Heavy Vehicle National Law criminal charges

Since 2018 there has been a Heavy Vehicle National Law (‘HVNL’) and Chain of Responsibility rules, governing every party in the heavy vehicle supply chain. These “chain of responsibility” laws means that truck drivers, companies, business owners, consignors and consignees all have a responsibility in ensuring that safety regulations are complied with.

The HVNL regulates all vehicles with a gross tonnage of or over 4.5 tonnes. The law regulates people who drive the vehicles but also people throughout the whole supply chain can be held liable under the criminal law.

This means that there are criminal breaches for all people on the supply chain for breaches of fatigue management, mass, dimension and loading rules, vehicle standards, registration and general rules and regulations governing the safety of heavy vehicles. A dedicated prosecution unit has been created to enforce penalties across Australia.

Marshall Jovanovska Ralph MJR Criminal Lawyers can assist you if you or your company are facing HVNL criminal charges.

What are the penalties?

Offences are separated into three distinct categories of seriousness:

  1. Category 1: This is an offence where reckless breach of the rules that exposes someone to the risk of death or serious injury/illness. The penalties can be up to $300,000 and 5 years imprisonment for a person, or $3 million for a business;
  2. Category 2: Where a person is exposed to the risk of death or serious injury but it was not reckless. This can be a fine of up to $150,000 for a person or $1.5 million for a business;
  3. Category 3: These offences involve a breach of duty and can carry with it a maximum fine of $50,000 for a person or half a million for a business.

The HVNL prosecutions have really only just begun. A list of court outcomes and penalties are recorded and kept at the NHVR website and is available here. The most serious penalties in Victoria so far have occurred in the Western Suburbs of Melbourne, where Marshall Jovanovska Ralph MJR Criminal Lawyers have been operating since 2003.  

A case study involving an individual at Sunshine Magistrates’ Court involved a driver who was driving truck who was driving with a load that exceeded the permitted width of 2.5m by 200mm. He was driving without a licence and the vehicle was unregistered. The driver provided a false name and date of birth to police and had prior convictions for driving offences. The driver was placed on a 12 month Community Correction Order (‘CCO’) and convicted.

A case study involving a company, which was observed travelling with 2 containers. These were a 20-foot and 40-foot container. The vehicle was intercepted and the load was inspected and it was discovered that the company vehicle exceeded the mass requirements by 150%. The company was also not carrying the container weight declarations for the 2 containers. The company had no prior convictions. The magistrate at Werribee Magistrates’ Court convicted and fined the company $100,000.

Are you facing a criminal prosecution?

These charges can have drastic financial ramifications and some offences carry prison time of up to 5 years imprisonment. As these are criminal prosecutions it is important that you retain a criminal lawyer who has an understanding of these prosecutions and who appear in the courts on a daily basis for criminal matters.

Further, due to the wide net cast by the Chain of Responsibility laws it is important to have a criminal lawyer determine whether you can be found guilty under the prosecution.

At Marshall Jovanovska Ralph MJR Criminal Lawyers we appear exclusively in criminal law matters and have so since 2003.  If you are facing a criminal charges under the Heavy Vehicle National Law, we highly suggest that you contact one of our experienced lawyers on (03) 9311 8500.

MJR Criminal Lawyers welcomes lawyer Jason James to the team

We are very excited to announce the newest member of Marshall Jovanovska Ralph MJR Criminal Lawyers Jason James (@JJamesLawyer). Jason is a great addition to our team and works out of our team of criminal lawyers in Sunshine. Jason has hit the ground running and is appearing in court every day defending our clients.

Jason completed a Bachelor of Laws (Hons) at Victoria University and attended at Leo Cussen for his Graduate Diploma in Legal Practice. Jason was admitted as a lawyer in the Supreme Court of Victoria in 2020.

Jason is an avid cricketer, a jiujiteiro and a voracious reader. His pathway to the law was not your stereotypical one. Jason has made the extraordinary transition from young offender to criminal lawyer. Having been given a second chance when he was a young offender, Jason successfully completed his studies at law school and decided to give back to the community. Jason has deep roots in the Western Suburbs and is excited to advocate for his clients in the West.

Jason has a passion for advocacy and the criminal law. He truly understands the vital role solicitor advocates play at the cross-roads of people’s lives and is dedicated to protecting their rights and assisting in his client’s rehabilitation. His perspective is a welcome one in our firm.

Partner, Daniela Jovanovska comments that:

“Jason is a wonderful addition to our team of tenacious defence lawyers. He brings a dedication and discipline to his work that is extremely impressive. The partners and I are fortunate to have someone like Jason and we look forward to growing with him.”

At Marshall Jovanovska Ralph (‘MJR’) Criminal Lawyers we strive to assist clients through every stage of their criminal cases. Connecting people with the right services, including housing, alcohol and drug addiction services and social workers is vital to achieve long term success for our clients.

Should you wish to contact Jason James or any of our other criminal lawyers please do not hesitate to contact us.

The Drug Court at the County Court of Victoria

As of the 26 May 2021 the Drug Court will be made available in the County Court of Victoria in Melbourne. This will allow the County Court of Victoria to make what is a called a Drug Treatment Order (‘DTO’), where a person is sentenced to a term of imprisonment but is allowed to serve that term in the community.

Drug Court first started in Victoria in the early 2000s and was started as a pilot program at the Dandenong Magistrates’ Court. It then expanded into the Melbourne Magistrates’ Court a number of years ago. Recently, it has become available in the more serious County Court jurisdiction for the first time. Marshall Jovanovska Ralph Criminal Lawyers has had many years experience helping clients into the Drug Court program and we are excited to see it in the County Court jurisdiction.

What is Drug Court? Am I eligible for Drug Court?  

A Drug Court order is a commitment to the court and to the community to work towards sobriety. You need to speak to your lawyer as to whether Drug Court is suitable for your case and for you. It involves a plea of guilty to some or all of the charges (as negotiated with the Crown) that you are facing. In the County Court of Victoria you can only be assessed for a DTO provided the offending will not attract imprisonment of more than four (4) years, does not inflict actual bodily harm on someone and is not a sexual offence; as per s 18Z of the Sentencing Act 1991 (Vic). Further, there must also be a link between the offending that you are pleading guilty to and the use of drugs and/or alcohol. There are some additional criteria that involve eligibility depending on where you usually live, however it is best to talk to your lawyer about this.  

If you have serious criminal convictions and many pages of priors you will not necessarily be turned away from Drug Court. The program is designed to treat people who have otherwise ‘fallen through the cracks’ and keep offending due to their addiction to drugs. Often this involves people who are homeless, have intense addiction to drugs, are victims of crimes themselves or have simply gone down the wrong path.  

To gain an idea of what Drug Court is about, we recommend watching this short video which talks about the Drug Court in the Melbourne Magistrates’ Court presented by his Honour Magistrate Parsons.  

Further, if you want to hear partner Felix Ralph talk on 3CR Community Radio, you can listen to him here 40 minutes into this radio show.  

To see an example of what Drug Court is about, see this video presented by the Melbourne Magistrates’ Drug Court

Should I go into Drug Court?  

A person who is thinking about entering into a DTO has some important decisions to make with their lawyer. Is the case suitable to be resolved as a plea of guilty or do you have a defence? Do you meet the eligibility criteria for a DTO? What are the advantages of Drug Court? What are the disadvantages? Are you ready for the Drug Court process?   

The reason why these decisions need to be carefully considered is that a DTO is a significant commitment in time and effort. It involves regular drug tests, appointments with case workers, meeting with the judge once per week and a sophisticated system that is designed to improve accountability. If you further offend or you fail to take advantage of the DTO then your order can be cancelled you will serve the remainder of the sentence in prison.  

Drug Court can take years (even if you go well) of hard work and persistence. The benefit to this is that people can often maintain their sobriety and go on to live peaceful and productive lives free from drugs and prison time.  

Where to from here?  

It’s important to make sure that you receive the proper advice before you decide to pursue Drug Court. Our lawyers have operated in Drug Courts over many years and are experienced in the type of considerations that need to be balanced and weighed before going into Drug Court.

One of the biggest decisions is to try and determine (a) whether you are eligible (b) whether there should be a guilty plea in your case. These decisions should not be made lightly and should be made in close consultation with your lawyer.  

At MJR Criminal Lawyers we believe strongly in Drug Court and we have witnessed some amazing transformation in our clients. If you or a loved one needs assistance please contact us.  

What is CISP? The Court Services Integrated Program

The Court Integrated Services Program (‘CISP’) is a program that was established in 2006 at the Melbourne Magistrates’ Court and Sunshine Magistrates’ Court but has since been rolled out state wide. It is now being piloted in the County Court of Victoria for more serious crimes.  

It is a bail support service that identifies what services people need and then links them into the community whilst on bail. This could include:  

Often people who have been charged with crimes have issues with drugs or homelessness or are experiencing family violence. When preparing for a bail application​, CISP can be a useful program to enrol to make the most effective bail application possible. The aim is to address the core issues of the offending and reduce the chances of someone committing further crime. CISP is just one factor a magistrate has to consider when deciding whether to grant bail or not. CISP is a state funded resource and you must first be assessed by CISP to see if you are suitable for it. Usually this occurs in custody before the bail application.  

Please remember that each case and individual circumstances is different and during the CISP interview they will assess whether you are suitable for the program.

If you are released on CISP you will be given various appointments that you must attend. During COVID-19 some of ​these appointments are over the phone or in person. You must attend these appointments, or you could be exited from the program.  

The CISP case manager is there to work as a caseworker and will link you in to various support services depending on your needs. Each month, your CISP caseworker prepares a report to the Court as to how you have been going. The magistrate will then decide whether to keep you on the program or not. This only becomes an issue if there have been multiple appointments missed or skipped or further re-offending. If you have not taken the opportunity of CISP, a Magistrate must consider whether to place you back into custody.  

If you are on CISP, your caseworker should be your first point of contact. They are there to help you and link you in to the right services. The CISP program can go for up to four months and can really help people get their lives “back on track”. At Marshall Jovanovska Ralph (MJR) Criminal Lawyers we have seen thousands of people turn their lives around due to the involvement of CISP.  

If you have successfully completed CISP then this is a really good sign and the Courts generally take a very favourable view of a successfully completed CISP episode. This is because it shows that you can maintain appointments, not re-offend and can be trusted to do certain things that the Court asks of you.  

It may be that your case resolves into a plea of guilty at the end of the CISP program. A successfully completed CISP program is a good indicator to the court that your prospects of rehabilitation are good. If you cannot complete the CISP program then the Court will be doubtful as to your prospects of rehabilitation. So do your best and treat the CISP workers and program with respect. If you are on CISP, make the most of it and put in the time and effort. It may be the thing that stops you from going back to custody. 

If you have a family member, loved on or friend on remand and think they could benefit from CISP please do not hesitate to contact MJR Criminal Lawyers on 9311 8500.

The new spent convictions laws: Can I get my old conviction removed from my record?

What is the spent conviction legislation?  

The spent conviction laws offer a second chance for people who have served their sentence and rehabilitated. Allowing them to travel or gain new employment. The Spent Convictions Act 2021 (Vic) has passed to become law in Victoria. This means that old convictions or convictions that were committed when the person was a child become “spent convictions”. For the majority of offences this is automatic after either 5 years for a child or young offender or 10 years for an adult. This is automatic (meaning you don’t have to do anything) and it actually becomes an offence to disclose spent convictions, punishable by a large fine of 40 penalty units. This is a huge win for thousands of people that allows them to move on with their lives and have a second chance. A spent conviction will not be disclosed on police record checks and should allow you to travel overseas. It has been described as providing a “fairer Victoria” by Victorian Legal Aid and has been applauded by Liberty Victoria.  

What about serious convictions? How can they be removed from my record?  

Certain criminal offences classified as “serious convictions” and they are not automatically spent after the conviction period. These are for crimes that result in either:  

  1. A conviction for a crime that had imprisonment or detention for 30 months or more;  
  2. A conviction of a person for a sexual offence; or  
  3. A conviction of a person for a serious violent offence.  

At Marshall Jovanovska Ralph Criminal Lawyers we have represented hundreds of people since 2003 that have been convicted of a “serious conviction”. However, that does not mean that the conviction will remain on their record forever. Due to the new legislation it will be possible to apply to the court for a “Spent Conviction Order” so a magistrate can consider whether or not to make an order removing the conviction from your record.  

What does the magistrate consider in making a “spent conviction order”?  

The court will take into account rehabilitation that has happened between when the conviction was first imposed all the way up to today. The court will consider the following in making a “spent conviction order”:  

  • The nature, circumstances and seriousness of the original offence;  
  • The impact on any victims including at the time and potentially to this day;  
  • Your personal circumstances both at the time of the offending and today;  
  • Whether you or your family member is an Aboriginal or Torres Strait Islander;  
  • Your age and maturity when the offence was committed;  
  • Demonstrated rehabilitation that has occurred;  
  • Any continuing risk to the public safety in making a spent conviction order; and  
  • Any other matter the court considers relevant.  

Just because the crime that you or a loved one committed resulted in a serious conviction, that doesn’t mean that you don’t deserve a second chance. A conviction can often cast a long shadow over people’s lives and it is absolutely worth contacting us to see whether we can assist in getting you or your family member a “spent conviction”. Our firm believes in second chances and will help you through this process and represent you in court.  

Please remember that every case is different and that this nothing in this article should be construed as legal advice, you should contact a lawyer before relying on any information in this article.  

Interim Intervention Orders (IVOs) and the limits of the system

Felix Ralph, The Age, 23 February 2021
“Lawyers call for funding fix as courts face massive backlogs”

If you are reading this article there is a fair chance that an interim intervention order (IVO) has been or is about to be made against you. But what does this mean? An interim intervention order is an order granted by a magistrate that prevents certain activities, freedoms and behaviour. It can exclude you from the family home, prevent you from seeing your children or contacting the applicant for the interim IVO. This can have devastating practical and criminal consequences on people’s lives. These interim IVOs can be granted against you without you being present and if a magistrate is satisfied that it is required.  

The interim IVO stays in full force until either a magistrate removes it by agreement between the parties or the IVO proceeding is heard in court at a contested hearing. The difficulty with this is that due to the delays caused by an increased demand for these interim IVOs and due to COVID-19, a person subject to an interim IVO could be waiting many months (or years) to have their matter finalised and heard.  

Interim IVOs are effectively the same as a final intervention order and the penalties for breaching these orders can be severe. Due to strict bail laws, people who ordinarily wouldn’t be facing time in gaol, can be remanded until their case is finalised.  

This is why it is vital to have a lawyer present when the hearing first comes to court at the start of the case. This is called a first mention. It may well be that the matter can be negotiated by one of our lawyers to a withdrawal or to a less restrictive form of an intervention order. As criminal lawyers our job is to limit the potential liability of our clients to the fullest extent. Many people who are subject to IVOs do not know the system and consequences of breaching an IVO and it is very important that you receive this initial advice.  

Recently, Felix Ralph provided a comment to the The Age detailing the difficulties the criminal justice system is having with IVOs. The delays existed before COVID-19 however the pandemic has made them much worse. Due to these delays, in certain cases, it may be a superior course of action to consent to a limited order (either in duration or in clauses) rather than fully contesting the matter. This is because you could be subject to an interim IVO and therefore criminal liability for longer had it not been settled in the first place. Many people elect to contest the IVO without realising that the next time their case could go to court could be 6 to 9 months away. That is a long time to be subject to criminal consequences if there is an allegation of a breach. And it may be that after careful negotiation with the opposing side that a compromise can be reached early on in the case or parties can withdraw their allegations without involvement from the court.  Some cases will always require a contested hearing however it is important to receive the best advice so there are no surprises in your case. 

Please remember that all cases are different and that this article is a general comment only. You should not rely on this article as legal advice as this can be a complicated area of law. If you or someone you know is subject to an interim IVO you should contact Marshall Jovanovska Ralph Criminal Lawyers on (03) 9311 8500.

Big changes…

Firstly, welcome to our new website! This is our news blog section where we will publish what our firm has been up to recently. C. Marshall & Associates has rebranded to Marshall Jovanovska Ralph Criminal Lawyers (‘MJR Criminal Lawyers’).

We have a new star recruit, Alex Turner, who is well known in the western suburbs as a fierce lawyer and solicitor advocate. Alex brings with him a wealth of legal experience and a talented legal mind to defend each case.

We have set up a new office in the Melbourne CBD at Suite 1 Level 5 443 Little Collins Street. Felix Ralph will be running the Melbourne office.

We have set up new Twitter and LinkedIn profiles, and we will be active socially as well.

We are very excited about this new chapter in our firms history and we look forward to working with and defending you.

Onwards and upwards.