It’s just a drink driving offence, I can’t go to jail. Can I?

Close up of beer glass with frothMost motorists pleading guilty to their first drink driving charge will receive a fine and a loss of their licence.  It is however open for the Magistrate to impose an actual period of imprisonment, especially where it is a repeat drink driving charge.

For some drink driving offences, the law says that the court must impose, as the whole or part of the punishment, imprisonment.

Sentence

When you enter a plea of guilty to a traffic matter the Magistrate must decide, not only the length of your disqualification, but also whether you will be fined, given a community based order or sentenced to a period of imprisonment.

The Court will look at various factors including:

  1. your reading at the time of the offence;
  2. the circumstances surrounding the offence; and
  3. your criminal and traffic history.

First time drink driving penalties

For a first time drink driver the maximum penalties are:

BACLicence DisqualificationMaximum fineMaximum Imprisonment
0.0%3 to 9 months$1,7063 Months
0.05 and over, under 0.101 to 9 months$1,7063 Months
0.10 and over, under 0.153 to 12 months$2,4386 Months
0.15 and over, Minimum of 6 months$3,4139 Months

Read more about BAC limits in our previous blog post.

Repeat Drink Driving Charge

Imprisonment becomes an option where the court is sentencing you for a repeat drink driving charge.  Repeat drink drivers face higher penalties than first time drink drivers.  In addition to the power to impose a period of imprisonment the court can also:

  1. Have your car impounded (if you refuse to provide a specimen of breath or blow over 0.15%;  Read more about impoundment powers here.
  2. Disqualify your licence for up to two years;

What is a Repeat Drink Driver?

A repeat drink driver is a person who has been sentenced for an offence outlined above within the last 5 years.  The Court will look at the totality of your traffic history in deciding which penalty to apply, however the legislation defines a repeat drink driver as a person convicted within the last five years.

What should I do if I am a repeat drink driver?

If you are intending to enter a plea of guilty to a repeat drink driving offence you should consider your reading, the circumstances of the offence and your traffic history.  If you are concerned that you might be facing a period of imprisonment you should contact a traffic lawyer for advice.

A program such as the Queensland Traffic Offenders Program will assist you to demonstrate rehabilitation.

More Drink Driving Articles

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Drink Driving – Go Straight to Jail, Do Not Pass Go.

Gold Coast Drink Driving Lawyers

Most Queensland motorists understand that if they are caught drinking and driving, they will be disqualified from holding or obtaining a Queensland driver’s licence for a period of time.  By and large our job as experienced Gold Coast Drink Driving Lawyers is to minimise the period of disqualification or to secure a restricted work licence or special hardship order.

Mandatory Imprisonment for multiple drink driving offences.

Mandatory Imprisonment for multiple drink driving offences.

When people attend upon us for traffic law advice they are often shocked to learn that in prescribed circumstances they must receive a mandatory prison sentence.

The  legislation provides that if you are convicted of driving under the influence of alcohol for a third time within a period of five years, then you must receive a penalty of imprisonment as the whole or part of your punishment. A person is deemed to be under the influence of alcohol if they have a blood alcohol concentration that equals or exceeds 0.15%.

This means that if you have two drink driving offences over .15% within the last five years and are convicted of a third offence, the Magistrate or Judge has no option but to impose a penalty that includes imprisonment (whether actual or suspended). This will be in addition to any disqualification of your driver’s licence and any other punishments that may be imposed.
If you find yourself in the situation where you are looking at a third drink driving offence it is imperative that you speak with a Lawyer who specialises in traffic law to make certain that you obtain proper advice and representation.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Vicious Lawless Association Disestablishment Bill

Criminal motorcycle gang members will face mandatory jail terms of up to 25 years as part of a range of new and increased penalties to be introduced in Parliament by the Newman Government today.

Under our Vicious Lawless Association Disestablishment Bill, criminal gang members convicted of certain offences will be declared ‘vicious lawless associates’ and hit with an extra 15 years mandatory jail time on top of their sentence.

A further mandatory term of 10 years will apply if the offender is an office bearer of the criminal organisation.

Tattoo parlours will also require licenses from next year. Current and prospective proprietors will need to be fit and proper persons and will undergo police checks before their application is approved.

Three new offences, specifically targeting criminal gangs, would also be created.

The new offences are:

  • Knowingly gathering in groups of three or more members in a public place (including riding)
  • Going to banned locations (e.g. clubhouses)
  • Promoting or recruiting for the organisation.

These new offences will carry mandatory six month jail terms, with a maximum of three years in prison.

Increased penalties include:

  • Mandatory one year in prison for serious assault of a police officer
  • Mandatory six months in prison for affray with the maximum penalty increased from one year to seven years
  • An $11,000 fine (double the current penalty) and disqualified license for two years for evading police.

The reforms would also strengthen Queensland’s crime fighting bodies and courts. The Crime and Misconduct Commission unprecedented powers to haul in CMG members and question them for intelligence gathering purposes. If members don’t co-operate, they face mandatory jail time, if they don’t answer questions during coercive hearings by the Crime and Misconduct Commission, they face mandatory jail time for contempt. If they refuse again, they get more jail time.

Mandatory jail terms for contempt are:

  • First offence – at the Supreme Court’s discretion
  • Second offence – two-and-half years
  • Third offence – five years.

Criminal motorcycle gang members also face losing their Motor Cycles which the Government proposes to crush. If a member uses his bike immediately before, during or after committing many of these offences, we will confiscate it and crush it. Without his bike. Other vehicles used by gangs will also be able to be confiscated and crushed under the reforms.

In our view this is an appalling piece of legislation that unfairly discriminates against a group or class of people based solely on the their membership of a particular organisation.

We are reminded of the words of Niemöller:

First they came for the communist,
and I didn’t speak out because I wasn’t a communist.

Then they came for the socialist,
and I didn’t speak out because I wasn’t a socialist.

Then they came for the trade unionist,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for me,
and there was no one left to speak for me.

If you or someone you care about is facing Criminal Motorcycle Gang charges or offences for being associated with a Criminal Motorcycle gang, contact Gatenby Criminal Lawyers immediately.

MANDATORY SENTENCES

 

Mandatory sentencing has always been actively contested and denounced for years by bodies such as the Queensland Law Society, the Queensland Sentencing Advisory Council as well as other civil libertarian associations throughout the state.
Jail Cell
Mandatory sentences do not work.

 

Magistrates and Judges, although bound by legislation, are usually given a wide discretion to determine the appropriate penalty for various offences. The legislation generally prescribes minimum and maximum penalties that ought be imposed.
One of the cornerstones of a just and fair judicial system, is the discretion afforded to our courts in sentencing offenders. There is no such thing as a “standard offence”. The circumstances  of each  offence, like the personal circumstances and antecedents of an offender  are almost never the same. A judicial discretion takes these matters into account.
All mandatory sentencing does is increase the prison population at substantial additional cost with no benefit to the community.   It has been proved to be unreasonable and counter-productive in the past in Queensland, the Northern Territory and Western Australia.”
Qld Law Society President John de Groot.
Generally, a sentencing ranges are established through precedent and the decisions of the superior courts (District, Supreme, Court of Appeal and ultimately High Court). An aggrieved party, either the Attorney General or the convicted person, can appeal the decision based upon either the inadequacy of the sentence or its excessive term.
Sentences imposed by the superior courts generally bind both Magistrates and Judges, as they must show parity across the sentencing range with their judicial colleagues.  Nevertheless, sentencing judges still hold the ultimate discretion in deciding what the appropriate sentence range is having regard to the circumstances and nature of the offence and the offender.
Gatenby Criminal Lawyers is opposed to any mandatory sentences either in respect of periods of imprisonment, fines to be imposed or disqualification periods. It is our view that all matters turn on the merit of the facts and the circumstances of the offender. The “one sentence suits all” is misguided and leads to unfairness and prejudice.
If you have been charged with an offence that carries a mandatory sentence, call Gatenby Criminal Lawyers now  on (07) 55800 120 and speak with one of our experienced criminal solicitors. The first consultation is free.  We may be able to highlight a defence to the charge or alternatively negotiate an alternate charge not having a mandatory sentence.

WEAPONS ACT

New mandatory imprisonment for selected firearm offences.

New mandatory imprisonment for selected firearm offences.

The Weapons and Other Legislation Amendment Bill 2012, amended the Weapons Act 1990 (the Act), the Corrective Services Act 2006 (CSA) and the Penalties and Sentences Act 1992 (PSA) to impose mandatory minimum periods of imprisonment where the offences of unlawful possession (s 50), unlawful supply (s 50B) and unlawful trafficking (s 65) of weapons are committed in certain circumstances.

The legislation now provides 18 months imprisonment served wholly in a corrective services facility where an adult unlawfully possesses a firearm and it uses the firearm to commit an indictable offence where the unlawful possession is related to:

  1. 10 or more weapons where at least Category D, E, H or R weapons; or
  2. 10 or more weapons; or
  3.  A category D, H or R weapons; or
  4. A category C or E weapon.

One year imprisonment in a corrective services facility where an adult unlawfully possesses a firearm for the purpose of committing or facilitating the commission of an indictable offence in circumstances where the unlawful possession is related to:

  1. 10 or more weapons where at least Category D, E, H or R weapons; or
  2. 10 or more weapons; or
  3.  A category D, H or R weapons; or
  4. A category C or E weapon.

One year imprisonment in a corrective services facility where an adult unlawfully possesses a short firearm in a public place without a reasonable excuse where the unlawful possession is related to:

  1. 10 or more weapons where at least Category D, E, H or R weapons; or
  2. 10 or more weapons; or
  3.  A category D, H or R weapons; or
  4. A category C or E weapon.

Nine months imprisonment served wholly in a corrective services facility where an adult unlawfully possesses a category A or B firearm and uses that firearm to commit an indictable offence.

Six months imprisonment served wholly in a corrective services facility where an adult unlawfully possesses a category A or B firearm for the purpose of committing or facilitating the commission of an indictable offence.

An adult who unlawfully supplies five or more weapons where at least one of the weapons supplied is a short firearm, without a reasonable excuse, is liable to 3 years imprisonment served wholly in a corrective services facility.

An adult who is unlawfully supplies less than five weapons, where at least one of the weapons supplied is a short firearm, without a reasonable excuse, is liable to 2 1/2 years imprisonment served wholly in a corrective services facility.

An adult who unlawfully traffics in category H or R weapons, without a reasonable excuse and at least one of the weapons is a firearm is liable to 5 years imprisonment, served wholly in a corrective services facility.

An adult who unlawfully traffics in category A, B, C, D or E weapons, a category M crossbow or explosives without reasonable excuse and at least one of the weapons is a firearm, is liable to 3 1/2 years imprisonment served wholly in a corrective services facility.

In our view the fettering of judicial discretion is unfair, unworkable and contrary to our international treaty obligations. Nonetheless the bill has now passed and mainly Tory periods of imprisonment apply or possession of weapons as categorised above.

TWO STRIKE LAW FOR SEX OFFENDERS

The Criminal Law (Two Strike Child Sex Offenders) Amendment Bill 2012 amends the Penalties And Sentences Act 1992 to insert a new major Tory sentencing regime of life imprisonment for certain repeat child sex offenders and further amends the Corrective Services Act 2006 to prescribe a minimum non-parole period of 20 years imprisonment for an offender sentenced to mandatory life imprisonment under the new sentencing regime.

The new regime applies where:

  1. An adult offender is convicted of a relevant serious child sex offence (as defined in the Bill):
  2. Such offences committed after the commencement of the bill:
  3. The offender has a prior conviction as an adult for a relevant serious child sex offence stop paragraph the second offence is committed after the conviction of the first offence.

The court in sentencing the offender on that second occasion, must impose life imprisonment which cannot be mitigated or varied.

In our view the fettering of judicial discretion is unfair, unworkable and contrary to our international treaty obligations. Nonetheless the bill has now passed and mandatory periods of imprisonment apply or possession of weapons as categorised above.