Wednesday, 8 November 2017

Sentencing Options

For the majority of people, their first exposure to the Criminal justice system occurs when they are charged with offences that are dealt with at the Local Court. This is because most offences committed each year are summary in nature, and as such are not serious enough to warrant appearances before the District Courts or the Supreme Court. Therefore, it is important that defendants (i.e. those charged with an offence) understand the broad range of penalties that are available to Magistrates at the Local Courts, when they sentence someone on the basis of various sentencing principles. The sentencing options available to the Local Courts Magistrates are:

Fines
Fines are the most commonly imposed in addition to Good Behaviour Bonds. The defendant’s current financial circumstances and other relevant considerations may be taken into account by the Local Court when determining the size of the fine. Once a defendant has been ordered to pay a fine, they are given a maximum of 28 days to pay the amount in full, but the court registry can extend this if the offender is not able to pay within the time period. However, if a defendant refuses to pay a court-ordered fine, it may possibly result in the seizure of assets, wage deductions, an order of community service, or in relation to traffic fines, suspension or cancellation of their driver’s licence or vehicle registration.

Good Bonds
These bonds obligate defendants to be of good behaviour, and the court may also impose further conditions that must be complied with for the duration of the bond. These include a condition that the defendant be supervised by an officer of the Community Corrections Office, for as long as the Service deems it appropriate. The court may also include a condition that defendants attend counselling to help treat their alcohol or drug-abuse problem, or defendants may be ordered to reside at a rehabilitation centre to receive more intensive treatment.

There are a wide variety of bonds available in the Local Court, such as the bond stated in section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which allows Magistrates to direct offenders to enter into a good behaviour bond for less than five years, after convicting them of an offence. If the conditions of the section 9 bond are breached or the defendant commits another offence, then the Magistrate may cancel the bond and impose a sentence. There are also section 11 bonds, which allow Magistrates to find an offender guilty of an offence, but suspend the sentence for a period of 12 months, in order to assess their capacity and prospects for rehabilitation, to demonstrate that rehabilitation has taken place or for any other reason the court considers appropriate in the circumstances.

Dismissal and conditional discharge under Section 10
Section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nonetheless discharge that person without proceeding to conviction. Because there is no conviction recorded, a major benefit of section 10 is that it means that the defendant will not have a criminal record. The court will take into account the person’s character, antecedents, age, health and mental condition, the trivial nature of the offence and any other extenuating circumstances when determining whether to grant an outright dismissal.

Intensive Correction Orders (ICOs)
ICOs are an alternative to a sentence of imprisonment that can be made when a court is satisfied that no sentence other than full time imprisonment is appropriate for an offender, and that the sentence is likely to be for a period of 2 years or less.

Instead of entering full time custody, offenders subject to ICOs are managed in the community by the Community Corrections division of Corrective Services NSW. The two major components of ICOs are:
· supervision by a Community Corrections Officer, whereby the offender's behaviour is monitored and their rehabilitative needs are addressed; and
· community service work, whereby the offender undertakes 32 hours of unpaid work in the community each month.

Suspended sentences under Section 12
A Local Court that imposes a sentence of imprisonment on an offender of a period less than two years, has the option of making an order suspending the whole of that sentence for the duration of its term. The court can then specify in the order that as a condition of their release from custody, the offender must enter into a good behavior bond for the term of the sentence, to prevent the sentence of imprisonment coming into effect. However, it is important to understand that suspended sentences should not be perceived as an alternative to custodial sentences. This is because under section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) a sentence cannot be suspended until it has actually been imposed- it is only the execution of the sentence that is suspended. However, suspended sentences are not available to offenders where they are also subject to another sentence of imprisonment. Also, if the Local Court decides to later revoke the sentence for any reason, it may choose to re-impose the original sentence of imprisonment on the offender, which can be served full-time, part-time or through home-detention. The court is obligated to revoke the order if there is a breach of the bond under section 98(3), unless it is satisfied the offender’s failure to comply with the conditions of the bond was “trivial in nature”, or the offender had a valid reason.

Full-time Imprisonment /Home Detention
Full-time imprisonment should always be the sentence of last resort for courts, with the maximum available term of imprisonment that can be sentenced in Local Courts being two years. Home detention may also be an option.

If you have questions on sentencing options or anything else, please contact any of our Solicitors at Matthews Williams.

Thursday, 12 October 2017

Marriage Celebrants

With Marriage being in the news currently, then the question may arise:  “How do I become a marriage celebrant?”

Well it is not that simple....you need to become qualified and become an Authorised Celebrant under the Part IV of the Marriage Act, 1961.

Ministers of Religion are registered as Marriage Celebrants after being nominated their Church or faith as Marriage Celebrants and are able to marry persons in accordance with their Church or faith throughout Australia.  Chaplains in the Armed Services have the ability to solemnize marriages overseas where one person is in the Australian Defence Force.

Registrars of Births Deaths and Marriages are also by their Office automatically Marriage Celebrants and most Registrars of Courts in rural NSW are able to perform marriages.  Also most Australian diplomatic or consular officer in foreign countries are also authorised to perform marriages in those countries.

Otherwise to become a fully certified and authorised Marriage Celebrant, you will need to be at least 18 years of age, be of good character and attend the correct training and showcase your knowledge surrounding marriage legislation. The relevant training that needs to be completed is a Certificate IV in Celebrancy which can be obtained at many registered training organisations including TAFE.

After vetting by Police and paying fees a person becomes Registered as a Marriage Celebrant and they may solemnise marriages at any place in Australia at any time subject to the Act and provided the Bride and Groom give at least 1 months notice to the Celebrant in writing of their intention to marriage.  Instant marriages are not possible.

If you have questions on the Marriage Law or anything else, please contact any of our Solicitors at Matthews Williams.

Monday, 7 August 2017

Business Law....Duties and obligations

Are you looking to set up a new business, buy or sell a business? The law puts a tremendous amount of responsibilities upon Business owners and employers.

Starting in business can be an exciting time. You can’t wait to put your ideas into action and a lot of hard work. However, there are a range of Business Law issues you must take into account:
Will you be employing staff to help run the business?
Will you have contracts will your customers or clients?
How will you deal with leases, insurance, debt recovery?
Do you have finance in place?
What tax implications are there in your business?
Do you understand the fair trading regulations?

Before you commit to a lease, employ people or start  work for clients, you need to be sure that you are not putting yourself in legal jeopardy or risking criminal or financial penalties.

Running your business may involve a range of Business Law issues:
Guarantees and security documents;
Confidentiality agreements;
Copyright and intellectual property law;
Partnership and shareholder disputes;
Customer disputes;
Supplier and contractor agreements;
Terms and conditions of trade;
Bankruptcy and Insolvency;
Work Health and Safety requirements.

Selling your business has a range of issues you need to think through before signing a contract. In particular, the negotiation for the sale of the business. Many factors come into play when deciding on a sale price for your business. Issues that arise include whether GST is applicable in the sale price and liabilities, responsibility for employees, and trading restrictions that may apply.....just to name a few.
Rushing the sale of a business may devalue your life’s work.

If you have questions on Business Law or anything else, please contact any of our Solicitors at Matthews Williams.

Wednesday, 5 July 2017

WHY ARE MINUTES OF YOUR MEETINGS ESSENTIAL?

The answer is that they are required by Section 50 the Associations Incorporation Act, 2009 and must be kept by the Secretary.  Similarly corporations are required to keep minutes of meetings too.  Members may at all reasonable times inspect the minutes although Shareholders of corporations have only limited ability to view minutes of Directors meetings.

There are no absolute rules about how minutes of meetings should be set out other than they need to be in English and be reasonably understood.

To minimize controversy (and possible litigation), we suggest that minutes have included in it a list of those attending, those who apologise, incoming /outgoing correspondence (including emails and other web based messaging) and most importantly a Treasurer’s (or Finance report).

Also there should always be a motion to confirm the previous minutes with or without amendments. The Chairperson should sign the minutes and date them to certify they are correct. We find that circulating minutes of the previous meeting and reports (particularly via Email) to be helpful in reducing time in having minutes read out at subsequent meetings.

Motions need to be accurately set out by the Secretary in the minutes and he or she should indicate in some many that they were carried or lost or amended and carried.  The Chairperson should always ask for either a show of hands or may even pass the motion on the voices.  Too often the Chairperson fails to declare the motion as past and that can lead to controversy.  Some motions require either by Law or by the Rules to have secret ballots and those rules must be strictly adhered to avoid litigation.

All Chairperson, the Executive and members should read articles on the internet about meeting procedure.

We also find that so many Secretaries fail to an essential in Minutes being the meeting date and where it was held.  It is also helpful to put in start and finish times of the meeting.

If you have questions on Minutes, Meeting Procedure or anything else, please contact any of our Solicitors at Matthews Williams.

Tuesday, 6 June 2017

New MOTOR ACCIDENTS STATUTE

The NSW Parliament has passed the Motor Accident Injuries Act, 2017 which changes and limits what claims maybe made on your green slip insurance policy.

The new Statute will commence on or about 1st December, 2017 and will apply to motor vehicle accidents occurring after its commencement. The existing Statute applies until then.

For those sustaining a personal injury as a result of a motor vehicle accident will now only have access to statutory benefits regardless of fault unless they have been charged with or convicted of a serious driving offence.

No common law damages will be recoverable for so called minor injuries and a new Disputes Resolution Service will be established. Serious injuries may still enable some common law claims but they are limited.

The time for making and serving a claim will be reduced from 6 months to 3 months and if you are losing income and do not serve a claim within 28 days of the accident you may lose your right to back claim lost wages.

Statutory benefits for minor injuries and those at fault may cease after 26 weeks.

In short most claims benefits will be limited and green slip costs will no doubt increase the profitability of the Insurers to the detriment of benefits.

If you have a Personal Injury claim are very complex but then we can assist in this or any other legal problem. Please contact any of our Solicitors at Matthews Williams.

Friday, 19 May 2017

What is Civil Litigation?

Litigation is the term used to describe proceedings initiated between two opposing parties to enforce or defend a legal right. It is not a Criminal prosecution but rather a Civil matter.  Civil Litigation is typically settled by agreement between the parties, but may also be heard and decided by a magistrate or judge in court or an arbitrator in some instances.

Contrary to popular belief, litigation is not simply another name for a lawsuit. Litigation includes any number of activities before, during, and after a lawsuit to enforce a legal right. In addition to the actual lawsuit, pre-suit negotiations, arbitrations, facilitations and appeals may also be part of the litigation process.

Civil litigation includes matters before the Supreme Court, the District Court, the Local Court, the Land & Environment Court, the Family Court, the Federal Court, the Motor Accidents Authority Tribunals, the Workers Compensation Commission and even the NSW Civil & Administrative Tribunal (NCAT).  Solicitors have a right of appearance in all Courts and most Tribunals.  Appearances in NCAT in most matters requires leave of the Tribunal to appear for a client.

Litigation begins the moment someone decides to formally enforce or defend his or her legal rights. In most cases, this happens the moment a party engages a Solicitor to represent their interests. Most Solicitors engage in a variety of “pre-suit” litigation activities. These can include many things, from writing a letter on a client’s behalf called a demand letter, to demand compensation. However, there are several different steps in litigation that occur in nearly every case.  For further information contact us.

Monday, 24 April 2017

What is Compensation Law?

Compensation may be defined as: ‘A monetary remedy that is awarded to a person who has sustained damages or an injury and it is given in order to replace the loss caused by the damage done or injury sustained.’ 

The most common injury claims are related to Workers injuring themselves at work or travelling to and from work and motor accidents. Motor Accident claims revolve around negligence and can be claims made on Green Slip Insurers or motor vehicle Comprehensive Insurers. 

However, it may also be for compensation when your land is compulsorily acquired by the Government. It maybe that compensation is awarded when there is a breach of contract and someone suffers loss. 

Compensation for damages or loss originally devolved from the Common Law but in a lot of cases the Common Law has been modified by our various Parliaments over the years, such as the Workers Compensation Acts, the Motor Vehicle Accidents Act, Civil Aviation (Carriers' Liability) Act, the Civil Liability Act and many more. 

Some of these Acts only allow you to make a claim within limited times. Three years is the normal time but it can be more or less. For example, in Air Accidents claims have to be brought within 2 years of the accident. In Motor Accident claims for personal injury must be made within 6 months from the date of the accident but in claims for damage to your car, the period is 6 years. Breach of contract claims are 6 years in most cases. 

Some of the legislation that has been brought in now prevents claims being made and other legislation extends times for bring a claim. 

Complicated and confusing......well you may need to consult with one of our Solicitors to get some advice because any claims for compensation can be a minefield. 

 For further information contact us.

Sentencing Options

For the majority of people, their first exposure to the Criminal justice system occurs when they are charged with offences that are dealt w...