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NSW Friend's Common Assault Charge and Juvenile Criminal Record

Discussion in 'Criminal Law Forum' started by Andrew123, 23 February 2016.

  1. Andrew123

    Andrew123 Member

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    Recently, a friend of mine (yes, really), was involved in a minor incident with his partner. He was arrested for Common Assault. He pleaded Guilty in the local court but requested a section 10 and a section 32.

    These were dismissed and he was fined $800. This is particularly devastating for him as he works in the security industry.

    During the judges decision making, the judge read out the accused's juvenile criminal record and used it to base his decisions on this, as well as there was some "evidence" that the accused has been in previous failed relationships (who hasn't though?).

    The judge was informed that these convictions were juvenile in nature and some 23-26 years ago. This is, of course, verifiable by the dates of conviction, to which the judge replied "It's not that long ago"

    What do you think about this being used against the accused? Is it even lawful under Criminal Law? And what right does a judge have to base his findings and refusal of section 10 or 32 based on a previous failed relationship?

    Sounds ridiculous to me.

    Comments, please.
     
  2. Anubis

    Anubis Well-Known Member

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    DV is highly topical right now. A fine is a light penalty really. Your friend will have issues with firearms for the next 10 years. Not good for a security guard

    S10 is a discretion open to the Court. The Court does not have to use it. It would depend on the facts of the case itself as well as the 21A factors. I have got the odd s10 for DV matters but it is increasingly rare as a No Tolerance signal is being sent to the community.

    S32 needs appropriate reports from forensic psychologists, Court will not entertain the dismissal without them. Sometimes even if a mental health issue is identified, the second limb is not made out and the offending is still dealt with under the criminal law.

    Your friend can appeal the result to the District Court. That will cost quite a bit unless he does it himself. I doubt the Higher Court would cavill with the Local Court penalty. It is open to the District Court to increase the penalty (that requires a warning)...that said I have seen the court do stranger things.

    As to your friend's record being read out were you there? Not doubting you but it is unusual.
    The usual way it is dealt with is for the bench to look at the record to not punish again but to see if it is out of character. A gap of 26 years is significant

    You do not say what else is on the record...small things that might indicate other issues...driving, alcohol etc they all come into play
    I suspect the lenient nature of the fine is recognition of your friend's good record.

    Good luck
     

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