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. 0000006315 00000 n 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]. The obligation to have regard to the matters set out in [the previous] ss 10 and 11 of the Criminal Law (Sentencing) Act 1988 and established sentencing principles are sufficient further guide to the sentence. For a second or subsequent offence the penalty is imprisonment to a maximum of two years [see s 91(5)]. %PDF-1.4 %���� As a general rule a penalty of imprisonment will be imposed by the sentencing court. Defence: Mitigation. The defence of honest and reasonable mistake of fact is available for the offence of drive whilst disqualified [see Davis v Bates (1986) 43 SASR 149]. The courts have a sentencing range from a Financial Penalty to imprisonment. The quality of “defiance” required to characterise the driving as contumacious was discussed by Lander J in Johns v Police (at 7): Because the test is contumacy the inquiry must be more directed to attitude. Road Traffic: Mobile phones Driving offences. 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 is required to approach the sentencing task by progressive steps to determine the appropriate penalty in the individual case. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. 0000064915 00000 n Driving whilst disqualified is a serious offence with far-reaching consequences. 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 … Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist. h�b```f``Y������� Ȁ �@16���� � Appeal cases on defence of honest and reasonable mistake of fact. 0000001481 00000 n Pleadings Offences under s. 320.18 [driving while prohibited] are hybrid with a Crown election. That is, he was mistaken as to the legal significance of the relevant facts, whereas a mistake of fact would be where the driver made a mistake as to the actual facts [see Khammash v Rowbottom (1989) 51 SASR 172; Webb v Owen [1991] SASC 3207 (Unreported, Legoe J, 12 December 1991); Police v Pace (2008) 186 A Crim R 113; [2008] SASC 182]. 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. 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. As a general rule a penalty of imprisonment will be imposed by the sentencing court. Get in touch with us today to discuss your case, and find out how we can help you. 0000001116 00000 n 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]. there is a very real risk of immediate imprisonment for this offence; it is important that the defendant adjourns the matter so that he or she can instruct a solicitor to represent them because they. 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. 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. 0000004104 00000 n Triable only summarily: Maximum: Unlimited fine and/or 6 months Offence range: Band C fine – 26 weeks’ custody. [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"]. 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. In Scotland, driving while disqualified is an either way offence which can be tried either summarily or on indictment. 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. 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. For example, when an ‘offender’ is charged with driving with excess breath/blood alcohol. Must endorse and may disqualify. 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. On a first or second offence of driving while disqualified, further penalties can theoretically include three months imprisonment and/or a fine of up to $4,500. Driving while disqualified Legislation. 0000006759 00000 n This most recent consultation relates primarily to Magistrates' Courts Sentencing Guidelines (MCSG) and covers: driving whilst disqualified, breach of a community order and totality. If there is a delay in sentencing after conviction, consider interim disqualification As a guide, where an offence of driving or attempting to drive has been committed and there are no factors that increase seriousness the Court should consider a starting point of a Band C fine, and a disqualification in the region of 12–22 months. R (Howe) v South Durham Justices, [2004] EWHC 362 … Get in touch with us today to discuss your case, and find out how we can help you. Contrary to the decision in Coombe v Douris, a custodial sentence and the requirement to actually serve that period of imprisonment is no longer to be taken as an almost inevitable consequence of conviction. 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. Driving whilst disqualified is a criminal offence that will usually be dealt with in the Magistrates' Court. 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).. 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. A COP killer once jailed for mowing down an officer in a hit-and-run is today back behind bars for driving whilst disqualified. <<72CF35A5B40A0E4A9B87BFB2B8426C83>]/Prev 111911>> 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. These are guidelines that must be followed by sentencers. Plans under the new sentencing guidelines published this week suggest that drivers who commit the more serious speeding offences face harsher penalties. The sentencing Magistrate should give appropriate weight to the principle of general deterrence. Such a sentencing standard would fetter the discretion of a sentencing Magistrate. Magistrates are required to take the view that Parliament has provided that a substantial sanction be imposed for disobedience to those orders [see Crook v Roberts (1990) 53 SASR 236; Maione v Higgins [1991] SASC 2698; and Springall v Police (2007) 252 LSJS 160; [2007] SASC 425 for interstate disqualifications]. 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]. 0000017329 00000 n 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. You need the help of Richard Silver. Counsel for the appellant submitted that the appellant believed the disqualification had expired at the time he drove. 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 Court treats this offence seriously as a person who is driving whilst disqualified is ignoring a Court Order. Step 1 – Determining the offence category. He had been disqualified as a result of a previous PCA offence but had never before served a custodial sentence. The defendant drove a friend’s vehicle from a city hotel with a blood alcohol reading of 0.254. If the offender’s attitude exhibits defiance that would suggest contumacy. 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. The degree of defiance in the offending will be important in consideration of penalty [see Johnston v Wilkinson (1983) 11 A Crim R 140]. There was a background of severe violence from the children’s father and a psychiatrist’s report advising against imprisonment. If this is your first disqualified driving offence then the court may be lenient and look at alternatives to prison, such as a community order with supervision, unpaid work or … 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. 0000044343 00000 n Justice Mullighan allowed the appeal stating (at 318): [u]pon consideration of the circumstances of the offending, a foolish and not contumacious act, and the personal circumstances of the appellant, application of the sentencing standard in Cadd would not lead to a sentence of imprisonment. What are sentencing guidelines? Driving Whilst Disqualified Sentencing Guidelines England & Wales: The maximum sentence a person can receive for driving whilst disqualified is 6 months imprisonment and/or a fine of £5,000. If you are found guilty of driving whilst disqualified, you will be charged with a further criminal offence and run the risk of a prison sentence. First the guidelines lay down aggravating factors (ones that make the offence more heavily punished) and mitigating factors (that suggest a … It is imposed at the court’s sentencing stage after a driver is found guilty, or pleads guilty, for particular traffic offences. 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. 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. If so, then the starting point should be a sentence of imprisonment. The defendant had been detected driving at 162 kph in a 110 kph zone. The court must consider "good reason" for suspension even where imprisonment seems appropriate. Driving whilst disqualified is an 'absolute offence' which means there are few valid defences. 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. If it were, the question of suspension would then need to be considered. The defendant was a 23-year-old man who drove his unregistered and uninsured car to obtain parts for it, but only thirteen days after the disqualification imposed. 0 Whilst many motoring offence cases can be defended, there are often occasions when the best advice is to look to minimise any penalty as far as possible by entering a guilty plea and putting forward mitigation.. We act for many clients in this way and have the relevant experience and expertise to ensure that your case is presented at court in the right way to get the best possible outcome. 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]. If no disqualification impose 6 points 2. For example, someone driving in excess of 100 mph on a 70 mph road will be fined a third more. Sentencing Guidelines - Offences. You can find up-to-date statistics for this offence on SACStat . R v Derwentside Magistrates' Court, ex p Heaviside [1995] Lexis Citation 3431. The guidelines must be followed unless the Judge or Magistrates’ consider it is not in the interests of justice to do so. O�0`�DU�]�$3��V�P�T�0r)�RTv۽j+���*� ���\4�Vo{z#uٝ��@� �XC#: b2�QPPP�@BJJ0܍@Q.� S ���`c���1. Wayne Rule had intended to plead not … The full range of sentencing ranges from the lowest - a fine - to the highest, six months in prison. 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. 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 … 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]. startxref Must endorse and disqualify for at least 12 months 2. The defendant had received concurrent sentences of twenty-one days each for driving whilst disqualified and driving under the influence of alcohol. There still exist opposing judicial views as to the type of driving which should be held to exhibit “contumaciousness”. 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. There remains disagreement and inconsistency as to the proper application of the principles in Cadd . In particular, tougher fines will be given to those who exceed the speed limit by over 30 mph. 0000002023 00000 n 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. 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. 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. If the disqualification has been recently imposed the sentence starting point on the Magistrates' Sentencing Guidelines is 12 weeks custody. Olsson J held the breach to be clearly contumacious saying: ‘... even if he was in an alcoholic haze at the time, the appellant well appreciated the seriousness of driving in the manner in which he did, and of the possible consequences of that driving.’ Although the situation was ‘perhaps somewhat near to the borderline in relation to consideration of suspension’ there was nothing that would take the case out of the usual run-of-the-mill cases of this type and no error found in declining to suspend [see Valentincic v Police [1997] SASC 6477]. He had prior convictions for unregistered and uninsured driving. Section 205A sets out the disqualification periods for particular offences of driving while disqualified, cancelled or suspended, or unlicensed driving in ss 53 and 54 including for disqualified driving offences arising from the non-payment of fines. 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).. Magistrates' Court Sentencing Guidelines. The defendant received an immediate term of imprisonment of two weeks. The procedural steps to determining penalty are: 1. Extend disqualification if imposing immediate custodyThe court should then consider further adjustment for any aggravating or mitigating factors. 0000002521 00000 n The present case is an example. Driving whilst disqualified potentially carries a sentence of up to 6 months in prison for the most serious offending and at the bottom of the scale a court can impose a fine, as well as a further period of disqualification. 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