District Court Conviction Appeal Upheld

JE was charged with ‘Intimidate police officer in execution of duty w/out ABH’. JE pleaded guilty to the offence and his matter proceeded to Hearing at the Local Court.

At the Local Court Hearing, the Prosecution called evidence from the officer-in-charge and from the complainant. There was no CCTV footage from the police station produced in the matter and the police omitted to obtain a witness statement from another police officer who was present during the alleged incident. JE gave evidence in his Defence. Notwithstanding the lack of independent evidence to support the complainant’s allegation, the Presiding Magistrate found JE guilty of the offence.
JE filed a Conviction Appeal to the District Court. At the Appeal Hearing, James Castillo pointed out the various parts of the evidence which cast doubt concerning the complainant’s evidence, as well as the lack of corroborating evidence which the Police consciously did not obtain.

The Appeal Judge reviewed the entirety of the evidence and ultimately, upheld the Appeal, dismissing the charge and finding the appellant not guilty of the offence.

Successful Severity Appeal, Non-Conviction for Drive Motor Vehicle with Illict Drug Present In Blood

BD pleaded guilty to the offences of ‘Drive motor vehicle with illicit drug present in blood’ and ‘Possess prohibited drug’ in the Local Court. In the Local Court, she was fined $500.00 and received the minimum license disqualification of 3 months with respect to the first charge. The sentencing Magistrate subsequently dismissed the second charge.

BD instructed Chris Cole to file a Severity Appeal to the District Court with respect to the conviction recorded and fine imposed concerning the first charge. Chris appeared at the Appeal Hearing. He tendered various materials including BD’s Affidavit, character testimonials, and sentencing statistics, etc. Despite the Appeal Judge not being receptive of the submissions initially, ultimately, the Appeal Judge upheld the Appeal and dismissed the offence pursuant to s10(1)(a) Crimes (Sentencing Procedure) Act.

This was a pleasing outcome for BD.

Found With Ketamine at a Dance Party Venue, Non-Conviction Imposed

SM was charged with ‘Possess prohibited drug’ as a result of being found with ketamine in his possession at a hotel hosting an electronic dance party.

SM retained Chris Cole and a plea of guilty was entered on his behalf. At Sentence, Chris tendered an Affidavit from SM and various character testimonials in support of his good character. The Presiding Magistrate ultimately determined it inexpedient to record a conviction and instead placed SM on a Conditional Release Order without conviction for 2 years. The only term of that Order is to be of good behaviour for its duration.

This is a pleasing result.

Behave in Offensive Manner in Public Place Offence Withdrawn After Successful Representations

FB was charged with ‘Behave in offensive manner in/near/within hearing from a public place/school’, contrary to section 4(1) Summary Offences Act 1988. The allegation against FB relates to the conduct when he recorded a video of two females at a train station. Independent witnesses saw this conduct and alleged that FB’s behaviour was offensive.

FB pleaded ‘not guilty’ to the offence and had the matter set down for Hearing.

Pending the Hearing date, James Castillo prepared Representations to withdraw the charge, noting the context of the incident and that nothing captured could constitute offensive in a legal context.  

Eventually, Police accepted the Representations to withdraw the charge.

Rare Non-Conviction for a Mid-Range PCA Offence

MW was charged with ‘Mid-range PCA’ after being breath tested by Police following making a left turn on a ‘No Left Turn’ road.

James Castillo represented for MW at his Sentence. James assisted MW in preparing his Affidavit and reviewing character references which were relied on at his Sentence. James made oral submissions explaining the circumstances of the offending as contained in MW’s Affidavit and laid out to the Court the potential implications on MW’s employment and pending visa application, should a conviction be recorded.

Ultimately, the Presiding Magistrate was convinced that it was appropriate to exercise the Court’s discretion and impose a Conditional Release Order without conviction, notwithstanding the serious nature of the offence.

This is an outstanding outcome for MW was this allowed him to continue residing in Australia with a clean record and continue with his employment with his driver’s license valid.  

Non-Conviction for Possession of MDMA, And Dismissal for Possession of Cannabis

CD was charged with two counts of ‘Possess prohibited drug’—one for possession of MDMA, and a separate charge for possession of cannabis. The circumstances of the charges related to CD being searched at a music festival after being approached by a drug detection dog.

CD pleaded guilty to each of the offences. Chris Cole represented CD at his Sentence. He relied on CD’s Affidavit and various character testimonials in support of CD’s good character.

CD was sentenced with a Conditional Release Order without conviction for 12 months with respect to possession of MDMA. The Presiding Magistrate exercised his discretion and dismissed the charge of possession of cannabis.

This is a pleasing result for CD noting his young age and that any conviction would have an impact to his future employment opportunities.

Stalk/Intimidate Charge Defended, Found Not Guilty

BO was charged with ‘Stalk/intimidate intending to cause fear of physical etc. harm’, contrary to section 13(1) Crimes (Domestic and Personal Violence) Act 2007 after his neighbour made a complaint of being threatened to be bashed with a hockey stick and allegedly BO swung a hockey stick towards him.

BO pleaded ‘not guilty’ and the matter proceeded to Hearing. James Castillo acted for BO at his Hearing. The Prosecution called evidence from the officer-in-charge, the complainant and BO’s partner. The Defence did not call evidence. Ultimately, the Presiding Magistrate was not satisfied beyond reasonable doubt of the allegation and found BO ‘not guilty’ of the offence.

No Prosecution Witness, Adjournment Opposed

AF was charged with ‘Larceny’, contrary to section 117 Crimes Act 1900. She entered a plea of ‘not guilty’ to the offence and her matter was set down for Hearing.

At the day of Hearing, no prosecution witness turned up including the office-in-charge. The Prosecutor sought an adjournment application. James Castillo opposed the application. The Presiding Magistrate refused the adjournment application and consequently, the charge was withdrawn and dismissed.

Non-Conviction Sentence for a Second Drive with Illicit Drug Present Offence

PC was charged with ‘Drive motor vehicle with illicit drug present in blood’, contrary to section 111(1)(a) Road Transport Act 2013. This offence carries a maximum penalty of 30 penalty units or $3,300 fine and an automatic license disqualification 12 months.
Chris Cole represented PC at his Sentence. Various materials were tendered including a MERIT report, urinalysis reports, and Traffic Offenders Program completion certificate. Ultimately, the Presiding Magistrate agreed with Chris’s submissions and imposed a Conditional Release Order without conviction for 2 years.

This is a very pleasing result which sees PC remain ‘on the road’.

Negotiated Plea on the Day of Hearing, Conditional Release Order Imposed

JS was charged with “Stalk/Intimidate”, contrary to section 13(1) Crimes (Domestic and Personal Violence) Act. This offence carries a maximum penalty of 5 years imprisonment.

The charge related to an incident where JS engaged in a verbal altercation with a parking ranger where he threatened and intimidated the ranger after the ranger issued him an infringement notice for an expired loading zone ticket.

On the day of the Hearing, Chris Cole successfully negotiated a plea offer with the Prosecution reducing the charge to ‘Common Assault’, which only carries a maximum penalty of 2 years. Chris also proposed facts on sentence which were accepted by the Prosecution.

Ultimately, the Presiding Magistrate imposed a Conditional Release Order (with conviction) for 12 months. This is an impressive result considering that JS had convictions and had recently served time in custody for similar offences.

CRO Without Conviction for a Damaged Wall

ZW was charged with ‘Destroy or damage property-DV’, contrary to section 195(1)(A) Crimes Act 1900. The offence carries a maximum penalty of 5 years imprisonment.

The charge related to a verbal altercation between ZW and his wife. Their argument eventually resulted in ZW punching a hole in the wall of the house.

James Castillo negotiated amended Facts in favour of ZW. ZW pled guilty to the offence and was sentenced on the amended Facts.

The Presiding Magistrate sentenced ZW to a Conditional Release Order without conviction for 12 months.  

Non-Conviction Sentence for a Damage to a Motor Vehicle

BL was charged with ‘Intentionally/recklessly destroy or damage property”, contrary to section 195(1)(a) Crimes Act 1900 concerning a damage he caused to an uber vehicle after throwing an electronic cigarette at the said vehicle.

BL pleaded guilty to the offence. James Castillo represented BL at his Sentence. James relied on an Affidavit from BL and two character references. James made oral submissions asking the court to extend leniency to BL and exercise the Court’s discretion to impose a Conditional Release Order without conviction. The Presiding Magistrate agreed with James and imposed a CRO without conviction for 12 months.

This is a pleasing result for BL as a criminal conviction could potentially have impacted his pending Working Holiday Visa.

Negotiated Plea Offer Resulted to Time Served

HG was charged with ‘Break & Enter Dwelling-house or building commit serious indictable offence (steal)”, contrary to section 112(1)(a). This offence carries a maximum penalty of 14 years imprisonment. 

HG instructed James Castillo to negotiate a plea offer. James successfully negotiated a plea to a reduced charge of “Steal in dwelling-house” which only carries a maximum penalty of 7 years imprisonment.

Prior to being granted bail, HG spent about 5 months in custody. At Sentence, James made oral submissions seeking the court to impose an imprisonment sentence of time served. The Sentencing Magistrate accepted the submissions. He essentially imposed a sentence of time served, after finding special circumstances that warranted the adjustment of the ratio of the non-parole period to 50%.

This was particularly a pleasing result, given HG’s extensive criminal history.

Successful Negotiation Led to Withdrawal of All DV Charges and AVO Application

JG was charged with 5 counts of ‘Common assault-DV’ and one count of ‘Intentionally choke etc person without consent’ concerning JG’s son.

Chris Cole acted for JG and successfully negotiated the withdrawal of all criminal charges. On the day of the Hearing, the Prosecution further granted authorisation to withdraw the AVO Application sought by them.

This is an outstanding result for JG.

Pleaded Guilty To DV Offences, Successful Section 14 Application Before Sentence

KC was charged with serious violence offences, namely, ‘Assault occasioning actual bodily harm’, ‘Common assault’ (as an alternative offence), ‘Assault police officer in execution of duty; and ‘Hinder/resist police officer in execution of duty’ (as an alternative offence).

Chris Cole entered pleas of guilty to the lesser alternative offences on behalf of KC. Chris successfully negotiated the withdrawal of the more serious offences through Police Representations to withdraw. Subsequently, Chris made an application pursuant to section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 so that KC could be dealt with under the mental health regime, instead of being dealt with in accordance with law for sentencing.

Chris relied on a psychological report as well as other subjective materials in support of KC’s application to be discharged into the care of her treating team. Ultimately, the Presiding Magistrate was satisfied that it was more appropriate to dismiss KC’s matters on the condition that she complies with the treatment plan as proposed by her psychologist for 12 months.

This is a very pleasing result for KC noting that this meant no criminal conviction was recorded.

Successful Mental Health (Section 14) Application Before Hearing Of Common Assault Charge

AJ was charged with ‘Common Assault’. He pleaded ‘not guilty’ to the offence and his matter was listed for Hearing.

Prior to the Hearing commencing, Chris Cole made an application pursuant to section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 to divert AJ’s matter into the mental health regime, instead of being dealt with in accordance with law.

AJ suffered from Major Depressive Order, Generalised Anxiety Disorder and ADHD. Chris tendered a psychological report as well as a certificate from AJ’s treating counsellor, and made oral submissions in support of the section 14 Application. Ultimately, the Presiding Magistrate granted the Application and dismissed AJ’s charge on the condition that he adhered to the treatment plan tailored for him.

This is a good result for AJ as his charge was dismissed without proceeding to a Hearing.

Conditional Release Order Without Conviction For Common Assault

AL pleaded guilty to the offence of ‘Common assault’ which carries a maximum penalty of 2 years imprisonment.

AL retained Chris Cole to act for her at her Sentence. Chris tendered various subjective materials on her behalf including her Affidavit and 3 character testimonials. Chris then made oral submissions on why the court ought to impose a Conditional Release Order without conviction.

The Presiding Magistrate agreed with Chris and imposed a CRO without conviction for a period of 12 months.

This is a pleasing result for AL as she is able to maintain her good character with a clean criminal record.

Sentence Facts Negotiated, CRO Without Conviction Imposed

MS was charged with ‘Assault occasioning actual bodily harm (DV related)’ contrary to section 59(1) of the Crimes Act 1900. This offence carries a maximum penalty of 5 years imprisonment.

 Chris Cole acted for MS. Prior to the Hearing commencing, Chris negotiated with the Prosecution whether they would accept a plea to the offence on the basis that MS was ‘reckless’ as to the alleged offending against the complainant. Chris proposed facts on sentence that reflected the correct objective seriousness of the offending. The Prosecution accepted the proposed plea and proposed facts on sentence.

 The matter proceeded to Sentence. At Sentence, Chris made submissions that a Conditional Release Order without conviction ought to be made, taking into account the reduced objective seriousness of the offending and MS’s subjective circumstances. The Presiding Magistrate agreed and placed MS on a Conditional Release Order without conviction for a period of 2 years.

 This is a very pleasing result for MS notwithstanding the serious nature of the offence.

Found Not Guilty of Not Stopping at Stop Line

SL was charged with an offence of ‘Not stop at Stop Line’, SL elected this offence to be dealt with in court. SL retained Chris Cole to act for him at his Hearing.

 At the Hearing, the prosecution called the officer in charge to give evidence and relied on an in-car video footage which was alleged to capture the offending. SL gave evidence for his defence.

 Ultimately, the Presiding Magistrate accepted SL’s evidence and found him ‘not guilty’.

Application For An Early Release Of Impounded Vehicle, Granted

DC was charged with ‘exceed speeding limit over 45km/hr’. As a result, NSW Police seized the vehicle being driven by DC to be impounded for 3 months under s239(1)(a) of the Road Transport Act 2013 (“RTA”)

 Chris Cole made an application for the early release of the impounded vehicle pursuant to s249(1)(a) of RTA. Chris tendered materials and made oral submissions on behalf of DC. The Presiding Magistrate accepted those submissions and ordered the release of the impounded vehicle before the end of the period of impounding. The impounded vehicle was released on the same day.