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Sean
Sean, Experienced lawyer
Category: Australia Law
Satisfied Customers: 855
Experience:  Law degree with 1st class honours from Australian National University.
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Hi, before I get to my question, heres some background information.

Resolved Question:

Hi, before I get to my question, here's some background information. I'm an Australian permanent resident (since 2006) and married to a US citizen. We're thinking of applying for permanent residency (PR) for me in the USA, but I have a criminal conviction for shoplifting dating back to April 2009. On a national police certificate I requested a few months ago, the offence is listed as 'Shoplifting value <=$2,000'. (The actual value of the goods was around $360.) The sentence was a $200 fine and I had to pay for $73 court costs. Because of this conviction, I have been in touch with American immigration lawyers as there is no point in me applying for PR in the US if my conviction will prevent a successful application. The question one of the immigration lawyers asked me is if the court that sentenced me had any limit on its ability to sentence more than 12 months? The reason for this is if the offence had a maximum potential penalty of one year in prison, I can apply for PR using an exception in US law. I did some research myself and found that I could have received a maximum prison sentence of two years based on The Judicial Commission website. However, I don't know if this correct and I need to find out the correct answer to the question the US lawyer posed. If however answers this question needs any additional information, just let me know.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Sean replied 1 year ago.

Hello and thank you for your question. My name is XXXXX XXXXX I am available to assist you.

So that I can understand your situation better, are you able to tell me what state you were convicted in and what section of the Act you were charged under?

Also, what was the court that sentenced you?
Customer: replied 1 year ago.

Hello Sean, the conviction took place in New South Wales (Hornsby Local Court). I'm not sure about the section of the Act I was charged under. If you can let me know how I can find out this information I'll gladly track that down if that'll give you what you need to give me the best possible answer.


 


Thanks

Expert:  Sean replied 1 year ago.

OK great. When you were charged you should have received a court attendance notice that would have had the offence you were charged with. If you don't still have this, have a look at any of the other court documents you have to see if the offence is set out anywhere.
Customer: replied 1 year ago.

Because it was so many years ago, I don't believe I have any paperwork left that relates to this matter, so what I might do is contact Hornsby court and see if they can provide me with that information. Today is a public holiday so tomorrow would be the earliest I can contact them. I will let you know as soon as I have more information.

Expert:  Sean replied 1 year ago.

Ok great, that's what I was going to suggest next if you didn't have any documents.
Customer: replied 1 year ago.

Hello, just letting you know I sent an email to Hornsby Court and hopefully they'll respond quickly. When they do, I'll let you know. I'll rate your service when all this is completed, okay? I'll be in touch hopefully before the week is over.

Expert:  Sean replied 1 year ago.

Sure thing. I look forward to hearing how you go.
Customer: replied 1 year ago.

Okay, Hornsby court provided me with the following information: "The Act and Section which you were charged under was Crimes Act 1900
Section 117 Shoplifting (Larceny)." They also provided me with a PDF which is titled "Advice of Court Result". If you need any details listed on that PDF, just let me know. I hope this will give you the tools you need to answer my question.

Expert:  Sean replied 1 year ago.

I was hoping that wouldn't be the case. Larceny under section 117 of the Crimes Act 1900 carries a maximum sentence of 5 years' imprisonment. That is because it is a provision that capture all forms of larceny, whether large scale or small crimes like shoplifting. Sometimes people will get charged under a less serious section, like the public order offences, which carry much smaller maximum sentences, but this is not the case here.

The only other thing I can think of is to look at the Advice of Court Result and see if anything changed about your charges between when you were charged and when you were convicted. It may be that the court recorded the offence under a different section. This is something that could happen. Perhaps you could upload the PDF so I can take a look at it?

Here is how you attach a document:

First type some text, anything - just a few words. Then highlight the words with your mouse.

Once you have done that, click the chain icon between the happy smiley face and the tree.

A pop up window will open. The first line should say Link URL. At the end of it there is a little square icon with a blue line at the top.

Click it and an attachment upload box will pop up.
Expert:  Sean replied 1 year ago.
Good evening.

I'm checking in to see if you need any more help with your situation. If you do, please let me know and I would be happy to answer any further questions you have. If not, I would appreciate if you could accept and positively rate my answer. I only get paid for my work in answering your question if you leave positive feedback. Thank you.
Customer: replied 1 year ago.

Hi, I have no issues uploading the PDF, but does that mean that everyone who visits justanswer.com can see/download the PDF? I wouldn't want my information freely available for everyone to see for obvious reasons. If you can let me know, that'd be great. An alternative would be that I type up whatever is in the document as that might still give you the information you need without compromising my personal details? Thanks.

Expert:  Sean replied 1 year ago.

Actually what you could do is email it toXXX@XXXXXX.XXX and ask for it to be forwarded to AustralianLawyer in the Australia Law category. They will then forward it on to me. It goes via the US so will get to me tomorrow, but that would be the safest way to do it.
Expert:  Sean replied 1 year ago.

Hi there,

I've received your Advice of Court Result. Unfortunately it doesn't change the fact that you have been charged with larceny, which carries a maximum penalty of 5 years' imprisonment.

The reference to "Shoplifting value <=$2,000" is a recognition that it is a minor offence and the prosecution does not need to present a detailed brief of evidence of a guilty plea. However, it does not change the fact that you were guilty of larceny and under section 117 of the Act it carries a punishment of 5 years. Obviously you would never get this for an offence like yours, but it is the maximum nonetheless.

I wonder if you got an expert opinion from a lawyer in Australia to say in practice what the maximum penalty would be for an offence like yours', whether that would satisfy the US immigration authorities. Perhaps you could ask your immigration lawyer whether this would be accepted?
Expert:  Sean replied 1 year ago.

I'm checking in to see if you need any more help with this. If you do, please let me know and I would be happy to answer any further questions you have. If not, I would appreciate if you could accept and positively rate my answer. I only get paid for my work in answering your question if you leave positive feedback. Thanks.
Customer: replied 1 year ago.

Hello, just one last question I suppose. As I mentioned in my original question, I did some research myself prior to using JustAnswer and I came across The Judicial Commission website (http://www.judcom.nsw.gov.au/publications/benchbks/local/Crimes_Act.html). I don't know how official that site is and/or how correct, but they mentioned the following under section 117: 20 pu and/or 2 yrs if value not over $2000. So does that mean that the maximum penalty could only have been 2 years or am I reading it wrong? Could it still have been a 5 year sentence? Both time frames are obviously outside the 1 year mark I was hoping for, and whether the final answer is 2 or 5 perhaps doesn't make a difference for my PR application, but I'd still like to know so I can pass on the correct answer to the US immigration lawyer. If you could have a quick look at the website link I pasted above that'd be great. Thanks.

Expert:  Sean replied 1 year ago.

That table is taken from a Bench Book, which is like a judges aid for sentencing. The figures in the table are guidelines for sentencing, but you will see below them there is a figure in brackets, which is five years. This is the maximum penalty that is found in section 117. You could use this to show that you would never get over 2 years for an offence like this (and practically you would never get any prison sentence), but if they want to know the maximum penalty under the Act it is still 5 years.
Sean, Experienced lawyer
Category: Australia Law
Satisfied Customers: 855
Experience: Law degree with 1st class honours from Australian National University.
Sean and other Australia Law Specialists are ready to help you
Customer: replied 1 year ago.

Hello again Sean, I'm not sure if I can still ask a follow-up question? If not, just let me know. I passed the information you gave me on to the US immigration lawyer but for some reason things are still not clear to him. He wrote: 'I know a local court cannot ever give you more than 2 years. You need to ask a local criminal lawyer this question.' I told him that things might work differently here in Australia compared to the US and I also told him that my understanding is that the maximum sentence the judge at the local court could have given me, had he so desired, was 5 years. The US lawyer replied: 'You simply need to ask: for the offence that you committed, what is the maximum sentence the local court could have given you? I do not believe the answer is 5 years, it could be 1 or 2 however.'


Now, I thought you had already answered this question (I've re-read your answers many times), but maybe I'm missing something. The US lawyer seems to be under the impression that a local court cannot give out anything above a 2 year sentence; that anything over that would have to go through a district court (not sure what the Australian equivalent of that is). If you could assist one last time, that would be greatly appreciated.



Many thanks in advance!

Expert:  Sean replied 1 year ago.

Hello again.

I'm glad you've come back about this because I've researched it again and I'm pretty sure I've found what you need now. Either what your lawyer came back with made it more clear or I missed this last time, but now I think I have what he is looking for.

So under the Crimes Act larceny is punishable by up to 5 years imprisonment.

However, under section 267(2) of the Criminal Procedure Act 1986 (NSW), the maximum term of imprisonment that the Local Court may impose for that offence is 2 years or the maximum term of imprisonment provided by law for the offence, whichever is the shorter term.

Therefore, the maximum term of imprisonment that the court could have imposed on you is 2 years.

I think that clarifies what you are looking for, but unfortunately it is still higher than the 12 months that you needed to get in via the exception in US immigration law.

Hopefully your US lawyer can come up with another idea for you.

Regards,
Sean

Customer: replied 1 year ago.
Many thanks Sean! It all makes sense now.

Kind regards

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Sean
Sean
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Law degree with 1st class honours from Australian National University.