Criminal & Traffic Law

Public order offences are those activities or behaviours which are alleged to cause disruption or offence to the general public. These offences  require that the conduct is performed in a public place. Pubic order offences include:

• Disorderly Behaviour in Public (Disorderly Conduct)
• Indecent Acts in Public

1.Disorderly Behaviour in Public (Disorderly Conduct)

In WA, the law provides that a person who behaves in a disorderly manner in a public place or in sight or hearing of any person who is in a public place or in a police station or lock up is guilty of an offence. The use of insults, threats or offensive language and behaving in an insulting, threatening or offensive manner are deemed to be ‘disorderly behaviour’.

The maximum penalty for the charge is a fine of $6,000.

There are possible defences for this charge such as identification, insanity and duress. The experienced team at Efficient Law Group are equipped to advise you on your liability under this charge and avenues available to you to deal with this charge.

2. Indecent Acts in Public

If person does an indecent act in a public place or in sight of any person who is in a public place or in a police station or lock up is guilty of an offence.

This is an ‘either-way’ offence meaning that it can be dealt with in the Magistrates Court or in the District Court depending on the seriousness of offence. If the matter is dealt with in the Magistrates Court, the maximum penalty for the charge is 9 months imprisonment and a fine of $9,000. If it is dealt with in the District Court, the maximum penalty is 2 years imprisonment.

There are possible defences for this charge such as identification, the act was not in public, the act was in the best interest of the public, insanity and duress.

At Efficient Law Group we would help you navigate the charge to achieve the best possible outcome.

Under WA Law, a person who steals anything capable of being stolen is guilty of a crime.

‘Stealing’ means fraudulently taking something capable of being stolen or fraudulently converting something for his or her own use.

‘Capable of being stolen’ is defined to mean any property which belongs to a person and which is moveable. Property is capable of being stolen even if it has to be made moveable in order to be stolen.

A person who takes or converts property capable of being stolen is said to have done so fraudulently if:

1. They intend to permanently deprive the owner of the property or any part of the property;

2. They intend to permanently deprive any person who has special property of all or part of that special property;

3. They intend to use the property as a pledge or security;

4. They intend to part with it on a condition as to its return which the person taking or converting may be unable to perform;

5. They intend to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or

6. In the case of money, they intend to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.

To prove this, the Police must show that the accused took something capable of being stolen; that the goods belong to another person; that the accused took the thing fraudulently; and that the accused intended to steal the thing and permanently deprive the owner of it’s use.

Possible defences for this kind of charge may include duress, mistake of fact, honest claim of right the goods were abandoned, there was consent to take the property and there was no intention to permanently deprive the owner of use or convert the goods.

As an ‘either-way’ offence, this matter can be dealt with in the Magistrates Court or in the District Court depending on the seriousness of offence. If the matter is dealt with in the Magistrates Court, the maximum penalty for the charge is 2 years imprisonment and a fine of $24,000. If it is dealt with in the District Court, the maximum penalty is 7 years imprisonment however the exceptions apply depending on the offence.

a)   Burglary

According to WA Law, a person who enters or is in the place of another person, without that other person’s consent, with intent commit an offence in that place, is guilty of a crime.

Further, a person who commits an offence in the place of another person, when in that place without the other person’s consent, is guilty of a crime.

The penalty would be affected depending on whether the offence was committed in ‘Circumstances of Aggravation’. This means circumstances in which immediately before, during or after the offence, the offender:

a)  Is or pretends to be armed with a dangerous or offensive weapon;

b)  Is or pretends to be in possession of an explosive substance;

c)  Is in the company of another person or persons;

d)  Does bodily harm to any person;

e)  Threatens to kill or injure any person;

f)  Detains any person; and

g)  Knew or ought to know immediately before the offence that there other people in that place (other than any co-offenders).

To prove this, the Police must prove that: the accused entered or was in that place of another; the accused’s entry or presence in that place occurred without the consent of that other person; and the accused entered or was in that place with the intention to commit an offence. In cases where the Police is seeking a mandatory 12 month minimum imprisonment term, they must show that the person is a repeat offender.

Possible defences for this kind of charge may include duress, mistake of fact, honest claim of right the goods were abandoned, there was consent to take the property and there was no intention to permanently deprive the owner of use or convert the goods.

This is an ‘either-way’ offence and can be dealt with in the Magistrates Court or in the District Court depending on the seriousness of offence. The matter can only be dealt with in the Magistrates Court if the value of the property is less than $10,000. In that case, the maximum penalty for the charge is 2 years imprisonment and a fine of $24,000 however this can be affected depending on whether the offence occurred in a place used for human habitation or in circumstances of aggravation. If it is dealt with in the District Court, the maximum penalty can be between 14 to 20 years imprisonment however the exceptions apply depending on the offence.

b)   Robbery

If a person steals a thing and, immediately before or after at the time of the offence or immediately after doing so, uses or threatens to use violence to any person or property in order to obtain the thing so stolen, or prevent or overcome resistance to its being so stolen, is guilty of a crime.

Further, a person who commits an offence in the place of another person, when in that place without the other person’s consent, is guilty of a crime.

The penalty would be affected depending on whether the offence was committed in ‘Circumstances of Aggravation’. This means circumstances in which immediately before, during or after the offence, the offender:

h)  Is or pretends to be armed with a dangerous or offensive weapon;

i)  Is or pretends to be in possession of an explosive substance;

j)  Is in the company of another person or persons;

k)  Does bodily harm to any person;

l)  Threatens to kill or injure any person;

m)  Detains any person; and

n)  Knew or ought to know immediately before the offence that there other people in that place (other than any co-offenders).

To prove this, the Police must prove that: the accused entered or was in that place of another; the accused’s entry or presence in that place occurred without the consent of that other person; and the accused entered or was in that place with the intention to commit an offence. In cases where the Police is seeking a mandatory 12 month minimum imprisonment term, they must show that the person is a repeat offender.

Possible defences for this kind of charge may include duress, mistake of fact, honest claim of right the goods were abandoned, there was consent to take the property and there was no intention to permanently deprive the owner of use or convert the goods.

This is an ‘either-way’ offence and can be dealt with in the Magistrates Court or in the District Court depending on the seriousness of offence. The matter can only be dealt with in the Magistrates Court if the value of the property is less than $10,000. In that case, the maximum penalty for the charge is 2 years imprisonment and a fine of $24,000 however this can be affected depending on whether the offence occurred in a place used for human habitation or in circumstances of aggravation. If it is dealt with in the District Court, the maximum penalty can be between 14 to 20 years imprisonment however the exceptions apply depending on the offence.

The experienced team at Efficient Law Group are able to provide you with reliable advice and represent you in any charge brought under the Misuse of Drugs Act.

a)   Drug Possession – Simple Possession Charges

In Western Australia, it is an offence to possess or use a prohibited drug. A prohibited drug is defined as a drug of addiction, a specified drug, or any drug listed in Schedule I of the Misuse of Drugs Act.

To be in ‘possession’ of a thing, a person must have control or dominion over the thing and the order or disposition of the same.

To successfully prosecute this offence, the Police must prove that the drugs found in the person’s possession are prohibited, that the person was aware that the drugs were in their possession and that the person has some form of control or claim over the drugs.

If successfully prosecuted, the maximum penalty is a fine not exceeding $2,000 or a term of imprisonment next exceeding 2 years or both.

b)   Drug Possession – Possession with Intent Charges

A person commits a crime if they possess a drug with the intent to sell or supply to another, or the manufacture or prepare a drug and they sell or supply or offer to sell or supply the same to another.

According to the law, if a person is found with a specified amount of the prohibited drug in their possession, it is inferred that that person intended to sell or supply that drug. Once this inference is drawn, the onus is then placed on the accused to prove that they did not have the intention to sell or supply. The amounts which trigger the inference are specified in Schedule V of the Misuse of Drugs Act, for example, having 2gm of Cocaine or Heroin would trigger that inference.

The Police must prove that the person had possession of the drug, that the drug was prohibited and that the person had intent to sell or supply the drug or sold or supplied the drug or offered to sell or supply the drug.

This is an ‘either-way’ offence and can be dealt with in the Magistrates Court or by indictment in the District Court depending on the seriousness of offence. If the matter is heard in the Magistrates Court, the maximum penalty for the charge is a fine not exceeding $5,000, or 4 years imprisonment or both. If it is dealt with in the District Court, the maximum penalty can is a fine not exceeding $100,000, or up to 25 years imprisonment or both.

c)   Drug Trafficking

A person can be declared as a drug trafficker depending on either the number of times, they have been convicted of serious drug offences in the last 10 years or whether they have been charged with a serious drug offence where the quantity is above the quantity stipulated in the Misuse of Drugs Act.

It should be noted that the declaration of drug trafficking is not a crime however this is often a flow of crime. The consequences of the declaration may lead the confiscation of the property owned by the person at the time of the declaration or the property disposed of before or after the declaration. This can be done under s8 of the Criminal Property Confiscation Act 2000.

Depending on the consequences, the declaration can be appealed. Our team can assist you in navigating this and advise you regarding your rights.

a)   Child Related Sexual Offences

According to WA Law, Sexual Penetration means to penetrate the vagina, anus or urethra of any person with any part of the body of another person or with an object manipulated by another person. This includes in engaging in cunnilingus or fellatio.

Sexual Offences Against a Child Under 13

Under the Criminal Code, it is a crime to:

1. Sexually penetrate a child under 13, or procure, incite or encourage a child under 13 to engage in sexual behaviour;
2. Indecently deal with a child under 13, or procure, incite or encourage a child under 13 to do an indecent act; and
3. Indecently record a child under 13.

To successfully prosecute this offence, the Police must prove that the child was under the age of 13 at the time of the offence and the offender penetrated or indecently dealt with or encouraged or incited sexual behaviour or indecent acts or indecently recorded the child.

If successfully prosecuted, the maximum penalty for sexual penetration / sexual behaviour is 20 years whereas indecent dealings / recordings carry a maximum penalty of 10 years imprisonment.

Whilst the defence of identification is available under this charge, consent and ignorance of age of the victim are not a defence.

Sexual Offences Against a Child Over 13 and Under 16

Under the Criminal Code, it is a crime to:

1. Sexually penetrate a child over 13 and under 16, or procure, incite or encourage a child over 13 and under 16 to engage in sexual behaviour;
2. Indecently deal with a child over 13 and under 16, or procure, incite or encourage a child over 13 and under 16 to do an indecent act; and
3. Indecently record a child over 13 and under 16.

To successfully prosecute this offence, the Police must prove that the child was over 13 and under 16 at the time of the offence and the offender penetrated or indecently dealt with or encouraged or incited sexual behaviour or indecent acts or indecently recorded the child.

If successfully prosecuted, the maximum penalty for sexual penetration / sexual behaviour is 14 years (however this can be increased to 20, if the child was under the offender’s care or authority) whereas indecent dealings / recordings carry a maximum penalty of 7 years imprisonment (similarly, this can be up to 10 years if the child was under the offender’s care or supervision).

Unlike with offences involving a child under 13, it may be a defence if the offender reasonably thought the child was of or over the age of 16 and the offender is not more than 3 years older than the child’s actual age. Further, a defence is available if the offender can show that they were lawfully married to the child.

Sexual Offences by a Person in Authority Against a Child of or Over 16

Under the Criminal Code, it is a crime to:

1. Sexually penetrate a child of or over 16 years, or procure, incite or encourage a child of or over 16 years to engage in sexual behaviour when that child is under the offender’s care supervision, or authority;
2. Indecently deal with a child of or over 16 years, or procure, incite or encourage a child of or over 16 years to do an indecent act when that child is under the offender’s care supervision, or authority; and
3. Indecently record a child of or over 16 years when that child is under the offender’s care supervision, or authority.

To successfully prosecute this offence, the Police must prove that the child was of or over 16 at the time of the offence, the offender penetrated or indecently dealt with or encouraged or incited sexual behaviour or indecent acts or indecently recorded the child and that child is under the offender’s care supervision, or authority at the time the offence was committed.

If successfully prosecuted, the maximum penalty for sexual penetration / sexual behaviour is 10 years imprisonment whereas indecent dealings / recordings carry a maximum penalty of 5 years imprisonment.

b)   Sexual Penetration Without Consent (Rape)

A person who sexually penetrates another without the consent of that person is guilty of a crime.

This seriousness of the offence can be worsened depending on whether it was committed in circumstances of aggravation. Circumstances of aggravation may include cases where the offender was or pretended to be armed, where the offender had company, where they did bodily harm to the victim or any person, where the offender dos an act which is likely to seriously or substantially  likely to degrade or humiliate the victim or where the victim is of or over the age of 13 and under the age of 16 years.

To prove the offence, the Police must show that there was some form of sexual penetration of the victim, the penetration occurred without the victim’s consent and the offender intended to sexually penetrate the victim.

The offence carries a maximum penalty of 14 years imprisonment and this can be increased to 20 years if the act was done in circumstances of aggravation.

According to s280 of the Criminal Code, if a person unlawfully kills another person under such circumstance as not to constitute murder, the person is guilty of Manslaughter.

Amongst the various factors distinguishing this charge from the charge of Murder, there is no requirement to prove that the accused intended to harm anyone. Additionally, provocation is not a defence.

To be charged with this offence, the victim must be dead, and the offender unlawfully killed the person. A person is unlawfully killed if the act is not authorised, justified or excused by law.

If found guilty, the maximum penalty is 20 years imprisonment.

Possible defences for this kind of charge may include accident, insanity, duress, emergency, self-defence, identification or that the act of the offender did not cause the death of the victim.

Section 283 of the Criminal Code provides that any person who attempts to unlawfully kill another or with intent to unlawfully kill another does an act (or omits to do an act which it is their duty to do) and the doing or omitting to do that act is likely to endanger human life, that person is guilty of attempt to murder.

The Police must prove that the accused had an intent to kill at the time of the offence, that an act was done which show that they had put the intention to kill into execution and that there was some overt manifestation of the intention to kill.

If found guilty, the maximum penalty is life imprisonment.

Possible defences for this kind of charge may include accident, insanity, identification, there was no intention to kill, no act had been done to put the intention to kill into execution, the act done could not have killed the person and the accused knew this.

Under section 279 of the Criminal Code, if a person unlawfully kills another person and that person intended to cause the death of that person killed or another person; or that person intended to cause bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or the death is caused by means of an act done in the prosecution of an unlawful purpose, which act of such a nature as to belikely to end

The Police must prove that the victim is dead, the offender unlawfully killed the person and the offender either intended to kill or cause bodily harm to that person or another. Where there is no intent to kill of cause bodily harm, the Police must prove that the act was committed in the prosecution of an unlawful purpose and the act which cause the death was likely to endanger life.

If found guilty, the maximum penalty is life imprisonment unless the sentence would be unjust or the person is unlikely to be a threat to the community, which in that case the maximum penalty is 20 years imprisonment.

Possible defences for this kind of charge may include accident, insanity, duress, emergency, self-defence, identification or that the act of the offender did not cause the death of the victim.