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Criminal
Due to the recent law reform, regulations in relation to drink driving offences were strengthened. Mandatory interlock for mid-range offenders Since 1 December 2018, all drivers convicted of mid-range (between 0.08 and 0.149) drink driving offences in NSW are required to have an interlock installed. In other words, it mandatorily requires an interlock installation unless a court order is given to nullify the application of the interlock program. The interlock program has been expanded so that it also applies to drivers who commit a lower or mid-range drink driving offence for the first time. An interlock is an electronic device connected to the ignition of a vehicle for breath testing. In accordance with the law reform, drivers convicted of mid-range offences are ordered to complete a licence disqualification period for 3 to 6 months and a period of participation in the interlock program for at least 12 months. It may appear that the regulations have been loosened compared to previous penalties which required 6 to 12 months licence disqualification. Notwithstanding, the interlock program would be a more effective deterrence for those who commit repeat or serious drink-driving offences. Drivers who are given the interlock program order may appeal to the court that an alternative order be imposed, and such appeal is accepted only to the cases of an applicant having special medical reasons - an applicant not having a car or financially incapable of installing the interlock. In fact, the interlock program has been applied to drivers convicted of high-range (over 0.150) offences or more than second-time offences. For all drivers that are ordered a mandatory interlock, an interlock device should be installed for a period that the court ordered at the offender’s cost (approximately $2,200 per year). Those who fail to install the interlock device might be ordered to complete five years of a licence disqualification. Increased fines for drink driving offenders From 20 May 2019, a maximum court-imposed fine for those who are convicted of drug driving, lower-range or special range drink driving offences will increase from $1,100 to $2,200. For mid-range drink driving offences, the maximum court-imposed fine and prison term will be strengthened from $2,200 and nine months to $3,300 and nine months. In addition, drivers who commit a lower-range drink driving offence will have their licence immediately suspended for three months coupled with a $561 fine from 20 May 2019, which previously required a formal court proceeding. However, drivers whose licence are suspended may appeal to the court if unsatisfied with their penalties. Immediate suspension of licence Drivers charged with lower-range drink driving offences before 20 May 2019 may maintain their licences until they are found to be guilty before the court. If the court decides that drivers are found guilty but have no conviction recorded, their licences may not be suspended. Contrarily, those who are charged with mid-range drink driving offences will have their licences suspended by the police, and they are prohibited from driving until the court decision. The recent law reform in Parliament empowers the police to have licences for lower range, novice range or special range drink drivers suspended immediately from 20 May 2019. That reform prohibits those charged with drink driving offences from driving any car until a final decision is made, even though the court finds them not guilty of those offences. For instance, if driver A who has held his licence for 40 years without any criminal conviction commits a drink driving offence (testing result between 0.05 and 0.079) for the first time, he or she is restricted from driving until the court gives a final decision. An initial hearing, in practice, is assigned four to six weeks after the date the charge was imposed. It may take a further two weeks in case of appeal. An additional period may be required if a traffic offenders program is ordered. It might have a significant impact on those who are in need of using their car for work or family members.
Criminal
The most common crime committed by Korean people in Australia will most likely be drink driving. If you go to Burwood Local Court, on average there are two to three Korean people that appear for drink driving charges. Even amongst the police, the first thing that comes to mind when the word ‘Korean’ is mentioned is ‘drink driving’ and hence why the police hide in areas such as Strathfield and charge Koreans who drive under the influence of alcohol. Drink driving cannot be thought of as a mere violation of traffic laws. It is a criminal offence that can remain on the charge list. It does not end with a mere fine but rather it is a serious offence which can be taken to court where you will stand trial in front of a judge. In most cases, licences will be revoked. Overall, it is not a pleasant experience if you are caught under the influence, as you will be arrested on the spot and taken to a police station where you will spend some time in the cells. As previous columns discussed in detail punishments and suspensions related to drink driving, this column will focus on cases of drink driving and the initial response associated with them. During consultations with clients, the most asked question is “Can I get a Section 10?” The reason for this is that in order to avoid licence suspension, you must obtain a Section 10. However, the question cannot be answered so easily. A judge can only give advice on such a question after reviewing various avenues. The second most frequently asked question is “Do I need a lawyer?” This also depends on the situation. Conditions such as the following need to be taken into consideration before deciding whether a lawyer is required: How important is it to reduce the licence suspension period; What are the chances of obtaining a Section 10; and How much will be fined. Looking at the two examples below, let us see what will happen if you’re caught under the influence. Example 1: 65 year old woman named “Y” “Y was invited to dinner one evening and was served with a course meal. With every course that was served, complimentary wine were also provided and at the recommendation of the chef, she drank little sips of the wine. After two hours, once the meal had concluded, she decided she was too drunk to drive. She spent approximately two hours to sober up and then began to drive. On the way home, she was caught by the police for using her mobile phone whilst driving. The police turned on the siren and chased her, but she did not see them and continued to drive for approximately two to three km. The police stated that the car had been moving side to side and at times nearly hit the cars beside her. Eventually, the police stopped her and took a breath test and she was charged with Mid-Range PCA due to a blood alcohol reading of 0.089.” Mid-Range PCA (0.08-0.149) carries a fine of $2,200 or less for first time offenders or a prison sentence of up to nine months including licence suspension of at least 6-12 months. Firstly, obtaining a Section 10 for Mid-Range offences is very difficult. Section 10s are only given to ‘very special cases’ by the judge. Most people who request a Section 10 consider their case as special. However, for a judge who deals with 40-50 drink driving cases a day, a case must be considered really special to obtain a Section 10. Y appointed me as her lawyer and immediately pleaded guilty. On behalf of the client, I provided a detailed description of the situation and the client’s background to the judge. However, the judge did not want to hear anymore and was furious as to the fact that the client had been driving dangerously whilst under the influence and did not see the police chase her for two to three km. On the other hand, I continued to explain the client’s situation to the judge. I explained that this situation is an exceptional case, as Y who does not usually consume alcohol has contributed a lot to society as a community member and does not have any past criminal records. I persuaded the judge by stating that Y has learnt a lot from her mistakes through this case and has shown a lot of remorse for her actions. Not only this, but that Y would never commit such crime again and that losing her licence would not only have a great impact on her but also will have a great impact on her ability to volunteer to help the elderly who live alone. Y was able to obtain a Section 10 and avoid licence suspension. Example 2: 26-year-old male named “K” who came to Australia on a working holiday “K was drinking alcohol at Strathfield and at approximately 1 am he drove home. His place of residence is an apartment located in Strathfield which is approximately 2 km away from where he consumed alcohol. When making a right turn on the way to his house, he crashed his car into a wall. The police arrived at the scene and he was charged with High-Range PCA with a blood alcohol level of 0.165.” High-Range PCA (0.15 and over) offences are subject to a fine of $3,300 or less for first time offenders or a prison sentence of up to 18 months, a licence suspension of at least 6 - 9 months and an Interlocking period of at least 24 months. The licence suspension is shorter than a Mid-Range offence; however, the period for which the Interlock is to be installed is longer. An Interlock is a control device which conducts a breath test and only when the blood alcohol concentration level is 0 will the car start. The cost of an Interlock machine is approximately $2,200 per year. K appeared in court without a lawyer and pleaded guilty. The judge tried to impose a prison sentence and asked for him to obtain a Pre-Sentence Report in order to determine his background information, thereby postponing the sentence by six weeks. K’s Pre-Sentence Report was very negative. The report was obtained through an interview with K whereby the interviewer stated, ‘K does not take his crime seriously and thinks it is sufficient to only pay a fine’. The judge read the report and indicted K with 400 hours of community service, a nine-month licence suspension and 36 months of Interlock installation. Due to the accident, his car was destroyed. However, he failed to advise the judge of this and as a result was charged with the above. K came to me after this occurred and complained about the procedural unfairness he received, which led to an appeal of the decision. The case was appealed in the District Court and after taking into consideration several factors, the client additionally received an $800 fine and a minimum licence suspension period of 12 months due to being exempt from installing the Interlock machine. If K had consulted with a lawyer prior to the initial charge, he could have avoided the severe punishment he received and would not have had to pay such an extensive amount of money. Even though it was a High-Range PCA charge, 400 hours of community service for first-time offenders is a very severe punishment. If the judge had been persuaded that there was no car available to install an Interlock then the client could have avoided the Interlock installation period. As can be seen in the examples outlined above, depending on the situation that arises, different outcomes can occur. Although you can obtain information from these columns and articles on traffic offences and laws, due to your lack of expertise it will be hard to determine what type of punishment will be applied in your situation. Even if you do not appoint a lawyer, I recommend you seek professional advice from a criminal law specialist.
