Recklessly Cause Grievous Bodily Harm Or Wounding Information

Recklessly Cause Grievous Bodily Harm Or Wounding
[Section 35 Crimes Act 1900]
Maximum penalty: 10 years imprisonment if heard within the District court (2 years if dealt with summarily) or 14 years if the offence was committed in the company of others.
Offence: Causing grievous (serious) bodily harm (GBH) or wounding through reckless actions.
1.   Recklessly: No proof of intent is needed, although still has some foresight to the actions. The accused understood and realised the possibility to GBH behind their actions
2.    Grievous Bodily Harm (GBH):
a. the destruction (other than in the course of a medical procedure) of the foetus of  pregnant woman, whether or not the woman suffers any other harm, and
b. any permanent or serious disfiguring of the person, and
c. any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease)
3.    Wounding: involves the cutting or breaking of the interior layer of skin.
Defences: Possible defence to this charge is self-defence. In order to raise self defence the following must be established:
-That the accused believed that their conduct was necessary to defend himself, herself or another.
-What the accused did was a reasonable response in the circumstances as the accused perceived them.
Sentences: Factors affecting penalties can include the extent of the injuries caused, the degree of violence and force used, intent or recklessness, or any other aggravating circumstances such as the presence of a minor at the offence. Other considerations include remorse, criminal record, and other personal circumstances such as health and employment.


Simon Tedeschi "Comes Clean"?

In a bizarre post on the Limelight magazine online, Simon Tedeschi, son of NSW’s senior Crown Prosecutor (who, incidentally also has a wikipedia article, though it’s substantially longer than his performing artists son), does a “tell all” about the use of beta-blockers by musicians in the classical music industry. In a tongue-in-cheek/or-is-it? style piece he criticizes the industry’s permissive attitude while excoriating himself for not having done things differently. Make up your own mind about just what sort of a confession this is:

“I’ve been living a lie.

For that I’m sorry. I’m sorry to budding young pianists who looked up to me as a role model. I’m sorry to all my audiences. I’m sorry to piano teachers everywhere. I’m sorry to Lane Cove Music Club who booked me when I was 9 in the hope I would turn into something special. I’m sorry to the late Fred Blanks for writing a mean article about him in this very magazine. He was right all along. I am sorry to the charity of which I am patron, the MicroLoan Foundation, and especially its beneficiaries: the toiling women of Malawi who must resort to cruel ingenuity to provide a plate of rice for their kids, to whom I am also sorry (even though, strictly speaking, they did come out on top as a result of my recitals). I don’t have any children yet, but I’m pre-emptively sorry to them as well. Mostly, I’m sorry to God.

For the last decade, I’ve doped. From Sydney Opera House to Campsie RSL, my performing career has been an exercise in subterfuge. Peruse my CV; let your eyes rest on a competition victory. I doped for that too. My childhood competitors probably remember an awkward, gangly-eyed boy with scant hair and a preternaturally calm demeanour. I was high even then. The plastic trophies I captured during Eisteddfod runs in the 90s were pawned to Happy Hockers in exchange for a fix. During the filming of Shine in which I was the hand double for the young David, I was embroiled in my own private psychodrama (currently being negotiated for the big screen, Charlie Sheen set to star). My recordings, noted for their slow tempi, should have had another name on the liner notes. Its scientific name is Metropolol, but is most commonly known by its generic name: Beta Blockers.

[…]

Even though I am one, I don’t want to be seen as a hero – merely a man who wanted to be a pianist but lost himself along the way. This announcement is going to be gut-wrenching for those closest to me, but no more so than for my family who will bear the brunt of my duplicity for years to come. For the moral luminaries out there baying for my blood – am I not a man too? If you prick me do I not bleed? I expect the establishment’s response will be swift and permanent. As of this article’s publishing, I am persona non grata in everywhere but my own lounge room. All this from the very powerbrokers who always made a point of looking the other way. Who are the real villains here?

Even though my career is in the doghouse, I do not want to bow out of public life without trying to make something positive out of all this. I submit that nothing less than a full scale, zero tolerance crackdown is needed. Heads will need to roll.

My recommendations:
– Compulsory stagefright checks at all stage doors throughout Australia.
– An inquiry headed up by Justice George Palmer to examine and weed out collusive behaviour by members of the classical music hierarchy.
– A media campaign titled ‘Beat da Blocker,’ figure-headed by Australian Rugby League legend Blocker, designed to rehabilitate classical music in the public’s eyes and simultaneously open it up to younger audiences.
– A televised interview between me and Oprah which will lend this cause the profile it needs in order to truly permeate the public consciousness. With the funds I have illicitly gained through doping, I will give each live audience member a house.

In the meantime, I hereby announce my retirement from public life. I intend to spend more time with my close family and pursue my other great passion: cycling.

With regret

Simon Tedeschi”

“Even though I am one, I don’t want to be seen as a hero?” Really?

Full article here.


Robbery Offence Information

Robbery
[Section 94 Crimes Act 1900 (NSW)]
Maximum Penalty: 14 years imprisonment
Offence: There are three elements to this offence, they are:
1.     Intent to steal
2.     Threat or force putting the other person(s) in fear
3.     Taking property from the person(s)
This offence must be heard within the district court.
Evidence: Evidence that may be used includes, evidence from the victim or witnesses, CCTV footage, interviews between accused and police, and more.
Defences: An option for defence is claim of right. That the accused believed they were entitled to take the property.
Sentence: Custodial sentences are generally given for this offence. Consideration is given to prior criminal record and personal circumstances are taken into account.

This Offence can be elevated with the addition of weaponry or wounding, the offence has the same three elements to establish robbery. With all of these offences both aggravating and mitigating circumstances affect the outcome of the penalty. These offences include:
1.    Robbery whilst armed with an offensive weapon [Section 97(1) of the Crimes Act 1900 (NSW)]-
Offensive weapon includes: a dangerous weapon, anything made/adapted for offensive purposes, anything intended to be used for offensive or threatening purposes or anything capable of causing harm.
Maximum penalty is increased to 20 years imprisonment.
2.    Robbery whilst armed with a dangerous weapon [Section 97(2) of the Crimes Act 1900 (NSW)] –
Dangerous weapon includes: a firearm, or imitation firearm, a prohibited firearm, or a spear gun.
Maximum penalty is increased to 25 years imprisonment.
3.     Robbery with wounding. [Section 96 of the Crimes Act 1900 (NSW)]-
Wounds- A break of the interior layer of skin
Grievous bodily harm- Serious injury but needn’t be permanent or life threatening.
Maximum penalty is increased to 25 years imprisonment.

MALE JURORS don’t like FAT PEOPLE

More “good” news from the land of statistics, science and other research as to apparent psychology with the revelation that appearances count. Well, to a certain extent: male jurors aren’t fond of obese female defendants. 

An article in this mornings SMH online reports that a study has revealed that men were more harshly disposed to obese women than they were to obese men and are more likely to convict a female defendant if they are overweight:

“Researchers at the Yale Rudd Centre for Food Policy and Obesity asked 471 people to participate in a mock trial.

Each participant was given an image of either an obese male, a lean male, an obese female or a lean female and asked to rate the guilt of that defendant.

Male participants judged the obese female significantly more guilty than the lean one, but female participants judged them equally.

There was no difference in either gender’s assessment of the men’s guilt, regardless of bodyweight.

”The results … indicate that bodyweight and sex of a defendant have an interactive effect on juror perceptions of guilt and responsibility,” the authors wrote of their findings, published in the International Journal of Obesity.

”Male respondents endorsed greater anti-fat bias than female respondents. In addition, female participants were more likely than male participants to attribute obesity to biological and environmental causes as opposed to personal shortcomings.”

[…]

Jane Goodman-Delahunty, who specialises in psychology and law at Charles Sturt University, said the study corroborated research that found the appearance of defendants, including whether they were baby-faced or attractive, influenced jurors’ perceptions of their guilt.”

Which all adds up to very good news for all the beautiful people guilty people.

Full story here.

Picture Credit: Australian Men’s Health Online.

Affray Offence Information

Affray

[Section 93C of the Crimes Act 1900 (NSW)]
Maximum penalty: 10 years imprisonment (2 years if dealt with in the Local Court)
Offence: The threat or use of violence towards another individual resulting person of reasonable
firmness present at the scene to fear for his or her safety. This offence is generally Heard by
Magistrate in the local court, but can be elected by the prosecution or accused for hearing in the
district court.
DefencesPossible defence to this charge is self-defence. In order to raise self defence the
following must be established:
-That the accused believed that their conduct was necessary to defend himself, herself or another.
-What the accused did was a reasonable response in the circumstances as the accused perceived
them.

Sentences: For sentencing consideration is given to the conduct and level of violence used. Other 
considerations include remorse, criminal record, and other such as health issues and employment.
More common and alternative sentences to goal include a good behaviour bond or community
service.

LAW NOT BLACK AND WHITE – it’s fifty shades of grey.

The law is not black or white. It’s fifty shades of grey.

Safe words are the new black, or red, or whatever. Always use a safe word, is the lesson of the day…

A fellow who whipped a woman during a Fifty Shades of Grey – inspired sexual encounter was charged with assault but found not guilty by a jury of 10 men and two women.

According to reports, “the woman, who he met on a dating website, had been inspired by the EL James best-seller and started taking part in threesomes and bondage sessions.

Mr Lock said the pair had discussed acting out a master/slave sex fantasy for months before it happened on August 6 last year.

Mr Lock said they agreed to use the code word ‘red’ if either of them wanted to stop the role-play but, he says, the woman never mentioned the word.

She claims he put a rope around her neck, padlocked her wrists and made her bend over on the bed where he whipped her 14 times, cause 14 centimetre bruises on her backside.

After the whipping Mr Lock had sex with the woman and left her tied up while he used his computer.

The woman was able to send a text and a picture of herself tied up to a friend asking him to call the police because she had been ‘chained up and whipped like a dog’.

Mr Lock eventually released her and told her to leave which is when police turned up at his residence and noticed the woman in the street in a distressed state.

Asked by defence counsel Roger Thomson if Mr Lock and the victim had read Fifty Shades of Grey, Mr Lock replied: “That’s where we got the idea from.””

Outside of court, the fellow (who is a jeweller apparently) said that he was relieved at the verdict and that the jury “had seen sense”.

He said: “It’s the right verdict. This case should never have reached court. As far as I’m concerned, it was a consensual activity between adults.”

The court heard the couple took part in group sex and bondage together and the woman had the words “Property of Steven Lock“ tattooed around her genitals.


Full story here and here.

Where did it all happened? Britain. Of course.

Common Assault Offence Information

Common Assault

Maximum penalty: 2 years imprisonment
Offence:An act of physical violence such as striking or touching someone. As well as threats of
violence that cause the victim to fear their immediate physical safety.
The intent of the accused to harm or threaten the victim is not necessary to be proven by the
prosecution. In most cases the alleged acts must be deemed hostile.
Defences: The possible and most common defence to this charge is self-defence. In order to raise
self defence the following must be established
-That the accused believed that their conduct was necessary to defend himself, herself or another.
-What the accused did was a reasonable response in the circumstances as the accused perceived
them.
Other defences can include lack of intent or recklessness to assault.
Sentences: The maximum penalty is usually held for those holding a criminal record.

OUTRAGEOUS MAGISTRATE COMMENT

Today we celebrate our 100th post on the blog. Thanks everyone for your support and your continued input in making this a relevant and interesting blog.

Today’s topic comes straight out of the pages of The Australia and near-daily court experience with the controversy-that-dare-not-speak-its-name finally being given voice – but in the wrong direction with a sitting Local Court Magistrate criticising the Aboriginal Legal Service for not pleading clients guilty often and early enough. The magistrate, at least as reported, appears to be criticising Aboriginal Legal Service lawyers for defending rheir clients and requiring that the prosecution are put to proof.

This is an appalling display of magistrates (this one, a sitting magistrate) putting the cart before the horse. In my view it is never appropriate for a member of the judiciary to comment on the failure or otherwise of a client to insist on their rights at law and defend a charge in court. What is happening in our state when this is the publically avowed position of a sworn magistrate?

Roger Clisdell, the sitting magistrate in Parkes in the NSW central west, took the unprecedented step of publicly criticising the Aboriginal Legal Service NSW/ACT after reports in The Australian on juvenile justice exposed apparent disparities in sentencing patterns between city courts and the regions.

[…]

The ALS’s Dubbo office last year commissioned a study of hundreds of convictions of ALS clients for driving while disqualified, which revealed Aboriginal defendants were being sentenced to prison more often and for longer periods than their non-indigenous counterparts.

The ALS’s principal solicitor (western zone), Stephen Lawrence, had also been vocal in his criticism of sentences handed to Aboriginal boys in the region, including one case in which a 17-year-old with virtually no criminal history was given a 12-month head sentence for stealing $70 of hamburger buns.

In responding, Mr Clisdell blamed parental alcohol abuse, domestic violence and family breakdown for youth offending, but also took the opportunity to take aim at what he characterised as aggressive tactics by the ALS in defending their clients.

In an interview with The Australian, Mr Clisdell spoke of his frustration with the high rate of not-guilty pleas entered in the Bourke and Brewarrina jurisdictions, in particular for domestic violence matters and particularly relating to ALS clients.

“Where the ALS do a disservice to their clients is the constant inability to enter an early plea of guilty to charges where there clearly should have been a plea entered. The not guilty plea rate at Bourke and Brewarrina was close to 90 per cent,” he said.

Mr Clisdell suggested that defendants or their lawyers were aware victims would often fail to appear in court to testify, meaning that those who had pleaded not guilty would get off scot-free.

“It’s called the Bourke defence,” Mr Clisdell said.

“I don’t know whether the client is not prepared to acknowledge guilt, or whether there is an underlying idea that let’s make the police prove every single point. But it doesn’t do the clients much good if they get convicted after a hearing, and any discount that would have applied to a plea of guilty is forfeited.

“When you’ve got a rate of not guilties that is as high as it was in Bourke and Brewarrina, you have to wonder whether there is some campaign to take on the police absolutely every time and clog the court lists. Because inevitably what happened is that the victim wouldn’t turn up and the matter would be dismissed.”

Mr Clisdell suggested the ALS had “declared war” on the magistracy in the northwest.

He said Mr Lawrence’s comments were “a direct attack on the magistracy. Allegations of idiosyncratic sentencing, overly harsh sentencing, social engineering – if that’s not an attack on us I don’t know what is. And I reject each and every one of those contentions so far as they apply to me.”

ALS NSW/ACT chief legal officer John McKenzie vigorously defended the “fearless advocacy” displayed by ALS solicitors.

[…]

Mr McKenzie said there was “no place in our justice system for anyone to publicly question the privileged communications between a client and their lawyer”.

“One of the major reasons why the ALS was established in 1970 was to combat the widespread practice in magistrates’ courts of Aboriginal people being pressed into entering pleas of guilty in the absence of legal representation.”

“In most courts at the time, it was a very rare occurrence for an Aboriginal accused to plead not guilty, regardless as to whether they believed they had committed the crime.”

Full story in the Australian online here.

With thanks to one of the fighters and true advocates for his clients – Tim McKenzie for tip off to the above articles.

Aaron Kernaghan

Wishing you a Merry and Safe Christmas

The whole team at Kernaghan and Associates wishes you all a very merry and very safe Christmas, this December. We hope your holidays are restful and that you start the new year with cracking success (much like, we hope, the Australian Cricket Team). 


Best wishes for the New Year and we shall see you all soon.

Merry Christmas and a Happy New Year.

Aaron, James, Leisha, Todd, Tim, Kyle.