Criminal Law Services Ballarat

Domestic violence or family violence is a particular category of criminal offending and often involves allegations of threats and assault against a current or former partner.

Victoria takes cases involving domestic, and family violence very seriously, which is why engaging the legal advice for a lawyer at Daavid Tamanika Solicitors is crucial. Family violence offending attracts significant sentences, including lengthy terms of imprisonment.

Family violence cases are also given priority by the Courts, which means that cases involving allegations of domestic and family violence move quickly through the Court system. Further to that, when you are charged with such an offence, the Police almost always make an application for an intervention order against you. Intervention orders prohibit you from doing certain things, including committing family violence; contacting the complainant; or going to a specific address. Intervention orders can be complex and confusing. Breaching an intervention order is a criminal offence.

It is, therefore, essential to engage the services of a family violence lawyer as soon as you can after having been accused of or charged with a family violence offence so that we can assist you with both the criminal charges and the intervention order.

Because of the nature of the relationship between the alleged perpetrator and complainant and how the Court deals with family violence, success depends on making strategic decisions as soon as an allegation is made.

At David Tamanika Solicitors, we are well-equipped to handle allegations of family violence. We are here to give you an understanding and a voice in a situation.

We have a great deal of experience in cases involving violent offences, including domestic violence, enabling our family violence lawyers to provide you with decisive advice and a comprehensive understanding of whether or not you have a viable defence, the strength of that defence, the costs of running your case, the legal implications of the decisions you make and the potential penalties you face in the event you are found or plead guilty.

If you’ve been charged with a case involving violence committed against a family member or partner and need a domestic violence lawyer, call David Tamanika Solicitors on 03 5331 7944.

What is Domestic Violence?

Domestic and family violence is classified as a harmful behaviour directed towards a partner or family member used to injure, threaten, or coerce that person and can include any behaviour that makes that person fear for their physical safety and/or the wellbeing of their property or the physical safety and/or the wellbeing of another person.

The definition of family violence includes physical assault, such as hitting or attacking another person with a weapon; molestation; sexual abuse; emotional abuse; psychological abuse; economic abuse; coercion; controlling or dominating behaviour causing a person to fear for their wellbeing or the wellbeing of another person; and/or damaging property owned by another or even jointly owned by you and another person.

It is also essential to be aware that family violence includes conduct that causes a child to hear, witness, or otherwise be exposed to the effects of one of the types of family violence. As a result, when it is alleged that a child has witnessed family violence, they will be included in an intervention order, even if the alleged offending behaviour was not directed at them. The primary piece of legislation setting out the circumstances when an intervention order may be applied for and granted, as well as outlining certain types of family violence offences, such as breaching an intervention order, is the Family Violence Protection Act 2008 (VIC).

A comprehensive range of offences can be considered family violence, depending on the relationship between the accused and the complainant. For example, if you are alleged to have assaulted your ex-partner, this will be considered family violence offending.

When to contact David Tamanika Solicitors?

As family violence and domestic violence cases are taken so seriously, it is critically important to contact a family violence lawyer immediately if you have been questioned or charged concerning family violence.

When you are accused of family violence, you will almost always face the prospect of being charged with a criminal offence and an application for an intervention order. Accordingly, your family violence lawyer must have experience and expertise in dealing with both issues, as how you deal with one matter will often impact the other.

Our team of lawyers is committed to understanding the particular details of your case to ensure you know your options, whether or not you have a defence, how strong that reason is and what the best possible outcome in your case is likely to be. We are here to guide you throughout your matter and are well-equipped to advise you about the likelihood of achieving a successful outcome if you contest your case. Our domestic violence lawyers will also advise on whether it is possible to negotiate a resolution to a less serious charge and the steps to take to increase the likelihood of receiving a lighter penalty in the event you decide to plead guilty.

Am I Likely to Go to Jail?

The courts treat all violent crimes seriously and can carry significant sentences if you are found guilty. Cases involving violence against a family member or partner are viewed particularly dimly by the courts such that harsh penalties are imposed regularly, even for first-time offenders. The likelihood of jail will depend on the individual circumstances of your case but make no mistake, it is often a genuine possibility when you are accused of family or domestic violence such that it is critical to engage a domestic violence lawyer to help you prepare your case.

Pleading guilty or contesting the matter

Whether the conditions of the intervention order you are facing can be negotiated to allow you to return to the family home and/or see your children.

Our lawyers at David Tamanika Solicitors have extensive experience representing clients for all drug matters. We have represented a broad range of clients spanning possession for personal use to the trafficking and manufacture of drugs, including low-level transactions and the importation and trafficking of large commercial quantities.

Do you need a drug or drug trafficking lawyer in Ballarat?

It is an offence to traffic a drug of dependence. The dealing of drugs includes:

• Manufacturing a drug for sale
• Selling or offering to sell drugs
• Buying drugs for another party
• Exchanging Drugs

Use And Possession

The most common drug offences are possession and use of drugs of dependence. Use includes injecting, smoking, inhaling and swallowing. The Police can also charge an accused if they admit to having used a drug dependence. Possession means physically having the drug on you in your place of residence or your motor vehicle.

People who are caught growing cannabis will be charged with cultivation.

Trafficking

The cases become more serious when the accused is caught with a sufficient quantity of a drug of dependence to be deemed trafficking in that drug. Alternatively, the circumstance in which a person is caught in possession of drugs can lead the Police to conclude that the person is trafficking. Commonly these are that drugs are found in numerous deal bags, there are scales, amounts of cash and lists of monies owing by people. Texts requesting that the accused supply drugs are not helpful.

Trafficking does not only mean that an accused has sold a drug.

Purchasing From Friends

Accused persons are commonly charged with trafficking when they admit to purchasing drugs for themselves and other friends. It is cheaper if you pool your money, but the person who buys and provides drugs to their friends has been trafficked. So has the person caught by the Police who says this is not all for me; it is for my friends too.

Amounts

If you are caught with a large quantity of drugs on you, there is a presumption in the legislation that you possess for the purpose of trafficking.

The traffickable quantity varies depending on the type of drug you are caught with.

More information on how quantities are legally defined is available in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (VIC).

How serious is my case?

If you are charged with a drug-related matter, its seriousness will mainly depend on the quantity of drugs or plants seized and the length of the offending. Your defence will often depend on matters such as:

• Did you have physical control over the illicit substance?
• Did you know the substance found in your car, home, or on your property?
• Did your actions amount to trafficking as understood by the law?
• What if my case involves ‘legal’ drugs?

Under Australian law, using prescription and even over-the-counter drugs for illegal purposes, such as selling or using anti-depressants without a prescription, is a punishable offence. Crimes involving ‘controlled substances’ have similar and sometimes even the same punishments as crimes involving illicit drugs, including large fines and jail time and can lead to a permanent criminal record.

Am I likely to go to jail?

If your case progresses to Court, the Prosecution must prove beyond reasonable doubt that an offence occurred. Whether or not you are likely to go to jail depends on the seriousness of the offence you have been charged with.

What is a Fraud?

Fraud is generally described as deceptive conduct intended to result in some form of personal gain.

Fraud offences may include:

• Obtaining Property by Deception
• Obtaining a Financial Advantage by Deception
• False Accounting
• Making or Using False Documents
• False Statements by Company Directors
• Suppression of Documents
• Blackmail

Fraud charges can range from fraudulently obtaining an item of food from the supermarket to multi-million dollar frauds. The penalty may only sometimes be a client’s most significant concern for minor dishonesty offences. Often it is the severe consequences attached to having a criminal record for dishonesty.

Being Interviewed Regarding Fraud

Suppose you are involved in a fraud investigation and will be interviewed by the Victorian or Australian Federal Police. In that case, you must seek expert legal advice before this occurs. The same applies to any interviews conducted by an employer, forensic investigator or similar. Be very wary about participating in these interviews without speaking to someone first.

Avoiding a Prison Sentence for Fraud Cases

Serious examples of fraud regularly end in prison sentences. The seriousness of the offence depends on the following:

• The value or amount of the property or financial advantage involved;
• The duration of the offending,
• The level of complexity and sophistication the accused acted with,
• The level of trust placed in the accused; and
• The detriment caused to the victim.
• Common defences for fraud cases

To be found guilty of obtaining property or financial advantage by deception, the Prosecution must establish three elements:

1. The accused represented themselves in a way that they knew to be false (or they acted recklessly without full knowledge that they were being deceptive);
2. The victim believed the representations by the accused were true; and
3. The accused was dishonest.

Essentially, the accused must have been aware that they were deceiving the victim (or acting recklessly without full knowledge that they were truly being deceptive), and the victim must have been genuinely deceived by the accused. Further, ‘dishonest’ in this context refers to the accused acting without a belief in the property’s legal ownership rather than the word’s ordinary meaning. With that said, a moral belief in property alone is insufficient.

The most common defences for fraud cases involve the defence dismantling one, two or all of these elements to establish guilt. The team at David Tamanika Solicitors can assess and navigate through the best course of action to provide you with the best outcome.

If your blood alcohol reading is 0.15 grams of alcohol or over, the Police cannot issue you with a traffic infringement notice and will charge you and send you a summons to attend the Magistrates’ Court. In this case, your case will be listed in Court, or you will be issued a traffic infringement notice.

If you are issued with an infringement notice, you have 28 days to object before the infringement takes effect and:

• Your licence is cancelled;
• You are disqualified from driving for the mandatory minimum period; or
• You have to pay the fine.

If you object, the Police may charge you with an offence. For some blood alcohol readings, the mandatory minimum period of suspension may be higher if you object to an infringement notice and you are found guilty or plead guilty in Court.

If the Police charge you, they will typically issue a document known as a charge sheet and summons, which they must do within 12 months after the date they alleged you committed the offence. Ordinarily, you will receive this via mail to your address.

Drink driving Penalties

If you are caught drink driving, you will face harsh penalties.

If you are caught with a breath alcohol concentration (BAC) over the legal limit, you will:

• Face significant fines
• Lose your licence
• Need to complete the Behaviour Change Program
• Have to get an alcohol interlock device installed
• Have to drive with a zero BAC requirement for at least three years, and
• For the more severe drink driving offences, a term of imprisonment is.

Immediate Suspension

In some instances, the Police may issue you with a notice of immediate suspension. They can do so within 12 months of issuing you the certificate stating your reading or at any time after they file charges before they are determined in Court.

The Police can issue you a notice of immediate suspension if:

• Your blood alcohol reading is 0.10 grams of alcohol or more if you hold a full licence, or
• Your blood alcohol reading is 0.07 grams of alcohol or more if you are a probationary licence or learner’s permit holder.

You can appeal a notice of immediate suspension to the Magistrates’ Court. There must be at least 14 days notice given for these appeals, and a Magistrate can only cancel the suspension if they are satisfied that ‘exceptional circumstances’ exist.

If not, they must confirm the suspension. Please note ‘exceptional circumstances’ is a high threshold to reach and will usually require circumstances that are out of the ordinary.

Contact Us Today

Let the team at David Tamanika Solicitors help guide you through the legal process for drug driving offences. Give our office a call on 03 5331 7944.

Expert Traffic Lawyers in Ballarat

If facing a road traffic offence, you must engage expert legal advice at David Tamanika Solicitors at the earliest opportunity.

Traffic offences cover a broad range of charges. Common examples include careless driving and low-level drink-driving. Whilst serious examples are culpable driving causing death and dangerous driving causing death or serious injury. Exposing emergency workers to danger by driving is a relatively new traffic offence.

A traffic offence will often require a close technical analysis by your legal representatives and other experts engaged by our firm. Our team is best placed to advance all available defences on your behalf in this complex field of criminal law.

Dangerous Driving Causing Serious Injury

More serious traffic offences, such as dangerous driving causing serious injury, demand careful forensic scrutiny from the outset. Individuals facing offences such as this will face lengthy terms of imprisonment if convicted.

Drink and Drug Driving Offences

Numerous charges broadly fall under the bracket of drink and drug driving offences. These include:

• Driving whilst exceeding the prescribed concentration of alcohol
• Exceeding the prescribed concentration of alcohol within three hours of driving
• Driving under the influence of alcohol
• Driving whilst exceeding the prescribed concentration of alcohol
• Driving whilst impaired by drugs
• Refusing to undergo preliminary breath-test
• Refusing to undergo a drug impairment test

There are very slight technical variations to each charge. For example, driving whilst impaired by a drug is a more serious offence than exceeding a prescribed concentration of a drug.

Similarly, driving under the influence of alcohol is more serious than driving whilst exceeding the prescribed concentration of alcohol.

Appeals to the County Court from the Magistrates Court

At David Tamanika Solicitors, we are highly experienced in County Court Appeals.

The Criminal Procedure Act 2009 (VIC) creates the following rights of appeal from the Magistrates’ Court:

• Appeal by an accused against conviction and sentence;
• Appeal by an accused against sentence;
• Appeal by the Prosecution against sentence; and
• Appeal by the Prosecution against an offender’s failure to fulfil an undertaking.

Following a decision in the Magistrates’ Court, the Applicant has 28 days to lodge an appeal against conviction and sentence or against sentence alone with the registrar of the Magistrates’ Court. These time limits do not apply to an appeal by the DPP or CDPP (the Prosecution) regarding a failure to fulfil an undertaking. This type of appeal may be listed at any time.

Appealing outside of time

To lodge the notice outside the 28 days, you must seek leave from a County Court Judge. To successfully seek leave, you must satisfy the Judge that there were exceptional circumstances as to why the appeal was not lodged in the required time frame and that the delay in lodging the appeal would not prejudice the Prosecution’s case.

What is an Intervention Order?

An intervention order (also known as IVO) is an order made by a Magistrate at the Magistrates’ Court to protect a person who has experienced violent or threatening behaviour from another individual.

Intervention orders are brought to the Court by the affected person, also known as the Applicant, or by the Police on the Applicant’s behalf. Applicants may also apply for orders to be made on behalf of their children. The individual who the Order is being made against is called the Respondent.

Types of Intervention Orders

Family Violence Intervention Orders

A Family Violence Intervention Order (FVIO) is a legal order issued by the Court to protect family members from family violence within the home. Family violence includes physical, mental, sexual and emotional abuse, economic abuse, threats and other behaviour that causes a family member to fear for their safety and wellbeing. This type of intervention order is where the affected person must be a family member of the Respondent or currently or have previously been in a relationship with the Respondent.

Personal Safety Intervention Orders

A Personal Safety Intervention Order is a legal order issued by the Court that applies where the affected person is someone other than a family member. Neighbours, friends, colleagues and other community members often seek them. The Personal Safety Intervention Order aims to protect people from behaviours including stalking, assaults, harassment and threats.

Interim Orders

If the affected person feels immediately threatened, they can apply for an Interim Intervention Order. These orders are made when the Court deems the affected person is in danger of harm and needs immediate protection. They are temporary orders that remain in place until the matter can be dealt with at the Court.

Your Options In Case Of Intervention Orders

If a person applies for either type of Intervention Order against you, you have the following options. You can:

Consent to the making of an Intervention Order

By consenting to the making of an Intervention Order against you, you agree to be bound by the conditions of the Order for the duration specified by the Court. Importantly, you are not required to admit to the Applicant’s version of events. This is called consenting without admission. Allowing Respondents to consent without making admissions to the allegations against them sees many Applications resolve in this manner. If you consent to an intervention order, it will not appear on your criminal record. Various licensing bodies, such as the Victoria Police Licensing and Regulation Division (which handle Firearms and Security Licenses), are often notified of the making of an Order, even if it is without admission, and may take action against the Respondent.

Entering an Undertaking

An undertaking is a written promise to the Applicant and the Magistrate that you will follow particular conditions (often very similar to the conditions of an Intervention Order) instead of having an Order made. It is the Applicant’s choice as to whether to accept your undertaking. The Applicant also has the right to reapply for an Intervention Order if they feel it is necessary later.

An essential difference between an Intervention Order and an Undertaking is that if you breach an undertaking, you cannot be charged with a criminal offence.

Appeal / Contest the Application

If you do not agree with an Order being made or any of the conditions being sought, you may dispute it in Court. This is called contesting the Application and must be filed within 30 days of the Order’s issue date.

At a Contested Hearing, you will be given the opportunity to question the Applicant (called ‘cross-examining’), present your version of events to the Magistrate, and call witnesses to give evidence. Contested Hearings are complex matters, and you should seek legal advice about best presenting the case. There are also rules which prevent some Respondents from cross-examining the Applicant, particularly when the allegations relate to family violence.

Ignore the summons and not go to Court

If you choose not to attend Court, the Magistrate can still make an Order against you. You will not have a say in the conditions Ordered by the Magistrate but will have to obey the Order from the day you are served with a copy by the Police.

What Happens If You Breach The Intervention Order?

It is a criminal offence to disobey (called ‘breaching’) an Intervention Order. If you do something prohibited by the Order, the Police may charge you with breaching the Order. The maximum penalty for breaching an order is 240 penalty units and/or up to 2 years imprisonment. There are more severe consequences for further breaches.

If you are Ordered not to contact the Applicant, it is still an offence to speak to them or see them even if they say they permit you to do so. We commonly see clients charged with breaching Intervention Orders by responding to phone calls or text messages sent by the Applicant themselves.

Whilst this may appear unfair, the Respondent must always abide by the conditions of the Order made by the Court.

Appealing An Intervention Order Decision

If you are unhappy with a decision concerning an Intervention Order in the Magistrates’ Court, you have the right to appeal to the County Court. If you wish to do this, you must apply to the County Court within 28 days of the Magistrate’s decision.

Changing or Varying an Intervention Order

You can request to vary the conditions of an Intervention Order against you where there has been a change in circumstances since the IVO was made. The difference is significant enough to justify the change. The sorts of reasonable changes the Court may consider include an affected person attempting to resume contact with you or starting a job in a nearby excluded area. The Court will consider this change and its effect on the affected person to determine whether to give you permission to apply.

Call our Office for a Conference Today on 03 5331 7944

The team at David Tamanika Solicitors can help you navigate intervention orders and the complexities around them. Our team understands that each case is unique and works hard to ensure that its clients are represented in the best way possible.

In Victoria, the law strictly regulates the possession, use, purchase, manufacture and supply of firearms and associated components and prohibited weapons. It imposes harsh penalties on persons charged under relevant legislation.

Firearms

Many rules govern the possession and use of firearms in Victoria, which, if broken, can result in being charged.

It is an offence in Victoria for a non-prohibited person to possess, carry or use a firearm unless you have a licence under the Firearms Act 1996 and the firearms in your possession are legally registered.

Firearm offences include:

• Possessing a Firearm without a Proper License
• Possessing an Unregistered Firearm
• Possessing Cartridge Ammunition
• Carrying or Use a Firearm in a Prohibited Place
• Storing a Firearm or Ammunition in an Insecure Manner

Prohibited Weapons

Prohibited weapons are those weapons considered inappropriate for general possession listed in the Control of Weapons Act (1990). Special licenses may be obtained to possess these weapons. These include (but are not limited to):

• Taser guns;
• Martial arts weapons such as bo-chucks and nunchaku;
• Daggers and flick knives;
• Crossbows;
• Non-metal or ceramic knives;
• Throwing blades;
• Noxious discharge devices, such as capsicum spray;
• Extendable batons; and
• Body armour.

If found in possession of a prohibited weapon without a license, you may be charged with an offence under section 5 of the Control of Weapons Act (1990).

The maximum penalty for this offence is two years imprisonment or 240 penalty units.

What if I’ve been charged with a firearms or weapons offence?

Contact an experienced criminal lawyer at David Tamanika Solicitors immediately at 03 5331 7944. Firearms and weapons offences carry stiff penalties and can result in criminal conviction and imprisonment.