Clarity Law

In Queensland, criminal proceedings can be commenced in one of three ways:

1. Arrest and bail (or remand in custody);
2. Complaint and summons; and
3. Notice to Appear.

The last of these is the most common way for police to start criminal proceedings against someone. If you have been given a Notice to Appear in Court by the police, it is important to understand what it is and how it operates within the larger context of Queensland’s criminal law and procedure.  

Notice to Appear as an Alternative to Arrest and Bail

Prior to the creation of Notices to Appear, the conventional way for police to start criminal proceedings against someone was by either (a) arrest and bail / remand in custody, or (b) complaint and summons. The former process involved taking the charged person into custody, formally charging them, then considering whether to grant them “watchhouse” bail, or keep them in custody until their matter finalised at court (unless a Magistrate or the Supreme Court granted bail in the meantime).

The ”complaint-and-summons” process did not require formal arrest. Instead, the charged person was issued with a “complaint” outlining the offence they were alleged to have committed, and a “summons” directing them to attend court. If the person was charged with more than one offence, these had to be described on separate complaints (with some exceptions). The legislation concerning complaints are detailed, and the requirements of complaints are strict. Summonses are issued by magistrates; therefore, the police required a magistrate to issue a summons prior to providing these documents to the charged person.

These processes – arrest and bail / remand and complaint and summons – were both cumbersome. The former required taking person into custody. The latter was time-consuming. Notices to Appear were developed as a way of preventing taking people into custody (especially for offences that are highly unlikely to result in imprisonment on sentencing) and to streamline the process of commencing proceedings.

Commencing Criminal Proceedings by Notice to Appear

Police may issue a Notice to Appear to a person whom the police consider to have committed an offence. Notice to Appear must be given to the person directly, unless they are charged with an offence under the Road Use Management Act or the Heavy Vehicle National Law (Queensland). In these circumstances, the person can be served a Notice to Appear by registered post.

In order to be valid, the Notice to Appear need only state the “substance” of the offence alleged to have been committed. It must also have the accused person name on it, state whether they are an adult or a child, list the court in which they are to appear (and the time and date of the first appearance), have the charging police officer’s name on it, and be signed by a police officer.

Note that the requirement for the Notice to  Appear to only state the “substance” of the offence charged is a less strict requirement than complaints, which must use the exact wording of the offence as set out in the legislation. Also, no objection can be made if more than one charge is listed in a single paragraph on the Notice.

The prosecution may provide proper particulars of the offence (usually on a Bench Charge Sheet) on the first court date.

Once the Notice to Appear is issued, a copy of it must be given to the clerk of the court in which the charged person is to appear as soon as possible.

Once the Notice to Appear is served, and a copy given to the clerk of the court, the Notice is treated the same as a complaint and summons and the matter proceeds before the court as though it was started by a complaint and summons.

Lastly, it must be noted that Notices to Appear as a method of commencing criminal proceedings are only available to the Queensland Police Service. Other government agencies (such as the Australian Tax Office, the Commonwealth Director of Public Prosecutions, local councils, etc) must still commence by means of a complaint and summons.

Failure to Attend Court after a Notice to Appear is Served

If you are served with a Notice to Appear, and you do not attend court on the date stated on the Notice, the magistrate may issue a warrant for your arrest. Once the warrant is issued to the police, they will take you into custody, and provide you with a new court date. Alternatively, if you surrender yourself to the court, the magistrate may revoke the warrant and return the criminal charges to the court’s list.

On the other hand, if the police failed to properly serve the Notice to Appear on you or failed to give a copy to the clerk of the court, the magistrate may dismiss the charges which relate to the Notice. However, that does not end the matter, as the police may re-issue the Notice to Appear with a new court date. Re-issuing the Notice returns the charges to the court.

Conclusion

The purpose of Notices to Appear is to streamline and simplify the process of starting criminal proceedings. Although Notices are a less cumbersome process than arrest and bail or issuing complaints and summonses, this does not mean that the legal consequences of being dealt with by a Notice are any less serious. If you have been served with a Notice to Appear, it is important to get expert legal advice as soon as possible.

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Call us on 1300 952 255 seven days a week, 7am to 7pm

3. Click here to select a time for us to have a free 15 minute telephone conference with you

4. Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

For criminal and domestic-violence lawyers in Queensland, the situation is all too familiar: a victim of domestic violence contacts us and asks whether they can withdraw a statement that they gave to the police following a domestic violence incident and force the police to take no further action against the perpetrator especially if the perpetrator has been refused bail and is in jail waiting for the charges to be finalised.

For us, this is particularly heartbreaking for two reasons: firstly, it is worrying for us to see any victim of domestic violence worried more about their attacker than their own safety. Secondly, our advice must always be that, while the victim can withdraw their statement, or refuse to provide further statements to police, this is unlikely to achieve their desired aims. The police can still take action against the perpetrator, either to pursue an application for a Domestic Violence Protection Order, or a charge of contravening an existing Domestic Violence Protection Order. This article explores the reasons why this is so and the powers that the police and the courts have to proceed in these matters in spite of the victim’s unwillingness to co-operate further with police and their desire to withdraw their application for a DVO.

*A note about terminology. For the purposes of simplicity, this article discusses domestic violence in the context of a heterosexual, cis-gendered, couple in a marital relationship where the wife is the victim and the husband the abuser. This reflects the current state of the research into domestic violence. However, it is important to note that Queensland’s domestic violence legislation is not gendered, nor is its protections limited to spousal or romantic relationships.

Police Applications for Domestic Violence Protection Orders and Applications to Vary DVO's

If police attend a domestic disturbance, they are empowered to apply to the court for a Domestic Violence Protection Order. Alternatively, the police may issue a Police Protection Notice, which operates in the same manner as a Temporary Protection Order. Once a Police Protection Order is issued, it automatically becomes an application for a Domestic Violence Protection Order before the nearest Magistrates Court.

The domestic violence legislation authorises the police to ask the court to make these Protection Orders despite the wishes of the person the Order purports to protect. Furthermore, the same Act explicitly states that the participation of the victim (referred to as an “aggrieved”) in proceedings is not necessary. This includes the aggrieved giving evidence. In other words, the police can ask the court to make a Domestic Violence Protection Order even if the aggrieved does not want the Order made or is unwilling to give evidence against her abuser (referred to as the “respondent”). There are good reasons why the legislation is structured this way.

Firstly, an aggrieved may be genuinely afraid of giving evidence against the respondent. In Australia, the murder rate of women by their partners or ex-partners is frighteningly high and physical violence in domestic relationships almost endemic. An aggrieved may be putting herself in genuine danger of retaliation from the respondent by giving evidence in court about the respondent’s abuse, as that respondent is also present in court when this evidence is given. In these cases, the courts and the police can intervene to protect the aggrieved while providing a “shield” for the respondent’s inevitable fury that he has been held to account for his own actions.

Secondly, many victims of domestic violence become so psychologically damaged by the abuse that they have suffered that they cannot bring themselves to leave their abuser. Many of them experience severe psychological distress even at the thought of being separated from their violent partner. Psychologists use phrases like “trauma bonding” to describe this state of mind. Again, the legislation allows the courts and police to offer protection to the aggrieved who is no longer able to act to protect herself from danger.

However, that is not the end of the matter. Notwithstanding the above provisions, the aggrieved is considered a party to the Domestic Violence Protection Order application and is permitted to appear at the hearing of the application and give evidence, should she so choose. If the aggrieved believes that she does not need the protection of the court to keep her safe from domestic violence and doesnt want the DVO to proceed she may elect to give evidence against the police’s application. This is a common occurrence in domestic violence hearings. It is then for the court to decide whether or not the Protection Order ought to be made regardless.

A word of caution: evidence in domestic violence proceedings is still sworn testimony and subject to the laws against perjury (which attract significant periods of imprisonment if found guilty).

Police-initiated applications to vary existing Domestic Violence Orders proceed in the same manner as the initial applications for Protection Orders. Again, the aggrieved is not required to participate; however, she may still elect to attend as a party to the application and give evidence as to why she believes that the court should not make the variations to the existing Protection Order sought by the police. Again, the court then decides the police’s application on the evidence.

Proceedings for Contravention of Domestic Violence Protection Orders

Contravening a Domestic Violence Protection Order is an offence. The maximum penalty for this offence is three years’ imprisonment for the first conviction and five years’ imprisonment for subsequent convictions (if they occur within five years of any previous conviction). Proceedings for contravention charges occur according to the usual procedure for criminal matters. It is also important to note that domestic violence incidents may also involve other criminal offences, such as assault, wilful damage, strangulation offence, stalking, etc.

Because abusers (“defendants” in criminal matters) rarely commit domestic violence in front of other witnesses, it is common for police to rely almost exclusively on the testimony of the victim to secure convictions. Initially, police may obtain the victim’s testimony via body-worn-camera footage captured during the initial investigation. Police may also get the victim to sign a “notebook statement”; ie, get the victim to sign a brief, written statement recorded in a police officer’s notebook. However, if the defendant elects to plead not guilty and go to trial, the victim will need to give oral testimony in court.

It is important to note that a victim of domestic violence becomes a police witness once the defendant is charged with criminal offences. If the defendant attempts to “persuade” the victim to withdraw her statement, he may be charged with an offence against the administration of justice (again, these offences attract significant periods of imprisonment if found guilty).

In the aftermath of a domestic violence incident, it is a frequent occurrence that the victim tries to withdraw her complaint and retract her statement. She may attend the police station, speak to the investigating police officer, and tell them that she no longer wishes to have the defendant charged. However, the police do not act as mere “agents” of the victim. Once the police decide to charge the defendant with a contravention offence, it is entirely a decision of the police whether they will proceed with the prosecution. While the reluctance of the victim to testify “against” the defendant may be a factor that the police take into account when deciding whether they are likely to secure a conviction, it is not fatal to their case. On the contrary, there are a number of things that the police may do at trial to still get the victim’s testimony into evidence, even if she is reluctant to do so.

Firstly, any version of events that the victims gives, and is recorded on body-worn-camera footage, is admissible as evidence at trial, even if the victim refuses to attend court to confirm that version of events. Secondly, the police may ask the court to issue a summons, which is an order of the court compelling the victim to attend court and give evidence. If the victim does not obey the summons, the court may issue a warrant for her arrest.

If the victim still refuses to co-operate with the prosecution once she is sworn in as at witness, the police prosecutor may make an application to the court for her to be declared an “adverse witness”. This allows the prosecutor to dispense with the usual rules of examination-in-chief and get the victim’s testimony regardless of her reluctance to participate.

At first blush, this treatment of a domestic violence victim by the court and the police may appear almost brutal. In reality it is. Again, the data from psychological research suggest that victims of domestic violence may be “retraumatised” by court proceedings and by being forced to relive the experience of abuse. Fortunately, in our experience, domestic violence matters usually resolve long before these steps need to be taken. Most of us who work in domestic violence matters are aware of the severe, negative impact proceedings may have on the victim and work hard to minimise any further suffering to the victim.

The court also has procedures to attempt to minimise this retraumatising of the victim. For example, the court may permit the victim to give her testimony from a separate room, away from the defendant, and broadcast her testimony via video-link into the courtroom.

There is also other evidence that police prosecutors may be able to rely on to secure a conviction. For example, photographs of injuries to the victim, photographs of damage to property, testimony of neighbours (who may have heard yelling, screaming, breaking), etc.

Conclusion

The legislature, the police, and the courts are taking an increasingly harsh stance against domestic violence. The domestic violence legislation gives both the police and the courts powers to intervene into people’s otherwise private lives to ensure the protection of victims of domestic violence. Consequently, it is increasingly difficult for victims of domestic violence to try to persuade the police and/or the courts to make complaints against their abuser just “go away” without further action by either witdawing there statement in regards to the DVO or asking the police to withdraw the application for a DVO.

Therefore, if you have been charged with contravening a Domestic Violence Protection Order, you can expect that the police and the courts will pursue the matter until it is decided either by your plead of guilty or at trial, if you decide to plead not guilty. Even if the other person involved in the alleged incident attempts to withdraw their statements or their complaint to the police about the domestic violence allegation  you can expect that the matter will still proceed regardless.

How do I get more information or engage you to act for me? 

If you want to engage us or just need further information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Call us on 1300 952 255 seven days a week, 7am to 7pm

3. Click here to select a time for us to have a free 15 minute telephone conference with you

4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.

Other articles that may be of interest

• Show Cause Bail in Queensland: Presumption of Innocence and the Complexities of Domestic Violence Order Breaches

• Breach Domestic Violence Order

• Your right to silence

• Negotiating with a Prosecutor in Queensland

• Court character references

• The difference between a conviction and non-conviction

• Declining a police interview

• Why You Should Never Represent Yourself in Court

• Mitigation: How the court sets a sentence in Queensland

• What is an arrest warrant?

• What do I do when I have missed my court date!

• Do you have to give the police access to your phone?

• Contravene direction or requirement

• Should I hire a Criminal Defence Lawyer?

• Police questioning and your right to silence in Queensland

In Queensland, the legislation legalising sex work is divided between the Criminal Code 1899 and the Prostitution Act 1999 (and their subordinate regulations). In practice, sex work is divided into work that occurs in licenced brothels and work done by independent workers. Both types of operation are heavily regulated, and the nature of the work sex workers are allowed to engage in is tightly controlled. Similarly restrictive rules apply to advertising of sex work.

The legislative regime creates a slough of offences that could apply to a wide range of people within the orbit of sex work. Potential criminal charges may be brought against either sex workers, or their clients, or to anyone running a prohibited brothel, or to anyone allowing a prohibited brothel to operate on their premises. This articles briefly describes the crimes that apply to each of these categories of people.

However, it is also important to note that Queensland is heading in the direction of fully decriminalising sex work. In March 2023, the Queensland Law Reform Commission published its two-volume report into Queensland’s sex-work legislation. That same report made 47 recommendations for change, effectively recommending the decriminalisation of sex work. Legislation giving effect to these recommendations are due to be introduced to the Queensland Parliament by the end of 2023.

*A note on terminology: many workers in the sex industry consider the words “prostitute” and “prostitution” derogatory, outdated, dehumanising, and, therefore, offensive. In this article, every effort has been made to use the terms “sex worker” and “sex work” unless in specific reference to terminology used in legislation. Regrettably, Queensland’s legislation still uses these outdated words to refer to sex workers and their work. Where use of these words is unavoidable, it is indicated that they are being used in their legal context.

The Legislative Regime

The Prostitution Act 1999 creates a licencing system for brothels. It also creates the Prostitution Licencing Authority, who oversees the granting of licences and revocation of licences in certain circumstances. Brothel licences are, in broad terms, similar to alcohol licences granted to entertainment venues. The operation of strip clubs is not governed by the Prostitution Act 1999, as these licences are a subset of liquor licences and are issued by the Office of Liquor and Gaming.

Sole-operator sex workers are not required to hold licences to conduct sex work. However, sole operators must not work in company with another (or other) sex workers. Two or more independent sex workers working together is defined as “unlawful prostitution” in s 229C of the Criminal Code 1899. Notwithstanding this restriction, sole-operator sex workers are permitted to engage either a security guard, or a crowd controller, or a driver but only if those roles are filled by someone who holds a current security licence.

Sole-operator sex workers are also permitted to engage someone that the sex worker can contact about their location and the work they are doing. The purpose of the sex worker contacting this person must be so that the worker can ensure their own safety. The restriction on engaging this person that the sex worker contacts for these purposes is that the person cannot be another sex worker.

Sex workers cannot work out of a massage parlour, nor can they advertise massages as part of their services.

Offences that Apply to Sex Workers and to Other People Generally

Most of the offences that apply to sex workers also apply to their clients or to other people connected to sex work generally. For example, some offences apply to the owners of licenced brothels. Other offences apply to people who own premises where illegal sex work may occur. Examples of these offences include:

• carrying on a business of providing “unlawful prostitution.” The term “carrying on a business” is defined as providing finance and either being part of the management or having control of the business.
• engaging in “unlawful prostitution” or obtaining “unlawful prostitution” through “a business”.
• anyone from being “found in or leaving after having been in a place” where two or more sex workers are working. The exception to this law is if the place is a licenced brothel. However, the licenced brothel exception does not apply if one or more of the sex workers is either a child or has an impairment of the mind and the person found or leaving the place knows that this is the case.
• having an “interest” in a place and allow that place to be used by two or more sex workers. Having an “interest” in a place includes owning it, renting it, leasing it, etc or controlling an “entity” (eg, a corporation) that has such an interest in the place. Again, the exception to this law is if the place is being used by a licenced brothel (unless the brothel contains one or more sex workers who is either a child or has an impairment of the mind).
• “publicly” soliciting for sex work. Public solicitation may occur either in public, or within the sight or hearing of anyone within a public place. There are two exceptions to this law. The first is if the solicitation occurs inside a licenced brothel and the solicitation cannot be seen publicly. The second exception applies to police officers conducting a “controlled activity” (ie, an “undercover” or “sting” operation).
• causing a “nuisance” to another person because of sex work.
• compelling someone to engage in sex work using threats, intimidation, harassment, deception, etc.
• violating the terms of a brothel licence (Part 6 of the Prostitution Act 1999 creates about a dozen separate offences relating to violating the terms of brothel licences).
• providing sexual intercourse or oral sex without a prophylactic (eg, condoms, dental dams, etc).

Furthermore, Division 4 of Part 6 of the Prostitution Act 1999 creates offences relating to advertising for sex work. The legislation dictates what is, and what is not, acceptable advertising for sex work. In short, advertising must be in the approved form and must only occur in approved locations. These advertising rules apply to both brothels and to sole-operator sex workers. Advertisements offering “social escort services” (ie, non-sexual companionship on a commercial basis) are also strictly regulated and must explicitly state that sexual services are not offered.

Offences that Apply to People Other than Sex Workers

Other than the examples listed above, there are some offences that are specifically directed at clients of sex workers, or other people connected with sex work. Examples of these offences include:

• Obtaining sex work from someone who is not an adult (ie, under 18 years old). The client does not need to “know” that the person is underage. If it is proven that it was “reasonable” for the client to know they were engaging a child, then the client will be convicted of this offence.
• Procuring a person to engage in sex work. This offence is specifically described as compelling the person to come to Queensland, or to leave Queensland, in order to engage in sex work. This is what distinguishes this offence from the other offence of using threats, etc, to compel a person to engage in sex work.
• Knowingly participating, directly or indirectly, in the provision of “prostitution” by another person. All the circumstances described above (ie, licenced brothels, security guards, crowd controllers, drivers, safety contact) which allow other people to be involved in a sex worker’s business are specifically listed as exceptions to this otherwise blanket prohibition.

Therefore, the legislative regime is not only directed at restricting the activities of sex workers, but it is also directed at anyone who wishes to get involved in illegal sex work, either as a client, or as a manager of illegal sex workers, or as someone who allows illegal sex work to operate out of premises that they control.

To provide an example of how thorough this regime is, suppose the police execute a search warrant on an apartment where they suspect two or more sex workers are operating. The police could potentially charge the sex workers themselves, any clients found in the apartment, any clients leaving the apartment, the person who is renting the apartment (if someone other than the sex workers are on the lease), and the person who owns the apartment (if someone other than the sex workers own the property). Of course, whether criminal charges may extend that far depends on the circumstances of each case (and the evidence police find). For example, in order to charge the renter or owner of the apartment, the police will need evidence that the renter and / or owner had “knowledge” that illegal sex work was occurring at that place.

Maximum Penalties

Many of the offences listed above have maximum penalties which increase depending on how often the offence has been committed. Many of them follow a pattern of 3 years’ imprisonment for a first offence, 5 years’ imprisonment for a second offence, and 7 years' imprisonment for a third or every subsequent offence. The most severe penalties are reserved for offences that occur in circumstances where the sex worker is a child or has “an impairment of the mind”. In these circumstances, the maximum penalty increases to 14 years’ imprisonment.

Many of these offences are also subject to the serious and organised crime penalties described in Part 9D of the Penalties and Sentences Act 1992. In short, a person charged with an offence who is also a member of a criminal organisation will face the mandatory imprisonment sentencing structure provided for under that Act.

Many of the “lesser” offences (eg, causing a nuisance, or violating the restrictions on advertising, etc) attract fines as their maximum penalty. Nevertheless, the maximum value of the fines increase depending on how often the offence has been committed for many of these offences.

Possible Defences

As with almost all offences in Queensland, it is possible to raise defences to charges against the sex work legislation. The nature of these defences will vary, depending on the charge.

For example, the offences that require the person charged to have “knowledge” that they were committing the offence may be defended if the person can prove that they had no such knowledge. Even then, the defence will vary, depending on the specific charge. Some offences that require “knowledge” of an illegal act require proof of actual knowledge. Other offences only require that the person “ought reasonably to have known” about a certain state of affairs. In that case, it is only necessary to prove what a “reasonable person” would be expected to know if they were in the position of the person charged.

Conclusion

The offences that apply to sex work are extensive and far-reaching. They apply not only to sex workers themselves, but (potentially) to anyone associated with sex work in Queensland. While this legislative regime is due to undergo significant overhaul in the years ahead, it is important to understand the parameters of sex work as it currently exists.

Because of the enormous complexity of this legislation, and the serious penalties that attach to the offences that it creates, it is also important to get expert legal advice.

Introduction

Queensland law creates numerous charges that are similar to, or related to, stealing. Fraud, forgery, computer hacking, and receiving tainted property are all examples of offences that are similar to stealing but do not require your actions to fall within the very strict definition of stealing. Another example of these kinds of offences is unlawful use or possession of a motor vehicle, aircraft, or vessel. This offence is created by section 408A of the Criminal Code 1899 (Qld). This section states:

                A person who –

• (a) unlawfully uses any motor vehicle, aircraft or vessel without the consent of the person in lawful possession thereof; or
• (b) has in the person’s possession any motor vehicle, aircraft or vessel without the consent of the person in lawful possession thereof with intent to deprive the owner or person in lawful possession thereof of the use and possession thereof either temporarily or permanently;

is guilty of a crime and liable to imprisonment for 7 years.

This article provides an overview of this offence and gives some examples of the various circumstances which may cause you to be charged with this offence. For simplicity’s sake, this article assumes that the thing unlawfully used or possessed is a car; however, keep in mind that everything said applies equally to any other type of motor vehicle, aircraft or vessels (ie, boats, etc).

Consent, Use, and Possession

The first thing to notice about this offence is that both paragraphs refer to you using and/or possessing a car without “consent”. It is important to understand that this is a question of fact only. It is irrelevant whether you knew that the owner and/or “person in lawful possession” did not give you their consent. On the other hand, if you genuinely (but mistakenly) thought that you did have their consent, then you may be able to raise the defence of mistake of fact. However, you must hold that belief honestly and reasonably.

The “use” to which the first paragraph refers is much broader than driving or operating the car. For this reason, you can be guilty of this offence even if you are merely a passenger and even if someone else took the car. In these circumstances, the elements of the offence are made out: you “used” the car (by riding in it as a passenger) and did so without the consent of the “person in lawful possession”. Again, it is irrelevant whether you knew that the person in lawful possession did not give their consent.

Another example: suppose you borrow someone’s car for a specific purpose, such as listening to the radio or charging your phone with the USB port. Instead, you drive the car. In that case, your “use” of the car will have been without the consent of the person in lawful possession, and you may be guilty of this offence.

The word “possession” has a precise, technical meaning defined by section 1 of the Criminal Code 1899 (Qld). Specifically, this definition includes “having under control in any place whatever”. Thus you do not need to be actually be located inside the car to be guilty of this offence. You need only to have the car under your control. This may include circumstances where you have left the car in another location, such as storage shed, etc.

Furthermore, you may be guilty of this offence even if, at one stage, you were lawfully using or possessing the car. For example, if you rent a car but do not return it by the expiration of the rental period, your continued possession of the car becomes unlawful. Alternatively, suppose you are provided with a company car that requires you to return the car to your employer’s business premises at the end of your shift. You may be charged with unlawful use or possession of the company car if you drive it home instead.

Who is the “Person in Lawful Possession”?

Both paragraphs of section 408A refer to the “person in lawful possession”. The second paragraph also refers to the “true owner”, suggesting that these phrases are not referring to the same thing. Indeed, they are not. As already discussed, “possession” connotes having under control. Thus the person in lawful possession is the person who has a lawful right to immediate, physical possession of the car. This is not necessarily the same as the owner. For example, the lessee of a rental agreement is the person in lawful possession, even though the car remains the property of the rental company. Alternatively, the adult or adolescent child whose parent bought them a car is the person in lawful possession, even though the parent may be the registered owner of the car.

Aggravating Circumstances

In addition to the above, section 408A spells out certain circumstances which, if they apply to you, means that you will be liable to a harsher penalty. Specifically, if you use a car (or even intend to) to commit another, serious, criminal offence, the maximum penalty increases from 7 years’ imprisonment to 10 years’ imprisonment.

Similarly, if you unlawfully use or possess a car, then destroy, damage, remove, or otherwise interfere with any part of the car’s mechanics or equipment (or even intend to), then the maximum penalty increases to 12 years’ imprisonment.

Which Court will Deal with the Charge?

Generally, this offence is dealt with in the Magistrates Court of Queensland. In these cases, the Magistrates Court cannot sentence you to a penalty more than 3 years’ imprisonment. If the Magistrates Court forms the view that you ought to serve more than 3 years’ imprisonment, then it must send your matter to the District Court.

Furthermore, if the value of the car in question is worth more than $30,000 and you plead not guilty, then the charge is determined by a trial in front of a jury in the District Court. Similarly, if you are charged with the aggravating circumstance of destroying, etc the mechanism or equipment of the car, and the damage alleged is more than $30,000 and you plead not guilty, then you will be likewise tried in front of a jury in the District Court.

Conclusion

As you can see, the charge of use or possession of a motor vehicle, aircraft, or vessel is much broader than a charge of stealing. Consequently, the circumstances in which you may find yourself guilty of this offence are likewise broad. Because of this complexity, it is important to get expert legal advice, should you find yourself charged with this offence.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further obligation free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Call us on 1300 952 255 seven days a week, 7am to 7pm
3. Book a time for us to call you
4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Imprisonment is the harshest sentence available to Queensland courts to punish offenders and to deter others from committing similar offences. Some crimes are so serious that the court will impose imprisonment even for a first offence and regardless of the offender’s otherwise good character. In other cases, the court will only use imprisonment as a last resort, and usually because other types of punishment have not been sufficient to deter the offender from re-offending. Somewhere in the middle are cases that would otherwise require the offender to be imprisoned but, because of the overall circumstances in which the offence was committed, the court thinks that it would be unjust to send them into custody.

Because of this wide variety of cases, the courts have some latitude in deciding how sentences of imprisonment may be structured. In short, the courts have 3 main ways to impose imprisonment: (1) wholly suspended sentences; (2) immediate release onto parole; and (3) actual imprisonment with a requirement to serve time.

The purpose of this article is to explain briefly each of these 3 types of sentences to help you understand the options the court has should you find yourself facing a potential term of imprisonment.

Wholly Suspended Sentences

Sentences that are wholly suspended could be described as nominal sentences of imprisonment, owing to the fact that they do not require you to spend any actual time in custody. Instead, the force of the punishment consists of a threat of being imprisoned at a future time should you commit any further offences.

The court determines how long you are subject to this threat of future imprisonment. It may be for as long as the suspended sentence itself, or for a longer period (up to a maximum of 5 years). Because of this feature, suspended sentences have 2 timeframes: the period of the nominal imprisonment (the “sentence” itself) and the “operational period” of the sentence (how long the sentence hangs over you as a threat of future punishment). Usually, the operational period is proportionate to the length of the sentence.

It is best to understand suspended sentences by way of an example. Suppose you are convicted of a serious offence. The court decides that the appropriate punishment is to imprison you for 12 months. However, the court also decides that it should wholly suspend the imprisonment. It then decides that the operational period of the suspension is 2 years. What does this mean?

In short, it means that you do not serve any actual time in custody. It also means that you are subject to the threat of 12 months’ imprisonment for 2 years, starting from the date of sentence. It also means that, if (during those 2 years) you are convicted of any offence that attracts imprisonment as a possible punishment, the court ought to make you serve the 12 months’ imprisonment in addition to any other punishments you may face for the new offending.

The court acts on the presumption that it should activate the suspended sentence unless it is unjust to do so. In other words, should you commit another offence during the operational period of a suspended sentence, you face an uphill battle convincing the court not to send you to prison.

Imprisonment with Immediate Release onto Parole

Like wholly suspended sentences, imprisonment with immediate release onto parole does not require you to spend any actual time in custody. Similarly, immediate release onto parole comes with the threat of future imprisonment should you be convicted of any further offence while subject to parole.

However, unlike wholly suspended sentences, you spend the period of imprisonment under a form of supervision in the community. This supervision comes in the form of reporting to your nearest Probation and Parole office at a frequency decided by your parole officer. Your parole officer also has the authority to make you undergo regular alcohol and / or drug testing (if appropriate), alcohol and drug intervention courses, counselling, or other meetings. The purpose of these conditions to help you address any underlying issues which may have caused you to offend in the first place. There is a risk that you may continue to commit offences if these issues are not resolved.

Other, standard conditions of parole include:

• Not committing any other offence during the period that you are on parole;
• Updating Probation and Parole of any change of address, or change of employment within 48 hours of the change;
• Receiving home visits from Probation and Parole, as directed;
• Not leaving the State of Queensland without the prior permission of Probation and Parole; and
• Complying with any other lawful direction given to you by Probation and Parole.

Should you breach any of these conditions, Probation and Parole may take action to prevent you from committing any further breaches. Such actions may include adding further conditions to your parole, or issuing a verbal or written warning. However, if the breach is serious enough, Probation and Parole may suspend your parole and issue a warrant for your arrest. In this case, you will be put in custody for up to 28 days. In an extreme case, Probation and Parole may refer you to the Parole Board, who has the power to cancel your parole completely.

Should you be convicted of any further offences, and sentenced to another period of imprisonment (however served), your existing parole is automatically cancelled.

Serving Actual Time

A sentence of imprisonment requiring you to serve a period of time in actual custody is the most serious form of imprisonment in Queensland. The very day that you are sentenced to imprisonment involving actual time, you are taken immediately from the courtroom and into the custody of Correctional Services. You remain in custody until the end of the period of imprisonment set by the court.

You generally do not serve the entire period of imprisonment. Similar to suspended sentences, there are 2 timeframes involved in sentences of imprisonment: the total period for which imprisonment is ordered (often referred to as the “head” sentence) and the amount of time you are required to serve in actual custody.

As a general rule, you only serve approximately one-third of the entire sentence if you plead guilty. If you are found guilty at the end of a trial, you can expect to serve up to one-half of the head sentence. While these are general rules, it is ultimately up to the court to decide how much of the head sentence you must serve in actual custody. Any exceptional features of your case may convince the court to order that you serve less time in actual custody if those features are in your favour. Of course, you may be required to serve more time in custody if those exceptional features are not in your favour.

However, there are some legislated exceptions. For example, if you are convicted of a “serious violent offence”, you must remain in prison for either 80% of the head sentence or 15 years, whichever is the lesser period of time. There are similar rules for those sentenced to “life” imprisonment, those convicted of drug trafficking and who are members of criminal organisations, etc.

Once you have served the required amount of time in prison, the remainder of the sentence may be suspended. If this occurs, the remaining time under the head sentence hangs over you in precisely the same way as a wholly suspended sentence. It is more likely, however, that you will be released onto parole.

How you are released onto parole depends on the length of the head sentence. If you are sentenced to imprisonment for 3 years or less, the court determines the date you will be released onto parole. This means that, when that date arrives, you are automatically released from prison. However, if you receive a sentence of more than 3 years, then the court is permitted to determine only the date you are eligible to apply for parole. This means that this is the earliest date that you may apply to the Parole Board to determine whether you are suitable to be released onto parole. It may take several weeks, or even several months, for the Parole Board to make a decision about your application. You remain in custody until this decision is made. You will also remain in prison if the Parole Board decides to reject your application for parole.

Your parole date or parole eligibility date is automatically cancelled if you are convicted of a another offence and sentenced to a further period of imprisonment.

Once you are released onto parole, you are subject to the usual parole conditions described above, including conditions that you undertake drug and alcohol testing, attend counselling, programmes, or meetings, etc.

You remain on parole until the end of the head sentence.

Recording of Conviction(s)

If you are sentenced to any form of imprisonment (however you are ordered to serve it), the court must formally record conviction(s) for the offence(s). The court has no discretion not to record convictions once it sentences you to prison (even if it ultimately decides that you should not serve any actual time).

This means that these conviction(s) will appear on any police / criminal background checks.

Conclusion

Sentences of imprisonment are not straight-forward punishments. The courts take these types of punishments seriously and do not hand them out lightly. On the other hand, the courts are not hesitant to use their power to imprison once if they consider doing so warranted in the circumstances. To balance these competing considerations, the law has developed a certain level of flexibility (and complexity) within sentences of imprisonment, such that, even though you are sentenced to the harshest punishment under Queensland law, you may not necessarily spend any time at all behind bars.

Because of this, it is crucial that you get expert legal advice if you think that you might be at risk of being sentenced to prison.

If you commit a serious offence (or a series of related offences) in Queensland, your lawyer and / or the court may discuss the possibility of you serving probation.

The purpose of this guide is to provide you with a brief overview of probation orders, how they work, and their general purpose.

What is a Probation Order?

Probation and community-service orders are considered “intermediate” orders. As such, they are more serious sentences than fines or good-behaviour recognisances, but not as severe as imprisonment or intensive correction orders.

When you are released on a probation order, you are put under the supervision of a Corrective Services Officer for the duration of the order. It is for the court to decide how long the order will last. However, the Queensland’s sentencing legislation dictates that the court can only make a probation order of between 6 months and 3 years.

The court can only impose probation with your consent.

The purpose of probation is to give you assistance addressing any underlying issues that may be causing you to commit offences; for example, addiction, past trauma, mental health issues, financial distress, etc. Your Corrective Services Officer can help connect you to services that may be able to help you address these issues. Attendance at these services can be made conditions of your probation, so that you risk being further charged with breaching your probation if you stop engaging.

Will a Conviction be Recorded?

Queensland’s sentencing legislation does not require the court to record a conviction when imposing probation. In other words, it is entirely a matter for the court to decide whether to record a conviction.

The usual factors that the court must consider when deciding whether to record a conviction apply.

What are the General Requirements of a Probation Order?

The court is obliged to release you on probation subject to the following mandatory conditions:

• you must not commit another offence during the period of the order;
• you must report to the Probation and Parole office to which the court directs you (usually the office closest to where you live) within the timeframe decided by the court (usually within 24 to 48 hours after the order is made);
• you must report to, and receive visits from, your probation officer, as directed by that officer;
• you must take part in counselling or attend other programmes as directed by either the court or your probation officer;
• you must notify your probation officer of any changes to your residential address or changes to your employment within 2 business days;
• you must not leave Queensland without the permission of your probation officer; and
• you must comply with every reasonable direction of your probation officer.

Failure to comply with any of these conditions could result in you being charged with breaching your probation. The possible consequences of breaching probation are discussed below.

What Other Conditions May be Imposed?

In addition to the above, mandatory conditions, the court may also impose other, more specific conditions that are designed to help you avoid committing further offences or avoid antisocial behaviour. These conditions may include that you submit to medical, psychiatric, or psychological treatment. They may also include requirements that you are routinely tested for alcohol or drugs and that these tests must be negative. Whether the court considers it necessary to impose these extra conditions will depend on the circumstances of your particular case.

Failing to comply with these additional conditions of your probation may also result in you being charged with breaching your probation.

What Happens if You Breach the Probation Order?

If you are convicted of breaching probation, a number of consequences may follow. Firstly, the court may impose a fine of up to $1,334.00 and / or record a conviction for the breach. Secondly, the court may revoke the probation order. Thirdly, should the court revoke your probation, it must then re-sentence you for the original offence for which you were given probation in the first place. This means that you then risk receiving a harsher penalty and / or having a conviction recorded for that original offence.

Prosecutions for breaching probation are handled by Queensland Corrective Services, and not by the police. However, if the breach consists of committing another offence, you may find yourself being prosecuted by both the police (for the new offence) and Corrective Services (for the breach of probation).

 Lern more with our article on what happens if you breach a probation order.

Conclusion

Probation orders are designed as a form of punishment while providing you with other types of support which may help with your rehabilitation. In other words, probation is designed to help you receive treatment for any underlying conditions which may be contributing to your offending while imposing a milder form of punishment than imprisonment.

If you have been charged with a serious offence and think that probation would benefit you, it is important to get expert legal advice. 

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