Datt Associates & Solicitors

P.O Box 45 New South Wales

27 April 2011

Dear Mr David Walker , RE: Advice on possible charges and sentencing options . With regards to the event dated on the 16 t h of March 2011, you wer e approached by police at your own residence. In response to seeing the police at your propert y you remar ked the following words: F*ck off, pigs, nothing to see her e, get off my premises or you will be sorry. On the basis of these facts, you have co mmitted an assault by threatening the P olice of i mminent violence if they did not leave the premises.Reguardless if yo u did or did not apprehend the P olice at this stage; the words were enough to constitute an assault 1. If the Police had a reasonable belief that a domestic violence offence was occurring at your resi dence, they were onl y per mitted to investi gat e if INV ITED by a person who resided i n the dwelling 2. However, with regards to your circumstances, the police should have left the premises on y our ref usal to allow them onto your proper ty (dwelling 3). The unleashing of the dogs however, Mr Wal ker, was an intentional act which was intended to cause inj ury or death 4 and resulted in a P olice officer being badl y bitten and requiring surger y. TheBattery 5 still occurred, regardless of the fact you did not apprehend the contact. 6 It is li kel y, that the court may consider alternative sentencing opti ons due to you r Indi genous Australian backgr ound, however t he court still places pivotal importance on the fact s of the case and the same sentencing principles appl y irrespective of the identity of a particular offender or his membership of an ethnic or other group 7. If char ged with assaul t and batter y, you have the option of under going Circle Sentencing 8, which will allow for community invol vement and input into th e
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In Zanker v Vartzokas (1988) 34 Crim R 11, Zelling J commented that Acts, acts and words or words alone may constitute threats considered enough to create a reasonable apprehension of an imminent battery. 2 Law Enforcement ( Powers and Responsibilities) Act 2002 (NSW) s 82 (1)(a) 3 Law Enforcement ( Powers and Responsibilities) Act 2002 (NSW) s 82 (2) (b) 4 Civil Liability Act 2002 (NSW) s (3b) (1) 5 Battery Directly and intentionally brings about harmful or offensive contact with another persons body.( Oxford Australian Law Dictionary) 6 th Carolyn Sappideen et al, Torts Commentary and Materials (Thomson Reuters, 10 ed,2009) 7 In R v Neal (1982) 149 CLR 305, Brennan J commented that irrespective of ethnic membership, all facts of the case including criminal justice are administered. 8 Circle Sentencing is an alternative sentencing court for adult Aboriginal offenders.

sentencing procedure, possibly resulting in a more favoured sentence for the Abori ginal community and yourself as opposed to a long-ter m gaol sentences. If char ged for Assault only, the Court may be more li kel y to allow for conditional release or probation 9. The court may also lean towards Communit y Service Orders with local super vision if charged for assault only. On these facts, it is highl y probabl y that you will be char ged with assault and battery as your ac tions and words demonstrat ed c ri minal behaviour. If char ged however, you have the option to miti gate the sentence to a more favourable outcome for yourself and the indi genous communit y. Yours Faithfull y, P.D Solicitors

Australian Law Reform Commission, Aboriginal Customary Laws and Sentencing, Report No 31 (2010) vol 1, 540.