Legal Advice

by Jones + Associates

Can the Police intercept and search my vehicle?

It is common for people to be charged with drug and property offences arising from being pulled over by police and being subject to either a personal and/or  a vehicle search.

It is important for people to understand what the Police’s powers are and subsequently what your individual rights are, in these types of situations.

Power to stop a vehicle

There are prescribed circumstances under which Police can stop a vehicle pursuant to section 60 (3) of the Police Powers and Responsibilities Act 2000 (‘PPRA’). They include:

• To enforce a Transport Act or the Heavy Vehicle National Law (Queensland);
• To check whether the vehicle complies, or the person is complying, with any transport Act or the Heavy Vehicle National Law (Queensland);
• To monitor or enforce a liquor provision;
• Enforcing a contravention of law involving putting, dropping and leaving litter on a public place from a vehicle;
• To conduct a breath test or saliva test;
• To investigate the emission of excessive noise from;
  • A motor vehicle on a road or in a public place; or
  • A motorbike being driven on a place other than a road;
• To give a noise abatement direction to the person responsible for the emission of excessive noise from-
  • A motor vehicle on a road or in a public place; or
  • A motorbike being driven on a place other than a road;
• To impound or immobilise a motor vehicle under chapter 4;
• To enforce the Tobacco and Other Smoking Products Act 1998, section 26VC;
• To give the person any of the following under the Peace and Good Behaviour Act 1982 –
  • Public safety order;
  • A restricted premises order;
  • A fortification removal order;
  • To give a person, under section 53BAC an official warning for consorting…” (statutory notes and examples omitted, emphasis added)

So when can police stop my vehicle?

Many of the circumstances prescribed by Section 60 (3) are unique to specific circumstances and not relevant to most people.

The most common use of Section 60 (3) is to stop vehicles to conduct a “licence check”, to ensure drivers are licenced to drive a motor vehicle. This is a legitimate purpose for which police can stop a vehicle.

A common methodology/tactic used by police is to stop people for a “licence check” and use this as an opportunity to question them about whether there are any ‘items of interest’ in their vehicle and attempt to form a basis for a ‘reasonable suspicion’ to allow them to search a vehicle pursuant to section 31 of the Police Powers and Responsibilities Act.

This methodology was subject to a recent application in the Supreme Court of Queensland (R v Davis [2023] QSC 112) complaining of the tactics and behaviour of police on that occasion.

His Honour Justice Davis was critical of this approach by police. His Honour distinguished the differences between s31 and s60, and their different purposes and uses. His Honour determined that police in that instance improperly used s60 to stop the vehicle, despite doing so with a purpose of investigating a potential drug offence, which would require a reasonable suspicion pursuant to s31.

In this instance, the Applicant’s mobile phone and an amount of methylamphetamine was discovered during the search. Further, he was subject to interviews with police on 13 April 2019 and 17 June 2019. His Honour excluded all of this evidence as a result of police’s misuse of their powers pursuant to the PPRA.

What do I do if I have been charged with an offence following the search of my vehicle by police?

If you have been pulled over by police, you should always comply with police’s demands but be aware you should not consent to any search of your vehicle. Should you consent to police searching your vehicle, they may (and will) conduct that search whether the basis of the search would otherwise be illegal, but for the consent.

Should you have had your vehicle searched and as a result have been charged with criminal offences, you should immediately legal advice.

If police have acted beyond their powers as prescribed by the legislation, you may have a legal argument available to you to exclude the evidence discovered during the search.

At Jones + Associates, we have extensive experience in the area of unlawful searches and have conducted numerous successful applications before the courts.

We are always available to discuss your matters and give you advice as to your prospects of any argument in relation to an illegal search. You can contact us at (07) 3229 3166. 

by Jones + Associates

Presumption of Innocence

The presumption of innocence is the cornerstone of our criminal justice

In light of the recent matter before the ACT courts, involving Brittany Higgins as the complainant, together with recent news articles discussing unresolved criminal matters, it is important to not judge a person or a matter until the courts have decided the case.

The presumption of innocence is the cornerstone of our criminal justice.  We have all heard the presumption of innocence expressed as, “innocent until proven guilty”.  More properly, the expression ought to be “innocent unless found guilty”.

The expression “innocent until proven guilty” has a connotation of inevitability about it.  That inference of inevitability itself erodes the presumption of innocence and is wrong.

With the explosion of social media and instant access to local, national and international news, the community is easily exposed to a wealth of information and material which even five years ago was not available.  One of the biggest issues encountered in the face of such ease of access is that there is a saturation of stories, even before the Police have concluded their investigations, for example.  

The result is that people have consumed only those facts which are revealed at a particular time and the danger is then that the community generally starts to work on that information to make decisions. The ACT Supreme Court today outlined the dangers posed by the publication of information before matters are concluded. This is a significant danger to the presumption of innocence.

In theory, the news media should not be censored and should not be constrained. People must keep in the forefront of their minds the fact that unless and until they know all of the facts and evidence in relation to a particular matter, they cannot possibly form a proper opinion on a reported criminal matter.  The presumption of innocence must be protected closely.

The presumption of innocence operates to protect all of us. It may sound trivial however if you or a loved one were to ever be falsely accused of an offence, the presumption of innocence would take on far more significance.

The same is true for completed matters that are reported by the media. Often, information is published which stirs public commentary – but again it is done so in the absence of all the facts. Courts are then often criticised for decisions/results when in fact the courts are the only forum that are presented ALL the facts.

by Jones + Associates

The Important Balance of Youth Justice

There has been significant attention given recently to the sentencing of a young man who (at 17 years of age), whilst driving dangerously and under the influence of alcohol and drugs, killed a young couple and their unborn child.

A tragic event such as this has catastrophic and lifelong impacts on everyone associated with the matter, whether that be the victims, their friends or families but also the perpetrator.

As the sentencing judge indicated, no sentence will ever be adequate and cannot do justice to the suffering caused. Unfortunately, nothing can ever undo the events of that day.

With that in mind, the court was faced with sentencing a young person who was only 17 at the time of the offending. The court heard of the extremely unfortunate and tragic events of his own upbringing, one that included neglect, exposure to domestic violence and abuse and early exposure to illicit substances.

It is in the context of a terrible upbringing with a clear lack of positive guidance, together with the immaturity and recklessness that comes with being a 17-year-old, that these tragic events have unfolded.

A judge must balance these factors when assessing a proper penalty that not only punishes this (or any) young person for these terrible acts but also offers an opportunity to rehabilitate and become a contributing member of society.

Thankfully we are not a society that will simply lock the door and throw away the key – giving up on any person who falls foul of the law. There are countless redemption stories of people who have been punished for terrible behaviours, to flourish after having served their punishments.

As a society, we shouldn’t forget that people make mistakes and not all mistakes are equal. Studies show that young males are particularly poor decision-makers and this combined with the difficult upbringing of this young man resulted in this most tragic event. 

The sentence imposed in this case was 10 years imprisonment. There is widespread reporting that he was sentenced to 6 years – this is incorrect. The sentencing judge allowed the young man to apply to the parole board to be released after 6 years, but that is no guarantee to occur and is a decision for the parole board.

The judge was not permitted to impose a sentence any longer than 10 years unless the court found the offence to be particularly heinous in all the circumstances. A classic example of this would be premeditated murder.

Youth Justice Act

The offender did not enter a plea of guilty to murder, and by accepting his plea to manslaughter, the prosecutions accepted he did not intend to kill the victims. That is not an issue for the Youth Justice Act or the courts to deal with – that was accepted by prosecutions. 

It is common for the public to look at a matter such as this and think sentencing laws ought to be tougher. However, without a proper understanding of the factual matters of the offending, the personal matters of the offender as well as sentencing principles, it is unfair to criticise the system.

We have all been young and most of us have family and friends who have or will go through our teenage years when decision-making is often questionable. If your loved one caused a terrible tragedy such as this, I am sure opinions would be very different.

It would not be in the societies best interests to incarcerate young people for decades. What do we expect will happen when they are eventually released, with no prospects/education or qualifications? 

One mistake, even those that lead to horrible and tragic outcomes, should not cause a person to be punished beyond rehabilitation or hope.

by Jones + Associates

What You Need to Know About Dangerous Drugs in Queensland

Queensland is renowned for many things, including its fantastic climate, beautiful beaches and resorts. Collectively these attributes make the ‘Sunshine State’ a desirable place to live, and a national and international tourist destination.

Accordingly, there are strict rules in place to protect residents and visitors. In fact, Queensland has some of the toughest drug laws in Australia. Being charged with a dangerous drugs offence here brings the potential for significant punishment upon conviction. This makes it imperative for anyone facing such charges to enlist the help of a qualified defence lawyer as soon as possible.

Offering many years of experience in the field of criminal law, the legal Brisbane criminal lawyers team at Jones + Associates is fully prepared to help if you find yourself involved in a drug matter. Here are some important things you need to know about dangerous drugs in Queensland.

What is a dangerous drug?

For starters, you’ve got to understand how the authorities define “dangerous drugs”. The official definition can be found in the Drugs Misuse Regulations 1987 (Qld), which actually separates them into two categories (Schedule 1 and Schedule 2).

Schedule 1 drugs include but are not limited to:

• Cocaine
• Acid (LSD)
• Heroin
• Ecstasy (MDMA)
• Methamphetamine

Examples of Schedule 2 drugs are:

• Cannabis
• Opium
• Barbituates
• Tranquilizers or benzodiazepines

It’s crucial to understand the difference because Schedule 1 drug offenses tend to carry harsher penalties. This is because is the listed drugs pose a greater risk to the general public.

What qualifies as drug possession in Queensland?

In Queensland, state laws prohibit the possession of any dangerous drug.  However, the term “possession” is broadly defined when used in this context. You may be accused of drug possession if:

• You are aware that the substance in question exists and has control over it. You must also be aware, or have reason to believe, that the substance in question is a drug.
• You meet the criteria specified above, but the drug/s belongs to someone else.
• The substance is discovered in your vehicle, residence, or any other property that you are in control of, even if it is not found on your person.
• You are aware or have reason to believe that there are drugs in a location that you frequent, even if the drugs don’t belong to you.
• You meet the criteria specified in any of the previous bullet points, even though you didn’t buy, use or intend to use the substance in question.

Activity classified as illicit drug supply

Numerous activities can also be classified as illicit drug supply under Queensland law. It is important to note that you don’t have to give someone drugs in return for money (or anything else of value) to be charged with supplying drugs. All you have to do is give some drugs to someone else, or offer to do so without actually relinquishing anything.

Technically, supplying illicit drugs includes the following:

• Selling, dispensing, providing, distributing, or transporting drugs;
• consenting or volunteering to do any of those things;
• preparing to dispense, provide, distribute, sell, transport or supply drugs.

Penalties upon conviction for these activities depend on several factors. These include drug quantity, who receives it, and whether the supplier benefited (financially or otherwise).

Aggravating factors – circumstances that add to the severity of the crime and carry harsher penalties – generally include those in which the supplier:

• Is an adult who provides the drugs to a minor or an intellectually challenged individual;
• provides drugs to someone who is incarcerated, or in a school, university, etc.; or
• provides it to someone who is unaware of what it is.

Drug trafficking

A point of law that is often confusing to the general public is the difference between drug supply and drug trafficking. Hence the terms are sometimes used interchangeably.

However, there is a difference and charges vary accordingly. The key difference between supplying drugs and drug trafficking is that the latter involves the ongoing supply so as to constitute a business. It is important to note not all business are profitable, therefore the lack of profits does not necessarily mean a person cannot be convicted of trafficking.

The provision of drugs in this context is often – but not always – coordinated through street gangs or similar criminal organisations. Individuals are subject to drug trafficking charges simply for buying drugs to sell to their mates.

You should also be aware that there are usually tougher sanctions upon conviction for trafficking because it is done for profit. For instance, trafficking in Schedule 1 drugs such as cocaine or heroin carries a maximum punishment of 25 years imprisonment.

Illegal drug production

In Queensland, it is not only illegal to provide and possess dangerous drugs, it is also illegal to cultivate and produce them.

Under applicable laws, cultivating illegal plants is broadly defined as any activity associated with their growth and care. This means that something as simple as watering one could be legally defined as cultivation, and you could be charged accordingly.

On the other hand, illegal drug production includes any activity associated with the manufacturing process. This includes but is not necessarily limited to preparation, assembly and/or packaging, or volunteering to assist with any aspects of the process.

You can be charged with a drug production offence no matter how limited or extensive your participation is. However, the extent of your participation, along with the number of drugs, generally determines your punishment.

Under Queensland law, you can also be charged with publishing or even having a formula for the production of an illegal or dangerous drug. If convicted, you face up to 25 years imprisonment for a Schedule 1 drug, or 20 years for a Schedule 2 drug.

Additional drug offences

In Queensland you can also be charged with a criminal offence if you are caught with drug paraphernalia or suspected drug paraphernalia. You can also be charged with a criminal offence if you allow a dwelling, building or property to be used for any purpose related to the use, sale, possession, distribution or production of drugs.

If you are facing any sort of dangerous drug charges, your freedom and your future are at stake. Contact us at Jones + Associates today on 07 3229 3166 to learn how we can help you.

by Jones + Associates

Driving While Suspended or Disqualified in Queensland: What You Need to Know

For Australians, the ability to drive legally is essential. A valid driving licence allows us to get to work and school, to get groceries, to get to the doctor, and to places of worship. In rural Queensland, the ability to drive without running afoul of the law provides a vital link between neighbours. But the bottom line is that driving is a privilege, not a right. This is why driving while your licence is suspended or disqualified is so serious. Here’s what you should know about these offences.

Driving on a suspended licence in Queensland

Under the Transport Operations (Road Use Management) Act 1995, it is illegal to drive on a public road in Queensland without a valid driver’s licence. This means you can be punished if police catch you driving on a public road while your licence to operate a motor vehicle is suspended or expired. To be convicted of driving on a suspended licence, there must be sufficient proof that:

• you were driving a motor vehicle on a public road; and
• you did not hold a valid driver’s licence; and
• you did not hold a valid driver’s licence in Queensland because it was suspended.

If you are convicted, the extent of your punishment will depend on your specific circumstances, including any mitigating or aggravating factors.

Driving whilst disqualified in Queensland

Aside from sending someone to jail or prison, disqualification is one of the harshest punishments a Queensland judge or magistrate can impose for certain traffic offences. When someone’s licence is ‘disqualified’, it is confiscated and their driving privileges are revoked for a specified period. In such cases, they must apply for a new licence once that time has elapsed.

To be clear, you cannot drive once your driver’s licence is disqualified. One exception to this is if you qualify for and obtain a restricted driver’s licence (ie: for work-related purposes). If you don’t have one and the police catch you driving on a public road, they can charge you with driving whilst disqualify.

Again, the penalties that may be imposed upon conviction will depend on the specific circumstances of your case. Mitigating and aggravating factors will be considered.

Penalties for driving on a suspended licence and driving whilst disqualified

In Queensland, someone convicted of driving on a suspended licence faces the same penalties as someone convicted of driving without a valid licence. If this was your first offence, you could end up paying a $4,400 fine and spending up to a year in jail.

However, you should be aware that you may be able to avoid going to jail if you haven’t committed a similar offence within the last five years. This is because police have some discretion in these circumstances. Specifically, they can issue a maximum fine of $4,400 if they so choose.

On the other hand, Magistrates Courts, which usually hear these matters, don’t have any leeway regarding disqualifications. If you are found guilty of driving while your licence is suspended, your licence will be confiscated for a maximum of six months. It does not matter if you have received any other punishment in connection with the offence.

Because the offence is so serious, the penalties for driving whilst disqualified tend to be severe. At the very least, your driver’s licence will be confiscated for two to five years. You may also end up paying hefty fines and going to jail for up to 18 months.

You need experienced Queensland criminal lawyers to fight for you

If you have been charged with driving on a suspended licence or driving whilst disqualified in Queensland, you need a qualified lawyer on your side. Our Brisbane criminal law team can quickly assess your situation and devise an effective defence. Depending on your specific circumstances, we may argue that:

• you actually had  a valid licence at the time of the offence;
• you were not driving on a public road as defined by law at the time of the offence;
• you were suspended from driving on valid grounds and/or there is a dispute as to the validity of your  licence;
• you had to drive because you were being threatened with violence or you were otherwise under significant duress;
• you had to drive because of an extreme emergency (a matter of life and death) or a similar situation.

With your livelihood and your freedom at stake, there is no time to waste. Contact our criminal lawyers Brisbane to learn more about how we can help you today.

by Jones + Associates

Will a Conviction Be Recorded Against Me?

When a person is convicted of an offence, whether it is a serious or relatively minor offence, the effect on their life can be profound. Even after serving your sentence, paying your fines, and accepting the punishment imposed upon you by the court, you may continue to face the stigma that can be attached to those with a criminal record.

The effects of a criminal conviction

You may be asked to disclose your criminal history in everyday situations including: certain licence applications, job applications, rental agreements and blue card applications.  Often, having a criminal history can affect your eligibility for a job by colouring the opinion of the person reviewing your application. The legal system does allow individuals to keep their criminal history to themselves after a certain period of time has passed.

Spent convictions

‘Spent’ convictions are convictions which no longer have to be disclosed because enough time has lapsed since the conviction. The time that must pass in order for a conviction to be ‘spent’ will depend on the court in which the person was convicted.

Magistrates Court

If you were convicted in the Magistrates Court, you do not have to disclosure your conviction if:

• the conviction was five or more years ago;
• you did not serve a term of imprisonment, or your term of imprisonment was for 30 months or less;
• you have fulfilled all other court orders in relation to the sentence;
• you have not been convicted of another offence within the five years since your initial conviction; and
• no exceptions apply.

If all of these requirements are met, your conviction will be considered ‘spent’ and there will no longer be an obligation to disclose.

District or Supreme Court

Similarly, if you were convicted in the District or Supreme Court, you will no longer be required to disclose your conviction if:

• the conviction was 10 or more years ago;
• you did not serve a term of imprisonment, or your term of imprisonment was for 30 months or less;
• you have fulfilled all other court orders in relation to that sentence;
• you have not been convicted of another offence within the 10 years since your initial conviction; and
• no exceptions apply.

If all of these requirements are met, your conviction will be considered ‘spent’ and there will no longer be an obligation to disclose.

Exceptions

Even when all other criteria are met, you may still be required to disclose your criminal history if one of the many exceptions apply.

The exceptions listed in the Criminal Law (Rehabilitation of Offenders Act) 1986 (Qld) are too numerous to list in this article however, it is important to note that people in certain positions have disclosure obligations that relate to the terms of their employment and their professional responsibilities. People employed within the Department of Education or the criminal justice system such as police and Justices of the Peace need to be especially aware of their obligations in this regard.

If you or someone you love has been convicted of a crime and needs advice as to their disclosure obligations, an experienced lawyer will be able to help you determine if any exceptions exist, so please contact our criminal lawyers Brisbane one as soon as possible.

by Jones + Associates

Five Ways To Reduce Legal Fees

Let’s be honest. One of the single biggest factors, if not the biggest factor, that prevents people from seeking legal representation is the cost. But what people sometimes fail to consider is that by not obtaining proper legal advice and representation, their matter can often end up being more expensive in the long-term. With that said, here are five ways to reduce your legal fees.

Exercise discretion

Being involved in a court case of any kind can be incredibly stressful so it’s understandable if you are anxious. However, it’s important that you don’t bombard your lawyer with constant requests for updates by email or phone. A qualified and experienced legal professional will keep you fully informed of any relevant developments. Another point to keep in mind is that a good lawyer will also welcome questions about specific issues or concerns.

Be prepared

Time is money for you and your lawyer, especially if they are billing by the hour. You can minimise the amount of time spent in meetings with your lawyer by being prepared. But what does this actually mean?

Simply put, it means you should do the following:

• Ask your lawyer what, if anything, you should bring to the meeting, and act accordingly.
• If you bring a stack of unorganised papers, you or your lawyer will end up wasting valuable time sorting through it during the conference. Once you know what your lawyer needs, organise the documents by subject matter or date. If you need to keep the originals, make the copies yourself.
• Think carefully about what you’d like to discuss with your lawyer prior to the meeting. Put those thoughts in writing (a list is a good idea), and don’t forget to bring your notes to the meeting or conference.
• Be sure to arrive at the meeting on time, or even a few minutes early. By doing so you will give yourself time to catch your breath. If need be, you can use the time to jot down a few last-minute thoughts. This will also allow you to make the most of the available time that you do have with your lawyer.

Ask your lawyer if you can do some of your own research

More often than not, lawyers must devote a significant amount of time to researching various aspects of their clients’ cases. While they are well-equipped to do so, there might be some factual research that you can do, too. Depending on the circumstances of your case, you might be able to help by locating information or witnesses. You may also be able to create a timeline or draft statements regarding the facts of your case.

As long as you don’t bombard your lawyer with tons of completely irrelevant material, your lawyer will probably appreciate your efforts. Better yet, you’ll effectively reduce your legal fees because your lawyer won’t have to do the research.

Don’t let your emotions get the best of you

Being a party to a legal matter is an emotional experience. It doesn’t matter if you are involved in a business dispute, a family matter or any other civil or criminal matter. You may be angry, frustrated, stressed, overwhelmed or frightened. However, it’s important that you don’t let your emotions get the best of you, especially when it comes to making important decisions. If you do, you may make choices that delay the resolution of the matter (costing you more in legal fees), or cause the court to award the other party their costs. In a criminal matter, making the wrong choice based on your emotions could mean you have to pay more in fines or spend more time in jail.

Be honest with your lawyer, no matter what

Don’t be surprised if there are times when your lawyer asks you a question that you’d really rather not answer. Depending on the question, you may feel embarrassed or concerned that it could harm your case.

But when all is said and done, your lawyer’s job is to help you. Failing to disclose important information or details when asked could not only unnecessarily delay your case (resulting in more fees and costs) but it could even wreck your case completely (meaning you’ll just end up wasting your money).

Consequently, it is extremely important that you are always open and honest with your lawyer. If you don’t feel like this is the case with your current lawyer, you may have to switch legal representatives so you can work with someone that makes you more comfortable.

At Jones + Associates, our clients always come first. We also believe in providing honest, efficient and cost-effective advice. To help with the costs of representation, ask us about fixed fees for our services.

To learn more about how Criminal Law Firms Australia can help you, phone us on  07 3229 3166 or use our contact page.

by Jones + Associates

Police Powers and Responsibilities – Seized Property

Sometimes, police seize property in the course of exercising their duties and investigating crime. If your property has been seized by police, it is important to know your rights and how you can you go about having that property returned.

Hang on to your Field Property Receipt

The Police Powers and Responsibilities Act (PPRA) gives police powers to seize property in certain circumstances. In most circumstances, when a police officer seizes property from a person, they must provide that person with a receipt. This is called a Field Property Receipt and will list the items police have taken. This receipt can help you or your lawyer get your items back so it’s important that you hang on to it.

How long can police keep my stuff?

When a police officer seizes property, that officer is responsible for the safekeeping of the property until it is delivered to a property officer or property point. Unless the property is the subject of a charge, police may retain seized property for up to 30 days. After this time, they will need to obtain an order from a Justice of the Peace or a Magistrate. There are some obvious exceptions to this requirement like property that is perishable or has no intrinsic value.

Without such an order, a police officer MUST return the property to the owner or the person who lawfully had possession of the thing before it was seized. This means that you may be entitled to have property returned to you even if you are not the lawful owner. For example, you do not own property that you borrow or rent but because of the agreement you have with the owner, you have lawful possession of it.

It’s important to remember that the law requires the Commissioner of Police to make reasonable inquiries and efforts to locate persons claiming to be entitled to possession of a certain property and facilitate the disposal or return of that property. You are entitled to insist that your property be returned.

Documents you need now…

If police seize documents from you, unless they have an order from a Magistrate or a coroner, they must let you inspect the documents and take extracts or make copies of it. You must be allowed to inspect the document at any reasonable time and from time to time. While this provision relates to documents, it also encompasses computers that store documents. This provision can be helpful if computers or paperwork relating to your business have been seized.

If you or someone close to you has had property seized and would like to discuss arrangements for the return of that property, please contact our Brisbane criminal lawyers today.

by Jones + Associates

Have You Been Charged with Driving Without a Licence?

In Australia, driving isn’t an entitlement or a right. It is a privilege and a responsibility that shouldn’t be taken lightly. That’s why everyone needs a licence to do it.

But sometimes even honest, law-abiding citizens make mistakes. And in some cases, people just don’t think the rules apply to them. So they end up driving without a valid licence. But what happens if they get caught? Here’s what you need to know about being charged with driving without a licence.

When can you be charged with unlicensed driving?

In Queensland, you can be charged with unlicensed driving if the police catch you behind the wheel and:

• you have never had a licence at all;
• your licence is expired;
• you are driving with the wrong type of licence;
• a doctor has declared you medically unfit to drive;
• you gave up your licence voluntarily;
• your licence has been temporarily suspended.
• A court has disqualified you from holding a licence for a period of time

The penalties for driving without a licence

The punishment that will be imposed if you are convicted of driving without a licence will depend on the specific circumstances of your case. At most, you can be sentenced to 18 months imprisonment and 60 penalty points.

, and within this context, it is also important to note that an infringement notice won’t be issued in your case if:

• You are interlock driver (an alcohol ignition interlock is a breath test device linked to the ignition system of a vehicle) whose licence was not reinstated after a disqualification period for drink driving; or
• you are an interlock driver who didn’t have a valid Queensland driver’s licence  when the offence occurred and your interlock period has not ended; or
• you are an interlock driver whose Queensland driver’s licence had expired more than a month before the offence and your interlock period has not ended.

How your punishment is determined

If you have been convicted of driving without a licence and you are a repeat offender or a disqualified driver, the court weighs several factors when deciding how you should be punished. These typically include:

• The entirety of your case including any aggravating and mitigating circumstances;
• the public interest;
• your criminal and traffic records (if any);
• relevant information provided to the court about your medical history, mental  or physical impairment or physical ability;
• if you were driving without a licence during the commission or attempted commission of another offence, and the type of offence;
• any additional matters of interest to the court.

Driving with a suspended licence

Driving while your licence is suspended is also classified as unlicensed driving. Your licence could be suspended for a short time if you have accumulated too many penalty points for excessive speeding or for failing to pay certain fines. If you were charged with driving under the influence of alcohol or drugs, your licence may also be subject to immediate suspension pending the determination of the matter.

In any case, you are not allowed to drive while your licence is suspended. If you are caught driving with a suspended license, you will face harsher penalties than other types of unlicensed driving.

Your punishment will be based on the specific circumstances of your case. In other words, it will depend on why your licence was originally suspended. If it was suspended for failure to pay certain court-ordered fines, you could receive anywhere between a one to six-month license disqualification. If it was suspended because you accumulated too many penalty points, or engaged in excessive speeding, you could lose your licence for six months. All of these situations can also carry the maximum fine of 40 penalty units or imprisonment of up to one year.

If you are caught driving on an immediate suspension your punishment could be a two to five-year licence disqualification, a maximum fine of 40 penalty units, and a prison sentence of up to one year.

Driving with a recently expired licence

A ‘recently expired licence’ can be legally classified as one that lapsed less than a year prior to the commission of the offence; or as one that was rescinded (as a result of a physical or mental ailment that renders you unable to drive) less than a year prior to the commission of the offence.

If you have been charged with driving on a recently expired driver’s licence, a police officer may grant you a permit that allows you to drive to a specific location where you can safely store your vehicle.

Keep in mind that to be valid, this permit must:

• Be in an acceptable form;
• indicate the infringement notice number;
• state the duration, which cannot exceed 24 hours, for which it is issued;
• stipulate the conditions, if any, on which it is issued.

If you have been charged with driving without a licence, it is important to get sound legal advice as soon as possible. Contact our Brisbane traffic Lawyers today.

by Jones + Associates

What is a Conviction & How Can I Prevent it From Being Recorded?

Everyone knows that if you are found guilty of a crime, you’re convicted of the offence. Convictions, unsurprisingly, have serious ramifications and can potentially follow you for the rest of your life, regardless of your court imposed punishment. If a conviction is recorded it can affect you when applying for jobs and prevent you from travelling. Not all convictions, however, need be recorded. Below, we discuss non-recorded convictions and what that may mean for you.

Penalties and Sentences Act 1992

The Court is granted the discretion to not record a conviction by Section 12 of the Penalties and Sentences Act of 1992, even when the person in question has been found guilty and sentenced by the Court. When exercising this discretion, the Court will look at a variety of factors in determining whether or not the individual circumstances warrant leniency.

Factors that Influence Discretion

Nature of Offence: The type of crime for which you’ve been found guilty will play a role in the discretion of the Court, with minor offences more likely to be non-recorded than major offences.

Age & Character: The offender’s age and character will be taken into account. Because the goal of the criminal justice system generally revolves around fairness and rehabilitation, young offenders and those with no prior history with the criminal justice system are more likely to receive leniency, as they are more likely to resume behavior as law-abiding, productive members of society. This isn’t to say that older offenders will always have their conviction recorded, especially if they have a clean or minor record. It is important to remember that anyone with a clean or minor record has the right to request that their conviction not be recorded, even if they are not excused by youthful indiscretion.

Impact: When determining whether or not to record a conviction, the Court will also look at the potential consequences that a criminal record will have on the offender. In particular, they estimate the impact on the offender’s economic security, social wellbeing, and ability to find appropriate employment. However, it is important to note that merely asserting that a recorded conviction will increase the difficulty of finding a job may not be enough to inspire the Court to exercise leniency. The Court would rather deal in specifics so a letter from an employer or a list of criteria from the offender’s chosen career would be necessary to support this argument.

Disclosure

If you are not able to prevent your conviction from being recorded, you will be required to disclose this conviction in many circumstances, most notably when you are applying for jobs or travelling out of the country for work. There are other times, though, when you are not required to disclose.

Magistrates Court: If your conviction was in the Magistrates Court, you will no longer be required to disclose this conviction when: the conviction was at least five years ago; the term of imprisonment was only 30 months or less (or there was no term of imprisonment); you have completed any other court order; you have not committed any other offence within the five-year period; and no exceptions apply. If you meet all of these requirements, you will not be required to disclose and it will likely be unlawful for any other person to disclose it as well.

District or Supreme Court: Unlike a conviction in Magistrates Court, a conviction in a District or Supreme Court has a much longer lapse period. In order for your conviction to be spent so that you no longer have to disclose it: 10 years must have passed and you were not convicted during that time; you served a term of imprisonment 30 months or less (or were not assigned a term of imprisonment); no exceptions apply; and you have complied with and completed any other order of the court.

Preventing your conviction from being recorded can be imperative if you are hoping to keep your professional and personal life on track. Contact our Criminal Lawyers Brisbane today so that you have a professionally trained advocate to argue on your behalf.