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Bail

Bail is the term used to refer to the temporary release from custody of an accused person awaiting their sentence by the Court.

1. Bail Undertaking

When a person is granted bail, that person enters into a bail undertaking. They are entitled to be released (if in custody) and remain at liberty. A person granted bail is to undertake in writing to appear before the court as notified and to notify the court of any change in the person’s residential address. A person is entitled to be granted bail so long as the person is not in custody for some other offence. Additionally, a person can be granted bail when not in custody.

2. Bail Hearing

All persons in custody will appear by way of audio-visual link.There are interpreters available for persons with English as a second language or who are hearing impaired. The weekend and public holiday bail courts for both adults and juveniles are conducted at Parramatta Local Court. This court will deal with adult bail hearings for all persons arrested in the Sydney metropolitan area and juvenile bail hearings from across the state.

3. Who Can Grant Bail

The Local Court usually determines bail for summary offences. More senior courts often deal with indictable offences. A police officer can grant bail provided the court hasn’t already made a determination. If not authorised to grant bail the Officer will bring the person before the court. After an officer makes a determination as to bail they must inform the person that they may communicate with a legal practitioner and provide them with such facilities to do so as are reasonable in the circumstances.

4. Refusal to Hear a Bail Application

A court will refuse to hear a further application if bail has already been determined unless:
• The person was not legally represented and now has legal representation
• Information relevant to bail was not presented in the previous application
• Circumstances relevant to the grant of bail have changed

5. Dispensing with Bail

A court may dispense with bail, meaning the person is to remain at liberty until required to appear before court. Where the court in respect of bail makes no specific order or direction, the court shall be deemed to have dispensed with the requirements for bail.

6. Bail for Offences Not Punishable by Imprisonment

There is a right to be released on bail for minor offences, i.e. not punishable by imprisonment, unless a person:
• Has previously failed to comply with a bail undertaking or bail conditions imposed
• Is incapacitated by intoxication, injury, drug abuse or is otherwise in danger of physical injury or in need of physical protection
• Stands convicted of the offence or the person’s conviction for the offence is stayed

7. Presumptions Against Bail

A person accused of one of these offences is not to be granted bail unless the person satisfies the court that bail should not be refused. Bail cannot be dispensed with for any of the following offences:
• Certain offences under the Drug Misuse and Trafficking Act
• Serious Firearms and weapons offences
• Certain repeat property offences, where the person is accused of two (2) or more serious property offences, not being offences arising out of the same circumstances and the person has been convicted of one or more serious property offences within the last two (2) years
• Offences carrying prison terms where the person is on lifetime parole
• Breach of extended supervision orders or interim supervision orders

8. Exceptions to Presumptions in Favour of Bail

There is a general presumption in favour of bail except for the following offences, where bail will generally not be granted except in extraordinary circumstances:
• Murder or Manslaughter
• Attempted Murder
• Aggravated Sexual Assault
• Kidnapping
• Robbery
• Supplying prohibited drugs on an ongoing basis
• Certain offences under the Drug Misuse and Trafficking Act where the quantity concerned is alleged to be twice the indictable quantity
• Certain domestic violence offences
• Offenders who have a prior conviction for one of the above offen

There is an exception to the presumption in favour of bail if the person is alleged to have committed an offence while:
• On bail
• On parole
• In custody
• Serving a sentence but not in custody
• Was subject to a good behaviour bond or program intervention orderA person accused of one of the above offences is entitled to be granted bail unless the court, following consideration of the matter, feels justified in refusing bail.

A person is not entitled to be granted bail if the person in custody is serving a sentence of imprisonment in connection with another offence and the court is satisfied that the person is likely to remain in custody in connection with that other offence for a longer period than that for which bail in connection with the later offence would be granted.

9. Criteria to be Considered When Determining Bail

There are four distinct criteria to be considered in bail applications:
1. The probability of whether or not the person will appear in court in respect of the offence having regard to:
• The person’s background and community ties, as indicated by the history and details of the person’s residence, employment and family situations and the person’s prior criminal record
• Any previous failure to appear in court
• The circumstances of the offence, the strength of the evidence and severity of the probable penalty

2. The interests of the person having regard to:
• The period the person may be obliged to spend in custody if bail is refused
• The needs of the person to be free to prepare for appearance in court
• Whether or not the person is incapacitated by intoxication, injury or drug abuse or is otherwise in danger of physical injury or in need of physical protection
• If the person is under 18 years of age, or is an Aboriginal person or Torres Strait Islander, or has an intellectual disability or is mentally ill

3. The protection and welfare of the community having regard to
• The nature and seriousness of the offence
• Where the person has refused to observe a previous bail condition

4. Whether or not the person is likely to commit one or more serious offences while on bail

10. Conditions of Bail

A person is entitled to bail either unconditionally or subject to bail conditions.
Possible conditions of bail includeThat the accused enter into an agreement to observe specified requirements as to conduct
• That the accused or an acceptable person enter an agreement to forfeit a specified amount of money if the accused person fails to comply with their bail undertaking. The court may revoke bail if it appears the security is no longer intac
• That the accused surrender their passport
• That the accused undergo assessment for participation in an intervention program or other program for treatment or rehabilitation
• The accused enters into an agreement prohibiting him from associating with specified persons
• The accused enters into an agreement restricting him from visiting a specified place or district

Potential conditions of bail include:
• Not driving a motor vehicle
• Not drinking alcoho
• Curfew

11. Review of Bail

Magistrates have the power to review bail decisions. If refused a person may apply to a higher court for review of a bail condition. Senior Police Officers have the power to review and grant bail if:
• The accused is no longer incapacitated by intoxication, injury, drug abuse and no longer needs protection
• There is a significant change in circumstances
• There are exceptional circumstances justifying bail

12. Breaching Bail

It is an offence to fail without reasonable excuse to appear before court in accordance with a bail undertaking. It is an arrestable offence to abscond on bail or breach a bail condition. Under such circumstances:
• A police officer may arrest a person without a warrant
• The Court may issue a warrant
• Court may revoke bail.

How can Sydney Criminal Defence Lawyers help?

Our Criminal Lawyers will carefully consider your case, advise you on all your legal options, and recommend the best way forward.

Call us now on 02 8059 7121 or contact us after hours on 0420 998 650 or text 24hrs to book an appointment with one of our solicitors.

The initial consultation is free.

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Pleading Guilty

1. Pleading Guilty

Depending on the charge, an accused person served with a court attendance notice may lodge with the Registrar notice in writing that they will plead guilty or not guilty. If the notice is lodged no later than 7 days before the person is required to attend court then they are not required to attend. This does not apply to a person who has been granted or refused bail.

A guilty plea may be accompanied by additional written material detailing mitigating factors.

If attending court, the Court will state the substance of the offence and ask the accused to enter a plea. An accused person may at any time during committal proceedings plead guilty to an offence.

A guilty plea may either be accepted or rejected.

2. Rejection of a Guilty Plea

A judge of the District or Supreme Court may order committal proceedings be continued before a Magistrate in respect of a person who has plead guilty if:
• It appears that the facts represented in the court attendance notice do not support the offence to which the person plead guilty;
• If the prosecutor requests the order be made; or
• For any other reason the Judge thinks fit to do so.

On the resumption of committal proceedings, the proceedings continue as if the person had plead not guilty. Rejection of a guilty plea does not prevent an accused person from pleading guilty at a later stage in proceedings.

The Attorney General or Director of Public Prosecutions may alternately direct that no further action be taken in respect of an offence, at their discretion.

3. Pleading Not Guilty

If an accused person pleads not guilty, they are taken to have committed themselves for trial.

A court is not permitted to penalise an offender for pleading not guilty if the person is ultimately found guilty of the offence. The imposition of a penalty more serious than would otherwise be imposed is not allowed [Siganto v The Queen at 663].

4. Refusal to Plead

If the accused person who is arraigned stands mute, or will not answer directly to the indictment, the court may order a plea of not guilty be entered on their behalf.

5. Guilty Plea to Offence Not Charged

If the accused is arraigned for indictment and can lawfully be convicted on the indictment of some other offence not charged in the indictment, they may plead not guilty of the offence charged but guilty of the other offence.

The Crown may elect to accept the plea of guilty or proceed on the original charge.

6. Guilty Plea Where Certain Facts Disputed

Any dispute as to matters that go beyond the essential elements of the offence must be resolved by a contested hearing on those facts.

7. Sentencing Discount

A sentencing discount is a reduction in the otherwise appropriate sentence by a quantifiable amount due to a guilty plea. It is applied after the appropriate sentence has been determined [R v Borkowski at 32].

The discount should generally be assessed in the range of 10-25%. The primary consideration is the timing of the plea [R v Thomson & Houlton at 419] When passing sentence for an offender who has plead guilty the court must take into account:
• The fact that the offender has plead guilty; and
• When the offender plead guilty or indicated an intention to plead guilty; and
• The circumstances in which the offender indicated an intention to plead guilty.

It is at the Court’s discretion whether to impose a lesser penalty and they may not always do so. The sentence must not be unreasonably disproportionate to the nature and circumstances of the offence.

Circumstances the Court may take into account include the number and types of charges, the measure of remorse evident and the offender’s assistance to authorities.

8. Changing Your Plea

If an accused person pleads guilty during the trial, and the court accepts the plea, the court is to discharge the jury and the accused is liable for punishment accordingly.

If the accused is brought before a higher court after having plead guilty and changes their plea to not guilty the Judge is to commit them for trial.

9. Setting Aside A Guilty Plea

Circumstances under which a court will set aside a guilty plea:
• The appellant did not appreciate the nature of the charge to which the plea was entered;
• The plea was not free and voluntary;
• The plea was not attributable to a genuine consciousness of guilt;
• The plea was induced by threats or other impropriety [Johnston v R].

How can Daoud Legal:
Sydney Criminal Defence & Traffic Lawyers help?

Our criminal defence lawyers will carefully consider your case, advise you on all your legal options, and recommend the best way forward.

Call us now on 1300 885 646 or text 0420 998 650 24hrs to book a free consultation with one of our lawyers.

Guilty Plea? Pleading Guilty in Sydney, NSW

When faced with criminal charges, the decision to plead guilty or not guilty can have profound implications on your life. At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, our experienced criminal defence lawyers in Sydney understand the intricacies of the criminal justice system and are dedicated to providing you with the guidance and support you need to make an informed decision.

Understanding the Process of Pleading Guilty

If you have been charged with an offence, you will be required to attend court and enter a plea before the magistrate. Pleading guilty means you accept responsibility for the criminal charge and are prepared to receive a sentence from the court.

The process of pleading guilty in Sydney typically involves the following steps:

Step 1: Court Attendance

You will be required to attend the Local Court in Sydney on the scheduled court date specified in your court attendance notice or written notice of pleading.

Step 2: Entering a Plea

During the court appearance, the magistrate will ask you how you wish to plead – guilty or not guilty – to the charge(s) against you. If you plead guilty, the court will proceed to the sentencing phase

Step 3: Presenting Evidence

The prosecutor will hand up the facts sheet, also known as the brief of evidence, and your criminal history to the magistrate. This document outlines the details of the alleged offence and the evidence against you.

Step 4: Sentencing

The magistrate will consider the information provided, including any mitigating factors or character references, and impose a sentence. Depending on the nature and severity of the offence, potential penalties may include fines, good behaviour bonds, community service orders, or custodial sentences.

Step 5: Mitigating Factors and Character References

You or your criminal defence lawyer will have the opportunity to present mitigating factors, such as personal circumstances or a demonstration of remorse, as well as character references from respected members of the community. These can significantly influence the sentencing outcome.

Seeking Legal Advice Before Pleading Guilty in Sydney

Before attending court to enter a plea of guilty, it is crucial to seek legal advice from an experienced criminal defence lawyer in Sydney. At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, our specialist criminal law defence team can provide you with a comprehensive understanding of the implications of early guilty plea, including the potential penalties and consequences for your future such as imprisonment.

During a consultation, our criminal lawyers will carefully review the facts sheet, explore any potential defences or mitigating factors, and advise you on the best course of action. We understand that every case is unique, and we will tailor our advice to your specific circumstances.

By seeking legal advice, you can make an informed decision about whether to plead guilty or not guilty, ensuring that you receive the best possible outcome in the circumstances such as release order.

If You Are Pleading Guilty to Traffic Offences or Criminal Charges

The process of pleading guilty applies to a wide range of offences in Sydney, including traffic offences, drink driving charges, common assaults, assaults occasioning actual bodily harm, and other criminal charges. Depending on the nature and severity of the offence, the potential penalties and outcomes can vary significantly.

For less serious offences like traffic violations or summary offences, pleading guilty may result in fines, licence disqualifications, good behaviour bonds, or community service orders for the offender. In more serious charges involving indictable offences or strictly indictable offences, custodial sentences may be considered.

Benefits of Pleading Guilty

Pleading guilty can offer several benefits, including:

Demonstrating Remorse

This discount recognises the utilitarian value of a guilty plea, such as saving court time and resources, as well as the offender's remorse and willingness to facilitate the course of justice.

Reduced Charges

In some cases, pleading guilty early may result in the prosecution reducing the number of charges or downgrading the severity of the charges, leading to a more favourable outcome.

Avoiding Trial

By pleading guilty, you can avoid the stress and uncertainty of a trial, as well as the potential for harsher penalties if found guilty after a trial.

Sentencing Discount

In New South Wales, the general rule is that an early appropriate guilty plea will result in a sentencing discount, typically ranging from 10% to 25% off the sentence that would have been imposed if the matter had gone to trial. This discount recognises the utilitarian value of a guilty plea, such as saving court time and resources, as well as the offender's remorse and willingness to facilitate the course of justice.

If You Are Pleading Not Guilty

If you choose to plead not guilty, it means you are denying the criminal charge and intend to defend yourself against the allegations. In this case, the matter will proceed to a hearing or trial, where the prosecution will need to prove the case beyond a reasonable doubt to avoid criminal conviction. Pleading not guilty in the local court allows you to present your defence and challenge the strength of the evidence against you. However, it is essential to understand that if found guilty after a trial, the court may impose a harsher sentence than if you had pleaded guilty initially.

Pleading to Indictable Offences in the District or Supreme Court

For certain serious offences, known as indictable offences, the case may be committed to the District Court or the Supreme Court of New South Wales if the matter is considered too serious for the Local Court's jurisdictional limit. In these cases, the process of pleading guilty or not guilty, and the subsequent trial or sentencing proceedings, will take place in the higher court. Our experienced criminal defence lawyers in Sydney can guide you through the legal processes involved in these higher courts.

Get the Guidance You Need from Experienced Criminal Defence Lawyers in Sydney

Facing criminal charges can be an overwhelming experience, but you don't have to navigate the legal system alone. At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, our experienced criminal defence lawyers in Sydney are dedicated to providing you with the support and representation you need throughout the process.

Whether you wish to plead guilty or not guilty, our team will carefully evaluate your case, advise you on the best course of action, and work tirelessly to ensure you receive the best possible outcome.

Book an appointment with one of our criminal lawyers in Sydney today by calling us now on 1300 885 646 or texting 0420 998 650 24hrs. Our specialist criminal defence team is here to protect your rights and ensure that your voice is heard in the courtroom.

Remember, the decision to plead guilty or not guilty can have far-reaching consequences. Don't leave your future to chance – trust the experts at Daoud Legal: Sydney Criminal Defence & Traffic Lawyers to guide you through the criminal justice system in Sydney.

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