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
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 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).
