When it comes to criminal charges the earlier you get on to discussing your case with a lawyer the better. Criminal charges will not go away, you need to face them head on. Being armed with the right legal information and a proper understanding of the court process will provide you with the tools and confidence to make the right decisions as to how to deal with your criminal charges.
We understand that legal proceedings can be incredibly stressful. People who find themselves faced with having to go to court can feel intimidated and completely out of their depth.
We can help you understand the law and how the court works. We will listen to your side of the story. We will speak with the Police and appear in court on your behalf. We will assist you to deal with your matters in a manner that has the least amount of emotional and financial stress on you and your family. We will provide you pragmatic and realistic legal advice that will help you to make the most suitable decision for your particular circumstances.
Our lawyers are committed to ensuring you feel in complete control of your matters. We do this by providing you with information, and keeping you informed of what is happening with your case. You can be confident that we will deal with your case with discretion, sensitivity, and with the strictest of confidence.
We cover all areas of criminal law. Below is a list of some of the more common criminal offences a person may encounter:
Street offences are offences that are seen to be contrary to the reasonable standards of public behaviour. Most street offences are simple offences and a police officer may arrest any person found committing a street offence or alternatively a police officer may issue an offender with a notice to appear. Certain street offences can be dealt with by the issuing of an infringement notice or an ‘on the spot’ fine. If a person is issued with an infringement notice or a fine they have the option of choosing to be dealt with by a court proceeding if they wish to plead not guilty to the offence. If a person chooses to be dealt with by the court no criminal history is recorded.
Street offences can include the following:
- public nuisance
- public urination
- obstruct police or contravene requirement of a police officer (but only in relation to a public nuisance offence or where failing to state a correct name or address).
- Wilful exposure
- Public drunkenness
- Failing to comply with a police direction
Prostitution is when one person enters into an agreement to a provide sexual act(s) to another person for money. Prostitution in Queensland is regulated by the Criminal Code Act 1899 (Qld)(Criminal Code) and the Prostitution Act 1999 (Qld) (Prostitution Act).
Engaging in prostitution is not in itself a crime. For example, a prostitute who uses their own premises for their own prostitution (single worker establishments) does not commit an offence under law and a client visiting this establishment commits no offence. Also, a prostitute who visits a client’s place commits no offence. However, a prostitute or client may be liable for the offence of soliciting if they approach a person in a public place and offer them sex or sexual acts for the payment of money.
Certain provisions of the Criminal Code apply to prostitutes, their clients, and other persons involved in prostitution (e.g. the owners of premises used for prostitution).
Criminal offences relating to prostitution include the following:
- procuring another person to engage in prostitution
- knowingly participating, directly or indirectly, in the provision of prostitution by another person. This would apply to pimps, drivers and persons who finance the establishment of a premises used for prostitution
- leaving a place suspected on reasonable grounds of being used for the purposes of prostitution by two or more prostitutes without reasonable excuse, unless the premises is a licensed brothel
- knowingly allowing premises (other than a licensed brothel) to be used for the purposes of prostitution by two or more prostitutes
- knowingly allowing a child or an intellectually impaired person to be at a place used for the purposes of prostitution by two or more prostitutes.
The use of dangerous drugs in Queensland is regulated by the Criminal Code Act 1995 (Cth)and the Drugs Misuse Act 1986 (Qld)(Drugs Misuse Act).
It is very important to speak with a lawyer to confirm whether your drug charges can be dealt with summarily in the Magistrates Court or whether they have to be dealt with in the District or Supreme Court. It is much better for you if your charges stay in the Magistrates Court if possible because if your drug charges go to the District or Supreme Court there is a higher chance of you receiving a sentence of imprisonment if you were to be convicted of these charges.
The most important offences related to dangerous drugs created by the Drugs Misuse Actare:
- trafficking in dangerous drugs (s 5)
- supplying dangerous drugs (s 6)
- receiving/possessing property obtained from trafficking or supplying dangerous drugs (s 7)
- producing dangerous drugs (s 8)
- publishing or possessing instructions for producing dangerous drugs (s 8A)
- possessing dangerous drugs (s 9)
- possessing, supplying and producing relevant substances or things such as chemicals and apparatus used to manufacture dangerous drugs (ss 9A–9C)
- possessing things used in connection with a crime involving dangerous drugs (s 10)
- possessing certain property reasonably suspected of having been used or involved in the commission of some drug-related offences (s 10A)
- possessing prohibited combinations of certain items (e.g. chemicals commonly used to manufacture dangerous drugs) (s 10B)
- permitting premises to be used for drug offences (s 11).
Drug charges that can be dealt with in the Magistrates Court
The following offences (or attempts to commit such offences) in the Drugs Misuse Actcan be dealt with summarily in the Magistrates Court if the person, on conviction of the offence, is not liable to more than 15 years imprisonment (s 13 Drugs Misuse Act):
- supplying dangerous drugs (s 6)
- receiving or possession property obtained from trafficking or supplying (in certain circumstances) (s 7)
- producing dangerous drugs (s 8)
- possessing dangerous drugs (s 9)
- possessing, supplying or producing relevant substances or things (ss 9A–9C)
- possessing things (s 10(1))
- permitting use of place (s 11)
- being party to offences committed outside Queensland (s 12).
In addition to the above if you are charged with possession of a dangerous drug, and are liable on conviction to more than 15 years imprisonment, you may still have the charge dealt with in the Magistrates Court if the prosecution does not allege that the possession of the drug was for a commercial purpose (s 14).
If you are prosecuted summarily under these offence provisions you are liable, on conviction, to not more than three years imprisonment (ss 13(4), 14(3) Drugs Misuse Act). Whether or not indictable charges are dealt with summarily is at the election of the prosecution (s 118(2) Drugs Misuse Act).
However, a magistrate has the power to decide not to deal with a charge (s 118(4) Drugs Misuse Act) including if the magistrate considers that the charge is too serious and may require a sentence of longer than three years. In such a case your drug charges will be transferred to the District Court.
If you have been charged with a trafficking offence these can only be dealt with in the District or Supreme courts
Assault charges are dealt with under s 245(1) of the Criminal Code Act 1899 (Qld)(“Criminal Code”).
An assault is when:
‘[a] person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault’.
The term ‘applies force’ includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort (s 245(2) of the Criminal Code.
The word ‘assault’ is broadly interpreted and could extend to the situation where a person presents an unloaded gun or imitation firearm at another person. However, words by themselves which are not accompanied by some bodily act or gesture indicating an intention to assault, would not be classified as an assault.
It is an offence to assault someone unless the assault is justified or excused by law or where a person consents to the assault. An assault may be justified or excused by law if you act in self-defence. A person can consent to an assault for example in a boxing match. However, a child or intellectually challenged person cannot consent to an assault and if consent is obtained by fraud the assault will not be legal.
The following charges fall under this category of assault:
- Common assault
- Aggravated assault
- Assault occasioning bodily harm
- Serious assault
The following offences fall under this category:
- Rape and attempted rape
- Sexual assaults
- Indecent acts
Rape and attempted rape
Rape and attempted rape are dealt with under sections 349 and 350 of the Criminal Code Act 1899 (Qld)
Rape is given a broad definition and includes all forms of penetration of the vagina, anus or mouth. No one form of penetration is treated any more serious than the other which means that penetration of the mouth is treated equally as seriously as the penetration of the vagina or anus. The offence is also gender neutral, which means that both men and women may commit rape or be victims of it.
The offence of rape is punishable by life imprisonment.
Section 352 of the Criminal Code Act 1899 (Qld) (Criminal Code) deals with sexual assault.
Sexual assault occurs where a person:
- unlawfully and indecently assaults another
- procures another person without their consent to:
- commit an act of gross indecency
- witness an act of gross indecency.
A sexual assault can occur where there is penetration as well as other sexual touching or indecent conduct which does not include penetration.
The offence of sexual assault carries a maximum penalty of 10 years imprisonment, or 14 years if there is a circumstance of aggravation.
Indecent acts is dealt with under section 227 of the Criminal Code Act 1899 (Qld).
It is an offence to wilfully do an indecent act in public or to wilfully do so in any place with intent to insult or offend any person. The maximum penalty for an offence of indecent act is imprisonment for two years.
An indecent act should involve some bodily act. That standard of what is “indecent” is judged by normal community standards. It is a defence to show that the indecent act was not done wilfully, or in a public place, or if it can be established the indecent act was not done with an intent to insult or offend.
Dishonesty offences usually involve property. The most common Criminal Code offences include:
- theft and stealing (s 398)
- unlawful use of a motor vehicle (s 408A)
- fraud (s 408C)
- robbery (s 411)
- burglary (s 419)
- receiving tainted property (s 433)
- damage to property (ss 461, 469)
Theft and stealing charges
Section 391(1) of the Criminal Code Act 1899 (Qld) (Criminal Code) provides that a person who fraudulently takes anything capable of being stolen or fraudulently converts anything capable of being stolen to their own use (or to the use of any other person) is said to steal that property.
Fraudulence is the mental element of the offence of stealing. Fraudulence requires a degree of intention in the act of stealing. Under s 391(2) of the Criminal Code, fraudulence is present if there is intent to:
- deprive the other person of the stolen item permanently. This is the usual case for stealing. If a person only had the intention of temporarily depriving a person of the item the intention element for stealing is not made out.
- use it as a pledge or security
- take it on a condition about its return that the person may be unable to perform
- deal with it in a way that it cannot be returned in the same condition
- use it at the defendant’s will if the property is money, even if the defendant intends to repay the other person afterwards.
Shoplifting charges cover the following conduct:
- shoplifting—taking goods from a store without paying
- eating or drinking something in a shop without paying
- swapping, removing or altering price tags to get a lower price for an item
- leaving a restaurant or hotel without paying.
If the value of goods stolen is less than $150, shoplifting falls under the Regulatory Offences Act 1985 (PDF)and carries a fine of 6 penalty units ($756.9).
If the value of the goods stolen from a store is more than $150, you can be charged with the more serious offence of stealing (or fraud if you leave a hotel or restaurant without paying a bill greater than $150) which carries a maximum penalty of 5 years imprisonment.
Unlawful possession of a motor vehicle
The offence of unlawfully using or possessing a motor vehicle, aircraft, or vessel, is dealt with under section 408A of the Criminal Code Act 1899 (Qld).
This offence requires an intention to deprive the owner of the use and possession of the motor vehicle, aircraft or vessel, either temporarily or permanently; and that it occurred without the consent of the person.
The person in lawful possession of the vehicle need not be the owner of the vehicle. It may be the person who has had a vehicle lent to them by an owner. It includes persons who hire vehicles or persons who are minding a vehicle on behalf of another.
The offence of the unlawful use or possession of a motor vehicle carries a maximum penalty of seven years imprisonment. In some cases, a higher maximum penalty will apply:
- If the vehicle is used or intended to be used in the commission of an indictable offence (the maximum penalty is increased to 10 years imprisonment)
- If the vehicle or the mechanism of the vehicle is destroyed or intended to be destroyed, the maximum penalty is increased to 12 years imprisonment.
The offence of the unlawful use or possession of a motor vehicle is an indictable offence that ordinarily must be dealt with summarily in the Magistrates Court. In certain circumstances, it will have to be committed for finalisation to the District Court of Queensland. This usually occurs where a magistrate is of the view that they cannot adequately deal with the matter because it is too serious, or where the restitution or damage incurred exceeds $30 000
Fraud is a type of stealing that involves obtaining goods, property, money or services dishonestly—by not telling the truth. The offence of fraud is dealt with under section 408 of the Criminal Code Act 1899 (QLD)
A person commits fraud if they dishonestly:
- apply to their own use or to the use of any person:
- property belonging to another person
- property belonging to another person, or which is in that person’s possession, either solely or jointly with another person, subject to a trust, direction, condition or on account of any other person
- obtain property from any person
- induce any person to deliver property to any person
- gain a benefit or advantage, pecuniary or otherwise, for any person
- cause a detriment, pecuniary or otherwise, to any person
- induce any person to do any act which the person is lawfully entitled to abstain from doing
- induce any person to abstain from doing any act which that person is lawfully entitled to do
- make off without having paid and with intent to avoid payment, knowing that payment on the spot is required or expected for any property lawfully supplied or returned, or for any service lawfully provided.
Other fraud-related offences include:
- concealing registers or records (s 399)
- fraudulently obtaining or dealing with identification material (s 408D)
- obtaining property by passing valueless cheques (s 427A)
- forgery and like offences (ss 488–502)
- personation (ss 514–515).
- Computer hacking and misuse (s408E)
To prove a fraud the prosecution must prove that a person acted dishonestly. To prove fraud, the person must have acted dishonestly by the standards of an ordinary, honest and reasonable person, and the person must have known that their actions were dishonest by these ordinary standards.
The maximum sentence for fraud is five years imprisonment, but in certain circumstances it can be increased to 12 years. When the amount of money dishonestly taken is greater than $30 000 and if the fraud was committed by an employee or company director in the course of employment, or where the person had possession or control of the property in accordance with a particular obligation (e.g. a trustee) then the maximum sentence of 12 years imprisonment will apply.
Offences of fraud will usually be determined in the District Court, but where the value of the property stolen is less than $30 000, there is provision for the charge to be dealt with summarily in the Magistrates Court.
Section 409 of the Criminal Code Act 1899 (Qld) deals with the offence of robbery. Robbery is where violence is used, or threatened to be used, either immediately before or after the stealing of property. The actual or threatened violence may also be used to prevent or overcome resistance to the stealing of the property.
The violence or the threat of violence must be used for the purposes of obtaining the property or allowing a person to overcome resistance.
Any amount of violence will be sufficient to establish an act of robbery.
The penalty for robbery is imprisonment for 14 years.
In some circumstances a robbery will be considered more serious and will provide for a higher sentence of life imprisonment. Circumstances of aggravation that provide for a greater penalty of life imprisonment are as follows:
- where a person is armed or pretends to be armed with a dangerous or offensive weapon
- where the person is in company of other persons
- if, at the time or alternatively immediately before or after the robbery, the person wounds or uses any other personal violence to any person (s 411 Criminal Code).
An offensive weapon can be gun or sword. It may also be ordinary items which can be weapons depending on the circumstances, such as a knife, wood palings, screw drivers or hypodermic needles and syringes. Whether an item is a weapon depends on the manner in which it is used.
The offence of robbery, either with or without a circumstance of aggravation, can only be dealt with on indictment in the District Court of Queensland.
Burglary is dealt with by section 419 of the Criminal Code Act 1899 (Qdl). Burglary is the illegal entering of someone’s house with the intent to steal.
The offence of burglary has a maximum penalty of 14 years imprisonment, however, if the burglary takes place at night, the break-in is made with an accomplice, or if the person is armed or even pretends to be armed with some sort of a weapon, the maximum penalty is life imprisonment.
Breaking and entering is specifically defined by section 418 of the Criminal Code Act 1899(Qld):
‘(1) A person who breaks any part, whether external or internal, of a dwelling or any premises, or opens, by unlocking, pulling, pushing, lifting, or any other means whatever, any door, window, shutter, cellar, flap or other thing intended to close or cover an opening in a dwelling or any premises, or an opening giving passage from one part of a dwelling or any premises to another, is said to break the dwelling or premises.
(2) A person is said to enter a dwelling or premises as soon as any part of the person’s body or any part of any instrument used by the person is within the dwelling or premises.
(3) A person who obtains entrance into a dwelling or premises by means of any threat or artifice used for that purpose, or by collusion with any person in the dwelling or premises, or who enters any chimney or other aperture of the of the dwelling or premises permanently left open for any necessary purpose, but not intended to be ordinarily used as a means of entrance, is deemed to have broken and entered the dwelling or premises’.
Burglary is a serious offence and is dealt with seriously by the Court. If you have been charged with burglary you need to speak with a lawyer.
Receiving tainted property
Receiving tainted property is dealt with under s433 of the Criminal Code Act 1899 (Qld).
‘A person who receives tainted property, and has reason to believe it is tainted property, commits a crime’. To constitute receiving, ‘it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his or her possession, or has aided in concealing it or disposing of it’ (s 433(2)).
The law provides far more serious penalties for receiving than stealing. A person who steals (if no other punishment is provided) is subject to a maximum of five years’ imprisonment, while a person convicted of receiving stolen property can be subject to a maximum of seven or fourteen years’ imprisonment.
Wilful damage/Unauthorised damage to property
It is an offence for any person to wilfully and unlawfully destroy or damage any property. Wilful damage is dealt with under section 469 of the Criminal Code Act 1899 (Qld).
The maximum penalty for wilful damage is five years’ imprisonment. The seriousness of the offence will depend on the circumstances and is determined with reference to the type of property which is damaged and/or the method by which it is damaged.
A similar offence of “unauthorised damage to property” where the loss caused is $250 or less may be brought under section 7 of the Regulatory Offences Act. If the charge is brought under the Regulatory Offences Act, the matter must be dealt with in the Magistrates Court.