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Mandatory Sentencing in Victoria

In Victoria, mandatory sentencing comes in the form of mandatory licence loss in the vast majority of drink driving and drug driving related offences, in some speeding offences, and for all dangerous driving offences. 

When sentencing a driver for any offence, a defendant is entitled to present to the Magistrate any mitigating information that the driver wishes the court to take into account in sentencing. The court usually takes into account matters such as: the circumstances and gravity of the offence, the offender's driving history, his/her good character, need for a licence, age, etc. The Magistrate is obliged under sentencing practices and laws to give consideration to the following factors when sentencing: the need to punish the offender, the need to deter others from offending and the need to rehabilitate the offender so that s/he is less likely to re-offend.

When mandatory sentencing is applied, all the usual mitigating factors become largely irrelevant. The sentencing principles of specific and general deterrence, rehabilitation and punishment become irrelevant. The sentence is imposed by reference to a legislative table of minimums with an increase above the minimum in rare deserving cases. The circumstances of the offence and the offender are now largely irrelevant. The doctrine of separation of powers is eroded and the judiciary loses its independence.


Why do we have mandatory sentencing?

Mandatory sentencing tends to develop in the following way. A court which hears all the mitigating factors at a sentencing hearing might impose a sentence on an offender which could be considered lenient. Talk-back radio jocks then fan outrage amongst those who have nothing better to do than listen to Price, Laws or Mitchell all day. The political parties monitor talk-back radio as it is considered one of the best ways to gauge the pulse of the nation's collective thinking. (Indeed,  many callers are party staff pushing party ideology). The politicians then pass legislation to appease the outraged and hopefully win political support and more votes.

The Herald Sun recently conducted a survey of readers asking whether they believed Victorian sentences were too light and ought to be toughened. It is worth noting that most of their readers probably know nothing more about a criminal case than what they read in the Herald Sun. On the other hand judges have had years of experience and university training in law , criminology and sentencing. Unlike Herald Sun readers the judges were in court listening to all the evidence of the case including all of the sentencing evidence regarding rehabilitation and mitigation. The newspapers are often responsible for printing garbage about the criminal cases and the sentencing processes:

Daryl Somers says he is a 'bloody idiot' for drink driving. But if the former host of Hey Hey It's Saturday wasn't such a famous 'bloody idiot', he may not have escaped a licence suspension when found guilty. Police say the minimum sentence for ordinary folk who blow 0.098, nearly double the legal 0.05 limit, is a six month licence suspension and a $300 fine. But Melbourne magistrate Kate Hawkins dismissed the charges on the condition he donates $600 to charity. No conviction was recorded. (Source: The Age, June 2001).

The truth is that in 2001 the vast majority if drivers could have kept their licence for a first offence of 0.098%, but because of articles like that printed in the Age and other papers, that is no longer the case. It is no wonder readers are amazed at the outcomes in court cases when they were not in court to hear the evidence, have almost no idea of the legal processes and philosophy involved, and the journalist gets it all wrong anyway. It is common for lawyers to read articles about court cases and be left more confused than enlightened as to what actually happened.

When people complain about light sentences, politicians react in the only way they know - toughen sentencing which often means imposing mandatory sentencing. If a court imposes a sentence which is considered too light, the Attorney General always has the option of requesting the DPP to lodge an appeal against the light sentence. An appeal court will increase the penalty if indeed it is too light. When a government opts for mandatory sentencing, it demonstrates that the government is not interested in seeking justice in sentencing. It probably knows an appeal would be a waste of time because the sentence is probably quite reasonable in all the circumstances of the case. Instead it panders to the ignorance and prejudice of voters by imposing mandatory sentences. No politician will dare wind back mandatory sentencing for fear of being accused of being soft on crime, or more importantly being soft on drink driving. That would not go down well on talk-back radio.

In the past 20 years the penalties for drink driving have increased dramatically. There is now mandatory licence loss for offenders who are over .06% for a first offence. 30 years ago it was legal to drive at 0.08%. Most first time offenders have never had any formal drink driver education. There is no requirement for any driver to be educated about drink driving before they get their licence. Repeat offenders are required to do a drink driving education course. Drivers, especially those who have had no drink driver education, have no way of knowing with any certainty what their BAC is, unless they carry expensive testing equipment with them. Victorian law makes it illegal to sell those cheap imported breath test devices which do not carry Australian Standards certification. When a first time driver tests .07% they lose their licence for 6 months. If it is 0.12%, it is 12 months. This driver will often lose their job when they loses their licence. The loss of a job can result in loss of income, taxes are no longer paid, dole is received, mortgages can not be paid, marriages break down and children suffer. A working person is an asset to society. It does seem to be overkill to assume that the loss of a drivers licence for 6 to 12 months is required to combat the harm that may arise from drink driving at relatively low levels. After all, stopping your car on a railway level crossing carries a small fine and no mandatory licence loss but it is probably the most dangerous and stupid thing you can do in a car.

The harm suffered by the community from having first time low level offenders lose their licence and jobs should be balanced with the harm that arises from driving with readings between .05% and .10%, together with the usual sentencing philosophies of rehabilitation, deterrence and punishment. In most sentencing situations, the court can order counselling, treatment, community work etc as a means of punishing people while retaining them as valuable members of the community. At present, the courts are prohibited by legislation from performing any such balancing in drink drive cases. When deciding whether to cancel a person's driver's licence, Magistrates are not allowed give any consideration to the prospects of rehabilitation or the propensity to re-offend. No consideration is permitted to be given to mitigating circumstances, good character, the need for deterence or punishment except when it comes to how much money the driver will be fined. If things are so bad that we need mandatory sentencing to solve the problem, why do we not have mandatory driver education, or mandatory breath test devices in all cars? It is politically easy to blame the drivers. It is politically difficult to find money to budget for better driver education or to subsidise the cost of putting breath test devices in all cars.

Almost any day of the week you can go to a Magistrates Court and hear a Magistrate say to a defendant: "If I had any discretion I would not take your licence from you. It is your first offence in 18 years of driving with strong mitigating circumstances and you would normally deserve a second chance. But Parliament has forced me to suspend your licence for 6 months".



Comment on changes to mandatory sentences in Victoria's drink driving laws.

On 31 October 2001 The Age reported that the Victorian government intended to pass legislation removing the sentencing discretions of Magistrates in drink driving cases following the outcry in the Daryl Somers case. The article is re-produced below.


The Age article is reproduced in blue.

Comments by Sean Hardy are in burgundy.


Tougher penalties for drink drivers

Wednesday 31 October 2001

The Victorian Government has moved to stop drink drivers from mounting court challenges to keep their licences.

Transport Minister Peter Batchelor yesterday outlined new laws that would limit the discretionary powers of courts, forcing a minimum six-month driving ban for any drink-driver who recorded a reading of .07 or more.

Under current laws, penalties apply to fully licensed drivers who record a blood alcohol level of .05 and above, while those who exceed .1 instantly lose their right to drive. But courts can allow a driver to keep their licence if a reading falls between these levels.

Generally drivers do not 'instantly' lose their right to drive. Only in exceptional circumstances will police take away a driver licence instantly, and that is available when the driver is over 0.15%, not 0.10. Otherwise the matter tends to proceed to court before the licence is lost. The licence will also be lost in certain cases if no objection is taken within 28 days of an on-the-spot-fine.

Mr Batchelor said too many drivers able to employ highly qualified lawyers were successfully challenging drink-driving charges, resulting in an "inconsistent and unfair application of the rules".

The only cases in which highly qualified lawyers actually "challenge" drink driving laws are when cases are defended (and the majority are not challenged successfully). Only a small percentage of drink driving cases are defended. Most people just accept the penalty. And only a small percentage of the defended drink driving cases end in acquittal. If this is "too many drivers", it would seem that this Government considers any person who successfully defends a drink driving charge as "one too many". The vast majority of drivers with a reading between 0.05 and 0.07 do not defend drink driving charges because the driver (currently) has a much greater chance of keeping his licence if he pleads guilty and encourages the Magistrate to exercise his discretion in the drivers favour. [This has since changed. First time offenders do not need to go to court to save their licence if their reading is less than 0.07%] By increasing penalties and removing discretion, more drivers will have no choice but to challenge the charges if they wish to avoid licence loss, so the changes are likely to have the opposite effect to that which the Minister suggests.

When mandatory sentences are harsh and over-burdensome the courts sometimes impose a lighter sentence which is within their discretion rather than impose an unjust mandatory sentence, e.g. imposing a fine without conviction and no licence loss because the only alternative available under the legislation was to convict and impose a mandatory 6 months cancellation. This results in more criticism of Magistrates imposing light sentences....

"Every driver knows that it is illegal to drive with a blood-alcohol limit of .05 or above," he said.

Until the government introduces mandatory personal breath test devices, every driver is merely guessing what his or her blood alcohol content might be and probably has very little idea whether they are over or under 0.05%.

"Yet under the current system more than half of first-time offenders who choose to contest their drink-driving offence in court get to keep their licence."

A large majority of first time drivers do not contest their drink driving charges. Instead, they plead guilty to drink driving or pay the on-the-spot fine. They do not challenge the allegation that they have committed an offence. They do not contest anything. Batchelor is referring to drivers who go to court and plead guilty to the offence and ask the court to give them a chance to do better. By pleading guilty they acknowledge that they have breached the legislation. They then rely on the sentencing laws to ask the Magistrate to let them keep their licence. The Magistrate currently has various sentencing options, including fines and licence cancellation. By allowing first time offenders the chance to keep their licence, these drivers invariably plead guilty in order to achieve that end. If they plead not guilty and try to challenge the charges, they very often lose that challenge and also lose their licence. Pleading guilty is not an attractive solution if the result is mandatory licence loss. If mandatory licence loss is faced by a driver who pleads guilty, then his only option is to plead not guilty if he wishes to keep his licence. This will mean most first time offenders will plead not guilty and will take cases to contested hearing. At present more than half drink driving charges are against first time drivers in the range of 0.05 and 0.10, where they are currently pleading guilty in the hope they can keep their licence. If the changes to this law are intended to reduce the number of defended cases, the Government will be very disappointed because the inevitable result will be a far greater number of challenges and more police off the road spending time in court at the contested hearings. The tighter the mandatory sentencing becomes, the greater the chance that a driver will employ a lawyer to challenge the charges in court as this is the only way of avoiding mandatory sentencing.

He denied the changes had been brought about by a particular case. Recently, media personality Daryl Somers escaped conviction and kept his licence after registering a blood-alcohol level of .098.

Daryl Somers received a sentence which Mr Batchelor correctly states is similar to what most first time offenders are receiving. Most people, whether or not they are Daryl Somers and whether or not they have highly or even poorly skilled lawyers representing them, stand a good chance of keeping their licence for a first time offence with a reading between 0.05 and 0.10.

Under the proposed new laws, first-time offenders with sound driving records who recorded .05 or .06 would lose 10 demerit points.

In 1994 the Parliamentary Committee for Road Safety reviewed the question of demerit points in drink driving matters and concluded that as the penalties for drink driving were already very severe the additional burden of loss of demerit points was not warranted. A driver loses 3 points for not wearing a seat belt, which is clearly an offence that can only be committed intentionally and not through ignorance. By inadvertently and often unintentionally driving while your BAC is 0.05%, a driver will lose over 3 times that number of points.

"This means that those people with a good driving record will be put on notice, while drivers who already have two or more demerit points risk licence suspension, or may choose to retain their licence with the risk of a double suspended period should they accrue any further points in the next year," Mr Batchelor said.

The 10 points will remain on your record for the next 3 years, Those drivers who chose to retain their licence risk a 3 month suspension if they re-offend during the next 3 years, and risk a 6 month suspension if they re-offend in the following 12 months.

Law Institute of Victoria president John Corcoran said lawyers welcomed any changes to cut the road roll, but the institute would "caution against" the overuse of mandatory penalties generally.

The proposed changes remove most of the remaining licence sentencing discretion which a Magistrate has in a drink driving case. It produces a sentencing mechanism where citizens are mandatorly sentenced by the administrative procedures of executive government. The power of the judicial branch of government is significantly reduced. If these changes are effected, the only discretion left is whether to cancel a licence for more than the minimum period in the worst cases, and to adjust the amount of the fine. The only way in which a driver can ask a Magistrate to consider whether or not he should lose his drivers licence would be to plead not guilty and contest the charges. The government should also consider the consequences that strict mandatory sentencing will have on the drivers, some of whom will no doubt object to being sentenced without being afforded any sentencing discretion. Some may chose to ignore the administrative sentence imposed by the Government on the basis that they believe that their either their personal circumstances or the circumstances of the offence have not been taken into account. Indeed, they have not and this can result in disrespect for the sentence imposed.

Opposition transport spokesman Geoff Leigh also backed the initiative, but said the government was sending mixed signals to motorists.

Campaigns to reduce the road toll by encouraging drivers to lower their speed were creating confusion, with drivers constantly checking their speedometer, he said.


Sean Hardy
31 October 2001
(The comments above are made in relation to the law as it was in 2001).





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