The charges

Our client was charged with two offences as follows:

 “Drive vehicle whilst under the influence of alcohol” – s112(1)(A) Road Transport Act.

 “Not keep left of dividing line” – Reg 132(2) Road Rules 2014.

Both offences occurred between 7:30pm and 7:40pm only hours after our client had been informed by her real estate agent that her soon to be ex-husband had pulled out of the auction of the family home. Our client had suffered years of domestic abuse at the hands of her husband and to hear that news was devastating for our client. In an emotional state, she bought and consumed alcohol and got behind the wheel of her car.

 

The potential penalties

Upon conviction, our client was facing the following maximum penalties for the DUI offence:

  1. 18 months imprisonment
  2. $3,300 fine
  3. Maximum disqualification period: unlimited
  4. Automatic disqualification period: three years
  5. Minimum disqualification period: 12 months

 

The application

Our client was represented by Ms Tsitsos of our firm and her experience in representing clients with mental health issues was invaluable. Our client pleaded guilty to both offences however, an application was made on her behalf by Ms Tsitsos to have the charges diverted from the criminal justice system and dealt with under Section 32 of the Mental Health (Forensic Provisions) Act 1990.

Serious traffic offences such as driving under the influence often lead to automatic penalties which may be disproportionately severe in many cases. For instance, upon conviction, our client would have been disqualified for at least 12 months and most likely received a hefty fine.

Automatic penalties are often something of a “bone of contention” with respect to sentencing offenders for driving offences. It is for this reason that Magistrates are often reluctant to deal with traffic matters pursuant to Section 32, at least partly because it is seen by some on the bench as a way of inappropriately avoiding mandatory penalties contained within the relevant legislation.

In this particular case, Ms Tsitsos’ written submissions and the bundle of defence materials prepared on behalf of our client proved fruitful and we were able to convince the Presiding Magistrate to divert this case away from the criminal justice system.

 

Outcome

The Presiding Magistrate agreed with our submission that our client was suffering from Major Depressive Disorder and Generalised Anxiety Disorder at the time of the offence. The Magistrate was also minded to use the court’s discretionary power to deal with the matter under section 32.

Our client was ordered to continue with her current treatment and attend counselling appointments as required.

Essentially, our client avoided:

  1. A conviction;
  2. A disqualification;
  3. A fine.

She can continue with her life on the basis that she has never been found guilty of a criminal offence and she does not have a criminal record against her.

 

Written by Elizabeth Tsitsos

 

Nyman Gibson Miralis provides expert advice and representation in all areas of drink driving and traffic law. Contact us if you require assistance.