If you have been charged with a minor criminal offence in NSW, you generally have a good chance of avoiding a criminal conviction altogether if you decide to plead guilty, provided your criminal record is relatively clean. In these types of matters the Court would normally exercise its discretion by choosing to deal with the matter by way of a Section 10 dismissal or alternatively by imposing a Conditional Release Order (CRO) without a conviction or a fine.
For the purposes of this blog post, we will examine a scenario below.
Adam (pictured above) is a 19-year-old student studying economics at the University of NSW. He is unemployed and lives with his parents. Adam has no criminal history and a perfect driving record since he started driving 12 months ago. On 20 March 2022 he had an argument with one of the punters at his local pub, Paul. Adam spat at Paul in the heat of the moment, when their verbal argument escalated. Paul reported this incident to his local Police Station and Adam has been apprehended (see photo above) and charged with a common assault offence under section 61 of the Crimes Act 1900.
Ok, let's be real, that's not Adam in the photo and he was not apprehended as pictured above (that's actually his uncle, Hamish, just look at his face, he is loving all this attention!), but Adam was definitely charged, oh yes, the charges were real as far as they can be in this totally nonfictional and not made-up scenario!
Following the incident Adam felt ashamed of his actions and was extremely remorseful, he has apologised to Paul, but the matter is now with NSW Police, who stubbornly refuse to withdraw the charges, thus putting the tax dollars to good use and for a worthy and noble cause - getting justice for Paul and deterring the likes of Adam from spitting on other defenceless pub punters in the future.
Adam appears now before the Court and pleads guilty to the charge of common assault. He tenders three character references in support of his good character and a letter of apology to the Court.
How will the Court deal with a matter like this and what factors will the Magistrate take into account?
The Magistrate has a wide discretion in these types of matters and will consider a range of factors and circumstances to ensure that the decision is just and the punishment is proportional to the seriousness of the offence. In Adam’s case, the Magistrate will likely take into account the following:
The Nature and Seriousness of the Offence
The Magistrate will assess the gravity of Adam’s offence, which in this case is common assault for spitting at another person. While spitting at someone is undoubtedly disrespectful and offensive, it is relatively low on the scale of seriousness when compared to other forms of assault, as it does not involve any physical harm or injury. The fact that no physical harm was caused, and the incident occurred in the heat of the moment during a verbal argument, would weigh in favour of granting a non-conviction order.
The Defendant’s Character, Antecedents and Age
The Magistrate will also consider the personal background and circumstances of the offender. In Adam's case, he is a 19-year-old university student studying economics at the University of NSW. He is unemployed, financially dependent on his parents, and has no prior criminal history. Moreover, he has maintained a perfect driving record. These factors may be seen as indicative of good character and lack of criminal propensity, which could support the argument for leniency. Adam’s three character references would also be quite important in establishing his good character.
The Extent of the Defendant’s Remorse
A crucial factor that the Magistrate will consider is the extent and nature of the offender's remorse. In this case, Adam has expressed genuine remorse and apologized to the victim for his actions. He has also provided a letter of apology to the Court. He has taken responsibility for his actions. Demonstrating remorse in this case may further persuade the Magistrate to grant a non-conviction order.
The Degree of Provocation
The Magistrate will assess the degree of provocation that may have contributed to the commission of the offence. In Adam's case, the incident occurred during a heated verbal argument with the victim, which escalated to the point of Adam spitting at him. While this does not excuse his behavior, the fact that the incident occurred in a highly charged situation may be seen as a mitigating factor that could work in favour of granting a non-conviction order.
The Need for Deterrence
Another important consideration for the Magistrate is the need to deter others from committing similar offences and the need to deter the specific offender from reoffending. In Adam's case, the fact that he has no prior criminal history, is pursuing higher education may be seen as evidence that he poses a low risk of reoffending. Consequently, the need for specific deterrence may be less pronounced in this case. Granting a non-conviction order in a case of low-level assault with no physical harm may not significantly undermine the objective of general deterrence.
The Impact of a Conviction
Finally, the Magistrate will consider the potential impact of a conviction on Adam’s future. A criminal conviction could severely limit his employment opportunities, harm his future professional reputation, and affect his ability to travel internationally. Given his otherwise clean record and the isolated nature of this incident, the Magistrate may determine that the impact of a conviction would be disproportionately severe in comparison to the offence.
Considering the above factors and circumstances, Adam has good prospects to obtain a non-conviction order and to have the matter dismissed entirely pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). This means that there will be no criminal record in relation to his offence and no fine.
It is recommended that Adam retains the services of a good criminal lawyer to prepare detailed persuasive submissions for his plea of leniency and present these submissions to the Court during his sentencing.
At Surge Legal we regularly assist our clients with a variety of criminal matters ranging from simple common assault to serious indictable offences and are well versed in preparing and presenting persuasive leniency submissions with the Court. Contact us now on 02 8722 5021 for a free initial consultation. Give your chances a boost and avoid a criminal conviction!