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Attention at the wheel – strict laws introduced to deal with drugs and alcohol on the roads

T&S Law Firm — Fri, 27 Aug 2021 08:50:04 +0000

Introduction

Offences for drink driving or driving with illicit drugs in your system, have always and continue to exist as separate offences. Until recently, there had not been an offence that penalised a driver for having both alcohol and drugs in their system.

As at 27 June 2021 however, if you are caught with both alcohol and drugs in your system you will be charged under the new combined offence – Section 111A of the Road Transport Act.

For first time offenders, the new combined offence applies only to those found to have drugs in their system, along with a blood alcohol reading higher than 0.08 (i.e. above middle range). This means that if you are caught with drugs in your system and a blood alcohol level above 0.05 (the low range) but below 0.08, the combined offence does not apply, however you can still be charged separately.

The above exception is not available to those who have been convicted in the past 5 years for drink driving (at any blood alcohol range). That means where a person has had a previous conviction for drink driving (even without any drugs in their system), if they are caught again with both drugs and alcohol in their system, then the combined offence applies to them regardless of their blood alcohol level.

A table below summarises the penalties and varying circumstances of the s111A combined offence:

Offence	Drugs in System	Blood Alcohol Reading	Legislation	Maximum Penalty
1^st time	Yes	0.00	Charged for drugs only – s111, Road Transport Act.	$2200
1^st time	Yes	0.05 – 0.79 [Low Range]	Drugs and alcohol charged separately – ss 110 & 111, Road Transport Act.	$4400
1^st time	Yes	0.08 – 0.149 [Middle Range]	Charged with combined offence – s111A(2), Road Transport Act	$3300 and/or 18 months imprisonment
1^st time	Yes	Greater than 0.15 [High Range]	Charged with the combination offence – s111A(1), Road Transport Act.	$5500 and/or 2 years imprisonment
2^nd time +	Yes	0.05 – 0.79 [Low Range]	Charged with combined offence – s111A(3), Road Transport Act.	$5500 and/or 2 years imprisonment
2^nd time +	Yes	0.08 – 0.149 [Middle Range]	Charged with combined offence – s11A(2), Road Transport Act.	$6600 and/or 2 years imprisonment
2^nd time +	Yes	0.15 or greater [High Range]	Charged with combined offence – s111A(1), Road Transport Act.	$11,000 and/or 2 years imprisonment

In addition to the penalties listed above, any person who is convicted under the combined offence may also be subject to a mandatory disqualification period and may have to participate in an alcohol interlock program.

Mandatory Disqualification Period

A mandatory disqualification period is the period for which a person convicted of certain traffic offences will be disqualified from holding a drivers licence. A person who has been convicted of a drink driving or drug driving offence within the last 5 years will be liable to a higher disqualification period.

For a person with no convictions in the last 5 years, a conviction of a combined offence with a blood alcohol level in the middle range, will occasion a 2‑year disqualification period, and 4 years for a high range blood alcohol level.

Mandatory Interlock Order

A mandatory interlock order imposed by the court involves 2 main components:

A minimum disqualification period in which a person is prohibited from driving; and then
A period of participation in the interlock program, where a person may drive under the conditions of an interlock device installed to the vehicle (an electronic breath testing device which requires the driver to provide a breath sample for the presence of alcohol before the vehicle will start).

For a combined offence, the disqualification period ranges from 1 month to 9 months, depending on the blood alcohol level and history. An interlock period may range 1 year to 4 years for the same reasons.

Police Procedures in Practice

The amendments do not introduce anything new to how drivers in NSW are tested for alcohol and drugs. A driver who is breath-tested and returns a middle or high range alcohol level, will then undergo a roadside drug test. A driver who tests for a low‑range result, is also asked to undergo a drug test if they have a previous offence.

You should also be aware that, depending on the blood alcohol level detected, police also carry the discretion to suspend a person’s drivers licence on the spot.

If you have been charged with a combined offence (or a separate alcohol or drug driving offence), and would like to obtain legal advice on your matter, please do not hesitate to contact our office for an initial obligation-free consultation.

New laws on offence of rape – “Yes means Yes”

T&S Law Firm — Mon, 19 Jul 2021 23:17:53 +0000

The Attorney-General for New South Wales, Mr Mark Speakman SC, has recently confirmed that the Government is planning to introduce sweeping changes to the State’s sexual consent laws to protect the victim and deliver better outcomes for justice.

This involves amendments to Part 3, Division 10 of the Crimes Act 1900 (NSW).

How rape is defined at law?

Rather confusingly, NSW is the only jurisdiction in Australia where the offence of rape is legally referred to as ‘sexual assault’. This is commonly mistaken with the separate offence referred to as ‘sexual touching’, which involves touching another person with any part of the body or anything else where the touching would be reasonably considered as sexual.

Sexual assault on the other hand, is when a person is engaged in an act of sexual intercourse without the consent of the other person. Sexual intercourse is penetration of the vagina or anus by any part of another person’s body or any object, and this also includes oral sex.

Since sexual assault can be a single or continuous act, consent can be withdrawn by the other person at any time.

Consent

The central issue around any sexual assault case is usually the question of consent. Consent is defined as an agreement to sexual activity, “freely and voluntarily” given, and (apart from certain exceptions) it is assessed only from the perspective of the accused person. In other words, what is key is the accused’s knowledge about consent.

The accused’s knowledge about the consent (or the lack of consent) of the victim is considered from 3 perspectives:

Whether the accused actually knew that the victim that did not consent.
Whether the accused considered the possibility that consent might be in doubt but went ahead with the act anyway.
Whether the accused had any reasonable grounds to believe that the victim did consent.

What are the proposed changes to the new Bill?

The changes to the sexual assault laws in New South Wales are going to be implemented through the Crimes Amendment (Enthusiastic Consent) Bill 2021. We anticipate that the Bill will likely be made into law by November 2021.

Two radical changes which are anticipated include:

Imposing a condition whereby a person does not consent to sexual activity unless consent is communicated through act or speech; and,
The accused’s belief that there was consent will not be reasonable unless they have first made an attempt to determine (through either speech or an act) whether or not consent has been given.

Alongside these changes in the law are new jury directions for trial judges overseeing sexual assault cases. Trial judges would be obligated to remind jurors that:

Sexual assault can occur in all sorts of different situations and relationships. This includes acquaintances or people who are married.
Sexual assault does not need to be accompanied by threats or violence.
There is no typical or normal response to being sexually assaulted, and jurors should not rely on any preconceived ideas.
The different ways people respond to trauma mean that some people may be emotionally distressed whilst giving evidence, and some may not. This should not be a point of bias.
It cannot be assumed that consent was implied by the way a person was dressed, or the fact that they have consumed alcohol or drugs.

What will the offence of rape look like moving forward?

The incoming reforms are radical in the sense that they will change the way courts look at the offence of sexual assault. Whereas before the main legal question was the mind of the accused as to actual consent, or whether there was a reasonable ground(s) to believe consent was given, now the legal question will be whether there was actual consent from the view of the victim.

Essentially, the question has shifted from looking at the perspective of the accused to that of the victim. Or more accurately, from the accused’s knowledge of consent, to the victim’s communication of consent. In doing so, it is clear that the State Parliament is looking to close ‘loop-holes’ in the current law of not guilty verdicts because the jurors could not agree as to whether the accused had reasonable grounds to believe consent had been given.

Before you sign the dotted line …

T&S Law Firm — Wed, 12 Jun 2019 23:00:57 +0000

Tips when purchasing property

If not approached with due diligence, the process of purchasing property can become complicated and stressful.

It is therefore imperative that you are mindful of some common factors which may impact upon your decision to commit to your next residential or investment property purchase. An oversight of any one of these factors could have irreversible repercussions extending far beyond the settlement process.

The factors/considerations include:

Inclusions/Exclusions

Inclusions are items that are fixed to the property or into the grounds of the property and are included in the contract of sale. Personal or free-standing items such as tables, chairs and furniture are generally excluded from the sale.

Not every fixed item you see on the property may necessarily be included in the sale. The vendor for example, may wish to take the blinds or dishwasher. It is therefore crucial to review the list of inclusions and ensure that you are aware of what is, or is not, included in the sale.

Special Conditions

These are additional to the standard conditions attached to the contract of sale. Contracts will have additional conditions and clauses that are usually tailored to the benefit of the vendor. It is important that you understand these special conditions and their overall effect on your purchase.

As these additional conditions do not form part of the standard conditions in the contract of sale, the terms are open to negotiation with the vendor, for example, on the basis of some conditions being unfair or over-burdensome on the purchaser.

Planning Certificates and Sewerage Service Diagrams

Otherwise known as a zoning certificates, planning certificates provide information on how the land may be used and restrictions on its development. Sewerage diagrams show the location of any sewer lines on the land and may show whether the plumbing work on the property has been inspected.

Reviewing these documents and understanding the planning controls applicable to the land is essential to determining whether it is suitable for your personal use or investment objectives. It is particularly crucial when considering any modifications– be it a simple renovation, through to the demolition and re-development of the property.

Modification to property

Be mindful to review copies of all deeds, dealings and other instruments that may create a benefit or a burden on a particular part of the land that you are purchasing. Examples of these include:

Easements: Instruments that grant other parties the right to access your land for a specific purpose, for instance, a shared driveway.
Negative covenants: Instruments that restrict the use of the land for specific purposes, and if breached the Local Council, the original developer, or your neighbours can take legal action against you.
Positive covenants: Promises to do something, such as building a shared fence or to contribute towards the maintenance of a shared driveway.

Understanding these common yet crucial factors before “signing the dotted line” will alleviate any speed-bumps during your conveyancing process and ensure that you are not caught off-guard with any unwelcomed surprises.

A competent solicitor has a duty to ensure that you are properly advised and informed from the very outset up and until receiving keys to your new property.

Khodr Ghantous and Ian Wang

Drug Supply Prohibition Order

Baraa Saddiq — Thu, 23 May 2019 14:40:29 +0000

New powers to raid drug dealers

Under the current powers afforded to NSW Police, the Law provides that a warrant is to be obtained before a police officer can search a premises.

Section 47 of the Law Enforcement (Powers and Responsibilities) Act 2002, provides that a police officer can apply for a search warrant under a reasonable belief that there is, or will be within 72 hours, a thing in a premises connected to a searchable offence. This includes a drug-related offence.

Expansion of Police Powers

The recently elected NSW Coalition government seeks to expand police powers in an effort to combat the continuing supply of illegal drugs by organised crime gangs.

With the introduction of a Drug Supply Prohibition Order, a police officer will have the power to search homes and cars of convicted drug dealers at any time without a warrant, if they are suspected of continuing to engage in drug-related crime.

Police will be able to apply to the Court for a Drug Supply Prohibition Order against a person who has in the last 10 years, been convicted of a serious drug-related offence, such as the supply or manufacture of prohibited drugs.

The Drug Supply Prohibition program is to operate as a two-year pilot program in four police commands: Bankstown, Coffs-Clarence, Hunter Valley and Orana Mid-Western. After its initial 2-year phase, the effectiveness of the program is to be assessed for a potentially broader application across the State.

What does this change mean?

Premier Gladys Berejiklian said in relation to the proposed changes that, “Community safety is the highest priority of the NSW Liberals & Nationals Government, and I want convicted drug dealers to know that they will have nowhere to hide if they want to prey on, and profit from, the people of NSW”.

Minister for Police Troy Grant also spoke in support of the changes, stating “As a former police officer, I’ve seen the harsh reality of illegal drugs in our communities, and I’m confident that these orders will help our police take the fight to drug dealers, and show them that we will not tolerate having this filth on our streets”.

Equally as important however, is the protection of civil liberties enjoyed by each and every member of our community, and ensuring that such liberties are not infringed upon. This is a difficult balancing exercise which calls for the introduction of appropriate measures ensuring strict adherence to both existing and any expansion of police powers.

Baraa Saddiq and Ian Wang.

Annual MLN Iftar Dinner

Muhammad Tehseldar — Mon, 20 May 2019 07:14:05 +0000

T&S Law Firm’s Baraa Saddiq, Muhammad Tehseldar and Khodr Ghantous were delighted to have been in attendance at this year’s annual Muslim Legal Network iftar at the Doltone House Hyde Park.

Joined by many esteemed guests including members of the Australian judicial system, legal practitioners from across the State and beyond gathered to share a meal, and in doing so, marked the importance of diversity and inclusivity within the legal fraternity.

Principal Solicitor Muhammad Tehseldar was given the honour of performing the call to prayer, the ‘Athaan’.

Drive Whilst Using Mobile Phone

Baraa Saddiq — Fri, 17 May 2019 01:38:48 +0000

Most of you already know that it is an offence to use a mobile phone whilst driving – Rule 300 of the Road Rules 2014.

Penalties include a fine of $337 ($448 in a school zone) and 5 demerit points incurred to your drivers licence (increased from 4 demerit points as of 17/09/2018).

In addition, as part of its new road safety plan the Government is now at its final stages of deploying high-tech cameras, installed across the State to detect the use of mobile phone by drivers. The weatherproof cameras will operate day and night, capturing images of the front-row cabin space of all vehicles, including the driver and passenger seat.

It is therefore imperative that drivers have a clear understanding of the rules associated with the use of mobile phones.

What you CANNOT do whilst driving

Note: “Driving” includes a stationary vehicle that is not parked. For example, this means that using a mobile phone whilst the vehicle is stationary at the traffic lights will constitute an offence. Your vehicle must otherwise be parked and out of the line of traffic.

Unless you fall within the exceptions (set out further below), you cannot do any of the following:

Enter, send, or even look at anything on the phone – for example:
- Texting
- Audio texting
- Emailing
- Using any social media (Facebook, Twitter, Instagram)
- Taking photos
- Video messaging
The “No Touching Rule”:
You cannot physically touch the phone in any way (whether or not the phone is engaged in a telephone call). This includes having the phone in your hand, on your lap, or between your shoulder and ear.
You are however permitted to have the phone in your pocket/pouch, or if you are handing the phone to a passenger in the vehicle.
Operate any other function of the phone (includes turning it on/off).

What you CAN do whilst driving (Exceptions)

Note: The following exceptions are only available to unrestricted drivers and motorcyclists. Learners and Provisional licence holders are prohibited under any circumstances from using a mobile phone whilst driving.

The exceptions which permit the use of mobile phone whilst driving, are limited to 3 functions:

To make/receive a telephone call; or
To use the audio playing function from your mobile (for example – playing music); or
To use as a driver’s aid (for example – GPS navigation, rear-view camera, speed adviser or CCTV camera)

The above functions are only permitted if the mobile phone is being held in a phone cradle which is mounted to the vehicle. The mounting must be commercially designed and fitted in a manner as intended by the manufacturer. This means you cannot tamper with the product or worse, use a homemade product to mount the phone.

The position of where the phone is mounted must not obscure your view of the road.

What about Bluetooth?

If your mobile phone is connected to the vehicle via Bluetooth (as most modern vehicles are equipped with) you do not have to have the phone mounted to the vehicle to perform functions 1) or 2) above. In such circumstances however, you are not permitted to touch the phone in any way. Instead, you must operate the phone using the vehicle’s Bluetooth features – for example, through voice activation or by pressing the call button from the vehicle display screen or steering wheel.

As to using function 3), the mobile phone must at all times be held in a mounting fixed to the vehicle.

Final Note

We need to be mindful that using a mobile phone, even within the permitted rules, is a distracting exercise and can be dangerous to yourself and other road users. The consequences can often be devastating and far worse than receiving a fine or incurring demerit points.

Statistics show that from 2010 to 2014, there were 236 crashes where hand-held mobile phone use by drivers was identified as a contributing factor. From July 2014 to June 2015, more than 35,300 fines were issues in NSW for driving whilst using a mobile phone.

So, it is important to consider the real urgency of using a mobile phone before putting your life and the lives of others at risk.

If you have been fined for a mobile phone offence and would like to obtain advice to consider your legal standing, please do not hesitate to contact our office for an initial obligation-free consultation.

Baraa Saddiq,
Principal Solicitor

Presenting Legal Studies Workshop at Al Noori Muslim School

Muhammad Tehseldar — Thu, 09 May 2019 07:33:34 +0000

A big thank you to Al Noori Muslim School for their invitation to present at the 2019 Legal Studies Workshop!

T&S Law Firm’s Muhammad Tehseldar, Principal and Khodr Ghantous, Solicitor, both provided insights into the day-to-day challenges of working in the legal profession, the importance of a work/life balance, the effects of contemporary legal issues on the operation of the Australian legal system, and an engaging Q&A session.

On behalf of the team at T&S Law Firm, we wish the ‘Class of 2019’ and AL Noori Muslim School continued success in their educational and professional endeavours!