A mixed bag of offences.
A motorist stops at the local service station and appears suspicious to police who are also at the service station. The police stop the motorist and conduct a search of the vehicle. Police locate a flick knife, a small quantity of marijuana, a machete and an ATM card in another person’s name. Sound far-fetched? It’s not a rare occurrence, like you may think.
Section 51 Weapons Act makes it an offence to physically possess a knife in a public place or school without reasonable excuse. Reasonable excuses are for lawful activities such as employment, lawful entertainment or sport (such as fishing), lawful exhibition of the knife or any other lawful purpose.
Self-defence is not a reasonable excuse. What is a reasonable excuse requires that the Court take into account such things as if the way the knife is held or where and when it is held would cause a reasonable person concern that he, she or someone in the vicinity may be threatened or harmed.
Section 433 Criminal Code deals with the offence of receiving stolen property. To prove that the motorist in the above example, possesses stolen property (namely the ATM card), the police must prove:-
- That the motorist received the property, that is, has it in his or her possession, or knowingly has it in another place under his or her control or has aided in concealing or disposing of it.
- That the property was obtained by means of an unlawful act, such as stolen form the owner, with the intention to permanently deprive the owner of it.
- At the time that the motorist received the ATM card he or she had reason to believe that it was stolen.
Possible defences available to the motorist in this example are that the motorist did not receive the stolen ATM card, did not know that the card was stolen or honestly and mistakenly believed that the ATM card owner consented to him or her having the ATM card.
The quantity of marijuana was quite small and the motorist said that it was for personal use. The court can offer this motorist a Drug Diversion Program. The program prerequisites are:
- The motorist is charged with 1 or more eligible drug offences,
- The motorist appears before the Magistrate court or Children’s court,
- The motorist pleads guilty to the offence,
- The motorist has not previously been convicted of, or is not currently facing offences of a sexual nature or a drug offence to be dealt with in the District or Supreme Court.
If the motorist has been offered 2 previous drug diversion programs or a similar police diversion program, then the motorist will not be eligible for the court diversion program.
In the scenario above the motorist is over 18 years of age. If the motorist accepts the offer of a diversion program, the motorist need to sign a “Recognisance”, that is the motorist agrees to complete the diversion program and be of good behaviour for a period of time. If the motorist completes the program the order ends and no conviction is recorded. If the motorist doesn’t complete the program the motorist will have to appear in court to be resentenced. The motorist still needs to pay an offender levy, currently $133.45.
This is a general overview only. For more detailed information please contact our office.