Criminal Law
Assault and Violence Offences
Common Assault
MacDougall and Hydes Lawyers are experts in handling common assault cases, offering professional legal representation to clients charged with this offence.
Common assault, as defined under section 61 of the Crimes Act 1900, involves either an act of physical violence or a threat of violence that causes the victim to fear immediate harm.
This offence carries a maximum penalty of two years imprisonment, which is also the maximum sentence the Local Court can impose for any charge. Due to the seriousness of common assault, the courts treat such cases with considerable attention and care.
While many cases involve direct physical force, simply making a threatening gesture—like raising a fist—can still be considered assault.
What Actions Could Be Considered Common Assault?
- Hitting, slapping, kicking, or pushing someone
- Making threats of violence
- Spitting on another person
- Throwing an object at someone, whether it hits them or not
- Restricting someone’s movement against their will
Common assault is a less serious charge than offences like assault occasioning actual bodily harm or grievous bodily harm, which involve injuries and can carry up to 5 years imprisonment. However, authorities sometimes lay more serious charges even when the case falls within common assault. Understanding these legal differences is key and our experienced lawyers can often successfully negotiate your charges down to a common assault.
What Must the Prosecution Prove?
For a conviction of assault without physical contact, the prosecution must establish beyond a reasonable doubt that:
- The accused intentionally or recklessly acted in a way that caused the complainant to fear immediate and unlawful violence
- The complainant did not consent to the act
- The accused had no lawful justification
For a conviction of assault involving unlawful physical contact, the prosecution must prove that:
- The accused intentionally or recklessly made physical contact with the complainant
- The complainant did not give their consent
- The accused did not have a lawful excuse for their actions
If you are facing common assault charges, it is crucial to seek experienced legal guidance. MacDougall and Hydes Lawyers can provide the support and expertise you need to navigate the legal process. For more information or advice about your situation, please contact our office today. Our team is here to help you understand your options and work towards the best possible outcome.
Affray
Affray is a criminal offence outlined in section 93C of the Crimes Act 1900 (NSW). This offence occurs when an individual uses or threatens unlawful violence against another person, creating a situation where someone of reasonable firmness present at the scene would fear for their own safety.
At MacDougall and Hydes Lawyers, we have extensive experience and a strong track record in defending clients who have been charged with affray. Our team is dedicated to providing effective legal representation and ensuring that your case is handled with the utmost care and attention.
What Actions Could Be Considered Affray?
Affray typically involves violent or threatening behavior in public. Examples include:
- Engaging in a physical fight in the presence of others
- Shouting threats and making aggressive gestures, such as raising a fist
- Acting aggressively during a road rage incident
- Taking part in a riot
What Must the Prosecution Prove?
For a conviction of affray, the prosecution must establish beyond a reasonable doubt that:
- The individual engaged in or threatened violent behavior toward someone else
- They had the intent to commit or threaten violence
- A reasonable person would feel fearful for their safety as a result of these actions
- The act was committed without a lawful justification
If you are facing affray charges, it’s essential to have skilled legal support. Contact MacDougall and Hydes Lawyers for advice or to discuss your case. We are here to assist you in navigating the complexities of the legal system and securing the best possible outcome.
Assault Occasioning Actual Bodily Harm
Assault occasioning actual bodily harm is a serious criminal offence that involves causing actual harm or injury to the victim. This charge can encompass a wide range of injuries, from minor cuts and bruises to more severe psychological harm. If you are facing charges for assault occasioning actual bodily harm, it’s important to seek legal advice from the experienced team at MacDougall and Hydes Lawyers.
This offence is considered more serious than common assault, reflected in its maximum penalty of up to 5 years imprisonment. However, most cases are heard in the Local Court, where the maximum penalty is 2 years imprisonment.
What Must the Prosecution Prove?
To secure a conviction, the prosecution must establish the accused’s guilt beyond a reasonable doubt—a high standard that must be met before a person can be found guilty.
To prove Assault Occasioning Actual Bodily Harm, the prosecution must demonstrate each of the following elements beyond a reasonable doubt:
- The accused applied force, struck, or made physical contact with another person
- They did so intentionally or recklessly
- The act was carried out without consent or lawful justification
- The action resulted in bodily harm to the complainant
Recklessly Causing Grievous Bodily Harm
Recklessly causing grievous bodily harm is a criminal offence outlined in section 35 of the Crimes Act 1900. This charge involves causing serious injury to another person through reckless conduct.
The offence carries a maximum sentence of 10 years’ imprisonment, which increases to 14 years if the offence is committed with others, or “in company.”
As a “Table 1” offence, recklessly causing grievous bodily harm can initially be addressed in the Local Court, unless either the prosecution or defence opts to have the case moved to the District Court. If the case is resolved in the Local Court, the maximum penalty is 2 years’ imprisonment.
What Must the Prosecutor Prove?
If you have been charged with recklessly causing grievous bodily harm, the prosecution must establish beyond a reasonable doubt that:
- You caused grievous bodily harm to the complainant
- You were reckless as to whether your actions would cause actual bodily harm to the complainant or another person
If you are facing charges for recklessly causing grievous bodily harm, it is crucial to have experienced legal representation. Contact MacDougall and Hydes Lawyers for expert advice and assistance in handling your case. Our team is committed to providing you with the support you need throughout the legal process.
Wounding and Grievous Bodily Harm with Intent
Wounding or causing grievous bodily harm with intent is a serious offence under section 33 of the Crimes Act 1900. This charge involves intentionally inflicting significant harm or injury on another person.
The offence carries a maximum penalty of 25 years’ imprisonment, reflecting the severity of the crime. Due to the seriousness of the charge, it cannot be dealt with in the Local Court and must be heard in a higher court.
What Must the Prosection Prove?
To secure a conviction for wounding with intent, the prosecution must establish each of the following elements beyond a reasonable doubt:
- The accused inflicted a wound on another person
- The act was carried out recklessly with regard to causing actual bodily harm
- At the time of the offence, the accused was aware that their actions could result in physical harm but proceeded regardless, causing injury to the required level
If you are facing charges for wounding or causing grievous bodily harm with intent, it is essential to seek expert legal representation. Contact MacDougall and Hydes Lawyers for professional advice and assistance in handling your case. Our experienced team is here to guide you through the legal process and work towards the best possible outcome.
Reckless Wounding
Reckless wounding is an offence under section 35 of the Crimes Act 1900 and carries a maximum penalty of 7 years’ imprisonment, or 10 years if committed in company.
Reckless wounding is a “Table 1” offence, which means it can be dealt with in the Local Court unless the Prosecution or Defence elects to have the matter dealt with in the District Court. If the matter is finalised in the Local Court, the maximum penalty is 2 years’ imprisonment.
Reckless wounding can include cutting or stabbing another person but can also extend to punching, hitting or kicking if skin was broken but no permanent or serious disfiguration occurred.
What Must the Prosecution Prove?
To secure a conviction for reckless wounding, the prosecution must establish each of the following elements beyond a reasonable doubt:
- The accused inflicted a wound on another person
- The act was carried out recklessly with regard to causing actual bodily harm
- At the time of the offence, the accused was aware that their actions could result in physical harm but proceeded regardless, causing injury to the required level
If you are charged with reckless wounding, it is crucial to seek legal advice from an experienced lawyer. Contact MacDougall and Hydes Lawyers for expert representation and assistance in navigating this serious charge. Our team is dedicated to providing you with the best legal support throughout your case.
Possession or use of Prohibited Weapon
Possession or use of a prohibited weapon is a serious offence under the Weapons Prohibition Act 1998, carrying a maximum penalty of 14 years’ imprisonment (or 2 years if the case is dealt with in the Local Court).
It is illegal to possess or use a prohibited weapon unless the individual holds a valid permit for such possession or use. Even with a permit, a person may still be committing an offence if the weapon is possessed or used for a purpose other than the one specified on the permit, or if any conditions of the permit are violated.
What Must the Prosecution Prove?
To convict you of possessing a prohibited weapon, the prosecution must establish each of the following elements beyond a reasonable doubt:
- You were in possession of or used a prohibited weapon as defined in Schedule 1 of the Weapons Prohibition Act
- The possession or use occurred without a valid permit
- If a permit was held, the possession or use was either in violation of its conditions or not for the genuine purpose specified in the permit
If you are charged with possession or use of a prohibited weapon, it is crucial to seek legal advice from an experienced lawyer. Contact MacDougall and Hydes Lawyers for expert representation and assistance in navigating this serious charge. Our team is dedicated to providing you with the best legal support throughout your case.
Possess Prohibited Firearm
Possessing a pistol or prohibited firearm without the requisite licence or permit is a serious criminal offence. In the Firearms Act 1996 (NSW), there are three possible offences a person can be charged with if you have possession of a firearm or pistol and do not have the necessary licence or permit.
The offences are as follows:
- Section 7A of the Firearms Act provides that a person must not possess or use a firearm unless the person is authorised to do so by a licence or permit.
The maximum penalty that can be imposed in contravention of section 7A is 5 years imprisonment.
- Section 7(1) of the Firearms Act provides that a person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.
The maximum penalty that can be imposed in contravention of section 7(1) is 14 years imprisonment.
- Section 36(1) of the Firearms Act provides that a person must not supply, acquire, possess or use a firearm that is not registered.
The maximum penalty that can be imposed in contravention of section 36(1) is 14 years imprisonment if the firearm concerned is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.
What Must the Prosecution Prove?
To secure a conviction for possessing a prohibited weapon, the prosecution must establish beyond a reasonable doubt that:
- You knowingly had possession of a weapon
- The weapon is classified as a prohibited weapon under the Weapons Prohibition Act 1998 (NSW)
- You either:
- Possessed the weapon without a valid permit, or
- Held a permit but did not use the weapon for the genuine purpose stated for possessing it, or
- Breached a condition of the permit
If you are charged with possession of a prohibited firearm, it is crucial to seek legal advice from an experienced lawyer. Contact MacDougall and Hydes Lawyers for expert representation and assistance in navigating this serious charge. Our team is dedicated to providing you with the best legal support throughout your case.
Possession of a Knife in a Public Place or School
In New South Wales, it is illegal to possess a knife in a public place or on school grounds unless you have a reasonable excuse for doing so.
This offence is covered under section 11C of the Summary Offences Act 1988 (NSW) and carries a maximum penalty of 2 years’ imprisonment and/or a fine of up to $2,200.
What Must the Prosecution Prove?
To secure a conviction the prosecution must establish each of the following elements beyond a reasonable doubt:
- You were in possession of a knife
- You were in a public place or on school grounds at the time
- You did not have a reasonable excuse for possessing the knife
If you are facing charges related to the possession of a knife in a public place or school, it is important to seek legal advice from experienced professionals. Contact MacDougall and Hydes Lawyers for guidance and representation in your case. Our team is committed to helping you navigate the legal process and achieve the best possible outcome.
Assault Police Officer
Assaulting a police officer while they are performing their duties is a serious criminal offence. Under sections 58 and 60 of the Crimes Act 1900, this offence carries a maximum penalty of 5 years’ imprisonment, or 2 years if the case is dealt with in the Local Court.
Such assaults are treated with utmost seriousness due to the vulnerable position that police officers are often in while carrying out their responsibilities. Additionally, the courts aim to send a clear message to the community that assaults on law enforcement will not be tolerated and will be dealt with harshly.
What Must the Prosecutor Prove?
If you have been charged with assaulting a police officer, the prosecutor must establish each of the following elements beyond a reasonable doubt:
- You assaulted a police officer
- Your actions were either intentional or reckless
- The police officer was performing their duties at the time of the assault
If you are facing charges for assaulting a police officer, it is essential to seek expert legal counsel. MacDougall and Hydes Lawyers are here to provide you with skilled representation and guide you through the legal process. Contact us today to discuss your case and ensure you receive the best possible legal support
Resist or Hinder Police officer in Execution of Duty
Under section 546C of the Crimes Act 1900, it is a criminal offence to resist or obstruct a police officer while they are carrying out their duties. This section also makes it an offence to encourage or incite another person to assault, resist, or hinder a police officer in the execution of their duty.
This offence is heard exclusively in the Local Court and carries a maximum penalty of 12 months’ imprisonment and/or a fine of $1,100.
What Must the Prosecution Prove?
To secure a conviction, the prosecution must prove each of the following elements beyond a reasonable doubt:
- You resisted or hindered, or encouraged someone else to resist or hinder, a police officer
- The individual involved was a police officer of the NSW Police
- The police officer was carrying out their duties at the time of the alleged offence
If you are facing charges related to resisting or hindering a police officer, it is essential to seek professional legal assistance. Contact MacDougall and Hydes Lawyers for expert advice and representation. Our team is dedicated to providing you with the support you need throughout the legal process.
Domestic Violence and AVO Offences
Domestic Violence and AVO
Domestic violence offences are outlined in the Crimes (Personal and Domestic Violence) Act 2007 and refer to personal violence offences committed by one person against another with whom they have, or have had, a domestic relationship.
An apprehended violence order (AVO) is a court order that imposes restrictions on an individual, preventing them from engaging in certain actions that could harm another person. There are two types of AVOs: personal and domestic. A personal AVO is issued to protect an individual from harm or harassment, while a domestic AVO is specifically intended to protect individuals in domestic relationships, such as family members or romantic partners.
These offences are taken very seriously, and the law provides specific provisions to protect individuals from harm in domestic settings. If you are facing domestic violence charges, it is crucial to seek legal representation from experienced professionals. Contact MacDougall and Hydes Lawyers for advice and support in navigating these complex matters. Our team is here to guide you through the legal process and help you achieve the best possible outcome.
Apprehended Personal Violence Orders (APVO)
An Apprehended Personal Violence Order (APVO) is sought in cases where there is no domestic relationship, such as neighbour disputes.
To apply, anyone—including the police—can submit the application to the Local Court. The Registrar must approve the application, and if deemed frivolous or unfounded, it may be rejected. Once approved, the order must be served on the person it is sought against, typically by the police. A court date is then set, and if the person does not consent to the order, a hearing will be scheduled. The magistrate will review the evidence and decide whether to issue the APVO.
If you’ve been served with an AVO application, you have two options:
- Agree to the order on a “non-admissions basis.”
- Contest the order in court. If you don’t attend, the court may make the order in your absence.
You can negotiate in respect of the grounds prior to agreeing to the AVO. If you choose to contest the order you have the right to challenge the evidence presented. The court can only issue an AVO if it is convinced that the protected person has reasonable grounds to fear that you may be violent towards them, stalk them, or intimidate them. Additionally, the court must be satisfied that the protected person is genuinely fearful.
For expert legal advice or assistance with an APVO, contact MacDougall and Hydes Lawyers.
Domestic Violence Orders (ADVO)
ADVOs are sought when there is a “domestic relationship” between the parties involved such as spouses, siblings or parents and children. The police often request these orders alongside criminal charges like Common Assault or Stalking.
In such cases, a Provisional Apprehended Violence Order may be issued when the charges are made, followed by an Interim Order at the first court mention. If the accused is found guilty of a related offence, a Final ADVO is typically granted for the victim’s protection, unless there are exceptional circumstances.
Breaching an AVO, whether it is a provision, interim or final order, is serious and carries a maximum penalty of 2 years imprisonment.
If you have received an ADVO it is essential to seek professional legal advice prior to agreeing to any orders. Contact MacDougall and Hydes Lawyers for expert advice and representation. Our team is dedicated to providing you with the support you need throughout the legal process.
Breach an AVO/ADVO
Breaching an Apprehended Violence Order (AVO) is an offence under section 14 of the Crimes (Domestic and Personal Violence) Act 2007. It is a serious offence, punishable by up to 2 years’ imprisonment and a fine of $5,500. This is because breaching an AVO not only violates a court order but also endangers the safety of vulnerable individuals.
A breach occurs when the defendant intentionally violates the terms of the AVO. For example, if the AVO prohibits contact with the protected person, and the defendant knowingly visits or calls them, this would be a breach. However, accidental contact in public may not be considered a breach, unless the defendant fails to move away.
Even if the protected person initiates contact, the defendant can still breach the AVO by continuing the interaction. Breaches involving violence or threats are treated most severely and can result in full-time imprisonment.
What Must the Prosecution Prove?
To secure a conviction for breaching an ADVO, the prosecution must prove each of the following elements beyond a reasonable doubt:
- You knowingly violated a restriction or prohibition specified in the ADVO issued to you by the court
- You were served a copy of the ADVO or were present in court when the ADVO was made
- The ADVO is nationally recognised
- Either you or the other party were in NSW at the time of the breach. If you were not in NSW when the breach occurred, your case would be referred to the jurisdiction of your location at the time of the breach by NSW police
For expert legal advice on defending AVO breaches, contact MacDougall and Hydes Lawyers. Our team is here to assist you in navigating these serious charges.
Stalk Intimidate
Under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), it is an offence to stalk or intimidate another person with the intent to cause them to fear physical or mental harm. This includes situations where the victim is in a domestic relationship, such as with a partner, relative, or anyone living in the same household.
The maximum penalty for this offence is up to five years’ imprisonment or a fine of $5,500, or both. If the matter is dealt with in the Local Court, the maximum penalty is reduced to two years’ imprisonment. The same penalties apply even if the person only attempts to stalk or intimidate another individual.
What Must the Prosecution Prove?
The prosecution is required to demonstrate beyond a reasonable doubt that the accused:
- Had the intention to cause fear of physical or emotional harm, and
- Engaged in actions that either amounted to or attempted to amount to stalking or intimidation.
It’s essential to understand that it is not necessary to prove that the victim actually experienced fear of harm. A conviction can still occur even if the victim did not feel fear, as long as it is proven that the defendant intended to cause such fear.
If you are facing charges related to stalking or intimidation, it is vital to seek professional legal counsel. Contact MacDougall and Hydes Lawyers for expert advice and representation. Our experienced team is here to guide you through the legal process and ensure the best possible outcome for your case
Use Carriage Service to Harass or Menace
Using a carriage service to harass or menace is an offence under section 474.17 of the Commonwealth Criminal Code, as part of the Crimes Act 1914 (Cth).
An offence occurs when a person uses a carriage service in a way that a reasonable person would consider menacing, harassing, or offensive, based on the method of use or the content of the communication. The court will evaluate all circumstances to determine if the conduct is considered offensive.
A “carriage service” includes any service that transmits communication via electromagnetic energy, such as SMS or iMessages, social media messages (e.g., Facebook, Twitter, Instagram), emails, and letters.
What Must the Prosecution Prove?
- The accused used a carriage service: This refers to the use of any form of communication service, such as a phone, email, or social media platform, to send a message, make a call, or otherwise communicate.
- The communication was done with the intention to harass or menace: The prosecution must show that the accused intentionally used the carriage service to cause distress, anxiety, or fear in the victim, or to intimidate them. This includes making the victim feel threatened or disturbed by the communication.
- The message or conduct was done in a way that could reasonably be seen as harassment or menacing: The conduct must be such that a reasonable person would find it threatening or disturbing. It’s not necessary for the victim to have actually been harassed or menaced, but the conduct must have been capable of causing such a reaction.
The prosecution does not need to prove that the victim was actually harmed or frightened, but it must demonstrate that the defendant’s actions were intended to or had the potential to harass or menace the victim.
Coercive Control
On 17 November 2022, the NSW Government passed the Crimes Legislation Amendment (Coercive Control) Bill 2022, which will introduce a new offence under Section 54D of the Crimes Act 1900 (NSW) for coercive control. The provision is set to come into force on 1 February 2024.
This offence involves abusive behaviour towards current or former intimate partners with the intent to coerce or control them. The key components of the offence include:
- A course of conduct;
- Abusive behaviour;
- Intent to coerce or control; and
- Causing fear of violence or significantly impacting the person’s ability to engage in normal daily activities.
A “course of conduct” refers to repeated or continuous behaviour, which does not need to be a series of incidents occurring in direct succession. It can occur within NSW or across jurisdictions.
The maximum penalty for this offence is 7 years’ imprisonment, reflecting both the seriousness of the conduct and the need to prove intentional coercion or control.
Section 54D is classified as a Table 1 offence, meaning it is typically prosecuted in the Local Court. However, for more serious cases, it can be moved to the District Court for prosecution due to its indictable nature
What Must the Prosecution Prove?
To secure a conviction for coercive control in NSW, the prosecution must prove beyond a reasonable doubt that:
- The accused engaged in a pattern of behaviour over time.
- The behaviour was intended to intimidate, isolate, or control the victim.
- The accused intended to cause the victim to fear for their safety.
- The victim suffered harm as a result of the conduct.
The prosecution must demonstrate that the defendant’s actions created fear and controlled or manipulated the victim.
For more information or legal advice about coercive control, contact MacDougall and Hydes Lawyers. Our team is ready to assist you in understanding the implications of this new offence.
Drug Offences
Drug Offence
Drug offences are taken very seriously in New South Wales and across Australia, with severe legal consequences for those convicted. The penalties for drug-related crimes, including possession, trafficking, and manufacturing, can include lengthy prison sentences, significant fines, and a permanent criminal record. Law enforcement agencies are vigilant in enforcing drug laws, and courts impose strict penalties to deter drug-related activities.
Given the serious nature of drug offences, it is crucial to seek expert legal advice if you are facing charges. MacDougall and Hydes Lawyers have extensive experience in defending clients against drug charges and can provide the legal expertise needed to navigate the complex criminal justice system. Our team is committed to offering strategic advice and building a strong defense tailored to your case, ensuring the best possible outcome.
Possess Prohibited Drug
Under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW), possessing a prohibited drug is an offence. The maximum penalty for drug possession is 2 years in prison. As a “summary offence,” drug possession cases are typically heard and decided by a magistrate in the Local Court.
What Must the Prosecution Prove?
To prove drug possession, the Prosecution must establish two key elements:
- The individual had “custody” or “control” of a prohibited drug; and
- The individual was aware that they had custody or control of the prohibited drug
In certain cases, a Court may find a person guilty of possessing a prohibited drug but choose not to record a conviction. In order to do so the court must consider a number of factors relating to the seriousness of the offence, the type and quantity of the drug and the accused personal background and circumstances.
For more information or legal advice about drug possession, contact MacDougall and Hydes Lawyers. Our team is ready to assist you in understanding the implications of this new offence.
Supply Prohibited Drug
Supplying a prohibited drug is a serious offence under section 25 of the Drug Misuse and Trafficking Act 1985 (NSW), carrying severe penalties ranging from 10 years to life imprisonment. This is one of the most common drug-related crimes.
The definition of “supply” under the Act is broad and includes agreeing or offering to supply drugs, even if no exchange occurs. It also covers possessing drugs with the intent to supply, as well as authorising or attempting to supply prohibited drugs.
Additionally, under section 29 of the Drug Misuse and Trafficking Act 1985, you may face charges for “deemed supply.” If police find a quantity of drugs in your possession that exceeds the traffickable amount, they can assume the drugs were intended for supply. The specific traffickable quantity varies for each drug. For example, methylamphetamine is 3 grams, while ecstasy is 0.75 grams. This concept allows the prosecution to argue that the drugs found in your possession were intended for distribution, even if no direct evidence of supply exists.
If you’re facing charges related to drug supply, it’s essential to consult with experienced legal professionals. MacDougall and Hydes Lawyers are experts in defending clients against these serious offences, offering strategic advice tailored to your case.
Drug Importation
The importation of border-controlled drugs is a serious federal crime under section 307 of the Criminal Code 1995 (Cth), with penalties ranging from 2 years to life imprisonment.
What Must the Prosecution Prove?
To secure a conviction for drug importation, the prosecution must prove several key elements:
- That the individual imported a substance into Australia and did so intentionally.
- That the substance was a border-controlled drug, and the person was reckless about this fact.
- That the quantity of the substance exceeded the commercial or marketable threshold.
The term “import” in the Criminal Code includes bringing a substance into Australia and handling it in connection with its importation.
Defendants can raise certain defences in cases of drug importation, including duress, where they can prove they were coerced into committing the offence. For a duress defence, the defendant must show they reasonably believed a threat would be carried out unless they imported the drugs and that no reasonable alternative existed.
In cases involving smaller quantities, individuals may defend against the charges by showing they lacked any commercial intent, meaning they did not intend to sell the drugs.
If you are facing charges related to drug importation, it is essential to consult with experienced legal professionals. MacDougall and Hydes Lawyers specialise in defending clients in serious drug importation cases, providing expert advice and representation tailored to your situation.
Manufacture Prohibited Drug
Under section 24 of the Drug Misuse and Trafficking Act 1985 (NSW), manufacturing or producing prohibited drugs is a serious criminal offence, carrying penalties ranging from 2 years to life imprisonment. The Drug Misuse and Trafficking Act includes a list of prohibited drugs in Schedule 1.
The term “manufacture” is broadly defined under section 3 of the Act and encompasses any process involved in extracting or refining prohibited drugs. This definition covers a wide range of activities, meaning it is not limited to just extraction or refining, but any activity that can be considered part of the drug production process.
The severity of the penalty depends on several factors, including:
- The quantity of the drug involved.
- The scale and method of manufacture, such as whether the operation was part of a larger commercial enterprise.
- Whether there was a financial gain or greed motivating the offence.
- The offender’s role in the operation, especially if it involved multiple individuals.
- Other subjective factors such as remorse, rehabilitation, and the offender’s personal circumstances.
What Must the Prosecution Prove?
- The accused manufactured a prohibited drug or participated in its manufacture, either by producing, synthesizing, or processing the drug.
- The manufacturing process was intentional, meaning the accused deliberately engaged in activities to create or produce the drug for illegal purposes.
- The accused had knowledge that the substance being manufactured was a prohibited drug, or was reckless about the possibility that it was a prohibited substance.
- The quantity of the drug being manufactured met the legal threshold for criminal charges under NSW law.
If you are facing charges related to drug manufacturing, it’s essential to seek expert legal advice. MacDougall and Hydes Lawyers specialise in defending individuals against drug production offences and can provide guidance on your specific case.
Cultivation of Cannabis
Under section 23 of the Drug Misuse and Trafficking Act 1985 (NSW), cultivating cannabis is a serious criminal offence. The penalties vary based on the number of cannabis plants involved, with maximum prison terms ranging from 2 years to 20 years, depending on the scale of the cultivation operation.
If fewer than 250 plants are involved, the case may be handled in the Local Court, where the maximum penalty is 2 years in prison. However, for larger quantities, the matter will likely be heard in the District Court, where the penalties can be significantly harsher. The penalties are as follows:
- 5 or fewer plants: Maximum penalty of 10 years imprisonment.
- Between 6 and 50 plants: Maximum penalty of 10 years imprisonment.
- Between 51 and 250 plants: Maximum penalty of 10 years imprisonment.
- Between 251 and 1000 plants: Maximum penalty of 15 years imprisonment.
- More than 1000 plants: Maximum penalty of 20 years imprisonment.
In certain cases, you may be able to defend the charge if you can show that you did not know, nor could you reasonably have been expected to know, that the plants were illegal.
If you are facing cannabis cultivation charges, it is essential to seek professional legal advice. MacDougall and Hydes Lawyers are specialists in criminal law, and our experienced team can guide you through the legal process and help protect your rights.
Cultivation of Cannabis by Enhanced Means
Under section 23 of the Drug Misuse and Trafficking Act 1985 (NSW), cultivating cannabis using enhanced indoor methods is a serious offence. The penalty varies from 15 to 20 years in prison, depending on the number of plants. This charge cannot be heard in the Local Court and must go to the District Court, especially in cases where cannabis is grown for commercial purposes in residential properties.
A person commits this offence if they cultivate or assist in cultivating more than five cannabis plants indoors for commercial gain. Cultivation includes planting, growing, or tending to the plants. “Enhanced indoor means” refers to growing cannabis inside a building using nutrient-rich water, artificial light or heat, or aeroponic methods.
What Must the Prosecution Prove?
- The accused cultivated cannabis plants, or participated in the cultivation of cannabis plants, through the use of enhanced means such as hydroponics, controlled environments, or other sophisticated methods that increase the scale or yield of the cultivation.
- The cultivation was intentional, meaning the accused deliberately engaged in activities to grow cannabis for illegal purposes.
- The accused knew or was reckless as to the fact that they were cultivating cannabis, or that it was a prohibited drug.
- The means used to cultivate the cannabis were enhanced, indicating a higher level of sophistication or technology, such as specialized equipment, lighting, or other controlled techniques, aimed at producing a larger quantity of cannabis.
For a conviction, the prosecution must prove beyond reasonable doubt that the accused took part in the cultivation process, financed it, or allowed it to occur on their premises. A possible defence is an honest and reasonable mistake—if the person was unaware they were cultivating a prohibited plant.
A conviction results in a criminal record, with penalties based on the number of plants. Growing between 5 and 50 plants can lead to 15 years in prison, while cultivating over 200 plants can result in a 20-year sentence. Courts treat cannabis cultivation as a serious crime, especially when done for profit. Sentencing factors include the offender’s criminal history, personal use of the plants, rehabilitation efforts, and plea status.
If you are facing charges related to cannabis cultivation, seeking legal advice is crucial. MacDougall and Hydes Lawyers specialise in criminal defence and can provide expert guidance on your case. Contact them for professional legal assistance tailored to your situation.
Sexual Offences
Sexual Assault
Sexual assault is one of the most serious criminal offences, requiring thorough legal preparation and defence. MacDougall and Hydes Lawyers have extensive experience handling these complex cases.
Sexual assault trials involve unique legal procedures, including pre-recorded evidence, strict cross-examination regulations, and evolving laws on consent and sentencing. If you are under investigation, it is crucial to seek immediate legal advice. Decisions made in the early stages of an investigation can significantly impact the outcome.
Under section 61I of the Crimes Act 1900 (NSW), sexual assault carries a maximum penalty of 14 years in prison, with a standard non-parole period of seven years.
What Must the Prosecution Prove?
For a conviction, the prosecution must establish beyond reasonable doubt that:
- That you engaged in sexual intercourse with another person.
- The other person did not consent.
- That you knew or were reckless to the other person not consenting
What is Sexual Intercourse?
Sexual intercourse includes:
- Penetration of the genitals, anus, or mouth by a person’s body or an object.
- Oral Sex
What is Consent?
Consent to sexual intercourse means a person freely and voluntarily agrees to the act. Consent can be withdrawn at any time through words or actions.
A lack of physical or verbal resistance does not automatically imply consent. Additionally, agreeing to sexual activity on a previous occasion does not mean consent is given for future occasions.
Determining whether consent was present will involve an examination of the overall circumstances including the steps you took to determine if the other person was consenting.
Defences
The prosecution bears the burden of proving the offence beyond reasonable doubt. A defence may apply if:
- The complainant consented.
- You were unaware and not reckless about the lack of consent.
- No sexual intercourse occurred.
If you are facing a sexual assault allegation, obtaining expert legal representation is essential. MacDougall and Hydes Lawyers are experienced in defending such cases and can provide tailored advice about your options. Contact us today.
Aggravated Sexual Assault
Aggravated sexual assault is one of the most serious offences under NSW law, carrying severe penalties and requiring strategic legal defence. At MacDougall and Hydes Lawyers, we have extensive experience handling complex sexual offence cases, ensuring our clients receive expert representation.
Under section 61J of the Crimes Act 1900 (NSW), aggravated sexual assault carries a maximum penalty of life imprisonment. The offence is treated more severely than standard sexual assault due to the presence of aggravating factors.
A Standard Non-Parole Period (SNPP) of 15 years applies to aggravated sexual assault offences. This means that unless there are exceptional circumstances, a person found guilty must serve at least 15 years before being eligible for parole.
Aggravated sexual assault trials involve unique legal challenges, including:
- Pre-recorded evidence for vulnerable witnesses.
- Strict limitations on cross-examination of complainants.
- Recent legislative changes regarding consent and sentencing.
What Must the Prosecution Prove?
To secure a conviction for aggravated sexual assault, the prosecution must prove beyond reasonable doubt that:
- You engaged in sexual intercourse with another person.
- The other person did not consent to the sexual intercourse.
- You knew, or were reckless as to, the lack of consent.
- At least one aggravating factor was present
What is an Aggravating Factor?
Aggravated sexual assault occurs when the offence is committed under circumstances that make it more serious. Aggravating factors under section 61J of the Crimes Act 1900 (NSW) include:
- Use or threatened use of violence (e.g., weapons or physical force).
- Infliction of actual bodily harm on the complainant.
- Use of an offensive weapon or instrument.
- Offending in company (i.e., committing the offence with another person present).
- Victim is under 16 years of age.
- Victim has a serious physical or cognitive disability.
- Offender abuses a position of authority or trust (e.g., teacher, coach, employer).
If one or more of these factors is present, the charge is elevated to aggravated sexual assault, leading to harsher penalties.
If you are under investigation or have been charged, seeking immediate legal advice is crucial. Early legal intervention can significantly impact the outcome of your case.
Sexual assault is one of the most serious criminal offences, requiring thorough legal preparation and defence. MacDougall and Hydes Lawyers have extensive experience handling these complex cases.
Sexual Touching
Sexual touching is an offence under section 61KC of the Crimes Act 1900 (NSW. This offence is generally dealt with in the Local Court where the maximum penalty is two years imprisonment. However, in some circumstances, the prosecution can elect to have the matter moved to the District Court where the maximum penalty of five years imprisonment applies.
Sexual Touching is the act of touching another person with any part of the body or with anything else in a way that a reasonable person would consider to be sexual. This can include touching through clothing.
The factors the court considers include the area of the body that was touched or did the touching, whether the touching was done for sexual gratification or arousal and any other aspect of the touching and surrounding circumstances that might make it sexual.
What Must the Prosecution Prove?
To secure a conviction for Sexual Touching, the prosecution must prove beyond a reasonable doubt that the accused:
- Acted Intentionally – The accused deliberately engaged in the conduct, meaning it was not accidental or unintentional.
- Engaged in or Encouraged Sexual Touching – This can involve:
- Physically touching the alleged victim in a sexual manner,
- Persuading or encouraging the alleged victim to touch the accused sexually,
- Encouraging a third party to sexually touch the alleged victim, or
- Persuading the alleged victim to sexually touch another person.
Each element must be established beyond reasonable doubt for a guilty verdict. At MacDougall and Hydes Lawyers, we carefully examine the evidence, challenge inconsistencies in the prosecution’s case, and explore all possible defences to protect our clients’ rights. Contact one of our expert lawyers today for advice.
Aggravated Sexual Touching
Under section 61KD of the Crimes Act 1900 (NSW), aggravated sexual touching is committed when a person touches another person sexually without their consent, and at least one aggravating factor is present. This can include a range of acts, such as groping, fondling, or inappropriate touching of the body in a sexual manner.
Aggravated sexual touching is treated more seriously than regular sexual touching due to the presence of aggravating circumstances. Depending on the seriousness of the case, aggravated sexual touching carries a maximum penalty of 7 years in prison.
A Standard Non-Parole Period (SNPP) of 5 years is generally applied to aggravated sexual touching offences.
Sexual offence trials, particularly aggravated sexual touching cases, can be challenging, involving issues of consent, intent, and the nature of the touch. It is crucial to seek immediate legal advice if you are under investigation or have been charged, as early intervention can significantly impact the outcome of your case.
What Must the Prosecution Prove?
For a conviction of aggravated sexual touching, the prosecution must prove beyond reasonable doubt the following elements:
- You touched the complainant in a sexual manner.
- The complainant did not consent to the sexual touching.
- You knew or were reckless about the lack of consent.
- At least one aggravating factor was present.
What is an Aggravating Factor?
Aggravated sexual touching involves additional circumstances that make the offence more serious. Aggravating factors under section 61KD of the Crimes Act 1900 (NSW) include:
- The victim is under 16 years of age.
- The complainant has a physical or cognitive disability that affects their ability to resist or consent.
- The use of force, threats, or intimidation in carrying out the offence.
- Offending in company (i.e., with another person present).
- The offender holds a position of trust or authority (e.g., teacher, coach, guardian).
When one or more of these factors is present, the charge is upgraded to aggravated sexual touching, and the offender faces more severe penalties.
Facing a sexual offence charge is a serious matter with potentially life-changing consequences. Contact MacDougall and Hydes Lawyers today for professional legal advice and expert defence representation. Let us help you secure the best possible outcome for your case.
Sexual Offences Against Children
Sexual offences against children are among the most serious charges under NSW law and carry severe legal consequences. At MacDougall and Hydes Lawyers, we have extensive experience defending individuals facing sexual offence charges involving minors. These cases are often complex and require careful legal strategy to ensure the best possible outcome.
Under the Crimes Act 1900 (NSW), several offences specifically target sexual conduct involving minors. The law is extremely stringent in this area, reflecting the vulnerability of children and the seriousness of these offences. Below are some of the primary offences under NSW law:
- Sexual Intercourse with a Child Under 10 (Section 66A)
This offence occurs when an adult engages in sexual intercourse with a child under the age of 10 years old. The maximum penalty for this crime is life imprisonment.
- Sexual Intercourse with a Child Aged 10-16 (Section 66C)
This involves sexual intercourse with a child aged between 10 and 16 years old, and carries a penalty of up to 14 years imprisonment. However, if the child is under 14 years old, the maximum penalty can be 20 years imprisonment.
- Persistent Sexual Abuse of a Child (Section 66EA)
This offence involves a pattern of repeated sexual abuse over time against a child under the age of 16. The maximum penalty for this offence is life imprisonment.
- Indecent Assault of a Child (Section 61L)
This occurs when an adult touches a child indecently (e.g., groping or inappropriate touching) without the child’s consent. The penalty for this offence can be up to 5 years imprisonment.
- Grooming a Child for Sexual Activity (Section 66EB)
Grooming involves preparing a child for future sexual abuse by forming a relationship with the child, whether online or in person, for the purpose of committing a sexual offence. The penalty can be up to 15 years imprisonment.
What Must the Prosecution Prove?
To secure a conviction in sexual offences against children, the prosecution must prove beyond reasonable doubt the following elements:
- The accused engaged in sexual conduct with the child (this could include sexual intercourse, indecent assault, or other forms of sexual contact).
- The complainant was under the age of consent (which is 16 years old in NSW).
- The accused had knowledge that the victim was a child or was reckless as to the victim’s age (for cases involving children aged 10-16 years).
- The sexual act was non-consensual (in cases where consent is a factor, such as with children aged 16 years).
For children under 10 years old, consent is irrelevant, and the prosecution does not need to prove that consent was lacking. Instead, the focus is on the sexual act itself and whether it occurred. The law presumes that children under 14 cannot consent to sexual intercourse, and the same applies to children under 16 when it comes to certain sexual activities, such as intercourse or penetration.
It is critical to seek legal advice immediately. Decisions made early in the process can have a significant impact on the outcome of your case. Contact one of our expert lawyers for more information.
Revenge Porn (Recording or Distributing Intimate Images without Consent
The unauthorised recording or distribution of intimate images without consent, often referred to as ‘revenge porn’, is a serious criminal offence in NSW. These offences are designed to protect individuals from the malicious distribution of private or intimate content without their permission. At MacDougall and Hydes Lawyers, we have substantial experience handling cases involving the recording or sharing of intimate images without consent and can provide expert legal representation for those facing such charges.
Under section 91P of the Crimes Act 1900 (NSW), it is an offence to intentionally record, or distribute, an intimate image of another person without their consent, with the intention to cause harm or distress. This includes any private or intimate images that involve nudity or sexual acts.
What Must the Prosecution Prove?
To secure a conviction in a revenge porn case, the prosecution must prove beyond reasonable doubt the following elements:
- You recorded or distributed an intimate image of the complainant.
- The complainant did not consent to the recording or distribution of the image.
- You acted with the intent to cause harm, distress, or embarrassment to the complainant.
- You knew or were reckless as to whether the complainant consented to the recording or distribution of the image.
The prosecution must prove these elements in cases involving the unauthorised sharing or recording of intimate images. Consent is a critical issue, and the complainant’s willingness to have the image recorded or shared is often the central focus of the case.
If you are under investigation or have been charged with revenge porn offences, it is crucial to seek legal advice immediately. We understand the complexity and sensitivity of these cases, and we work closely with NSW’s top barristers to ensure the best possible outcome.
Contact us now for expert and tailored legal advice
