Can I avoid a criminal conviction for assault?


This video is called can I avoid a criminal conviction for assault. It’s designed for people who want to plead guilty to assault, but want to avoid a criminal conviction, that is a criminal record. The only way that you can plead guilty to a criminal charge and avoid a criminal conviction is to get what’s called a section 10. Section 10 is where the magistrate says that you’re guilty, but does not record a criminal conviction against your name. Now the first thing you should do if you’re charged with assault is to determine whether the number and or seriousness of your charges can be reduced. For example if you’re charged with assault occasioning actual bodily harm or affray, which are relatively serious types of assault charges then you should see whether you can get them dropped down to just a common assault. You should also see whether you can get the police facts amended. What that means is when police charge you they will ultimately give you what’s called a fact sheet that outlines the allegations against you. They can contain some relatively nasty things, for example they may say that you hit someone three times or four times, when your instructions, that is your advice, is that you only hit them once, you may say that you punch them, when you’re adamant that you slapped them, or something like that. Your lawyer or yourself can ask for the police facts to be amended, that is watered down, so that the charge does not look as serious. That’s a very important step. So it’s reducing the number and or severity of the charges, and having the police fact sheet amended so that the facts aren’t so serious. That’s the first step. The second is you should consider drafting what’s called a letter of apology to the victim. Now that’s something that expresses remorse for what you’ve done. It’s addressed to the victim and it says that you are sorry obviously for what you’ve done, accepts responsibility for the offence, and it may offer to pay for their costs. For example if they incur any medical costs that are unreimbursed, or if you rip their shirt or something like that you can offer to pay for any loss. That’s a letter of apology. Now you can give that to the police officer in charge or to the lawyer, to your lawyer, and your lawyer can pass that on to the police officer in charge, the police officer in charge can pass that on to the victim or complainants. So that’s a letter of apology to victim. It’s quite important because it shows that you’re man enough or person enough to stand up for what you’ve done and really apologise to the person who was injured. The third thing you can consider doing is what’s called a letter to the court, also called a letter of apology to the court. Now again that is accepting responsibility for what you’ve done, and apologising for what you’ve done. You can also talk about any steps that you’ve undertaken since the commission of the offence. For example if you’ve undertaken any counseling or you’ve been counseled by those in your family, or any positive steps you’ve done to make up for this, and to ensure that it does not happen again. That’s a letter to the court and a presodant, so an example of a letter to the court is contained on our website. Again you can give that to your lawyer, and your lawyer can hand out to the magistrate, and the magistrate will read through that and should take that into account in determining what your penalty is. The fourth thing you can consider are called character references. Character references are letters done by those who are close to you, who have known you for a long period of time, and they can speak about how this is outside your normal character, about how they know you, how you’re normally a decent person or a person who is not prone to violence, and that again can be handed up to the magistrate and the magistrate can see that you can see that you’ve admitted this to those close to you and that you’re accepting responsibility for what you’ve done. They can be considered when the magistrate is determining what your penalty will be. Character references, again an example of a character reference is contained on our website. The fifth thing you may wish to consider which I’ve already touched upon is counselling. So if for example you may have an underlying anger management issue or an alcohol use issue then you should consider seeing a counselor, talking to them about this, and they can give you techniques to manage your anger or to manage drinking, and significantly at the end of the counseling session or sessions they can provide you with a letter saying that you’ve undertaken counseling and this can be handed up to the magistrate, and again the magistrate can take that into consideration. The magistrate may come to the view that you’ve done quite a bit to address the underlying issues and you’re unlikely to offend in the future, and that can increase your chances of getting a section 10. That is having the magistrate deal with you without conviction. Now finally and very importantly if there’s something called forum sentencing. Forum sentencing is an option that is available to the court. It involves the court identify cases on the court list that day, that may be eligible for forum sentencing. So for example you may see or your lawyer may see on the court table a list containing names of people who may be eligible for forum sentencing. It will normally be people who are charged with common assault, assault occasioning actual bodily harm, or other types of offences where there is a identifiable victim of a physical offence. So if you are eligible for forum sentence, that is if you’re listed there on the court list on the court table then what will occur is you can ask for the matter to be adjourned for a number of weeks two weeks, three weeks, whatever it might be, just to see whether a forum can be arranged, and a forum essentially means that you sit down there with the victim, with perhaps police officers, with a convenor so someone who oversees the forum, and you can express your feelings about what you’ve done. So you can apologise face-to-face, the victim can express to you how it’s affected them, police can also contribute by saying how these types of incidents affect the community and a foreign plan can be developed during the forum sentencing, that for example might say that you have to pay some compensation, that you may undertake counseling, or whatever it might be. If the forum is successful a report will be given to the magistrate and that may well increase your chances of being dealt with without a conviction. So forum sentencing is a very very positive thing. So these are some of the steps that you may wish to undertake in trying to persuade the magistrate or your lawyer trying to persuade the magistrate to deal with you under Section 10, keep you conviction free and so that in the future your job prospects, your prospects of going overseas or whatever it might be are not impeded.

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