Blood Alcohol Concentration limits in Queensland

Drink Driving OffenceQueensland police have the power to intercept motorists for “random breath tests”.  They are looking to determine the quantity of alcohol in your breath or blood.  The reading is expressed as a percentage of your alcohol in your blood.  That is a BAC of 0.05 means that for every 100 millilitres of blood in your body you have 50 milligrams of alcohol.

BAC Limits

In Queensland there are four alcohol limits.  The limits are used to determine the action police can take if you are caught drink driving.  From immediate suspension or cancellation of your licence to forfeiture of your car, the BAC reading plays an important role in the drink driving process.  The duration of any disqualification is also determined by your BAC.

The limits that apply in Queensland are:

  1. No alcohol limit – you will exceed this limit of your BAC is greater than 0.0%
  2. General alcohol limit – you will exceed this limit if your BAC is equal to or greater than 0.05%
  3. Middle alcohol limit – you will exceed this limit if your BAC is equal to or greater than 0.10%
  4. High alcohol limit – you will exceed this limit if your BAC is equal to or greater than 0.15%

Legal BAC limits

All open licence holders except motor cyclists in their first twelve months and those in the no alcohol range may lawfully drive on Queensland roads with a BAC under the general alcohol limit.

No alcohol

All learner drivers, P1, P2 provisional, probationary or restricted licence holders are prohibited from having any alcohol regardless of their age.

This class of driver includes:

  • Public transport drivers such as bus, limo, or taxi drivers etc;
  • Truck drivers exceeding 4.5t, an articulated motor vehicle etc;
  • Tow truck drivers, pilot or drivers escorting an oversized vehicle;
  • Driver trainers while giving driver training;
  • A specially constructed vehicle, including a tractor; or
  • emergency service personnel while they are engaged in their employment.

Also included in the no alcohol class are all RE motorcycle licence holders during the first 12 months of their class of licence.

Factors affecting your BAC

There are a number of factors that impact upon your ability to absorb and expel alcohol from your system.  You should note that as soon as you consume alcohol your BAC will start to rise.  The level is unlikely to peak for up to an hour after you have stopped drinking and will remain in your system for some time.  Factors that affect the BAC include:

  • The quantity of alcohol consumed;
  • The period the alcohol is consumed over;
  • Your body weight
  • When you last ate;
  • Your fitness level;
  • The health of your liver;
  • How regularly you drink;
  • Your mood;
  • Your sex; and
  • The type of alcohol consumed.

The list is not exhaustive and there are many factors that impact upon your BAC. The safest approach is not to drink at all if you intend to drive. There are many people who are charged with drink driving because they have miscalculated one or more of the factors.

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.

President of the Court of Appeal Announces Resignation

Criminal lawThis week the Court of Appeal President, Margaret McMurdo announced her intention to resign her position effective 26 March 2017.  Her Honour has been a judge in Queensland for more than 25 years, since becoming the first woman appointed to the bench of the District Court in 1991.  Her Honour’s appointment as President of the Court of Appeal, saw her the the first woman to preside over an appellate court in Australia

Justice McMurdo is a Companion of the Order of Australia and was awarded a Centenary Medal in 2003.

After being admitted to the bar in 1976, she spent time as an assistant public defender and at the private bar. She was also a founding member of Women Lawyers Association.

 

Qld set to overturn Barbaro & Zirilli v The Queen [2014]

Statue of justiceBarbaro & Zirilli is a 2014 High Court Decision which effectively brought to an end the practice of Prosecutors providing the Court with an appropriate sentencing range.  Until 2014 it was usual for the prosecution to provide the Court with assistance not only as to the facts of a sentence but also with a range that the Crown considered appropriate for the offending.

The case itself involved conspiring to traffic a commercial quantity of MDMA, trafficking a commercial quantity of MDMA and attempting to possess a commercial quantity of cocaine.

The accused men, Mr Barbaro and Mr Zirilli agreed to enter pleas of guilty following discussions between their lawyers and the prosecution.  During those discussions, the prosecution expressed its view as to the range of sentences that might be imposed on each applicant. The prosecution told the applicants’ lawyers that the “sentencing range”, in Mr Barbaro’s case, was a head sentence of 32 to 37 years with a non-parole period of 24 to 28 years and, in Mr Zirilli’s case, a head sentence of 21 to 25 years with a non-parole period of 16 to 19 years.

At the sentencing hearing, Justice King, advised that she would not receive from either party submissions about sentencing range.  The prosecution, in those circumstances did not make any submission about what range of sentences could be imposed.  Mr Barbaro was sentenced to life imprisonment with a non‑parole period of 30 years.  Mr Zirilli was sentenced to 26 years’ imprisonment with a non‑parole period of 18 years.

The High Court dismissed both appeals.  The Court held, by majority, that it is neither the role nor the duty of the prosecution to proffer some statement of the bounds within which a sentence may be imposed.  It is for the sentencing judge alone to decide what sentence will be imposed. As a consequence the practice of providing the Sentencing Court with assistance as to the sentencing range came to an end.

The Queensland Government has indicated that it will introduce legislation into Parliament that will reinstate the ability of a court to receive submissions from both the prosecutor and defence on what they considered was the appropriate sentence or range of sentence that should be imposed.

The proposed legislation will return proceedings to the situation that existed prior to the High Court decision in Barbaro & Zirilli v Queen [2014] and will improve consistency in sentencing, as well as assist in the efficient running of courtrooms.

GATENBY CRIMINAL LAWYERS OPENS IN BRISBANE CBD

Level 19, 10 Eagle Street

Level 19, 10 Eagle Street

Brisbane Office Now Open.

We are pleased to announce the expansion of Gatenby Criminal Lawyers to the Brisbane CBD, with the opening of the Eagle Street Offices.

Brisbane Criminal Defence Lawyers.

Set to accommodate the demand for quality Brisbane Criminal Defence Lawyers, the team has taken their boutique criminal law firm to the Brisbane CBD.

The move follows on from the success of the Gold Coast Office, and sees Gatenby Criminal Lawyers establishing a permanent presence in the states capital.   The move will provide greater access to the State’s Supreme Court as well as the Court of Appeal.

Brisbane Criminal Defence LawyersContact Details.

Our new offices are located at:

Level 19, 10 Eagle Street, Brisbane

We can be contacted on (07) 3303 0248, and are now taking appointments.

Queensland Searches For New Chief Justice

Queensland is seeking the appointment of a new Chief Justice.

Queensland is seeking the appointment of a new Chief Justice.

New Chief Justice Sought

Gold Coast criminal lawyers have long sought the introduction of regular sittings of the Supreme Court at Southport.  While the current Chief Justice has arranged for a number of sentences to be conducted at the Southport Court precinct, Gold Coast criminal lawyers will undoubtably be agitating for a permanent Supreme Court, when the new Chief Justice is announced.

Governor General Appointment.

With the appointment of current Chief Justice, Paul de Jersey Queensland’s next Governor General, the hunt is on for the person who will fill his robes.   To facilitate a smooth transition, the new Chief Justice will be appointed before Justice de Jersey is sworn in, as Governor General on 29 June 2014.

Candidates must be eligible to be a judge, which means at least five years standing as a solicitor or barrister of the Supreme Court.

His Honour, Chief Justice DeJersey has been a long supporter of Gold Coast Criminal Lawyers with regular attendances at the Gold Coast District Law Association AGM.  It is hoped that His Honour’s replacement will continue to make time for Gold Coast practitioners.

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.

SENTENCING CONSIDERATIONS

It is an important sentencing principle that parity exist in sentences imposed for like offences.  In a diverse state such a Queensland, with three levels of Courts; Magistrates, District and Supreme, there needs to be an overriding set of guidelines to ensure that sentences imposed upon offenders are consistent.  The Penalties and Sentences Act sets out the parameters within which the courts must operate.

The legislation does this by setting out the purpose of imposing sentences and then establishes the principles that the Court is to apply in achieving those purposes.

The purpose of imposing a sentence can be classified as one or more of the following:

  1. To punish the offender to an extent or in a way that is just in all the circumstances;
  2. To provide conditions will help the offender to be rehabilitated;
  3. Deterrence, both personal and general;
  4. Denunciation of the offending conduct;
  5. Protection of the Queensland community from the offender;

In most non-violent offences the starting point in sentencing is that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable.

The Court must also have regard to the maximum and any minimum penalty prescribed for the offence and how serious the offence was, including any physical, mental or emotional harm done to a victim.  Particular regard is to be had to the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence.  The court should also have regard to the prevalence of the offence.

Consideration is also had to the extent to which the offender is to blame for the offence and the presence of any aggravating or mitigating factors such as any damage, injury or loss caused by the offender.

Matters particular to the accused are also relevant such as the offender’s:

  1. character,
  2. age;
  3. intellectual capacity;
  4. assistance given to law enforcement agencies in the investigation of the offence or other offences.
  5. time spent in custody awaiting sentence;
  6. sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing;
  7. compliance with previous community based orders
  8. attendance at a rehabilitation, treatment or other intervention program or course while on bail.

Each of these principles is to be taken into account in determining the appropriate sentence.  What often becomes difficult for the sentencing court is to balancing the various competing interests.  An experienced criminal lawyer is able to highlight the positive features, and mitigate the sentence imposed.

OFFENDER LEVY

Defendants found guilty of offences in the Supreme, District and Magistrates Courts will pay an offender levy with recent amendments to the Penalties and Sentences Act 1992 (“the Act”).

The levy will apply as follows:

  • Supreme Court       $300.00
  • District Court          $300.00
  • Magistrates Court    $100.00

This levy will apply to all adult offenders; there are no exceptions regardless of the nature of the offence or the offender’s personal circumstances.

The offender levy is automatically imposed at the conclusion of sentencing as an administrative levy and is in addition to any other sentence imposed.

The levy must not form part of the sentence with the court prohibited under section 48 of the Act from taking the levy into account when considering the financial circumstances of an offender. Section 9 of the Act also precludes the court from considering the levy when imposing its sentence

The levy is payable per sentencing event regardless of the number of convictions or whether or not a conviction is recorded.

Defendants will need to be vigilant to ensure that summary matters associated with more serious offences are resolved at the same time. The practice of clearing up minor offences following sentence in a superior court would not seem to meet the definition of a sentencing proceeding and would attract a second offender levy.

No further levy is payable by the offender where the Court is called upon to resentence by:

  1. Substituting another sentence;
  2. Further deal with the offender including the making of a further order; or
  3. Confirming, varying or amending the sentence or order made on the original sentence.

If upon appeal all convictions that resulted in the imposition of the offender levy are quashed the proper officer must refund to the offender any amount paid to the proper officer for the offender levy.

The act is retrospective; that is the relevant date is conviction and not the offence date.  Therefore those convicted of an offence after 21 August 2012 will be required to pay the offender levy in addition to any other sentence imposed.

The Court is required to pass on the offender’s details to the State Penalties Enforcement Register (SPER). The proper officer of SPER is then required to collect the levy in the usual course of its business.  Caution will need to be exercised, as the recording of incorrect particulars with SPER will result in a default.  SPER has far reaching powers including the ability to suspend a persons Queensland Drivers Licence.

The Penalties and Sentences and Other Legislation Amendment Bill 2012 also included an increase to the value of the penalty unit from $100 to $110.

The penalty unit is the basic monetary value for most fines and penalty infringement notices issued by courts, police and other Queensland agencies.