SENTENCING STANDARDS FOR DRIVING DISQUALIFIED OR DRIVING WHILST SUSPENDED

September 11, 2014

Penalties for driving licence offences imposed by Courts are set to increase significantly following a review by the Supreme Court of cases finalised over the last three years. The Court noted that the most common major penalty for driving licence offences was a fine and it appeared that the need to impose penalties that will deter others from committing such offences hasn’t been given sufficient weight. According to the Supreme Court, as a matter of principle, sentences of immediate imprisonment will often be justified even in the case of first offenders who show little regard for orders of licence disqualification or suspension.

The need to consider the types of penalties that have been imposed for charges such as driving while disqualified or driving under suspension arose when a man with three previous convictions for driving while disqualified received no penalty and was released on a bond for two further breaches. The man, who had already had his licence suspended, was also charged with avoiding an alcotest by driving off and being involved in a high speed pursuit with children in his car and then two months later driving again when he failed to give way to a police car while he was on bail with a condition not to drive.

There is a general principle that the Supreme Court will not interfere with a Magistrate’s sentencing decision when the prosecution want to appeal unless it is necessary to avoid some manifest inadequacy or inconsistency in sentencing. Nevertheless, in this case the Supreme Court took the view that to allow the sentence to stand would seriously erode sentencing standards for this kind of offence.

In February 2013 the driver had received an ‘on the spot’ or ‘instant loss of licence’ from police after he had been caught speeding by 45 kph or more. In April 2013 while still subject to that licence disqualification, he was detected driving in a dangerous manner and failed to submit to a police alcotest when he took off after being asked to submit to a random breath test reaching speeds of possibly 120 kph. Although the police pursuit was stopped due to the danger involved, five days later he surrendered himself to police and was arrested and bailed with a condition of his bail agreement that he not occupy the driver’s seat of a car. Then in June 2013 police again caught him driving when he failed to give way to a police car. He was charged with breaching his bail condition, driving while under suspension, failing to give way and stating false personal particulars. He spent seven days in custody and was then released on bail.

The man had three previous convictions for driving whilst disqualified, one in 1999 for which he was fined and two in 2000 for which he received a suspended sentence of imprisonment. Taking into account a period of three weeks that the man had already spent in custody while waiting for these charges to be finalised, the Supreme Court imposed a sentence of imprisonment for 3 months but indicated that a more appropriate penalty would have been 15 weeks imprisonment.

In reaching this conclusion the Court noted that general deterrence, or the need to impose a penalty that discourages other people from committing the same offence, was important for these offences. The risk of licence disqualification or suspension is important in ensuring obedience to the road rules and thereby the safety of the public and people who are disqualified from driving should have no doubt about the serious consequences of driving while disqualified. Therefore it is crucial that these orders are strongly enforced and sentences of immediate imprisonment will often be justified even for first offenders and for repeat offenders it is difficult to contemplate circumstances that would justify a non-custodial sentence. The court indicated that generally, reasons such as loss of employment, financial loss or domestic reasons are weak excuses for driving disqualified and anything less than a medical emergency or duress would suggest that the person did not place importance on the order.

A charge of driving while disqualified or driving under suspension is serious, and this case makes it clear how the Courts must deal with these offences. Anyone who is charged with a driving licence offence should seek legal assistance without delay. Websters Lawyers offer a free first interview with a specialist criminal and traffic lawyer to advise you on how this most recent decision on penalties for driving while disqualified will impact on your case.

Police v Nissen [2014] SASCFC 77