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  • 1. Character References
  • 2. Expert Reports
  • 3. Court Submissions
  • 4. Traffic Offender Program

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STEP 4: MAIN CASE PREPARATION

When appearing before court, especially at your final court hearing, you should ask, “what do I need?” This section will include exactly what you will need to prepare for court.

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  • Character References

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Some Magistrates review references more prudently than others. They will note the contents and take them into account in determining penalty.

References are important for two reasons. First, references can provide evidence for the Magistrate that you are a person of respectable character or held in high esteem within the community. Second, references draw special circumstances to the attention of the Magistrate such as medical conditions, employment responsibilities, spousal or child responsibilities and other information providing further objective evidence.

The Magistrate may request the presence of the person who gave the character reference (this person is known as a ‘referee’) to be in court to give evidence personally and orally. However, this is rarely requested by the Magistrate!

Should the Magistrate insist on having the referee appear to give oral evidence before the court then you would request a short adjournment to make arrangements for the referee to come to court (a 1-2 week adjournment would be appropriate).

Other character reference guidelines that should be followed include:

  • References should be typed and printed from a computer.
  • References should be dated.
  • References should be 1 to 2 pages long. (General rule of thumb is to never exceed 2 pages).
  • References should be photocopied twice. (The original signed reference is handed to the Magistrate, one copy is given to the prosecutor, and the other copy you should keep just in case the Magistrate makes a query about it, then you have a copy to refer to).

Who do I get a character reference from:

We generally suggest that you look at arranging 3 character references from the following people:

  • An employer, manager, business partner, colleague, teacher or lecturer.
  • A family member (in certain circumstances).
  • An individual within the community who you have had dealings with.

Employment reference:

It is preferable that you obtain a reference from your employer who can attest to your good work ethic and also inform the court of your need to retain a driver’s licence to attend work and/or carry out your employment duties.

If you are unable to attend work or carry out your employment duties without a driver’s licence then your employment referee should include this and also include what the likelihood of your employment being terminated will be should you be unable to operate a motor vehicle.

If your employment reference can convinced the court that without a licence you will lose your job and suffer extreme financial hardship then, depending on the charge and your traffic history, this may just be the issue that persuades the Magistrate in allowing you to keep your licence. (More about avoiding a licence disqualification will be discussed under the “Section 10” part).

Your employer should raise the following issues in their reference:

  • How long you have been working for your employer?
  • What your role/position is?
  • What your specific day-to-day duties entail?
  • How valuable you are to your employer?
  • Whether you require a licence to perform your employment duties?
  • What your income is?
  • What impact your employer will suffer should you be unable to drive a motor vehicle?
  • Whether you are able to carry out your normal duties via public transport?
  • Whether your employer has noticed a change in attitude/behaviour (for the better) since the offence.

 For self-employed individuals:

If financially independent, attaining a reference from your accountant as to your financial situation can assist greatly. It will reveal to the Magistrate the implication of a lack of a driver’s license on your ability to survive financially.

If you have a business partner then you may wish to consider obtaining a reference from them particularly focusing on the impacts that your business will endure should you be unable to operate a motor vehicle.

It is important that any type of business or employment reference should be printed out on a ‘business letterhead’; this will display an element of authenticity and professionalism.

Family reference:

Character references from a family member ‘can’ be useful in the right circumstances.

These references should only be tendered to the court for specific reasons, which may include how important your driver’s licence is in:

  • Assisting a family member with a medical condition.
  • Bringing money into the family household.
  • Taking children to school.
  • Caring for a family member.
  • Any other critical or urgent issues that require you to be able to operate a motor vehicle.

A family reference can be useful for providing the Magistrate within a more personal insight into why it is ever so critical that you maintain your drivers licence or alternatively are off the road for a lesser amount of time.

The problem that can arise when tendering a family reference is that a family member is always going to display an element of bias when providing the court with a reference full of information.

If you do not have a serious, critical or emergent family reason for why you need to keep your drivers licence then it is recommended that you refrain from tendering a family reference at all.

Community reference:

A character reference from an independent individual or organization within the community can often carry a great deal of weight in your favour for showing the Magistrate exactly what type of character and community spirit you value.

If you are a person who carries out volunteer work for social groups, charities, religious organizations, sporting organizations, community initiatives or any other community based associations then you would be wise to have someone you know in those areas to attest to your good character and provide information on the type of involvement that you have provided.

Similar to an employment reference, any character reference provided by an independent person, organization or business within the community should be printed on a ‘business letterhead’ in order to display its authenticity and professionalism.

Other people to obtain references from include:

  • Justices of the Peace
  • Office bearers (in the community)
  • Professionals (doctor, lawyer, accountant, executive)
  • Business associates
  • Teachers/University Lecturers
  • Local Member/Counselor/Politician
  • Charitable leaders
  • Religious leaders

References must not be requested from serving police officers in New South Wales as the Police Commissioner has strict guidelines against police officers providing references.

Addressing references:

A court tendered character reference requires special consideration when it comes to its formatting and presentation.

You should address the character reference to:

The Presiding Magistrate

            XYZ (e.g. Sydney) Local Court

It is important to include a recent date at the top of the page.

References should include the following information:

  • The full name and status of referee (including titles and/or qualifications).
  • The full home or business address of referee.
  • Briefly mentioned how long the referee has known the person and how they have come to know them (e.g. relative, friend, neighbour, employer, colleague, sports member, parishioner, student, patient etc).
  • The referee is aware of the person’s offence and has had discussions about it with the person (include any explanation or expression of remorse).
  • Opinion of the referee regarding the person’s character based on prior relationship.
  • Opinion of the referee based on discussions and observations of the person in relation to the impact of the offence and its implications (e.g. how the persons attitude & behaviour may have changed since the offence).
  • Raise any issues specific to the referee (e.g. an employer may comment on the effect that a conviction and/or any loss of licence will have on a person’s ability to work and earn an income).
  • Opinion based on the referee’s knowledge of the person and their discussions with them as to the likelihood of the person re-offending.
  • Anything else that the referee would consider appropriate.

References should avoid the following:

  • Statements of opinion that referee believes the offender (you) is incapable of repeating offense
  • Statement that offence committed was out of character when it is already a second or further (major) offence
  • Persuasion of court towards or away from a certain penalty
  • Comments on the police, law, or (the role of) court

Note: If your references don’t comply with all the above, don’t use them. Make sure to review the Example References in the Resources Section of this manual.

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  • Expert Reports

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Obtaining an expert report is generally only necessary where you need evidence to show or prove something to the Court and subsequently a qualified expert is willing and able to provide expert evidence or an expert opinion to substantiate what you are attempting to show or prove to the Court.

It is not uncommon for lawyers or defendants to hand up to the Magistrate an expert report which relates to a medical condition. You may be trying to explain to the Magistrate that you have been suffering from depression or anxiety or trauma or some other medical condition and you will undoubtedly find it hard to convince the Magistrate that your condition is not only real but as serious as you make out if you do not have an expert report to substantiate your claims.

An expert medical report should not be used to justify or be an excuse for your offending behaviour instead it should be used to show that there have been issues that you have been dealing with that and that you are now taking the necessary actions to treat or get on top of those medical issues.

It is important to note that an expert medical report should outline the issues and what treatment is in place to treat those issues.

The most common expert reports which are tendered to the Court are usually medical reports which outline certain medical or health issues that you have been going through. However, an expert report doesn’t necessarily have to be of a medical nature. If you wish to prove a point and you are able to obtain an expert report to substantiate your claims then this will be considered an expert report, so long as the expert providing the report is a professional expert in their field which is relative to the issue that you are trying to show to the Court.

Depending on your situation (every case is different) you may want to consider obtaining an expert report if the following issues apply to your situation:
  • Medical Report – outline any medical issues and treatment.
  • Psychological Report – outline any psychological issues and treatment.
  • Psychiatrist Report – outline any psychiatric issues and treatment.
  • Pharmacologist Report – may be able to provide a more accurate blood alcohol reading than the one provided by Police.

These are the more common expert reports that can be tendered to the Court. However, depending on your situation you may be able to obtain another type of expert report to help you in your case and help inform the Magistrate of your situation.

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  • Court Submissions

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The Magistrate will be given a copy of the Police Facts Sheet by the prosecutor and you should take the opportunity to tender your character references, expert reports, Traffic Program certificate or any other documents or material to the Magistrate before you delve into your oral submissions.

The Magistrate then turns towards you and say something along the following lines, “I have read the facts, your traffic record and your material, now what would you like to say for yourself?” This section will help you prepare what you need to say to the Magistrate in court.

When the Magistrate asks you what you have to say for yourself this will provide you with a small 3-5 minute window of opportunity to persuade the Magistrate that you are not at risk of re-offending and why you should be dealt with more lightly than some other defendant in your same situation. With the right preparation, you can use this small period of time to tilt the balance of the court in your favour.

You will need to spend at least an hour or two to sit down and carefully prepare your court submissions, type them out and print them off on paper. Then once you are happy with the submissions you should spend a significant amount of time reading over your submissions, so much so that eventually you will come to memorize your submissions quite well without having to stand up before the Magistrate and read the submissions of the paper. If you read over your submissions 30-40 times then you will be able to really remember your submissions well without having to refer to the typescript on the paper printout. But if you get lost or cant remember some of your submissions then you should always have your typescript submissions with you so that you can refer to them if need be.

This is a very, very important strategic step since it will allow you to speak freely and confidently before the Magistrate. It is well known that a person who can act and speak confidently has a greater chance of performing persuasion. The trick is to be confident, honest, and remorseful yet whatever you do don’t exude an air of pompousness or cockiness because the Magistrate see’s a great deal of people appear before them each day and they are very good at detecting whether or not someone is coming across as sincere and genuine.

When drafting your court submissions it is also very important to create a clear and coherent flowing structure, we suggest that you follow the following structure:

  • PEA OF GUILTY
  • MEANS OF APPREHENSION
  • CIRCUMSTANCES OF THE OFFENCE
  • BLOOD ALCOHOL READING (BAC)
  • PERSONAL FACTORS
  • PRIOR RECORD
  • SEIZURE OF LICENCE
  • ATTENDANCE AT TRAFFIC OFFENDERS PROGRAM
  • ABILITY TO PAY A FINE
  • REMORSE
  • PENALTY

Note: Go through Example Submissions in the Resources section to get an idea of how to a good set of court submissions should be set out. Know that, as every person has different circumstances, each submission will be different. Craft your submissions after a situation equivalent to yours.

A. PLEA OF GUILT

As soon as you stand up to speak to the Magistrate at the final court hearing you should confirm that you are the defendant and mention that you have entered a plea of “guilty”. It should go something like this:

“Good morning your honour, my name is Mr X, I am the defendant in this matter. I wish to enter a plea of Guilty in relation to _________________(state name of the charge e.g. the charge of high range PCA).”

A guilty plea is in itself evidence of remorse and accountability. Thus, pleading guilty on the first occasion will be in your favour. The court will often provide you with a penalty discount just by pleading guilty at the first available opportunity. This is given to encourage people not to waste the courts time by defending charges that have no merit of success and subsequently wasting a great deal of the courts time. In addition to this and as previously mentioned, an early plea of guilty also displays an element of remorse toward the offence.

Since this is the belief of the court in New South Wales and throughout Australia generally, it is worth pointing this out to the Magistrate. Since it is an issue which is expected of a reasonable person you should not harp on about the fact that you pleaded guilty at the first available opportunity but you should definitely make mention of the issue.

It is generally a good idea to mention this issue toward the end of your court submissions when you are summarizing all of the strong and important points, which mitigate your position. You may wish to mention to the Magistrate the following:

“Your honour I would like you to understand that I am very remorseful for my behaviour on this occasion, I have decided to plead guilty at the first available opportunity so as to not waste the courts time.”

OR

“Your honour I would like you to take into account my early plea of guilty which displays an element of remorse and accountability on my behalf towards my actions surrounding this incident.”

Note: To see where exactly you should mention these issues please refer to the Example Submissions in the Resources section.

B. MEANS OF APPREHENSION

The means by which you came to the suspicion of the police and they apprehended you is one important factor that comes in to consideration when the Magistrate assesses your attitude and the risk that you posed to the community at the time of the event.

One of the most common ways that a person is apprehended is by a Random Breath Test or a Roadside Breath Test (RBT). A Random Breath Test is where you are driving along and police randomly decide to pull you over for whatever reason or suspicion they have and then subject you to a breath test. On the other hand a Roadside Breath Test generally occurs where police have an organized set up where they direct people to pull their vehicles over to the side of the road so that they can be subjected to a breath test.

If you were pulled over in one of the above likely circumstances then you may wish to mention this to the Magistrate in the following way:

“Your Honour, I was pulled over for the purpose of a Random/Roadside Breath Test and not for driving dangerously, erratically or breaking any other road rules…”

OR

“Your Honour, at the time of the incident I came to the attention of police when I was pulled over for the purpose of a Random/Roadside Breath Test. I was not pulled over for driving erratically or breaking any road rules.”

The means by which you are apprehended will be a determining factor in how harshly the Magistrate decided to penalize you.

If, on the other hand, you were apprehended as a result of noticeable reckless driving or, worse, an accident, you must be prepared to face the consequences of more severe penalties. However, whatever you do not start making excuses for why you were breaking the law (e.g. speeding, driving dangerously/recklessly/erratically etc). Your best bet is to simply plead remorse over your actions unless you had an extremely emergent reason to be operating a vehicle that way.

C. CIRCUMSTANCES OF THE OFFENCE

The circumstances, which led to you being behind of the wheel of a motor vehicle whilst intoxicated, MUST be addressed. The Magistrate wants to know why you ended up in such a position.

Generally speaking the courts see people before the court charged with drink driving as a result of them flagrantly disregarding the law and putting their own convenience above the safety of those within the community. The courts hear on a daily basis defendants telling them that they thought they were under the limit or that they were right to drive. There is no excuse for this and Magistrates come down hard on people whose matter presents such facts to the court.

There is never an appropriate excuse for being intoxicated and operating a motor vehicle, however if your circumstances permit you to honestly provide the court with a set of mitigating reasons why police found you in such a position then it is obviously worth expressing those reasons to the court. Especially if there was an event or circumstance which caused you a lack in judgment.

Emergency or urgent circumstance:

If at the time of the offence you suspected that you were over the legal alcohol limit but made a conscious decision to drive a motor vehicle due to an emergency or extenuating circumstances then you need to bring this to the attention of the Magistrate.

A Magistrate may be inclined to reduce your sentence or even not convict you should your circumstances be of such a serious or emergent nature. For example, if you can prove to the court via oral submissions and/or material evidence that you did not intend on driving a motor vehicle but at the last minute decided to in order to take someone to hospital or remove yourself from a dangerous situation then this may very well persuade the Magistrate to treat your matter differently to other cases. The most important thing here it not to lie or bend the truth and to provide as much evidence as possible to show the court that what you are saying is in fact correct.

Morning after offence:

Often offences are the morning-after type of offence wherein a person has consumed an amount of alcohol the day/night before being charged the next day. A typical situation is where a person goes out for a big night of drinking and then they go home and have a normal full nights sleep, they wake up the next morning have a shower and get ready as they normally would then jump in their car without realizing that their blood alcohol limit is still above the legal limit. Sometimes in these circumstances the Magistrate will note the time of the offence and see that perhaps it’s the first time you have been charged with a drink driving offence and subsequently decide to be more lenient when it comes to handing down their sentence.

Error of judgment:

Often Magistrates will hear from defendants saying that they have made a serious error in judgment but often they do not express why they made that error in judgment. Making an error in judgment due to being intoxicated is certainly not an excuse which will fly well with the Magistrate. To run with this submission then you need to express to the Magistrate that certain events occurred around the time that you were charge which had so much of an impact on you that you were not able to focus properly on the prudent law abiding behaviours that you are used to carrying out. For example, you may have been under serious stress due to work, relationships, finances or something else.

Perhaps you had attended an event, which was highly emotional to you and you acted out of character by drinking more than you should have (e.g. sports championship, family celebrations, work celebrations, romantic date). Subsequently, the emotions of the event caused you to not consider how much alcohol you had consumed or the possible risks there were of you operating a motor vehicle.

Any evidence you can provide to the Magistrate to show them that you had attended a particular event that was a one off occasion, which caused you to act out of character and make an error of judgment, is always good to back up your oral submissions. Generally, this can be provided by someone willing to provide you with a character reference and who also attended the same event or is connected in some way to that event. For example, if it was a family celebration then perhaps a family member would confirm the occasion in addition to attesting to you good character. If it was a sports championship event then perhaps your coach or team leader could put something down on paper. If it was a work occasion then your boss or supervisor may be willing to provide a reference. Do make sure that if they are willing to provide a reference that they are professionally drafted pursuant to the Character Reference instructions set out in this manual.

Amount of alcohol consumed:

It is important that you come clean with the Magistrate and explain to them exactly how much alcohol that you had consumed before operating a motor vehicle. It is a good idea to recall the following details and express them to the Magistrate:

  • Time you consumed your first drink?
  • Time you consumed your last drink?
  • What types of alcoholic drinks you were consuming?
  • How many of each type of drink you consumed?

If you seriously cannot recall how much you had to drink then you should mentioned that to the Magistrate and simply rely on the police blood alcohol reading. Try to corroborate your submissions with what you said to the police at the time of charge because it is likely that the police will include that information into the police facts sheet.

If you dispute any of the facts in the police facts sheet then you should politely mention to the Magistrate what you believe to be the correct facts.

The whole idea behind full and frank disclosure of how much alcohol you consumed is to display an appearance of honesty to the Magistrate and the Court. Honesty can go a long way for a plea in clemency.

Keep in mind that Magistrates see many drink driving matters before their court every day of the week and they are experts to detecting when someone is trying to pull the wool over their eyes and try to distort the truth or deceive the court.

Speaking of honesty, if you deliberately stopped drinking alcohol at a specific time in order to sober up before operating a vehicle then you should make mention of this to the Magistrate. it will show that you did know you were intoxicated but made a concerted effort to sober up before getting behind the wheel of a motor vehicle in order to reduce the risks.

Aggravating features:

Each drink driving case will be different, some cases will be pretty stock standard when it comes to a drink driving offence. For example a person may have gone to dinner and had one extra glass of wine which has put them over the limit despite them feeling unaffected by alcohol and then pulled over for the purpose of a Random Breath Test. If they are the sole occupant in the vehicle and the driving conditions are good with very light traffic on the road then this would be considered to be a relatively standard drink driving matter where there are no aggravating features.

Alternatively, if a young driver on his provisional licence was pulled over for speeding or driving erratically with other young friends in the car as passengers on a busy public road and the blood alcohol reading is in the high range, there these are adjoins aggravating features which the court will focus heavily on when deciding on a sentence.

Aggravating features are any facts or issues relating the offending behaviour which heighten the risk of damage or injury as a consequence

Main goal:

The main goal of expressing the “Circumstances of the Offence” to the Magistrate in an open and honest manner is to assure the Magistrate that this was a one-off incident that occurred and that normally you are a cautious and good driver who is aware of the road rules and diligence that is required when driving on the roads. You need to persuade the Magistrate that this is a rare occurrence that has occurred through an error in judgment and is totally out of character for you.

 D. BLOOD ALCOHOL READING

Addressing the specific blood alcohol reading that you delivered when undertaking a blood test or breath test is necessary to show the Court how affected by alcohol you were at the time of operating the motor vehicle.

The following blood alcohol limits apply in NSW:

Novice Range PCA

(0.00 – 0.019)

Special Range PCA

(0.02 – 0.049)

Low Range PCA

(0.050 – 0.079)

Middle Range PCA

(0.080 – 0.149)

High Range PCA

(0.150 and above)

The blood alcohol reading that you delivered will often be a major determining factor in the severity of the penalty that the Magistrate gives to you.

If the blood alcohol reading is at the lower end of the offence that you have been charged with then it is worth pointing this out, with the exception of a High Range PCA offence. For example, if your reading was (0.083) then you may wish to inform the Magistrate that whilst the reading is unacceptable it is at the lower end of the Middle Range offence.

You may wish to address this in the following manner:

“Your Honour, whilst the offence is unacceptable it is worth noting that the reading is at the lower end of the (state name of offence e.g. novice, special, low, middle range)….which means that the risk of something terrible going wrong such as an accident was less likely that if the reading was a lot higher”

If your reading is not high within the range, clearly mention to the court. The court is more forgiving of a Mid Range PCA reading of 0.08 than they are for 0.14.

However, if you reading was at the higher end of the PCA range or an offence of High Range PCA then you need to address this with complete and utter remorse and sorrow over your irresponsible actions. You may wish to say that it was never your intention to drive after consuming so much alcohol, but when you decision making become clouded by the effects of alcohol you made the wrong decision. Also mention that in hindsight it was foolish of you to have your motor vehicle and key in your presence after consuming so much alcohol.

E. PERSONAL FACTORS 

Everyone will have a difference set of personal factors, which the Magistrate will be interested in knowing in order to differentiate your situation from other people who come before the Court with similar offences. Being able to personalise your case by informing the Magistrate of a number of subjective features will offer a general background of who you are and what you do within our society.

Significant subjective features, which you should inform the Magistrate of, include a persons personal history, general health, living arrangement, education, employment situation, nationality and whether you have any major responsibilities in you life such as a spouse, children, sick relatives or friends you need to look after.

These considerations can help a Magistrate understand you personal situation better and make appropriate considerations when deciding on your penalty.

Please note that you should refrain from going into a long elaborate account of your personal factors, instead tell the Magistrate the main and important issues in a sharp and quick point form. A couple of examples might sound like this:

“Your Honour, my personal circumstances are that I am married with 2 young children aged 5 and 8 years who attend primary school.

My wife works 5 days a week doing (state job s/he works at).

I also work 5 days a week Monday to Friday from 7:30am to 4:30pm, I work as a builder and have done so for the past 6 years since getting my builders certificate.

I am required to transport heavy equipment and tools around for my work and my current job site is located at (job location….).

Since I live at (home location….) it is very hard to get to and from work without the use of a vehicle.

Public transport is not suitable for me since I rely on my utility vehicle to transport my tools with me.

In relation to my family my mother in law currently suffers from (medical condition….) and I am relied upon to take her to and from the medical clinic (located at…) every Thursday afternoon after I finish work.…”

OR

“Your Honour, my personal circumstances are that I was made redundant from my job at (state previous job….) 3 months ago and I am currently having a very hard time finding new work within my profession.

I have been feeling quite depressed about my situation and I have been turning to alcohol in order to deal with my situation.

This incident has been a major wake up call for me and I understand that I cannot continue using alcohol to treat me depressive state.

Subsequently, I have sought help from a Doctor/Psychologist who is treating me for my depression. I have already attended 4 sessions and intend on attending at least another 8 sessions (tender any medical certificate or report as evidence of this).

Since getting help for my depression I have been taking steps to turn my life around, I have been meeting with recruiters who believe they can help me get a new job and I already have a number of interviews set up.

Being able to use a motor vehicle to get to these meetings and interviews is necessary since public transport is not very reliable or frequent where I live at (state home location….).

Currently, I am doing it very tough financially and just getting by with my rent and food.

I understand the situation I find myself in and I make no excuses, however I would be appreciative of any consideration your honour could provide in helping me get back on the right path again.

An offender who is married with five children will definitely have the court’s ear more than a single person with no dependents.

Personal factors also worth including are:
  • Community involvement like charities, services, and religious organizations
  • Recent trauma such as illness or injury, death of a loved one, job loss, divorce, or financial difficulty
  • Responsibility including family care, maintenance, or employees
  • Dependents such as children, parents, and/or relatives

F. PRIOR RECORD

Your prior criminal and traffic history is one of the most important things that will be taken into consideration by the Magistrate when dealing with the currents charge/s that you have before the court.

Regardless of how your prior record looks you should always refer to it and provide some commentary on it to the court.

Unfortunately, there is nothing you can do to change what has happened in the past but what you can do is provide the court with an explanation of why you do have prior convictions or charges against your record.

Alternatively, if you have a very good record or no record at all then it is just as important to point this out to the Magistrate to show that this is a one off type of offence and that there is no pattern of previous similar behaviour.

If you do have prior drink driving offences on your record or a poor general traffic history then it is obviously going to be very difficult to persuade the Magistrate to treat you like a person who has made a one off mistake. Obviously the longer the period of time since your last offence is going to be better for you. Either way you need to focus on the strong mitigating issues that we have discussed above.

If you do have a prior offence from a long time ago (e.g. at least 5 years ago, but preferably 10 years ago or longer) then you can run the submission that since the previous offence you have matured as a driver and have come to realize the importance of driving safety on the roads however due to ______________”X reasons” you have slipped up due to an error in judgment.

Alternatively, if you have prior offences on your record within the past 5 years then you need to really understand that you will be sentenced far more harshly that someone with only one drink driving offence within a 5 year period. See Resources for Penalties.

What a repeat offender needs to do is hone in on why you have offended so much within a relatively short period of time. If a repeat offender can pinpoint the reason why they keep breaking the law then they need to show the court that they have had a wakeup call or an epiphany and taken serious action to resolve the issues which go to the heart of their offending behaviour. For example if it is an alcohol binging or dependence problem, the offender needs to show the court that they have sought out professional medical help from a psychologist or psychiatrist to treat their problems.

With whatever offence you are charged with and no matter what the circumstances are it is crucial that you convince the court in an open and honest way that you have taken steps to make sure that you will not be back before the court again. If you can successfully persuade the Magistrate that this is the case then you have a better chance of receiving a more lenient penalty than someone who shows contempt and disrespect for the laws, the community at large and the court system.

Of course, it is always best not to draw the court’s attention to an appalling record but given the fact that the Magistrate will be provided with a copy it is something that you will need to be prepared to talk about should the Magistrate wish to question you on it. If you do have a bad prior record then you can refer to it without going into to much detail by simply informing the Court of the prior charges and the reasons why they occurred. You may wish to word the submissions in the following way:

“My prior record states that I was involved in a prior drink drive offence 3 years ago, this was during the time when (give reasons e.g. my marriage/relationship was breaking down, my uncle was sick etc…). Your honour on the last occasion I did not seek any help about my offender behaviour which in hindsight was silly because it could have prevent me from being back before the court today. On this occasion I have taken it on myself to seek out professional help from my doctor in relation to my drinking and fully intend on making this the last time I appear back before a court….”

Obtain a copy of your prior record:

If you possess a prior record, you should always obtain a copy of your record of prior convictions from the police before appearing in front of the court, especially if you are unclear what they are.

You can request to see a copy of the record from either the Magistrate or the prosecutor on the day of court.

If you have a prior record in traffic offences but none related to drink driving, mention this in court. This should be revealed along with the number of years you have been driving, and if aware, the number of kilometers travelled each year, only if it seems relevant.

If you have major prior driving offences committed outside a five-year period, point this out to court. Penalties are greater if offences are committed within a five-year period.

If you have a criminal record, try to distinguish the nature of the offences but don’t downplay the seriousness of the prior indiscretion. For example, you could say:

“Your Honour will notice that I have a stealing offence seven years ago. That was a shoplifting incident that occurred when I was young and in a position of dire financial distress. I would like you to note that I hold no drink-driving offence in my record.”

If you have a pristine record, stress this point, quoting the number of years you have been driving. If you drive long distances for work or other reasons, lay emphasis on this to the court.

This is because Magistrates are usually impressed where a defendant who drives long distances for work, such as a truck or cab driver, has a clear driving record, until this offence at least.

G. SEIZURE OF LICENSE

At the time of your arrest, your license may have been “immediately suspended” by police. Generally, if you have been charged with a Middle Range PCA offence or a more serious charge then Police are obligated to suspend your drivers licence at the time of arrest or within a 48 hour period following your arrest. Police will issue you with a Notice of Drivers Licence Suspension.

If this is the case with you then it is definitely prudent for you to inform the Magistrate that you have been off the road and serving time without a licence since you were arrested.

You should raise this issue before the Magistrate in the following way:

“Your Honour my license was suspended by Police on ______ (date). I would seek that you take into consideration that period of time that I have already been off the road when determining your sentence.”

If you are quizzed on this issue by the Magistrate as to what basis this should occur, you can politely say that after seeking some brief advice it was you understanding that under section 225(3) of the Road Transport Act 2013 the legislation allowed for a Magistrate to take into consideration the period of time that you have already spent without a licence since it was suspended at the time of arrest.

However, this generally applies only to High Range PCA, Mid Range PCA, and Driving Under the Influence.

H. ATTENDANCE AT TRAFFIC OFFENDERS PROGRAM

Traffic Offenders Programs are usually held at and run by the local Police Citizens Youth Club (“PCYC”). Basically you will need to call them up and register your name and then you will receive details of when and where to attend and how much it will cost.

Generally speaking the program takes 6 weeks to complete, 1 session is conducted per week usually of an evening, which runs from approximately 1 to 1.5 hours. Each week there is a new topic presented. At the end of the program you will be presented with a completion certificate, which may contains comments from the course coordinator expresses how well you completed the program and your general attitude to the program. When you attend Court you should hand up to the Magistrate a copy of the completion certificate at the same time you hand up you characters references and any other material relied upon.

Explain to the Magistrate towards the end of your submissions that:

“Your Honour, will note from the material tendered to the Court that I have completed the Traffic Offender Program located at ______(x location) on _______(x date).”

Then explain to the Magistrate how rewarding you believe the program was, what you learnt and any other praise for the program:

“Your Honour I found the program to be very insightful and educations, whilst at times very disturbing listening to many horrific stories and seeing many graphic images and videos. I believe that coming away from this course I am now far more aware and conscious of safety on the road. Not only with drink driving but with all aspects of driver safety. It was so rewarding that such a program should be made compulsory for all young drivers to complete.”

If there is a program in your area and you are capable of attending, then you should give some serious thought to completing the Traffic Offenders Program since this will show the Court that you have been proactive in taking steps to rehabilitate, learn and change your driving behaviour.

When you appear at Court on the first occasion you should have already have contacted the Traffic Offenders Program to get an idea of when the program starts and finishes. This way you will be able to request to adjourn your matter at least until the program has been finalized.

If you have not gotten around to contacting the Traffic Offenders Program then you should indicate to the Magistrate that you intend on registering for the Traffic Offenders Program and you understand that it is a 6 week course. Thus, you should request at least 7 weeks to complete the program.

For a complete list of Traffic Offender Programs in New South Wales that have been endorsed by the NSW Attorney General please see the list in the Resources section.

I. ABILITY TO PAY FINE

The Courts generally issue a monetary penalty for guilty defendants, therefore it is definitely worth pointing out to the Magistrate your ability to pay any type monetary fine. If you are a low income earner, a part time worker, parent, university student, unemployed or are some other position where your financial position or income is considered relatively low then it is especially important to inform the Magistrate of what your financial position. The Magistrate will take all circumstances into consideration when delivering their sentence and that includes your ability to pay a fine.

If you earn a low income then the Magistrate will generally issue you with a lower monetary fine.

You should inform the Magistrate of your financial position by expressing the following:

“Your Honour my weekly income from my work as a __________x (job) is ________x (amount of money) after taxes. My major outgoings include________x (identify major weekly expenses). After all taxes and expenses I am left with _______x (amount of money) to get by on each week. I would urge your Honour to take this into consideration when deciding on a penalty.”

The court does not render a light hand on the fines for people whom they perceive to be financially comfortable. Financial capacity is a factor considered in determining the amount you have to pay.

So, list your main expenses briefly and truthfully such as regular medical bills; significant loan repayments; rent, board, or mortgage; other regular bills that you and your family pays for.

if you would like to be exceptionally prepared then you may wish to provide the Magistrate with a copy of your recent income receipt. Going to this extent is generally not necessary but you may feel comfortable in at least having it with you so that if you get the feeling the Magistrate does not believe your submission on this issue you can ask whether the Magistrate would like to view a copy of your income receipt.

Being honest and truthful should go without saying since it is not unheard of hearing stories about people who attend Court and submit that they are earning X amount of income whilst their expenses far exceed that income amount. This certainly leaves the Magistrate open to start questioning your real financial position. If you are caught out lying to the Court, no matter how small the lie may be then you cannot expect the Magistrate to believe any of your other submissions.

J. REMORSE

Expressing remorse in your own words, with an honest and sincere attitude will actually go a long way to showing the Magistrate that you are sorry for your actions and do not wish to repeat the offending behaviour. An admission of guilt is best delivered with remorse, sincerity, honesty, confidence and direct eye contact. These put together can make one huge difference. Here is an example:

“Finally, Your Honour, I wish to say how genuinely sorry I am for the offence. I am well aware of the dangers I posed by driving under the influence. 

…I myself would be outraged if any of my family and friend were in a car with a driver who has consumed alcohol.

…I am more than grateful that no one was hurt as a result of my reckless actions. Let me assure the court that this will not happen again.”

This example above is more suited to people who are facing Court on their first drink driving charge as opposed to a persons second or subsequent charge. In the event that it is your second or subsequent charge for drink driving then you should remove the submissions that say that “this will not happen again”, because, let’s face it, the court will not believe you. This is what you can say:

“Your Honour, I wish to say how genuinely sorry I am for the offence. I am well aware of the dangers I posed by driving under the influence.

…I am more than grateful that no one was hurt as a result of my reckless actions.

…I do realize the situation that I am in and understand that further offences may place me at risk of imprisonment.”

By showing the Magistrate that you understand the situation that you are in and the power the Court has to take away your freedom should you continue to break the law, this in turn shows that you are abundantly aware of how serious your situation is.

Showing a sense of remorse for the actions that you have taken indicates to the Court that it is not behaviour that you deem acceptable and that you do not intend to repeat such offending behaviour again in the future.

K. PENALTY

It can be tricky for a person who is representing themselves to request that the Magistrate issue a particular penalty. Some lawyers do suggest a specific penalty to be ordered by the Magistrate whilst some lawyers refrain from this unless they have constant dealings with the Magistrate and are aware of the Magistrate sentencing and penalty form.

It is the belief of the author that if you don’t ask then you do not get – but in saying this you must know what you are asking for and it must be pretty spot on for the type of offence, the facts and situation that you find yourself in.

If you suggest a penalty too low then you might offend the Magistrate and simply show how little you know about your situation and offence that you have been charged with. This may also show that you do not see that the specific offence is serious enough. Alternatively, if suggest a penalty which is too high then you may urge the Magistrate to issue you with a more hefty penalty to which they originally had in mind.

You need to take into account all of the issues surrounding the matter. In the following circumstances you would not be out of place suggesting the following:

Low Range PCA with a clean drink-driving record – it may be appropriate to suggest that the Magistrate “exercise his/her discretion and deal with the matter pursuant to s10 of the Crimes (Sentencing Procedure) Act.” For more details on the different types of section 10 penalties available please see Section 10 part to this manual.

For a first offence of any other type, especially at the low end of the range, with a reasonable record, it is fitting to ask that “the minimum period of disqualification be applied to the offence”.

In neither case, it would be appropriate to say …”Having regard to all of the matters I have raised in my submissions, may I ask that some leniency be considered by your Honour”. This will open the Magistrate up to attack you by saying “Why should I give you leniency after you have put innocent lives in danger within our community.” The issue here to take note of is to be specific in what you are asking for, don’t just seek leniency or a softer sentence. Instead you need to refer to “real” mitigating issues or circumstances which may cause reason for the Magistrate to reduce your period of disqualification or alternatively issue you with a Section 10 and no conviction.

In a case where there is a “real” need for a driver’s licence, such as an issue related to employment such that, without a licence, your boss intends to suspend or terminate your employment position, then it is appropriate to ask for a specific penalty.

Ask for no less than the minimum disqualification period for the offence you have been convicted off.

In a case where you are considering participation in fitting an Alcohol Interlock Device into your vehicle upon return of your license then you must ask the Magistrate to make a Disqualification Suspension Order or an specific order for an Alcohol Interlock Device pursuant to Section 210 of the Road Transport Act 2013.

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  • Traffic Offenders Program

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Due to the increasing trends of alcohol-related accidents, casualties, and fatalities, a number of programs are aimed at reducing drink driving.

The most common course that is undertaken by offenders is the Traffic Offender Program and there are many of these programs which have been approved by the NSW Attorney General and are located in various locations throughout New South Wales. Generally, these programs are held at the local Police Citizens Youth Club (P.C.Y.C).

These programs usually run for a period of 6 weeks where 6 different topics are presented, thats 1 topic per week that is generally held of a night time during the middle of the week for approximately 1.5 to 2 hours.

Some of the topics that may presented throughout this course include:

  • Ambulance & Paramedic Experience
  • Road Safety
  • Drug & Alcohol Awareness
  • Police Issues
  • Traffic Laws
  • Insurance
  • Spinal Injury Prevention
  • Alcohol Interlock Devices

Plus many more other issues surrounding driver safety.

The Traffic Offender Program is highly regarded throughout New South Wales by Police, Politicians and by the Courts due to the fact that the course instills a sense of awareness and education about driver safety, how drugs and alcohol effect the human body and other road safety rules. This is successfully done by putting the participant through a series of presentations on the above topics. Some of these presentations are graphic, confronting and somewhat hard to stomach – but the aim of these types of presentations is to expose the participant to real life and practical situations which occur on our roads every single day.

When you begin the course you will be provided with a workbook that you will be required to fill out throughout each session that you complete. The workbook will contain questions and scenarios for your to provide specific answers to. In addition to the workbook, many of the course presenters will encourage participant interaction in each session. You should attend each session on time or early, provide detailed and considered written answers throughout the workbook and also engage in as much of the course sessions as possible.

The reason for taking an active approach to your participation within the program is due to the fact that the course co-coordinator will provide the Court with a completion certificate at the end of the program and generally will include comments on how well you handled the course and how receptive you were to particular aspects of the program.

There is probably not a great deal left to say about the Traffic Offenders Program except for the fact that it is widely regarded as a quality program that is professionally run and goes a long way to re-educating and rehabilitating people in relation to their driving behaviour. For this reason it is given a great deal of weight in Court by the Magistrate when it comes time to sentence a person.

We have provided you with a comprehensive list of all of the approved Traffic Offender Program location and contact details which you can access by clicking on the link below:

Traffic Offender Program Details

 

Ready to move on?

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LEGAL DISCLAIMER: The information provided in the “NSW DUI Court Bible” is NOT legal advice and we do not hold ourselves out to be offering legal advice. We have no claim that this information should be taken as legal advice in replacement of seeking out the services of a legal practitioner.