By Frank Egan – LAC Lawyers

There is a strong desire on the part of the legislature to reduce the incidence of, and provide protection to, the victims of domestic violence. Apprehended violence orders and bail are the main vehicles chosen to provide this protection. These provisions are fundamentally in aid of the prosecution.

Domestic Violence

Apprehended Violence

Apprehended Violence Orders (‘AVO’) are preventative and intended to provide protection against apprehended breaches of the law. A typical order will also prohibit a person from conduct that is less than criminal such as harassing and intimidating the person in need of protection (‘PINOP’) and stop the defendant attending places frequented by the PINOP. A knowing contravention of an order is a criminal offence punishable by up to two years imprisonment.

AVOs fall into two catgegories. Apprehended domestic violence orders (ADVOs); and Apprehended personal violence orders (APVOs). The defining characteristic is the relationship between the PINOP and the defendant. If you are in a domestic relationship with the one you fear you get an ADVO, whilst everyone else gets an APVO. There is no great difference once an order is in place and the process is broadly similar.

ADVOs are commonly applied for and obtained in response to an allegation of domestic violence. Frequently the parties will continue to live together or resume cohabitation at some stage during the proceedings. Proceedings for an ADVO will run in tandem with criminal prosecutions generally for assault or malicious damage. The police will apply for the ADVO on behalf of the PINOP. The PINOP will also generally be the main prosecution witness for the criminal charge.

Legislative Recognition of Domestic Violence

The NSW Crimes Act 1900 contains definitions of what are ‘domestic violence offences’ and ‘personal violence offences’.

A Domestic Violence Offence may arise from any of the following categories:

1 marriage relationship:

2 de facto relationship; 3 intimate personal relationship; 4 living or has lived in the same household; 5 dependent relationship involving paid or unpaid care; are related. 6 The Making of the Interim Order

The usual scenario where the criminal justice system intervenes in a ‘domestic’ is where there is an altercation in the home (usually involving a large amount of alcohol), there is a notification, the police attend and the perpetrator is arrested and charged with a personal violence offence and an interim telephone ADVO is made for the protection of the victim.

The Crimes Act deals with the making of telephone interim orders and is the reason why your partner will get charged rather than told to behave him or herself. The Act severely restricts the discretion of the police when dealing with allegations of domestic violence, and provides a capacity for police officers to apply by telephone for apprehended violence orders.

If the attending police officer declines to make an telephone interim order in the face of an allegation of a domestic violence offence, the police officer must provide written reason as to why an order wasn’t applied for.

Where the police do not get a telephone interim order the Act requires a magistrate to make an interim apprehended violence order when a person is accused of a domestic violence offence. The court can decline to make the order if it is satisfied that an order is not required, however its reasons must be given.

Bail

Bail is generally about whether or not the accused will attend court on the next occasion. In making a determination as to bail the court is required to take into account various matters.

There are a number of provisions relating to bail that are relevant to situations involving domestic violence. The Bail Act removes the presumption in favour of bail for certain domestic violence offences and the offence of contravening an apprehended domestic violence order. This applies to accused persons with a ‘history of violence’ or violence to another person in the past or who has a failure to comply with bail conditions. An accused will have a ‘history of violence’ if the accused has been found guilty within the last 10 years of a personal violence offence or an offence of contravening an apprehended violence order by an act of violence. The Act states that bail should only be granted in exceptional circumstances to a person in respect of a ‘serious personal violence offence’ if the applicant is a repeat offender. This provision will apply to extreme examples of domestic violence.

The police will be likely to refuse to grant police bail in circumstances where an accused is a repeat offender or on bail. A bail application in front of a magistrate will be necessary and this will mean a longer stay in custody.

A fundamental condition of bail is to be of good behaviour for the duration of the bail. Conditional bail can have conditions similar to any interim order. Accordingly, misbehaving whilst on bail can constitute a contravention of the interim order. Any breach of bail can cause the bail to be reconsidered. In practice the accused will be arrested, refused police bail and brought before a magistrate to have a bail determination made.

Witnesses

The main prosecution witness often gets less enthusiastic about the prosecution as domestic tranquillity re-establishes itself. The continuance of the prosecution is a question for the police.

An absence of reliable evidence does not deter the NSW police from continuing with a prosecution. The NSW police will not discontinue a prosecution concerning domestic violence on the basis that the principal witness does not want the matter to proceed. Despite this prosecutions proceed in these circumstances with the accused pleading not guilty, the matter is then listed for hearing and proceeds to hearing even though it may fall over at this stage.

Something that can and does occur is that if the victim attends and gives evidence which contradicts the earlier statement provided, the witness is declared an unfavourable witness. The victim is then attacked by the police prosecutor and accused of perjury. Not a very nice result.

Police will sometimes arrest the witness and almost always bring him/her to court.

There is a qualified spousal privilege which applies to a person who, when required to give evidence, is the ‘spouse, de facto spouse, parent or child of a defendant’. The objection needs to come from the witness and generally should be made when the witness is called to give evidence. Theoretically any person who is the sole witness to a minor domestic assault and in a relationship with the accused should not be excused from giving evidence.

Sentencing Considerations

Common assault is punishable by two years imprisonment. A person who knowingly contravenes a prohibition or restriction specified in an order is also guilty of an offence that carries a maximum of two years imprisonment. The two offences can be constituted by identical facts. Contravention of an order will generally be considered a more serious offence as it involves the addition element of a breach of a court order. Offenders are routinely imprisoned for serious or repeated contraventions of orders.

One of the reasons why contravention of an order is a serious offence is that offenders will frequently be recalcitrant. A plea of guilty must be taken into account. The utilitarian value of a plea should be assessed in the range of 10-25%. This is before other considerations such as contrition are taken into account. A discount of 25% is fairly common for a plea of guilty.

Alcohol may aggravate an offence as it demonstrates recklessness, or mitigate as it shows that an offence is out of character. The courts have made it clear that a domestic context does not excuse an offence or make it less serious. That is, ‘violent acts in domestic situations must be treated with real seriousness’.

The Court of Criminal Appeal has stated ‘Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished.’

A suspended sentence under section 12 of the Crime (Sentencing Procedure) Act 1999 should be approached with care. Once a section 12 bond is breached the best that an offender can do is periodic detention. Frequently such bonds are for durations that are longer than what would be the appropriate sentence of imprisonment.

A crime committed in the home is treated as seriously as a crime committed in a public place against a stranger. Don’t forget that it is an offence to contravene any term of an AVO which carries a maximum penalty of 50 penalty units and/or two years imprisonment.

Should you become the subject of a TIO (telephone interim order) do not delay – call LAC Lawyers for an urgent appointment before the matter proceeds to properly protect yourself in these circumstances.

It is important to keep the following points in mind.

– An AVO remains in force for the period specified by the courts, otherwise for six months.

– An application may be made to the court to vary or revoke an AVO where it is appropriate to do so.

– A defendant may appeal to the District Court against an AVO made in either the Local Court or Children’s Court but this must be done within 28 days of the lower court’s decision.

– An AVO can affect employment opportunities, the ability to maintain various licences including a firearm’s licence or permit, restrictions on personal freedom including communication and movement and may conflict with Orders made by the Family Law Court.

About the Author: Frank Egan is the Chief Executive Officer of LAC Criminal Lawyers Sydney and has over 27 years of experience as a lawyer.

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By Robert Kane

Marijuana users have always sought legal loopholes in countries where it is illegal to own or smoke it. Many people choose to buy marijuana seeds (which is legal in many places), then grow and smoke their own (which is not!) But every marijuana smoker has probably dreamed at one point or another of living in a country where marijuana is legal – or at least where the ‘rules’ concerning possession are so lax that it is effectively legal.

Most people know about Holland’s famously relaxed laws regarding marijuana (which is why it doesn’t feature on the list below!) While no other country has achieved such high profile recognition for making marijuana legal, a number of places around the world have quietly relaxed their laws concerning possession for personal use. In most of these countries, possession still remains technically illegal, but penalties are not enforced if you are within certain guidelines – this is known as decriminalisation.

So, if living in a country where marijuana possession isn’t punished by the law sounds like heaven, here are five places you should consider emigrating!

Argentina

After a recent court debate about whether or not to punish those who buy and grow marijuana, Argentina has effectively made marijuana legal if it is in small quantities for personal use. A leading judge in Argentina even decided that it was ‘unconstitutional’ to legislate against marijuana possession! Those who buy marijuana seeds and grow their own are also leniently treated, so long as they are growing a small number of plants. The country is also notably supportive of several medical marijuana programs.

Australia

Before you go booking a one way ticket to Sydney, make sure you do your research. Different regions have different rules, but Western Australia, Southern Australia, Tasmania, Victoria and Queensland have all decriminalised marijuana to a certain degree. In Tasmania, Victoria and Queensland, police have taken to ‘ticketing’ those caught with less than 50 grams of marijuana rather than arresting them, and Western and Southern Australia have instituted on the spot fines for minor possession rather than official warnings or arrests.

Belgium

Since 2003, the Belgian government has made the possession and use of marijuana legal under the following conditions:

—

The amount possessed is 5 grams or less

—

You are over 18

—

You do not smoke in the presence of minors

—

You do not smoke in public

You can buy marijuana seeds and grow them in Belgium without penalty – however, you are only allowed to own one female plant. The purchase and sale of marijuana is still illegal, but most Belgians simply get their marijuana in Holland.

Colombia

Colombia, has had relaxed laws concerning drug possession for over ten years. Possession of less than 20 grams of marijuana, one gram of cocaine and one gram of heroin is not considered to be illegal, although things may change – recent conservative governments have considered repealing this law to combat Colombia’s drug culture.

Nepal

Unlike the other countries on this list, Nepal doesn’t have an actual decriminalisation policy towards marijuana – it’s rather that the laws they have are hardly ever enforced! Marijuana used to be legal in Nepal, making it a hippy Mecca in the 1960’s and early 70’s. It has been illegal since 1973 – not that you’d notice. Marijuana is widely available and used, especially by Nepalese holy men. Note that smuggling and growing are punished, but possession and personal use rarely are – if the police catch you smoking they will stop you, but only to collect a small bribe!

About the Author: Robert Kane is the managing director of Sensible Seeds.com, where you can buy

marijuana seeds

and informational books online. The website sells its products to customers all over the world.

Source:

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By Dr. Joseph Marcius

At some point, almost everyone will experience some sort of tooth pain or accident involving the teeth. Because there are so many nerves around the teeth, tooth pain can be excruciating and often requires a trip to the dentist to find out what’s wrong.

Some types of injuries or pains can wait until the dentist can get you in – most dentists have appointments set aside specifically for injuries. If you encounter a dental emergency, you should call your dentist immediately. If your emergency occurs outside of hours, look in your phone book for emergency dental care. These places are generally much more expensive, but insurance usually covers a portion.

In the mean time, if you experience tooth pain, there are a number of things you can do to ease the pain until you get to the dentist, depending on the injury:

Broken or cracked tooth

If you break or crack your tooth, you should call your dentist immediately. In fact, you should contact your dentist or go to an emergency dental center within 30 minutes in order to maximize your chances of saving your broken tooth. In the meantime, however, rinse your mouth out with warm water to clean blood and debris from the area.

If the jaw is swelling and painful, you can apply a cold compresses on the area to keep the swelling under control. Over the counter medicines such as Tylenol can alleviate the pain until you get to the dentist.

Broken jaw

If you think you’ve broken your jaw, you should go to the hospital or your dentist immediately (if teeth are missing). In the meantime, a cold compresses can help to alleviate swelling. Once you get to the hospital, you will most likely be given a strong prescription pain medication to help alleviate the pain. Tylenol or other type of pain killer might ease the pain until you can get this medication.

Knocked-out tooth

If you have knocked your tooth out, hold the tooth by the crown and rinse off the root of the tooth in water if it’s dirty. (You may want to make sure the drain is stopped as well so it doesn’t go down.) Don’t scrub the tooth and leave all the tissue fragments attached to the root. If you can, gently put your tooth in its socket and hold it there. If that isn’t possible, put the tooth in a cup of milk and get to the dentist as soon as you can.

You can alleviate the pain that goes along with a knocked-out tooth with a cold compress and a medicine such as Tylenol or Advil.

In addition to Tylenol, Advil, ibuprofen, and other types of over-the-counter pain medication, there are some medications you can purchase in the drugstore that are designed specifically for tooth pain. These include topical medications and numbing agents you can apply directly to the tooth or the area that is causing the pain. In addition, rinsing the mouth with warm water can also help to ease the pain of a toothache before you can see the dentist.

About the Author: Dr. Joseph Marcius, DDS, is a leading dentist in Akron, Ohio. Dr. Marcius specializes in Akron Smile Makeovers, Dental Implants and Sedation Dentistry. Visit us for more information

silverlakesmilecenter.com

or call (330) 633-7141.

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