I have been given an on-the-spot fine. What do I do?
If you have been given an on-the-spot fine (penalty notice), don’t ignore it. Failure to pay fines can have serious consequences, including recovery action by Revenue NSW, having a drivers licence suspended or funds being garnished from your account without a court order. If you need time to pay a fine, you can negotiate a payment plan. It may also be possible to negotiate entering into a work and development order instead of paying the fine.
If you are considering challenging the fine or going to court to defend the matter, you should get legal advice sooner rather than later as strict time limits apply to fines. You can also check out Law Access NSW to find a lot of online information about fines. Phone Law Access on 1300 888 529.
I've received a Court Attendance Notice. What do I do now?
Police may give you a Court Attendance Notice (CAN).
If you have been charged with a criminal offence you can receive a CAN either on the spot or in the mail. The CAN tells you what offences you have been charged with, and when and where you have to appear in court. A CAN issued on the spot is likely to be a field CAN, which is a small yellow piece of paper that looks a bit like a receipt. If you are issued with a field CAN the police will prepare a full CAN which will be available on your first court date (or possibly earlier). The full CAN will include the same information as the field CAN, as well as setting out a narrative of the police facts. You must respond to the CAN, so take note especially of when you are expected to be at court. The CAN will also list your personal details. If the CAN contains incorrect personal details (like it misspells you name etc.) it is still a valid notice.
You can make an appointment to see a lawyer at ICLC by phoning 02 9332 1966.
I have been charged. What do I do?
It may be a good idea to make some notes about what happened around your arrest. Any notes should be in your own words and should detail any conversations you had with witnesses or the police. You may ask any witnesses to write down what they saw, in their own words. You and any witnesses that you may have are obliged to give truthful information and evidence.
If you have been charged with a criminal offence it’s a good idea to get legal advice, even if you intend to represent yourself at court, to speak about the offence/s, any defences and the court process (including possible outcomes).
Keep all the documents you receive such as the CAN, police facts sheet, and any bail undertakings if you are on bail. It may be helpful to obtain one or more character references, if you are planning to plead guilty or may be found guilty. You will need to bring these documents with you to court on the day, and should bring three copies – one for you, one for the prosecution and one for the court.
What is a written notice of pleading?
If your matter is a minor crime and you are not on bail, you may have the option of submitting a ‘written notice of pleading’ rather than going to court. A written notice of pleading sets out how you intend to plead (guilty or not guilty) and what you want the court to take into account in deciding the matter. The notice must be submitted at least 7 days before your court date and the court may still require you to come to court.
While you may be able to submit a written notice of pleading, most lawyers will advise that you put yourself in a better position of having the court listen to you by attending court in person and telling the court your view of what happened, giving information about your personal and financial situation, your character and any other factors the court will take into account in deciding the matter. You should also note that if you are not present in court when your matter is finalised, the court cannot deal with your matter by a conditional release order without conviction (what used to be known as a section 10 good behaviour bond) as you must be present in court to sign the papers for the order to be valid.
I have been charged with possession. What will happen?
You will be given a Court Attendance Notice (CAN). The CAN may be given to you on the spot or sent to you via the post later on.
Please see ‘I have been charged what do I do?’ if you received a CAN for more information.
When can I be charged with supply?
Supply has a very broad definition and includes selling and distributing drugs, agreeing or offering to supply, or keeping or having drugs in your possession for supply. No drugs actually need to change hands between you and another person. You also do not need to profit from any exchange – if you are holding drugs for a friend, and pass them a pill – that’s still supply.
If you are caught with a ‘traffickable quantity’ of drugs you can be charged with supplying drugs unless you can prove that you were not going to sell or distribute the drugs to anyone.
The maximum penalty for supply varies from a $220,000 to $550,000 fine and/or 15 years to life in jail.
What are the criminal charges and sentences for different amounts of possession of different types of drugs?*
* Sentences/penalties will depend on whether the offence is dealt with summarily (objectively minor) or on indictment (objectively more serious). This table is more legal information only, seek legal advice for specific issues.
What happens at the first court date?
Your first appearance at court will be a ‘mention’. At a mention the court will ask you whether you wish to plead guilty or not guilty or where you may seek an adjournment to obtain legal advice. An adjournment is where the matter is put off to another day.
If you plead guilty at the mention the court will usually sentence (that is, impose a penalty) on you the same day.
If you plead not guilty at the mention the court will set the matter down for a hearing and possibly give directions about how the matter is to be conducted.
What happens at a hearing?
At a hearing the prosecution must prove the elements of the offence to the correct standard of proof. The court will want to hear from you and any witnesses you may have and any prosecution witnesses. As noted above, witnesses must give truthful evidence to the court.
You may be able to successfully defend the charge, but as noted above you should seek legal advice when charged with a criminal offence, well before going to court.
How does a court sentence me?
The court has discretion to decide upon a number of different penalties if it finds that you are guilty of the offence. Such penalties may include imprisonment (where applicable), community service orders, conditional release orders, community corrections orders, fines, and a finding of guilty but no conviction recorded (called a ‘conditional release order without conviction’, formerly a section 10 good behaviour bond)
You should get legal advice about the maximum penalty possible for your charge, and the penalty that you are likely to receive.
What if I don’t go to court?
If you don’t go to court when you are expected to, and have not given the court an explanation for your absence, or a written notice of pleading when you should have; the court can deal with the matter in your absence and would be likely to deal with you more harshly than if you went.
Although you can apply for an annulment (for your conviction to be cancelled and your case re-opened), this is risky as 20% of annulment applications fail. You are better off going to court.
Appeal from the Local Court
If you believe you should not have been found guilty of the offence, or you believe the penalty was too severe, or both, you should seek legal advice urgently. You must lodge an appeal from the decision of the Local Court within 28 days of the decision.
Can I have my case moved to another court?
If you are pleading guilty, contact the court and ask for your case to be transferred to a court closer to you. You should send your request in writing by email to the court. Follow up with the court about any decision to move the case.
If you are pleading not guilty, the court will usually not transfer your case to another court. This is because the case needs to stay where the offence took place so that witnesses, for example, the police, can attend the hearing.
A case cannot be moved to a court outside NSW.