Bush Barrister

with Jonathan De Vere Tyndal

Drink drivers could get on the wagon

Drink drivers who do rehabilitation now have a better chance not to lose their licences and avoid conviction. Alcohol and substance rehabilitation recently became a clearer option in sentencing for some crimes, including drink-driving [PCA] offences.

The "intervention" amendment was commenced in NSW on February 24, 2003. The new section 10(1)(c) Crimes (Sentencing Procedure) Act gives the Court another option to not convict, given that the Court otherwise upon conviction of drink driving must disqualify from driving.

Courts already had the power of non-conviction by use of good behaviour bonds, bail conditions and SS 10 & 11. The Magistrates' have helped with the MERIT scheme and Traffic Offenders' Program. But non-conviction under S10 (roughly the old S556A Crimes Act) was only seen in unusual or extenuating circumstances.

But now the Courts have this specific power to discharge drink drivers without conviction, even though they may be guilty. If they break the good behaviour bond, they can be re-sentenced and convicted. But it is discretionary. The extenuating circumstances still have to be there. And the Court has to be satisfied that treatment and rehabilitation in an "intervention program" will reduce the chance of committing further offences. Sentence can be deferred under S 11 for assessment of capacity to do an "intervention" program.

Will the Courts follow the message from Parliament and use this extra discretion for genuine substance abusers, including alcohol, to change their ways?

Clearly, the legislature wants rehabilitation of substance offenders. Rehabilitation by stopping the underlying cause, say drinking or drugging, is a more desirable community outcome than punishment. It addresses cause not effect. [Hansard, 2nd reading speech, 21/11/02 p. 7346]. This is a noble object.

Loss of licence for rural people has far more severe consequences than city folk- isolation, lack of public transport and loss of work. The legislation is imbalanced because it works more harshly on rural drink drivers. Rehabilitation with non-conviction provides balance to sentencing options. It means getting on the water wagon. But maybe at least it's a wagon!

Contact the Bush Barrister, Jonathan de Vere Tyndall, Blandford Chambers, Murrurundi 6546 6572

bushbarrister@bigpond.com

This column contains comment, not legal advice for which you should contact a solicitor. No responsibility is accepted for the accuracy of its contents. All rights are reserved.

• Bush barrister will appear monthly in The Echo.