1st Apr 2013
The Drivers Prayer
Every drink driver that has been charged with an offence says a prayer to the magistrate, called “the drink drivers prayer”, which goes something like this:
“Your Honour please be gentle – give me a section 10.Your Honour please understands that I will never reoffend and that I have learnt my lesson. Your Honour as I have now learnt my lesson please do not take my licence away, as I now realised how important my licence is to every aspect of my life and my family and the consequences are drastic and severe and have many layers of detrimental effect, going beyond the punishment that the court can dish out to me today. Your Honour is there some way you can reduce my punishment?”
The magistrate replies “Well yes I have been granted certain powers under section 9, 10 and 11 of the Crimes (Sentencing Procedure) Act which I can apply in certain limited circumstances. Do you fall with in the circumstances?
As a Magistrate I am required at law to ensure in my sentencing that an offender is adequately punished for the offence, so as to prevent a reoccurrence of that offence, to protect the community and to promote the rehabilitation of the offender. I am required to make the offender accountable for his or her actions, and to denounce the conduct of the offender. In addition I am required to recognise the potential and actual harm done to the community by the offender. Do you understand the obligations imposed on me as a Magistrate?
It is very important to understand the magistrates mind set, and that drink driving offences are serious and not frivolous matters to be treated lightly. Imprisonment the last solution. A Magistrate “must not” sentence a drink driver imprisonment unless no other penalty is appropriate in the circumstances of the case.
If a person is sentenced to 18 months imprisonment or more, the court may direct that the sentence be served by way of home detention as an alternative to imprisonment.
Intensive Correction Orders
If a person is sentenced to less than two years imprisonment, the court may direct that the sentence be served by way of Intensive Correction Order as an alternative to imprisonment.
Community service orders
Instead of imposing a sentence of imprisonment the court may order the offender to perform community service work for a specified number of hours.
Good behaviour bonds (Section 9)
Instead of imposing a period of imprisonment, the court may order that the offender entered into a good behaviour bond, for a specific period of time, and subject to such terms and conditions as the court may consider appropriate. This is called a section 9 “good behaviour bond “
Dismissal of charges and conditional discharge of offender ( Section 10)
A court may find a person guilty of an offence, but without proceeding to a conviction order that the relevant charges be dismissed.
A court may find a person guilty of an offence, but without proceeding to a conviction order that the relevant charges be dismissed conditional upon that person entering into a good behaviour bond or agreeing to enter into an intervention program.
Factors taken into account by a court in determining whether to grant a section 10 include:
- this person is unlikely to reoffend;
- this person good character, antecedents, age, health and mental condition;
- the trivial nature of the offence;
- the extenuating circumstances in which the offence was committed;
- any other matter that the court thinks appropriate to consider.
The court may convicted a personof an offence but not impose any penalty. The conviction however is recorded on the person’s record.
Postponement of sentencing (section 11)
A court may convicted a person of their hands but with out proceeding to impose penalties direct that the matter being adjourned for a period of time to enable the person to demonstrate to the court that they will not reoffend.
The court may require the convicted person to enter into a rehabilitation program or an intervention program or such other requirement as it determines appropriate to give me person an opportunity to demonstrate that they will not reoffend.
The mitigating factors to be taken into account in determining the sentence include:
- injury, emotional harm, loss or damage caused by the offence was not substantial,
- the offence was provoked by the victim,
- the offender was acting under duress,
- the offender does not have a previous criminal record,
- there are good prospects of the offender being rehabilitated,
- the remorse shown by the offender,
- the offender is unlikely to reoffend,
- the offender is a person of otherwise good character,
- the offender has accepted responsibility for his or her action,
- the offender has acknowledged the injury loss and damage caused by his or her action and has made restitution,
- the offender was not fully aware of the consequences of his or her action because of the offender’s age or disability,
- the offender pleaded guilty at the first opportunity