Criminal law in NSW
Criminal infringement notices
Police can hand out an on the spot fine instead of charging you. Pay it and there is no conviction and no criminal record. Take it to court to clear your name and you are facing a criminal charge with a conviction at the end of it. That is the decision, and most people make it without knowing they are making it.
Do not elect to go to court because it feels unfair
A criminal infringement notice is the lenient outcome. Electing to have it heard converts it into a criminal charge, with a higher maximum penalty and a real prospect of a conviction that stays on your record for years. There are good reasons to elect, but wounded pride is not one of them. Talk to us first, on 0407 171 626 or 0407 534 594.
A criminal infringement notice, usually called a CIN, is a penalty notice for a criminal offence. Police have been able to issue them since 2007 for a defined list of minor offences, as an alternative to putting you before a court. The offences are set out in the Criminal Procedure Regulation, and whether you get one is entirely a matter for the officer.
Catron Simmons Lawyers act on criminal infringement notices across New South Wales. The advice is usually short, and it is usually worth having before you do anything, because the choice in front of you is not obvious and it cannot be unwound once it is made.
The list
What police can issue a CIN for
Police can only issue a CIN for an offence on the list, and only where you are an adult, you are not continuing to commit the offence, and you are sober enough to understand what you are being given. Everything else on that list still goes to court.
| Offence | Provision | Maximum if it goes to court |
|---|---|---|
| Larceny, where the value alleged does not exceed $300 | s 117 Crimes Act 1900 | 5 years imprisonment |
| Goods in custody | s 527C(1) Crimes Act 1900 | Imprisonment |
| Offensive conduct | s 4(1) Summary Offences Act 1988 | 6 penalty units or 3 months imprisonment |
| Offensive language | s 4A(1) Summary Offences Act 1988 | 6 penalty units, no imprisonment |
| Obstructing traffic | s 6 Summary Offences Act 1988 | 4 penalty units, no imprisonment |
| Unauthorised entry of a vehicle or boat | s 6A Summary Offences Act 1988 | Fine |
| Continuing intoxicated and disorderly behaviour after a move on direction | s 9 Summary Offences Act 1988 | Fine |
| Possessing a prohibited drug, small quantity | s 10 Drug Misuse and Trafficking Act 1985 | 2 years imprisonment or 20 penalty units, or both |
A penalty unit is $110. The fine on the notice itself is set by the Regulation and is usually in the range of a few hundred dollars, well below the court maximum. That gap is the single most important thing to understand before electing.
The four we see most
What these offences actually require
Larceny under $300
Almost always shoplifting. The prosecution must prove you took and carried away property belonging to someone else, without their consent, without a claim of right made in good faith, and intending at that moment to permanently deprive them of it. Intention at the time of taking is the element that matters. Walking out with something in the bottom of a trolley, or with an unpaid item because you were distracted, is not larceny, and it is the most common genuine answer to these allegations.
Larceny is an offence of dishonesty. That is why it matters more than the amount suggests. A conviction for dishonesty is the sort of thing that ends a career in accounting, financial services, teaching, nursing, security, aged care or anything requiring a working with children check. Paying the notice avoids the conviction entirely. Electing to go to court risks it in exchange for the chance to be found not guilty. See our page on larceny and property offences.
Obstructing traffic
The prosecution must prove you wilfully prevented the free passage of a person, vehicle or vessel in a public place, without reasonable excuse. Wilfully is the word to note. Accidental obstruction, a breakdown, or being caught in a crowd is not the offence. Reasonable excuse is a defence, and the burden of proving it falls on you.
These notices commonly arise out of protests, blockades, filming, works, deliveries and disputes with police over where a vehicle was left. It is a fine only offence, so there is no imprisonment on the table, but a conviction is still a conviction.
Offensive conduct and offensive language
Both require the conduct or the language to have occurred in, near, or within view or hearing from a public place or a school. Both allow a defence of reasonable excuse, and on offensive language the court can order community service instead of a fine.
Whether something is offensive is judged against contemporary community standards, by reference to a reasonable person, not by reference to how the individual officer felt about it. Swearing is not automatically offensive language, and courts have said so repeatedly. Where the words were directed only at police, or the location was empty at three in the morning, there is often something to argue. Whether it is worth arguing is a different question, and it depends on what a conviction would cost you.
Possessing a prohibited drug
The prosecution must prove the substance was a prohibited drug, that it was in your custody or control, and that you knew or believed it was there. Possession has to be exclusive: drugs in a shared car, a shared house or a borrowed bag are not automatically yours.
A CIN can only be issued for a small quantity, for personal use, to an adult, and not to someone who has already had two of them. Cannabis leaf is not dealt with this way at all, because it falls under the separate Cannabis Cautioning Scheme. Where a CIN is issued for drug possession, completing an approved drug and alcohol intervention program results in the fine being waived. Take that option. It is the best outcome available on a drug possession allegation and it costs you an afternoon. See our page on drug offences.
The real question
Does a CIN give me a criminal record?
No. Paying a criminal infringement notice is not a conviction and does not create a criminal record. You can properly answer no to whether you have any convictions, whether you have a criminal record, and whether you have pleaded guilty or been found guilty of an offence.
Two qualifications that matter.
- Police keep a record of CINs and can access it. It is not a criminal record, but it is not invisible either, and it will inform how police deal with you next time.
- Electing to go to court puts a conviction back on the table. If you are found guilty and convicted, the offence goes on your record and stays there for years, even though the matter started as a fine.
| Pay the notice | Elect to go to court | |
|---|---|---|
| Criminal record | No | Only if convicted |
| Chance of being cleared | None | Yes |
| Maximum penalty | The amount on the notice | The full statutory maximum |
| Cost and time | Neither | Legal costs, court dates, months |
What to do
Your three options, in order
Pay it by the due date
The matter ends. No conviction, no record, nothing further. If the allegation is broadly right and you can live with it, this is usually the answer, and a lawyer who tells you otherwise is not doing you a favour.
Ask for it to be reviewed
Revenue NSW accepts review requests and refers police issued notices back to NSW Police to decide. Worth doing where the facts are wrong, you were misidentified, or there are circumstances the officer did not know about. Free, and it does not expose you to a conviction.
Elect to have it heard in court
Right where you did not do it, where a dishonesty allegation would cost you your livelihood, or where a defence is genuinely available. Wrong where you simply resent it. Once elected, it proceeds as a criminal charge.
Deadlines run from the date on the notice, and they are short. Ask for a review or elect before the due date, and if the notice has already gone overdue, say so when you call rather than assuming it is finished.
When electing is the right call
- You did not do it, and there is something in the evidence to show it.
- The allegation is dishonesty and you work in a field where being accused of it, and accepting the accusation by paying, is worse than the fight.
- A defence applies on the face of the facts: reasonable excuse, a claim of right, drugs that were not yours, language nobody could have heard.
- You have been given a CIN before and the pattern is starting to matter.
How we help
Why clients bring these to us
An honest read on the odds
We will tell you if the answer is to pay it. That advice is quick, and it has saved clients from turning a few hundred dollars into a conviction.
We have been on the other side
Our team includes former prosecutors. We know how these matters are assessed once they reach a police prosecutor, and what makes representations work.
Section 10 applications
If you elect and plead guilty, the objective is a finding without conviction. That is a prepared application with material behind it, not a sentence said at the bar table.
You deal with a principal
We are a boutique firm. You talk to the solicitor who will appear for you, not a call centre, and we are contactable outside business hours.
Common questions
Criminal infringement notices: your questions answered
Is a CIN the same as a traffic fine?
No. A traffic penalty notice is for a traffic offence and usually carries demerit points. A criminal infringement notice is for a criminal offence and carries no points, but the offence behind it is one that would otherwise have taken you to court. Traffic notices are covered on our infringement notices and fines page.
Do I have to accept a CIN if police offer one?
You do not have to pay it, and you can elect to have the matter heard instead. What you cannot do is negotiate it. Police decide whether to issue a CIN or a court attendance notice, and it is entirely their discretion.
Will a CIN show up on a police check?
A standard national police check returns disclosable court outcomes, and a paid CIN is not one. Police hold their own record of CINs issued and can look at it. Some higher level checks and some regulatory processes reach further than a standard check, so if you are in an industry with a licensing body, tell us what the body asks for before you decide.
What happens if I just ignore it?
The same escalation as any other fine. A reminder notice, then an overdue fine with enforcement costs, then licence and registration action and civil enforcement. Ignoring it does not get you the court hearing you may have wanted, and it costs more.
Can I get more than one CIN for the same incident?
Yes. Offensive language and offensive conduct arising from the same argument, or a move on direction followed by continued behaviour, can each attract a separate notice. Where several arrive together, the total is worth reviewing as one problem.
I was given a CIN for drug possession. What is the intervention program?
An approved drug and alcohol intervention program, delivered by health providers rather than the courts. Completing it means the fine is waived. It is voluntary, it involves no admission before a court, and it produces the best result available on that allegation.
Send us the notice before the due date
Email us the criminal infringement notice and tell us what you do for a living. That second part decides most of these. We will tell you whether to pay it, seek a review, or elect, and what each one risks. We appear in Local Courts across New South Wales.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Open Monday to Friday 9am to 5pm, contactable outside those hours.