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刑法

New laws for drink driving offence - NSW

Due to the recent law reform, regulations in relation to drink driving offences were strengthened.   Mandatory interlock for mid-range offenders Since 1 December 2018, all drivers convicted of mid-range (between 0.08 and 0.149) drink driving offences in NSW are required to have an interlock installed. In other words, it mandatorily requires an interlock installation unless a court order is given to nullify the application of such interlock program to an offender. The interlock program has been expanded so that is also applies to drivers who commit a lower or mid-range drink driving offence for the first time. An interlock is an electronic device connected to the ignition of a vehicle for breath testing. In accordance with the law reform, drivers convicted of mid-range are ordered to complete a licence disqualification period for 3 to 6 months and a period of participation in the interlock program for at least 12 months. It may appear that the regulations has been loosened comparing with previous penalties which required 6 to 12 months licence disqualification period. Notwithstanding, the interlock program would be a more effective deterrence for those who commit repeat or serious drink-driving offences. Drivers who are given the interlock program order may appeal to the court that an alternative order be imposed, and such appeal is accepted only to the cases of an applicant having special medical reasons, an applicant not having a car or financially incapable of installing the interlock. In fact, the interlock program has been applied to drivers convicted of high-range (over 0.150) or more than second-time offences. For all drivers that are ordered a mandatory interlock, an interlock device should be installed for a period that the court ordered at its own costs (approximately $2,200 per year). Those who fail to install the interlock device might be ordered to complete 5 years of a licence disqualification.    Increased fines for drink driving offenders From 20 May 2019, a maximum court-imposed fine for those who are convicted of a drug driving, lower-range or special range drink driving offences will increase from $1,100 to 2,200. For mid-range drink driving offences, the maximum court-imposed fine and prison term will be strengthened from $2,200 and 9 months to $3,300 and 9 months. In addition, drivers who commit a lower-range drink driving offence will have their licence immediately suspended for 3 months coupled with $561 of a fine from 20 May 2019, which were previously required a formal court proceeding. However, drivers whose licence being suspended may appeal to the court if unsatisfied with their penalties.   Immediate suspension of licence Drivers charged with lower-range drink driving offences before 20 May 2019 may maintain their licence until they are found to be guilty before the court. If the court decides that drivers are found guilty but have a no conviction recorded, their licence may not be suspended. Contrarily, those who are charged with mid-range drink driving offences will have their licence suspended by the police, and they are prohibited from driving until the court decision. The recent law reform in the parliament empowers the police to have licence for lower range, novice range or special range drink drivers suspended immediately from 20 May 2019. That reform prohibits charged with drink driving offences from driving any car until a final decision will be made, even though the court will find not guilty of those offences. For instance, if a driver A who has held its licence for 40 years without any criminal conviction commit a drink driving offence (testing result between 0.05 and 0.079) for the first time, he or she is restricted from driving until the court gives a final decision. An initial hear, in practice, is assigned 4 to 6 weeks after the date of a charge imposed. It may take further 2 weeks in case of appeal. An additional period may be required if a traffic offenders program is ordered. It might have a significant impact on those who are in need of using its car for work or family members. 


刑法

Drink Driving

  The most common crime committed by Korean people in Australia will most likely be drink driving. If you go to Burwood Local Court, on average there are 2-3 Korean people that appear for drink driving charges. Even amongst the police, the first thing that comes to mind when the word ‘Korean’ is mentioned is ‘drink driving’ and hence why the police hide in areas such as Strathfield and charge Koreans who drive under the influence of alcohol.   Drink driving cannot be thought of as a mere violation of traffic laws. It is a criminal offence that can remain on the charge list. It does not end with a mere fine but rather it is a serious offence which can be taken to court where you will stand trial in front of a judge. In most cases, licences will be revoked. Overall, it is not a pleasant experience if you are caught under the influence, as you will be arrested on the spot and taken to a police station where you will spend some time in the cells. As previous columns discussed in detail, punishments and suspensions related to drink driving, this column will focus on cases of drink driving and the initial response associated with it.   During consultations with clients, the most asked question is “can I get a Section 10?”. The reason for this is that in order to avoid licence suspension, you must obtain a section 10. However, the question cannot be answered so easily. A judge can only give advice on such question, after reviewing various avenues. The second most frequently asked question is “do I need a lawyer?”. This also depends on the situation. Conditions such as; the following need to be taken into consideration before deciding whether a lawyer is required or not: how important is it to reduce the licence suspension period; what are the chances of obtaining a section 10; and how much will be fined.   Looking at the two examples below, let us see what will happen if you’re caught under the influence.   First example: 65 year old woman named “Y”. “Y was invited to dinner one evening and was served with a course meal. With every course that was served, complimentary wines were also provided and at the recommendation of the chef, she drank little sips of the wine. After 2 hours, once the meal had concluded, she decided she was too drunk to drive. She spent approximately 2 hours to sober up and then began to drive. On the way home, she was caught by the police for using her mobile phone whilst driving. The police turned on the siren and chased her but she did not see her and continued to drive for approximately 2-3km. The police stated that the car had been moving side to side and at times nearly hit the cars riving beside her. Eventually, the police stopped her and took a breath test where she was charge with Mid-Range PCA due to a blood alcohol reading of 0.089.”   Mid-Range PCA (0.08-0.149) carry a fine of $2,200 or less for first time offenders or a prison sentence of up to nine months including licence suspension of at least 6-12 months. Firstly, obtaining a section 10 for Mid-Range offences is very difficult. Section 10 are only given to ‘very special cases’ by the judge. Most people who request a Section 10, consider their case as special however, for a judge who deals with 40-50 drink driving cases a day, a case must be considered really special to obtain a section 10.   Y appointed me as her lawyer and immediately pleaded guilty. On behalf of the client, the I provided a detailed description of the situation and the client’s background to the judge. However, the judge did not want to hear anymore and was furious as to the fact that the client had been driving dangerously whilst under the influence and did not see the police chase her for 2 – 3 km. On the other hand, I continued to explain the clients’ situation to the judge. I explained that this situation is an exceptional case, as Y who does not usually consume alcohol, has contributed a lot to society as a community member and does not have any past criminal records. I persuaded the judge by stating that Y has learnt a lot from her mistakes through this case and has shown a lot of remorse for her actions. Not only this, but that Y would never commit such crime again and that losing her licence would not only have a great impact on her but also will have a great impact on her ability to volunteer to help the elderly who live alone. Y was able to obtain a section 10 and avoid licence suspension.   Second example: 26-year-old male named “K” who came to Australia on a working holiday. “K was drinking alcohol at Strathfield and at approximately 1am he drove home. His place of residence is an apartment located in Strathfield which is approximately 2km away from where he consumed alcohol. When making a right turn on the way to his house, he crashed his car into a wall. The police arrived at the scene and he was charged with High-Range PCA with a blood alcohol level of 0.165.” High-Range PCA (0.15 and over) offences are subject to a fine of $3,300 or less for first time offenders or a prison sentence of up to 18 months, a licence suspension of at least 6-9 months and an interlocking period of at least 24 months. The licence suspension is shorter than a Mid-Range offence however the period for which the Interlock is to be installed is longer. A Interlock is a control device which conducts a breath test and only when the blood alcohol concentration level is 0, the car will start. The cost of an Interlock machine is approximately $2,200 every year.   K appeared in court without a lawyer and pleaded guilty. The judge tried to impose a prison sentence and asked for him to obtain a Pre-Sentence Report in order to determine his background information, thereby postponing he sentence by six weeks. K’s Pre-Sentence Report was very negative. The report was obtained through an interview with K whereby the interviewer stated ‘K does not take his crime seriously and thinks it is sufficient to only pay a fine’. The judge read the report and indicted K with 400 hours of community service, a nine-month licence suspension and 36 months of interlock installation. Due to the accident, his car was destroyed however he failed to advise the judge of this and as a result was charged with the above.   K came to me after this occurred and complained about the procedural unfairness, he received which lead to an appeal of the decision. The case was appealed in the District Court and after taking into consideration several factors, the client additionally received a $800 fine, a minimum licence suspension period of 12 months due to being exempt from installing the Interlock machine. If K had consulted with a lawyer prior to the initial charge, he could have avoided the severe punishment he received and would not have had to pay such an extensive amount of money. Even though it was a High-Range PCA charge, 400 hours of community service for first-time offenders is a very severe punishment. If the judge had been persuaded that there was no car available to install an Interlock then the client could have avoided the Interlock installation period.   As can be seen in the examples outlined above, depending on the situation that arises, different outcomes can occur. Although you can obtain information from these columns and articles on traffic offences and laws, due to the lack of expertise advice provide, it is hard to determine what type of punishment will be applied in your situation. Even if you do not appoint a lawyer, I recommend you seek professional advice from a criminal law specialist.  


刑法

Changes Foreign Resident Capital Gains Withholding from 1 July 2017

Where a foreign resident sells Australian property over $750,000.00, the purchaser is now required to withhold 12.5% of the purchase price (or cost base) and pay that amount to the Australian Taxation Office (ATO) prior to completion, unless a clearance certificate has been obtained by the vendor from the ATO. On 22 June 2017, the Treasury Laws Amendments (Foreign Residents Capital Gains Withholding Payments) Bill 2017 came into effect which reduced the threshold and increased the rate of the foreign residents capital gains tax withholding.   The effect of the legislation is that for any contracts entered into after 1 July 2017: The threshold to withhold has been reduced from $2m to $750,000 The withholding rate has been increased from 10% to 12.5%   EXAMPLE: If you entered into a contract to buy a property from a foreign resident for $850,000 and you are not provided with a clearance certificate from the ATO by the vendor before settlement, you will now be required to withhold $106,250 from the purchase and remit that sum to the ATO.


刑法

Domestic Violence & AVO

As a criminal lawyer, I have been many times asked for a consultation in relation to domestic violence and AVO (Apprehended Violence Order). It may appear awkward in the eyes of Korean where certain domestic issues are being treated seriously in Australia. Compared with Korea, most domestic violence cases are dealt with in a more serious manner and end up with an alleged convicted being prosecuted. In this regard, it is necessary to consider how the domestic violence is defined and what a person alleged of domestic violence should prepare.    Most of all, domestic violence is defined as violence between persons in a domestic relationship. The domestic relationship generally include married couples, families, partners and couples in love as well as relatives living in a same residential area. In addition, despite an absence of family relationship, a domestic relationship could be found if people reside in a same property. In terms of the violence, it includes not only physical violence but also psychological violence such as stalking, threats and damage to property.    In general, the police intervene in a case if a victim reports to them. The victim is able to either call or attend the police for the report. Also, the police may attend a scene if reported by a victim’s neighbours. Once a case is reported to the police, it has to be investigated in detail, and may result in a prosecution or conviction.    An example below is an actual domestic violence case that I have dealt with. A husband and a wife were a newly married couple, and they frequently had arguments. One day, the wife shouted at the husband during an argument, and the husband covered his wife mouth by his hand. Due to a report by a neighbour, the police attended the scene, and the husband was arrested and sent to the police station although the wife asked not to do so. During the interview at the police station, the husband stated that he did not use his force, however, he was finally prosecuted for common assault and applied for AVO under the name of the protection of the wife.    As seen in the above case, covering a person’s mouth can be defined as a violent conduct. Hence, if the husband stated as he did, the court would have decided the case against him. Furthermore, the wife may be called to provide evidence if the husband denies to attend the court.    The husband in that case initially argued for his innocence before the court. Evidence presented before the court were the statements of husband and the police, and the voice record of the wife. As usual, a request for withdrawal of a prosecution was not accepted due to its nature of domestic violence. After several postponement of hearings caused by the husband’s absence, the court determined that their honour would decide its case only based on limited evidence, mainly the statement of the wife. As a lawyer representing the husband, I proposed two options to the client. The one was to plea not guilty before the court, however, this choice may require the wife to provide a statement in the court and to be exposed to a cross-examination. The other option was to plea guilty. In that case, the court is likely to apply section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which enable the accused to be treated as a criminal but without actual punishment. It was agreed with a prosecutor that a sentence in accordance with section 10 would be adequate for the husband’s case. Even though sentencing is a matter of the court’s discretion, it is less likely that an actual sentence deviates from an agreed sentence between parties. Ultimately, the husband plead guilty and was sentenced under section 10.  As a solicitor is capable of dealing with this kind of cases during the whole court process, a barrister is not recommended to be hired.    There are several considerations in relation to the above case.  The wife had never thought that merely because of her husband’s conduct covering her mouth, he would be prosecuted. For that reason, the wife made a statement as to what it happened. It is rather recommended that if the wife does not want the police to intervene, her statement to the police at the scene must be delivered cautiously. The police are not allowed to enter into a residential place without any writ unless there is a risk of danger or violence.  The husband also admitted his conduct during the initial investigation as he believed that that would not be a violent conduct. It is recommended that a police interview must be denied without any assistance with a lawyer if you are brought into custody for an allegation. This is because a purpose of the police interview is not to prove your innocence, but to collect evidence. Every convict has a right to remain silent. To exercise its right to silence cannot impact on a case negatively.  Furthermore, although the husband denied to attend the court hearing in the above case, it is rare that the court issues an arrest warrant for a hearing except aggravated cases. As such, the accused is less likely to be found guilty in case where only available evidence is a statement of a victim in a domestic violence context.   Accordingly, it is vital to seek a legal advice from a criminal lawyer as soon as practicable if a person is alleged of a criminal offence. The police are obliged to provide the accused with an opportunity to contact its legal representative. Had the husband have a legal advice, he would not have spent six months and additional legal fees.   


刑法

Do you need an interpreter when calling the police?

Any resident in Australia has the right to request an interpreter.  "If you are a victim of crime, know about a criminal, or know about a crime, there are a number of ways you can use the interpreter service to report it to the NSW Police, who can arrange a language interpreter or AUSLAN, If you speak a little English but are more comfortable with your first language, the police can arrange a free professional interpreter free of charge. Independent professional interpreters work under confidentiality provisions and interpreter code of ethics. You can rest assured that any information provided to the interpreter remains confidential. Police can use bilingual staff or telephone interpreter services or arrange interpreters to attend the interview. It is important that you tell the police the language in which you can communicate most confidently so that the police can arrange the appropriate interpreter. If you use a rare language, dialect, or additional language, please notify the police. You may also find alternative interpreters. You can also tell the police about special preferences, such as using a female interpreter. It may not always be possible, but the police will try to help you. "   https://www.youtube.com/watch?v=EPHjlIjV-Bc&feature=youtu.be