The sentencing Magistrate characterised the defendant’s act of taking over the driving whilst his friend consumed food bought at a service station stop, and in so doing driving at 162 kph in a 110 kph zone, as “foolish”. xref As the discretion to suspend a sentence of imprisonment has now been restored by Police v Cadd & Others (1997) 69 SASR 150;[1997] SASC 6187 (as discussed below), a question is now raised as to whether Magistrates may sometimes take the view that where imprisonment is suspended it may be appropriate to order a further disqualification by way of penalty. R (Howe) v South Durham Justices, [2004] EWHC 362 … Driving whilst disqualified is an offence under section 54(1) of the Road Transport Act 2013. Where the driving is found to have been contumacious the court should have regard to the personal circumstances of the offender to consider whether there is good reason to suspend a sentence of imprisonment. Being disqualified means you cannot drive any vehicle on any road or public highway. ... 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. There was no public transport available and no money for a taxi. This defence may arise where the driver claims that he or she was unaware of disqualification, such as where the driver was not present in court when the order was made or where the driver doesn't receive a demerit point notice informing him or her of a licence disqualification. Must endorse and disqualify for at least 12 months 2. Offenders will be arrested immediately and then processed via the Police system which can be an alarming experience. On appeal it was held not to be a premeditated, positive act of defiance with a number of substantial mitigating features. The guidelines will come into force on 1 January 2021. The defendant was convicted of illegal use of a motor vehicle and disqualified until further order. 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. 0000002023 00000 n 0000001116 00000 n Appeal cases on defence of honest and reasonable mistake of fact. Lander J was not prepared to categorise his behaviour as contumacious because it did not indicate an attitude of total disregard of, and disobedience to the authority which had ordered the disqualification. [see Nash v Police [2009] SASC 112; Scholes v Police [2005] SASC 116; Rhodes v Police [1999] SASC 191 regarding “foolish” offending; White v Police (2000) 76 SASR 430;[2000] SASC 127) for “foolish and unthinking”; Wright v Police [2005] SASC 462for employment; Lennon v Police (2005) 238 LSJS 185;[2005] SASC 11) for good explanation of "contumacious"]. 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. There remains disagreement and inconsistency as to the proper application of the principles in Cadd . What's new Search. On appeal it was held that no offence is committed if there is an honest and mistaken belief, based on reasonable grounds, as to the state of facts, which if true, would render the act itself innocent [see Davis v Bates (1986) 43 SASR 149]. 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. Up until the point in time when he drove the car his behaviour had suggested appropriate obedience to the disqualifying authority [see Johns v Police [1998] SASC 6729]. There are sentencing guidelines for the offence of driving whilst disqualified. 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. 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]. 0000017329 00000 n If the offender’s attitude exhibits defiance that would suggest contumacy. 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. 0000044132 00000 n 0000065001 00000 n He had a de facto wife and a five-year-old child, and he had undergone training and obtained permanent employment since the offence. 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).. Edney, Richard and Bagaric, Mirko, ‘Imprisonment for Driving Whilst Disqualified: Disproportionate Punishment or Sound Public Policy’ (2001) 25 Criminal Law Journal 7. 2. 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. 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. The Magistrates will have regard to Sentencing Guidelines: where there is higher culpability and greater harm, i.e. RT @live_life_safe: Today Marks 1 year since #StalkingProtectionOrders came into force to protect victims of stalking. Effective from: 24 April 2017. 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. 0 You need the help of Richard Silver. If the disqualification has been recently imposed the sentence starting point on the Magistrates' Sentencing Guidelines is 12 weeks custody. Search judicial decisions and choose filters to show only the results you want ... Driving whilst disqualified and dangerous driving - young offender - consecutive sentences - disqualification from driving for life. The degree of defiance in the offending will be important in consideration of penalty [see Johnston v Wilkinson (1983) 11 A Crim R 140]. Enter keywords . 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. There is discretion to impose a licence disqualification for any offence relating to motor vehicles, including where a motor vehicle was involved in the commission of an offence, or where the commission of an offence was facilitated by the use of a motor vehicle [see Road Traffic Act 1961 s 168(1); R, J v Police [2006] SASC 153]. Alcohol and drug affected driving Alcohol and drug affected driving are serious offences and carry tough penalties, especially for repeat offenders. 0000035057 00000 n The eight new guidelines … In particular, tougher fines will be given to those who exceed the speed limit by over 30 mph. Millars Solicitors were instructed by Miss E who was very concerned about the prospect of a custodial sentence as she was driving whilst disqualified. The procedural steps to determining penalty are: 1. 0000008037 00000 n The offending was foolish, not contumacious. 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]. Sentencing Guidelines - Magistrates' Court - Road Traffic Offences. He made regular arrangements for alternative transport to adjust to the disqualification and had arranged for a friend to drive him and his two sons to Port Pirie for a BMX race meeting. Similarly, Mullighan J, in Cadd (at 180): Of course, different considerations must apply to the offender who is before the Court on this charge for a second or subsequent occasion. 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. Must disqualify for at least 2 years if offender has had two or more disqualifications for periods of 56 days or more in preceding 3 years – refer to the disqualification guidance and consult your legal adviser for further guidance 3. Courts do not normally impose a further period of disqualification for an offence of driving whilst disqualified. 0000001888 00000 n He had taken his six-year-old grand-daughter to the Royal Show and had returned to his wife’s house with her to get a lift home. This starting point is for a first-time offender who has pleaded not guilty. Leniency was appropriately shown by ordering an immediate sentence of imprisonment of fourteen days only [see French v Police [1998] SASC 6532]. 0000009105 00000 n For example, someone driving in excess of 100 mph on a 70 mph road will be fined a third more. Driving whilst disqualified is a criminal offence that will usually be dealt with in the Magistrates' Court. This most recent consultation relates primarily to Magistrates' Courts Sentencing Guidelines (MCSG) and covers: driving whilst disqualified, breach of a community order and totality. The defendant had been detected driving at 162 kph in a 110 kph zone. The courts will use the Driving whilst Disqualified sentencing guidelines set in law to decide on the appropriate sentence - the more serious the offence, the more serious the penalty. Being disqualified means you cannot drive any vehicle on any road or public highway. R (Howe) v South Durham Justices, [2004] EWHC 362 … Having determined the category at step one, the court should use the appropriate starting point to reach a sentence within the category range in the table below. The Magistrates will have regard to Sentencing Guidelines: where there is higher culpability and greater harm, i.e. 24 41 Carl Millar from Messrs Millars Solicitors was instructed by Mr C who, unfortunately, was driving whilst disqualified from driving for a previous offence. However, prosecution may challenge the “non-contumacious” basis of a plea of guilty and the defendant and any witnesses may be required to give evidence on oath as to the circumstances and state of mind which led to the driving. He had prior convictions for unregistered and uninsured driving. 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 sentencing Magistrate should give appropriate weight to the principle of general deterrence. He rode a motorcycle a short distance from a reserve at Morgan to the house where the motorcycle was kept. Wayne Rule had intended to plead not … Having determined the category at step one, the court should use the appropriate starting point to reach a sentence within the category range in the table below. Causing death by dangerous driving (Section 1 RTA 1988) Penalty: 1 to 14 years in prison, and disqualified for a minimum of two years; Causing death by careless, or inconsiderate, driving (Section 20 Road Safety Act 2006) Penalty: Up to 5 years in prison, and disqualified for a minimum of one year; The drive whilst disqualified offence was committed while the defendant was on parole. Magistrates' Court Sentencing Guidelines. A custodial sentence is normally appropriate where the driving is "contumacious". In Scotland, driving while disqualified is an either way offence which can be tried either summarily or on indictment. He had been disqualified as a result of a previous PCA offence but had never before served a custodial sentence. 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. 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. Disqualified Driving 1 We can give you advice on Disqualified Driving Disqualified driving carries a maximum sentence of 6 months imprisonment and a fine of up to £5,000 plus an additional driving ban. Driving whilst disqualified is a very serious offence and one that carries up to 6 months in prison as well as a further period of disqualification. 3. Obtaining a Driving Licence Whilst Disqualified: Fine up to £1,000. The reasons for driving a motor vehicle, in circumstances where the offender well knew that he or she had been ordered by a Court or by administrative action not to drive a motor vehicle, are important. He was only 21 years old and had a poor driving record starting with speeding, driving whilst licence expired, drink driving, driving whilst licence cancelled and another driving whilst disqualified in addition to a number of driving whilst unregistered and uninsured offences. This was his fourth drink driving offence in the space of six years. 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. There was a background of severe violence from the children’s father and a psychiatrist’s report advising against imprisonment. No, there is no requirement for an NIP for Driving Whilst Disqualified. 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 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. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. 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 … @cpsuk. As a general rule a penalty of imprisonment will be imposed by the sentencing court. Defence: Mitigation. Step 1 – Determining the offence category. On this point, Justice Lander in Johns v Police [1998] SASC 6729, said (at 7): However, even if it is contumacious behaviour it will not necessarily give rise to an immediate sentence of imprisonment. Must endorse and may disqualify. Driving whilst disqualified, coupled with a manner of driving which breaches any provisions in the Road Traffic Act 1961, and particularly where that breach repeats the breach that resulted in the initial disqualification, will be viewed seriously by the Court [see Evans v Higgins (1989)153 LSJS 454]. You can find up-to-date statistics for this offence on SACStat . The starting point applies to all offenders irrespective of plea or previous convictions. 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. Unduly lenient sentence - dangerous driving causing grievous bodily harm; driving without insurance; driving whilst disqualified; and drink driving - previous bad record of driving offences - whether right to make a custody probation order - guidance of use of this sentencing power. The defendant’s only prior conviction was for the PCA offence which had led to his disqualification, and he had positive character references from his employers. 0000007583 00000 n What are sentencing guidelines? It is important that the duty solicitor explains to the defendant that: Where a defendant insists on pleading guilty unrepresented, it is important to emphasise that a Magistrate may well find no grounds to suspend a sentence of imprisonment, and that the defendant may be taken into custody immediately following sentencing. The prevalence of the offence and its corrosive effect upon the efficacy of licence disqualification as a punishment require the court to maintain a sentencing standard which reflects the seriousness of the offence. Suspension of sentence for second or subsequent offenders is not possible. startxref If the disqualification has been recently imposed the sentencing guidelines would treat this even more seriously and there would be a rave risk of imprisonment. 0000002521 00000 n Driving whilst disqualified is regarded by the court as a very serious offence because it usually constitutes a defiance of, and contempt for, an order either of the court or a Registrar. 0000007335 00000 n The defendant was disqualified for a PCA offence. 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 defendant drove a friend’s vehicle from a city hotel with a blood alcohol reading of 0.254. The courts will use the Driving whilst Disqualified sentencing guidelines set in law to decide on the appropriate sentence - the more serious the offence, the more serious the penalty. 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. A sentence of ten days imprisonment to be served was upheld [see Ballone v Police [1998] SASC 6534]. A COP killer once jailed for mowing down an officer in a hit-and-run is today back behind bars for driving whilst disqualified. 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. There still exist opposing judicial views as to the type of driving which should be held to exhibit “contumaciousness”. The driving was “one-off” in nature: the defendant had been riding his bicycle to work regularly and had not told his employer of his disqualification, fearing he would be dismissed. %%EOF Moran v CPS (2000) 164 JP 562. 1. When driving under disqualification he had a blood alcohol reading of 0.227. <<72CF35A5B40A0E4A9B87BFB2B8426C83>]/Prev 111911>> 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. The Court treats this offence seriously as a person who is driving whilst disqualified is ignoring a Court Order. These are guidelines that must be followed by sentencers. Extend disqualification if imposing immediate custodyThe court should then consider further adjustment for any aggravating or mitigating factors. English v Police [1997] SASC 6266 (Unreported, Lander J, 22 July 1997), which was one of the first appeal cases after Cadd. Mr … 0000006315 00000 n 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. Without such proof the charge would ordinarily be withdrawn after negotiations. 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. It may be longer where aggravating factors are alleged, such as a high blood alcohol reading, reckless driving, a prior offending record which suggests long-term contempt for road traffic laws, or where the offence has occurred very soon after the disqualification. a duty solicitor does not have the time to take the detailed instructions required to do this. Several propositions may be extracted from Cadd and later single Judge decisions: Weight should be given to general deterrence. 0000002651 00000 n 0000004104 00000 n The guidelines must be followed unless the Judge or Magistrates’ consider it is not in the interests of justice to do so. He was disqualified as a result of a PCA offence. Road Traffic - Charging The defendant was a sole parent to two young children. The defendant had a background of post-traumatic stress disorder and clinical depression. 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]. He was a fifty-five-year-old grandfather on a disability support pension. 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