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. Terms of imprisonment must
be imposed for a minimum term of one
month for any person found guilty
for a second offence of driving a
motor vehicle whist their licence is
suspended or whilst they are
disqualified from holding a licence.
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
deterrence, rehabilition 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 erroded and the judiciary loses
its independance.
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 Laws and 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, some 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 impose
mandatory sentencing. If a court
imposes a sentence which is
considered too light, the Attorney
General (currently Mr Hulls) 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 15 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. 25 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%
he loses his/her licence for 6
months. If it is 0.12%, it is 12
months. This driver will often lose
his job when he loses his 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 man/woman
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, no mandatory licence
loss and no demerit points 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,
deterence 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
By
GABRIELLE COSTA
STATE POLITICAL REPORTER
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 mandatorily
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).
