John Kahn 04 Aug 2018
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:
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.