0000068753 00000 n 0000003256 00000 n You will then be taken to a police station where you will be searched, photographed, have your fingerprints and DNA taken and held in a cell. When you’re facing prosecution for driving whilst disqualified, you need expert legal advice to help you argue your case and limit the sentencing against you. As explained by Lander J, in Cadd (at 201): For each further offence of driving whilst under suspension the prospects of the offender being imprisoned and/or failing to satisfy a sentencing Magistrate that good reason exists for suspending the sentence, increase. O�0`�DU�]�$3��V�P�T�0r)�RTv۽j+���*� ���\4�Vo{z#uٝ��@� �XC#: b2�QPPP�@BJJ0܍@Q.� S ���`c���1. Where it was submitted that such a situation had arisen at the time of driving, the sentencing Magistrate should hear evidence as to those facts. ... Now I have got court in two months , for the charges Driving Whilst Disqualified and Using a motor vehicle on a public road without third party insurance. If it is the third and subsequent offence, penalties include up to two years imprisonment and/or a fine up to $6,000. CARSWELL LCJ11 JULY 1997 . Plans under the new sentencing guidelines published this week suggest that drivers who commit the more serious speeding offences face harsher penalties. Driving whilst disqualified is an arrestable offence so it won't be a case of a stern ticking off at the side of the road. You need the help of Richard Silver. The defendant was a sole parent to two young children. The penalty will be much more severe if you caused the collision and were driving whilst disqualified than it would be if you were driving whilst … trailer It is not appropriate, in my view, in effect to circumscribe the circumstances which amount to contumacious offending in the manner expressed by Perry J. The sentencing Magistrate should give appropriate weight to the principle of general deterrence. The sentence with a non-parole period of twenty-eight days was appropriate [see Cox v Police[1997] SASC 6110 (Unreported, Duggan J, 11 July 1997)]. Edney, Richard and Bagaric, Mirko, ‘Imprisonment for Driving Whilst Disqualified: Disproportionate Punishment or Sound Public Policy’ (2001) 25 Criminal Law Journal 7. Offences under s. 320.18 [driving while prohibited] are hybrid with a Crown election.If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.. Release On appeal, despite some sympathy for the circumstances, it was found there was no error in not exercising the discretion to suspend. 0000004104 00000 n Alternative penalties may be considered where the offending is not contumacious. On appeal it was held that although this was not a particularly serious example of an offence of its type, it was nevertheless not a case of a minor breach nor one committed by a first offender. Website by CeRDI ©Legal Services 0000002651 00000 n Defence: Mitigation. Many defendants do not realise the seriousness of this offence, nor that the penalty may be a sentence of imprisonment in “run of the mill” cases, even for a first offence. Offences under s3ZC of the Road Traffic Act 1988 (casuing death by disqualified driving) are specified offences for the purposes of the public protection provisions in the 2003 Act (as amended). 0000005456 00000 n This guidance deals with a number of the most serious offences that directly result from or relate to a driving incident and the way in which a motor vehicle has been driven. Such a sentencing standard would fetter the discretion of a sentencing Magistrate. Since the judgments of the former Full Court in Police v Cadd & Others (1997) 69 SASR 150; [1997] SASC 6187 (‘Cadd’), there have been many single Judge decisions on appeal on the subject of the proper approach to sentencing defendants convicted of driving whilst disqualified. A duty solicitor is not in a position to take the necessary detailed instructions to present submissions in mitigation; these would include: Failure to adequately prepare submissions in mitigation could adversely affect the chances of a defendant who later wishes to appeal an immediate sentence of imprisonment, owing to the fact that he or she was represented by counsel at the time of sentencing [see Guilty Pleas chapter]. 2. 1. The defendant received an immediate term of imprisonment of two weeks. 0000068997 00000 n Road Traffic - Charging There would appear to be no reason why the court should not consider exercising its discretion under the Sentencing Act 2017 (SA) section 24 to refrain from ordering that a conviction be recorded, if it proposes to order a fine, a sentence of community service, or both [see Bates v SA Police (1997) 70 SASR 66; [1997] SASC 6430); Valentincic v Police [1997] SASC 6477 for examples]. In the case of a second or subsequent offence, it will naturally be harder but not necessarily impossible for the sentencing Magistrate to order a penalty other than an immediate sentence of imprisonment. The defendant had been detected driving at 162 kph in a 110 kph zone. Where the driving is found not to be contumacious or may be characterised as trivial or committed in the context of genuine emergency the full range of sentencing options and principles arising under the Sentencing Act 2017 (SA) is available to the sentencing Magistrate. Serving a custodial sentence is not inevitable. These are guidelines that must be followed by sentencers. Sentences can vary from a fine, community service to a prison sentence. Moran v CPS (2000) 164 JP 562. This guidance is provided to provide an overview on procedure and charging practice that is not dealt with in the existing road traffic guidance being 1. Circumstances such as previous good character, age, medical or mental health factors, whether the offence was premeditated, whether the defendant has employment, whether the defendant’s incarceration would cause hardship for any dependants, whether there were any extenuating circumstances in the context of the decision to drive under disqualification are among the circumstances which the court may have regard to. The offending may not be contumacious even though the driving is over more than a short distance and in circumstances [that] do not involve an emergency of duress. The friend was too intoxicated to drive them back to Adelaide three days later so the defendant drove. If you are found guilty of driving whilst disqualified, this could result in: A fine of up to £5,000; What are sentencing guidelines? Again however, in my opinion, having regard to the fact that this type of offence is simply one which must be considered in relation to the circumstances of the offence and the circumstances of the offender it would be inappropriate to lay down any further guidelines than that. The defendant had not intended to drive but had run out of alcohol and took his girlfriend’s car keys from the table without thinking, to go to the hotel for more alcohol. Defences Driving Whilst Disqualified Sentencing Guidelines. It is important for the duty solicitor to note that if a person is disqualified other than by court order and denies receiving notification of that disqualification, it is up to the prosecution to prove that the notice was received. Step 1 – Determining the offence category. The defendant was under the impression that he was disqualified for nine months and had applied and received a licence after the nine months had elapsed. As explained by Mullighan J, in Cadd (at 179): [The] standard, accepting these matters and giving appropriate emphasis to general deterrence should be imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment such as a substantial fine or community service in the appropriate case. a duty solicitor does not have the time to take the detailed instructions required to do this. A person who commits a second or subsequent offence will, because of the circumstances of the offence, be more likely to be imprisoned in relation to that offence. The following commentary is intended only as a general guide to the sentencing principles and standards in relation to drive disqualified offence(s), mitigating factors and the defence of honest and reasonable mistake of fact. Wayne Rule had intended to plead not … That is because a second offence would ordinarily exhibit contumacy on the part of the offender. Driving whilst disqualified is an offence covered under Section 103b of the Road Traffic Act 1988 and states that a person is guilty if, while disqualified, they drive a motor vehicle on the road. If prosecuted by indictment, there is a Defence electionof Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury. 0000001116 00000 n Alcohol and drug affected driving Alcohol and drug affected driving are serious offences and carry tough penalties, especially for repeat offenders. Magistrates' Court Sentencing Guidelines. The original sentence of immediate imprisonment for a period of seven days was set aside, and a sentence of twenty-one days imprisonment (suspended) substituted [see Theophilus v Police [1998] SASC 6521]. Driving a motor vehicle on the road while disqualified from holding or obtaining a licence is an offence under s 103 of the Road Traffic Act 1988 (RTA 1988).. R v Derwentside Magistrates' Court, ex p Heaviside [1995] Lexis Citation 3431. Appeal cases on defence of honest and reasonable mistake of fact. The eight new guidelines … The Driving while Disqualified or Suspended review examines the causes and consequences of driving while disqualified or suspended. The eight new guidelines … Enter keywords . The defendant was disqualified for a breach of probationary conditions and disqualified for three months until the twenty-fifth of January. This starting point is for a first-time offender who has pleaded not guilty. When you’re facing prosecution for driving whilst disqualified, you need expert legal advice to help you argue your case and limit the sentencing against you. As a general rule a penalty of imprisonment will be imposed by the sentencing court. Mr … The Court is required to approach the sentencing task by progressive steps to determine the appropriate penalty in the individual case. The starting point applies to all offenders irrespective of plea or previous convictions. A person driving a vehicle whilst his/her licence is suspended or disqualified (regardless of the reason they have been suspended/disqualified) faces a maximum penalty of imprisonment for 6 months for a first offence and imprisonment of up to 2 years for a subsequent offence [s … A custodial sentence is normally appropriate where the driving is "contumacious". Triable only summarily: Maximum: Unlimited fine and/or 6 months Offence range: Band C fine – 26 weeks’ custody. To drive a motor vehicle in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance. The defendant had a background of post-traumatic stress disorder and clinical depression. Psychiatrist’s and parole officer’s reports indicated that a sentence of imprisonment would have a detrimental effect on his continuing rehabilitation. I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress. The court must consider "good reason" for suspension even where imprisonment seems appropriate. Driving whilst disqualified is a criminal offence that will usually be dealt with in the Magistrates' Court. He drove from home to Hungry Jack’s because he ‘just wanted a burger’ and intended to drive back home. Therefore there was no proper basis for suspending. 0000007335 00000 n Defence: Mitigation. Plans under the new sentencing guidelines published this week suggest that drivers who commit the more serious speeding offences face harsher penalties. Even where a sentence of imprisonment may be appropriate because of the contumacious character of the driving itself, the sentencing Magistrate should nevertheless have regard to whether there is good reason to suspend that sentence [see Sentencing Act 2017 (SA) s 96]. Sentencing Guidelines - Magistrates' Court - Road Traffic Offences. On the occasion of the offence, the employer had unexpectedly required him to travel to an associated place of work at the end of his late shift when no public transport was available. Progressive steps must be taken in determining penalty. R (Howe) v South Durham Justices, [2004] EWHC 362 … For a second or subsequent offence the penalty is imprisonment to a maximum of two years [see s 91(5)]. It was argued that a requirement to serve a sentence of immediate imprisonment would result in a loss of employment and would cause distress to his ill and elderly Greek parents. In particular, tougher fines will be given to those who exceed the speed limit by over 30 mph. If the disqualification has been recently imposed the sentence starting point on the Magistrates' Sentencing Guidelines is 12 weeks custody. There remains disagreement and inconsistency as to the proper application of the principles in Cadd . So also will that person be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence. There was no public transport available and no money for a taxi. The penalty will be much more severe if you caused the collision and were driving whilst disqualified than it would be if you were driving whilst … There are sentencing guidelines for the offence of driving whilst disqualified. This is even if you are seeking the removal of disqualification from driving. Driving Whilst Disqualified (or allowing someone to): Up to 6 months in prison and/or a fine up to £5,000, 6 penalty points and discretionary disqualification from driving. The sentencing Magistrate would have to first satisfy him or herself whether the circumstances amounted to contumacious offending to determine whether a sentence of imprisonment should be imposed. He had driven from Murray Bridge to Mannum reluctantly and under a considerable degree of pressure from his intoxicated friend, his own judgement being impaired by alcohol. The Sentencing Guidelines Council (‘SGC’) has issued guidance on the level of reduction in sentence for a guilty plea, and courts must have regard to it. What's new Search. Moran v CPS (2000) 164 JP 562. Where the circumstances of the offending do not amount to contumaciousness the Magistrate may find there is good reason to substitute an alternative penalty such as a fine or community service [see Sentencing Act 2017 (SA) s 25]. 0000017329 00000 n xref Log in Register. Mullighan J substituted this penalty with an order for 50 hours community service on the basis that the Magistrate did not conclude that the offending was contumacious and did not have sufficient regard to the personal circumstances of the appellant and in particular to his employment and family circumstances [see Harshazi v Police (1998) 71 SASR 316; [1998] SASC 6663]. If it were, the question of suspension would then need to be considered. 0000001888 00000 n %%EOF The defendant drove a friend’s vehicle from a city hotel with a blood alcohol reading of 0.254. If you are caught driving whilst disqualified, you are committing a serious offence and could face immediate arrest. On appeal it was held that an antecedent record for “like” offences and an extreme degree of intoxication were aggravating factors which could not be mitigated by the submission that he was so befuddled by his state of intoxication as to take the driving out of the “contumacious” category [see Drivas v Police [1998] SASC 6520]. Australia and South Australia, Sentencing principles for drive disqualified  :  Last Revised: Mon May 21st 2012, Family Advocacy and Support Service (FASS), Family Violence and Cross-Examination of Parties Scheme, Women's Domestic Violence Court Assistance Service, Assignment of Legal Aid Cases to Practitioners, Legal Aid Guidelines for Commonwealth Matters, Sentencing principles for drive disqualified, Police v Cadd & Others (1997) 69 SASR 150, Appeal cases where suspended imprisonment was held to be appropriate, Appeal cases where immediate imprisonment was upheld, Defence of honest and reasonable mistake of fact, Appeal cases on the defence of honest and reasonable mistake of fact, English v Police [1997] SASC 6266 (Unreported, Lander J, 22 July 1997), A duty solicitor may be of genuine assistance by representing a defendant on a guilty plea to a charge of drive disqualified where the defendant has been refused, For a first offence the penalty is imprisonment to a maximum of six months [see. 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