Our client was stopped by police for the purposes of a random breath test (RBT). He was subjected to a roadside breath test which returned a positive result. He was then arrested and conveyed to the police station where he underwent a breath analysis. The analysis returned a blood alcohol concentration of 0.178 grams of alcohol in 210 litres of breath, placing him well within the High Range Prescribed Concentration of Alcohol (high range PCA or high range drink driving) pursuant to section 9(4)(a) Road Transport (Safety and Traffic Management) Act 1999 (which starts at 0.150 grams of alcohol in 210 litres of breath). The Police Facts Sheet noted that police were of the opinion that our client was highly affected by intoxicating liquor, with red, watery, glazed and bloodshot eyes. Police alleged they could smell alcohol on our client’s breath and observed that he was unsteady on his feet.
Our client received a Future Court Attendance Notice to attend Newtown Local Court. As a result of the reading our client’s driver’s licence was also automatically suspended by Police pursuant to section 205 Road Transport (General) Act.
Prior criminal record
Our client’s record did not assist him. He had two convictions for Low Range PCA in 1987 and 1988 respectively, as well as a Fail/Refuse to Undergo Breath Analysis conviction in 2006 and a number of convictions for Drive while Suspended and Drive while Disqualified. Luckily he had no major offences in the 5 year period leading up to this offence which meant the penalties applicable to this offence were those for a first offence within 5 years applied.
Need for a licence
Our client had a legitimate need for a licence because he was a skilled labourer. At the time of the offence he had started and was running his own business. This had necessitated him travelling between various worksites to supervise his workers. Following the offence, however, our client had sold his business and was working for another labouring company as a supervisor. His need for a licence remained strong and, due to his age, were he to have lost his employment he would have been likely to struggle to regain employment.
The offence of High Range PCA (if a first offence within 5 years) carries potential penalties of 18 months imprisonment and a fine of up to $3,300, as well as an automatic disqualification period of 3 years. The court has the power to reduce this automatic period of disqualification to a period of not less than 12 months. If it is a second or subsequent offence in 5 years, the maximum penalties increase – to a potential 2 years imprisonment, a fine of up to $5,500 and an automatic disqualification period of 5 years, which can be reduced to a minimum of 2 years.
During the initial conference with our client, it became apparent that our client had suffered from alcohol dependency for a number of years. Despite having abstained for almost 18 months prior to the offending behaviour, on the day of the offence the stress of his failing business had resulted in our client drinking – a lot.
Armed with this knowledge, our PCA specialist solicitor discussed the possibility of making an application to have the matter dealt with under section 32 Mental Health (Forensic Provisions) Act.
What is a section 32?
Essentially a section 32 order enables the Local Court to divert people with certain psychological or psychiatric conditions who have been charged with a criminal offence out of the criminal justice system by imposing a treatment plan rather than punishment. A person granted relief pursuant to section 32 is not convicted, though a record is made that they were dealt with in such fashion.
When is section 32 applicable?
Section 32 applies if it appears to the Magistrate that the defendant is (or was at the time of the alleged offence):
(a) developmentally disabled; or
(b) suffering from a mental illness; or
(c) suffering from a mental condition for which treatment is available in a mental health facility;
but is not a “mentally ill person” as defined within the Mental Health Act. Alcohol dependency falls within the definition of mental illness (DSM IV code 203.90).
A Magistrate must not only be satisfied that the application satisfies the above criteria, but must also be satisfied that it is more appropriate than dealing with the matter under section 32. The court must ask itself whether proceeding in accordance with section 23 will produce a better outcome for both the individual and the community. In other words, it is a discretionary matter for the Court.
A section 32 order does not amount to a finding of guilt, nor is it a finding of not guilty. Because it is not a conviction it does not form part of a person’s criminal record.
At the first court appearance a plea of guilty was indicated (but not formally entered). We informed the Court that we would be making an application under section 32 and sought an adjournment to enable our client to obtain a psychological report. The adjournment also gave him time to complete the Traffic Offenders Intervention Program.
Since the offence, our client had recognised that he needed professional help to deal with alcohol dependency and related anxiety and depression. As well as attending the Traffic Offenders Intervention Program and regularly attending AA meetings, he attended upon his General Practitioner to obtain a referral to see a psychologist on the Mental Health Care Plan. He had been seeing this psychologist on a regular basis but unfortunately she was not able to prepare a medico-legal report for use at court. Our lawyer therefore put our client in contact with an experienced psychologist who was able to prepare such a report.
Our lawyer appeared at court in the sentence proceedings. Detailed written submissions had been prepared addressing the factors which were to be considered by the Magistrate. These were supplemented with extensive oral submissions during the sentence proceedings. Ultimately we were asking the Magistrate to make an order under section 32 and discharge our client into the care of his treating psychologist to continue treatment.
Despite our client clearly being eligible to be dealt with under section 32 – as the medico-legal report confirmed that he suffered from a known a mental illness / condition for which treatment is available – the Magistrate was not persuaded that it was more appropriate to deal with our client in accordance with section 32 than otherwise in accordance with law.
The main reason for this appeared to be because if an order were made under section 32 then the Magistrate would not have been permitted to impose any disqualification period on our client. Although in the writer’s opinion this is an irrelevant consideration, unfortunately it is a common belief among many magistrates that – for this very reason – section 32 cannot or should not be utilised in traffic offences.
Plea of guilty
Upon refusing the application under section 32 a plea of guilty was entered and the matter proceeded to sentence.
If a Court convicts a person of a High Range PCA offence, the Court may order that the disqualification of the person be suspended after a mandatory but shorter disqualification period if the person participates in the Interlock Program by having an Interlock Device fitted to their car for a period of time. If the Interlock Order is made, the disqualification period is substantially less than the automatic period and enables the driver to get their licence back quicker, subject to having the device fitted in the car and complying with the Interlock Licence requirements – such as having an alcohol reading of less than 0.02.
In this case, our PCA specialist lawyer argued that because of our client’s strong need for a licence, strong subjective case and steps he had taken to address his underlying alcohol dependency the Magistrate should exercise her discretion and make an Interlock order. The Magistrate agreed.
Ultimately our client was convicted and directed to enter into a good behaviour bond pursuant to section 9(1) Crimes (Sentencing Procedure) Act for a period of 12 months. The conditions of the bond were to be of good behaviour, to appear before the court if called on to do so, and to continue psychological treatment and counselling as proposed in the medico-legal report we had obtained.
As indicated above, our client was permitted to participate in the Interlock Program. This required the installation of a device in his car to certify his sobriety, and enabled him to drive legally again after only a 6 month disqualification period (which was backdated to take into account the period of suspension he had already served pursuant to section 205(6)(b) Road Transport (General) Act 2005. He then had to participate in the Interlock program for 24 months. As a result, our client, who had faced an automatic disqualification period of 3 years, was able to re-apply for a new drivers licence in only a matter of weeks from the date in court.
Why you need expert advice and representation
High Range PCA offences are serious offences. If convicted, you will lose your licence for at least 12 months. As evidenced, this can have potentially devastating consequences for an individual. Most offences do not occur within a vacuum. It is essential that if you have been charged with a Mid Range PCA offence, you need a lawyer who understands the Guideline Judgment and who knows how to apply the law in your case. You also need a lawyer who will try every avenue of reducing the sentencing impact of any conviction.
Nyman Gibson Miralis provides expert advice and representation in all areas of drink driving and traffic law. Contact us if you require assistance.