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Failure to provide necessities of life
What is Failure to provide necessities of life ?
Failure to provide the necessities of life is where a person under a legal duty to provide another person with the necessities of life without reasonable excuse fails to provide that person with the necessities of life.
Case law/Jurisdiction
An offence of Failure to provide the necessities of life is what is known as a “Table 1” offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is it is to be dealt with on indictment by the Department of Public Prosecutions (DPP).
The nature and elements of the what is a reasonable excuse were considered in Taikato v R (1996) 186 CLR 454 at 464. In that case it was held that what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the proviso to which the defence of “reasonable excuse” is an exception. Reasonable excuse is a broader concept than “lawful excuse” See Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 102-103
The Law
According to s44 Crimes Act 1900(NSW)
- A person:
(a) who is under a legal duty to provide another person with the necessities of life, and
(b) who, without reasonable excuse, intentionally or recklessly fails to provide that person with the necessities of life,
is guilty of an offence if the failure causes a danger of death or causes serious injury, or the likelihood of serious injury, to that person.
What must the prosecution prove?
Since Failure to provide necessities of life offence is a criminal offence, the burden of proof lies on the Prosecution.
As specialist criminal lawyers we always ensure the prosecution must prove each of the elements in the charge beyond reasonable doubt.
That is a high standard of proof that the prosecution must achieve before someone can be convicted of Failure to provide necessities of life .
To establish Failure to provide necessities of life , the prosecution must prove each of the following matters beyond reasonable doubt;
- You were legally liable to provide the victim with the necessities of life;
- You intentionally or recklessly neglected to provide the necessities of life to the victim.
- Your failure caused a danger of death or serious injury, or the likelihood of serious injury, to the victim.
- Your acts were without reasonable excuse.
- They will also need to prove that you were the person who committed the failure to provide necessities of life offence.
If you are charged with the offence of Failure to provide necessities of life what are your options?
National Criminal Lawyers have been successful in defending a number of Failure to provide necessities of life charges where the prosecution could not establish each of the elements of Failure to provide necessities of life .
NCL offer the following options for those who have been charged with Failure to provide necessities of life ;
- We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
- NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
- Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
- Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction
Pleading Guilty
If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.
Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.
Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work to get you the best result.
Maximum Penalties
The maximum penalty for the charge of failure to provide necessities of life (Section 44 of the Crimes Act) can be punished with a prison sentence of up to 2 years (if heard in the Local Court) or up to 5 years (If heard in the District Court).
Please note these penalties are reserved for the worst kind of offending and are unlikely to be what you would receive.
Pleading Not Guilty
If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.
A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.
National Criminal Lawyers have defended numerous people charged with Failure to provide necessities of life and are experts at these hearings.
Defences
Some of the possible defences available for those charged with Failure to provide necessities of life can include;
- If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
- If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”.
- If you were defending yourself or another OR yours or another’s property you may have a Defence of Self-Defence. Many people misunderstand what the limits of Self-defence can be.
Statistics
The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:
“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.
For Failure to provide necessities of life 67% of offenders received a s9 Good behaviour bond whereas 33% received an intensive corrections order (ICO).
Possible Penalty's
In NSW, a court can impose any of the following penalties for a Failure to provide necessities of life charge.
- Prison sentence;
- Home Detention;
- Intensive correction order (previously periodic detention);
- Suspended sentence;
- Community service order (CSO);
- Good behaviour bond;
- Fine; and/or
- Section 10.
However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:
- Full time Imprisonment;
- New ICO (ICO) with a home detention condition available;
- New Community Correction Order (CCO);
- Fine and/or
- New Conditional release Order (CRO)
Why National Criminal Lawyers?
There are three reasons to choose National Criminal Lawyers:
1. We get the results
We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.
2. We give a Senior Defence Lawyer guarantee
No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.
3. National Criminal Lawyers are the best defenders of your rights
At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.
If you have been charged with any Failure to provide necessities of life offence our Team at National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.
Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.
