RIOT

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What Is RIOT?

Riot exists where 12 or more persons who are present together use or threaten unlawful violence for a common purpose. The collective conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.

Case law/Jurisdiction

An offence of Riot 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).

One example of Riot was as follows;

In 2011, the applicant was a detainee at Villawood Immigration Detention Centre. On 20 April 2011, the applicant joined a protest with other detainees on the roof of a building. Some of the detainees (including the applicant) removed tiles from the roof and threw them in the direction of security officers trying to control the protest. The applicant was charged with riot and affray per Crimes Act 1900 (NSW), ss 93B and 93C. He pleaded guilty only to affray. At trial, the applicant argued that, for the purposes of s 93B(1), he was not “present together” with 11 other persons using or threatening unlawful violence: there were not 12 detainees behaving violently on the roof and those on the ground were too distant to be considered. On appeal the Court rejected this argument and ruled that being together could amount to people on opposite ends of say a football stadium.

The nature and elements of the offence of Riot were also considered in R v Hawi (No 18) (2011) NSWSC 1664 wherein the issues of common purpose were discussed. Here it was held Each person involved in the unlawful violence can be found guilty of riot.

The Law

The offence of Riot is contained in section 93B of the Crimes Act 1900 (NSW) which states:

Where 12 or more persons who are present together use or threaten unlawful violence for a common and the conduct of them (taken together) is as such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years.

What must the prosecution prove?

Since Riot offence is a criminal offence, the burden of proof lies on the Prosecution.

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 Riot.

To establish Riot, the prosecution must prove each of the following matters beyond reasonable doubt;

That you:

  • Were present with twelve or more people;
  • The group was collectively using or threatening to use violence; and
  • The group’s actions, taken collectively, would cause a person of reasonable firmness to fear for their safety.

If you are charged with the offence of Riot what are your options?

National Criminal Lawyers are one of the best Affray Lawyers Sydney has to offer and always employ best practices for  either Riot or Affray charges. We have been successful in defending a number of Riot charges where the prosecution could not establish each of the elements of Riot.

NCL offer the following options for those who have been charged with Riot;

  1. 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;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. 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

Riot can be punished with a prison sentence of up to 2 years (if heard in the Local Court) or up to 15 years (If heard in the District Court).

Please note these penalties are the for the worst kinds 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 thousands of people charged with Riot and are experts at these hearings.

Defences

Some of the possible defences available for those charged with Riot can include;

  • To argue that you were not part of the group;
  • To argue that there were not twelve or more people in the group;
  • To argue that there was no use or threat of violence;
  • To argue that a person of reasonable firmness would not have feared for their safety.
  • It may also be possible to raise the defences of
  • Necessity;
  • Self-Defence or
  • Duress;

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 Riot 62% of offenders received full time imprisonment whereas 23 % received a suspended sentence.

Possible Penalty's

In NSW, a court can impose any of the following penalties for a Riot 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)

Case Studies

After being involved in a pub brawl our client was charged with offensive behaviour and Riot. After reviewing the CCTV footage of the incident in court, our clients Riot charge was dismissed. A non-conviction order was recorded for the charge of offensive behaviour.

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 Riot 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.

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