Criminal defence in NSW: what to do when you are charged

A charge is not a conviction. That distinction matters more than almost anything else, and it is one of the first things a criminal defence lawyer will tell you.

Being charged with a criminal offence in New South Wales sets a legal process in motion, but the outcome of that process is not predetermined. The evidence needs to be tested, the charge needs to be proved to the required standard, and at every stage there are decisions to be made that directly affect what happens to you. Getting the right advice early gives you more options, not fewer.

This article explains what happens after a criminal charge in NSW, what your rights are, and what a criminal defence lawyer does at each stage.

Your right to silence

You have the right to remain silent when questioned by NSW Police. This applies whether you are under arrest, at a police station voluntarily, or approached at the roadside.

Exercising this right is not an admission of guilt. Police are trained to conduct interviews in a way that obtains usable statements. Everything you say in a police interview is recorded, admissible in court, and will form part of the brief of evidence used against you if charges proceed.

Before any formal police interview, you have the right to speak with a lawyer. Use it. A criminal defence lawyer will advise you on whether to answer questions, what to say if you choose to, and how to protect your position. What you say in the first hour can close off options that would otherwise be available six months later.

If you have already been interviewed without legal advice, that does not mean it is too late. Evidence can still be challenged, admissions can still be contextualised, and a lawyer can still mount an effective defence. But the earlier representation is in place, the better.

Bail: getting out of custody

If you are charged and held in custody (whether at the police station or remanded by a court), bail is the immediate priority.

In NSW, bail is governed by the Bail Act 2013 (NSW). Police can grant bail at the station for less serious matters. More serious charges require a bail application in the Local Court, District Court, or Supreme Court, depending on the offence.

A bail application requires clear, well-prepared submissions about your circumstances, your ties to the community, your risk of failing to appear, and the conditions that could adequately manage any concerns the prosecution raises. Remand in custody is not just unpleasant; it limits your ability to participate in your own defence, consult with your lawyer, maintain employment, and manage family responsibilities.

The earlier a bail application is made, the better. Tony Cullinan appears at bail applications across the NSW South Coast, including at Nowra, Batemans Bay, Bega, and surrounding Local Courts.

The brief of evidence

After charges are laid, the prosecution is required to disclose the evidence they intend to rely on. This is called the “brief of evidence” or “brief of prosecution.” It includes:

• Police statements and witness statements
• Records of interview (your police interview, if any)
• CCTV footage or other surveillance
• Medical or forensic reports
• Prior criminal history (relevant to bail and sentencing)

A criminal defence lawyer reviews the brief carefully, not just to understand what the prosecution is relying on, but to identify what is missing, what is inconsistent, and what elements of the charge the prosecution may not be able to prove.

Many criminal matters that look straightforward from the outside are far more nuanced once the brief is reviewed. Witness accounts conflict. CCTV does not capture what the police statement says it does. The forensic report does not support the conclusion drawn from it.

The brief review is where most of the real work of criminal defence happens.

Pleading guilty or not guilty

The decision to plead guilty or not guilty belongs to you, always. A criminal defence lawyer’s role is to make sure that decision is informed.

That means being clear with you about:

• What the evidence actually shows
• What elements of the charge the prosecution must prove
• What the realistic range of sentencing outcomes looks like if you plead guilty
• What the prospects are if you contest the matter
• What an early guilty plea discount means for your sentence

Under the Crimes (Sentencing Procedure) Act 1999 (NSW) and the guideline judgments that have followed it, an early, unambiguous guilty plea attracts a sentencing discount, generally up to 25% off the sentence that would otherwise be imposed. The earlier and cleaner the plea, the larger the discount.

Where the evidence is strong and a guilty plea reflects the reality of the situation, entering a plea at the earliest opportunity and presenting strong mitigation is often the most effective strategy. Where the prosecution’s evidence is weak, contested, or legally flawed, a not guilty plea and a contested hearing may be the right path.

Neither option is automatically better. The right advice tells you which applies to your situation.

The court process in NSW

Most criminal matters are dealt with in the Local Court, which handles summary offences and the early stages of indictable matters. The magistrate determines the case; there is no jury.

More serious indictable offences are committed (transferred) to the District Court or Supreme Court, where matters are heard before a judge and, for the most serious charges, a jury. The District Court handles mid-range indictable offences, most drug supply charges, assault causing grievous bodily harm, robbery, and similar matters. The Supreme Court handles murder, manslaughter, and the most serious categories of sexual and other offences.

A criminal defence lawyer advises you at each stage: appearances, directions hearings, committal proceedings, and ultimately the hearing or trial itself.

Sentencing in the Local Court

If you plead guilty or are found guilty in the Local Court, the magistrate has a range of sentencing options available. In order of increasing severity:

• Dismissal (section 10(1)(a) CAN): the charge is dismissed without a finding of guilt. No conviction, no penalty. Available in appropriate cases and requires strong submissions.
• Conditional release order (CRO) without conviction: no conviction is recorded, but you are placed on a good behaviour order for a set period. A breach has consequences.
• Conditional release order with conviction: a conviction is recorded, but no further punishment. Bond period applies.
• Fine: a financial penalty. A conviction is recorded.
• Community correction order (CCO): structured supervision in the community, which can include community service hours, rehabilitation programs, or curfew conditions.
• Intensive correction order (ICO): served in the community but with intensive supervision. Effectively an alternative to imprisonment for sentences up to 2 years.
• Full-time imprisonment: custody. The Local Court can impose sentences up to 2 years for a single charge.

The quality of sentencing submissions (your personal circumstances, your character, your remorse, the context of the offending, and the absence of a prior record) directly affects where within this range the magistrate lands.

Criminal appeals

If you are convicted or sentenced in the Local Court, you have the right to appeal to the District Court. The appeal is conducted as a fresh hearing: new evidence can be led, witnesses can be called, and the matter is heard afresh as if the Local Court proceeding never happened.

Appeals from the District Court on questions of law go to the NSW Court of Criminal Appeal.

Appeals are time-limited. An appeal from a Local Court conviction must generally be filed within 28 days of the sentence date. If you are considering an appeal, act quickly.

The practical stakes

A criminal conviction in NSW creates a criminal record. Depending on the nature of the offence, this can affect:

• Employment, particularly in government, healthcare, education, childcare, and licensed professions
• Working With Children Check clearances
• Firearms licences
• Professional registration (lawyers, nurses, accountants, financial advisers, real estate agents)
• Visa status and immigration applications
• Security clearances for government or defence work

For many clients, the ancillary consequences of a conviction are more significant than the immediate penalty. A $500 fine is one thing. Losing a nursing registration or a Working With Children clearance is another. Understanding the full picture of what is at stake is part of what a specialist criminal defence lawyer does.

Drug offences in NSW

Drug offences are among the most frequently prosecuted criminal matters in NSW Local Courts, and one of the areas where the difference between good and poor legal advice is most visible in outcomes.

NSW drug offences are governed primarily by the Drug Misuse and Trafficking Act 1985 (NSW). The most important distinction in that Act is between possession and supply. Possession of a prohibited drug for personal use is a less serious offence. Supply (which includes selling, distributing, and in some circumstances simply possessing a quantity above the relevant threshold) is a more serious indictable offence carrying substantially higher penalties.

Possession and diversion options

For a first offence of possessing a small quantity of a prohibited drug, diversion options are available. The MERIT scheme (Magistrates Early Referral Into Treatment) allows eligible offenders to be diverted into drug treatment rather than prosecuted. A Section 10 dismissal (no conviction recorded) is also available where the circumstances support it: a small quantity, no prior record, strong character evidence, and genuine remorse.

These options are not automatic. They depend on the drug, the quantity, your history, and how your matter is presented. A criminal lawyer advises on whether diversion is available and puts the case forward effectively.

Supply and trafficking charges

Supply charges frequently arise not from being caught selling, but from possessing a “trafficable quantity” of a drug, an amount the law deems sufficient to constitute supply, regardless of whether any transaction occurred. Trafficable quantities vary by drug type and are defined in Schedule 1 of the Drug Misuse and Trafficking Act.

A supply charge carries a maximum of 15 years imprisonment in the District Court. Large commercial quantity drug supply carries a maximum of life imprisonment. These are serious matters requiring experienced specialist representation from the earliest stage.

For offences involving interstate or international movement of drugs, the AFP may investigate and charge under the Criminal Code Act 1995 (Cth), which carries its own penalty framework.

If you have been charged with a drug offence (possession, supply, or trafficking), do not speak to police about the allegations before getting legal advice. What you say in a recorded interview is used in evidence and can significantly affect the outcome of your matter.

Cyber crime and technology offences

Cyber crime (criminal conduct carried out through or targeting computer systems, digital devices, and online networks) is increasing across regional NSW. The South Coast is not immune. Charges in this area range from low-level unauthorised computer access to serious Commonwealth offences prosecuted by the Australian Federal Police.

Common cyber crime charges include:

• Unauthorised access: accessing a computer or network without permission, under section 308H of the Crimes Act 1900 (NSW) or Part 10.7 of the Criminal Code Act 1995 (Cth). Maximum penalties range from 2 to 10 years depending on the legislation and whether damage was caused.
• Computer fraud: obtaining a financial advantage or property by manipulating computer data, prosecuted under NSW and Commonwealth fraud provisions.
• Identity crime: using another person’s identity information obtained online. The Criminal Code Act 1995 (Cth) creates identity crime offences carrying up to 5 years imprisonment.
• Online stalking and harassment: using electronic communications to stalk, intimidate, or harass another person. This is prosecuted under both the NSW Crimes (Domestic and Personal Violence) Act 2007 and Commonwealth telecommunications offences under the Criminal Code.
• Child exploitation material: the most serious category, always a Commonwealth offence. Charges are laid under the Criminal Code Act 1995 (Cth), and sentences commonly include substantial terms of full-time imprisonment with lengthy non-parole periods.

The AFP investigates Commonwealth cyber offences (those with an interstate or international element, or affecting government systems). NSW Police cybercrime units investigate state offences. Both conduct lengthy, evidence-intensive investigations before charges are laid.

If police have contacted you, seized devices, or indicated you are under investigation for a cyber crime matter, seek legal advice immediately, before any interview and before any device is provided voluntarily. The investigative stage, not the court stage, is where the most important decisions are made.

Why specialist criminal defence matters

Tony Cullinan holds a Master’s degree in criminal law and practises criminal and traffic law exclusively. He has over 20 years of experience appearing in NSW Local Courts, the District Court, and the Supreme Court.

You deal directly with Tony. Not a junior solicitor. Not a paralegal. The person you speak to is the person who appears for you.

South Coast Criminal Lawyers is based in Bega and appears across the far south coast (Nowra, Shoalhaven, Eurobodalla, Bega Valley) and also in Canberra. If you are facing a criminal charge anywhere on the South Coast or in the ACT, call for a confidential initial consultation.