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Resist arrest or hinder police
What is Resist arrest or hinder police ?
Resisting arrest
It is an offence to struggle against or to try to escape from police when they have made it clear that you are under arrest.
Hindering police
If you are charged with an offence of ‘hinder police’ it means the police allege that you did something that stopped a police officer from doing their duty. A common example of this is if you tried to get in the way of a police officer arresting someone else. Another example is if you stopped a police officer going onto public land or warned someone else that the police were coming. Whether you are guilty depends on the exact facts and circumstances of your case.
Case law/Jurisdiction
Under the relevant legislation Resist Arrest or Hinder Police it is to be dealt with in the Local Court.
The nature and elements of the resist offence of were considered in R v Galvin (No 2) [1961] VR 740 wherein it was held for a person’s actions to constitute “resist” there must be an opposing by force of a course of action which the person resisted was attempting to pursue: To ‘Hinder’ a police officer –has been held to be conduct that renders an action of the police officer more difficult: Donnelly v Jackman [1970] 1 WLR 562.
The Law
The offence of ‘Resisting etc police’ is contained in section 546C of the Crimes Act 1900 (NSW) and states:
Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of penalty units, or both.
What must the prosecution prove?
Since Resist Arrest or hinder police is a criminal offence, the burden of proof lies on the Prosecution.
The prosecution must prove the Accused’s guilt beyond reasonable doubt.
That is a high standard of proof that the prosecution must achieve before someone can be convicted of Resist Arrest or hinder police
To establish Resist Arrest or hinder police, the prosecution must prove each of the following matters beyond reasonable doubt:
You either,
- Resisted or hindered police; OR
- Encouraged someone else to resist, hinder or assault police;
- The person was a police officer in the NSW Police Force; and
- The police officer was carrying out their duties as a police officer at that time.
IF YOU ARE CHARGED WITH THE OFFENCE OF RESIST ARREST OR HINDER POLICE WHAT ARE YOUR OPTIONS?
National Criminal Lawyers have been successful in defending a large number of Resist Arrest or hinder police charges where the prosecution could not establish each of the elements of the offence. We have also achieved a number of non-convictions for Resist Arrest or hinder police charges.
NCL offer the following options for those who have been charged with Resist Arrest or hinder police:
- 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 at increasing the chances of obtaining a non-conviction or section 10.
Maximum Penalties
Resist Arrest or hinder police can be punished with a prison sentence of up to 1 year or a fine of $1110.
Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you 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 thousands of people charged with Resist Arrest or hinder police and are experts at these hearings.
Defences
Some of the possible defences available for those charged with Resist Arrest or hinder police can include:
- To deny that you did the act that police say constituted the offence;
- To argue that the person was not a police officer in the NSW Police Force;
- To argue that they were not working at the time, or that what they did was outside their duties as a police officer;
- To argue that police were acting illegally; or
- Duress-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”
- Necessity – If your actions were necessary to prevent a greater harm from occurring, you may have the defence of-Necessity.
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 Resist Arrest or hinder police 41% of offenders received a s9 Good behaviour bond whereas 28% received a fine.
Possible Penalty's
In NSW, a court can impose any of the following penalties for a Resist Arrest or hinder police charge.
- Prison sentence;
- Home Detention;
- Intensive correction order (previously periodic detention);
- Suspended sentence;
- Community service order (CSO);
- Good behaviour bond;
- Fine;
- 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;
- New Conditional release Order (CRO).
Case Studies
Police were called to a situation wherein our client was verbally abusing a bus driver. One of the police officers obtained our clients driver’s licence and began to record his details. Our client demanded his licence back and attempted to physically retake his licence. He was then arrested by police to which he continued to struggle. He was charged with hinder police/resist arrest. We represented the client in his sentencing hearing where we tendered psychiatric evidence that showed that there was no risk of his reoffending. The Magistrate took this into consideration and a Section 10 non-conviction order was made in relation to the charge.
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 Resist Arrest or Hinder Police offence our Team and 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.
