Canberra's drunk drivers could be facing a stiff increase in penalties, with a possible doubling of the length of time they are forced off the road.
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The push for greater use of the default driver's licence disqualification period is coming from within the courts, both magistrates and supreme, not from any direct action from within the ACT Legislative Assembly.
The effect of any change would be widespread because one in four criminal matters coming before the ACT Magistrates Court is a drink-driving charge, with more than 1000 such matters being dealt with in a year.
Lawyers have also warned it could further clog up and delay court lists, as drink drivers bring more information to court to prove they should be afforded leniency from the default disqualification period.
Andrew Fraser, a criminal and traffic lawyer practising with Armstrong Legal, says two recent judgments declared that increased disqualification periods should be applied.
"The judgments say that doing so places the territory where its legislature had always intended it should be," he said.
Lawyer Michael Kukulies-Smith, of Kamy Saeedi Lawyers, said defendants would now need to show good reason why there should be a deviation from the default disqualification period.
He said it was reasonable to think Canberrans, heavily dependent on their cars, would now focus their evidence and submissions on the appropriateness of that default period for their circumstances.
"It is not unreasonable to anticipate increased length of PCA [drink driving] pleas as more information is brought before the court to demonstrate why the default period ought be departed from," Mr Kukulies-Smith said.
Mr Fraser said Chief Magistrate Lorraine Walker had made a significant ruling pointing to higher penalties – which is subject to appeal – but it had been reinforced by a judgment in a similar matter in the Supreme Court by Justice John Burns.
"The territory's other magistrates are not bound to follow the Chief Magistrate, but you would expect them to afford her judgment significant respect," Mr Fraser said.
"However, the lower court is bound to follow Justice Burns' decision in the Supreme Court, which reinforces much of the Chief Magistrate's decision."
The two decisions represent a significant departure from the approach taken in the ACT in the past two decades, according to Canberra Criminal Lawyers defence lawyer Paul Edmonds.
Mr Edmonds said the lengths of disqualification periods are likely to be substantially increased, until and unless another decision is made in the ACT Supreme Court differing from Justice Burns' position.
"So we're going to go from a situation where the minimum, or close to the minimum has been imposed by a number of magistrates for close to two decades now … to the exact opposite, of starting at what is effectively the maximum," he said.
"Given that drink-driving is the most common offence in every local or magistrates court in Australia, it is an issue of widespread importance to lots of Canberrans."
The main area of contention is the default licence disqualification period, and when and how it can be reduced.
A first offender at level three – caught with a blood alcohol level of 0.08 to 0.150 – faces an automatic disqualification of 12 months, which the court is able to reduce to three months.
A repeat level three offender faces an automatic disqualification of three years, which can be reduced to six months.
The same penalty faces a level four first offender – 0.150 and above – while a repeat level 4 offender is looking at a five year automatic disqualification, which cannot be reduced to below 12 months.
Mr Fraser has studied the Chief Magistrate's decision in which she noted this area of sentencing had been volatile.
"I have some sympathy for the submission … that the current position in the ACT with respect to the setting of a disqualification period other than automatically applying or applying by default is not settled," she wrote.
She said the two broad issues to be resolved were what basis the court should use when deciding not to apply the default disqualification, and then how to determine the length of a shorter period.
Mr Fraser said the decision of Justice Burns in the Supreme Court provided some answers as he had noted ACT statistics showed the automatic disqualification period of five years for a level four repeat offender was regularly reduced to between 18 and 24 months.
"His Honour wrote that if there is a 'routine' deviation by magistrates from the automatic disqualification period, this suggests an error on the part of the sentencing magistrates," Mr Fraser said.
"As well, Justice Rod Howie who handed down the NSW guidelines judgment, wrote, 'it appears to me that courts are too ready to reduce the automatic period and to choose the minimum disqualification period as the alternative'."
Mr Fraser said NSW courts often find reasons to reduce the automatic disqualification period, but not to the same extent as in the ACT.
"Chief Magistrate Walker said if an approach was to be adopted in the ACT consistent with the NSW guideline judgment, then the full default period of disqualification should be applied to offenders unless there are appropriate reasons for reducing the penalty," he said.