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Defendant Self-help

Defendant self-helpIt is sometimes said around the criminal courts that there is nothing a defendant can do to make a difference when it comes to sentencing.

“The system” is stacked, so the story goes, against those accused of crimes.

While some situations are certainly more serious than others, and every case must turn on its own facts and circumstances, defendants can assist their positions mightily in the overwhelming majority of cases.

If it’s a traffic matter, make sure you complete the relevant drink- or drug-driving or traffic-offender program – and do so before Court.

If it’s a drug-use matter, obtain clear drug tests to show a change of behaviour.

If it’s an assault matter, consider a letter of apology to the victim – and make yourself available for Restorative Justice, the process that brings offenders face to face with their victims to hear of just what damage they have done, an often harrowing experience, but one generally smiled upon by sentencing magistrates.

If it’s a more serious matter, where a Court Duty Report, Pre-Sentence Report or Intensive Corrections Order assessment is ordered, ensure you make all appointments with the authors of those reports, and speak frankly and openly with them as well as making available other people (often employers and family) with whom they want to speak.

Failure to do so can be the difference between remaining in the community or being in prison, as a recent ACT Supreme Court case shows.

In a recent sentencing exercise in the Supreme Court, the justice was sentencing a man in his very early 20s for trafficking in cannabis and possessing a prohibited firearm and another firearm. (Three other charges, two of failing to properly store the firearms, and one of possessing ammunition, were taken into account).

The Judge thought an Intensive Correction Order may be appropriate. This would keep the accused in the community, under heavy supervision, rather than having to serve full-time custody in prison. He was sent for assessment.

The Judge noted at sentence, “I referred the offender for an ICO assessment … The report is … somewhat revealing. His compliance has been unsatisfactory.

“For example in 2019 he failed to attend 12 appointments despite being directed to do so. This fact alone renders an ICO an inappropriate option …

“An ICO in this case was the only viable alternative to full-time imprisonment. Now that it has been excluded, full-time imprisonment must follow.”

The young man went to jail for 18 months (with a non-parole period of 10 months), something that it was within his own power to prevent.

If you are facing sentencing in the criminal courts, you should consult a specialist criminal lawyer, who can assist you with the preparation of relevant materials as well as make submissions on your behalf. The team at Armstrong Legal deal only in criminal matters, you can reach us by phoning 1300 168 676.

Image Credit – Alexandr Ivanov ©

Written by Andrew Fraser on November 15, 2019

Andrew represents clients in the ACT Supreme and Magistrates Courts as well as the NSW Local and District Courts of the Canberra region. He appears also before the ACT Civil and Administrative Tribunal in licensing, mental-health and other matters. His breadth of experience allows him to tailor his advice and submissions to ensure the best possible results for his clients. View Andrew's profile

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