, this does not extend to entering private property for the purpose of taking a person into custody following refusal to submit to a breathalyser test.

Arrest when Trespassing

A police officer cannot arrest a person trespassing on land without first giving that person an opportunity to leave that land by the shortest practicable route.

Resisting Arrest

It is an offence to resist or hinder or to incite any person to assault, resist or hinder a police officer in the execution of their duty, including the making of a lawful arrest. The resistance must be active. Merely lying down and refusing to co-operate is not resisting arrest. Neither is running away from a police officer before a valid arrest has been completed. However, running away is evidence of ‘consciousness of guilt’ and is used against a person in court.

An arrest may be valid if the police reasonably suspect that a person has committed an offence, even if they are completely innocent. If the person resists arrest, they commit a further offence and can be charged with resisting even if the police do not proceed with any other charge.

Citizen's Arrest

The right of arrest by a private citizen is limited to situations such as where a crime has been committed or attempted; where there is immediate danger of a crime being committed; where a ‘breach of the peace’ has been committed or is thought, on reasonable grounds, that it is about to be committed; or where there has been or is serious danger of substantial injury to a person or a person's property or public property.

‘Breach of the peace’ justifies an arrest when there is an assault, public alarm and excitement is created, or a person obstructs a police officer in the execution of their duty. Mere annoyance, disturbance, or insulting or abusive language are not sufficient to allow a person to arrest another person.

When a security guard at a retail store, for example, makes an arrest, they do so as a citizen.
A person exercising a power of arrest must be careful or the person arrested may sue and obtain damages for false imprisonment. To lessen the chance of this, the person arrested should, without delay, be handed over to the police with a full recorded explanation of the reasons for the arrest.

A person is obliged to hand over a person arrested to the police as soon as practicable in any event and the police must bring that person before a justice as soon as is practicable after they have been taken into custody (Justices Act 1959 s34A). A person taken into custody may however be detained by a police officer for a reasonable time for questioning, carrying out investigations, or to arrange for the person to be brought before the court (Criminal Law (Detention and Interrogation) Act 1995 s4(2)). Thus, in practice a person should be brought before the next available court. Special courts will sit at weekends and in the evening to protect this very important right of every citizen.

What to do if Arrested

Information cards and pamphlets are available from community legal centres that set out what to do in the case of arrest.  These may be useful particularly for vulnerable groups with little knowledge of the law or police powers. There are several rights and obligations that you have when under arrest. You should:

  • Be polite and courteous
  • Refrain from being rude
  • Not resist arrest, as this can be the basis of a further charge against you

You are obliged to:

  • Give your name and address
  • Your age if you are on a licensed premise
  • State your source of supply if you are found in possession of drugs

You have the following rights:

  • If you are over 17, you can ask to make a telephone call, but in some situations can be denied
  • If you are under 16 years of age, ask to make a telephone call
  • Ask for bail
  • State clearly that you won’t answer any questions until you have spoken to a lawyer
  • Silence – you do not have to say anything

If a police officer asks a person “to accompany them to the station” and they do not want to go, they should ask whether they are being arrested. If the police officer says they are being arrested, the person should ask “what for?” as the police are bound to tell them. The person can also ask the police officer to identity themselves.  If the police say they are not arresting the person then the person may walk away.

Where a person has been arrested and suspects that the arrest is not lawful, verbal objection should be made as frequently as possible, preferably in the presence of independent witnesses.

In almost every case, it is advisable to make some independent person aware of the fact of the arrest and of where the person is being held. A lawyer should be contacted and requests for the presence of a lawyer should be made (see below).

No attempt should be made to resist the arrest. It is up to the police officer to decide whether a suspect is to be arrested or summonsed. The conduct of a person will often influence which course the police adopt. In the case of minor offences, polite conduct towards the police may prevent a charge being laid at all. Co-operation with the police is always advisable where there is nothing to be lost by co-operating.

What to do if arrested

Information cards and pamphlets are available from community legal centres that set out what to do in the case of arrest.  These may be useful particularly for vulnerable groups with little knowledge of the law or police powers. There are several rights and obligations that you have when under arrest. You should:

  • Be polite and courteous
  • Refrain from being rude
  • Not resist arrest, as this can be the basis of a further charge against you

You are obliged to:

  • Give your name and address
  • Your age if you are on a licensed premise
  • State your source of supply if you are found in possession of drugs

You have the following rights:

  • If you are under 16 years of age, ask to make a telephone call
  • If you are over 17, you can ask to make a telephone call, but in some situations can be denied
  • Ask for bail
  • State clearly that you won’t answer any questions until you have spoken to a lawyer
  • Silence – you do not have to say anything

If a police officer asks a person “to accompany them to the station” and they do not want to go, they should ask whether they are being arrested. If the police officer says they are being arrested, the person should ask “what for?” as the police are bound to tell them. The person can also ask the police officer to identity themselves.  If the police say they are not arresting the person then the person may walk away.
Where a person has been arrested and suspects that the arrest is not lawful, verbal objection should be made as frequently as possible, preferably in the presence of independent witnesses.

In almost every case, it is advisable to make some independent person aware of the fact of the arrest and of where the person is being held. A lawyer should be contacted and requests for the presence of a lawyer should be made (see below).

No attempt should be made to resist the arrest. It is up to the police officer to decide whether a suspect is to be arrested or summonsed. The conduct of a person will often influence which course the police adopt. In the case of minor offences, polite conduct towards the police may prevent a charge being laid at all. Co-operation with the police is always advisable where there is nothing to be lost by co-operating.

Drink Driving and Arrest

Under the Road Safety (Alcohol and Drugs) Act 1970, police officers have powers relating to drug and alcohol consumption in drivers. Since the introduction of random breath testing, a driver must take a breath test when stopped and asked to do so by a police officer (s7A). If that test is positive, then that driver must undergo a breathalyser test. This is also the case where a driver commits an offence (including a traffic offence), is involved in an accident, or is found in a situation where police reasonably believes the person has just been driving or is about to drive. There are also powers for police officers to require a driver of a motor vehicle to undergo an oral fluid test to test for illicit drugs (s7B). A positive breath test most often will mean a trip to the nearest police station to be processed. The breathalyser test will be administered, the level of alcohol recorded, and your details noted so that a court appearance letter can be mailed to your address.

The legislated powers for traffic cases have created police powers so that any person who is driving a motor vehicle on a public street is required to comply with police directions to undergo a breath test or oral fluid test. There does not have to be a reason to suspect or believe the person has committed or is committing an offence. You can also be followed on to private property by police officers to have a breath analysis performed, if you have attempted to evade this procedure by entering on to private property.

A person may be detained for a random breath test for so long as it is reasonably required to administer that test. If that test is positive, a person may be further detained to enable the administering of a breath analysis. This may be done either in a random breath test station or at a police station. It is the duty of police officers to ensure that they do not cause a person to be detained for a period longer than is necessary for the proper exercise of the powers conferred by the Act (s7A(5)).

A person can request a blood sample be taken after receiving a statement of the blood alcohol reading on a breath analysis (s11). If a person does request a blood sample be taken, a medical practitioner or qualified nurse must carry out the request within 3 hours of the time of the alleged act of drink driving (s24(1)(b)) or the original breath analysis will not be admissible in evidence in any proceedings under the Act. This does not apply if the person refuses to submit to the taking of blood after appropriate arrangements were made to do so within the 3 hour period (s24(1)(b)(ii)).

Police Powers

Motor vehicles present a different case to other circumstances, because police have a broader range of powers to stop and ask people to identify themselves, and direct people to undergo breath and swab tests than in any other circumstances. This is a public safety issue because of the dangerous nature of motor vehicle accidents, and the contributory factors of alcohol and drugs to motor accidents. This means that police can require you to stop, submit to a breath test, and produce identification at any time that you are driving.

Some of the powers concerning traffic and vehicles are contained in the Vehicle and Traffic Act 1999, particularly Part 7 – Compliance and Enforcement. This applies where there has been or is suspected to be an offence. Where the driver of a motor vehicle is charged or suspected of being guilty of a traffic offence or where the vehicle has been in an accident, a person (if able to do so) must give the name, age and address of the driver of the motor vehicle when required to do so by the police. A person must also give a specimen signature for identification when asked to do so by police.

More generally, it is an offence to not carry your licence whilst driving or to refuse to produce your licence if requested to do so by a police officer (s46A). It is also an offence to drive in excess of the allowed alcohol limit for your particular license, to drive without a license, drive in excess of the speed limit, drive outside the permissions in a restricted license, or drive outside the permissions of any other particular license. The penalties for these can be found in the Vehicle and Traffic Act in Part 3 – Motor Vehicle Drivers. The permitted speed limits and alcohol levels for learner and provisional licenses are outlined on the Service Tasmania website.

After Arrest

Interviews and talking with the police

But we were just talking!

There is no such thing as an ‘off the record’ conversation with a police officer, irrespective of the time or place of such a conversation. This includes overheard conversations. However due to alleged abuses in the past, it is now expected that any admissions of the accused will be recorded on video. 

Making an Admission

If a person verbally agrees with the statement of another person after reading it, then it is regarded by the law as being adopted and may be later tendered in evidence against that person. Words, silence or conduct may amount to an admission of what a police officer has put to the person. However, no adverse inference can be drawn from their refusal to answer questions which they have been expressly told that they are not bound to answer, or from their silence after they have been told they need not speak at all.

The police can and do use verbal statements.

The Right to Silence

In the majority of cases, it is their own admissions used as evidence that convicts people. This is why the right to silence is so important. It is the right to not incriminate oneself.

As a general rule, a person does not have to answer questions except to provide their name and residential address. Legally, no adverse inference can be drawn against them for refusing to answer questions especially if their refusal is a consequence of their known right to silence.

However a refusal to answer some questions but not others can give rise to an inference of a ‘consciousness of guilt’ about the subject matter of the unanswered questions. The inference is that the answer would not be helpful to their case but it is not an inference of guilt. As juries and magistrates are only human, failure to answer questions might be misconstrued in court.

In addition, the person’s answers could determine whether or not the police will proceed with the matter. However, any suggestion from a police officer that by making a statement the person will make things easier for themselves should be ignored. It is for the court alone to determine what will happen.

Questioning

The police have the power to ask questions before charging a person. Questioning may be informal (for example, by way of conversation) or formal (for example, by way of a record of interview). After being charged, the person should only be questioned where necessary to prevent loss to some other person or body, to recover property, or if fresh charges are being laid against them.

Under the Criminal Law (Detention and Interrogation) Act 1995, a police officer can detain a person for a reasonable time for the purposes of questioning the person, or carrying out investigations in which the person participates, in order to determine his or her involvement, if any, in relation to an offence. A reasonable time also includes the time it takes to transport and bring a person before a magistrate or justice. What constitutes a reasonable time will depend on a number of factors, enumerated under section 4(4) of the Act.

What is a caution?

Before questioning a suspected person, the police should caution them that no questions need to be answered but that any answers given may be used in evidence. If the case goes to court, the police may use evidence of such caution to show that what the accused said afterwards was said freely and voluntarily. A statement taken in the police station will conclude with questions about whether or not a caution was given and understood and whether the statement was made voluntarily. If no caution was given, this does not mean that statements made cannot be used.

Whether or not the court will use statements given without a caution as evidence is at the discretion of the court.

Written Admissions

Written admissions are sometimes written by the arrested person and signed, or they are typed or written out by a police officer and signed by the arrested person. Written statements can be used as evidence in a court of law. As with verbal statements, it is at the discretion of the court to decide to use or not use evidence if a defendant challenges the admissibility of the evidence, alleging an abuse of police power.

Statements

Sometimes it will be in a person’s interests to make a statement, if possible, with the advice of a lawyer. It is important, therefore, to request to speak to a lawyer.

It may be desirable to talk to police if the person has a valid explanation for their behaviour: for example, in a case of theft, if they had the consent of the owner. A caution should be given by police to a person whether they wish to speak or not.

A person who, after legal advice, wants to plead ‘guilty’ may wish to talk to police to get on record the exact extent of their involvement or to explain the circumstances of the offence. Where a person wants to surrender to police, a lawyer can assist in preparing a statement of these matters.

If the person doesn’t want to say anything to police, that attitude should be made clear and never changed. They should state their name and address, and words such as "I do not want to answer any questions" and continue to make this answer to every question. There should be no change, even if they are asked about the reason for their attitude.

On completion of the interview the suspect may be taken to an independent police officer (not present at the interview) and will be asked if they have any complaints about the interview, for example, police behaviour, content, any violence or unfairness, and so on. The suspect may then adopt it as their record of interview. This procedure is referred to as the ‘Register of Persons Interviewed’. The suspect may also state any objections they have during the interview itself.

Other People's Statements

Another person's statement may be shown to a suspected person. The suspected person is not, however, obliged to respond in any way and should be cautioned first. Responding to another person's statement or record of interview can be a very dangerous exercise for a person who does not want to plead guilty to any charge that might be laid.

Getting Help

There is no absolute legal right to have an independent witness or a lawyer present during questioning. However, the courts have decided that a lawyer should be allowed to be present if requested by the suspected person and the interrogation should be delayed a reasonable time for the suspect to try to get legal advice. In Tasmania, there is a right to communicate with a friend, relative or legal practitioner (s6, Criminal Law (Detention and Interrogation) Act 1995 (Tas)).

The denial of access to a lawyer, in some circumstances, may lead a judge to exercise their discretion in rendering a confession inadmissible if they think that this denial amounts to unfair treatment of the accused.

Further, the Tasmanian Police Standing Orders say that a person should be given access to a lawyer. These standing orders are a set of recommendations from the Commissioner of Police to police concerning proper procedures. Although these are not legally enforceable rules and are only a general guide of the appropriate standard of propriety a judge may exercise a discretion to exclude a confession if there has been a breach of these rules. Failure to warn a suspect of their right to remain silent is regarded as a serious breach and has warranted the exercise of this discretion on occasions. However, a breach of these rules will not in itself always result in exclusion of this evidence.

If a person has gone to a police station voluntarily and is not under arrest, they can refuse to supply information or even to remain at the police station until a lawyer or independent witness is present. If under arrest, a person can still refuse to answer questions but this will not necessarily prevent them being asked.

If a lawyer requests access to a person in custody and is refused, the fact that they made such a request and the names of all persons spoken to should be noted down. It can then be used as evidence casting doubt on the truth and voluntariness of any record of interview.

If access is denied, a written or verbal complaint can be made to the superior of the officer concerned or to the Commissioner of Police. In addition, the Register of Persons Interviewed procedure now provides a suspect with an opportunity to complain at an early stage, as does the video interview itself.

Children are in a special position. Police Standing Orders say that they should not be questioned without a parent or guardian present, or failing that, a child welfare officer. Police should attempt to contact an appropriate adult. If this procedure is not followed the admissibility of any statement, confession or admission may later be challenged in court.

The Police Standing Orders provide that after a person has been charged, facilities should be made available to allow that person to telephone a friend, relative, solicitor or doctor. A request should be made. It is advisable to be circumspect when telephoning from a police station where what is said may be overheard and can be used later in evidence.

Once again, it should be noted that the Police Standing Orders are not legal rules and do not confer rights. If they are not obeyed, however, a complaint should be made, and the conduct of the police could then cast doubt on the voluntariness of any admission or confession. It may also provide a basis for challenging the admissibility of any statement on grounds of unfairness to the accused (see below).

Illegal Police Action

Involuntary Confessions

A confession is not admissible as evidence in court unless it was made voluntarily. To be voluntary a confession must be:

  • of a suspect's own free choice; and
  • not be made as a result of oppressive conduct, for example, intimidation, violence, promise, threat, undue insistence, duress, pressure, coercion or causing a suspect to confess due to mental or physical exhaustion etc; and
  • not be made as a result of inducements, for example, by suggesting that confession will produce a beneficial result or failing to do so will have a detrimental result. Such an inducement must be made by some person in authority, such as a police (or prosecuting) officer or made by some person not in authority but who is in the presence of someone in a position of authority and the person in authority does not disassociate themselves from the person making the inducement. In such a case the inducement must cause the confession.

Where the confession is not voluntary it can be challenged in court and a ‘voir dire’ (a trial within a trial) is held to decide whether the confession or statement was made voluntarily. At the voir dire, the prosecution must establish voluntariness, but it seems not on the usual criminal standard of proof which is ‘beyond reasonable doubt’.

The law remains uncertain as to what standard of proof is needed. There are conflicting decisions of the Tasmanian Supreme Court. The standard of proof for establishing voluntariness is either that of the balance of probabilities which is the usual civil standard of proof, or a ‘variable’ one lying somewhere between the criminal and civil standard of proof depending ‘on the circumstances’.

Malicious Prosecution

Malicious prosecution occurs where a person maliciously and without reasonable cause starts criminal proceedings against another. A person is liable for malicious prosecution if, on their complaint, the police prosecute the other person. The person must actively instigate the prosecution, for example, by laying a charge. Merely providing information is not enough. The person is not liable if the police make an independent decision to start proceedings.

Action for false imprisonment or malicious prosecution should be taken in the Supreme Court. Legal representation is advisable. It may be difficult to prove either that the police did not have reasonable cause to arrest or that the person had malicious motives in instigating the prosecution.

False Imprisonment

False imprisonment occurs if a person is unlawfully restrained against their will. It is also false imprisonment when a person submits to the control of another because of an unlawful threat of force or assertion of authority.

If a person voluntarily goes to the police station, there is no false imprisonment because there is no detention against that person's will. But if a person goes to a police station out of fear of the consequences (for example, public humiliation), the submission is not voluntary and may be regarded by a court as false imprisonment.

The defendant in a case of false imprisonment will be either the person who actually detained the plaintiff or the person who directed the police to arrest the plaintiff when they would not otherwise have done so.

There is no false imprisonment if the police arresting had reasonable cause or a warrant.

What to do

In the event of police mistreatment, the following steps should be taken if possible. An immediate complaint should be made to the officer concerned and their superior. The longer a complaint is delayed, the easier it is for the police to suggest in any later inquiry that the complaint is untrue. Such a complaint can now be made immediately following an interview (or even during the interview if it is an audio-visual one, so that the complaint is recorded). Verbal complaints should be confirmed in writing, if possible, by a solicitor.

An immediate medical examination should be arranged in a case where there is physical violence. Police Standing Orders provide that a telephone call by a person in custody may be made to a doctor. Failing this, a person should be examined at the earliest opportunity and if any external injuries are evident, photographs should be taken.

People should be contacted who saw the person concerned not long before the arrest. They should be asked to look at any injuries and to state (in writing) whether they observed them beforehand.

A full statement of what occurred should be made by the person alleging mistreatment while the incident is still fresh in their memory. Action may be taken for assault and/or false imprisonment. A complaint can be made to the Commissioner of Police and if this is not satisfactorily dealt with the matter can be further investigated by the Tasmanian Ombudsman.

Civil proceedings may be preferable to criminal action. Criminal proceedings against the police are especially difficult since complaints must be made to the police themselves (though a ‘private prosecution’ is possible).

Exclusion of Evidence in Court

There are two main reasons why judges can exercise their discretion to exclude evidence. The first is that a judge has a discretion to exclude evidence of statements if the manner in which they were obtained is considered to have been improper. This discretion is unique to confessions and may be exercised even if the confession is technically voluntary. Thus, a confession may be rejected if, in all the circumstances, it would be unfair to use it against the accused. The theory behind this discretion is to discourage police misconduct, to ensure reliability of evidence and to protect an accused's right to silence. The discretion is contained in section 138 of the Evidence Act 2001 (Tas).

Breaches of Police Standing Orders, though they are not legally binding, and denial of access to a lawyer frequently justify the exercise of this discretion.

The overall purpose of this discretion is to ensure fairness to an accused. However a judge has to be concerned with broader public considerations such as the public need to bring about the conviction of criminals. This has to be weighed against the public interest in the protection of an individual from unlawful and unfair treatment. If the latter outweighs the former, the discretion should be exercised.
Secondly, the judge has a discretion to reject other evidence sought to be tendered against an accused by reference to the fact of it having been obtained by unlawful or unfair means.

In particular, it is not legal in Tasmania to simply detain a person for questioning even if they are lawfully under arrest. The duty of the police is clearly to take such a person before a court ‘as soon as practicable’ (s4, Criminal Law (Detention and Interrogation) Act 1995). If this is not done, the court may in exercise of its discretion exclude any confession obtained from use as evidence.

Other kinds of illegality or impropriety to which the discretion applies are illegal searches and seizure, illegal blood and skin tests and medical examinations, illegal phone tapping and interception of mail, and the use of tricks, lies, eavesdropping and entrapment. The police may deceive a suspect about their identity in order to obtain evidence or information of criminal activity.  This is permissible providing it is used merely to assist the police in their enquiries and does not cause a person to commit a crime which would otherwise not have been committed.

Finally, it is up to an accused person to persuade the judge to exercise their discretion.

Civil Compensation for Illegal Police Actions

Civil court action can be taken in some cases of police misconduct (for example, trespass to persons or property, assault, wrongful arrest, false imprisonment or malicious prosecution). There have been a number of recent well-publicised cases, most of which have failed but which have highlighted the need for police officers to be accountable for their actions.

Customs officers are protected from anything done under the Customs Act 1901 (Cth) if there was reasonable cause (s220). This protection seems to be exhaustive, although it has never been tested in any civil action. It would appear that no crime need be proved to establish reasonable cause.

Interviews, Examinations and Line-ups

Medical Examinations

The Forensic Procedures Act 2000 authorises medical examinations of persons suspected of, or charged with offences in the detailed circumstances which it specifies. No forensic procedure on a person under ten years of age is permitted (s4).

The procedures authorised under the Act are intimate procedures where a suspect or person charged is 15 years or older, where that person has given informed consent, or upon the order of a magistrate; non-intimate procedures on a charged person if any police officer so orders if the person is in custody; and if the person is not in custody on the order of an officer of or above the rank of Inspector; and where a suspect or person charged is under the age of 15 years if that person and his or her parent has given informed consent or on the order of a magistrate.

Non-intimate procedures may be carried out on a person serving a sentence, a parolee and a person subject to a restriction order under the Criminal Justice (Mental Impairment) Act 1999.

Persons may volunteer submission to forensic procedures if they give informed consent and if under the age of 15 years both they and their parent give such consent (s8).

Procedures have to be carried out in circumstances affording reasonable privacy and in a manner consistent with appropriate medical or other relevant professional standards. The procedures can be carried out with reasonable force to enable the procedure and to prevent loss, destruction or contamination of sample. The most intimate procedures should be carried out by a person of the same sex as the person undergoing the procedure.

Records of Interviews

Written interviews are rarely used when audio-visual equipment is now available. If written interviews are now used, it may be suggested in court that the police did not want the interview recorded for various reasons.

If a written record of the interview is required, this may be done in ‘question and answer’ form, handwritten or typed. In either case, the person will be asked to sign it but does not have to do so.

In law, when a person reads and signs a document or agrees that it is correct, they are adopting everything in the document. There is no objection to a person reading and signing a record of interview that contains no answers other than refusals to answer, unless of course the police need a specimen of handwriting to be used in court.

There can also be no objection to a person reading and signing a statement or a record of interview where the person knows and understands what the document contains and does not mind the words in the document being recorded as theirs.

In all cases, however, where words of a person are recorded by the police, a copy should be requested and supplied free of charge.  The person concerned needs a copy so that the extent of any admissions can be seen before going to court. A written signature is usually requested as a receipt. If the person does not want to sign for the document, it is better to do without the copy. It can in any case be obtained by the person or their lawyer later on by requesting it in writing.

Because it is expected that interviews of suspects by police will now take place on video, what is said to the police and what is contained on any written transcript can now be checked by the court. However in cases being prosecuted by other branches of government it is possible that video facilities may not be available.  In such cases the record of interview may be in dispute. A person should not sign a record of interview if they have not read it, if they do not understand part or all of it or if they disagree with all or any of it.

Unsigned records of interview can still be used as evidence in court. Section 81 of the Evidence Act 2001 can be used to admit direct oral evidence from a police officer that a suspect confessed to being guilty. The police officer may put this representation in a document (i.e. the record of interview) to establish the fact the suspect confessed to them, provided the police officer had personal knowledge of matters dealt with by the representation, namely the confession of guilt.

However, where the accused denies the truth of the document, the magistrate or judge will sometimes refuse to admit it to evidence. For example, evidence that a legal adviser was refused access to the accused may cast doubt on the truth of the record of interview so that it will not be admitted.

There are certain requirements regarding unsigned records of interview:

  • An accused must have acknowledged or adopted the document (by agreeing that it is correct;
  • A copy of the document must also be shown to the accused as soon as practicable (as failure to do so may give rise to a suspicion that it has been altered);
  • A judge still has a discretion to exclude it on grounds such as unfairness, prejudice, unlawfully obtained, undue weight, etc.
  • Further, unless the reliability of the unsigned and disputed record outweighs its prejudicial effect, a proper exercise of the discretion requires that it should not be admissible in evidence. This is so even if the accused has acknowledged it to be correct in front of an independent person.
  • As a matter of practice, a judge should warn a jury of the dangers of relying on disputed confessional evidence obtained by police where it is not independently corroborated. The audio-visual recording of interviews provides reliable corroboration of a confessional statement and therefore no such warning is necessary where this procedure has been adopted.

Fingerprints, Photographs and Line-ups

After a person has been properly arrested and charged, police have the power to photograph and fingerprint a person in the case of all but a few minor offences. Reasonable force may be used to do this. Such evidence can be used to identify a person at the time and later on in court. These records should be destroyed within seven days if the person has no previous relevant record and no conviction results from the charge. Persons under fifteen cannot be photographed and finger-printed unless they have consented (s8, Forensic Procedure Act 2000 (Tas)).

It is unclear whether a person can be forced to take part in an identification parade or ‘line-up. However, unwilling suspects can easily abort the proceedings by drawing attention to themselves. Police Standing Orders lay down the procedure for line-ups. A suspect's rights are to choose any position and to complain about any aspect of the procedure.

The sergeant in charge of a line-up is meant to be independent of the officers investigating the case. A complaint to that sergeant should be made, and recorded, where those on the line-up are not of similar age, height, general appearance or class as the suspected person. Participants in line-ups are advised to make written notes of all aspects of the process as soon as possible afterwards.

The failure of a witness to identify a suspect in a line-up can be relied upon in asserting innocence to a court. If a suspect is identified, a challenge to the conduct of the line-up can still be made. This will be easier to do if a complaint was made and recorded at the time.

The High Court has taken the view that an identification parade, rather than photographic identification, is a much fairer procedure for the accused. This is because the identification is in the presence of the suspect who can observe for themselves if any unfair procedures or techniques have been adopted.

Identification parades tend not to highlight the position of the accused as a ‘suspect’ if the people in the parade are of similar age, sex and height and so on. Whereas, a suspect is not present when an identification is made from photographs which are produced from police records and the existence of a photograph in police records may suggest a propensity to commit offences of the kind in question.

A warning is to be given by a trial judge to a jury in relation to identification evidence in every case where such evidence represents any significant part of the proof of guilt of an offence.

Criminal Charges and Bail

Charging

Criminal proceedings are started by a formal allegation (charge) by, say, a police officer, that a person did something which is forbidden by law. A suspect cannot be dealt with until they have been formally confronted with the allegation.

Police Bail

Police have the power to grant bail to a person who has been arrested with or without a warrant. The power to grant bail is at the discretion of the police. Police can release persons from custody provided that the person has not been arrested on a warrant, and if it is in the interests of justice to do so. There is a section dedicated to Bail.

Bail

‘Bail’ is an undertaking which secures the release from custody of a person charged. It is conditional upon that person appearing in court at a specified time and place. There may be several further conditions placed upon a person, depending on the seriousness of the offence alleged to have been committed and the history of the person arrested. The power to grant bail is given to police officers and also the courts.

Not everyone arrested for an offence is required to be granted bail. In the case of minor charges (e.g. traffic, shop lifting), a summons directing the person charged to appear in court may be issued. If the person charged fails to appear on the date on the summons, a warrant may be issued for their arrest if there is proof that the summons was served on them; or a further notice to appear can be issued. If the charge is of a very minor nature the matter may be dealt with ‘ex parte’ (in the person's absence).

Bail in Tasmania is in the main governed by the Bail Act 1994 (Tas). However there are also provisions for the granting of bail under sections 304 and 305 of the Criminal Code Act 1924 (Tas), sections 34 and 35 of the the Justices Act 1959 (Tas), and section 12 of the Family Violence Act 2004 (Tas).

Police Bail

The granting of police bail is governed by section 34 of the Justices Act. This provides a discretion to the police to release persons from custody, provided that the person has not been arrested on a warrant, and if it is in the interests of justice to do so.

A person released on police bail is provided with a police bail document which provides information of the charge and the date and time that the person has to appear in court, and any other conditions of bail that the police require. The person released must undertake to appear on the date and time as set out in the bail document and to adhere to any other bail conditions. It is an offence to not attend court in accordance with the police bail document or to breach any other conditions set out in the document.

If a person is arrested on a warrant they must be brought before a court to determine if further bail should be granted or if the conditions of police bail should be varied.

Court Bail

Any person charged with an offence who is not released from custody may apply for bail. There is a presumption that anyone charged is innocent until proven guilty. Accordingly, there exists a presumption in favour of an accused person that they should be granted bail until their matter can be dealt with. The desire to not hold people in custody before their trial may however at times be overridden by a need to protect the public, if for instance the offence is of a very serious nature e.g. murder, or if the accused person has in the past shown a disregard for court orders and is unlikely to attend court if granted bail.

If bail is not granted at a person's first court appearance, applications can be made at any subsequent appearances, subject to the provisions in section 22 of the Bail Act.

If a person charged is not granted bail and is remanded in custody, they must be brought before the court every 28 days for a formal remand.

In granting bail the court takes into account the following important considerations:

  • will the person appear to answer the charge;
  • is it in the public interest to release them;
  • are they likely to re-offend if granted bail.

Other relevant matters for consideration are:

  • Occupation and how long the applicant has been at that particular job. Will the applicant lose their job if denied bail?
  • Marital status, dependants, financial circumstances (income and expense);
  • If unemployed, how long have they been unemployed; what efforts have been made to obtain work; what is the likelihood of obtaining work?
  • What is the applicant charged with; have they been charged with similar offences in the past; if so, how long ago?
  • Is there anyone who will go surety (see below) for the applicant? If yes, that person should be in court and available to sign the bail paper at every court appearance.

Surety

A surety is a person who accepts responsibility for the accused, answering their bail and reporting conditions stated on the bail paper. The surety might be a spouse, parent or friend of the defendant. If the defendant does not appear or breaches any bail conditions, the surety is likely to be ‘estreated’. This means that the surety, if an estreatment application is made, will be liable to pay the whole or part of the sum of money that was put forward to secure the release of the person charged. So if bail was set at $10,000, the surety will have to pay this sum.

Often there is no requirement for the surety to provide the actual cash amount set down by the court at the time of granting bail, but a surety may have to establish to the satisfaction of the court that they have the resources to pay if called upon. Thus if a surety has steady employment or has a car or house this would be evidence that the court would consider in deciding whether to accept the surety.

If a surety is not available at the time when an application is made, then the applicant can either ask that the matter be ‘stood down’ until the surety arrives at court or arrange for the surety to visit and sign the paper at the jail provided that they are accepted as a suitable surety by the court.

A surety should be satisfied that the person for whom they are going surety will adhere to the bail conditions sought. If the surety becomes aware, or should have become aware, that the person has broken one of their bail conditions (see below) or may not turn up in court, they should contact the police. Not to do so means that the sum of money set as surety becomes liable to be forfeited on an application brought by the prosecution section.

The Magistrates Court has the jurisdiction to grant bail on all offences except murder. Only the Supreme Court has jurisdiction to grant bail for murder.

Bail Conditions

The court has the power to make bail subject to a wide range of conditions. Examples of such conditions are as follows:

  • that the person reside at a particular address;
  • that the person report to the nearest police station on particular days between prescribed hours;
  • that the person not be absent from their residential address between certain hours (that is, a curfew);
  • that the person not approach another person directly or indirectly. (This is especially common in cases of offences involving violence such as assault, wounding or rape.)

Less commonly, the court may impose conditions that the person not be in particular localities or associate with particular persons. The person may also be required to hand in their passport and not be found within a certain distance of any air and sea terminal, if it is believed the person is likely to leave the state while on bail. A surety (see above) is also a condition of bail.

In the case of drink driving offences it will often be a condition of bail that the person charged must not drive with any alcohol in their body, or, in more serious cases, not be found behind the wheel of a motor vehicle.

Such conditions are imposed to try to control the behaviour of people on bail by keeping track of their movements and stopping them from re-offending while on bail. Conditions are usually sought through the prosecutor, though the court can impose bail conditions itself.

Breach of bail conditions is a serious matter, for which the person can be arrested and brought before the court. If the breach is proved, the person breaching the condition is liable to a fine or imprisonment. It may also mean that the court will be reluctant to grant bail in the future.

Review of Bail Decisions

Where a refusal of bail or the imposition of particular bail conditions is reviewed, this review is treated as a new application for bail. The following rules apply to the review of bail decisions:

  • a magistrate can review the decision of a justice of the peace;
  • a judge can review a decision of a magistrate;
  • the Full Court of the Criminal Court (that is three judges) can review the decision of a single judge.

If in prison, forms for an application to review a bail decision can be obtained from the prison authorities.

Bail Pending Appeal

If a person is convicted of a matter, they may wish to appeal either or both the sentence or the conviction. In these circumstances they may wish to apply for bail pending the outcome of the appeal, pursuant to section 415 of the Criminal Code.

Bail in these instances will only be granted if special circumstances exist. The most common situation where bail will be granted is if the applicant has been given a short sentence, and they are likely to have served their sentence prior to their appeal being heard.

Bail and Family Violence

There are special considerations that apply when a court, judge or police officer is considering bail for a person charged with a family violence offence. The primary consideration is whether the person’s release would be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child (s12(1), Family Violence Act 2004). In other words – would the person continue to behave in a violent manner toward a family member or child?

Other considerations include, but are not limited to:

  • any available risk screening or rehabilitation program assessment;
  • the person's demeanour;
  • the result of any available safety audit;
  • the availability of suitable accommodation for the person and any affected person or affected child;
  • any other matter the judge, court or police officer considers relevant (s12(2)).

If a person is charged under the Family Violence Act with breaching a family violence order (FVO) or a Police Family Violence Order (PFVO), they are not to be admitted to bail (s12(3)).

Extradition

'Extradition' is where a person is sent from one state (or country) to another to be tried for a criminal offence. A justice in one state issues a warrant for the arrest of a person (Service and Execution of Process Act (Cth) 1992).  The warrant is taken to the state where the person lives, say, NSW. The person is arrested (or taken from jail) and brought before a justice (usually a magistrate) in NSW.

The magistrate then can order the person returned to the state where the interstate warrant was issued in the custody of the police officer bringing the warrant; or allow the person bail on the condition that they appear in a particular court in the other state; or allow the person bail until the end of a period of time during which the person should be sent to the other state; or release the person; or make any other order they think fit.

An order to effect the return of the person must be made by the magistrate unless they are satisfied that the charge is trivial; or the application for the return of the person has not been made in good faith and in the interests of justice; or it would be unjust or oppressive to return the person either at all or until the expiration of a certain period; or  it appears on undisputed facts that the person would, if tried, be acquitted of the charge for which extradition is sought.

It is rare for an apprehended person to avoid extradition. Unlike overseas extradition, the absence in Tasmania of an offence comparable with the offence charged in the other State will not allow the person to avoid extradition.

The person apprehended should seek full particulars of the offence charged, before trying to persuade the magistrate not to extradite. Legal representation is strongly advised. Cross-examination of the interstate police may provide useful information as to the strength of the police case, thus enabling better preparation of the defence later on.

Offences under the Police Offences Act and the Criminal Code

Introduction

The Police Offences Act 1935 (Tas) overlaps some offences contained in the Criminal Code Act 1924 (Tas) (the Criminal Code) such as assault and damaging property. Whether an alleged offender is to be charged under one rather than the other will depend upon the discretion of the prosecuting authorities and normally relates to the seriousness of the offence about which the complaint is made.

All charges brought under the Police Offences Act are summary in nature. That means that the charge is heard by a magistrate, rather than a judge, and the complaint must be filed within six months of the date of the commission of the offence (Justices Act 1959 (Tas), s26). There is no such limit on charges brought under the Criminal Code.

Assault

It is an offence to unlawfully assault another person. Assault can also be a crime contrary to the Criminal Code or the Police Offences Act (s35). An assault is the intentional application of force to another person without their consent, or the threat to apply such force. Under the Criminal Code an ‘aggravated’ assault upon a pregnant woman (s184A, Criminal Code), is much more serious. An ‘aggravated’ assault is one of particular force or violence.

The Police Offences Act provides for a separate penalty for assault ‘with indecent intent’ of a child  under 17 years (s35(3)). Indecent assault under the Criminal Code and the POA means a common assault in circumstances of indecency. However if no indecent intent is found, the charge can be amended to one of common assault.

Offences Against Property

Trespass

This covers unlawful entry onto land. It often also covers situations where a person refuses to leave land, e.g. during political protests or industrial activity.

Trespass is the entry without lawful excuse upon any land without the consent of the owner or occupier or the person in charge of it (s14B, POA). An owner or occupier of land or their agent can require the name and address of a suspected trespasser. It is an offence to refuse to provide it, even though the person charged is later acquitted of trespass. A police officer may arrest without warrant a person who appears to be a trespasser. Before doing so, the police officer must give the trespasser an opportunity to leave.

Damage to Property

It is an offence in an urban area to deface or damage walls etc (s15(1)(b)), and it is also an offence to destroy or injure any property (s37). Note that the Police Offences Act is not the only statute prohibiting behaviour of this sort. Equivalent charges can be laid under the Criminal Code.

To be convicted the defendant must perform an act which has ‘no lawful justification’ and the act must be ‘wilful’, that is, the person must consciously perform an act and, in doing so, must appreciate that the damage was likely to result yet persist in not caring whether the damage occurred or not.

The damage must be actual rather than hypothetical. Thus it has been held to be no offence for a few people to play soccer on a paddock used for grazing. But slight damage, however temporary, will result in a conviction, for example, a small dent in the fabric of a policeman's cap. The injury must be something which reduces the value of an object or requires something to be done by the owner to return it to its former state.

Unlawful Use of Property

It is an offence to take or to use the property of another, whether it is an animal, boat, vehicle such as a bicycle or wheel barrel, or a motor vehicle, without the authority of the owner or someone else lawfully in charge, or without lawful excuse. In the case of motor vehicle stealing (s37B), which is the most common charge of this sort, the person lawfully in charge of the motor vehicle must also have the authority to give that consent. For example, a person who has borrowed a car will be lawfully in charge of the motor vehicle, but may not have the authority to give consent.

It is not necessary to prove an intention on the part of the defendant permanently to deprive the owner of their property. The Police Offences Act is concerned only with the unauthorised use of the car. However it is necessary for the prosecution to prove that the use was dishonest in character.

Motor vehicle stealing is a serious offence and carries penalties of a fine up to 50 penalty units and up to 3 years in prison. Also the defendant may be disqualified from holding or obtaining a driver's licence and may be liable to make good loss or damage sustained by the owner.

Possession of Stolen Property

It is an offence to be found in possession of property reasonably supposed to have been stolen or unlawfully obtained (s39). This is a complex provision and to be convicted the defendant must be ‘found’ to be ‘in possession’ of property which is ‘reasonably supposed’ to be stolen or unlawfully obtained and without being able to account for it to the court. Hearings of such charges are often characterised by lengthy legal argument covering the above points and a person so charged should seek competent legal advice.

The essence of the charge is that the police must make out a case and then the defendant must prove their innocence on the balance of probabilities. There is also a charge of receiving stolen property contrary to the Criminal Code.

Offences Against Public Authority

It is an offence to assault, resist or wilfully obstruct police officers when acting ‘in the execution of their duties’, and similarly with public officers and persons lawfully making arrests (s34B, POA). In practice, charges generally relate to police officers. Before a charge can be made out it is essential to prove the police officer was acting in the execution of their duty and not exceeding that duty.

Obstruction of police is any act which makes it more difficult for the police to carry out their duty. This would generally be physical acts but it might include words e.g. urging a person in custody in a police car to get out. The obstruction must be intentional; an accidental or inadvertent act is not enough.

To resist arrest is to act so as to avoid being taken into custody. In order for the charge to be made out there must be some attempt by the police to effect a lawful arrest.

Offences in Public Places

There are numerous provisions in the Police Offences Act 1935 (Tas) which regulate behaviour in public. Such matters almost always relate to conduct in public places or, sometimes, to behaviour visible from public places (provided that there is actually someone in the public place at the time to witness it).

The concept of the ‘public place’ is very wide and includes parks, wharves and jetties, passenger vessels and taxis, churches, theatres and meeting halls, markets and auctions, licensed premises, sports grounds and race-courses, police stations and courts, public toilets, schools, banks and shops.

This list is not exhaustive. Public streets are ‘public places’. That definition includes much more than is popularly considered to be a street, and includes car parks, petrol station forecourts and the like. In short, a public place can be considered to be any place to which the public has access, whether or not the place is otherwise private property.

Loitering

Loitering may be an offence even though the person accused is doing absolutely nothing, except loitering. However the circumstances of where the person is loitering and who the person is can lead to a suspicion which then may be prosecuted as an offence. A person must be a ‘suspected person or reputed thief’, which means their history of convictions can be produced in court to help the police to prove the case against them. The person’s ‘known character’ is a factor in persuading the court that they intended to commit a crime (s7, POA).

A person found loitering, and in possession of any housebreaking implements or any other implements in their possession ‘with intent to commit a crime’ can be convicted and jailed. It is not necessary for the police to prove any particular act demonstrating that intent, nor is it necessary to specify what particular crime the suspect intended to commit.

It is an offence under the Police Offences Act to loiter near a school or in a number of specified places where children are present such as a public toilet, a playground, a games arcade or swimming pool (s7A, POA). The Act states that a person who has been guilty of a sexual offence must not, without reasonable excuse, loiter near children. The penalty is up to 50 penalty units or up to 2 years in jail.

All of these procedures are contrary to the customary approach of the criminal law that neither an accused person's previous offences nor their character can be used by the prosecution to prove an offence except in very strictly defined circumstances. Similarly, in general it is for the prosecutor to prove all parts of a charge beyond reasonable doubt and an accused does not have to prove their innocence.

Drunkenness

The Police Offences Act contains offences of drunkenness, that is, being discovered in a public place intoxicated and 'behaving in a manner likely to cause injury to himself, herself or another person, or damage to any property; or incapable of protecting himself or herself from physical harm' (s4A). There are also offences of drunkenness when in charge of a vehicle, or in possession of a dangerous weapon’ (s4). 

In prosecuting those charges it is usual for a police officer to give evidence of the smell of the person's breath, and their appearance and demeanour from which the police officer formed the opinion that the defendant was drunk.

Public Annoyances/Public peace

Persons affected by alcohol will also often find themselves facing charges of causing public annoyance. (s13, POA). The most common of these are ‘committing a nuisance’ and ‘disturbing the peace’. A ‘nuisance’ is just what the word suggests: something which is annoying, obnoxious or unpleasant, such as urinating in the street. There is almost no limit to the range of annoyances which can amount to a nuisance. The nuisance must be a public nuisance, that is, it must occur in a public place and affect members of the public.

‘Disturbing the public peace’ is to engage in conduct which is likely to result in a ‘breach of the peace’. Usually, this means fighting in a public place. Disturbing the peace does not relate to rowdy behaviour, nor does ‘peace’ mean ‘peace and quiet’. The ‘public peace’ is the traditional right of citizens, guaranteed by the Crown, to go about their business without fear of violence.

Public annoyances include among others ‘offensive behaviour’, ‘throwing fireworks’ and ‘recklessly throwing a missile to the danger or damage of another person’. ‘Missiles’ usually turn out to be rocks or beer cans. ‘Recklessly’ means throwing an object with an intention to hit a person or property, or realising that it was likely that a person or property would be endangered or hit, and not caring whether or not this happens.

Indecent Language

This charge (s12, POA) is less common than it used to be, principally because a significant number of complaints are being dismissed by magistrates as community attitudes to what is ‘indecent’ change. The Full Court of the South Australian Supreme Court has held that the measure of what is indecent is not the standards of judges or magistrates, but rather that of average citizens of average age and outlook. For this reason the police may lay other charges of either ‘swearing’ or using ‘improper language to a police officer’, depending on the circumstances.

Begging and Other Street Offences

It is an offence to beg in a public place or to induce or solicit alms (s8, POA). This carries a penalty of up to 5 penalty units or imprisonment up to 6 months. Begging is not the same as busking. However where a busker is asked by the occupier of a house or premises to stop performing in the vicinity, it is an offence to continue to sing or play (s16).

It is an offence for a common prostitute in a public place to solicit, importune or accost any person for immoral purposes (s8). It is also an offence to keep a disorderly house which ‘harbours prostitutes’ (s9) and for a man to live off the earnings of prostitutes (s8). But prostitution per se is not an offence, which is why so many sex workers advertise through the newspaper advertising pages, as this is not in a public place, or a ‘disorderly house’.

It is an offence to drink in a public street or public place (including being inside a car) (s25) or have an opened container of liquor without reasonable excuse (the proof lying with the person) where this is proscribed by regulations. It is not an offence where the person is within 50 metres of a public house and using furniture or other facilities lawfully provided by the pub. Nor is it an offence where a permit has been issued under the Liquor Licensing Act 1990 (Tas).

Computer Crime

Computer-related fraud is an offence (s43A, POA), as is damaging computer data (s43B) and computer hacking (s43C). The penalty is up to 20 penalty units and up to 2 years in jail. If the computer fraud or hacking emanated from outside Tasmania but there is a substantial link with Tasmania, the Police Offences Act can still apply as if the offence had taken place entirely within Tasmania.

Penalty Units

A penalty unit is a fixed amount of money. Penalty units are used to decide the amount of a fine. The current penalty unit in Tasmania is $157. This means that if you are fined 2 penalty units, your fine will be $314. All fines are a multiple of a penalty unit. Failure to pay a fine attracts the attention of the Monetary Penalties Enforcement Service. Failure to organise payment instalments with them, or failure to pay results in more costs. Enforcement orders cost an extra $78.50, and sanctions to ensure payment also carry charges.

Drug Offences

The law about drugs in Australia is found entirely in Acts of Parliament. In Tasmania the situation is governed by the Customs Act 1901 (Cth), by the Poisons Act 1971 and the Misuse of Drugs Act 2001. The Narcotic Drugs Act 1967 (Cth) and the Psychotropic Substances Act 1976 (Cth) apply certain international conventions to Australia, but do not affect most cases before the courts.

Tasmanian Law: Poisons Act 1971 and Misuse of Drugs Act 2001

Overview

The Tasmanian Poisons Act 1971 and the Misuse of Drugs Act 2001 deal comprehensively with provisions relating to the regulation, control, and prohibition of the importation, making, refining, preparation, sale, supply, use, possession, and prescription of certain substances and plants, which for ease of reference are referred to below sometimes simply as ‘illicit drugs’.

The Acts draw a distinction between a number of categories of drugs in relation to which criminal liability may be attached, including, for example, ‘narcotic substances’, ‘prohibited substances’, ‘prohibited plants’, and so on. Clearly heroin, morphine and so on are ‘narcotic substances’. They are also ‘prohibited substances’. ‘Prohibited plants’ include for example opium, coca leaves and Indian hemp. Sometimes the definitions include the same substance, and a person charged in relation to an illegal substance or illicit drug, will need to consult the Acts or the regulations made under the Acts.

Cannabis Offences

It is an offence to possess cannabis, to smoke it, to supply it to others, or to possess pipes or other items for use in connection with the preparation or smoking of cannabis, or for the supply or preparation of the drug. The Act does not have different penalties for individual drugs. In each case, a penalty is provided for particular acts related to a specific category as defined in the Misuse of Drugs Act. In general, minor offences in relation to cannabis would be treated much more leniently than say heroin.

There are also a number of property-related offences involving cannabis and other drugs. Under the Poisons Act (s83B), if a person owns or occupies premises, it is an offence to be used for or in connection with the unlawful growing, manufacture, preparation, sale, distribution, trafficking, use, or administration of a raw narcotic, narcotic substance, prohibited plant, or prohibited substance. It is an offence simply to possess a pipe for smoking cannabis, and other implements and devices used in connection with prohibited substances, including devices for its preparation.

Possession

Possession in the Tasmanian legislation does not just mean that it is on the person. The definition of possession in the Misuse of Drugs Act 2001 (Tas) (s3(3)) includes, but is not limited to where the controlled substance is:

‘on any land or premises occupied by the person, or is enjoyed by the person in any place or is in the person's order and disposition, unless the person proves that he or she had no knowledge of the substance’.

This means that at trial, the defence must prove that they had no knowledge of the substance. The prosecution is not required to establish knowledge. This reverses the onus of proof. It is usual for the prosecution to establish the guilt of the defendant, not for the defendant to establish their innocence. It is now up to the defendant to prove lack of knowledge.

A place can include a car, a locker or anything used by the defendant. ‘Occupied by the person’ is not defined. It has been considered in the Supreme Court decision of Allison v Lowe, (1988) Tas R it appears that the question is one of fact and degree, as to whether, on the evidence, the accused can fairly be said to be the occupier of a place. An occupier can include husband and wife, a guest, even a squatter’s occupation may suffice. It is not necessary that the occupation is permanent.

Sale, Supply and Trafficking

The most serious offences in the Misuse of Drugs Act relate to manufacturing, cultivating, selling, and trafficking and supplying controlled substances, including ‘precursors’. Precursors are substances known to be used in the manufacture of illicit drugs; their possession and manufacture is itself a crime. These offences are indictable offences tried before a judge and jury in the Supreme Court. A person convicted is guilty of a crime and liable to punishment of a term of imprisonment for up to 21 years and/or fined. The Misuse of Drugs Act also contains so called minor offences (triable summarily in the Magistrates Court) for the manufacture and possession of controlled substances and controlled plants, and the cultivation of controlled plants, which have maximum penalties of 50 penalty units and or imprisonment for up to two years. These penalties apply where the amount in question is less than the ‘trafficable quantity’. The differing amounts for various drugs and prohibited plants trafficable quantity are contained in Part 2 and Part 3 of Schedule 1 of the Misuse of Drugs Act.

The definitions of ‘sell’ and ‘supply’ are extremely wide. ‘Sell’ includes offering or exposing for sale; keeping or having in possession for sale; barter or exchange; delivering or agreeing to sell; sending, forwarding, delivering or receiving for sale; and authorising, directing, causing, permitting, or suffering any of those acts or things to be done. ‘Supply’ includes offering or agreeing to supply a substance, administering it by any means.

A person found in possession of an illicit drug who states that they intended to supply or sell the drug the following day, could be charged even though at the time they still retained possession.
Of extreme significance in relation to these offences are deeming provisions in relation to the possession of controlled substances, plants and precursors. For example, in relation to the cultivation of a prohibited plant, the Misuse of Drugs Act, section 7 provides as follows: ‘If it is proved in proceedings for an offence under (this section) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of evidence to the contrary, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence’.

Similar sections are contained in relation to manufacturing of controlled substances. That is, if you have in your possession an amount greater than the trafficable quantity, you have the burden of proof in establishing that you did not possess the drugs for the purpose of sale, that is trafficking.

Prescribed quantities in the Schedules include:

  • Amphetamine: 25g
  • Cocaine: 25g
  • Poppy plant material: 100g/500 plants
  • Heroin: 25g/20 packages
  • Cannabis: 1kg/20plants/20 packages
  • Cannabis Resin/oil: 25g

Thus if a person has, for example, 0.4 grams of heroin in their possession they cannot be subject to the heavy penalties provided by section 12 without some evidence additional to possession alone pointing to the offence. If they have 26g, they may be deemed to be guilty of sale, supply or trafficking, if they fail to satisfy a jury that they had the heroin for some other purpose (normally for their own use).

It does not seem true however, to say that this section reverses the onus of proof as does section 3(3). At the end of the day, the jury must still be satisfied beyond reasonable doubt that a crime has been committed. Section 3(3) applies to summary offences punishable by a magistrate in the Court of Petty Sessions only. However, it is difficult to see how an accused could raise a reasonable doubt as to whether they are guilty of selling, for example, without giving evidence. This is contrary to the usual rule in criminal trials, which is that a person is not required to prove their innocence.

The definition of sale and supply under the Act is perhaps broad enough to catch even those who ‘offer to supply an illicit drug’ when in fact they have nothing at all to supply. The mere offer may be enough to make that person liable to the same penalties as a supplier.

'Traffic’ is defined in section 3 of the Misuse of Drugs Act. It includes to sell the substance; to prepare the substance for supply with the intention of selling it or the belief that another person intends to sell it; and to transport the substance with the intention to sell it; to guard or conceal the substance; and to possess the substance with the intention of selling it. It is the playing of any part in the distribution from manufacturer to the ultimate consumer.

Other Drug Offences

Section 169 of the Criminal Code provides that: ‘any person who administers any stupefying or overpowering drug or thing to any person, with intent thereby to facilitate the commission of an offence, or to facilitate the flight of an offender after the commission or attempted commission of an offence, is guilty of a crime. Charge: Administering a drug with intent to facilitate the commission of an offence (or the flight of an offender).

Penalties under the Misuse of Drugs Act

Set out below is a list of offences. It does not include those related to particular classes of persons, for example, medical practitioners and chemists. The penalties are maximums. The courts have wide discretion with penalties. Other sentencing options are open, for example, suspended sentence, community service orders, etc.

  • s6: Manufacture of narcotic substances (for the purpose of trafficking) up to 21 years jail
  • s21: Manufacture of narcotic substances (less than trafficable quantity) fine up to 50 penalty units, up to 2 years jail or both.
  • s7: Cultivating a controlled plant for sale up to 21 years jail
  • s22: Cultivating a controlled plant fine up to 50 penalty units, up to 2 years jail or both.
  • s12: Trafficking in a controlled substance up to 21 years jail
  • s23: Possessing utensils etc for administering a controlled drug fine up to 50 penalty units
  • s24: Possessing, using or administering a controlled drug fine up to 50 penalty units, up to 2 years jail or both.
  • s25: Possessing or using a controlled plant fine up to 50 penalty units, up to 2 years jail or both.
  • s26: Selling or supplying a controlled drug fine up to 100 penalty units, up to 4 years jail or both.
  • s27: Selling or supplying a controlled plant fine up to 50 penalty units, up to 2 years jail or both.
  • s28: Forging, uttering prescriptions etc. fine up to 50 penalty units, up to 2 years jail or both.
  • s31: Failure to provide information (including from whom prohibited substance was bought) fine up to 100 penalty units

In addition to the above, the courts have wide powers to impose further penalties by way of forfeiture pursuant to the Crime (Confiscation of Profits) Act 1993 (Tas). This includes anything whatsoever used in the commission of the offences and orders for payment of monies equal to the proceeds derived from the commission of the offence or any other offence of a similar kind which the court takes into account in imposing penalty. This power applies to numerous offences.

Additionally, the Misuse of Drugs Act contains specific provisions in relation to property derived or received from major offences. It is an offence to conceal, transfer, convert or remove the property derived from an offence if its purpose is to conceal the commission of an offence under the Act (s16). It is also an offence to receive property, knowing it to be directly derived from a drug offence (s17). The court can impose penalties of up to 21 years in jail. The court also has the power to order the forfeiture of property used in the commission of any offence under the Act, including summary offences. Needless to say drugs seized by police during searches are also forfeited and disposed of.

The power of forfeiture applies even if the owner of the article is unaware of any offence having been committed in or with it (Forbes v Traders Finance Corporation (1971) 126 CLR 429). Provision is made for rights of appeal by any person having an interest in an article the subject of forfeiture.

Sentencing Drug Offenders

The maximum penalties for offences are set out above. Aspects which may be considered, when sentencing include:

  • the nature of the drug (including type and quantity);
  • qualities of the offender (including degree of addiction, motive, prior record of drug offences and age);
  • the facts of the offence (including the degree, level and character of involvement);
  • the influence of the legislative context (including the category of offence, and levels of maximum penalties);
  • the community impact of the offence (including any moral responsibilities of the offender, deterrence and the magnitude of social harm).

Matters concerning possession and personal use of small quantities of cannabis are dealt with in the Magistrates Court. The penalty is almost always a fine and an order to pay costs, sometimes together with an adjournment with conditions. Quite often an adjournment with conditions alone is ordered.

Probation for addicts on the basis that they seek treatment presents some difficulties in areas where the facilities for treatment are limited.

The various factors involved in sentencing are numerous and vary with the changing attitudes of the time. To make comparisons is exceedingly difficult. The more addictive and socially damaging the drug concerned is considered to be, the more likely is it to be reflected in the severity of punishment and to engage in commercial activity will often mean a jail sentence.

Commonwealth Law: importing and exporting

Offences

Until recently, federal drug offences were contained in the Customs Act 1901 (Cth) as drug offences were mainly concerned with the export and import of drugs. The Customs Act is still relevant, as the Act sets out many search and detention powers. With the passage of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth) (SDOA) the law concerning federal drug offences was transferred to the Criminal Code Act 1995 (Cth)  Chapter 9, Part 9.1. The amendments of the SDOA have brought Australian law into line with our international obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

This chapter was written with reference to the Fitzroy Law Handbook Online.

Presumptions

Where a Commonwealth law requires the import or export to be authorised but it isn't, the person is taken to have imported or exported the substance with the intention of using some or all of the substance to manufacture a controlled drug and a belief that another intended to manufacture a controlled drug. These presumptions do not apply if the person proves on the balance of probabilities that he or she did not have that intention or belief.

To establish a precursor importation offence, the accused must have intended to use the precursor to manufacture a controlled drug and/or believed that another person intended to use the precursor to manufacture a controlled drug.

Offences

Federal drug offences include:

The new offences fall into two categories. The first category relates to the import and export of border controlled drugs and precursors (chemicals used to manufacture drugs) and is dealt with in Division 307 of the Criminal Code. The second category relates to domestic activity involving controlled drugs and precursors, such as trafficking and manufacture. These are dealt with in Division 308 of the Criminal Code. The offences in each category are tiered, based on the quantity of serious drug involved, with greater penalties being available where a ‘marketable’ or ‘commercial’ quantity is involved.

Attempting to commit any of these crimes, aiding and abetting in their commission, and conspiring to commit a crime are all offences in themselves (s11). Conviction for any of these can result in imprisonment or heavy fines.

Import-Export of Border Controlled Drugs

Division 307 of the Criminal Code provides for offences relating to the import and export of ‘border controlled drugs’. Section 300.2 defines ‘import’ to include ‘bring into Australia.’ Import into Australia occurs when the goods are landed or brought within the limits of a port with the intention of landing them. Goods are not imported simply by bringing them within the three-mile limit of Australian territorial waters.

Section 314.4 lists border controlled drugs and plants and sets out ‘marketable’ and ‘commercial’ quantities relevant to the various offences. The following table lists common border controlled drugs and sets out quantities.

Sections 307.1 to 307.4 of the Criminal Code relate to importing and exporting border controlled drugs and plants. The applicable penalty where a commercial quantity is involved is imprisonment for life or 7,500 penalty units or both. Where a marketable quantity is involved the applicable penalty is 25 years imprisonment or 5,000 penalty units, or both. There is a new tier of offence applying to any quantity with a penalty of 10 years or 2,000 penalty units, or both, provided there is a commercial purpose. In addition, there is an offence that applies to any amount with a penalty of two years or 400 penalty units, or both.

Import-Export of Border Controlled Precursors

Precursors are the ingredients for making illegal drugs, such as pseudo-ephedrine and ephedrime. Division 307 of the Criminal Code introduces new offences for the importation or exportation of border controlled precursors with the intention of manufacturing a controlled drug. Section 314.6 lists border controlled precursors and sets out quantities relevant to the various offences. Fourteen precursor chemicals are currently listed, with further additions likely.

The applicable penalty where a commercial quantity is involved is 25 years imprisonment or 5,000 penalty units, or both. Where a marketable quantity is involved the applicable penalty is 15 years or 3,000 penalty units, or both. There is a further offence where any quantity is involved and this carries a penalty of seven years or 1,400 penalty units, or both. The quantities for a commercial and a marketable quantity have been based on the amount of precursor necessary to manufacture the corresponding amount of border controlled drug.

A person commits an offence where the person imports or exports a border controlled precursor and either or both of the following apply:

  • the person intends to use any of the substance to manufacture a controlled drug; or
  • the person believes that another person intends to use any of the substance to manufacture a controlled drug.

Trafficking controlled drugs (Division 302)

Under the Criminal Code, a person traffics in a substance if:

  • the person sells the substance; or
  • the person prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or
  • the person transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or
  • the person guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or
  • the person possesses the substance with the intention of selling any of it.

You can traffic in traffickable, marketable and commercial quantities. But traffickable quantities begin at 2.0 grams.

Cultivation of controlled plants

Cultivation of controlled plants requires a person to:

  • plant a seed, seedling or cutting;
  • transplant a plant;
  • nurture, tend or grow a plant;
  • guard or conceal a plant (including against interference or discovery by humans or natural predators);
  • harvest a plant, pick any part of a plant or separate any resin or other substance from a plant.

Cannabis is the only controlled plant under the Criminal Code. A traffickable quantity begins at 10 plants or 250 grams. The Act makes a distinction between cultivation of commercial, marketable and traffickable quantities.

Drug offences involving or harming children

There are offences in the Criminal Code directed at adults who involve children under 18 years of age in the drug trade. As well as a range of domestic offences, these include offences relating to procuring a child to pre-traffic in precursors, or import controlled drugs or border controlled precursors. Pre-trafficking includes selling the substance believing that the person to whom it is sold, or another person, intends to use any of the substance to manufacture a controlled drug (s306.1).

Possession in Commonwealth Law

To establish possession of a thing, it must be stablished that a person:

  • received or obtained possession of the thing; or
  • had control over the disposition of the thing (whether or not the thing is in the custody of the person); or
  • had joint possession of the thing.

It is a possible defence to possession to establish mistake of fact. This would have been the defence in the second Bridget Jones’ Diary movie where Bridget was unaware that the snake object in her luggage actually contained heroin.

There are four possession offences under the Criminal Code:

  • Possessing controlled drugs (s308.1)
  • Possessing controlled precursors (s308.2)
  • Possessing plant material, equipment or instructions for commercial cultivation of controlled plants (s308.3)
  • Possessing substance, equipment or instructions for commercial manufacture of controlled drugs (s308.4)

Possession of controlled drugs and precursors carry a penalty of up to 2 years imprisonment and/or 400 penalty units. However, possessing equipment or instructions for commercial cultivation or manufacture carries penalties of up to 7 years imprisonment and/or 1,400 penalty units.

Quantities

Prosecution: combining drugs or precursors

The Criminal Code Act 1995 (Cth) enables charges to be brought on the basis of combined quantities of drugs or combined amounts of precursors in certain situations under Division 311, Section 311.1. So, separate trafficking (selling) transactions on the same occasion may be charged together. Quantities of drugs imported or trafficked or quantities of precursors that are pre-trafficked, on different occasions, can be charged together where it can be shown that the person is carrying on a business. Quantities of drugs or quantities of precursors can also be charged together when there are frequent offences involving smaller quantities.

Provisions in the Criminal Code contain restrictions as to what may be combined in a charge. Selling (i.e. trafficking) smaller parcels of drugs requires each transaction to be within seven days of another, and where several importations are involved they must be within 30 days of each other. The prosecution is required to make clear that it intends to rely on these provisions and a description of the conduct alleged must be set out in the charge or provided to the accused within a reasonable time before the proceedings.

There are also provisions for combining different types of drugs. For example, an accused who sells half a commercial quantity of heroin and half a commercial quantity of cocaine can be prosecuted for trafficking a commercial quantity of controlled drugs.

Traffickable, Marketable and Commercial Quantities

Traffickable quantities are the smallest quantities, and carry the least penalty. These are small amounts of a drug, such as might be sold in one transaction. Marketable quantities are middling quantities, indicative of a person in possession being a middle man but not necessarily a manufacturer. Commercial quantities are manufacturing quantities, such as might be seized in a lab. It is also possible for a person to be carrying this amount on them in an import/export situation. This would not indicate manufacture, but the penalty for carrying such large quantities is much harsher.

The Criminal Code contains a table of the various border controlled drugs, noting their traffickable, marketable, and commercial quantities. There are also tables of border controlled plants and border controlled precursors.

There are three other tables of controlled drugs, controlled plants and the third of controlled precursors.

For example, methamphetamine is a traffickable quantity at 2.0 grams as both a controlled and border controlled drug. It is a marketable quantity up to and including 250.0 grams, and it is a commercial quantity up to, including and over .75 kilos, or 750 grams.

Defences for importing and exporting in Commonwealth law

A person is not criminally responsible for a Part 9.1 offence if, at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a state or territory, and had the conduct been so justified or excused the conduct would not have constituted the offence. These defences are in addition to the general defences available under the Criminal Code Act 1995 (Cth)  such as involuntary intoxication, age of the offender, or mistake of fact.

Lack of commercial intention defence

Under the new provisions, the marketable quantity and the new tier offences are subject to a defence of ‘lack of commercial intention’. This requires the accused to prove on the balance of probabilities that he or she neither intended to sell any of the drugs, nor believed that another person intended to sell any of the drugs. However, where this defence is raised, and accepted by a jury, Division 307 of the Criminal Code makes provision for an alternative verdict and the accused may be convicted of an offence with a two year penalty or 400 penalty units, or both.

Sections 307.5 to 307.10 provide for offences relating to the possession of border controlled drugs that have been unlawfully imported or are reasonably suspected of having been unlawfully imported.

These offences carry a defence of lack of commercial intention. The defence has two limbs. First, even if the accused intended to manufacture a controlled drug, it is a defence if the accused proves that he or she did not intend to sell any of the drug so manufactured and did not believe that another person intended to sell any of it. Secondly, even if the accused believes that another person intended to manufacture a controlled drug, it is a defence if the accused proves that he or she did not intend to sell any of the precursor to that person.

If the accused follows the lack of commercial intention defence, they may still be liable to be convicted of an offence of possessing a precursor with an intention to manufacture a controlled drug, which carries a penalty of imprisonment for two years or 400 penalty units, or both.

Search, Seizure and Detention under the Customs Act 1901 (Cth)

The Customs Act 1901 (Cth) contains specific powers for the detention and search of people reasonably suspected of unlawfully carrying any prohibited goods or internally concealing a suspicious substance.

Frisk search

Sections 219L219M219N, and 219P of the Customs Act are the frisk search provisions.

To search a person, there must be ‘suspicion on reasonable grounds’. Reasonable suspicion can be aroused by:

  • a person's travel itinerary;
  • declarations made by the person under Commonwealth law;
  • documents in the person's possession;
  • unusual behaviour of the person;
  • and the content or appearance of the person's baggage.

Section 4 of the Customs Act defines a frisk search as a rapid and methodical running of hands over the person's outer garments and an examination of anything worn by the person that can be conveniently removed and is voluntarily removed by the person.

The search must be carried out by a Customs Officer who is of the same sex as the detainee (s219M(1)(b)). You can not refuse to submit to a frisk search or refuse to produce an item requested after a frisk search. Refusal results in the person being liable to an external search (s219P).

External search

Sections 219Q and 219R are the provisions concerning external search. The definition of an external search is: a search of the body of, and anything worn by, a person in order to determine whether the person is carrying any prohibited goods and to recover any such goods. It does not include an internal examination of the person's body (s4(1)).

An external search can be carried out where a detention officer or police officer suspects on reasonable grounds that a person detained under frisk search provisions (s219Q) is unlawfully carrying prohibited goods on their body (s219R(1)(b)). The external search must be carried out as soon as practicable. if the person is not in need of protection and the person consents (s219R(1)(c)). Otherwise, the detention officer or police officer must apply to an authorised officer, or a Justice to carry out an external search of the detainee (s219R(1)(d)).

The external search must be carried out by a police or Customs officer of the same sex as the detainee (s219R(10) & (11)).

Internal search

Sections 219S to 219Z contain the internal search provisions of the Customs Act.

A detention officer or police officer who suspects on reasonable grounds that a person is internally concealing a suspicious substance may detain the person for the purpose of making an application for detention of the person (s219S).

An application for a detention order must be to a Federal Court or Supreme Court Judge if the person is in need of protection. In other cases, the application may be made to these Judges or to a Magistrate (s219T). An order for detention is made for an initial period of up to 48 hours and can be extended by the Judge or Magistrate for a further period of 48 hours. If an order for detention is not made or extended, the person must be released immediately (s219T & V). If the person consents to an internal search, the search must be carried out as soon as practicable.

If the person, or the person appointed to represent their interests, refuses to undergo an internal search, an application must be made to a Federal or Supreme Court Judge for an order for an internal search. A Judge must not make an order for an internal search unless satisfied that there are reasonable grounds for suspecting that the detainee is internally concealing a suspicious substance (s219V(9)).

An internal search must be carried out by a medical practitioner, in a place suitably equipped (s219Z). The medical practitioner must not use any procedure involving surgical incision unless they consider it necessary because the detainee's life is at risk (s219ZF), such as where a person has swallowed packets of drugs and those packets might rupture, and cause serious harm to the person.

A person detained for an internal search must be allowed to consult a lawyer (s219W). Frisk and external searches do not have a similar provision.

Sexual Offences

Sexual Offences are mainly dealt with in the Criminal Code Act 1924 (the Criminal Code).

Offences

Sexual Offences are mainly dealt with in the Criminal Code Act 1924 (Tas) (the Criminal Code).

Rape

‘Rape is committed where any person has sexual intercourse with another person without that person's consent’ (s185, Criminal Code). 'Sexual intercourse' is defined as the penetration to the least degree of the vagina, anus or mouth of a person by the penis of another person, and includes the continuation of sexual intercourse after such penetration.

'Consent’ is a consent freely given by a rational and sober person. A consent is not freely given where it is obtained by force, fraud or threats of any kind or where it is obtained by reason of a person being overborne by the nature or position of another person. Nor is it a valid consent if a person is so affected by liquor or drugs, as to be incapable of forming a rational opinion about the matter to which they consent. A very young child is not capable of giving a valid consent if the sexual nature of the act is not appreciated by the child. Where a victim suffers grievous bodily harm in connection with an alleged sexual offence, the grievous bodily harm is prima facie evidence of the lack of consent.

To establish rape, the Crown must prove an intentional act of sexual intercourse, and absence of consent. If there is some evidence that the accused person may have believed the victim was consenting, the Crown must also prove that the accused person did not honestly and reasonably believe the victim was consenting.

The maximum penalty for rape, and all crimes in the Criminal Code other than murder and treason, is 21 years imprisonment (s389), but in practice sentences for rape range from 18 months to 8 years.

Rape in Marriage

The fact that an accused person is married to the complainant is not a bar to a conviction for rape. 

Unnatural Sexual Intercourse

Sexual intercourse with an animal is a crime and is called unnatural sexual intercourse. Male homosexuality is no longer a crime in Tasmania nor is anal intercourse. Lesbianism was probably never a crime in Tasmania.

Sexual Intercourse with a Young Person

It is a crime to have sexual intercourse with a young person under the age of 17 years (s124). Consent of the young person is only a defence in two situations. First, where the young person is 15 years of age or older and the accused person is not more than 5 years older. Secondly, where the young person is 12 years of age or older and the accused person is not more than 3 years older than the young person. It follows that the consent of a child under 12 years of age is never a defence. Consent is not a defence to anal intercourse with an underage person. Mistake as to age is a defence if the accused person believed on reasonable grounds that the young person was of, or above, the age of 17 years. It is a crime to have sexual intercourse with a person under 17 years of age on more than three occasions. The crime is called maintaining a sexual relationship with a young person.

Marriage is a defence to this particular charge, as is a reasonable belief that the person was over 17.
The consent of the Director of Public Prosecutions is required to bring a prosecution (Section 125A).

Indecent Assault

Any person who unlawfully and indecently assaults another person is guilty of indecent assault (s127). To establish this crime, the Crown must prove an assault which is indecent or committed in circumstances of indecency, and absence of consent unless the victim is under 17 years of age. If the victim is a young person under the age of 17 years, consent is only a defence if it would have been a defence if the crime charged was sexual intercourse with a young person. An honest and reasonable mistake as to consent is a defence, as is an honest and reasonable belief that the person allegedly assaulted was of, or above, the age of 17 years.

Aggravated Sexual Assault

Aggravated sexual assault is committed where any person using a part of the body other than the penis, or an inanimate object, penetrates the vagina or anus of another person without that person's consent (s127A).

Stalking

Section 192 created the crime of stalking which is committed when a person, with the intention of causing physical or mental harm or apprehension or fear, follows a person or loiters outside a person’s house or interferes with a person’s property or keeps a person under surveillance or gives offensive material to a person or acts in any other way which could reasonably be expected to cause the other person apprehension or fear.

If apprehension or fear is caused to the person stalked, the stalker is deemed to have the requisite intent if the stalker’s conduct is likely to cause apprehension or fear of physical or mental harm. However, police officers are exempt if they stalk in the course of their duties.

Other Sexual Offences

The sexual offences described above are by no means an exhaustive list of sexual offences. The Criminal Code also contains the crimes of unlawful sexual intercourse with person with mental impairment (s126), crimes of procuration (ss125C125D129), and incest (s135). The Police Offences Act 1935 (Tas) contains offences of assault with indecent intent, indecent exposure, offensive or indecent behaviour, soliciting. It is no longer an offence for a male person to be in a public place dressed in female apparel at night.

Investigation and Court Procedures

Protection for the Victim

The victim will be referred to as a complainant right up until the conviction of the accused. For the accused to be convicted, the complainant will usually have first given evidence in a committal proceeding before a magistrate and then in a trial before a jury of 12 people. The complainant will probably have been cross-examined extensively, and with some pressure by defence lawyers about the intricate and very personal details of the offence and the person’s credibility. A successful prosecution depends to a great extent on strong evidence from the complainant. This whole process can be extremely upsetting.

The Evidence (Children and Special Witnesses) Act 2001 (Tas) provides the legislative means for support for children and special witnesses when giving evidence. To qualify as a special witness, a person must satisfy requirements set out under the Act. These include intellectual, mental or physical disability, an inability to give evidence in the ordinary manner, or some other vulnerability, such as relationship to any party to the proceeding that is likely to cause emotional trauma, intimidation or distress so as to prevent giving evidence satisfactorily (s8). Some of the means of support are:

  • Audio visual linking for giving testimony rather than having to be present in court
  • A support person near to the child or special witness
  • Exclusion of persons from the courtroom, specified in a court order

Access the hearings for sexual offence charges

Committal proceedings will be dealt with by the court in the absence of members of the public. But in Tasmania, at the trial stage, the judge has no power to close the court.

Proof of Physical Injury

If a person submits to sexual intercourse as a result of threats or terror, they are not consenting. Where sexual intercourse has occurred and the complainant's will has been overborne by a threat, it is not necessary for the Crown to prove physical injuries to the complainant. This is understandable, as in this situation there may well be no injury. An example would be a woman seeming to co-operate in circumstances where her child has been threatened with violence.

It is still the law that the lack of physical injury to a complainant may be very relevant to the defence in some circumstances, and may be the subject of substantial comment by defence lawyers when addressing the jury. The Crown in rape trials still places great weight on the existence of injuries to a complainant, and the defence is likely to submit that lack of injury is very significant.

Proof of grievous bodily harm to the complainant as a result of an alleged sexual offence is ‘prima facie’ evidence of absence of consent. This means that it will not now be necessary, where a complainant suffers grievous bodily harm, to show as a separate matter that there was no consent to the alleged offence.

Change in Place of Trial

Section 307A, Criminal Code enables a complainant to request a change in venue of a trial, and provides for compensation to be paid to an accused if additional costs are incurred by reason of that change.

Late Complaint

It used to be the case, prior to a 1987 amendment, that defence lawyers in a rape trial emphasised the absence of complaint or late complaint. The rationale was that if a person had been raped, then they would complain to someone at the first available opportunity. If there was no complaint, it was open to the defence to cross-examine a complainant with some force and to cast doubt upon their story.
It is still possible to cross-examine a complainant in that way, but if it is done, the judge must warn the jury that the absence of complaint does not necessarily mean that the complainant's claim is false.

Furthermore, the judge must point out that there may be good reason for a victim of sexual assault not making a complaint. Very often, a significant reason for not reporting a rape is that a victim believes that the gathering of evidence and the prosecution of the charge may be worse than the crime itself. Psychologists have pointed out that friends and relatives, who are initially supportive, may develop negative feelings about the victim and that this can affect the victim's self-image. This provision is an open recognition that reasons like these may explain any reluctance to lodge an immediate complaint.

Publication of Names of Victims Prohibited

Section 194K of the Evidence Act 2001 (Tas) prohibits the publication or broadcast of the name, address, identifying particulars or photograph of any person against whom a sexual offence is alleged to have been committed, unless the court makes an order permitting publication. In the case of incest, because publication of the name of the accused will enable the victim and the victim's family to be identified, the prohibition extends to the name of the accused.

Corroboration of Evidence

Corroboration is confirmation (or backing-up) of a witness's evidence by other independent evidence. In a trial for sexual assault, it could be the findings of a doctor who examines the complainant, torn or stained clothes worn by the complainant, or the evidence of an eye-witness.

Section 136 of the Criminal Code states that there is no requirement in law or practice for a judge to give a warning in relation to uncorroborated evidence of crimes under Chapters XIV and XX of the Code. These chapters include all sexual offences. However, a judge may give such a warning if they feel it is justified in the circumstances.

Age of the Accused

A male person under 7 years of age cannot be convicted of rape, because he is conclusively presumed to be incapable of having sexual intercourse. This is in line with the general rule that no act or omission done or made by a person under the age of 7 years is an offence. Where a person under the age of 14 is charged with any offence, it still must be proved that he had sufficient capacity to know that the act or omission was one which he ought not to do or make.

Rape in Marriage

The fact that an accused person is married to the complainant is not a bar to a conviction for rape.

Evidence of Previous Sexual Experience

Section 194M of the Evidence Act 2001 (Tas) prohibits all evidence which discloses or implies the sexual reputation of the person against whom a crime of a sexual nature has allegedly been committed, and prohibits evidence which discloses or implies the sexual experience of the victim, unless leave of the magistrate or the judge is first obtained in the absence of the jury.

Such leave can only be granted if the evidence has substantial relevance, and its potential value outweighs any distress, humiliation or embarrassment which the victim may suffer as a result of the admission of such evidence. Evidence of the victim's sexual experience that forms part of the events or circumstances out of which the charge arises does not require leave. This restricts evidence of sexual experience of the victim to situations where it is directly relevant, for example, to explain the source of pregnancy or disease.

Investigation of Sexual Offences

After a sexual offence, the victim is often taken to a hospital. At the North West General Hospital in Burnie, the Launceston General Hospital, and the Royal Hobart Hospital, there are specialised units to assist. The centres in all three hospitals provide treatment, forensic testing, and counselling or access to counselling. In Hobart, Launceston and Burnie there are also the Sexual Assault Support Services (‘SASS’). These services offer 24 hour counselling; information on medical, police and legal procedures; referral to other agencies as required and support for victims who are going through the court process.

At the hospital, the victim will be asked to have a complete medical examination, which involves a pelvic (internal) examination, the collection of specimens for laboratory tests, and the taking of photographs of injuries related to the offence. The kinds of specimens include combings of the pubic hair and vaginal/anal swabs to test for presence of semen. Photographs are made of any of the injuries and may include the face, body or vaginal/anal area. If the victim decides not to proceed with immediate police action the laboratory specimens will be held at the hospital for 48 hours.

If a complaint is made to the police, the complainant will be asked to give a full and detailed statement. The medical examination will become available to be used as evidence, and the complainant's clothing may be taken by the police to be used later as evidence. While all this is extremely unpleasant for the victim, it is very important if the offender is to be punished.

The Prosecution

If a person is charged, and decides to defend the case, a date will eventually be set for the committal proceedings, generally at least 6 months after the charge is laid. The committal involves the giving of prosecution evidence in a Court of Petty Sessions (Magistrate’s Court, Criminal Division) before a magistrate who decides whether there is sufficient evidence for the case to go to trial before a judge and jury. This initial procedure is viewed with some importance by the defence because it provides an opportunity to test the complainant by cross-examination.

If the magistrate decides that there is enough evidence, the defendant will be committed for trial at the next available sittings of the Supreme Court.

The trial usually takes place approximately 6 months from the date of committal. The prosecution process will place a complainant under enormous pressure, for a substantial period of time. When the complainant is cross-examined, many extremely personal details will be aired in a public arena. Where consent is an issue, credibility as a witness will be attacked.

Compensation for Victims

Where a victim suffers injury as a result of rape or other sexual assault, compensation may be awarded under the Victims of Crime Assistance Act 1976 (Tas). Victims of rape and sexual assault can be awarded a maximum of $30,000.

The Firearms Act 1996

Offences and Police Powers Under the Firearms Act

The Firearms Act 1996 (Tas) was introduced after the Port Arthur massacre, replacing the Guns Act 1991 (Tas). This Act implements by way of legislation the National Firearms Agreement, based on the premise that the ownership and use of a firearm is a privilege. Every person who owns or possesses a firearm is required to hold a licence and every firearm is required to be registered. Further, the range of firearms that can lawfully be used, possessed or collected is restricted.

Firearms Offences

Section 114 of the Firearms Act makes it a crime for a person to carry a gun with the intent to commit a crime or to resist arrest. It is also an offence (of aggravated assault) contrary to section 115 of the Act if, in the course of an assault, a person uses a firearm or threatens to use a firearm or carries a firearm. There is a significant range of other offences designed to preserve the integrity of the licensing and registration systems. These include offences of shortening firearms (i.e. a sawn off shotgun), possessing firearms without licenses, possessing silencers and prohibited magazines, and falsifying identification marks and records.

Public Order Offences

There are a number of public order offences set out in the legislation. These include:

  • obstructing police (s128);
  • possessing a loaded firearm in a public place (s111);
  • discharging a firearm in a public place (s112);
  • recklessly discharging a firearm (s113);

There are also a series of controls over the use and sale and possession of ammunition and gun parts.

Police Powers

Police are given extensive powers in relation to the enforcement of the provisions of the legislation. These include powers for police to:

  • stop and search a person who is believed to have possession of a firearm (s134);
  • enter and search premises with a warrant (s135);
  • enter any premises if the police officer believes that a dangerous situation has arisen (s137);
  • require a person to hand over any firearm for examination (s134).

Storage, Licensing, Registration and Prohibited Weapons

Storage

There are strict storage requirements under firearms legislation. Guns are required to be stored in locked receptacles, with the ammunition being stored separately from the firearm.

Licensing

In order to be granted a firearms licence a person must be at least 18 years of age, be a fit and proper person, have satisfactorily completed an approved firearms safety course and be able to meet the storage requirements imposed under the Act. In determining whether a person is a fit and proper person to have a firearms licence, the Police Commissioner is able to take into account a significant range of matters, including the person's ability to responsibly store and use a gun, together with their criminal history and mental health.

The Commissioner is precluded from granting a licence to a person who in the last five years has been involved in a crime involving violence, or has been sentenced to a term of imprisonment for an offence involving violence to another person, or who is subject to a firearms prohibition order or a restraint order relating to personal injury. Most importantly, the Commissioner cannot grant an application for a licence unless the Commissioner is satisfied the person has a genuine reason for possessing or using the gun.

Beyond the basic licensing restrictions, different categories of gun licences have different restrictions. Category B firearms licenses (being muzzle-loading firearms, non-self-loading centre-fire rifles and shotgun/centre-fire rifle combinations) cannot be granted to a person unless they have a need for that type of firearm. A Category C firearm (self-loading rim-fire rifle with a magazine of up to ten rounds, self-loading or pump action shotgun with a magazine capacity of no more than five rounds) cannot be granted to a person unless they need the firearm for primary production and actually need that type of firearm. Finally, Category D firearms licences (self-loading centre-fire rifles and shotguns with larger magazine capacities) cannot be granted to people unless they require the gun for animal population control or firearms collection. Finally, there is a category of firearms licences for hand guns (Category H), and membership of a sport or target shooting club is a prerequisite for such a licence.

Once a person has a firearms licence, before they can actually purchase the firearm they must obtain a permit to purchase. There are a series of requirements before such a permit is granted and these are very similar to the licence requirements.

Family Violence: automatic suspension of license

Where a restraint order, a police family violence order, or a family violence order is imposed, any firearms license is automatically suspended for the period that the order is in force. Police may also enter premises to search for and seize a firearm if a police officer reasonably suspects that a person has or is likely to commit family violence and that they are in possession or control of a firearm (s10(5), Family Violence Act 2004 (Tas)).

Registration

Every firearm must be registered.

Prohibited Weapons

Under the Act all self-loading, pump-action or semi-automatic firearms are prohibited, subject to specific permits or licence provisions of the Act.

Family Violence

What is Family Violence?

Family violence isn’t just hitting. The Family Violence Act (Tas) 2004 defines family violence as any of the following types of conduct committed by a person directly or indirectly, against that persons spouse or partner:

  • assault, including sexual assault;
  • threats, coercion intimidation or verbal abuse;
  • abduction;
  • stalking;
  • economic abuse; and
  • emotional abuse or intimidation.

Family violence has serious social, economic and health consequences for victims, their families and communities. Family violence is not only unlawful but in many instances can amount to serious criminal conduct.

If you are being coerced into sex against your will, this is rape. A relationship does not give either party sexual rights over the other person. A partner calling you names, or putting you down is a form of abuse – a person can be hurt emotionally and mentally as well as physically, and it is the emotional and mental harm that creates patterns of victimisation, by creating feelings of worthlessness in the victim.

The Family Violence Act 2004 has extended the definition of family violence beyond physical harm to other forms of harm that create abusive relationships. Just as you cannot force someone to sign a contract, or sell you their property, you cannot force someone to stay in a relationship or take their property because you are in a relationship, or force them to do what you want. Just as threatening, intimidating or verbally abusing a coworker is harassment, and against the law, so is doing the same to a member of a household.

Family violence and children

Research has shown that children are not better off in a home with both parents where they are witnessing or experiencing family violence. The trauma experienced by children in violent homes is similar to that of people suffering post-traumatic stress disorder. Any violence in the home traumatises a child – whether seeing, hearing or observing the effects of violence.

Safe at Home

Safe at Home is a whole of government strategy to reduce the incidence of family violence in Tasmania. Numerous branches of government, including the Justice Department and the Tasmania Police participate in this strategy.

Safe at Home legislation was considered by the Tasmanian government as early as 2003 as part of a broader, national strategy to reduce violence against women. The aim of the strategy has been to reduce the incidence of family violence, and to change the behaviour of offenders. A broader focus has been to alter attitudes toward family violence, and to send the message that violence against family is criminal behaviour, and not acceptable, just as violence is criminal and unacceptable in other circumstances.

The Safe at Home Strategy has three key goals:

  • Achieve a reduction in the level of family violence in the medium to long term
  • Improve safety for adult and child victims of family violence
  • Change the offending behaviour of those responsible for the violence

Some aspects of the Safe At Home Strategy that go to achieving these goals have been controversial, such as the pro-arrest focus for police on family violence callouts, as well as the orders that can be made by a court to exclude an offender from the  family home.

Pro-arrest policies

Pro-arrest policies create a twofold issue: the first is that arrest is always a matter of last resort in criminal justice, and so this policy is contrary to broader criminal justice policy. The second is that police are now empowered to arrest where this may be against the wishes of the spouse. A call out to a family dispute may not have been made by a party to the dispute, but by a neighbour. The law, until recently, has been that it is only with the consent of the other party to the family relationships that the abusive person can be arrested. However, this second issue is in keeping with the Safe At Home goals to make clear that family violence is just as criminal as violence in other contexts.

Orders to Vacate

With orders to vacate, one view is that this has created victims out of abusers by forcing them out of the family home. Some argue that this has not contributed to the resolution of troubled relationships, or improved the chances of a woman leaving a violent or abusive relationship, rather making her a target for continued violence.

On the other hand, the option is often for women and children to leave the home to live in shelters, while the perpetrator stays in the  family home, causing huge upset and trauma for children and women who are forced into such uncertain and unhappy circumstances. The use of orders to vacate is a matter of course in the ACT, and has proved effective where there is an adequately responsive police support system to prevent the return of abusive partners. The criticism of orders to vacate in Tasmania can be countered by the evidence of the entrenched practices of the ACT criminal justice system where orders to vacate have helped to maintain stability for the victims of family violence, as opposed to creating further victimisation by forcing them out of their home to run from violence.

In Tasmania, the issues with orders to vacate come down to whether the abusive partner is victimised through orders that go beyond what is necessary or reasonable in reducing family violence, or resolving the conflict within that relationship.

The Tasmania Police state that their involvement in the Safe at Home strategy is to:

  • Manage the risk that the offender might repeat or escalate their violence, and
  • Implement strategies to enhance the safety of victims of family violence

This is in line with the needs of victims who are staying in the family home, and indicates the responsiveness of Tasmania Police to family violence issues. The only circumstances where injustice can be most definitely perceived is where an alleged victim has fabricated claims of family violence. However, these circumstances are exceedingly rare. To call for an end to orders to vacate on the basis that a female domestic partner would fabricate claims of family violence in order to exclude and victimise a male partner contributes to gender attitudes that have helped to conceal family violence in Australian society.

The offender

The offender also has to be considered in these situations. Family violence is often difficult to discuss because it involves some of the deepest emotions and relationships that we have. Offenders are often not simply violent people, or bad people. Because of the ties between family and violence, the violence is often an expression of an inability to communicate rationally and verbally. We all lack coping mechanisms for something, we all lose our tempers, and we all do things we regret. The problem with family violence and abuse is that it is often ongoing and causes huge amounts of harm between generations. This is why the Safe At Home Initiative includes Offender Programs – society recognises that offenders needn’t be offenders, and often they don’t want to be.

The Family Violence Act 2004 (Tas)

In 2004, the Tasmanian government launched the Family Violence Act 2004 (Tas) and a new approach to family violence – to focus on the safety, psychological wellbeing, and interests of people affected by family violence. This does not exclude offenders, as they are also affected by family violence, in that there is a breakdown in their family relationships because of their behaviour. This is why there is are several offender programs aimed at rehabilitation of the offender, and minimising exposure to the court system.

By the end of 2004, Legal Aid Tasmania had the first legal aid officer specialising in family violence cases. Legal Aid continues to provide non-means tested assistance for victims of family violence. Since then, there have been reviews and updates of the legislation and the Safe at Home Strategy to improve the system.

The Act contains a broad definition of family violence, including economic abuse, which handicaps a person from leaving a relationship by creating dependency or disposing of assets to prevent a person from having independence (s8). The definition of family violence is contained at section 7, and emotional abuse or intimidation at section 9. See ‘What is family violence’.

The Act contains the powers of police to enter property on the request of a person who apparently resides at that premises, or where there is a reasonable suspicion that family violence is being, has been or is likely to be committed. The Act also contains rights of arrest, search and seizure (s10).
There are also the regulations concerning Police Family Violence Orders contained in the Act.

Police Family Violence Orders

Police Family Violence Orders (PFVOs) can require an offender to:

  • vacate any premises, whether or not that person has a legal or equitable interest in the premises;
  • not enter any premises or only enter premises on certain conditions, whether or not that person has a legal or equitable interest in the premises;
  • surrender any firearm or other weapon;
  • refrain from harassing, threatening, verbally abusing or assaulting an affected person, affected child or other person named in the order;
  • not approach, within a specified distance, an affected person, an affected child, other person named in the order or certain premises;
  • refrain from contacting an affected person, affected child or other person named in the order directly or indirectly or otherwise than under specified conditions.

Increased training, and the creation of specialist response teams in Tasmania mean that these conditions can be enforced by the police, and that enforcement of PFVOs is a priority for the Tasmanian Police Service.

Family Violence Orders

Family Violence Orders (FVOs) are made by a court. The conditions that can be included in an FVO are at the courts discretion as to what they deem necessary or desirable to prevent the commission of family violence against any person named in the order (s16(2)). These conditions will often duplicate PFVOs. The wider powers of the court, as compared to the police, extend to altering residential tenancy agreements (s17), and the confiscation of firearms (s16(3)(b)).

The Children, Young Persons and their Families Act 1997 (Tas)

The Children, Young Persons and Their Families Act (Tas) 1997 (CYPFA) is an Act to provide for the care and protection of children and related purposes. The Act is intended to provide for the care and protection of children in a manner that gives a child opportunity to grow up in a safe and stable environment.

There are numerous people required under the CYPFA to report concerns about abuse or neglect or certain behaviours (s14, CYPFA). These people include:

  • Medical practitioners
  • Registered or enrolled nurses
  • Midwives
  • Dentist and associated roles
  • Police officers
  • Probation officers
  • Teachers at education institutions
  • Paid child care providers
  • Certain person employed by government agencies

These people are required to report where they believe or suspect on reasonable grounds:

  • that a child has been or is being abused or neglected, or is an affected child under the Family Violence Act
  • that there is a reasonable likelihood of a child being killed, abused or neglected by a person with whom the child lives; or
  • where a woman is pregnant there is a reasonable likelihood that after the birth of the child the child may be killed, abused or neglected by a person with whom the child lives; or
  • a child after the birth will require medical treatment or intervention as a result of the behaviour of the mother or any other person with whom the woman resides or is likely to reside before the birth of the child.

After a concern is reported, assessment of the child and the situation can take place, if the Secretary of the DHHS is satisfied that there are reasonable grounds for the belief or suspicion. However, the Secretary is not obliged to take action where they are satisfied that the notification was not based on sufficient information or observations to constitute reasonable grounds for belief or suspicion (s17).

If an assessment does take place, there are a number of courses of action available, including restraint orders (s23), family group conferencing (s30), and care and protection orders (s42).

The Act also creates offences. For example, it is an offence under the CYPFA to leave a child unattended (s92). This does not include anyone under 16 who is not the parent of the child. It is also an offence under the same Act for a person who has a duty of care in respect to a child to fail intentionally to protect a child from harm (s91). Other offences include making a false or misleading statement in response to questions under an order of the Act (s102).

Resources for Victims and Offenders

Victims of family violence have to remember that it is not just themselves, but also their children who are affected by violence. The impacts of family violence on children are huge, and can result in children later becoming abusers themselves, and in the short term, impact on their social relationships with other children and adults.

Police officers in Tasmania have received specialist family violence training to provide better response to victims of family violence. Each geographical district has a Victim Safety Response Team (VSRT). A call to 000 will ensure that trained police officers or a member of the VSRT will be dispatched.

Family Violence Response and Referral Line

If you feel that you are the subject of family violence, or are witnessing family violence, the Family Violence Response and Referral Line is 1800 633 937. If the incident is occurring during your phone call, a police intervention team will be dispatched to the address. The hotline is open 24 hours a day, 7 days a week.

There are also counselling, information and support services available if you call the Family Violence Response and Referral Line that an operator can refer you to.

Putting an end to family violence is not only about criminalising the behaviour of abusers, it is also about changing community attitudes, including the attitudes of perpetrators and victims, and those around them. There are extensive resources available, including emergency services, court and legal services, counselling services and offender programs.

The national Sexual Assault, Family & Domestic Violence Counselling Line can also be contact 24 hours a day, 7 days a week for free, confidential counselling from qualified, specialist counsellors. The phone number is 1800 RESPECT – 1800 737 732.

Victim Safety Response Team

The VSRT has been trained to focus on improving victim safety in crisis situations. Their training has included the ability to offer a range of services tailored to family violence. These include:

  • completing a detailed risk assessment designed to identify the level of risk exposure
  • conducting investigations when the offender is removed from the home
  • gathering evidence and supporting information for a Family Violence Order
  • assisting in the preparation of the Family Violence Order
  • conducting a safety assessment for risk to the victim and initiating support action or removal from the home should they need to be moved to a place of safety
  • notifying the Child Protection Agency of any children present and at risk
  • undertaking a safety audit of the home
  • arranging the upgrade of security of the victims home
  • providing a safety plan to the victim
  • advising the victim on the options to be considered, including referral to support and counselling services
  • investigating breaches of Family Violence Orders
  • organising additional security patrols if required

The risk assessment aspect of the VSRT response also diminishes any likelihood of causing more problems for any party to the issue by ensuring that the outcome of their involvement does not handicap either party more than is required to prevent continued family violence. The safety of the victim and any other vulnerable party is paramount. Whether or not the new legislation and Safe At Home strategy is more effective than previous approaches is yet to be assessed.

Emergency Services

Emergency services can be contacted on 000.

Children and Young Persons Program

Children and young persons will be referred to the Family Violence Counselling and Support Service by Police, the Court Support and Liaison Service, the Child Witness Program, the DHHS or a Family Violence Worker.

If a child is in danger in a family violence situation, A full discussion is available from the Department of Health and Human Services pamphlet ‘Family Violence Counselling and Support Service’. This program can be contacted in the North/North West on 1800 608 122 or in the South on 6233 6981.

Court and Legal Services

Court and legal services include Child Witness Services, a dedicated phone support line, and dedicated court support officers. Child Witness Services is part of the Court Support and Liaison Service, and they can be contacted on the information provided below.

Court Support and Liaison Services can be contacted on 1300 633 773. Court support officers can provide information on taking out a Family Violence Order (a type of Restraint Order), information on the court process, staff, and the involvement of an applicant, victim or witness in the court process.

The dedicated court support officers work with Legal Aid, and can provide practical and emotional support in the following ways:

  • assisting with completing applications for Family Violence Orders (a type of Restraint Order)
  • accompanying the victim to court
  • providing personal support throughout the court process
  • discussing the impact of magistrate/judges decisions
  • de-briefing following court
  • following up through referral to other services

All of these services are free and provided by the Victims Assistance Unit in the Department of Justice. The contact details for the Victims Assistance Unit are:

Phone: 1300 663 773 (toll free)

Hobart: Phone 6233 5005

Launceston: Phone 6336 2128

Email: court.support@justice.tas.gov.au

Legal Aid can also assist.

Counselling Services

The Department of Health and Human Services runs the Family Violence Counselling and Support Service.

Services are free and confidential. Eligibility for the services is decided on the basis of whether you need support or information because a current or ex partner is or has been violent or abusive. People can refer themselves to the service simply by phoning one of the three offices between 9am and 5pm weekdays:

North West (03) 6434 5477

North (03) 6336 2692

South (03) 6233 3818

Services include information on the impacts of family violence on adults, children and young people; individual support and counselling, and group work programs for individuals affected by family violence.

Offender Program

Since 2004, the family violence offender intervention program has been helping offenders to stop patterns of behaviour that result in family violence. There is an initial screening process conducted by police to assess offenders. Those who are determined to be at a high risk of reoffending or increasing violence are referred to the program. Victims are kept informed of the progress of the offender. A detailed discussion of the program is available on the Safe At Home website. The Offender Program helps to rehabilitate offenders, and create means by which offenders can understand how and why they offend, and create better relationships in their  family lives.

Traffic and Parking Offences

There are many offences involving the use of motor vehicles. The offences can be grouped under three headings:

  • use of a motor vehicle when not authorised to do so, for example, driving while disqualified;
  • use of a motor vehicle in a manner proscribed by law, for example, dangerous driving;
  • use of a motor vehicle which does not comply with safety or registration requirements, for example, driving a motor vehicle without third party insurance or registration.

The main offences are contained in the:

  • Traffic Act 1925, the Traffic (General and Local) Regulations 1999 and Traffic (Miscellaneous) Regulations 1999;
  • Road Safety (Alcohol and Drugs) Act 1970;
  • Vehicle and Traffic Act 1999; and
  • Criminal Code 1924.

This part deals with some of the more important offences, as well as looking at the way courts handle traffic offence cases.

How Offences Are Dealt With

Each of the penalties indicated in this chapter is the maximum prescribed by legislation for a first offence, should the matter proceed to court. A penalty unit is currently $130. Each offence applicable to riders or skaters/pedestrians can also be dealt with by way of Traffic Infringement Notices (on-the-spot fines) (s43HTraffic Act 1925 (Tas)).

Traffic Infringement Notices

Traffic infringement notices are also sometimes called ‘on-the spot’ fines. This is a notice informing the driver that they have committed one of the lesser motor vehicle offences. The notice will state that the driver may avoid a court action by paying the penalty set out in the notice. These on-the-spot tickets are used to reduce the number of cases which have to go to court. Examples of these offences are: failure to comply with speeding limits, failure to wear a seatbelt, or failure to obey road rules.

These notices are payable with 28 days of issue. There are several courses of action that can be taken by a person who has received a traffic infringement notice (ss 15 and 17Monetary Penalties Enforcement Act 2005 (Tas)).

  1. pay the infringement in full
  2. if the car is not yours, or another person was in charge of the car at the time the notice was issued, apply to the issuing authority for withdrawal of the infringement notice
  3. Apply to the issuing authority for withdrawal of the infringement notice if you believe it has been mistakenly issued or there are extenuating circumstances, such as where a driver exceeded the speed limit, but was taking a very sick child to the doctor.
  4. Apply to the Director of the Monetary Penalties Enforcement Service for a variation of payment conditions
  5. lodge with the Director a notice of election to have the offence or offences set out in the infringement notice heard and determined by a court.

If a person pays a penalty in part or full, or applies for a variation of payment conditions or fails to take any action in relation to an infringement notice within 28 days, they are taken to be convicted of the offence or offences set out in the infringement notice (ss14(1)(c) and 20, Monetary Penalties Enforcement Act 2005). The person will be liable for enforcement procedures if they fail to pay the notice.

When a more serious driving offence is committed, the driver may be arrested and brought before a court. More commonly, there is no arrest but the police issue a summons to the driver to appear in court some time after the offence.

If the driver wishes to deny guilt, they should not pay the fine and instead lodge a notice of election with the Director of the Monetary Penalties Enforcement Service to have the matter heard in court. They will then have the chance to argue their case in court. If they are unsuccessful in court, they will have to pay court costs including witness expenses.

Court Process

When a driver is charged with manslaughter or causing death by dangerous driving, the case must go to a trial before a jury in the Supreme Court. If the driver defends the charge, the procedure is the same as for other indictable offence. Other motor vehicle offences are heard summarily before a magistrate in a Magistrate’s Court and the procedure is the same as for other summary offences. Proceedings in respect of offences under section 32(1) of the Traffic Act (reckless driving) must be determined by a magistrate (s32(3)).

Losing a Licence

When a driver pleads guilty to a driving charge, or is found guilty, they may be disqualified from holding a driving licence in addition to any other penalty which applies to the offence. The court has a general power to disqualify drivers from holding a driver's licence for any period if they are convicted of any offence under the Traffic Act or the various Regulations except for parking offences.

These offences include dangerous driving, driving under the influence, any criminal offence such as manslaughter or death by dangerous driving where death or bodily injury to a person is associated with the use of a motor vehicle, and drink driving offences. A longer period of disqualification applies in the case of second or subsequent offences.

In deciding what period to order, the court will usually consider the driver's need for the licence (particularly whether it is required for work purposes), the circumstances of the offence, the person's driving record and evidence of the person's character.

In addition, the Registrar of Motor Vehicles can suspend a licence if it receives evidence that a person is unfit to hold a licence. Note the difference in terminology: suspension is something done by the Registrar of Motor Vehicles; disqualification is ordered by a court.

In Tasmania, first year drivers who are guilty of drink-driving offences will be directed to undergo a lecture course run by the Road Safety officer (s18Road Safety (Alcohol & Drugs) Act 1970 (Tas)). If the driver does not attend the course they will not be reissued with a licence at the end of their disqualification period until they do so.

The Demerit Points System

The Registrar of Motor Vehicles in Tasmania may suspend a person's driving licence for any period they think fit, if the suspension is considered to be in the interests of public safety. In exercising this power, Registrar of Motor Vehicles considers the driver's record and uses the points system as an administrative guide. An offender is given a set number of demerit points for each of the offences. The demerit points system has been standardised nationwide.

Under the new system an offender who accumulates 12 or more points within a three-year period becomes liable to either a licence disqualification for 90 days or may opt to retain their licence for a 12 month probationary period.

There are over 1000 offences in respect of which a Traffic Infringement Notice may be issued! They are set out in the Traffic (Compliance & Enforcement) Regulations 2011 (Tas).

If the option of a 12 month probationary period is taken, the driver need only attract one more demerit point during that 12 months to automatically be disqualified from driving for a period of six months.
When an ‘on-the-spot’ ticket for a traffic offence is paid, the number of points for that offence are automatically recorded. If this latest offence will bring a driver up to 9 points within three years, it may be worthwhile not paying the ‘on-the-spot’ fine and having the matter heard in court. It is within the discretion of the magistrate to impose fewer penalty points.

Offences Causing Death or Serious Injury

Manslaughter

A person who drives a motor vehicle in a criminally negligent way and causes the death of someone else may be charged and convicted of manslaughter (s156Criminal Code Act 1924 (Tas)). A person in charge of a vehicle is under a duty to use reasonable care to avoid danger to human life (s150), and any breach of this duty that amounts to ‘culpable’ or ‘gross’ negligence will constitute manslaughter. This is a very high degree of negligence, much higher than the normal degree of negligence in civil matters. There must be pronounced disregard for the life and safety of others.

Manslaughter is a crime which must be tried before a jury, and the punishment may be a term of imprisonment up to a maximum of life imprisonment, but is usually in the range of 18-30 months. However, because in the past some juries were reluctant to convict drivers of manslaughter, the Criminal Code was amended to create a new offence of ‘causing death by dangerous driving’.

Causing Death by Dangerous Driving

This crime, along with manslaughter, is one of the few crimes where a ‘responsible citizen’ with no previous criminal record, if convicted, may be sent to jail. The crime involves causing death by driving a motor vehicle at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case (s167A). The ‘public’ includes a passenger. Where a motor vehicle is driven on a public street, the nature, condition and use of the street, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the street, is taken into account.

This crime is a statutory alternative to manslaughter and sentences are normally less than for manslaughter. Once the act of driving has been shown to be voluntary and intentional it is for the jury to decide whether the driving is objectively dangerous. The driver's opinion on this point is irrelevant.

Reckless/Dangerous Driving

A person who drives dangerously, but does not kill anyone as a result, can be charged with ‘dangerous’ (or ‘reckless’) driving under the Traffic Act (s32(1)). In other respects, the offence is the same as causing death by dangerous driving. An accused can elect to have the charge tried by either a magistrate in the Magistrate’s Court or judge and jury in the Supreme Court.

Negligent Driving

A driver may also be charged with negligent driving under the Traffic Act (s32(2)). The manner of their driving in all the circumstances is examined to determine if the manner of driving has been negligent. It is a lesser offence than dangerous driving and the degree of negligence which must be proved will therefore be less. This charge is triable before a magistrate.

Driving, Drugs and Alcohol

Tasmania, like all other states, has special legislation to punish those who mix excess alcohol consumption and/or drugs with driving. The Road Safety (Alcohol and Drugs) Act 1970 (Tas) is described as an Act of Parliament ‘to protect the public against certain persons who drive vehicles after consuming intoxicating liquor or drugs and to restrict the right of such persons to hold driver's licences.’

The meaning of ‘driving’ is very wide, and includes a person having charge of a motor vehicle, steering a vehicle under tow and, depending on the circumstances, extends to a person who has just got out of a stationary vehicle.

‘Drink’ and ‘Drunk’ Driving

There is an important distinction between ‘drink’ driving and ‘drunk’ driving. ‘Drink’ driving is the term commonly used to describe driving with a blood alcohol content in excess of the prescribed limit (currently 0.05%). This offence is made out simply by the blood alcohol concentration being in excess of the prescribed limit, and has nothing whatsoever to do with the state of sobriety and driving ability of the person.

Three 285ml (10oz) glasses of normal beer, three glasses of wine or three nips of spirits (whether mixed or not) in an hour will put the average person over the limit. After the first hour it takes only one glass of beer per hour to keep a person topped up. It may take men of a smaller than average frame, and women, up to two-thirds less alcohol to put them over the limit. The average person with a healthy liver will lose 0.015% per hour if they stop drinking alcohol. This rate is not affected by a sleep, a shower or multiple cups of coffee. Time is the only cure.

Drunk’ driving is when the consumption of drink and/or drugs has substantially affected the person’s ability to drive. This leads to the serious charge of driving under the influence (DUI). The person may be charged with DUI regardless of their blood alcohol content but it is more common for the charge of DUI to be laid in cases of a high blood alcohol content as a high blood alcohol content is more likely to adversely affect driving ability.

Evidence in support of a charge of DUI will usually consist of observations made by police officers of the person’s ability to control the motor vehicle driving. However, it can also include evidence of the person’s allegedly drunken condition after their vehicle was stopped.

Penalties for the offence vary according to the circumstances of the commission of the offence. The more important factors include the degree to which other road users were endangered by the person’s driving, their driving record, and their blood alcohol reading. There are mandatory minimum penalties for alcohol related driving offences. For example, if a person is in breach of section 6(2) of the Road Safety (Alcohol and Drugs) Act 1970, the minimum fine is 2 penalty units and the maximum is 10 penalty units. The period of disqualification is for at least 3 months, and can be up to 12 months, and a justice has the discretion to impose a 3 month term of imprisonment.

Random Breath Testing (RBT)

Prior to the introduction of random breath testing, a driver could only be required to undergo a roadside breath test in certain circumstances. It was necessary for the police officer making the request reasonably to believe that the driver had been involved in an accident, or had committed a driving offence, or, as shown by the manner of driving, had consumed alcohol. The police are still empowered to require a driver to undergo a breath test in these circumstances. The police now also administer a breath test to every driver involved in a serious accident, whether or not that driver appears to have been at fault.

The introduction of random breath testing (RBT) in 1985, expanded the powers of the police to require motorists to undergo breath tests. Any person driving a motor vehicle on a public street, or occupying the driver's seat and attempting to drive the vehicle, can be required to undergo a breath test. A police officer may request or signal the driver of any vehicle to stop for the purpose of administering the breath test.

The device used for roadside testing is called an alcometer. The driver is asked to blow into this device, and an electronic light indicates whether the driver's breath contains alcohol above the prescribed limit. Failure to pass the roadside test cannot by itself lead to conviction for drink driving. If the test is positive, the police officer may detain the driver and take them to a police station, or some other place where a further test can be conducted on portable breath analysing equipment known as a breathalyser (see below).

Random breath testing is carried out by teams of police officers using mobile units containing a breathalyser popularly known as ‘booze buses’. Motorists are stopped at random and given a breath test. If the breath test proves positive, a breath analysis is conducted on the spot. Random Breath Testing is sometimes carried out by police in highway patrol vehicles. The usual practice is for one or two highway patrol vehicles to position themselves on either a major or minor road. Because the highway patrol vehicles are not always equipped with breathalysers, it is usually necessary for the motorist to be conveyed either to a ‘booze bus’ (if one is operating in the area) or to a police station for breath analysis. This must be done within three hours of the arrest (s24Road Safety (Alcohol & Drugs) Act 1970 (Tas)) (see below).

Driving

‘Driving’ under the Act does not only mean being behind the wheel of a car in motion. It has been given an extended statutory meaning to allow police greater powers to catch drink drivers (s2(4)Road Safety (Alcohol & Drugs) Act). Therefore a person may still be regarded as driving even though they have stopped the car, and got out.

In June 1988 Tasmanian police introduced a computerised alcotester (breathalyser), regarded as the most accurate and advanced in Australia. The driver blows into a mouthpiece and the machine makes a printout of the blood alcohol concentration level. A copy of the printout is given to the driver.

In Tasmania, any driver with 0.05 g of alcohol (or above) in 100 millilitres of blood, will be liable to conviction for this offence. The police officer's certificate containing the blood alcohol reading is admissible in court as proof that the person was driving with a blood alcohol level in excess of the prescribed limit (s23, Road Safety (Alcohol & Drugs) Act).

Breathalyser

Penalties Under the Road Safety (Alcohol & Drugs) Act 1970, section 17

Range of penalties for first offence

Blood alcohol    Penalty     Disqualification     Imprisonment
g/100ml            Units        Months                 Months

under 0.05          2 - 10          3 – 12                      3

0.05 - 0.1           2 - 10           3 - 12                      3

0.1 - 0.15           4 - 20           6 - 18                      6

0.15 or more       5 - 30           12 - 36                   12

Penalties, that is minimum and maximum Penalty Units, periods of disqualification and periods of imprisonment are doubled for second offences. Currently, one penalty unit = $130.

The application of this section does not extend to an offence committed before 12 December 1991 (s17(2)).

If a person satisfies the court that there are special circumstances why the minimum fine or minimum period of disqualification should not be imposed, the court may impose a lesser fine or a lesser period of disqualification (s17(5)). In some instances job loss and financial hardship for both the offender and their family will not be special circumstances within the meaning of section 17(5). Strong evidence establishing no possibility of alternative employment may be sufficient. However, this is a matter to be examined according to the facts of each case.

Limits on Breath Tests

Evidence of a blood alcohol concentration is not admissible if the breath analysis or blood test was taken in excess of 3 hours after the relevant act of driving (s24). In certain circumstances, a medical practitioner may refuse to allow testing of a driver who has become hospitalised or is in the doctor’s care (s12).

A police officer can require a person who is not at that time driving a motor vehicle to undergo a breath test if he or she believes on reasonable grounds:

  • that the person was immediately preceding that time driving on a public street with alcohol in their blood;
  • that the offence of causing death by dangerous driving has been committed;
  • that the vehicle driven by that person has been involved in an accident.

Refusing a Breath Test

Any person who refuses to take a roadside breath test commits an offence and is liable to a fine of $500 to $3,000 and up to 12 months imprisonment (s17). If a person refuses to undergo a breath analysis test, a further offence is committed, and the person is liable to a similar penalty for a first offence or, in the case of second or subsequent offences, a fine of $1,000 to $6,000 and up to 24 months imprisonment.

It is a defence for the driver to show that they were unable on medical grounds at the time to undergo the tests. It is also an offence for a driver to do anything to alter their blood alcohol level between the time the driver is stopped by the police and the time that a roadside breath test or a breath analysis test is taken. The driver will be liable to the same penalty as for refusing to undergo a breath analysis test (s14).

Blood Tests

A person who is required to undergo a breath analysis test may immediately afterwards request that a blood sample be taken by a medical practitioner for analysis. The person must be made aware of that option. However, it is important to note that the driver must still have undergone the breath analysis test, and will commit an offence by refusing. Where a blood sample is taken it must be divided into three parts, one of which is to be handed to the person, one to the Government Analyst and one retained as a control. A person has a right to have their portion independently analysed.

Unless the person is given the opportunity to analyse the sample themselves in this way it cannot be used as evidence against them. It is not commonly an advantage to have a blood sample taken in preference to a breathalyser test, as readings are usually higher, and will be used as evidence in preference to a breathalyser result if applicable. However, if the person has not consumed alcohol for at least one hour prior to driving, their blood sample may show a lower reading because of the time that has elapsed between the breathalyser test and the taking of the blood sample. Where a blood sample is taken from a person when unconscious, that person should be informed within 24 hours that a sample has been taken.

Insurance and Exceeding 0.05

Most insurance policies covering damage to motor vehicles contain a provision excluding the liability of the insurer if the driver was under the influence of intoxicating liquor at the time of an accident. The fact that a person has submitted to a breath test or breath analysis, or has been convicted of exceeding 0.05 offence, cannot by itself be used by the insurer to exclude liability (s21).

However, insurance companies can avoid liability to indemnify an insured, if they can show the driver was under the influence of alcohol by evidence other than a blood alcohol reading.

Parking

Parking offences fall into six main categories:

  1. parking in a metered zone where the meter is not running;
  2. parking in a metered zone longer than the maximum time notified on the meter;
  3. parking in a parking space where a voucher machine is available and failing to obtain or display a parking voucher;
  4. parking in a parking space for which a voucher machine is available longer than the maximum period allowed by a parking voucher;
  5. parking where signs prohibit it or where otherwise prohibited by law;
  6. parking partly inside and partly outside the parking space.

There are many other instances where parking is restricted by law. Some of the more common ones are:

  • on an intersection or within six metres of the corner of an intersection;
  • leaving a vehicle within 9 metres of the approach side or 6 metres on the departure side of a pedestrian crossing;
  • leaving a vehicle standing within 18 metres on the approach side or 6 metres on the departure side of a bus stop.

Parking Tickets

Where a parking offence is committed, any police officer or parking meter attendant may serve a parking ticket requiring payment of the prescribed penalty within 14 or 21 days of the date of issue of the ticket. A traffic ticket may be served personally by handing it to the owner of the vehicle, or, most commonly, by leaving it on or attached to the vehicle.

Unlike traffic offences, there is no points system for parking offences. Further, a bad parking offence record will not affect a driver’s licence, nor will it usually have any bearing on penalties for later parking offences.

Common Parking Signs

Some common parking restriction signs and what they mean are as follows:

NO PARKING: A vehicle may drop off or pick up a person etc., but there is no parking in a zone marked with such a sign.

NO STOPPING: A vehicle may not park except to comply with the requirements of a traffic control device of a police officer or an authorised officer.

CLEARWAY: A vehicle may not stop at the kerb for any reason, except that a bus, taxi or hire car may stop to pick up or set down passengers.

LOADING ZONE: When actually picking up or setting down goods, a truck may stand for up to 30 minutes, for the purpose of carrying goods to or from premises within 100 metres.

Receiving a Parking Ticket

There are three alternatives when a parking ticket is received:

  • pay the penalty within the prescribed period;
  • establish that there is no liability (see below); or
  • don't pay and have the matter dealt with by the court.

A number of factors will need to be considered including extra penalties and costs the person may have to pay if the matter goes to court.

Where there is no dispute that the offence was committed and that the driver was the person who committed the offence, it is best to pay the penalty and avoid going to court. If a person is temporarily unable to pay the fine, they may ask for an extension of time.

Reasonable requests for extension of time to pay may be made by telephoning the parking officer of the local council or the Clerk of Court of the Magistrate’s Court. If the penalty is not paid, a summons will be issued, and served personally by a council officer, police officer or by certified mail to the address shown on the motor vehicle registration. The matter will then be dealt with by a court on the date shown in the summons whether or not the defendant is present.

If the offence is proven, the court may impose a penalty. The amount of the penalty will be determined by whether the offence is a first offence or not, plus an amount for court costs.

If the driver believes that no parking offence was committed, they may contest the matter in court. For example, they may have received a ticket for overstaying in a two hour zone, and believe that the vehicle was not there for more than two hours. However, several factors need to be borne in mind.

  • The penalty involved is nearly always too small to warrant the expense of legal representation, so that the driver should be able to argue their own case;
  • It may be difficult to persuade the court to accept the driver's version of the facts in preference to that of the parking attendant or police officer; and
  • If the driver is unsuccessful, they may incur court costs.

Abandoned Vehicles

Problems are sometimes caused by the abandoning of vehicles in public streets. A car cannot legally be left on a public road or in a designated carparking place for more than 24 hours.

Police may mark a car they suspect has been abandoned. Efforts are made to contact the last registered owner. If this fails, the car will be towed away. After 3 months, such a car is sold by tender. The Council has powers to remove vehicles obstructing Council property or left on Council land.

Other Traffic Offences

Reckless Driving

A person who drives recklessly or at a speed or in a manner which is dangerous to the public commits an offence and is liable for a penalty of up to 20 penalty unit fine and/or imprisonment for 2 years for a first offence (s32(1)Traffic Act 1925 (Tas)). It is double this penalty for second or subsequent offences.

Speed Cameras

A person charged with an offence detected by a photographic detection device has a right to inspect any photographic evidence before the hearing of the charge. A certificate purporting to be signed by the Commissioner of Police (or a commissioned police officer) is evidence that the device was on that occasion a photographic detection device. The production of the certificate is evidence of the facts stated in the certificate. It is evidence that at a particular time and place the speed of a motor vehicle shown in the photograph was the speed endorsed on that photograph.

Driving Without Due Care and Attention

This is a summary offence under the Road Rules 2009 (Tas) (Reg 367). It is a common charge arising from a course of driving. The provision states ‘no person shall drive a vehicle on a public street without due care and attention, or without reasonable consideration for other persons using the public street.’ A conviction will depend very much on the facts of each particular case. The usual punishment will be a fine and/or demerit points.

Driving While Disqualified

An offence will be committed if a person drives a motor vehicle on a public street or attempts to obtain a driver's licence while disqualified, or while their licence is suspended or cancelled (s13Vehicle and Traffic Act 1999 (Tas)). For a first offence, a penalty of up to 40 penalty units will apply or up to 6 months in jail, plus a further period of disqualification of up to 3 years. For a second or subsequent offence the penalty is up to 80 penalty units, up to a year in jail and up to an extra 5 years disqualification.

Failure to Stop after an Accident

It is an offence for a driver to fail to stop after being involved in a motor accident (s33(1), Traffic Act). The driver must remain at the scene of the crash and give any assistance that is necessary or practicable. Failure to do so may involve a fine of up to 80 penalty points or up to 2 years jail.

Unlicensed Driver

It is an offence to drive a motor vehicle whilst unlicensed, and it is also an offence to permit an unlicensed person to drive (s8, Vehicle and Traffic Act). Penalty for first offence, up to a 20 penalty unit fine.

Refusing to Give Information to Police

Although a person is normally entitled to refuse to answer a police officer's questions, a driver of a motor vehicle is under a special obligation to provide information to the police. A driver who refuses to state their name and address if requested to do so by a police officer, commits an offence (s41(1)Traffic Act). A police officer may arrest a person without warrant if that person refuses to give, or provides a false, name and address (s41(3), Traffic Act). Since December 2002, it is now an offence not to carry your licence whilst driving, and to produce your licence to a police officer if requested to do so (s46A, Vehicle and Traffic Act).

Obtaining a Restricted Licence

In certain circumstances, the court can grant a ‘restricted’ (or ‘hardship’) licence where a driver has been disqualified from driving. A person must apply for a restricted license. It is not an automatic consideration of the court. A restricted license can only be issued to relieve ‘severe and unusual hardship’ likely to be caused to the driver, and their dependants, from the loss of licence (s18Vehicle and Traffic Act 1999 (Tas)). Depending on the circumstances of the offence, the certain loss of a reasonably paid and secure job will suffice, though there may be other special circumstances which will come within this definition. Inconvenience is not sufficient, and as such restricted licences will not be granted if there are other practical means of transport available, such as public transport or transport with work colleagues.

A person cannot make an application for a restricted licence where the driver has been convicted of a second offence under the Road Safety (Alcohol and Drugs) Act 1970 (Tas) within 3 years of the first. Similarly, restricted licenses cannot be applied for if convicted with a reading of 0.15% or more, driving under the influence of intoxicating liquor or drugs, a drink driving offence whilst a holder of a learner's or provisional licence, where he or she refuses to provide a sample of breath or blood for analysis without a reasonable excuse, and where a blood sample is taken whilst unconscious and he or she refuses to permit an analysis and is convicted without having a reasonable excuse.

It must also be shown that the granting of a licence would not be against the ‘public interest’. Thus drivers showing signs of a drinking problem or having a bad driving record may be refused. Also the court may take the view that the circumstances of the offence were so bad that the driver should bear the full weight of their punishment irrespective of the consequences.

The magistrate also has the option of extending the disqualification period if granting a restricted licence.

Making an Application for a Restricted License

Where a person has lost 12 demerit points (4 in the case of provisional drivers), they will be sent a notice in the mail which gives them fourteen days to apply for a restricted licence. Where the person is faced with the loss of their licence due to a drink-driving charge to which they are pleading guilty, it is usually the practice of the court to adjourn the case to a ‘restricted licence court’ when the person indicates that they will be applying for one. In either case, the person should go to the clerk of the court and obtain a restricted licence application form. This needs to be completed and filed with the court. Copies are to go to the police and to the Registrar of Motor Vehicles. The person should keep a copy for themself.

Applications should give:

  • name, address and occupation;
  • the reason the person has lost or is about to lose their licence (for example, loss of points, exceeding 0.05);
  • any previous disqualification or driving convictions. If unsure, the person can obtain a statement from the police by writing to police in their district explaining why it is needed;
  • the grounds for the application ;
  • the order sought;
  • a letter from their employer stating that the person will lose their job if they don't have a licence (if applicable).
  • the person must obtain a report from a doctor that they are not alcohol or drug dependent if they are disqualified under the Road Safety (Alcohol and Drugs) Act.

In addition, blood test results should accompany this report.

Grounds for Application

It is important to think very carefully about the grounds for the application. Minimum information consists of details of present employment, how long the person has worked there, their job description, pay, and why they need a licence to do the job. Applicants should discuss this in detail with their employer, because the employer is likely to be required to give detailed evidence of this in court, and make it quite clear that the person will definitely lose their job if the restricted licence is not granted. Simple inconvenience to the employer is not in the least relevant unless this means that the person will be fired.

For a restricted licence to get to and from work, it is important to check all other avenues. This includes available buses, work members who may be able to provide a regular lift, and even the cost of taxis. The court will need to be convinced that there is no other way. Record the information on the application. Attach a copy of the relevant bus time table.

The person should give details of their fixed financial commitments that is, rent, mortgage payments, instalments on hire purchase or personal loan, any other debts they are paying off and any other facts which place any extra financial burden on them. Details about their past employment history, educational qualifications and enquiries they have made for jobs closer to home, or non-driving jobs, should be included to indicate the job options if they lose their present job. Promotional prospects and superannuation rights (if any) should be mentioned.

If self-employed, the person should give details of their business, and whether it would be feasible to employ someone to drive. Often there is not enough room on the space provided in the form. If this is the case, then write in the space ‘Please see attached sheet for details’. Write out the grounds on a separate sheet.

The Order Sought

The person should be careful to ask only for a licence for such times or purposes as they really need it. Usually they will be restricted to particular hours, days of the week, area and/or purposes. This should be done in close consultation with the employer. If self-employed make sure that the restrictions agreed to will neither be too wide nor too narrow. This should enable the person to carry out such activities as are strictly necessary to keep their business going.

In the Court

A restricted licence application will usually be heard within two weeks of the application being filed. On the day, the person and their employer (if employed) must be available to give evidence. If the person is pleading guilty this will be dealt with first and penalties imposed. Then they will be asked to give sworn evidence to support their application. Their employer will then be called to do the same. The employer should be waiting outside the court during the person’s evidence. The prosecutor may ask questions both of the person and their employer to test the case.

If there is a suggestion from the person’s record on their blood alcohol reading that they may have a drinking problem, the person should come prepared with a report from their doctor to say they are not alcohol dependant.

Offences

The restricted licence must be carried at all times. It is also a serious offence to drive outside the terms of the restricted licence and this may result in its loss, a large fine, a further period of disqualification and even, in serious or repeated instances, jail.

The magistrate also has the option of extending the disqualification period if granting a restricted licence.

Defences

There are several defences available in response to a parking or traffic offence.

Denying Responsibility

If there is no dispute that the offence was committed, but the owner disputes liability, then it is better to take the appropriate action immediately, rather than to wait for a summons. In certain circumstances, the owner is not held liable and these circumstances also apply where the offence was committed in a Council parking area, and the notice was issued by an officer of the Council. In such a case, the appropriate statutory declaration should be sent to the Council rather than to the Superintendent of Traffic. The Council has authority to issue a ‘withdrawal notice’ in this case.

The Vehicle was Stolen or Illegally Taken and Used

Where the theft or taking of the vehicle was reported to the police, a declaration from the police lodged with the Council will usually be sufficient to end the matter. Where the theft or taking was not reported to the police, a statutory declaration setting out the circumstances of the theft, or the taking of the vehicle, and explaining why it was not reported, should be made. This should then be sent to the Council at the address shown on the notice. If the explanation is accepted, that will be the end of the matter. If the explanation is not accepted, there is the option of letting the matter go to court and attempting to satisfy the court that the car was stolen or illegally taken and used at the time of the offence. However, the considerations noted above should be borne in mind, and it would be best to seek legal advice before proceeding.

Someone Else was in Charge of the Vehicle

In this case, one solution is to obtain the amount involved from the person and pay the penalty. If the person is unwilling to pay, a statutory declaration containing the name and address of the person involved, and setting out the circumstances in which they came to be in charge of the vehicle, can be made. This should be sent to the Council at the address shown on the notice.

The Owner Does Not Know Who Was in Charge of the Vehicle

Such a circumstance will rarely arise. To avoid liability the council must be satisfied that the owner does not know and cannot with reasonable effort find out the name and address of the person in charge of the vehicle at the relevant time. A statutory declaration should be made, setting out all the relevant facts including efforts to find out the name and address of the person involved. This should be sent to the Council at the address shown on the notice. Such explanations are, however, rarely accepted. Then there is the question whether to let the matter go to court, where the owner can attempt to satisfy the court that they are not liable. As noted above, it would be best to seek legal advice before proceeding.

Youth Justice

The Youth Justice Act 1997

The Youth Justice Act 1997 (Tas) governs the processes for young offenders in the Magistrates Court (Youth Justice Division) and the Supreme Court. This includes the responsibility to determine both care and protection matters and summary criminal proceedings in respect of young people. Amendments to the Youth Justice Act were tabled in Parliament in late 2012 and commenced on March 1, 2014. Some further changes begin on October 1, 2014.

The Magistrates Court (Youth Justice Division) is a court of summary jurisdiction that deals with offences other than prescribed offences. Prescribed offences are offences cannot be dealt with in the Youth Justice Division. Instead, they must either be dealt with in the criminal or general division of the magistrates court (just like any other adult matter) or if they are particularly serious they may need to be dealt with in the Supreme Court.  A court under the Youth Justice Act is made up of a single magistrate to hear the charges against the defendant.

Purposes of the Act and Sentencing

A major change that came into effect on March 1st, 2014 is that the word ‘punishment’ no longer appears in the Act. The word ‘punishment’ has been replaced with ‘sanction’ to reflect the greater emphasis on rehabilitation that the amendments have also ushered in to the Act. Where previously a sentencing Magistrate had discretion to consider rehabilitation as one of several principles of sentencing, the Magistrate is now required to give rehabilitation more weight than any of the other considerations of sentencing.

The objective of the Youth Justice Act 1997 is to appropriately administer youth justice with an emphasis on diverting young people who have admitted committing an offence away from the criminal justice system by emphasising informal cautions, formal cautions, community, family, and conferencing. Importantly, the Youth Justice Act seeks to encourage youths to take personal responsibility for their actions. Other principles that oversee the Act include that youth are not to be treated more severely than an adult would be and that victims and guardians are given an opportunity to participate in the process of dealing with the youth.

The amendments also require that the sentencing judge consider the impact of sentence on the young person’s chances of education, training and finding or retaining employment. Overall, the amendments have emphasised the objective of the Act to divert young people away from the criminal justice system. Retribution is secondary to rehabilitation.

Prescribed Offences

A prescribed offence is an offence that is not within the jurisdiction of the Youth Justice Division of the Magistrates Court. A youth charged with a prescribed offence will appear before the Supreme Court of Tasmania. Prescribed offences include crimes that are of such magnitude that the youth will be tried before an adult court. Prescribed offences are not dealt with by the Youth Justice Division at all. Once an offence is referred to the Supreme Court the sentencing options are governed by the Sentencing Act 1997 (Tas) not the Youth Justice Act. The Sentencing Act is not subject to the limitations on sentencing imposed under the Youth Justice Act.

Prescribed offences are organised by type of offence and the age of the offender. For a youth who is less than 14 years old, the prescribed offences are murder, manslaughter and attempted murder. For a youth who is 14, 15 or 16 years old, prescribed offences also include aggravated sexual assault, rape, maintaining a sexual relationship with a young person, armed robbery and aggravated armed robbery. Prescribed offences also include ‘being found prepared for the commission of a crime under Chapter XXVII of the Criminal Code armed with a dangerous or offensive weapon or instrument’. These prescribed offences must all be dealt with in the Supreme Court.

The other main category of prescribed offences includes most traffic offences if committed by a youth who is 17 years old on the date of the offence. This category of prescribed offences includes most traffic offences such as drink-driving, ‘hooning’ and driving without a licence.  If any 17-year-old commits any traffic offence under the Traffic Act 1925 (Tas), the Vehicle and Traffic Act 1999 (Tas), and the Road Safety (Alcohol and Drugs) Act 1970 (Tas), (including ‘hooning’ contrary to the Police Offences Act 1935 (Tas)s37J).they will be dealt with as if they were adults.

Age of criminal responsibility

Section 3 of the Youth Justice Act defines a ‘youth’ as a person who is 10 or more years old but less than 18 years old at the time when the offence the person has committed (or is suspected to have committed) occurred.

Youth Justice Process

Detention

One of the major due-process reforms introduced by the Youth Justice Act was the abolition of indeterminate sentences of imprisonment as was provided in the now repealed Child Welfare Act 1960. A guiding principle in sentencing is that the penalty imposed on a young person should be proportionate to the offence and should be no greater than an adult would receive for the same offence (s5). Another important guiding principle for sentencing is that custody should be used as a last resort and for as short a time as necessary (s5). The maximum period for detention of a youth in custody is 2 years (s81(2)).

Arrest

As explained above, the Youth Justice Act has a set of diversionary procedures in place to steer a young person away from the criminal justice system. However a youth may be arrested by a police officer on a warrant, or by a police officer without a warrant.

In determining whether or not to arrest, the police officer must believe that the offence is serious enough to warrant an arrest and that either:

  • the arrest is necessary to prevent a continuation or repetition of the offence; or
  • the arrest is necessary to facilitate the making of a police family violence order, within the meaning of the Family Violence Act 2004, an application for a family violence order under that Act or an application for a restraint order under Part XA of the Justices Act 1959; or
  • the arrest is necessary to prevent concealment, loss or destruction of evidence relating to the offence; or
  • the youth is unlikely to appear before the Court in response to a complaint and summons. (s24)

Under forthcoming amendments, which will come into effect in October 2014, a new section 24A will create duties of police officers where arresting a youth. These duties will include:

  • informing the youth of the youth’s right to refuse to answer questions, or to participate in investigations, except where required to do so by or under an Act of the State or of the Commonwealth; and
  • ensuring that, if practicable, the youth’s guardian is notified of the arrest.

A youth is not required to attend a police station with the police officer unless they are under arrest. If unsure, it is advisable that the youth enquire as to whether they are under arrest, and if so, for what offence. If they are not under arrest, they are free to go. General principles of arrest apply to youth and adults alike.

Generally, a youth does not have to answer any questions, beyond giving their name and address. It is best to be polite and cooperative, within reason. If the offence is a motor vehicle or drug offence they may also have to give their age, the name and address of the owner of the vehicle (where the young person is the driver, but not the owner of a vehicle) or, if the young person is found with a controlled substance (e.g. a drug) they may be required to give the place and name of the person from whom the substance was obtained (Traffic Act 1925, s41 and Misuse of Drugs Act 2001, s31). It is advisable that the youth tell the police officer politely that they do not wish to answer any questions until they have spoken to a lawyer or guardian. If a youth is arrested they are required to be brought before a Youth Justice Court as soon as practicable.

Police powers under the Police Powers (Public Safety) Act 2005 also have the potential to impact on young persons. Powers under the Act can only be exercised upon authorization (by the Commissioner, and in some cases, the Supreme Court) in certain circumstances where there is a risk of a terrorist act, or such an act has occurred or is about to occur. Under the Act, police may, in certain circumstances ask for a person’s identity, conduct an ordinary search or, with a Court order, a strip search, stop and search a vehicle, search and enter a premises or ask people to leave or remain in a cordoned-off area. These powers may be exercised in relation to certain persons, persons in certain vehicles or persons in certain areas, as specified in the authorization.

The young person may contact a lawyer and may challenge the order in court. Complaints about treatment by police while detained can be addressed to the Ombudsman. Persons detained can be searched or strip searched and certain identification material can be taken, in the presence of a parent or guardian. The young person must not be questioned by police while detained on an order, other than to confirm their identity.

Young people may also be detained by the Australian Federal Police under a preventative order under Commonwealth legislation, Anti-Terrorism (No 2) Act 2005, for up to 48 hours.

Bail

If a youth is refused bail by a police officer (Justices Act 1959, s34) he or she may be detained in a watch house until they are brought before a Justice of the Peace (JP), if they are arrested after hours, or a Magistrate, if arrested during business hours, to determine whether to grant bail (s25). If a JP does not grant bail, the young person is detained in custody until the next Magistrate’s Youth Justice Court sitting. Once the decision is made to remand the young person, they are detained in a remand centre (rarely), or otherwise at the Ashley Detention Centre. If detained at a remand centre, it is for as short a time as possible, until a transfer to Ashley can be arranged.

In rare circumstances, a young person may be detained in a prison service facility, in a Remand Centre when on remand or in prison, when serving a detention order. A Memorandum of Understanding exists between the Department of Health and Human Services, Youth Justice Services, and Justice Prison Service which allows for the transfer of offenders and remandees between Remand Centres, Ashley Detention Centre and the prison in certain circumstances.

Under forthcoming amendments that will come into effect in October 2014:

  • a new section 24B of the Youth Justice Act will provide a court or justice, or a police officer, who intends to admit a youth to bail must have regard to youth justice principles (such as only detaining a youth for a short a time as necessary), so far as they may apply to the circumstances of the youth, in deciding whether to impose any conditions on the bail and in determining the conditions that are imposed on the bail. Other particularly relevant principles of youth justice include:
  • that the youth is to be dealt with, either formally or informally, in a way that encourages the youth to accept responsibility for his or her behaviour;
  • that the community is to be protected from illegal behaviour;
  • a youth should not be withdrawn unnecessarily from his or her family environment; and
  • there should be no unnecessary interruption of a youth's education or employment.

All of these principles have a particular bearing on permitting and setting conditions of bail.

A new Section 24C will set out consequences for a breach of bail conditions, other than where a breach is a failure to appear before a justice or court. A breach of other bail conditions will not be an offence, but can result in the breach being taken into account in sentencing, if the youth is convicted of the offence for which they were bailed.

Aboriginal young people

Processes for Aboriginal young people who pass through the Tasmanian criminal justice system are geared toward recognition of the cultural community of the youth and the importance of cultural and community in the rehabilitation process. For example, a formal caution administered to an Aboriginal young person ‘is to be, if practicable’ administered by an Elder of the Aboriginal community, or a representative of a recognised Aboriginal corporation. An Aboriginal detainee has a recognised right to receive visits from a person acting on behalf of the Aboriginal Legal Service (ss 5(2) and 10).

Youth Justice Courts

Youth Justice Courts are generally closed courts. The press and all members of the public are generally excluded from the courtroom. In any particular case the only people usually present in a court when an individual case is being dealt with are:

  • the Magistrate;
  • the Magistrate's Clerk;
  • a security guard in uniform on duty at the courtroom door;
  • a police prosecutor (a plain clothes police office) in criminal matters;
  • a representative of the Department of Health and Human Services;
  • the child;
  • the child's guardian or guardians;
  • the child's legal representative (if the child is represented); and/or
  • the legal representatives of the child's guardian or guardians.

In practice, other solicitors representing other children or guardians also remain in the courtroom waiting for their cases to be called on. Under section 30 the witness, victim, persons engaged in professional study or other persons that the court permits, in the interests of justice or to assist in the case, may also be present.

The court has a duty to ensure that the youth before the Court and the youth’s guardian, if present, understands the nature and purpose of the proceedings, and the right of the youth to have legal representation.  It must ensure that the youth understands their rights in relation to entering a plea and the consequences of entering a plea and that they have access to copies of any report, or record of previous offending history, relating to the youth and that they understand that they can comment on any such report or record. The Court must also ensure that the youth has the right to make, and knows the importance of making, a plea in mitigation if the youth is guilty of the offence. The Court must respect the cultural identity of the youth.

The Youth Justice Act 1997 (Tas) requires young offenders to be given appropriate treatment, taking into account their social and family background, cultural identity, age, and maturity.

Evidence

The rules of evidence that apply in the Magistrates Court (Youth Justice Division) are the same as if the person were an adult, being tried in the Magistrates or Supreme Courts. It should also be noted that evidence obtained through questioning the youth in the absence of a lawyer may be inadmissible in court.

The Court Hearing

Where community conferencing or a formal caution is not being used, the child may appear in the Youth Justice Court. The procedure in the Magistrates Court (Youth Justice Division) is governed by the Justices Act 1959 (Tas) except where inconsistent with the Youth Justice Act. The procedure is different depending upon whether the plea is one of guilty or not guilty.

Plea of 'Guilty'

The first court appearance is on an appointed day. If a pre-sentence report is available, a court will often dispose of the matter on that same day. Otherwise the matter will be adjourned to another date on which day the report will be available. The length of time it takes to obtain a report can range from 4-6 weeks. The following is the usual order of events. The name of the youth is called outside the court, usually by the court security guard.

The youth and their parents go into court. The magistrates clerk identifies the youth for the magistrate, and if the youth is unrepresented who the accompanying adults are. If the youth is represented, or if the parents are represented, the lawyer will advise the magistrate that they appear for the youth and identity the other adults present. The youth is at all times after the initial identification by the magistrate’s clerk referred to and addressed by their first name.

The charge is read, usually by the magistrate's clerk, and the youth is asked if they plead guilty or not guilty. The parents or guardians present may also be asked if they agree with the plea that the youth wishes to enter to the charge.

The prosecution reads out the police statement of facts and surrounding circumstances of the offence. If there is anything in the statement with which the youth disagrees, they should say so when given the opportunity to speak by the magistrate. It is important to listen carefully to this part of the case. If any of the police facts are disputed by the youth, and the prosecutor wishes to prove the police version, then the matter will have to be adjourned to another day for the hearing of oral evidence from witnesses on the disputed facts. If the prosecution does not wish to prove the police version of disputed facts, then the court will accept the youth's version unless it is clearly unbelievable.

The magistrate is also given a list of the youth's prior convictions, if any. This list is first of all shown to the youth and their parents or guardian. If there is any disagreement with the details of this list of prior convictions the prosecutor should be told immediately. Unless they choose to apply to the court to call evidence (which will take place on another day) to prove the disputed prior conviction, they will tell the magistrate to disregard the prior convictions that are disputed, and will usually mark with a pen those convictions in question.

The Court can request that the Department of Health and Human Services provide a pre-sentence report on the youth. The magistrate may consider this report. It is mandatory, in cases where more severe penalties are likely to be applied, that the magistrate has such a report. Reports can take several weeks to be put together and can contribute to delays in sentencing. The new section 33AA will speed the process in that oral pre-sentence reports can now be delivered in court.

Both parents and the youth should be given knowledge of the contents of the report before appearing in court by the child welfare officer who prepares the report. If there is anything contained in the report with which either the youth or the parents or guardian disagree then the court should be advised of those areas of disagreement. If the youth and/or parents or guardians are represented, then the legal representative involved will be given the opportunity to read the report. The lawyer will ask the youth and/or parents or guardians as to any areas of dispute with the contents of that report. It may be necessary for oral evidence to be given before the court (on another day) to resolve such disputes.

The magistrate then asks the youth or their parents or guardians whether they have anything to say. (If the youth is represented this is the job of the lawyer). This is the opportunity to tell the magistrate if there are any extenuating circumstances, for example, the youth was led into the offence by older persons, or they were having difficulties at home or school. The youth can also tell the magistrate that they are sorry for breaking the law.

After considering all the material, the magistrate passes sentence. The various orders the magistrate can make have been set out in Sentencing Orders.

Plea of 'Not Guilty'

If the youth pleads not guilty, the procedure is longer and more complicated. On the day of first appearance the plea of not guilty is entered and the matter is adjourned to another day for hearing. On that hearing date, all police witnesses will be present, and the youth should have all of their witnesses present. The procedure for the hearing is exactly the same as it is for adults in the Magistrates Court.

If a youth is charged with a serious indictable offence, it may be one that only the Supreme Court can deal with. But in many such cases, the youth as an election (a choice) to have it dealt with in the Magistrates Court. If it is a case that only the Supreme Court can deal with, then after pleading not guilty, the case goes to the Supreme Court and may come back to the Magistrate Court for “preliminary proceedings” where the case against the youth can be tested before being finally heard in the Supreme Court. Legal advice should be obtained before any decisions are made to either go to the Supreme Court or about whether to have preliminary proceedings.  See generally, Youth Justice Act 1997, section 3 definition of ‘prescribed offence’ s161 ‘jurisdiction of Court ‘; and Justices Act 1959 Part VII.

Adjournments

Whenever criminal proceedings against the youth are adjourned a youth (ss 58 and 74B, Justices Act):

  • may be admitted to bail (with or without conditions such as reporting at intervals to a police station);
  • may be remanded in the care of the Secretary of the Department of Health and Human Services, who will then place the child in Ashley Detention Centre;
  • may be remanded in custody in jail;
  • may be allowed simply to leave the court having been advised of the date of their next appearance (this is usually referred to as ‘the matter having been adjourned without notice’).

Reports

Reports come from several sources. Youth Justice Worker Reports are usually prepared after the worker has visited the home and talked to the youth and their parents, and perhaps also schoolteachers.

Occasionally with youths 15 and over, reports are sought from the Youth Justice Service especially where community service orders and/or supervised probation is being considered as part of the sentence to be imposed on the youth.

Occasionally psychiatric reports are sought, as are reports under the Alcohol and Drug Dependency Act 1968 where alcohol or drug dependency/abuse appears to be a problem and a consideration in the committing of an offence by the youth.

Community Conferencing

Community conferencing is the third tier of diverting youth away from the court and sentencing system. The rapid changes of adolescence and the tendencies for risk-taking behaviour that manifest in young people mean that the court system is often too slow, or formal to address the issues that underlie unlawful behaviour. Community conferencing is meant as both a restorative justice process and a means of rehabilitation, aiming for greater flexibility and responsiveness than the court system permits. The youth is encouraged to acknowledge responsibility and make reparation to the victim of the offence. Community conferencing is used around the world as a means of bringing youth into a community-based structure that allows for learning and growth from unlawful behaviour. It can reduce reoffending whilst promoting community ties with youth.

A youth may be diverted into the community conferencing system at the discretion of the police officer, as an alternative to formal cautioning, where the offence is considered too serious for informal cautioning. In order for this to happen, the youth must agree in writing to attend, and also to accept responsibility for their offending behaviour. Under the new section 12A of the Youth Justice Act 1997 (Tas), a youth may also be referred to community conferencing if they fail to substantially fulfill the undertakings of the caution. Courts can also order community conferencing as a diversion from sentencing, but it is court-ordered, and takes the element of self-responsibility away from the youth. If a youth fails to fulfill undertakings agreed to at a community conference, the offence that triggered the conference may be dealt with by a court, and, if the youth is found guilty, the court can impose a sentence or order.

Community conference requests must first be made by the police officer to the Secretary of the DHHS (s13). The Secretary then appoints a facilitator to make contact with the necessary parties (s14). The Secretary must be provided with the names and addresses of the youth, his or her guardian/s, relatives who may be able to usefully participate in the conference, people with close associations with the youth, and the victim (s13). The facilitator may also invite any other person they believe may be able to usefully participate in the community conference. The victim is not obliged to attend; however if they do choose to attend, one or more support persons may accompany them. The young person is entitled to be accompanied by one support person.

Compliance with a community conference order and any undertakings arising from that conference will see the charge before the Court dismissed (s41) and the records of the court amended (s41(2)). Nevertheless, if the youth later appears before a youth justice court, the court may well refer to previous sanctions imposed by a community conference when determining an appropriate sentence for a subsequent offence (s47(4)(b)).
The following sanctions may be imposed at a community conference (s16):

  • administer a caution against further offending;
  • require the youth to enter into an undertaking to pay compensation for injury suffered by the victim or any other person because of the offence;
  • require the youth to enter into an undertaking to pay compensation for loss or destruction or damage to property;
  • require the youth to enter into an undertaking to make restitution of property;
  • require the youth to enter into an undertaking to perform a specified period, not exceeding 70 hours, of community service. Amendments will alter these provisions in the near future;
  • with the agreement of the victim of the offence, require the youth to enter into an undertaking to apologise to the victim;
  • require the youth to enter into an undertaking to do anything else that may be appropriate in the circumstances of the case.

An undertaking may have a duration not exceeding 12 months. If practical, the community conference should reach a decision on the sanctions to be imposed on the youth by consensus. The community conference is taken to have failed to reach a decision unless all the following persons agree to the imposition of the sanction:

  • the youth;
  • the police officer; and
  • if the victim is present at the conference, the victim.

Sentencing Options for Youth Offenders

A police officer may be of the opinion that despite admitting the commission of an offence, the nature of the offence requires more formal proceedings than any of the above diversionary procedures. In cases such as this, the police officer may file a complaint for the offence before the Court. Court is also a probably outcome if the youth fails to appear at a community conference, the conference fails to make a decision, or the youth fails to fulfill an undertaking agreed to at a conference. The court may then deal with the offence that originally triggered the conference and the court may impose a sentencing order (s47Youth Justice Act 1997 (Tas)). These orders include:

  • dismiss the charge and impose no further sentence;
  • dismiss the charge and reprimand the youth;
  • dismiss the charge and require the youth to enter into an undertaking to be of good behaviour;
  • release the youth and adjourn the proceedings upon conditions;
  • impose a fine;
  • make a probation order;
  • impose a community service order;
  • impose a determinant period of detention.
  • under forthcoming amendments, impose a certain sentences under the Sentencing Act 1997 (Tas) if the offender is 18 years old or more but committed the offence when they were a youth.

In addition to the above the court may also make one of the following orders:

  • a suspended detention order; and/or
  • a restitution order; and/or
  • a compensation order.

The court may not impose probation, community service orders or detention without obtaining a pre-sentence report. The court can only issue a community service order if a youth indicates willingness to comply with such an order.

Recording convictions

Section 48 of the Youth Justice Act states that the Court must not impose a sentence that is more severe than would be imposed on an adult who commits the same offence while section 49(1) provides that if the court imposes a sentence that does not include a fine, probation, community service or detention a conviction is not to be recorded. Section 49(2) provides that if the court imposes a sentence of a fine, probation or community service the court may order that the conviction either is or is not to be recorded. If the court imposes a sentence consisting of or including a period of detention and does not make a suspended detention order a conviction must be recorded (s49(3)).

In determining whether or not to record a conviction, the court must have regard to all the circumstances of the case, including (s49(4)):

  • the nature of the offence;
  • the youth’s age;
  • any sentences or sanctions previously imposed on the youth by any court or community conference and any formal cautions previously administered to the youth; and
  • the impact the recording of a conviction will have on the youth’s chances of rehabilitation generally or finding or retaining employment.

Under forthcoming amendments, in determining whether or not to record a conviction, the Court must ensure that the matter of rehabilitation of the youth is given more weight than is given to any other individual matter.

Cautioning

Cautions are the first tier of diverting youths away from the criminal justice system. They are meant to provide a means of conveying the gravity of the situation without necessitating the stress of a court appearance, on the youth. Informal cautions are for offences that a police officer deems trivial enough to not warrant more formal means of punishing a young offender. After informal cautions come formal cautions, followed by community conferencing, and finally the Youth Justice court.

Informal cautions

Police have the discretion to informally caution young offenders where the youth admits the commission of an offence. Records are kept of informal cautions. Informal cautions occur on the spot, where the young person admits to the commission of the offence (section 8). Agreeing to an informal caution may affect how the police engage with a young person on subsequent occasions when the young person is suspected of having committed an offence. A second offence is more likely to lead to a formal caution or court proceedings.

Formal cautions

Where a young person has been apprehended and admits to the commission of the offence, the police can formally caution the young person (s9(1)). It is a requirement that a youth justice worker be present at a formal cautioning.

There is always the option for an arresting officer to issue a formal caution for offences such as shoplifting, trespass, and under age drinking. If a young person agrees to a formal caution, this has legal consequences. It can be used as evidence of a prior offence, which may affect sentencing if there is a subsequent conviction (s10(3)(b)).

During the formal caution the officer may require that the young person enter into one or more of the following undertakings (s10(2)):

  •  to pay compensation for loss of or damage to property and/or injuries suffered, expenses incurred or other loss suffered by the victim of the offence;
  • to make restitution of property;
  • to perform a specified period (not exceeding 35 hours) of community service which is for the benefit of the victim of the offence. Amendments to the Act will see restrictions on the types of community services that a youth under 13 can perform, and an additional cap on cumulative hours will apply 70 hours for a youth less than 16 and 210 hours for a youth 16 and over.;
  • to apologise to the victim of the offence;
  • to do anything else that may be appropriate in the circumstances.

Undertakings have a maximum duration of three months. If the undertaking is entered into and completed there will be no further action taken. However, if a young person has not ‘substantially completed’ a formal caution without reasonable excuse for not completing the undertakings, the Police have the option of consulting with the Secretary of the Department of Health and Human Services and taking further action, either by referring the youth to community conference or filing a complaint on the original charge. There are time frames that limit the period of time within which this can happen.

There are provisions in the legislation to allow Aboriginal Elders or their representative to administer a caution where the young person identifies with the Aboriginal Community (s11). There is also provision for other community representatives of religious, ethnic or other community groups to administer cautions where the young person identifies with that particular community (s12).

The young person also has an option not to agree to be formally cautioned. In deciding whether or not to admit to the commission of an offence, the young person is entitled to legal advice. If the young person does not admit to the commission of the offence, legal advice should be sought and questions relating to the offence should only be answered in the presence of a legal representative.

Given the consequences of admitting to an offence, young people are always encouraged to seek legal advice in all circumstances in which they are considering admitting to the commission of an offence.

Victims can be present at the administering of the formal caution. If the victim is not present while the formal caution is administered, section 10(9) provides that they may be informed of the identity of the offender, as well as how the offence has been dealt with.

Community Service Orders

Section 69 of the Youth Justice Act provides for imposing community service orders on young offenders aged 13 to 17 years. The court may make a community service order only if the youth is at least 13 years old and indicates a willingness to comply with the order, and a pre-sentence report states that the youth is a suitable person to perform community service. A young offender, under the age of 13, may be subject to undertakings, but can not be given a community service order. For youths under 16 years of age, a maximum is allowed of 70 hours of undertakings. For youths over 16, the maximum is 210 hours of undertakings. This would be applicable where a youth may have been sentenced in relation to several offences, or have a community service order from a prior offence still ongoing, or have a community service undertaking from a formal caution (s10(2)(c)).

The recent amendments to the Act have also made it possible for a youth justice court to attach special conditions to a community service order. These special conditions may include one or more of the following conditions:

  • (a) the youth must attend school;
  • (b) the youth must attend educational, personal, health and other programs specified in the order;
  • (c) the youth must attend educational, personal, health and other programs as directed by the assigned youth justice worker;
  • (d) the youth must abstain from drinking alcohol;
  • (e) the youth must abstain from using controlled substances;
  • (f) the youth must, as directed by the Secretary, submit to testing for controlled substances or alcohol;
  • (g) the youth must reside at a specified address;
  • (h) the youth must not leave his or her place of residence between specified hours on specified days;
  • (i) the youth must undergo medical, psychiatric, psychological and drug counselling and treatment as specified in the order;
  • (j) the youth must undergo medical, psychiatric, psychological and drug counselling and treatment as directed by the assigned youth justice worker.

This list is not exhaustive. The court may choose to impose other special conditions.

Community conferences

Community conferencing is the third tier of diverting youth away from the court and sentencing system. The rapid changes of adolescence and the tendencies for risk-taking behaviour that manifest in young people mean that the court system is often too slow, or formal to address the issues that underlie unlawful behaviour. Community conferencing is meant as both a restorative justice process and a means of rehabilitation, aiming for greater flexibility and responsiveness than the court system permits. The youth is encouraged to acknowledge responsibility and make reparation to the victim of the offence. Community conferencing is used around the world as a means of bringing youth into a community-based structure that allows for learning and growth from unlawful behaviour. It can reduce reoffending whilst promoting community ties with youth.

A youth may be diverted into the community conferencing system at the discretion of the police officer, as an alternative to formal cautioning, where the offence is considered too serious for informal cautioning. In order for this to happen, the youth must agree in writing to attend, and also to accept responsibility for their offending behaviour. Under forthcoming amendments, a youth may also be referred to community conferencing if they fail to substantially fulfill the undertakings of the caution.

Courts can also order community conferencing as a diversion from sentencing, but it is court-ordered, and takes the element of self-responsibility away from the youth. If a youth fails to fulfill undertakings agreed to at a community conference, the offence that triggered the conference may be dealt with by a court, and, if the youth is found guilty, the court can impose a sentence or order.

Community conference requests must first be made by the police officer to the Secretary of the DHHS (s13). The Secretary then appoints a facilitator to make contact with the necessary parties (s14). The Secretary must be provided with the names and addresses of the youth, his or her guardian/s, relatives who may be able to usefully participate in the conference, people with close associations with the youth, and the victim (s13) The facilitator may also invite any other person they believe may be able to usefully participate in the community conference. The victim is not obliged to attend; however if they do choose to attend, one or more support persons may accompany them. The young person is entitled to be accompanied by one support person.

Compliance with a community conference order and any undertakings arising from that conference will see the charge before the Court dismissed (s41) and the records of the court amended (s41(2)). Nevertheless, if the youth later appears before a youth justice court, the court may well refer to previous sanctions imposed by a community conference when determining an appropriate sentence for a subsequent offence (s47(4)(b)).

The following sanctions may be imposed at a community conference (s16):

  • administer a caution against further offending;
  • require the youth to enter into an undertaking to pay compensation for injury suffered by the victim or any other person because of the offence;
  • require the youth to enter into an undertaking to pay compensation for loss or destruction or damage to property;
  • require the youth to enter into an undertaking to make restitution of property;
  • require the youth to enter into an undertaking to perform a specified period, not exceeding 70 hours, of community service. Amendments will alter these provisions in the near future;
  • with the agreement of the victim of the offence, require the youth to enter into an undertaking to apologise to the victim;
  • require the youth to enter into an undertaking to do anything else that may be appropriate in the circumstances of the case.

An undertaking may have a duration not exceeding 12 months. If practical, the community conference should reach a decision on the sanctions to be imposed on the youth by consensus. The community conference is taken to have failed to reach a decision unless all the following persons agree to the imposition of the sanction:

  • the youth;
  • the police officer; and
  • if the victim is present at the conference, the victim.

Fines

Sections 57 to 64 of the Youth Justice Act cover fines. The court must not impose a fine in respect of a single offence that exceeds:

  • if the youth is less than 15 years old, 2 penalty units (2 x $13)) or the maximum fine, whichever is lower; or
  • if the youth is 15 or 16 years old, 5 penalty units (5 x $130) or the maximum fine, whichever is the lower, or
  • if the youth is 17 years old or more, the maximum fine.
  • The court must not impose fines in respect of two or more offences the total of which exceed:
  • if the youth is less than 15 years old, 5 penalty units or the total of the maximum fines for those offences, whichever is lower; or
  • if the youth is 15 or 16 years old, 10 penalty units or the total of the maximum fines for those offences, whichever is lower; or
  • if the youth is 17 years old or more, the total of the maximum fines for those offences.

The court must take into consideration the financial circumstances of the youth when determining the amount of a fine to be imposed on the youth if the youth is present before the court. The court may order that the fine be paid in installments.

If the youth has difficulty in paying the fine within the period required, they can apply for further time or an amendment to the order to pay the fine (section 60(1)).

If the youth fails to pay a fine, they may be summoned to appear in court and the following orders may be made:

  • amend the order so that the fine is paid by installments that the court considers appropriate;
  • order the youth to perform community service instead of paying the outstanding amount of the fine;
  • order the district registrar to take proceedings for the recovery of the outstanding amount of the fine;
  • revoke the order made under section 47 and make another order under that section in respect of the offence.

Deferral of Sentence

Deferral of sentence is a recent addition to the Youth Justice Act under sections 47(1)(j) and 56A – 56D. The thought behind deferred sentences is that as an alternative to incarceration, conducive to rehabilitation of a  young offender. A sentence can now be deferred for up to 12 months. In that 12 month period the court may have imposed conditions and requirements that the youth must meet, such as attending counselling or drug treatment. The court has a monthly review of the progress of the youth. If the conditions are being met satisfactorily, the review frequency may be decreased (section 56C) as a reward. Failure to comply may result in more frequent reviews or a revocation of the deferred sentence. If the youth does not respond to the conditions and review process intended for rehabilitation, the long term consequence is that at the end of the deferral period the court may sentence the youth to a period of imprisonment.

Supervised Release Order

Supervised release orders are the youth justice equivalent of parole. A sentence for a young offender always has a supervised release date of half the head sentence. Supervised release must take place at the earliest release date (section 109). 

Sentencing for Prescribed Offences

The sentencing options open to the magistrate for offences other than prescribed offences have already been discussed above. For prescribed offences that only the Supreme Court can deal with,  Supreme Court judges may either sentence under the Youth Justice Act (see below), or they may impose the same sort of sentences as they are empowered to impose on an adult, subject to the considerations that naturally follow upon the age of the offender.

The Supreme Court has the discretion (s 107Youth Justice Act) to sentence either under the Youth Justice Act or the Sentencing Act 1997. If a young person is sentenced to imprisonment under the Sentencing Act, they are usually detained at the Ashley Youth Detention Centre, rather than in prison as detention of a youth in an adult prison would violate the UN Convention on the Rights of the Child. Youths sentenced under the Sentencing Act and detained at Ashley are classified as Prisoners on Sentence rather than detainees.

If a youth pleads guilty to a prescribed offence which is a serious indictable offence, then depending on the particular offence, there often a choice (called ‘an election) whether to be sentenced in the Magistrates Court or in the Supreme Court. Legal advice should always be sought before electing to go to the Supreme Court rather than the Magistrates Court.

Victims of Crime

Introduction to Victims' Compensation

The scheme for Criminal Injuries Compensation is regulated by the Victims of Crime Assistance Act 1976 (Tas) (VOCA Act). The government makes payments to acknowledge the pain and suffering of a victim of crime, and compensate for loss of income or expenses that are the result of the criminal conduct. It is also possible to sue the person who committed the crime, if they have assets this is a possible option.

The procedure for applying for compensation and for the hearing of applications is administered through the Justice Department and is intended to be simple. It is in an applicant’s own interests to have legal representation. An application must contain prescribed information and has to be supported by a statutory declaration. Applications are available online or copies of the relevant forms can be obtained from the Victim’s Assistance Unit, Level 1, 54 Victoria St, Hobart.

An application should contain as much information as possible about the offence such as the date of the offence, the police station it was reported to, the name of the investigating officer, the name of the offender (if known), and how the crime has affected you, physically and psychologically.

The application is lodged with the Victim’s Assistance Unit. The applicant is asked if they wish to be represented at the hearing . The applicant can choose to attend the hearing or not, but it is in their best interest to attend the hearing. It will take up to four months for your application to be processed.

An application must be filed within three years of the injury or, in the case of a child, within three years of turning 18. An application for an extension of time is available, but it is not enough to just explain the delay or to state that the applicant was unaware of their right to claim until the three year period had expired. An extension of time may be granted where the a ‘special circumstance’ exists. This means ‘unusual’, ‘uncommon’ or ‘exceptional’. An example might be the resulting impact of the offence being the reason for the delay – this would mean that the physical or psychological harm of the offence.
 

Elements Necessary for Compensation

Nature of the Injury

The compensation is only for personal injury or loss – physical bodily or mental harm, pain and suffering, or an unwanted pregnancy resulting from rape. Property is not covered under the Act.

In addition to the applicant’s own evidence, the medical reports should disclose the nature of the applicant’s injuries, treatment and prognosis. The Commissioner will have regard to the physical and mental pain and suffering of the applicant, past and future. As with any assessment of damages, it is therefore important that anything having a material bearing on this should be canvassed in evidence.

It is important to have up-to-date medical reports. If the applicant’s injuries have not stabilised, it may be appropriate to ask the Commissioner to make an interim award and come back for a further award later (s5(6)VOCA Act).

Expenses

It is important to remember that the Commissioner can only allow expenses actually and reasonably incurred as a result of the injury (s4(3)(a)). The cost of a future operation cannot be allowed until it has been incurred. The production of receipts or accounts is usually regarded as sufficient proof of expenses.

Financial Loss

This will include loss of wages or salary, and any other loss caused by an incapacity for work arising from the injury. Proof is required of any such loss (s4(3)(b) &(c)).

Victim's Conduct Contributing to Injury

This is analogous to making a reduction in damages because of contributory negligence. But the conduct must in some way have contributed to the injury or death.

Adequate Civil Remedy

The applicant must satisfy the Commissioner that there is no adequate civil remedy against the offender (s5(4)). In most cases this will be the situation since offenders will be serving a sentence of imprisonment, will not have any substantial assets or income, and will be unemployed on their release. However, in some cases this may not be so, and the victim will have been expected to have taken all reasonable steps to take action against the offender where this is the case. This may also be in the interest of the victim because the upper limit of $30,000 will not apply, and they will have the chance to obtain more adequate compensation. Action must be taken within three years of the injury occurring.

Exclusions and Limitations

It is important to note in section 6 of the VOCA Act that:

  • no award of compensation can be made for any criminal conduct which occurred before 4 August 1976, which is the date on which the Act commenced.
  • no compensation can be awarded for death or injury where compensation is payable, under any law, by an employer in respect of such death or injury to any person in their employment resulting from an accident occurring in connection with that employment;
  • pain and suffering is still payable even if an offence occurred in employment and Workers’ Compensation has been paid
  • no compensation can be awarded in respect of death or injury caused by or arising out of the use of a motor vehicle as defined in the Traffic Act 1925;
  • compensation in respect of any destruction of, or damage to, property can only be awarded if such damage was suffered as a result of a person assisting a police officer.

The victim, the offender, and privacy

Compensation for Victims

There are three classes of victims under the VOCA Act primary, secondary and related victims. A primary victim may receive a maximum of $30,000; a secondary victim may receive a maximum of $20,000; and a related victim can receive a maximum of $10,000. Multiple claims by related victims in reference to the one incident can receive a maximum of $50,000. The amount to be awarded is decided at the sole discretion of the Commisioner.

A primary victim is the person who was the victim of the offence, such as the person who suffered psychological harm and needed counselling after an aggravated burglary. If there are two single occurrences of criminal conduct upon the same person, sufficiently separated in time, that person could be entitled to a maximum of $30,000 in respect of each occurrence.

An example of a related victim would be a widow who sees her husband murdered. She may claim as a related victim in respect of her own pain and suffering arising from the impairment of her mental health as a result of the criminal conduct. Since there is only one incident of criminal conduct and only one person entitled to an award, the maximum compensation would be $30,000.

But where, for example, one man, who is both a a husband and a father is murdered, each person who is a dependent, a parter and children, would be entitled to a maximum of $30,000.

A secondary victim is either a person who suffers injury as a result of witnessing an offence or a parent, step-parent or guardian of a primary victim who was under 18 years of age at the time of the offence (s2).

Compensation is payable for pain and suffering, for treatment (psychological or physical) for injury arising from the offence, and loss of wages or salary due to incapacity arising from the offence (s4). If there are outstanding fines, compensation levies, or penalties under the Sentencing Act, these amounts will be deducted from the compensation award before being paid to the applicant (s6B).

The Offender

The VOCA Act requires the Commissioner to make an order against the offender for the amount of compensation paid (s7A). This is collected as a fine against the offender by the Monetary Penalties Enforcement Unit. In most cases, the offender will thus become aware that the applicant has been awarded compensation. The offender has a right to apply to see the reports filed in relation to the application for compensation, and by which the Commissioner made the decision. This means that an offender, if so interested, can become aware of the impact of the offence on the victim.

Privacy

Applications for compensation are heard in private, and every effort is made to preserve the anonymity of applicants. Publication of proceedings is forbidden (s8). A report is forwarded to the Attorney-General each year with a resume of cases decided. No names or other means of identification are contained in these.

Sentencing

Where does sentencing law come from?

Sentencing law comes from two sources: statute and the common law. In Tasmania, the Sentencing Act 1997 (Tas) is the statutory source of law for Tasmanian offences committed by adults. Juveniles, in all but the most exceptional cases, are sentenced under the Youth Justice Act 1997 (Tas). Some common law principles apply in Tasmania, as the statute is silent on some points of law. The common law in sentencing applies in all Australian jurisdictions in as far as their sentencing legislation is silent. In Tasmania, this means that the ‘instinctive synthesis’ approach, parsimony, proportionality, double jeopardy, and retribution continue to be governed by the common law, and coexist with the Sentencing Act. These will be discussed in depth later.

The Sentencing Act and the Youth Justice Act both have common themes. Both of these Acts considers punishment and rehabilitation to be important, however, sentencing for adults tends to begin with denunciation and deterrence as the primary purposes whereas sentencing for juveniles, in all but the most exceptional cases, has the predominant purpose of rehabilitation and treatment as the starting point. Up until the age of 21 sentencing for youths also has rehabilitation as a dominant purpose, but the degree to which rehabilitation is considered for young offenders varies, depending on circumstances. 

Purposes and Considerations of Sentencing

Under section 3 of the Sentencing Act, a sentencing judge must consider the following purposes of sentencing in passing sentence:

  • Deterrence, of others and of the offender
  • Denunciation of the offence
  • Retribution – punishment
  • Protection of the community
  • Rehabilitation
  • The interests of the victim

In addition to these purposes of sentencing, in order to sentence a defendant, a court must consider a number of factors that go to the offence and the offender. These are called ‘aggravating and mitigating factors’. Mitigate means to make less severe. Aggravate means to make more severe. There are many mitigating and aggravating factors, and it is impossible to give an exhaustive list. However, included among the mitigating and aggravating factors will be:

  1. The nature of the crime – for example, was it a minor or major example of the offence type?
  2. The circumstances of the offender – for example, is the offender a first time offender?
  3.  Harm arising from the offence – for example, was a victim badly hurt?
  4. Circumstances around the trial – for example, a plea of guilty and cooperation with the police.
  5. Other aggravating or mitigating factors, such as no remorse, excessive violence in the commission of the offence, or attempts to make things right with the victim.

The combination of factors, and the weight they are given differs depending on the offence. For example, a person convicted of  ‘white collar crime’, such as fraud by an accountant or lawyer, will not receive as much leniency for previous good character as someone convicted of a first offence assault. This is because good character is, to an extent, an element of the means of offending. This is also true where sex offenders have used their position of trust or authority to exploit the dependent relationship of children or vulnerable adults placed in their care.

A plea of guilty is another example of where there is a wide range of difference in how mitigating the plea of guilty will be. A bare plea of guilty that is a simple ‘bowing to the inevitable’ will not attract as much mitigation as an early plea of guilty coupled with genuine remorse. A plea of guilty the day before the trial is set to begin will also not attract as much mitigation as an early plea because the plea will not have spared the courts or other parties, such as victims and witnesses, the difficulties of pre-trial preparation.

Proportionality, parsimony, and other limiting principles

The criminal justice system can only punish a person for acts they have committed, and to some extent take account of the harm they have done. In the process of sentencing it is possible for a judge to acknowledge the victim. This is why victim impact statements are a part of the court process – so that sentencing judges can acknowledge the victim, their suffering, and allow them a voice. But, the system is not there to magically fix everything, or to give voice to our desires for retribution, to see our pain or loss inflicted on an offender. The system sentences according to the rules:

Deterrence + Denunciation + Rehabilitation + Protection of the Community x (Offender + offence) = the appropriate punishment

The system is not there to represent the direct views of you or me. We may be part of it, we may be represented by it, but in the end, the system prosecutes and sentences because society as a whole must be protected by the system through sentences discouraging reoffending or rehabilitating individuals.

There are other aspects to criminal punishment that do make a person “pay” for their offence, particularly with offences that are the subject of general community disapproval. Child sex offences are particularly despised, and a person is stigmatised, both in prison and in the community. A child sex offender can never live down what they have done. While in prison, a child sex offender will fear for their life and physical safety. The reality of the punishment isn’t ‘they only got 3 years!’ It is 3 years of fear, loneliness, isolation, and hatred. It is 1095 days of misery. Before the sentence is even reached, an offender will likely suffer as much or more – rejection by friends, family and the community. The loss of everything – home, work, family. The criminal justice system doesn’t make this happen – people do. People seek their own justice, and they do it with fewer rules and safety checks than the criminal justice system.

The fact remains that some offenders will never accept the judgement of society. They will accept the consequences of being caught but not the condemnation. There is nothing we can do to change a person’s mind as to the wrong they have done.

This is why, with offences that stir the emotions of the public the focus needs to also be on the healing process for the victim. We can’t look to the criminal justice system to heal those affected by crime. Everyone wants to protect his or her loved ones from violence. But if violence happens, the punishment to the offender is unlikely to heal the wounds, because healing is not the aim of the criminal justice system – punishment to fit the crime is the aim of the system.

While you may read of people who say they feel cheated by the justice system because an offender has not been punished to the extent they desire, you have to consider that it is not the justice system’s place to mete out punishment according to how a few people feel about someone and what they did. A married couple lose their son in a tragic fight between the son and his best friend. The best friend and the son are drunk, and get into a drunken fight. The friend punches the son, who falls and dies several hours later. A foolish act ends in a tragic accident. The friend is deeply remorseful; he is plagued by the guilty of having killed his closest friend. The offence is uncharacteristic, he has given up drinking, and in all other ways is a good citizen. He receives a wholly suspended sentence. The parents feel cheated.

The criminal justice system requires a sentencing judge to assess the circumstances of the offender and the offence, and consider the purposes of sentencing in reaching a decision. The feelings of the parents are not a part of that equation. The criminal justice system has its own logic, its own means of assessing the penalty for an offence. 

What is a sentence?

A sentence is a punishment for a crime, any crime – from murder to drink driving. If a judge or a magistrate (“the court”) gives you the penalty it is a sentence. Fines, community service orders, probation orders – all of these are sentences, and the ability to hand down one of these sentences is contained in the Sentencing Act. Where someone receives a fine for drink driving or driving without a license, it can be a relatively easy process of sentencing, but the process of sentencing is not always an easy one. Crime is complicated and sentencing is complicated because of the nature of crime. The more serious the offence, the more serious the penalty – the deprivation of liberty through a sentence of imprisonment is the most serious penalty.

Under the Sentencing Act, there are a number of possible sentences or ‘sentencing orders’ (section 7). There is also an option to record a conviction or non-conviction (section 9). Sentencing orders can be combined (section 8). There is also the possibility of imposing a ‘global’ sentence, which means one sentence for many crimes without the need for the court to stipulate what each offence attracted as a penalty. Here are listed possible sentencing orders under section 7 of the Act, with explanations of the sentencing order:

  • A term of imprisonment with a maximum of 21 years in Tasmania
  • Wholly or partially suspended term of imprisonment
  • A drug treatment order
  • A community service order
  • A probation order
  • A fine

Terms of Imprisonment

While the maximum penalty for an offence is 21 years, there are exceptions. Where the offence is murder or treason, there is no maximum penalty. There are also orders called ‘dangerous criminal declarations’, which can be applied for by the Crown and permit indefinite detention. These are only granted in exceptional cases. A dangerous criminal order can only be made where the offender has been convicted for a crime involving violence, has at least one prior conviction for a crime involving violence, is over the age of 17 years, and the judge is of the opinion that the declaration is necessary for the protection of the public. The onus is on the party seeking the declaration. However, once the declaration is in place, the applicant must satisfy the court that the declaration is no longer warranted for the protection of the public. Mark ‘Chopper’ Reid was the subject of a dangerous criminal declaration. He also successfully applied for a discharge of the declaration. See Division 3, particularly sections 19 and 20.

Suspended sentences, while often viewed as a lighter option, can be reactivated if during the suspension period, a person is caught offending. Courts can make either a wholly suspended sentencing order, or a partially suspended order. Wholly suspended is usually for first time offenders.

Remissions

Remissions can apply for sentences over 3 months in length. The standard is generally: 

No remissions for sentences up to and including 3 months. However, for sentences over 3 months, remissions work out that for every 2 weeks served 1 week comes off after 3 months has gone past. But note, this is to a maximum of 3 months off. This is the maximum amount of time remitted by the courts.

3 months = no remission
6 months = 1 months remission to serve 5 months
9 months = 2 months remission to serve 7 months
12 months = 3 months remission to serve 9 months
 

Drug treatment orders

Drug treatment orders are restricted to offences that do not involve sexual offences or bodily harm that was not, in the court’s opinion, minor. They are a means of diversion from the justice system. A number of conditions have to be met. Firstly, that the offence was not sexual or occasioned more than minor bodily harm. Secondly, there is demonstrable history of illicit drug use and that drug use contributed to the commission of the imprisonable offence or offences. Thirdly, that the court would have sentenced the offender to a term of imprisonment if not for the making of a drug treatment order. In order to make a drug treatment order, the court must have received and considered a drug treatment order assessment report on the offender. On the offender’s part, the offender cannot be subject to a current sentencing order, parole order, or another drug treatment order. See Division 3A of the Sentencing Act. For conditions under which a Court may make a drug treatment order see section 27B.

Community Service Orders

Interestingly, Tasmania was the first jurisdiction in Australia to introduce community service orders. Once an alternative to imprisonment, they are now more generally available as an option in addition to imprisonment. Community service orders are not simply confined to the performance of unpaid work. Section 32 of the Sentencing Act takes account of probation officer directed attendance at educational or other programs as time performing community service hours (section 32). If a person breaches a condition of a community service order, the courts can cancel the order and resentence the offender as though just finding the offender guilty, increase the number of community service hours, or confirm the order as originally made. In determining how to deal with the offender, the court must take account of the extent to which the offender has complied with the order before committing the breach (section 36). See Part 4 of the Sentencing Act.

Probation Orders

Probation orders have a number of restrictive conditions that must be followed by an offender. Not least amongst these is the requirement not to commit an offence punishable by imprisonment. Reporting and supervision conditions apply, including notification of change of address or employment (section 37(1)). Other special conditions include:

  • Attendance at education or other programs
  • Assessment and treatment for drug or alcohol dependency
  • Testing for drug or alcohol use
  • Medical, psychological or psychiatric assessment or treatment (section 37(2))

The maximum length of a probation order is 3 years. If an offender breaches a probation order the order may be confirmed, varied in its special conditions, increased in its length, or resentence the offender as though just finding the offender guilty. As with community service orders, the extent to which the offender has complied with the probation order must be considered by the court in dealing with the breach.

Fines

Fines are measured in ‘penalty units’. A penalty unit for the 2014-15 financial year is set at $140. Previous years beginning in July 2010 was $130.

 

Sentencing Under the Youth Justice Act

Sentencing under the Youth Justice Act considers the same factors as the sentencing of adults, with the difference that sentencing of youth considers rehabilitation to be the overriding purpose of sentencing for youths (section 47(3A)). Youths are housed separately to adults, at the Ashley juvenile detention centre. The focus in youth justice is diversion away from the criminal justice system. There is a much broader context to this idea, and that includes enhancing and reinforcing relationships of youths to their guardians and/or families, and communities in order to effect rehabilitation. Consideration is to be had to background, cultural heritage, and the possibility of the youth providing redress. The nature of the offence is also considered, as well as age, previous sentences or sanctions imposed on the youth by a court or community conference, and the impact of any orders on the youth’s chances of finding or retaining employment or attending education and training (section 47(4)).

Only on rare occasions will a youth be sentenced as an adult. Such occasions usually concern the gravity of the offence, or habitual offending coupled with the age of the defendant at the time of conviction being above 18.

There is a difference between ‘youth’, as considered by the Youth Justice Act and ‘youth’ as considered by the Supreme Court in general sentencing considerations. Under the Youth Justice Act, youth is restricted to a person who is 10 or more years old but less than 18 years old at the time of offending. Youth as a general consideration in sentencing includes offenders up until the age of 21. The closer to 21, and the graver the offence, the less mitigating weight will be attributed to youth.

Diversionary Options

Diversionary options that are not available under the Sentencing Act for adult offenders are available under the Youth Justice Act. This includes informal cautions, formal cautions, deferred sentencing/adjournment, and community conferencing. Community conferences are a form of rehabilitative or transformative justice, that enables offenders and victims to meet, and for the offender to see the impact their offence has had on the victim.

Community Conferences

Community conferences consist of a facilitator, the youth, persons who are invited by the facilitator, the police officer who requested the conference, the victim of an offence, and a person or persons they choose to provide support and assistance. The youth is entitled to be accompanied by one person of their choosing to do the same. If a person is considered by the facilitator to be deliberately attempting to disrupt the conference the facilitator may require the person to leave, or ensure their departure if they refuse to leave (section 15). If a court orders a community conference (section 37), the attending police officer will likely be representative of the Commissioner of Police rather than the officer who required the conference (section 15(1)(d)). Community conferences have the power to administer a caution against further offending, require an undertaking to apologise, impose a maximum of 70 hours of community service if the youth is 13 or more years old, require an undertaking for compensation or restitution in terms of monetary value or restitution through work on offence-affected property (section 16). The power to impose community service hours is limited by any community service order currently in place, if the effect would be to exceed 70 hours community service in total for youths 13, 14 or 15 years old, or 210 hours for youths 16 or more years.

Sentencing options

The sentencing options for the Court are also broader than under the Sentencing Act. Under section 47 the Court can:

  • Dismiss the charge and impose no further sentence;
  • Dismiss the charge and reprimand the youth;
  • Dismiss the charge and require the youth to enter into an undertaking to be of good behaviour;
  • Release the youth and adjourn the proceedings on conditions;
  • Impose a fine;
  • Make a probation order;
  • Order that the youth perform community service;
  • Make a detention order;
  • Make an order it is permitted to make in accordance with section 161A;
  • in the case of a family violence offence, make a rehabilitation program order;
  • adjourn the proceedings, grant bail to the youth under the Bail Act 1994 and defer, in accordance with Division 7A, sentencing the youth until a date specified in the order

The court can also impose a number of orders, including:

  • A suspended detention order
  • A restitution order
  • A compensation order
  • Or any other order allowed under another Act in respect of which the youth committed an offence

Deferral of Sentencing

Deferred sentencing is a new option in Tasmania. The Court may defer for the purpose of:

  • assessing the youth’s capacity, and prospects, for rehabilitation
  • allowing the youth to demonstrate that rehabilitation has taken place
  • assessing the youth's capacity, and prospects, for participating in an intervention plan
  • allowing the youth to participate in an intervention plan
  • any other purpose the Court thinks appropriate in the circumstances.

Who is an offender?

Most crimes are committed by males between the ages of 15 and 25. Some offences are more prevalent among certain classes. For example, older, white males most often commit corporate offences, just as men commit most crimes of interpersonal violence from lower socio-economic classes. This doesn’t hold true for domestic or sexual crimes, where there is a fairly even distribution across social and economic classes.  In many ways those we consider to be offenders are those who have gone to prison. Nelson Mandela was imprisoned for 27 years, and went on to lead a nation, so it is not necessarily always a negative stigma. For sentencing purposes, an offender is someone who is subject to a sentencing order, be it a fine, or a term of imprisonment. If you have ever appeared in a Magistrates Court for a driving offence, you are an offender. 

How does the court reach a decision?

The sentencing process

Prosecution Submissions

The prosecution submits agreed facts, and makes submissions on the aggravating and mitigating factors of the offence. It is not the role of the prosecution to seek the harshest penalty possible, but to present a view of the offence. The prosecution can discuss the sentencing range within which the offence falls, for example – low, mid or high range offending. 

The Plea in Mitigation

The plea in mitigation is a statement that the defence lawyer can submit to the court that tells the court about the offender’s circumstances. Particularly relevant in a plea in mitigation will be remorse. Other factors include the impact on the victim of community retribution, loss of employment, status, and attempts at rehabilitation. The combination of factors is diverse, depending on both the offender and the offence.

The Sentencing Decision

The court reaches a decision based on available information and hands down the decision in a ‘Comment on Passing Sentence’. These ‘COPS’ are readily accessible through the Supreme Court website as far back as 2008. Earlier sentences can be accessed in the University of Tasmania law library, or by contacting the Andrew Inglis Clark library at the Supreme Court. 

Sentencing Process

Prosecution Submissions

The prosecution submits agreed facts, and makes submissions on the aggravating and mitigating factors of the offence. It is not the role of the prosecution to seek the harshest penalty possible, but to present a view of the offence. The prosecution can discuss the sentencing range within which the offence falls, for example – low, mid or high range offending. 

The Plea in Mitigation

The plea in mitigation is a statement that the defence lawyer can submit to the court that tells the court about the offender’s circumstances. Particularly relevant in a plea in mitigation will be remorse. Other factors include the impact on the victim of community retribution, loss of employment, status, and attempts at rehabilitation. The combination of factors is diverse, depending on both the offender and the offence.

The Sentencing Decision

The court reaches a decision based on available information and hands down the decision in a ‘Comment on Passing Sentence’. These ‘COPS’ are readily accessible through the Supreme Court website as far back as 2008. Earlier sentences can be accessed in the University of Tasmania law library, or by contacting the Andrew Inglis Clark library at the Supreme Court. 

To punish or not to punish?

Under the Sentencing Act 1997, courts must consider several primary purposes of sentencing. On the one hand we have retribution, denunciation, and deterrence, and on the other hand we have rehabilitation. Overarching all of these purposes is protection of the community, because all of these purposes must in some way further the protection of the community, and as an important but not central consideration are the interests of victims.

While retribution, denunciation and deterrence are all important considerations in sentencing an adult, in practice, sentencing judges have a wide discretion, which, depending on the circumstances, may see the courts place rehabilitation as an important sentencing consideration. The nature or character of the offender and the offence may influence the court to suspend a sentence, or not record a conviction, or simply impose a fine, because the rehabilitation and reintegration of the offender back into society is more important than punishment. All of this is highly circumstantial, and cannot be quantified. A sentencing judge does not take one pinch of deterrence, two pinches of denunciation, and half a spoon of rehabilitation. The process of ‘instinctive synthesis’ cannot be quantified, but the sentencing comments provided by a sentencing judge can qualify the reasoning behind the decision, and will often mention the purposes of sentencing that were taken into account in sentencing, as well as the circumstances of the offence and the offender.

To punish or not to punish?

Public opinion is often sought on the subject of whether sentences for crimes are satisfactory. The answer is often no. The media representation of crime is that the system fails to punish offenders for wrongdoing. Crime and punishment is not this simple. A court will consider a range of factors in sentencing, and there are principles that govern sentencing, just as gravity governs the way we stick to the surface of the planet, there are certain principles of sentencing that must be applied. These principles prevent a sentence being “crushing” on an offender, or ensure that the punishment fits the crime, according to all considerations of sentencing. But punishment and retribution are not the only considerations that a judge must take into account.

Often, people are simply unaware of the types of sentences that are handed down on offenders, in particular sex offenders and violent offenders. They think ‘oh, well the media shows so much crime happening, criminals must not be punished hard enough to prevent them and others from offending.’ The truth is that criminal behaviour is often more complex than a simple predisposition to crime, the ‘us and them’ view is not accurate at all.

Similarly, people are often unaware of the fact that prison has a known criminogenic effect – this means that imprisonment is more likely than other sentencing options to encourage continuing criminal behaviour. This is why, while in prison, some prisoners can participate in programs for rehabilitation, learn new skills, and gain an education – in order to send back into the community men and women who can reintegrate and not want to offend again.

The question is: once you’ve punished someone, what do you do with him or her? The answer is – reintegrate them into the community.

Factors for consideration

A quick look at mitigating and aggravating factors

Some mitigating factors

  • A plea of guilty; the earlier in the process the better
  • Cooperation with police / prosecution
  • Confession and/or coming forward
  • Remorse
  • Attempts at rehabilitation on the part of the defendant; reformed character
  • If a financial crime, attempts to restore the damage or loss

Some aggravating factors

  • Excessive force
  • Financial gain in non-financial offences (e.g. child pornography)
  • Abuse of trust
  • Attempting to prevent the complaint being heard
  • Persisted in offending despite police intervention
  • Racial motivation
  • Victim impact
  • Persistence in committing offences
  • Use of a weapon
  • Committing offences while on bail, particularly for similar offences

Aggravating Factors

When courts are considering a sentence they will often refer to aggravating factors. Aggravating factors depend on the type of crime, but a consistent aggravating factor is the harm to the victim. So, for example, if a person commits an armed robbery and they terrorise a bank teller who then suffers from posttraumatic stress disorder as a consequence of the offender’s behaviour, the court will take this into account as an aggravating factor. Conversely, if an armed robbery is carried out with a minimal amount of violence, it will be seen as an offence at the lower end of the range, and there will be less aggravating factors. Violence, particularly excessive violence, a breach of trust, the use of a position of power, harm to victims, premeditation, where the conduct occurred over a long period of time, and the extent of financial harm if the offence is a financial crime. Other factors to consider will be degree of participation, provocation, motive, and intention.

Mitigating Factors

Two key factors are mitigating: remorse and a guilty plea. Remorse must be genuine, and courts will sometimes discuss whether remorse is genuine. Courts will also discuss the point in time at which a person pleaded guilty. If an offender made early and full confessions and a plea of guilty, this is a substantially mitigatory factor. If an offender made pleas of guilty before the trial as a mere ‘acceptance of the inevitable’ this will have far less weight in mitigation than an early plea of guilty with genuine remorse. Cooperation with the authorities is also a factor in mitigation. One sex offence case only came to light because of the confession of the offender. This was taken as a factor in mitigation by the sentencing judge (see JTM, 9 December 2010). Other characteristics of the perpetrator that the court takes into account include youth, extreme age, ill health, remorse, awareness of wrongdoing, and cooperation with the police.

Examples of sentencing

The nature of the offence and the offender: mitigation and aggravation

A young man commits the offence of burglary, and steals $4,000 from a business.[1] 8 years later DNA evidence links him to the offence. He committed a number of offences of dishonesty around the same time, but since then has turned his life around considerably, volunteering his time in the community and seeking work. He has committed no further crimes in the 8 years since the offence. He pleads guilty. He cooperates with police. He feels remorse for his younger self, and as an older man wants to move on and contribute to the community. The court gives him a 12 month wholly suspended sentence, with a 24-month (2 year) good behaviour bond.

What did the court take into account?

  1. The crime is historical – it happened 8 years ago
  2. The remorse and the plea of guilty
  3. The significant change in behaviour of the defendant, and the length of that change
  4. His contributions to and place in the community

But, we can take the same factors that the court took into account as mitigating factors for this defendant – the age of the crime, expressions of remorse, the contributions to the community and the self-improvement of the defendant, and the plea of guilty and they will not be mitigating factors for a different offence. This is not to say that the absence of remorse is aggravating, remorse is a mitigating factor but the absence of remorse is not aggravating. It is just that different offences have different elements, and a sexual offence for example, that uses status in the community and the shame surrounding sex to conceal the offence for many years, will not have those same elements of community standing and the lapse of time as mitigating factors.

Example 2

The second example is of a man who was 83 years old at the time of sentencing.[2] His offending began in 1957. Most of his offending occurred during the 1970s to the 1990s. The offences occurred against eight boys. He was a public servant, and was a Court Registrar for many years. He occupied a position of trust that meant that the parents of the boys, aged between 9 and 13 years old, trusted them with their children when he took them out on his yacht or taught them woodworking. Although the court did not take his lack of remorse as aggravating, there was no mitigation based on remorse. Moreover, his respected status in the community could not contribute to a lessened sentence, as it was the means by which he committed the offences. The additional factors the sentencing judge had to consider were the health problems/age of the defendant. The defendant was sentenced to five and a half years imprisonment, reduced from seven years because the defendant only had a life expectancy of 6 years. The non-parole period was four and half years. Let us compare the considerations that were important in the first example.

  1. The crimes were historical – not of significance here in mitigation, as the harm to victims is often lifelong, and the nature of abuse of children is often that the crimes are concealed for long periods of time; to mitigate because of the passage of time would be to undermine the interests of victims
  2. there was no remorse and no plea of guilty – neither are aggravating in their absence, but without either there is no mitigation.
  3. The length of time over which offending occurred and the acts against many of the boys were not isolated acts, and there were many victims – he was at risk of offending again, so there was no change in his behaviour
  4. His contributions to and status in the community were a means of accessing his victims and of shielding himself from discovery

The only factor that the judge took into account in reducing the sentence was that the defendant was near the end of his life. As you can see, different crimes will mean different factors are important as mitigating or aggravating considerations. There was very little in mitigation for the second case, and the factors that had been important in the first case were not of importance to the outcome of the sentence in the last case.

Some factors are always aggravating – the use of violence is always aggravating, just as cooperation and an early plea of guilty are always mitigating.

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[1] Tasmania v Shane Vivian Smith, Underwood CJ, 20 February 2008 (Sentence).

[2] State of Tasmania v James Robert Eaton, Blow J, 4 June 2008 (Sentence).

Crimes and Punishments

Murder and Manslaughter

The range for murder for the period 1996 – 2000 ranged from 10 years to life. The Criminal Code uses the words ‘for the term of the person’s natural life’. From 1990 – 2000, there were 23 attempted murders. 1 offence received a sentence of 3-4 years imprisonment, 1 of 8-10 years, and 21 10 years or more. The data excluded Martin Bryant’s twenty 21-year sentences, and shows the maximum sentence as 10 years. 21 of the 23 attempted murders were Martin Bryant. There were 100% custodial sentences imposed.

Manslaughter in the 1990-2000 period amounted to a total of 26 counts. The minimum sentence was 9 months, and the maximum was 10 years. There were 100% custodial sentences imposed.

Death by Dangerous Driving

The good news is that compared to the 1978-1989 period, where 30 offences were recorded, in the 1990-2000 period, only 14 DDD offences were recorded. The minimum sentence was 6 months and the maximum was 2 years. This may have increased significantly in the 2000-2010 period, considering public opinion and perceived prevalence and seriousness of the offence.

Sex Offences

Single counts of rape in the 1990-2000 period totalled 27. The minimum sentence was 6 months and the maximum sentence was 8 years. The custodial percentage is not available.

Sexual intercourse with a young person totalled 12 single counts in the 1990-2000 period, with a minimum of 2 months and a maximum of 12 months.

Aggravated sexual assault in this period was recorded as 1, 2, 3-4, 5-9 and 10 or more counts. For one count, the custodial percentage was 91% with a minimum of 2 months and a maximum of 18 months. For 10 or more counts, the custodial percentage was 100%, with a minimum of 12 months and a maximum of 5 years. The total number of cases was 42.

A single count of indecent assault in1990-2000 attracted an 87% custodial rate, with a minimum of 1 mount and a maximum of 12 months. There were 41 cases.

Incest had a total number of 16 cases varying between 7 cases of 1 count, 3 of 2 counts, 4 of 3-4 counts, and 2 of 5+ counts of incest. The minimum for 1 count was 4 months, and for 5+ counts, 15 months. The maximum for 1 count was 2 years and for 5+, 5 years. The custodial percentages were 78% for 1 count and 100% for 5 or more.

Maintaining a sexual relationship with a young person was introduced as an offence in 1994. The data for the 1995-2000 period indicates a total of 21 cases, 15 of 1 count, 4 of 2 counts, and 2 of 5+ counts. The minimum sentence for 1 count of maintaining was 3 months, and the maximum 5 years. For 5+ counts, the minimum was 3 years and the maximum 5 years. The variation with maintaining arises from the multitude of circumstances in which maintaining offences arise. This can include a 19 year old with a 16 year old in an ostensibly consensual relationship to situations where a much older, trusted figure, often familial, abuses their position of trust to assault unconsenting young children or teenagers.

Violent Crimes

For one count of GBH in the 1990-2000 period, the maximum imposed sentence was 5 years, the minimum was 4 months, and there were 33 offences in total. The custodial percentage was 97%. For wounding, the total number of offences was 63, the minimum sentence was 1 month and the maximum 2 years. The custodial percentage was 84%.

Aggravated assault in the 1990-2000 period was a total of 24 single counts, with a minimum of 1 month’s imprisonment and a maximum of 12 months. Single counts of assault in the 1990-2000 period totalled 179, receiving 14 days minimum sentence, and 18 months maximum with a custodial percentage of 78%.

Robbery

Aggravated armed robbery statistics in the 1990-2000 period consisted of 79 cases, in which the minimum was 3 months imprisonment and the maximum 5 years. The custodial percentage was 98%.

For armed robbery, there were 101 cases, with a minimum of 3 months and a maximum of 8 years with a custodial percentage of 94%.

Aggravated robbery attracted an 83% custodial percentage on 45 cases, with a minimum of 3 months and a maximum of 5 years. Robbery, with 50 cases, had a minimum of 1 month and a maximum of 2 years and 6 months, with a 93% custodial rate.

Crimes of Dishonesty

One count of stealing in the 1990-2000 period constituted a total of 85 cases, with a minimum of 1 month imprisonment and a maximum of 2 years, 8 months. Where there more than one count, the maximum was 6 years, where there were upwards of 21 counts. The median for one count was 6 months, and for more than one count in total the median sentence was 12 months.

Acquiring a financial advantage received a custodial rate of 88% in the same period. Single count cases were a total of 36, while the maximum was 18 months and the minimum 2 weeks imprisonment. The median was 9 months.

Receiving, in this period totalled 55 cases, with a minimum of 1 month and a maximum of 18 months. The median was 4 months.

There were 33 cases of one count of burglary and stealing in the 1994-2000 period. The minimum sentence was 1 month’s imprisonment, the median was 4 months, and the maximum was 12 months, with a 73% custodial rate.

Aggravated burglary in the same 1994-2000 period amounted to 13 cases involving one count, with a minimum sentence of 3 months’ imprisonment, a median of 12 months and a maximum of 2 years 6 month. The custodial percentage was 86 per cent.

Restraint or restraining orders

Section 106B of the Justices Act 1959 provides for the application for and approval process of restraint orders. There are four categories of people who may apply for a restraint order: police officers, a person against whom behaviour was directed, or who is a parent or guardian of a child against who behaviour was directed; a guardian or administrator under the Guardianship and Administration Act 1995, or a person granted leave to apply.

An application for a restraint order is made to the Magistrates Court, and the matter is heard and determined (decided) by a Magistrate. The application form is a 48a form and is available on the Magistrates Court website, which also provides advice on Restraint Orders for all parties involved. The Magistrates Court site provides valuable information for both the person applying for the order (the applicant) and the person against who the order is being sought (the respondent).

Behaviour liable to a restraint order

There are four categories of behaviour in a person that may give rise to a restraint order against them:

1. A person has caused person injury or damage to property and that person, without the restraint order in place is likely to cause damage or harm again.

2. A person has threatened to cause personal injury or damage to property and that person, without the restraint order in place is likely to carry out that threat.

3. A person has behaved in a provocative or offensive manner, this behaviour being likely to lead to a breach of the peace, and without the restraint order in place is likely to behave in such a manner or similar manner again.

4. A person has stalked the applicant, or the person whose benefit the application is made, or has stalked a third person, causing the applicant/beneficiary of the restraint order to feel apprehension or fear.

The Magistrate must be satisfied on the balance of probabilities of the existence of the harm, threat, stalking or behaviour. The balance of probabilities is a lower standard of proof than that of beyond reasonable doubt, the criminal standard of proof when a court considers guilt or innocence.

 

There are two types of restraint order - interim (temporary) and final orders. Interim orders are available where there is a sense of urgency in protecting the applicant or beneficiary of the order from the conduct of the person against whom the order is sought. The difference between interim and final orders is that interim orders can be made before the respondent is notified of the application, meaning that they may be in breach of the order without knowing it. Respondents are notified as soon as possible, and interim orders usually only last until the next stage of the hearing process for the final orders to be made.

A further resource to the excellent resources on Restraint orders on the Magistrates Court website, is the Women's Legal Service fact sheet on restraint orders. If you are considering a restraint order please contact the Tasmania Police and seek legal advice.

Public opinion and sentencing

Don’t believe everything you read, hear or see in the media about crime. Stories of crime, graphic physical or sexual violence, violations of privacy and home security are all far more likely to move newspapers or magazines than the stories that statistics tell: crime is not increasing, humans are no more brutal with each passing year than they were the year before, rehabilitation decreases criminal behaviour, and courts are not letting criminals roam the streets just for fun.

There are isolated incidents where shocking crimes happen because a person has been released from imprisonment – the rape and murder of Jill Meagher in Victoria is a recent and tragic example. But, overall, the types of crime of which we are afraid – violence to the person or a violation of our privacy and belongings by a stranger, happen very infrequently.

The criminal justice system is not in place to sentence a person to transportation for life because they stole a lace handkerchief, or stole your television. Nor is it meant to keep people locked up forever just because they are difficult people for most people to like. The criminal justice system is in place to give just punishment, and provide opportunities in prison to rehabilitate, in the hopes that it will prevent further offending. Unjust penalties are likely to cause more crime. Wouldn’t an unjust penalty make you feel badly treated, and less likely to fall into line with whoever punished you?

The ideas that underpinned old systems of punishment have given way to new theories, and new ideas about how to prevent crime. The criminal justice system is meant to deliver justice tempered with mercy. And in sentencing, a judge will take into account the circumstances of the offence and the offender to decide a fitting punishment. Sometimes, rehabilitation will be a significant factor, other times retribution will be the primary focus.

Generally, there is a low recidivism rate amongst offenders. Obviously, this is not always the case. Some people will always want to reoffend, or circumstances will bring about a high chance of reoffending. Some reoffending, such as theft or petty crimes, even family violence – result in suspended penalties, fines, community service orders, in an attempt to keep low-level offenders out of the criminal justice system. But some reoffending is of such a nature and magnitude that the State cannot risk reintroducing the offender into the community. This is why Tasmania, and most other Australian States and Territories, have dangerous criminal legislation, which allows for the ongoing detention of offenders who show no sign of rehabilitation or reintegration and continue to pose a threat to the community.

For most other offenders, ongoing detention is not going to be fair. It is easy to class someone according to the crime – ‘oh, he is a rapist’ or ‘she is a murderer’ or ‘he is a drug dealer’. But the fact is that very few people convicted of a serious offence go on to reoffend. Reoffending, otherwise known as ‘recidivism’ is only a low percentage – sometimes as low as 3 per cent of offenders.

When talking about habitual criminals it is easy to say ‘we should lock them up and throw away the key!’ Well, the fact is that there are some habitual offenders who have been “locked up” indefinitely. But in Tasmania, with a population of a half million there are only 6 dangerous offenders. Nearly all of these are sex offenders.

The ideals of liberty, justice and reason require our criminal justice system to treat people fairly; a person cannot be sentenced to a punishment that does not fit the crime. But, at a point, the liberty of that one individual becomes less important than the liberty of the community and the interests of the state in imposing law and order – this is where dangerous offender legislation becomes important and people may be locked up indefinitely (although we do not throw away the key). We will discuss “dangerous offenders” later.

The point that this section is trying to make is this: don’t be fooled by the idea that “criminals” need to be harshly punished to deter them. The harshness of the penalty has no real relationship with deterring offending. A recent European report found no correlation between decreases in crime rates and punitiveness across the Western world. America and Switzerland, Australia and the Netherlands all had a similar decrease in crime despite huge differences in approach to punishing criminal acts.

Nor are “criminals” so different from you and me. Have you jay walked? Have you driven above the speed limit? Have you thought you could drive home with that one drink under your belt? Have you accidentally left a shop with an item but never returned to pay for it? Have you ever had an argument that ended with a physical confrontation? Everyone commits a criminal offence at one time or another. Some people just make bigger mistakes, or make worse decisions. But they are still people, and our society must continue to treat them as people.

A factor that is easy to forget when we are considering punishment for crime is the stress and mental anguish that the trial and court process can cause to defendants. If a young man commits an out of character violent offence, is sincerely remorseful, pleaded guilty at the earliest stage, and has a bright future of service to his country ahead of him, should a Court consider retribution above his capacity to be rehabilitated by a court’s leniency? For some people, particularly first offenders who have committed a one-off, out-of-character offence, exposure to the criminal justice system is enough of deterrence.

The tough question: what if it just doesn’t seem enough?

There are some crimes that are very difficult to approach without deep emotional response, particularly crimes against children. Crimes like these make people ask what the criminal justice system really does to punish someone – to bring justice.

If a man sexually assaults his daughter from when she is just a five year old girl until she is old enough to tell him that she’ll kill him if he ever touches her again, what can the criminal justice system really do to make that father pay for the harm he has done to his daughter. The answer will vary, depending on your perspective. The system can never really make an offender pay for that harm. Justice cannot reach so far as to heal the wounds that are caused by the type of interpersonal crime such as the rape of a child. Whatever the justice system does to an offender, it cannot take away what that person has done. In some ways, justice can never be done for certain types of offence, particularly interpersonal crime, such as domestic violence, assault, rape, robbery, murder.

Why can’t the criminal justice system make a person “pay” in terms of an eye for an eye? It is because the system can only punish according to the system, and that system has principles that guide the penalties that can be imposed. Imprisonment, fines, community service orders, rehabilitation, probation orders – all of these can take time or money from an offender, but can also be oriented toward preventing more crime.

Contrary to what you may believe, many offenders are remorseful for their crimes. Many offenders feel shame or guilt, and do not go on to reoffend. Nor is offending simply because a person is a bad person. Many social, economic and personal factors can contribute to offending behaviour, including mental illness. How the justice system responds represents how we as a society respond, and if the justice system responded with an eye for an eye then we would be committing the same acts, but simply calling it by a different name. The system would perpetrate criminal acts for the purpose of “Justice”. There may never be punishment enough for some offences, but we cannot exact a price from another human being for vengeance. Justice and vengeance are not the same.

Parole and Probation

Contrary to popular belief, most offenders do not reoffend. Recidivism rates depend on the offence and category within the offence group, whether the offender is a first time offender, or a repeat offender already, and also the age of the offender. Of course, recidivism data is not entirely reliable, because some offences go undetected or unreported and recidivism data is based either on reconviction or rearrest rates. Self-reporting of reoffending is also unreliable as some self-reporters may exaggerate, or misrepresent their reoffending in other ways.

Parole is the release of the offender from custody, with a set of conditions, after having served less than their full sentence, but having served their minimum non-parole period or longer. 

Sentencing Policy

Federal and State similarities

If you are convicted of a federal offence, that is – an offence created by Commonwealth statute, you will be sentenced under the federal Crimes Act, which contains sentencing principles of federal offences.

State based offences, traffic offences, interpersonal violence (assaults), domestic violence, sex offences, and most other offences you can think of, will fall under the Sentencing Act 1997 (Tas).

Sentencing Advisory Council

The Tasmanian Sentencing Advisory Council is a Tasmanian body that advises the Tasmanian Attorney-General on sentencing issues. To date, the Council has published Advice on sentencing issues around assaults on emergency workers and arson. These reports resulted in changes to legislation.

Currently, the Sentencing Advisory Council is working on four projects – sex offence sentencing, family violence sentencing, a Tasmanian sentencing database and the impact of conviction/non-conviction.

On the Council are several eminent academics and members of the criminal justice system, including Emeritus Professor Arie Freiberg OAM, Professor Kate Warner OAM, author of the seminal textbook on sentencing in Tasmania, Sentencing in Tasmania and Professor Rob White, author of Crimes Against Nature, a textbook on environmental crime. Other members of the Council are distinguished members of the Police Service, the Office of Public Prosecutions, and the Tasmanian legal community.

There are Sentencing Advisory Councils in Victoria and NSW; the Council in Queensland was dissolved. There is also a sentencing council in the UK, which has responsibility for providing sentencing guidelines for UK courts.

Resources

Tasmanian Sentencing Advisory Council: http://www.sentencingcouncil.tas.gov.au/

Kate Warner, Sentencing in Tasmania 2nd edn, Federation Press 2002 Annandale

An excellent online resource is the Comments on Passing Sentence database: http://catalogues.lawlibrary.tas.gov.au/textbase/SentSearch.htm 

Prison and Prisoners

Effect of Criminal Conviction

What Records are Kept?

The police department has an Information Bureau which records all court appearances, arrests and convictions for offenders 14 years and over, and for juvenile offenders under 14 years. These include traffic convictions.

Separate records are kept of juvenile offenders by the Information Bureau and the Department of Health and Human Services.

How Long are the Records Kept?

The information on a person's criminal history remains permanently on record. However, if a charge is dismissed, this charge will not appear on the criminal record, although it does appear on the record of convictions provided to a Court when a person appaears before it, and fingerprints will be destroyed automatically if there are no other criminal convictions.

Disclosure of Criminal Records

The Commissioner of Police is only permitted to release information of a person's criminal record on the request of a police officer or to a person or their lawyer in very limited situations, at the discretion of the Police Commissioner, to authorised public bodies (Education Department, Justice Department).

Upon such a request in writing, the Information Bureau normally releases a summary of the criminal record. Employers and volunteer organisations are increasingly requesting a copy of the criminal record of candidates. The organisation usually provides a request form for the candidate in order to request a copy of their record.

Disabilities Resulting from Conviction

In addition to whatever sentence is imposed for an offence, the offender will generally suffer further disabilities as a result of the conviction. The relevance of a conviction may reduce as time passes and the Anti-Discrimination Act 1998 (Tas) (s16(q)) prohibits discrimination on the grounds of irrelevant criminal convictions. The following are disabilities of certain convictions:

  • Voting. Whilst serving a sentence of imprisonment for one year or longer, a person loses their voting rights.
  • Offences committed by migrants. An immigrant who has been sentenced to more than 1 year's imprisonment and who has been in Australia for less than 10 years may be deported.

Employment in the Public Sector

A criminal conviction may affect a person's ability to obtain or retain employment in the public service.

Licensing/Registration

Many professions require that a person be licensed (e.g. auctioneers, travel agents, builders, motor dealers) or registered (e.g. medical practitioners, nurses, dentists, opticians). The person to be licensed must generally be either ‘of good fame or character’ or ‘a fit and proper person to hold a licence’, depending on the wording of the relevant Act. The appropriate registration board may refuse to register a person who has been convicted of a crime or a misdemeanour. It may revoke the registration of a person who has been convicted of such an offence or who is not ‘of good character’.

Restitution of Property

A convicted person can be ordered under the Justices Act 1959 (Tas) or Criminal Code or Sentencing Act 1997 (Tas) to:

  • make restitution of property;
  • pay costs;
  • pay an award of damages arising out of the commission of the crime.

Other Disabilities

Having a criminal conviction may affect a person's chances of obtaining insurance on property.

Prisoners and People in Custody

Classification of Prisoners

The Director of Corrective Services to establish a Classification Committee for the purpose of classifying prisoners. Prisoners are classified according to their age, character, offence, previous history and sentence.

The major principle when classifying inmates is that they be placed on the lowest level of security for which they qualify, taking into account the needs of the individual inmate while at the same time ensuring their safe custody. Most inmates are initially classified as maximum security on entry into custody. Some, such as fine defaulters, who are obviously not a security risk can be classified medium or minimum. Inmates are reclassified as soon as practicable after being sentenced when they may be reduced to a lower level of security or remain at maximum. They are reconsidered at intervals of approximately 6 months or earlier on application.

Classification Committee (‘Classo’)

The Classification Committee will decide on the prisoners classification. There are three levels of security. The following are the minimum standards of management which apply to each level. In many circumstances the degree of supervision and control will be higher than that set out below.

Maximum

Inmates in this category are subject to high levels of supervision in an environment which provides for direct and coercive intervention, if required, to maintain safety, security and good order. They are detained within substantial barriers except when under escort by two officers.

Medium

Inmates in this category are locked in cells at night. During the day when on prison property, they must be sighted by an officer at intervals not exceeding 30 minutes. When off the property they must be under ‘line of sight’ supervision.

Minimum

Inmates in this category are locked in cells at night. During the day they are required to be subject to occasional supervision and are required to work in specific locations. They are required to report to a designated place at designated times.

Categories of People in Custody

Detainees

A detainee is a person detained in lawful custody other than under a sentence of imprisonment, irrespective of the cause of imprisonment. Detainees come within a range of categories.

Persons Arrested

Once arrested, a person can be held in custody. In Tasmania, police officers usually have the right to grant bail to a person without having to bring such person before a justice of the peace or a magistrate. In relatively minor cases, this is usually done. However, in more serious cases, and where there has been an arrest, or an arrest on warrant, the police will not themselves grant bail. In such cases they are required to bring the person before a Magistrates Court "as soon as practicable” (s4Criminal Law (Detention and Interrogation) Act 1995 (Tas)).

During this period, before either police bail, or the court appearance, a person is held in custody (usually at the police station cells) as a detainee. Provision is made for a Magistrates Court to be held on a weekend in the major centres, to deal with detainees, though the court can sit at any time if need be.

Persons Remanded in Custody Pending Trial

Persons are quite often refused bail during the period awaiting trial. Persons on very serious offences such as murder fall into this category. Others may be refused bail because they have failed to turn up at court to answer their bail on a previous occasion, breached their bail conditions or are believed to be likely to re-offend while on bail. Such persons are required to appear before the court at least once every 28 days (ss58(2) & 74B(2)Justices Act 1959 (Tas)).

Persons Remanded Pending Sentence

In many instances, once a person has been convicted, the court may remand a person in custody whilst the question of penalty is considered, and where necessary, probation or psychiatric reports are obtained. The period is usually for several weeks. During that period, a person is held on remand as a detainee.

Persons Subject to Extradition or Deportation

Persons can be detained while awaiting proceedings for their extradition to another state or a foreign country to answer to charges there, or for their deportation if they are illegally in Australia.

Mentally Ill Prisoners

Persons found unfit (by reason of a mental condition) to plead, or who have been found not guilty by reason of a mental disorder, are detained (within Wilfred Lopes Centre) pending a decision of the Attorney-General as to any transfer to another institution, or to continued detention within the prison complex. The Wilfred Lopes Centre and the Women's Prison are Special Institutions under the Mental Health Act 1996 (Tas).

Children

Under the Youth Justice Act 1997 (Tas) persons under the age of 18 can be detained in prison, but usually are remanded into the care of the Director of the Department of Health and Human Services, and kept at ‘Ashley’, an institution operated by the Department near Deloraine. A person under 18 can only be detained in an adult prison with a special court order on the grounds of exceptional security requirements.

Provision is made under the Corrections Act 1997 (Tas) (s25) to allow a prisoner’s child to live with the prisoner in prison provided it is in the best interest of the child and it does not pose a risk to the child or security of the prison. This rarely occurs in practice.

General

Male detainees are kept in the Hobart Remand Centre, which is a separate complex next to the Magistrates Court in Liverpool Street Hobart, unless the detainee requests to be transferred to Risdon. There are no separate facilities for detainees within the Women’s Prison because of the small number involved.

A detainee is not required to wear prison clothing unless they desire to do so. A detainee is not required to work but may request to be so permitted. In such a case the person shall wear prison clothing (s29(d)) which is suitable for the climate and work undertaken. They are then entitled to receive earnings for work and to participate in prison programs. A detainee may be allowed to spend money belonging to them for purposes approved by the prison.

Prisoners

A prisoner is a person detained in lawful custody under a sentence of imprisonment. In Tasmania, most persons under detention are prisoners.

Prison and Mental Disorders

Where a jury has found a person to be incapable of standing trial, or has acquitted a person on the ground of insanity, the trial judge shall order that the person is liable to supervision under Part 4 of the Criminal Justice (Mental Impairment) Act 1999 (Tas) (s21). The person then becomes subject to the provisions of the Mental Health Act 1996 (Tas)  and a review of any period of detention is the responsibility of the Forensic Mental Health Review Tribunal.

In most cases, males are detained in the prison hospital in the Risdon maximum security facility, and women in the women’s prison. The release or transfer is the responsibility of the ‘controlling authority’.

Women in Prison

The number of inmates within the women’s prison varies on average between five and 40. Because of the smaller number of persons involved, the procedures - although similar to the male prison - are more relaxed and greater scope is given to individuality, especially in the areas of dress, movement and contact visits. However the downside is that the women’s prison is only a fraction the size of the men’s prison and women are much more constricted in terms of exercise and work.

Going to Jail

Everyone entering jail as a new prisoner will still be in a psychological state of confusion and trauma resulting from the imposition of a sentence, or the refusal to grant bail. The prisoner steps out of the van, which is already inside the prison walls. The sound of a series of gates closing behind the van heralds the stark reality that freedom has been lost. Everyone entering prison should fully appreciate that the reason for their detainment is to punish. The comforts of freedom need to be abandoned. Inmates must prepare for a culture shock.

On reception at the prison a prison officer takes and records name, age, weight, height, a description of general appearance and distinguishing marks. In addition a photograph is taken. Details of the next of kin, together with a contact telephone number is obtained. The prisoner will be questioned on matters of health. If there are, or have been, suicidal tendencies, the person may spend time in the prison hospital under observation, before being allocated a cell in the main prison area. The reception also includes a medical assessment by a member of the Forensic Mental Health team. This includes taking a person’s medical history and requesting their medical records from that person’s GP or other doctors.

In the reception room the prisoner is stripped of all personal possessions including (unless they are a detainee) clothes. Most personal items would have been previously confiscated by officers of the court prior to the transfer to jail. A detailed inventory must be kept of all the prisoner's confiscated property (other than perishables) and returned to them on release. The prisoner is searched, can be required to bathe, and is subject to medical examination, usually the following day.

Prison clothing and items of bedding are issued, together with a ration of toiletries. Prior to a canteen being available, the inmate has to rely upon the handout of soap and razors to shower and shave and to wash certain items of clothing for perhaps a fortnight. The prisoner is then conducted to a cell.

Learning the Rules

Within the first 24 hours, a male prisoner learns:

  • to call security officers, chief Custodial officers and officers of higher rank "Mr". Custodial officers are generally referred to as "Boss";
  • to obey all orders;
  • not to enter another’s cell;
  • to rise immediately on the first bell, dress as required and to make up the bed in a set manner;
  • to shave daily, unless permission is gained for a beard;
  • to parade immediately upon demand and to remain silent during muster;
  • to march in line to and from meals?;
  • to shower in accordance with a set timetable;
  • to live life according to a rigid set of times and rules.

For many first-time prisoners, the worst time is at evening muster when they stand just inside the cell door, and wait as each door is firmly shut and then locked.

Psychology of the Procedure

Loss of identity is one of the psychological effects of the procedure. The change of identity is emphasised by the nature of the admission process, the loss of personal possessions, the clinical and indifferent manner of recording personal details, and the search. The process can destroy the individuality of the prisoner. The process is similar to that employed in ‘recruit training’ within military organisations. The desired end result is the same - a loss of identity, an acceptance of group identity and an amenability to discipline. This is intended to result in an orderly prison life. Unfortunately, prison does not offer the corresponding positive values of a military structure — self esteem, a sense of loyalty and pride in the purpose of the system.

Peer Pressure

The new prisoner becomes subjected to the dos and don’ts of the prison culture. The peer group influence tells the new inmate that they are a ‘crim’, and that the officers are ‘screws’. A prisoner tries to conform as once the label of ‘suspect’ is put on a prisoner by inmates they lose touch with the rest of the inmates.

Once a prisoner accepts the role of a ‘crim’, and is accepted by the other ‘crims’, the new inmate finds a new self-identity by seeing themselves as part of the prison community. Staff/inmate relationships are such that some rapport is possible between the two groups.

Some prisoners are not accepted into the prison culture, although non-acceptance is rare. In most cases, non-acceptance is connected with the type of crime committed by the prisoner, especially homosexuality and sexual offences involving children. Non-acceptance can also come about by breaking the code of the prison culture.

Given all of this, the pressures on a new inmate to conform with the code are enormous, because it is very hard to live in prison as an independent individual, not only because of the way the person is treated by the prison community (staff and inmates) but also because of the individual’s need for acceptance and identification.

Classification

All prisoners entering jail for the first time do so as maximum security inmates. Within a day or two a classification committee comprising jail personnel will assess their suitability for work. A person's status is open to review by the committee, which, if appropriate, can change a prisoner's rating from maximum to either medium or minimum.

Fellow Inmates

A new prisoner cannot expect much assistance from fellow inmates during their settling in period. The jail mentality (both inmates and authorities) is to learn and survive by oneself. A new inmate will have no friends. A feeling of loneliness is ever present. It is fair to say that there are few friends in jail, only acquaintances. Prisoners surround themselves with inmates of like understanding and interests and feel comfortable with this existence.  A new inmate is regarded as an outsider and needs to earn respect and approval to be accepted by a group. It is highly desirable to ‘do one's time’ with minimal agitation. In addition to obeying all rules and work orders this is best achieved by respecting the privacy of others, by not violating other inmate's possessions and by doing twice as much listening as talking.

Clothing

Part of the clothing which the prison provides consists of shirts and trousers which are laundered each day. The quality and appearance of the apparel is not high and prisoners may find it an embarrassment to wear.

Violence

The median age of prisoners is becoming younger, and fellow prisoners may be aggressive and anti-social. Violence is not a regular part of prison life but problems are occasionally settled by conflict. Such conflicts revolve around the younger community within the jail. The problem for a prisoner is how to respond to violence. Given that the ability to overcome violence by a greater use of violence is not present in most inmates, one option is to inform and bring the matter to the attention of the authorities. Given that this is against the prisoners' code, there are inherent risks associated with this solution. In most cases it is resolved by an acceptance of fate and the adoption thereafter of a low profile.

Of equal concern to the system is male sexuality. Because of the age grouping, sexual release through homosexual contact may occur. Despite all systems of surveillance in prisons consensual sexual activity may occur.

Family

The imprisonment of a person can result in serious repercussions for family members. Just as jail is traumatic for the prisoner, so it is that others similarly suffer. The sight of a person being led from the court handcuffed, destined for prison, and of the family unable to have any contact is emotionally overwhelming for both. The impact of being disassociated can lead to similar emotions that the prisoner experiences — anxiety, stress, loneliness etc.

Imprisonment can have a financially devastating effect on a family, particularly if the prisoner was the bread winner. Each party in its own way suffers helplessness. It becomes a horrifying event for family and friends to visit an inmate within the precinct of jail. The situation is further exasperated by the loss of physical contact.

Contact visits now occur every weekend and by request during the week. Visiting helps to adjust to the deprivation and assists in keeping the family unit together. Positive attitudes from both sides on visitations or through letter writing help alleviate foreboding associated with incarceration.

Prison

Prison Structure and Administration

There are a number of prison institutions in Tasmania.

  • Risdon Prison (maximum, medium and low security)
  • The Women’s Prison at Risdon
  • The Wilfred Lopes Centre and other forensic mental health facilities
  • Hobart Remand Centre (generally for short term remand and reception prisoners).
  • The Launceston Prison (for short term remand and reception prisoners)

The Burnie Remand Centre is proclaimed as a prison but is only used on a daily basis for people attending trials in Burnie. Prisoners and detainees attending trials in Devonport and Burnie are conveyed to Launceston for overnight detention.

Prisons in this state are administered under the Corrections Act 1997 (Tas) and the Corrections Regulations 2008 (Tas). The administration of the prison is the responsibility of the Director of Corrective Services who also has the title of General Manager, Corrective Services Division. The Director is appointed by the Governor under the provisions of the Corrections Act. The Director also has the power to make Standing Orders for the management and security of prisons and for the welfare, protection and discipline of prisoners. References to sections or regulations will normally be to the Corrections Act and Regulations.

The Director in fact can exercise all of the powers under the Corrections Act, but in practice the day-to-day management of the prison system rests with the General Manager, and of individual prisons with the Managers. The actual structure of the administration is hierarchical and in many ways is similar to a military or police institution. Police officers are also vested with all of the powers of a prison officer.

Range of Prison Institutions

For the purpose of segregation, Corrective Services operates the following institutions.

  • Risdon Maximum Security Prison for male inmates.
  • Women's Prison for maximum to minimum security inmates.
  • Wilfred Lopes Centre for maximum to minimum security inmates.
  • Risdon Medium Security Unit for medium security male inmates
  • Ron Barwick Prison for minimum security male inmates.

The maximum security prison is subdivided into a number of accommodation divisions and workshops which allows segregation of inmates for protection and other particular needs. Many medium and even minimum security prisoners may spend time in this prison.

Transfers between Institutions

It is the responsibility of the General Manager to allocate inmates to prisons after they have been classified. There are many reasons why transfer to a lower level of security may not occur immediately after classification.

It is sometimes necessary for inmates to be held in an institution of a higher security rating whilst waiting for a vacancy in a lower level or if particular programs in which they are enrolled are only available in that institution. Another example could be that an inmate may be completing medical treatment which is only available under close supervision of the Prison Hospital. Transfer will normally take place as soon as all the necessary conditions have been met.

Prison Facilities

Medical Treatment and Examination

The prison is obliged to supply, at public expense, such medical attendance and treatment as is necessary for the preservation of health. In practice, this means an attendance of a doctor at the prison hospital. A prisoner cannot obtain treatment by a doctor of their own choosing, or at their own expense.

The Corrections Act and Corrections Regulations allow a person nominated by the Director to "cause food to be fed to a prisoner or detainee" where a medical officer certifies in writing that the prisoners failure to eat is endangering the life and health of the prisoner (Reg 9).

Library

A prisoner or detainee is entitled to use the prison library at least once a week. It has not been determined by the Courts as to whether this is counted as a privilege which can be withdrawn although it is treated as such.

Recreational Activities

Prisoners are permitted, as a privilege, to keep a radio and/or television receiver within their cells. These privileges can be withdrawn. The male prison has a debating group, football and cricket teams who compete against outside organisations, together with a range of other sporting activities. Some sports equipment (for example, nets, volleyball, table tennis) is available.

A range of educational classes is also available (such as literacy classes, arts and craft, etc.). Prisoners can also sometimes study for secondary or tertiary qualifications by doing correspondence courses.

Employment

A prisoner must do work suitable to their physical and intellectual capacity (s33). Prisoners must be paid for work at a rate determined by the Director. At present prisoners are paid in accordance with a graded scale that begins at $5.00 per week and ends at $44.00 per week not cewrnot Nofor inmates employed in certain positions. There are numerous employments available.

Earnings from work can be:

  • allocated to dependants;
  • used for the purchase of necessities;
  • used for the purchase of clothing and other items immediately before release;
  • used to pay for educational expenses;
  • used to pay for special medical or dental treatment not payable from public moneys.

The Act says that money can also be used to satisfy ‘judgment debts’ (s34(3)).

A ‘detainee’ is not obliged to work but may be allowed to do so if they request it.

Work in the male prison is varied. There is a metal and woodwork shop (where some training is given), a paint shop, bakery, kitchen and laundry. There is provision for the employment of an industrial supervisor and trade instructors.

Interstate Transfer

The Prisoners (Interstate Transfer) Act 1982 (Tas) permits the transfer of prisoners to or from another State. A prisoner may be transferred on welfare grounds or legal grounds. There is no appeal against a refusal to transfer on welfare grounds. A decision is not reviewable by a court or tribunal. A request need not be considered if it is made within one year after a similar request was made by the prisoner. Parole and prison reports form a significant part of the formulation of the opinion.

A similar provision exists in relation to a prisoner who is the subject of an arrest warrant issued in another state. The procedure whereby prisoners, and other persons, are transferred in these circumstances is known as ‘extradition’.

Prison Discipline

A person in prison is subject to the same legal requirements as anyone else in Tasmania. A crime or offence committed inside a prison is a crime punishable under the same laws as apply outside. Of course it is not so easy for a prisoner to take action when they are the victim. In addition, however, prisoners and detainees are subject to special sets of rules.

The Director can reduce the sentence of a prisoner by one third so long as this does not reduce the sentence to less than three months. Remission is granted almost as a matter of course. Prisons throughout the world use the remission system as a method of maintaining order and discipline within their systems. Remissions are not the product of a concern for prisoners, but a carrot and stick method of control. Because of this, it is important to remember that what is regarded as cheekiness, high spirits, dumb insolence on the outside can have an effect on a prisoner’s release date.

A record is kept of ‘misconduct’ of each prisoner and detainee, and the contents of that record must be considered when computing the amount of remission to be granted to that person. However, as a matter of practice, a reduction of remission is reserved for only the most serious offences and is used sparingly.

There is a requirement that orders be obeyed promptly. In the event that a person believes that a particular order given by a prison officer is wrong or unfair, that person is required to obey the order, and only afterwards may complain to the Manager about that order.

Offences committed in prison

These are contained in Schedule 1 of the Corrections Act, and are made pursuant to section 58 of the Act. They are far reaching in extent. Some examples of offences include mutiny, being idle or negligent at work, cursing, feigning illness and maiming, injuring or tattooing oneself or another.

Standing Orders and Rules

The Director has the power to issue standing orders (s6(3)) and they can be varied whenever desired. It is an offence to contravene these orders.

Standing orders apply essentially to staff.

Standard Operating Procedures (formerly Prison Rules)

These procedures cover the general routine of prison life. They provide for duties on getting up in the morning, cleaning duties, prohibition about entry of cells, mustering, times of silence, obedience to orders and so on.

Searches

A prisoner or detainee must be searched on admission and immediately before discharge. They may be searched at any other time in any manner the officer in charge considers necessary. Cells are required to be searched before the person is accommodated in that cell, and at such other times, as the General Manager considers necessary. Any unauthorised article found during the search is confiscated.

Penalties for Prison Offences

The penalties that may be imposed on a prisoner or detainee are set out in section 61. They include:

  • Loss of privileges for not exceeding 90 days in the case of contact visits and 30 days in any other case.
  • A period of separation from other prisoners not exceeding 30 days. This will normally mean a stint in Division 8, Risdon’s punishment wing where conditions are particularly harsh.
  • Deduction from prison wages or allowances to pay for any damages to property loss, or all or part of remission.

Weapons

A Corrections officer may use firearms against a person escaping or attempting to escape. They are not permitted to do so unless they have reasonable grounds to believe that they could not otherwise prevent the escape.

Firearms may be used in cases involving a combined break out, or an attempt to break open a door or gate. They may also be used where violence is used against a person "if that person has reasonable grounds to believe that the other person is in danger of life or limb, or that grievous injury or harm is likely to be caused to him or her".

A warning to stop and that a firearm will be used, must be given before the weapon can be discharged.

Prisoners' Rights

A prison is a place of detention and it is understood by society that the rights of inmates should be limited. However, there is an acceptance that the detention should be conducted with a degree of humanity and fairness and section 29 of the Corrections Act 1997 (Tas) sets out an extensive list of rights that prisoners retain whilst in custody. Some of these are outlined below.

Complaints

A prisoner who wants to see the Manager, an official visitor or chaplain may apply to the officer in charge of the Division. If the need to speak to the Manager is urgent, the prisoner may ask the nearest Custodial officer.

Ombudsman

As well as investigating complaints against police, the Ombudsman also has a special role in investigating complaints by prisoners. For more details on the Ombudsman see the relevant section.

Legal Advice

There is no entitlement to legal representation when a prison charge is being dealt with by a disciplinary officer.

A legal practitioner may at all reasonable times interview a client in accordance with procedures determined by the Director (s16, Corrections Act 1997). In practice, lawyers are given access to persons in interview rooms situated in the main yard without the presence of a prison officer.
The Hobart Community Legal Service operates a regular Prisoners Advice Service which provides general legal advice and referral, with respect to general legal issues (i.e. not relating to the offence for which the prisoner is in jail). An officer from the prison programs unit will contact the Service or the prisoner's lawyer if requested by a prisoner.

There is also a newly established Prisoners Advisory Service, established by barristers from Michael Kirby Chambers in Hobart and Australian Lawyers for Human Rights. This Service began operation in late 2012 and holds a monthly clinic for prisoners. It involves law students from the University of Tasmania working with lawyers to assist prisoners with parole applications.

There is no limit to the number of letters a prisoner or detainee may send to or receive from a lawyer.

Voting

Under the Commonwealth Electoral Act 1918 (Cth)  a person who is serving a sentence of imprisonment of three years or longer is not eligible to vote in Commonwealth elections (s93(8AA)). No prohibition exists for state elections.

Religion

On admission a person must be given the opportunity to state their religion or religious denomination. Such statement must be recorded. A person is entitled at all reasonable times to practice the rites of religion, and to receive religious guidance from a chaplain or responsible member of such religion or religious denomination (s29).

Correspondence

Letters and other forms of communication with the outside world are an important lifeline for the prisoner. A prisoner may write to friends and relatives uncensored, provided the letters are not of a threatening or harassing nature (s29). The prison may deduct money from the earnings of a person to cover the cost of postage of extra letters. Correspondence both in and out may be read by an authorised Corrections officer. Correspondence both in and out may be withheld (s29(2)).

Section 29 rights

Section 29 gives the following rights to prisoners and detainees:

  • the right to be in the open air for at least an hour each day (if facilities allow);
  • the right to be provided with food that is adequate to maintain health and well-being;
  • the right to special dietary food where such food is necessary for medical reasons or on account of the religious beliefs or because the prisoner or detainee is vegetarian;
  • the right to be provided with clothing that is suitable for the climate and for any work required;
  • the right of a detainee to wear their own clothes;
  • the right to have access to reasonable medical care;
  • the right for the intellectually disabled or mentally ill to have reasonable access to special care and treatment;
  • the right to have access to reasonable dental treatment;
  • the right to practise a religion of the prisoner's choice and, if consistent with prison security and good prison management, to join with other prisoners or detainees in practising that religion and to possess such articles as are necessary for the practice of that religion;
  • the right of a prisoner to receive at least one visit each week of at least 30 minutes duration and such other visits as the Director determines;
  • the right of a detainee to receive at least 3 visits each week and such other visits as the Director determines;
  • the right to send letters to, and receive letters from, the Minister, the Director, an official visitor, the Ombudsman or an officer of the Ombudsman without those letters being opened by prison staff;
  • the right to send and receive other letters uncensored by prison staff (with the exception of threatening or harassing letters);
  • the right to advise partner or next of kin of the person’s imprisonment;
  • the right to have access to legal advice or to apply for legal aid;
  • the right to be provided with information about the rules and conditions which will govern the prisoner's or detainee's behaviour in custody.

Leave Permits and Release

Length of Sentence

In Tasmania, the courts will normally determine a period of imprisonment, and leave the period of the actual term to either the Parole Board, or the remission system. Amendments have been made to enable a judge to fix a minimum sentence before the person becomes eligible for parole (s19Sentencing Act 1997 (Tas)).

If a sentence is more than three months, a prisoner automatically receives a third off the period of their sentence, or three months, whichever is greater. This means that someone who has a six-month sentence receives two months off their sentence, leaving them to serve four months – the greater of the two periods.

Remissions

A remission may be granted for a period of three months off the sentence imposed by the court. No remissions are available for sentences of three months or less. (Reg 23, Corrections Regulations) Thus a person sentenced to a term of imprisonment of 12 months, for example, can expect to be released at the end of nine months.

Remissions are granted at the discretion of the Director "by reason of the prisoner's good conduct and industry". The impression is that remissions are a ‘privilege’ but the reality, at the time of writing, is that they are given as a matter of course and are not readily reduced. Once reduced they can be reinstated and often are.

A person convicted of escape or attempted escape is not entitled to remission in respect of any period of imprisonment to and including the day on which the escape or attempted escape was made. Even here, however, the Director has a discretion, in ‘exceptional’ circumstances, to grant a special remission.

Remissions are not available to life prisoners or prisoners declared to be dangerous criminals because they serve a sentence of indefinite length. The only way in which they can be released is by being granted parole.

Remissions cannot operate so as to reduce a non-parole period imposed by a court.

Leave Permit

The prison may grant a leave permit (for a period not exceeding 72 hours) to enable a prisoner or detainee to leave the prison for a number of reasons including:

  • a funeral;
  • in cases of illness of a relative or person the prisoner has had a long standing relationship with;
  • the arrangement of employment;
  • the attendance at an educational or training institution (s42, Corrections Act);
  • in the case of Aboriginal prisoners to attend events of cultural significance;
  • to take part in a program approved by the Director which is designed to facilitate the prisoners rehabilitation and reintegration into the community.

The leave can be revoked by the Director (s43) and with Ministerial approval under some circumstances the leave permit may be extended for a limited period.

Visitors

Contact Visits

Contact visits are now permitted at Risdon as well as Hayes Prison Farm. Contact visits are permitted in the women’s section of the prison especially if young children are involved. Contact visits last for 45 minutes and take place in the presence of a Correction officer.

Box visits

Box visits are limited to 30 minutes. Inmates and visitors are separated by a glass screen for non-contact (box) visits.

Requirements for Visitors

A visitor may not take things away from the prison without authority. A visitor must give proof of their identity on request and if the visitor gives a false identity or refuses to give ID and disobeys an order to leave the prison they are guilty of a criminal offence (fine of up to $500) (s18, Corrections Act).
A visitor may be required to supply their name and address before entry to the prison. Visitors may be searched (s20) and if permission to search is refused the visitor may be ordered to leave the prison. The prison may refuse admission to an intending visitor whom it regards as undesirable.

Official Visitors

The Justice Minister may appoint persons who are obliged to visit the prison at least once a month. The visitor may report directly to the Minister on the state of the prison, the treatment and condition of prisoners and detainees. This is traditionally regarded as an important safeguard to abuses of power by the prison authorities and an independent monitor on the condition of the prisons. A person with a complaint should arrange to meet with the official visitor and to set out the basis of the complaint. Official visitors cannot interfere with the running of the prison, but they must be given the full co-operation and assistance of the prison authorities in carrying out their work. A judge or magistrate may visit a prison at any reasonable time.

Visits by Police

The police can enter the prison to interview detainees and prisoners in accordance with procedures set by the Director (s17). A prisoner or detainee may refuse a visit from a police officer and is not required to answer questions from a police officer. An interview between a police officer and a prisoner can be conducted in the sight but not the hearing of a Custodial officer, at the prisoner’s request.

If a police officer proposes to visit a prisoner, the Director must ensure that the prisoner is advised of their rights under section 17 (s17(5)).

Parole

The parole system and the Parole Board which administers it, operates under the Corrections Act. The Board is a statutory body appointed by the Governor consisting of a lawyer and two other persons qualified in matters of sociology, criminology, penology, medicine or any other relevant knowledge or experience. The Board is independent of the prison system.

What is Parole?

Parole is the conditional release of a prisoner before the completion of sentence. It is different from remission because the prisoner is still taken to be serving their sentence during the period of parole (s78). They are under the supervision of a parole officer.

Eligibility

A prisoner (other than a life prisoner or ‘dangerous criminal’) convicted for an offence after April 1987 cannot be released on parole until they have served one half, or at least 6 months, of their sentence unless in the opinion of the board there are exceptional circumstances (ss68 & 70). The Supreme Court can also set a non-parole period in excess of that period when sentencing the prisoner (s69). This power has not often been used by the court. There is a strong school of thought that the question of release should be left to the Parole Board or the prison authorities and attempts by the court to restrict their powers in advance only serve to undermine the effective administration of the prison system. The Sentencing Act states that the court has the power to not make an offender eligible for parole in respect of a sentence (s17(2)(a)). Further, if the court does not make an order in respect of parole, it is deemed that the offender is not eligible for parole in respect of that sentence (s17(3A)).

Where sentences are cumulative (that is, to be served one after the other) the non-parole periods are added together. Where they are concurrent (that is, to be served at the same time) the non-parole period is equivalent to the non-parole period of the longer (or longest) sentence.

A prisoner can apply for parole by completing an application form. This form can be obtained from a programs officer at the prison and must be forwarded to the Secretary of the Parole Board.

Life Prisoners and Dangerous Criminals

Life prisoners and dangerous criminals cannot apply for parole (s69). A dangerous criminal can apply once the declaration under section 19 of the Sentencing Act that they are a dangerous criminal is discharged.

The State Government made a policy statement in 1992 that a life prisoner would not be considered for parole until they had served at least 10 years of their sentence other than in exceptional circumstances.

In 1994 the State Government passed an amendment to the Criminal Code enabling life prisoners to apply to be re-sentenced with a fixed sentence. This was referred to as the ‘truth in sentencing’ legislation. Since that amendment many life prisoners have applied to the Supreme Court for re-sentencing. Dangerous criminals also have the right to apply for sentencing.

The new sentence takes effect from the time of the original sentence. When re-sentencing a life prisoner or dangerous criminal the court has the same powers and duties it would have had if the applicant had been convicted by that court of the crime for which the applicant was originally sentenced. This includes imposing a non-parole period.

How the Parole Board Makes Decisions

Once a prisoner becomes eligible for parole, or on application by the prisoner, the Board will seek reports from the prison authorities, possibly a medical (psychiatric) report and also a report by a parole officer. Section 72(4) of the Corrections Act 1997 (Tas) sets out the factors to be taken into account when deciding whether to release a prisoner on parole.

After considering the case, the Board can grant or refuse parole or defer the decision (s72(3)). It can set conditions to parole (s77(3)). These will normally be that the prisoner must keep the parole officer informed of their current address, keep appointments for interviews with the parole officer, be of good behaviour and comply with the reasonable directions of the parole officer. Regular use is made of a condition which prevents parolees from entering any premises where alcohol is served and sold. These will be stated on the parole order, a copy which must be given to the prisoner (s72(7)). Section 72(8) requires the Board to give to prisoners reasons in writing for refusing parole or deferring its decision.

Breaching Parole

The Board can revoke (take away) or change the conditions of parole at any time (s79(1)(a)). Before doing this, however, the Board must give the prisoner the opportunity to present their views (s79(2)).

Where parole is revoked, the prisoner will have to complete what remained of their sentence when given parole and none of the period of parole will be taken into account (s79(5)). Life prisoners will again be back on ‘indeterminate’ sentences. Parole can, however, be granted again.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.