VIC Should I Plead Guilty for Theft I Didn't Do?

[Gai]

Hi, I was on site about 5 weeks ago asking for help, re shop theft.

I had left a chemist having a panic attack to go to my car to get medication and stayed til it took effect and returned the item. I have now been charged (item was $59.95., I am 66), this week. A solicitor on a free half hour consult told me to just go to a duty solicitor on the day of Mention and plead guilty cause I won't get a conviction or free legal aid cause there's no jail time and I can't afford a solicitor to run my case., or else run it myself.

I don't want to plead guilty cause I had no intention of stealing it and have been shopping there for 8 years. I also need a clean record as I teach drug and alcohol addicted youth in a shelter to try and get them engaged in education, plus I'm a pyjama reader to foster kids. I'm on a part disability pension and work part time. I don't have $3300 for a day's court.

She also said if I plead, I won't get a conviction. Not sure how she is so sure but I could fail in a court case and then I would be convicted.

I can't believe it costs so much money and that you have to plead guilty to something you didn't do? Is she right?

The store obviously says I didn't bring it back but I know I did, just not in their time frame in the camera. What should I do? Plead guilty - although I'm not? Yes, I took it from the store in a moment of severe panic but had no intention of keeping it. I was very confused. I was having an attack cause one of my students had tried to commit suicide the night before and they wouldnt let me in the hospital to see her as she was critical and I'm not family so I was very very upset.

Am I better to risk a trial? And if you plead guilty, what are you allowed to say?

Please help with your thoughts! It's too much money to even "pay off" for me. She said I can't get a diversion cause 40+ years ago I was charged with trespass in an industrial dispute and if you have been in a court room ever in your life, you are not eligible.

 

[Iamthelaw]

Please help with your thoughts! It's too much money to even "pay off" for me. She said I can't get a diversion cause 40+ years ago I was charged with trespass in an industrial dispute and if you have been in a court room ever in your life, you are not eligible.

This isn't accurate at all.

Was the charge 40+ years ago withdrawn?

You really should get the advice of a solicitor that practices criminal law.

 

[Iamthelaw]

She also said if I plead, I won't get a conviction. Not sure how she is so sure but I could fail in a court case and then I would be convicted.

This is not a given. I'm not sure how she could say that with certainty.

I don't have $3300 for a day's court.

$3k+ for a single day contested hearing for shoplifting? Is this just solicitor or solicitor and barrister?

 

[Gai]

This isn't accurate at all.

Was the charge 40+ years ago withdrawn?

You really should get the advice of a solicitor that practices criminal law.

Dear lamthelaw,

I hate to tell you, but she was a criminal lawyer or that's what the firms calls itself... So & so, Criminal
Lawyers.

That's what she said about the diversion. It was in the last 70's, in an industrial dispute/picket line thing. No, it was not withdrawn, it was a very high profile long running dispute and we all got a 6 months good behaviour bond from memory. There may have been a small fine. I really can't remember. It was so long ago.

In relation to not having a conviction if I plead guilty, I don't either. I took her to mean that I had no previous convictions or record but I don't understand how anyone could "know" what a magistrate may or may not do. Maybe she might know what is "likely" but that's not "knowing". I can understand a solicitor saying you won't get a jail sentence but that's different to claiming you know that I won't get convicted if you plead guilty.

And as far as I know, she was a solicitor not a solicitor/barrister. What should a solicitor cost for a day? And is it true that you can't have a legal aid solicitor represent you unless you might go to jail?

I don't know what to do. I got the feeling that she knew I didn't have money and she just wanted to get me out of there. It was very humiliating plus I don't think she believed me about returning the item. It was a very unpleasant and confusing experience!

 

[Iamthelaw]

Dear lamthelaw,
I hate to tell u, but she was a criminal
Lawyer or that's what the firms calls itself.. ., so & so, criminal
Lawyers.

That's what she said about the diversion..it was in the last 70's in an industrial dispute/picket
Line thing., No it was not withdrawn, it was a v high profile long running dispute and we all got a 6 months good behaviour bond from
Memory, there may have been a small fine . I really can't remember . It was so long ago.

In relation to not Having a conviction if I plead guilty., I don't either. I took her to
Mean that I had no previous convictions or record but I don't understand how anyone cld "know" what a magistrate may or may not do .. maybe she might know what is "likely" but that's not "knowing". I can understand a solicitor saying u won't get a jail sentence but that's different to claiming u know that I won't get convicted if u plead guilty

And as far as I know she was a solicitor not a solicitor/barrister.

What shld a solicitor cost for a day?
And is it true that u can't have a legal aid solicitor represent u unless u might go to jail?

I don't know what to do?
I got the feeling that she knew I didn't have money and she just wanted to get me out of there. It was v humiliating plus I don't think she believed me about returning the item.. it was a v unpleasant and confusing experience!

You've raised a number of valid points.

You should seek the advice of another criminal lawyer.

 

[Christian Farrelly]

HI Gai,

In law, there is nothing which stops a Diversion Order being granted because you have a prior record. It is Police policy that they usually only agree to Diversion for first time offenders but this is not set in stone. If your record is for a matter as you describe 40+ years ago, Diversion may still be possible but it is at Police discretion, so there is a bit of luck involved in who you happen to draw within Victoria Police.

It would still be worthwhile speaking to the Informant (officer who charged you) about whether they would consider Diversion if that is an avenue you want to pursue.

Even if a Magistrate does not convict you, you will still be found guilty of an offence and it will be on your Police Record for things like a Working with Children's Check. However, I am not sure whether a guilty finding of this nature would prevent you from keeping working with children approval.

You would need to make inquiries with the relevant Department of Justice area about that. I suspect it would not, but I do not know. The Working With Children Website has a full list of the relevant offences they are screening out, you can check it here:
List of offences - Working With Children Check, Victoria

I think you will find they are more worried about violent, sexual and serious drug charges, etc.

Legal Aid funding is very limited and because there is no real prospect of you going to prison on the facts you described, you will not qualify for Legal Aid. It sounds like you have a possible defence but no one will be able to advise you on the chances of successfully running that defence without taking your detailed instructions and reviewing the Police Brief of Evidence.

If you want to consider defending the matter you should act without delay because you would likely need to obtain CCTV footage from when you took the items back and that footage may be destroyed anytime, if it has not been already.

Regards,

Christian Farrelly, Melbourne Lawyer: Book Online | LawTap

 

[Gai]

Thank you Christian...

I really don't want to go with anything that involves a guilty plea but after speaking to legal aid, who told me that I would not even in all likelihood get the duty officers to help, let alone a solicitor to run my case. And hey, I get that, if it's a matter of putting resources to protect a child vs someone who's in trouble over a $59.95 aromatherapy dispenser. I'd spend the money on the child's safety, without question, so does legal aid. No help there!

I can't afford a lawyer. They are just ridiculously expensive. I've spent 4 years more on uni than a lawyer and I worked for $85,000 as a senior teacher: I have a B.ed, (secondary) B.arts (sociology & psych majors and AB. of youth work. Should have chosen law!

Anyhow, enough of that. Years ago, I would've defended myself but I'm not up to it now. I'm just gonna go and plead guilty and see what happens. I simply don't have a choice.

The barrister said you have to weigh up if you fight it. You could still lose and then there are less options conviction-wise for the magistrate.

I don't want to go down the diversion path. I would not give the police the satisfaction of saying no! Which they will cause the owner of the store and this particular policeman are besties.

My question is: if you plead guilty for whatever reason does a magistrate have to record a conviction? Do they have other options? Can they not record the conviction?

It's not so much working with children I'm worried about but I can't renew my teacher registration with a criminal conviction and secondly, this would never had happened if I had legal advice before speaking to the police. The pic of me leaving the store shows my legs. Not me with the item. I stuffed up big time talking to them without advice.

So are police allowed to ask you to come for a chat at 3pm, lead you into a room, tell you you are under arrest and being charged and then when you say "if I'd known this I would've taken legal advice first, to which they respond there's a yellow pages around here somewhere " and you have to decide what to do and I chose not to irritate them and just tell them what happened thinking they would believe me, are they allowed to do that? i.e. Ask you for a chat and then tell you in a room you are under arrest and being charged?

It doesn't seem right to me. That basically ensured I didn't get legal advice, plus surely they are supposed to tell you why they want you to come to a police station.

Can you clarify at all those 2 things for me re recording convictions and if you should know you are in a police station? Also are you allowed to say anything in your defense when you plead guilt or do you just plead guilty and sit down?

Any held would be appreciated.

 

[Christian Farrelly]

Hi Gai,

I very often have clients report that Police lied to them before their interview, usually to put the person at ease and get them to answer questions when it is often not in their interest to do so. However, once you were being formally interviewed you should have been formally cautioned about your right to silence and to speak to a lawyer, amongst other things. This should have been done and been recorded, if not then your admissions may not be admissible evidence.

It is very rare that Police would not caution someone about their rights at the start of formal interview though. It sounds like Police were sailing close to the wind if you expressed a desire to speak to a lawyer and they did not provide you with an opportunity to do so. However, to consider whether or not they afforded you your rights, I would need to review the DVD Record of Interview.

If you plead guilty you will have a criminal record. A Magistrate can find you guilty "with conviction" or "without conviction", it still goes on your record either way. If it is "without conviction" you will still have a finding of guilt regarding the charge on your record. "Without conviction" is more an indication that the Magistrate considered it a minor matter, so did not record a conviction - but it still appears on your record.

Yes, in general people should most certainly say things on their behalf when pleading guilty. However, you can not plead guilty and say but I didn't really do it, if you want to argue that you need to actually defend the charge. But you can explain your circumstances, your panic attacks, your history of contributing to the community through voluntary work and teaching etc to ask the Magistrate for a lenient penalty. Legal Aid have information for people who intend to represent themselves that may assist: Representing yourself in a criminal case | Victoria Legal Aid

You can also speak to the Legal Aid duty lawyer on the day who can give you some guidance about what to say even if they cant represent you in Court. If you were pleading guilty to such a simple matter my legal fees would be significantly less than $3300 you had discussed above, and I also provide an initial case assessment free of charge.

I understand you not wanting to deal with Police but if you are considering pleading guilty, I strongly recommend you at least ask about Diversion. If Police and a Magistrate agree to Diversion, a Magistrate will make some conditions such as that you are of good behaviour for a several months; that you write a letter thanking the Informant for recommending Diversion; and perhaps a modest financial contribution to a charity. If you comply with those conditions, then the matter is dismissed - which means you do not get any record.

Regards,
Christian Farrelly, Melbourne Lawyer: Book Online | LawTap

 

[Gai]

Hi Christian,

What an informative response. Thank you so much for your clarity. I'll just say this on this forum:

I think they sailed very close to the wind re the solicitor. It was more like me actually stating, "I really really wished I'd been informed I was being charged before I came here cause I thought I was here for a chat and everyone knows you shouldn't to speak to the police when you've been charged before speaking to the police".

Their response was: Do you have a solicitor?

I said "no" and they said "well, I think we have a yellow pages around here somewhere. You can speak to one, but they can't be in here". I said: "a phonebook's not really much of a realistic option. I wouldn't know where to start".

They said: Well, what's your answer?

And I replied: Well, I might as well go ahead as it could take hours to find a solicitor. They said OK, then opened their file and turned the tape on and then started with the list of name, etc, etc.

Do I identify as an indigenous person, then something like "have u been offered a solicitor"? And I remember thinking, I've been offered a phonebook, but I just answered yes. I may have said something else : "I'm not certain", but it could not have been too prejudicial to them or they probably wouldn't have proceeded. That's wrong! How does that constitute a genuine offer of a solicitor? And I was so shocked at being under arrest, I couldnt think straight. And since I thought I was innocent I just kept telling myself it would be ok, just tell the truth. I am such an idiot!

I get what you say about not being guilt of half of the charge. It's either all or nothing, but in my statement I said, it was dimwitted to leave with it but why would I steal it?

It's going to be a very, very difficult case to win. It's going to come down to minute detail. I need a solicitor that will fight for me and understand though it's a "trivial" theft as legal aid called it, (and I'm not having a go at legal aid cause I understand that it is in the overall scale of theft), but it's my reputation and my ability to do my job. I don't want a criminal conviction.

Well not without defending myself.

I'm so angry that I've spent a fortune in that store. My daughter and myself had a chat to all the staff and they went straight to the police without even asking me for an explanation.

Anyhow to get off this forum, I just wanted to add that there was def a "good cop/bad cop" going on and when the interview was finished. The good cop said "you seem a little vague"! Then he said "you could go for a diversion but oh, you're not eligible for one".

I didn't even ask why. I just wanted to leave.

Anyhow I'm thinking I need to speak with you and I don't know, obviously, I need to contact you independently and have a chat!

You probably don't discuss fees and your diary on a public forum. But that's why the diversion hasn't been on my mind cause he said that.

I'm going to ring in the morning. I thought I might tell him I'm defending myself at the present moment and I would like, I don't know, an answer to the diversion exclusion and witness statements and whatever else I'm supposed to have!

Is that a good idea?

 

[dani.t.]

Hi, I have plead guilty to charges. I should have fought and regret it immensely. Don't do it - if it's not too late.

I hold a Yellow card (work with disabled people) and all my convictions were not held against me, but they are old, 1999 is the latest. Yes, if you plead guilty it definitely is on your record regardless.

If you get a conviction, a magistrate cannot accept a guilty plea if you say I didn't do it! The Duty Solicitor at the court will help defend you for free.