The charges

Our client was initially charged with Aggravated break and enter with intent to commit a serious indictable offence, Assault occasioning actual bodily harm and Custody of a knife in public. The charges were laid after the April 2018 Early Appropriate Guilty Plea Reforms (aka “EAGP reforms”).

The EAGP reforms require a case conference to be held during which the lawyers for the defendant and a lawyer from the Office of the Director of Public Prosecutions (DPP) negotiate the charges and facts to see if we can come to a resolution. Naturally, defence lawyers don’t need to wait until the case conference date (which is typically several months after the charges are laid) to start negotiations.

In this particular case, our solicitor Elizabeth Tsitsos commenced negotiations very early on in the proceedings. Her negotiations were successful and our client’s plea offer was accepted. The prosecution withdrew the charge of Aggravated break and enter (which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years) upon a plea of guilty being entered to one charge of Break and Enter (which carries a maximum penalty of 14 years imprisonment).

This meant our client’s case remained in the Local Court where the jurisdictional limit is two years imprisonment per offence. He also pleaded guilty to possession of a knife in public and he acknowledged his guilt in relation to the assault.

 

The sentence

In the Local Court, our client faced maximum penalties of two years imprisonment for each offence. His case was finalised less than six months after the charges were laid.

During the sentencing hearing, the DPP submitted that a a term of imprisonment was warranted. Ms Tsitsos submitted the opposite; that in this case a term of imprisonment was not warranted. The Magistrate ultimately agreed with Ms Tsitsos’ submission that no term of imprisonment was warranted despite the numerous aggravating factors such as the use of a weapon (hammer) in the commission of the offence.

After lengthy oral submissions made on behalf of our client, our client received two community corrections orders requiring him to undertake 252 hours of community service work. He also received a small monetary fine for possessing a knife in public.

 

Conclusion

It is worth noting that between September 2018 to March 2019, less than 20% of offenders in NSW who were sentenced for this offence of “break and enter with intent to commit a serious indictable offence” received a Community Corrections Order; the vast majority did in fact receive full time terms of imprisonment. This was an excellent result for our client who can now focus on his future goals and move on with his life.

 

Special thanks

We greatly appreciate the invaluable assistance of a Korean interpreter. Our client, a foreign national, did not speak any English and had only been in Australia for a few months leading up to the offence. He had an unblemished criminal record and had never been through a criminal justice process in any jurisdiction. Access to justice is one of our founding principles and it is only with the assistance of interpreters that we can ensure all defendants receive appropriate advice and assistance, no matter how they enter our justice system.

 

Written by Elizabeth Tsitsos

 

Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.