A banning order is an order that prohibits an offender, until a stated date, from doing or attempting to do any of the following:
Entering or remaining in a stated licensed premises; or a stated class of licensed premises;Entering or remaining in, during stated hours, a stated area that is a particular distance from the licensed premises;Attending or remaining at a stated event, to be held in a public place, at which liquor will be sold for consumption.
It is advisable for those responding to a banning order application to elicit some certainty in the order by having the area specified. Particulars of the street names or the area abutting several stated streets removes ambiguity and resolves any potential conflicts. It also may be that a blanket ban can be avoided by seeking to restrict the hours of exclusion.
A court may make a banning order, with such conditions as it considers necessary, upon application by the prosecution where:
The offender has been convicted of an offence that involves the use, threatened use or attempted use of unlawful violence to a person or property and;The offence was committed in licensed premises, or in a public place in the vicinity of licensed premises.
The Applicant needs to satisfy the Court that unless the Order is made the Respondent would pose an unacceptable risk to:
the good order of licensed premises and areas in the vicinity of licensed premises; orthe safety and welfare of persons attending licensed premises and areas in the vicinity of licensed premises.
In considering the risk the court must have regard to all the circumstances of the case, including for example the following:
whether the respondent has been the subject of another banning order under the Penalties and Sentences Act, section 11(3) of the Bail Act or a civil banning order imposed under section 173X of the Liquor Act;the respondent's criminal history;the offenders person circumstances and the likely effect of the order on those circumstances;anything else that the court considers relevant
The court has a discretion to impose the banning order for not more than 12 months. Where the respondent is sentenced to a period of imprisonment the banning order commences at the conclusion of the sentence. Those facing a banning order need to consider whether the unacceptable risk exists for the whole of the 12 month period or whether it is probable that such risk will be reduced within a shorter time frame.
The banning order may not restrict a respondent from the entering or remaining within the respondent's residence, place of employment or place of education. In addition the order must not cause undue hardship on the offender or the offender's family. It is incumbent upon the respondent to establish such hardship.
The legislation also envisages that the order will not be breached were the person is utilising a mode of transport required to be used by the offender. The order must describe the mode of transport in sufficient detail to identify the mode of transport and state that the respondent is not stopped from entering or remaining in the mode of transport.
While the legislation is wide in its discretion, those who are respondents to an application need to carefully consider the implications of the order upon their ability to enter the particular location. If the unacceptable risk threshold test is reached they need to consider whether undue hardship will be caused and have evidence of such hardship, or in the case of transport requirements, particulars of the mode of transport.
A banning order is not trivial, a contravention carries a maximum penalty of $4,000.00 or 12 months imprisonment.
Criminal law is a unique and complex area of legal practice. It requires an understanding of a myriad of relevant laws, court procedure and an ability to advocate on behalf of your client.
Michael Gatenby established Gatenby Criminal Lawyers as a boutique criminal law firm to provide strategic representation for those charged with criminal or traffic offences. We understand criminal practice, its all we do.
When your liberty and reputation is at stake, you should demand a lawyer with the skills and commitment to provide your fearless defence.
Visit our website http://www.gatenbylaw.com.au/ or contact us for advice (07)55800120. We regularly appear in all Queensland Courts and travel interstate
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