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).