Case facts
Client was a 51 year old mother of four children who had held her licence for over 34 years with an excellent driving record with only a couple of speeding matters. The client had no prior criminal record. The offence occurred in the context of the client preparing for a work event and arrangements were made for a friend of hers to mind one of her children. Further arrangements were made for another one of her children to be dropped off at that location. The client called in to collect her children however one of her children was running late. Whilst waiting for her other child to arrive she had a number of glasses of wine which to her seemed to be small glasses. Nevertheless, she felt fine to drive. Her husband dropped in at the friend’s place, and it did not occur to him at any time that his wife may have been over the limit or anywhere near it. If he had even suspected that to be the case, he could have driven the family home.
As she drove home the client was pulled over for a random breath test (RBT). The reading was positive and she was arrested by Police and taken to the local police station for a breath analysis. The analysis returned the blood alcohol concentration of 0.095 grams of alcohol in 210L of breath, placing her in the mid range prescribed concentration of alcohol under section 9(3)(a) Road Transport (Safety and Traffic Management) Act 1999.
A certificate was issued pursuant to section 33 Road Transport (Safety and Traffic Management) Act 1999 being the evidentiary certificate to prove her reading in court. Her licence was suspended on the spot pursuant to section 205 Road Transport (General) Act 2005. Further aggravating this offence was the fact that the client had two children in her car. The client was of slight build and had only a light lunch.
Potential penalties
Maximum penalties include nine months jail, a fine of up to $2,200 and an automatic disqualification period of 12 months, able to be reduced to not less than six months. Under the interlock program, it is possible to apply for an interlock licence for this type of offence.
Subjective circumstances
The client had a genuine need for licence due to her work commitments and her involvement with the children and their school and sporting activities. To incur only two infringement notices over a 34 year driving history is commendable. By the time the matter went to the local court, the client had been off the road for three months.
Traffic Offender Intervention Program
The client successfully completed the Traffic Offender Intervention Program and the certificate issued was used to assist in the proceedings.
Local court proceedings
At the Local Court, the magistrate was presented with a person who had a near perfect driving record over 34 years, who had attended the traffic offender program, who did an inordinate amount of charity work, needed her licence, had been off the road for three months by way of suspension in circumstances where the likely penalty upon conviction would only be for a further three months, with excellent character references, genuine contrition and remorse, prior good character, a need for licence within the meaning of the dicta in the Guideline Judgment for High range Drink Driving and being a case of misjudgment rather than deliberate commission of an offence.
Notwithstanding this compelling case for no conviction to be recorded, the client was fined $550 and given a six month disqualification period. The Magistrate noted the disqualification period was to apply from the date of the offence pursuant to Section 205(6) Road Transport (General) Act. Surprisingly, the magistrate indicated that the “malaise had set in” – meaning that the client was reckless. Her driving history suggested otherwise, as did the fact that her husband saw her just prior to driving and had no concerns. A severity appeal was the only logical response.
District Court severity appeal
A severity appeal was immediately lodged to the District Court. A solicitor of Nyman Gibson Miralis was instructed in these proceedings. Our client was not able to have her licence returned to her though she was effectively off the road for a period of four months. An emphasis was placed on the fact that the client had almost completed her period of disqualification in any event. Further emphasis was placed on the fact that the client’s livelihood depended on her having a licence and the devastating effect it was having on her family commitments. Evidence was also led from the client as to what she had learnt at the Traffic Offenders Program.
His Honour was initially against dealing with the matter pursuant to section 10(1)(b) Crimes (Sentencing Procedure) Act 1999 due to the aggravated facts that the client had two children in the car and the level of her blood alcohol reading. Our solicitor was eventually able to convince His Honour that it was a matter that could be dealt with under that section despite the aggravating feature.
Case result
Our solicitor explained the difficulty the client was having keeping her employment without her licence. Despite His Honour’s initial view regarding the aggravating features of the matter, he dealt with the matter pursuant to section 10(1)(b) Crimes (Sentencing Procedure) Act 1999. This meant the client was not convicted nor was her licence disqualified. The matter was dismissed conditionally upon the client entering into a good behaviour bond of one year. This was a remarkable result given His Honour’s initial views.
