Criminal Law

The team of experienced criminal lawyers from Brander Smith McKnight appear in court every day of the week. They regularly appear in all courts including Local Court, District Court, Children’s Court, The Supreme Court Criminal Court of Appeal and Coroner’s Court.

Our lawyers have represented and advocated for clients across a range of matters including sexual offences, drug importation, drink driving, domestic violence, property offences, drug possession and assault.

Our criminal defence team is extremely experienced and able to run most court matters without the added expense of a barrister. However, for serious criminal matters we have a panel of expert barristers who we frequently engage.

You can rest assured that we will fight tirelessly in your corner and vigorously defend your rights.

phone number02 8539 7475

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

How we can help when you have Police Interaction or are Arrested or Charged.

There are a number of ways in which you may come in contact with the police.  Police powers to search, detain and interview are derived from the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).  In any contact with the police it is essential that you seek legal advice.  Provided below are the main interactions that you may have with the police.

Police Interview

Your first contact with the police is likely to be when police seek to interview you or arrest you.  It is essential that you seek legal advice prior to consenting to any interview with the police.  Police willingly accept that you require legal advice prior to you making a decision about any interview.

Search and Detention

Prior to stopping, searching or detaining a person, the police must suspect on reasonable grounds that the person has in their possession stolen or unlawfully obtained goods or an item used or intended to be used in an indictable or weapons or firearms crime.  Another reason is if whilst in a public place you are suspected of possessing a dangerous article that is or was used in connection with an indictable or weapons or firearms crime.

Police are entitled to search a person after they are arrested if they suspect on reasonable grounds that it is prudent to do so to ascertain if they are carrying an item that may be a danger to a person or could be used to escape from lawful custody.  In addition, if the police suspect on reasonable grounds that the person may be in possession of an item that was used in an offence or was intended to be used in committing an offence.

The police must tell you the reason for any search.

Police Powers of Arrest

The police are able to make an arrest without a warrant if the police officer suspects on reasonable grounds that the person is committing or has committed an offence AND they are satisfied that the arrest is necessary for a number of reasons, including to stop the person from fleeing or from committing another offence.  Section 99 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

Detention and Bail

If you are charged you may be detained by police in which case it is essential that you seek legal representation to make an urgent application in court for bail.  Recent amendments to the Bail Act 2013 (NSW) (Section 16) provide that certain offences require the accused person to show cause as to why they should be granted bail.  It is essential that you obtain legal representation to make an application to the court seeking bail.

Defence Strategies

Once you receive your charges and a fact sheet, which is a brief description of the facts prepared by the police, you should seek legal advice.  The criminal lawyers at Brander Smith McKnight can tell you how best to deal with the charges, develop a strategy for your representation and advise you of likely outcomes for each strategy.  This may include one or all of the following:

  • Making legal representations to the police to withdraw or amend charges
  • Making legal representations to the police or having a hearing to amend the fact sheet
  • Entering a plea of guilty as early as possible which may provide a sentencing discount of up to 25% Sections 25D &E Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Entering a plea of not guilty and preparing for a hearing.  A hearing is a trial where the police will be required to prove their case.

The most appropriate strategy will depend on the type of charge, the facts of the case, the evidence and any prior criminal convictions.

Sentencing Strategies for a Guilty Plea

Where there is a guilty plea, the criminal team at Brander Smith McKnight can advise you of the likely penalty.  We will use various strategies to achieve the best possible outcome for you.   This may include utilising:

  • Section 10 Crimes (Sentencing Procedure) Act 1999 (NSW).  This is a dismissal of charges with no criminal record.
  • Section 7 of the Act which results in intensive correction orders
  • Section 8 of the Act which results in community correction orders
  • Section 9 of the Act which results in conditional release orders
  • An application to court for the matter to be dealt with under the Mental Health Act 2007 (NSW).  This allows the court to order that the offender participate in a mental health program rather than a custodial sentence.

Where a custodial sentence is a possibility BSM Lawyers will ensure that every avenue is explored.  For example Section 5 of the Act which states that the court must not sentence an offender to imprisonment unless no penalty other than imprisonment is appropriate.

We will also guide and assist you to prepare all pre-sentencing materials such as references, psychologist reports and pre-sentence assessment reports.  You can be certain that we will ensure that your case is properly prepared so that you achieve the best outcome.

phone number02 8539 7475

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

BSM has extensive experience across all areas of Criminal Law

  • ASSAULT AND AFFRAY OFFENCES, including Common Assault, Assault occasioning Actual Bodily Harm (ABH), Grievous Bodily Harm (GBH), Assault Police.
  • DRUG & ALCOHOL OFFENCES, including Possession, Trafficking, Importation, Driving Under Influence (DUI) or Driving Above the Prescribed Concentration of Alcohol (PCA)
  • DOMESTIC VIOLENCE OFFENCES, including Assaults, Apprehended Domestic Violence Order (ADVO), Stalk and Intimidate
  • SEXUAL OFFENCES, including Sexual Assault, Sexual Touching and Sexual Intercourse without Consent (otherwise known as Rape).  All Child Pornography Offences, Procuring or Grooming of a Child for Unlawful Sexual Activity, Sexual Touching of a Child and Sexual Abuse of a Child.
  • FIREARMS OFFENCES, including Possession or Use unless Licenced, Possession Without Knowledge.
  • LARCENY AND ROBBERY OFFENCES, including Breaking and Entering, Entering a Dwelling, Embezzlement, Fraud, Stealing, Taking of a Motor Vehicle or Vessel, Receiving Stolen Property.
  • PROPERTY OFFENCES, including Destroying or Damaging Property.
  • BAIL APPLICATIONS AND CRIMINAL APPEALS
View related articles

Drug Offence FAQs

chevronWhat are considered Schedule I Drugs in Australia?

Schedule I drugs or substances refer to drugs with high potential for abuse and no practical medical use.

It is illegal to supply or possess Schedule I drugs and substances in NSW. This includes giving, selling, distributing, or delivering. The penalties associated with drug offenses of this category can vary depending on the amount possessed, the type of drug, and whether there are other factors or circumstances involved. Penalties apply more harshly for Schedule I drugs than Schedule II.

chevronWhat are examples of Schedule I Drugs?

Schedule I drugs may include, but are not limited to:

  • Amphetamine
  • Methylamphetamine (ice)
  • Heroin
  • Cocaine
  • Lysergide (LSD)
  • 3,4-Methylenedioxymethamphetamine (MDMA, Ecstasy)
  • Steroid drugs

chevronWhat are considered Schedule II Drugs in Australia?

Schedule II drugs or substances refer to drugs with a high potential for addiction and abuse, often leading to psychological or physical dependence.

Schedule II substances are often labelled as “Pharmacy Medicine”. They are widely accessible for purchase from pharmacies and licensed retailers in rural areas where pharmacies are not accessible. Products and painkillers used to treat minor conditions such as colds and coughs are classified as Schedule II substances.

Although these substances are often prepared for therapeutic use, medical diagnosis or management is not required prior to provisions of Pharmacy Medicines.

chevronWhat are examples of Schedule II Drugs?

Schedule II drugs or substances refer to drugs with a high potential for addiction and abuse, often leading to psychological or physical dependence.

Schedule II drugs and substances may include, but are not limited to:

  • Cannabis
  • Codeine
  • Psilocybin (Mushrooms)
  • Opium
  • Oxycodone

chevronAre ‘Nangs’ illegal in NSW?

Under Australian Consumer Law, small gas canisters relating to whipped cream or medicinal effects are not illegal or banned from sale across Australia. The laws around “nangs” vary from state to state.

However, NSW laws state that it is an offence to supply or sell nitrous oxide (also known as “Nangs” or “Laughing Gas”) to anyone whom they believe intends to use them for recreational use. The maximum penalty imposed for this offence is two years of imprisonment.

chevronIs cannabis illegal in NSW?

Under NSW law, cannabis is classified as a prohibited drug. Cannabis is also considered a narcotic drug and is illegal throughout NSW unless it is lawfully prescribed for medical use. This includes the use, possession, cultivation, and supply of cannabis. It is also an offence to possess implements for the use of Cannabis.

Assault FAQs

chevronHow long do you go to jail for assault in Australia?

The maximum penalty for common assault is two years or a fine of $5,500. If the assault was directed towards a frontline health or emergency service worker, penalties include up to 14 years imprisonment under the Crimes Legislation Amendment (Assaults on Frontline Emergency and Health Workers) Bill 2022.

chevronDo first-time offenders go to jail?

The answer depends on what type of offences at the time were committed.

Section 5 of the Crimes (Sentencing Procedure) Act 1999 states that ‘a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Under common law principle, imprisonment is a penalty of ‘last resort’ and should be inflicted on someone if the circumstances demand it.

chevronWhat is the lowest charge of assault?

The lowest type of charge for assault-related offences is common assault with a maximum penalty of two years imprisonment. The highest type of charge for assault-related offences is assaults that cause bodily harm with a maximum penalty of twenty-five years imprisonment. 

chevronWhat are the types of assault?

The Crimes Act 1900 includes the following assault-related offences:

  • Common Assault
  • Assault Occasioning Actual Bodily Harm
  • Reckless Wounding
  • Wound with Intent
  • Reckless Grievous Bodily Harm

chevronCan you hit someone if they provoke you?

You are not legally allowed to hit individuals under provocation. Although provocation can be extreme in some cases, it can rarely serve as a legal defence for assault, meaning it does not prevent the defendant from being guilty of an various assault charge.

AVO FAQs

chevronWhat are the penalties for breaching?

Breaching an Apprehended Violence Order (AVO) may have the offender arrested and if convicted, will result in a fine of $5,500 and/or imprisonment of up to two years.

If the breach of the AVO is also paired with the additional means of crime or violence, it will be considered a serious offence with a high chance of the offender being sent to prison if convicted.

Any convictions will appear on your criminal record and Working With Children checks.

chevronWhat qualifies as an AVO?

There are certain conditions to qualify for an Apprehended Violence Order (AVO). Any individual who is a victim of physical assault, threats, stalking, intimidation or harassment can seek to obtain an AVO against the perpetrator.

The perpetrator must not perform any of the following actions at any given time to the protected individual:

  • Assault or threaten
  • Stalk, harass or intimidate
  • Deliberate or reckless damage to belongings

Additional restrictions can be sought depending on the circumstances. Examples include but are not limited to:

  • Right to contact the protected individual with the exception of a lawyer.
  • Removed ability to possess firearms or prohibited weapons.
  • A certain distance from the protected person’s residence, work or school location.

chevronHow serious is an AVO?

Having an AVO against you does not classify as a criminal offence and will not appear on your record. As it is not a criminal offence, your ability to travel does not become hindered. However, it is considered a serious criminal offence if the conditions of the AVO are breached which may lead to severe penalties.

chevronHow do you get an AVO lifted?

If you are named as the defendant in an application for an AVO, you will need to consider your options as to how to respond to the application. Some courses of action to consider but not limited to are:

  • Seeking legal advice from a family lawyer
  • Make a cross-application
  • Provide an undertaking to the Court

Domestic Violence FAQs

chevronWhat is the penalty for domestic violence in Australia?

Under section 4B of the Crimes Act 1999, courts are required to impose either full-time imprisonment or a supervised order to anyone guilty of domestic violence offences.

Depending on the type of offence committed, penalties can range from 2 years to lifetime imprisonment, depending on the objective and subjective features of the case.

chevronCan I sue for damages for domestic violence in Australia?

Absolutely. Although a domestic violence offender can be liable for charges, the right to sue is not dependent on the outcome of the case. However, in most cases, it is better recommended to apply for a claim under the Victims of Crime Scheme for compensation up to $100,000.

There are time-sensitive windows in which you can make claims for damages as a result of domestic violence. You can get advice about your rights and options by contacting Brander Smith McKnight lawyers on 02 8539 7475.

Why Choose BSM?

Brander Smith McKnight criminal lawyers have represented and advocated for clients in all criminal cases from serious matters such as manslaughter, sexual offences and drug importation to less serious matters such as drink driving, drug possession and assault.

Our team of criminal defence lawyers regularly appear in Local Court, District Court, Children’s Court, Supreme Court, Criminal Court of Appeal and Coroner’s Court.

Our lawyers are extremely experienced and able to run most court matters without the added expense of a barrister. However, for serious or complex criminal matters we have a panel of expert barristers who we frequently engage.

Our criminal defence lawyers understand that the criminal justice system can be daunting and stressful to deal with and you can be certain that we will guide you through the system, explain the processes and fiercely advocate for you.  Brander Smith McKnight criminal lawyers will respect you and attend to your matter in an efficient, competent and compassionate manner.

phone number02 8539 7475

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Our Locations

Sutherland

iconSuite 2
9-15 East Parade
Sutherland 2232
Parramatta

iconLevel 14 Suite 2/3 Parramatta Square, Macquarie St,
Parramatta, NSW 2150.
Wollongong

iconLevel 1, Suite 1
90 Market Street
Wollongong NSW 2500
Sydney CBD

iconMLC Centre
Level 57, 19-29 Martin Place
Sydney NSW 2000
Suite 2
9-15 East Parade
Sutherland 2232
Level 14 Suite 2/3 Parramatta Square, Macquarie St,
Parramatta, NSW 2150.
Level 1, Suite 1
90 Market Street
Wollongong NSW 2500
MLC Centre
Level 57, 19-29 Martin Place
Sydney NSW 2000

Your Criminal Law Team

Mark Smith

Principal

View profile

Carlos Cofre Soto

Senior Lawyer

View profile

Lachlan Tax

Law Graduate

View profile

Ryan Ren

Law Graduate

View profile

Get in touch

Please call us on 02 8539 7475 or complete the enquiry form below for a response within 24 hours Monday to Friday.