Successful Severity Appeal, Non-Conviction for Drive Motor Vehicle with Illict Drug Present In Blood

BD pleaded guilty to the offences of ‘Drive motor vehicle with illicit drug present in blood’ and ‘Possess prohibited drug’ in the Local Court. In the Local Court, she was fined $500.00 and received the minimum license disqualification of 3 months with respect to the first charge. The sentencing Magistrate subsequently dismissed the second charge.

BD instructed Chris Cole to file a Severity Appeal to the District Court with respect to the conviction recorded and fine imposed concerning the first charge. Chris appeared at the Appeal Hearing. He tendered various materials including BD’s Affidavit, character testimonials, and sentencing statistics, etc. Despite the Appeal Judge not being receptive of the submissions initially, ultimately, the Appeal Judge upheld the Appeal and dismissed the offence pursuant to s10(1)(a) Crimes (Sentencing Procedure) Act.

This was a pleasing outcome for BD.

Found With Ketamine at a Dance Party Venue, Non-Conviction Imposed

SM was charged with ‘Possess prohibited drug’ as a result of being found with ketamine in his possession at a hotel hosting an electronic dance party.

SM retained Chris Cole and a plea of guilty was entered on his behalf. At Sentence, Chris tendered an Affidavit from SM and various character testimonials in support of his good character. The Presiding Magistrate ultimately determined it inexpedient to record a conviction and instead placed SM on a Conditional Release Order without conviction for 2 years. The only term of that Order is to be of good behaviour for its duration.

This is a pleasing result.

Non-Conviction for Possession of MDMA, And Dismissal for Possession of Cannabis

CD was charged with two counts of ‘Possess prohibited drug’—one for possession of MDMA, and a separate charge for possession of cannabis. The circumstances of the charges related to CD being searched at a music festival after being approached by a drug detection dog.

CD pleaded guilty to each of the offences. Chris Cole represented CD at his Sentence. He relied on CD’s Affidavit and various character testimonials in support of CD’s good character.

CD was sentenced with a Conditional Release Order without conviction for 12 months with respect to possession of MDMA. The Presiding Magistrate exercised his discretion and dismissed the charge of possession of cannabis.

This is a pleasing result for CD noting his young age and that any conviction would have an impact to his future employment opportunities.

Non-Conviction Sentence for a Second Drive with Illicit Drug Present Offence

PC was charged with ‘Drive motor vehicle with illicit drug present in blood’, contrary to section 111(1)(a) Road Transport Act 2013. This offence carries a maximum penalty of 30 penalty units or $3,300 fine and an automatic license disqualification 12 months.
Chris Cole represented PC at his Sentence. Various materials were tendered including a MERIT report, urinalysis reports, and Traffic Offenders Program completion certificate. Ultimately, the Presiding Magistrate agreed with Chris’s submissions and imposed a Conditional Release Order without conviction for 2 years.

This is a very pleasing result which sees PC remain ‘on the road’.

Negotiated Plea on the Day of Hearing, Conditional Release Order Imposed

JS was charged with “Stalk/Intimidate”, contrary to section 13(1) Crimes (Domestic and Personal Violence) Act. This offence carries a maximum penalty of 5 years imprisonment.

The charge related to an incident where JS engaged in a verbal altercation with a parking ranger where he threatened and intimidated the ranger after the ranger issued him an infringement notice for an expired loading zone ticket.

On the day of the Hearing, Chris Cole successfully negotiated a plea offer with the Prosecution reducing the charge to ‘Common Assault’, which only carries a maximum penalty of 2 years. Chris also proposed facts on sentence which were accepted by the Prosecution.

Ultimately, the Presiding Magistrate imposed a Conditional Release Order (with conviction) for 12 months. This is an impressive result considering that JS had convictions and had recently served time in custody for similar offences.

Successful Negotiation Led to Withdrawal of All DV Charges and AVO Application

JG was charged with 5 counts of ‘Common assault-DV’ and one count of ‘Intentionally choke etc person without consent’ concerning JG’s son.

Chris Cole acted for JG and successfully negotiated the withdrawal of all criminal charges. On the day of the Hearing, the Prosecution further granted authorisation to withdraw the AVO Application sought by them.

This is an outstanding result for JG.

Pleaded Guilty To DV Offences, Successful Section 14 Application Before Sentence

KC was charged with serious violence offences, namely, ‘Assault occasioning actual bodily harm’, ‘Common assault’ (as an alternative offence), ‘Assault police officer in execution of duty; and ‘Hinder/resist police officer in execution of duty’ (as an alternative offence).

Chris Cole entered pleas of guilty to the lesser alternative offences on behalf of KC. Chris successfully negotiated the withdrawal of the more serious offences through Police Representations to withdraw. Subsequently, Chris made an application pursuant to section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 so that KC could be dealt with under the mental health regime, instead of being dealt with in accordance with law for sentencing.

Chris relied on a psychological report as well as other subjective materials in support of KC’s application to be discharged into the care of her treating team. Ultimately, the Presiding Magistrate was satisfied that it was more appropriate to dismiss KC’s matters on the condition that she complies with the treatment plan as proposed by her psychologist for 12 months.

This is a very pleasing result for KC noting that this meant no criminal conviction was recorded.

Successful Mental Health (Section 14) Application Before Hearing Of Common Assault Charge

AJ was charged with ‘Common Assault’. He pleaded ‘not guilty’ to the offence and his matter was listed for Hearing.

Prior to the Hearing commencing, Chris Cole made an application pursuant to section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 to divert AJ’s matter into the mental health regime, instead of being dealt with in accordance with law.

AJ suffered from Major Depressive Order, Generalised Anxiety Disorder and ADHD. Chris tendered a psychological report as well as a certificate from AJ’s treating counsellor, and made oral submissions in support of the section 14 Application. Ultimately, the Presiding Magistrate granted the Application and dismissed AJ’s charge on the condition that he adhered to the treatment plan tailored for him.

This is a good result for AJ as his charge was dismissed without proceeding to a Hearing.

Conditional Release Order Without Conviction For Common Assault

AL pleaded guilty to the offence of ‘Common assault’ which carries a maximum penalty of 2 years imprisonment.

AL retained Chris Cole to act for her at her Sentence. Chris tendered various subjective materials on her behalf including her Affidavit and 3 character testimonials. Chris then made oral submissions on why the court ought to impose a Conditional Release Order without conviction.

The Presiding Magistrate agreed with Chris and imposed a CRO without conviction for a period of 12 months.

This is a pleasing result for AL as she is able to maintain her good character with a clean criminal record.

Sentence Facts Negotiated, CRO Without Conviction Imposed

MS was charged with ‘Assault occasioning actual bodily harm (DV related)’ contrary to section 59(1) of the Crimes Act 1900. This offence carries a maximum penalty of 5 years imprisonment.

 Chris Cole acted for MS. Prior to the Hearing commencing, Chris negotiated with the Prosecution whether they would accept a plea to the offence on the basis that MS was ‘reckless’ as to the alleged offending against the complainant. Chris proposed facts on sentence that reflected the correct objective seriousness of the offending. The Prosecution accepted the proposed plea and proposed facts on sentence.

 The matter proceeded to Sentence. At Sentence, Chris made submissions that a Conditional Release Order without conviction ought to be made, taking into account the reduced objective seriousness of the offending and MS’s subjective circumstances. The Presiding Magistrate agreed and placed MS on a Conditional Release Order without conviction for a period of 2 years.

 This is a very pleasing result for MS notwithstanding the serious nature of the offence.

Found Not Guilty of Not Stopping at Stop Line

SL was charged with an offence of ‘Not stop at Stop Line’, SL elected this offence to be dealt with in court. SL retained Chris Cole to act for him at his Hearing.

 At the Hearing, the prosecution called the officer in charge to give evidence and relied on an in-car video footage which was alleged to capture the offending. SL gave evidence for his defence.

 Ultimately, the Presiding Magistrate accepted SL’s evidence and found him ‘not guilty’.

Application For An Early Release Of Impounded Vehicle, Granted

DC was charged with ‘exceed speeding limit over 45km/hr’. As a result, NSW Police seized the vehicle being driven by DC to be impounded for 3 months under s239(1)(a) of the Road Transport Act 2013 (“RTA”)

 Chris Cole made an application for the early release of the impounded vehicle pursuant to s249(1)(a) of RTA. Chris tendered materials and made oral submissions on behalf of DC. The Presiding Magistrate accepted those submissions and ordered the release of the impounded vehicle before the end of the period of impounding. The impounded vehicle was released on the same day.

Charge Dismissed Under Section 10; Fail to Comply with Notice Displaying Mass Requirements

DM is employed as a truck driver. He was charged with the offence of ‘Fail to comply with notice displaying mass requirements’, contrary to s 148(6) Road Transport (General) Regulation 2013, to which he pleaded guilty. If convicted, DM could lose 11 demerit points, and face a fine of up to $3,300.00.

Chris Cole acted for DM, appearing at the Downing Centre Local Court where the matter was listed for Mention/Sentence. Chris tendered subjective materials and made oral submissions on DM’s behalf.

Ultimately, Her Honour agreed with the submission that DM ought not be convicted of the offence. Her Honour made an order dismissing the charge pursuant to s 10(1)(a) Crimes Sentencing Procedure Act 1999.

This is a great result, and an enormous relief for DM.  

20BQ - Matter Dismissed; Mental Health Application; Use Carriage Service to Menace/Harass/Offend

BT was charged with ‘Use carriage service to menace/harass/offend’, contrary to s 474.17(1) Criminal Code Act 1995. The maximum Sentence for this offence is a term of 12 months imprisonment, if dealt with in the Local Court. 

BT has difficulty understanding social cues and norms, also suffering from a number of mental illnesses. Chris Cole represented BT, lodging a Section 20BQ Application in the Local Court. A charge may be dismissed under Section 20BQ of the Crimes Act 1941 (Cth) if a person is found to be suffering a mental illness or intellectual disability. In support of the application Chris tendered a psychological report and Mental Health Treatment Plan on BT’s behalf. He then made oral submissions that it would be more appropriate to divert BT’s matter to be dealt with under the health system.

After careful consideration the Magistrate allowed BT’s matter to be diverted away from the criminal justice system under the orders that BT comply with the treatment plan proposed by his psychiatrist for a period of 12 months, and that his GP would supervise the treatment plan for the relevant period.

This is a fantastic result for BT, as he is able to access treatment in the community and has avoided any criminal record. 

Charged with Six Firearms Offences Whilst Serving an ICO; Minimal Aggregate Sentence Imposed

GC was charged with six firearms-related offences, namely ‘Possess unregistered firearm pistol’, contrary to s 36(1) Firearms Act 1996, ‘Not keep firearm safely not prohibited firearm/pistol’, contrary to s 39(1)(A) Firearms Act 1996, ‘Possess ammunition w/o holding licence/permit/authority’, contrary to s 65(3) Firearms Act 1996, ‘Acquire etc pistol subject to firearms prohibition order’, contrary to s 74(1) Firearms Act 1996, ‘Acquire etc ammunition subject to firearms prohibition order’, contrary to s 74(3) Firearms Act 1996 and ‘Firearm etc found at premises subject to prohibition order’, contrary to s 74(6) Firearms Act 1996. GC was serving an Intensive Corrections Order (ICO) for unrelated offences at the time of his arrest. He has a substantial criminal history including previous firearms charges.

Chris Cole entered negotiations with the Prosecution proposing a number of offences be withdrawn or placed on a Form 1, in exchange for a plea of guilty to the remaining offences. Ultimately, the Crown agreed to commit the matter for Sentence on just two offences, namely ‘Possess pistol subject to Firearms Prohibition Order’ and ‘Possess ammunition subject to Firearms Prohibition Order’. The sequence of ‘Not keep firearm safely’ was placed on a Form 1 and the remaining charges were withdrawn. GC was eligible for a 25% discount on Sentence for his early appropriate guilty plea (EAGP). 

Chris Cole briefed Counsel Mark Davies to appear at District Court Sentence. GC lives with severe cardiac illness and suffered a stroke not long before his arrest. A sentence bundle was prepared comprising of medical reports and documents, an affidavit, character references and other written materials in support of GC’s extenuating circumstances and mitigating factors.      

James Castillo appeared with Mark Davies of Counsel at District Court Sentence. The sentence bundle was tendered. Further tendered was an excerpt from the Bugmy Bar Book outlining the COVID-19 risks and impacts on prisoners. Counsel also prepared written submissions and made further oral submissions on GC’s behalf. GC was called to give evidence.

GC was then sentenced on the offences of ‘Possess pistol subject to Firearms Prohibition Order’, ‘Possess ammunition subject to Firearms Prohibition Order’ and ‘Not keep firearm safely’ (related offence). Ultimately, Her Honour found mitigating circumstances in GC’s favour and sentenced him to an aggregate sentence of 3 years with a non-parole period of 1 year and 8 months, backdated to include time already spent in custody.

This is an outstanding outcome for GC.

Sequence Placed on Form 1, No Conviction Recorded – Possess Prohibited Drug

AA was charged with one count of ‘Possess prohibited drug (Testosterone)’ and one count ‘Possess Prohibited drug (Methandienone)’, contrary to s 10(1) Drug Misuse and Trafficking Act 1985.

Chris Cole acted for AA in his matter.

A plea of guilty was entered to both sequences in the Local Court and the matter was adjourned for Sentence. Chris indicated to the Court that Representations would be sent to the Local Area Command concerning the Facts and possibly placing one of the sequences on a Form 1.

Chris successfully negotiated to have the second sequence placed on a Form 1. The matter proceeded to Sentence.

The Prosecution tendered written materials. Chris then tendered an Affidavit sworn by AA, character references and a drug screen result.    

Ultimately, Her Honour Sentenced AA to a Conditional Release Order (CRO) without conviction for a period of 12 months. The only condition of that order is that AA is to be of good behaviour for the period of that order.

AA is required to have a clear criminal record for his employment. This is a great result for AA.

Aggregate Sentence on Lengthy List of Indictable Charges – Attempt Murder; Break & Enter

PB was charged with offences relating to series of break and enter incidents. Namely, 2 counts of ‘Aggravated break and enter and commit serious indictable offence’, contrary to s 112(2) Crimes Act 1900, ‘Attempt to murder’, contrary to s 18(1)(a) Crimes Act 1900, ‘Specially aggravated break and enter and commit serious indictable offence’ (inflict grievous bodily harm), contrary to s 112(3) Crimes Act 1900, 4 counts of ‘Deal with property proceeds of crime < $100000’, contrary to s 193C(2) Crimes Act 1900, 3 counts of ‘Break and Enter dwelling-house or building commit serious indictable offence’ (destroy etc property), contrary to s 112(1)(a) Crimes Act 1900, ‘Aggravated enter dwelling with intent’ (knowing people there), contrary to s 111(2) Crimes Act 1900, ‘Enter dwelling with intent’, contrary to s 111(1) Crimes Act 1900 and ‘Larceny’, contrary to s 117 Crimes Act 1900. These are very serious charges resulting in lengthy terms of imprisonment if sentenced at the top end. PB has a substantial criminal history and had previously spent a number of years in custody for similar offences.

Chris Cole and James Castillo acted for PB in these matters, instructing David Carroll as Counsel.  

Chris Cole entered negotiations with the Prosecution to amend the Agreed Facts. A number of the charges were Certified for District Court and remaining sequences were withdrawn.

Following further negotiations, the matter proceeded to Committal. Pleas of guilty were entered on PB’s behalf to ‘Specially aggravated break and enter and commit serious indictable offence, namely larceny in circumstances of special aggravation, namely, did intentionally inflict grievous bodily harm’, a rolled up sequence (inclusive of 3 sequences), ‘Deal with property proceeds of crime less than $1,000,000.00’, and ‘Break and enter dwelling house commit serious indictable offence’. Further sequences ‘Enter dwelling house with intent to commit larceny’ and ‘Larceny’ were placed on a Form 1. The matter then proceeded to Sentence.

James Castillo appeared with David Carroll for PB’s Sentence at the District Court. The Crown Sentence bundle was tendered, and the Crown made Sentence submissions regarding PB’s risk of re-offending, future dangerousness and the protection of the community. David Carroll then made submissions on PB’s behalf. Mr Carroll’s submissions addressed the timing of plea and utilitarian discount on sentence, the objective seriousness of the offences, the subjective circumstances and mitigating features and special circumstances, referring to materials in the Defence Sentence bundle.   

His Honour considered both Crown and Defence submissions then proceeded to Judgment. Ultimately, His Honour sentenced PB to an aggregate sentence of 10 years 6 months imprisonment, with a non-parole period of 7 years.

This is a very pleasing result for PB considering the objective seriousness of these offences and his prior criminal history.

CRO Without Conviction, Avoids Licence Suspension; Breach of Good Behaviour Licence

JP was charged with Drive across dividing lines to do a U-turn’, contrary to Road Rules 2014. When this incident occurred, JP was already on a good behaviour licence due to previous traffic offences. Chris Cole acted for JP in this matter.

 JP relies heavily on his licence as a Real Estate Agent. Having his licence suspended would significantly impact JP’s ability to work.

JP completed the Traffic Offenders Intervention Program (TOIP) prior to Sentence.

A plea of guilty was entered to the offence and the matter was listed for Sentence in the Local Court. Chris Tendered materials on JP’s behalf and made oral submissions that he ought not be convicted of the offence. Ultimately, the Presiding Magistrate agreed with the submissions and placed JP on a Conditional Release Order (CRO) without conviction, for a period of 12 months. JP is to be of good behaviour and not commit any further traffic offences during that period.   

This is a very pleasing outcome for JP.

No Conviction Recorded for Breach of Good Behaviour Licence

AT was charged with ‘Not stop at line at red light’, contrary to s 56(1)(a) Road Rules 2014. AT was on a good behaviour licence at the time of the offence. He elected to have the penalty decided in Court.  Chris Cole represented AT in his matter.

AT completed the Traffic Offenders Intervention Program (TOIP) prior to Sentence. He pleaded guilty to the offence and Chris tendered materials to the Court. The Magistrate noted AT’s plea of guilty and deemed it not expedient to record a conviction or record any punishment, pursuant to s 10(1)(a) Crimes (Sentencing Procedure) Act 1999.  This means AT retains his licence and there is no breach of his good behaviour licence.

This is a great outcome for AT.

Plea Traversal Granted, Found Not Guilty; Supply Prohibited Drug

DJ was charged with ‘Supply prohibited drug >indictable & <commercial quantity’, namely Heroin, contrary to s 25(1) Drug Misuse and Trafficking Act 1985. This offence carries a maximum penalty of 2 years imprisonment if prosecuted in the Local Court and 15 years imprisonment if prosecuted in the District Court. DJ has complex chronic health conditions that often render him in excruciating pain. He was receiving inpatient hospital treatment at the time of the offence.

DJ initially pleaded guilty to the offence. He did not fully understand the process or the nature of the charge he was pleading to. DJ sought new representation and made contact with O’Brien & Hudson Solicitors. Chris Cole acted in his matter moving forward.

Chris appeared at the Local Court where he lodged a Section 4 Application / Plea Traversal on DJ’s behalf. His Honour granted that application and a plea of not guilty was entered.

The matter proceeded to Hearing. Chris tendered written materials and made oral submissions on DJ’s behalf. DJ gave evidence and closing submissions were made by the Prosecution. The Magistrate then proceeded to Judgment, ultimately finding DJ not guilty of the offence.

This is an outstanding result for DJ.