The penalty

This section covers:

  • understanding the penalty
  • negotiating time to pay
  • how to appeal the decision

After considering the facts, prior record, references and your submissions, the magistrate will make a determination as to the penalty. It is often very hard to hear what the magistrate is saying as they may say it quietly and quickly.

Understanding the penalty

The Penalty record sheet should be taken with you to the court so that you can fill in the details.

Some key terms to listen for are:

Section 10 of the Crimes (Sentencing Procedure) Act 1999

"In view of the defendant's long driving record and the circumstances of the offence, I propose to deal with this matter pursuant to s10. I find the offence proven, but do not proceed to record a conviction and..."

either:

"dismiss the charge unconditionally"

or:

"the defendant is discharged upon entering into a bond ..."

and then some conditions such as to be of good behaviour, to undertake the sober driver program.

These are at the very bottom of the scale and do not include either a fine or a period of disqualification. They are self-explanatory, and mean that you do not have a conviction recorded against you and can safely answer "no" to requests for information as to whether you have a criminal record. Matters dealt with under section 10 will come up on your record if you are brought to court again, and it is almost unheard of to be dealt with in this way a second time.

As was noted in Do I need a lawyer?, it is very rare that a magistrate will deal with a serious matter, such as high range PCA, by way of section 10. You can only expect to have your charged dismissed or discharged if the offence is a relatively minor one.

Fine

"You are convicted and fined the sum of ..."

This is normally a simple statement of the amount of the fine. Cheques should be made out to "The Clerk of the Court" and either sent or paid personally to the court of conviction. When making a payment you should attach a separate piece of paper to the cheque setting out your full name, the date your matter was heard and write words to the effect "attached is my cheque in the sum of $X being payment of fine..". Receipts should be asked for and kept in a safe place - mistakes do happen. The result of not paying a fine is that the matter will be referred to Revenue NSW and your licence will be suspended. The SDRO can impose a range of penalties for non-payment of a fine.

Period of disqualification

"You are convicted and disqualified from driving a motor vehicle or holding a licence for a period of X months/years..."

If a starting date is not specified it means that the period of disqualification starts from the day of the conviction: that is, the day you appeared in court. It may be back-dated if your licence was taken at the date of your arrest. Often the magistrate will direct you to hand your licence to a member of the court staff immediately, and you should have your licence ready for this purpose.

NSW alcohol interlock program

This new penalty is available for certain alcohol related driving offences. (See Interlock program) If you are eligible to enter the program and, after reading the information in Some additional matters, decide to participate you will need to ask the magistrate to make a Disqualification Suspension Order. You should wait until the magistrate has indicated the disqualification period and then state:

"Your Honour, I would like to participate in the interlock program and ask that you make a Disqualification Suspension Order".

Bond

These are uncommon for this type of offence, however some magistrates deal with traffic matters in this way.

"You are convicted and ordered to enter a bond under section 9 to be of good behaviour for a period of two years..."

What this means is that you agree to be of good behaviour for a period of two years.

Following this type of penalty you do have a conviction, you may be fined as well and you will be disqualified for a period of time.

The bond is broken for any criminal offence including, of course, another drink-driving matter. If you breach the bond you will be brought back before the court and re-sentenced for the original offence. If you breach the bond you should consult an experienced criminal lawyer.

If it is your second alcohol related driving offence in the past five years you may be ordered to complete the sober driver program as a condition of the bond.

Community service

"You are convicted and in lieu of a sentence of imprisonment I order you to perform 100 hours community service under the supervision of the XYZ Community Offender Service..."

Community service is available as a sentencing alternative to imprisonment. You will not be sentenced to community service without a report first being furnished to the magistrate by a probation officer to assess your suitability.

If it is your second alcohol related driving offence in the past five years you may be ordered to complete the sober driver program .

As discussed above, if you are at risk of imprisonment you should seek legal advice.

Suspended sentences

Suspended sentences are also an alternative to imprisonment. The magistrate, after imposing a prison sentence, may then suspend the sentence on the condition that you enter a bond to be of good behaviour. The bond may also have other conditions placed on it such as competing the sober driving program. If the bond is breached the full term of the original prison sentence must be served.

As discussed above, if you are at risk of imprisonment you should seek legal advice.

Asking for time to pay a fine

If you have completed your submissions in accordance with this book, the magistrate will have a fair idea of your ability to pay. However, the only order that the magistrate can make is for 28 days to pay. If you cannot pay the fine within the 28 day period you should see the staff at the court office who will be able to assist you.

Appeals

You have 28 days from the date of conviction to appeal. The appeal is lodged at the clerk of the court's office, usually at the same court at which you were convicted. You will be required to pay a filing fee (see Local Court criminal fees) and upon lodging the appeal any penalty ordered by the magistrate is stayed. What this means is that if the magistrate ordered a period of disqualification you may drive until the appeal is heard. However, if your licence was suspended at the time of your arrest this does Not apply.

The appeal will be heard in the District Court before a judge. There are two principal forms of appeal: "all grounds" and "severity". An "all grounds" appeal means that you are challenging the conviction itself. "Severity" means that you are challenging the harshness of the penalty.

You should not appeal to the District Court without first obtaining advice from an experienced criminal lawyer. What seems a harsh penalty to you may not have any chance of success at the appeal. Running an appeal in the District Court is very different to a plea of guilty in the local court and is beyond the scope of this guide.

It is possible, but unusual, for the prosecution to appeal the decision of the magistrate. The police have 28 days to appeal. If this occurs you will be notified in writing and should seek the advice of an experienced criminal lawyer.