15 January 2016
Happy New Year!
We have a client who has been charged with drink driving. This is his second offence within two years.
In 2013 he had a BAC 0.08 and in late 2015 - 1.01. He drove to attend the hospital as he had a broken jaw due to an unprovoked attack.
We are instructed to make a plea of guilty.
We would like to know what penalty may be imposed on him and if he would be eligible for a work licence?
Thanks and Happy New Year to you too!
In relation to the question, the matter of whether or not the client is eligible for a work licence can be disposed of shortly. The requirements for a work licence are covered in section 87 of the Transport Operations (Road Use Management) Act 1995.
For a person to apply for a work licence several criteria must be met (see section 87(5)):
So the short answer, given the facts of this situation, is that this client would not be able to apply for a work licence.
In terms of the penalty range that this client would be looking at, that is difficult to say on the instructions given.
This is due to the operation of the below sections of the Penalties and Sentences Act, which set out the considerations to be taken into account in sentencing.
Section 12 of the Penalties and Sentences Act sets out the considerations the court takes into account when considering whether to record a conviction or not.
Sections 9 and 11 of the Penalties and Sentences Act (below) set out the relevant considerations to be taken into account by the court when imposing a sentence:
9 Sentencing guidelines
(1) The only purposes for which sentences may be imposed on an offender are--(a) to punish the offender to an extent or in a way that is just in all the circumstances; or
(b) to provide conditions in the court's order that the court considers will help the offender to be rehabilitated; or
(c) to deter the offender or other persons from committing the same or a similar offence; or
(d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or
(e) to protect the Queensland community from the offender; or
(f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).(2) In sentencing an offender, a court must have regard to--
(a) the maximum and any minimum penalty prescribed for the offence; and
(b) the nature of the offence and how serious the offence was, including--(i) any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim given to the court under the Victims of Crime Assistance Act 2009, section 15; and
(ii) the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence; and(c) the extent to which the offender is to blame for the offence; and
(d) any damage, injury or loss caused by the offender; and
(e) the offender's character, age and intellectual capacity; and
(f) the presence of any aggravating or mitigating factor concerning the offender; and
(g) the prevalence of the offence; and
(h) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and
(i) time spent in custody by the offender for the offence before being sentenced; and
(j) sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing; and
(k) sentences already imposed on the offender that have not been served; and
(l) sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender; and
(m) if the offender is the subject of a community based order--the offender's compliance with the order as disclosed in an oral or written report given by an authorised corrective services officer; and
(n) if the offender is on bail and is required under the offender's undertaking to attend a rehabilitation, treatment or other intervention program or course--the offender's successful completion of the program or course; and
(o) if the offender is an Aboriginal or Torres Strait Islander person--any submissions made by a representative of the community justice group in the offender's community that are relevant to sentencing the offender, including, for example--(i) the offender's relationship to the offender's community; or
(ii) any cultural considerations; or
(iii) any considerations relating to programs and services established for offenders in which the community justice group participates; and(p) anything else prescribed by this Act to which the court must have regard; and
(q) any other relevant circumstance.
These sentencing guidelines do not apply to offences of violence. See s 9(3).
If the court imposes a sentence of imprisonment, including a suspended sentence, it must state in open court its reasons for the sentence.
11 Matters to be considered in determining offender’s character
In determining the character of an offender, a court may consider—(a) The number, seriousness, date, relevance and nature of any previous convictions of the offender; and
(b) Any significant contributions made to the community by the offender; and
(c) Such other matters as the court considers are relevant.
The court must take into account a plea of guilty and reduce the penalty it would have otherwise imposed had the defendant not pleaded guilty.
Apart from the specific disqualification periods specified in s 86 of the Transport Operations (Road Use Management) Act 1995 (Qld), most traffic offences have an automatic disqualification period which can be reduced by the magistrate to a minimum disqualification. This is the minimum that a magistrate can impose. It should be noted that the automatic disqualification is not the maximum that a magistrate can impose. The relevant legislation is section 187 of the Penalties and Sentences Act 1992 (Qld).
The disqualification period is ultimately at the discretion of the magistrate, and will depend on the circumstances of the case. Factors to be taken into account include the seriousness of the offence (e.g. the blood alcohol concentration), manner of driving, mitigating factors with respect to the context of the driving, the person’s character and driving record, whether there is any particular need for the person to possess a licence (e.g. work) and the danger to other road users.
Practically speaking however, if this was the client’s first drink drive offence, on that BAC reading he would be looking at a disqualification period of 3 to 12 months and a maximum fine of $2,356.
Unfortunately though, it is his second offence in 2 years. For a repeat drink drive offence, the client faces having his licence disqualified for up to 2 years and being fined up to $7,068 or being sentenced to a term of imprisonment determined by the court.
Of course, these are the maximum penalties, and in his situation he may not receive these. Mitigating factors that will need to be pressed in argument include the fact that his first offence was a very low-level one (i.e. a BAC of 0.08) and also the fact that at the time of the offence he was driving himself to hospital due to his jaw being broken in an unprovoked attack. Of course there could be other mitigating factors to be argued but these are not within the instructions in the question.
Regards
Mentor