The first thing to check is the date and time upon which you must attend the court. This should be clearly written in the bail form or the court attendance notice. If you do not appear on that date your case will most likely be dealt with in your absence. The magistrate may also issue a warrant for your arrest. Note the date in your diary, tell your friends - whatever you need to do to ensure that you do not forget it! In most cases the date will be some weeks after your arrest, giving you time to prepare your approach to the plea.
Some magistrates may appear to take little notice of references. However, most magistrates read references carefully, noting their contents and taking them into account when determining the penalty.
There are two main purposes for references. Firstly, they can show the magistrate that you are a person of good character, and held in high esteem in the community. Secondly, they draw any special circumstances, such as a medical condition or the need for a licence, to the attention of the magistrate and provide some objective evidence of them. If self-employed, a reference from your accountant as to your financial circumstances and the likely effect of a lack of licence on your ability to survive financially can assist greatly.
Persons from whom references should be obtained include Justices of the Peace, office bearers in the community, professionals and business associates. References from family members and spouses are best avoided, unless they are able to assist the court particularly relating to medical conditions or the need for a licence. References should not be requested from serving police officers in New South Wales as the Police Commissioner has strict guidelines against police officers providing references.
References should be addressed to "The Magistrate, XYZ Local Court", and should be on letterhead paper where possible. They must be recent and dated.
References should include the following information:
- the name and status of the person writing the reference;
- the length of time the writer has known the offender;
- a statement that the writer is aware of the nature of the charges on which the offender is before the court;
- a detailed evaluation of the character of the offender. If it is your first alcohol related driving offence the reference should also include a statement that the commission of the offence is out of character;
- a reference to the offender's contribution to the community either by involvement with community groups, sporting organisations, church or family;
- if the reference is from an employer or other person who requires the offender to have a licence, a statement about the need for a licence;
- if the reference is from a doctor or other professional, a statement about any conditions that are relevant.
References should avoid the following on the basis that they may annoy the court:
- urging the court towards or away from a particular penalty;
- stating that the referee does not believe the offender will offend again;
- a statement that the commission of the offence is out of character, when it is your second or further major offence;
- making any comment about the law, the police, or the role of the court.
Remember, you do not have to use the references you obtain if they do not comply with the above. There are some examples of references in Example references.
The references should be typed, dated, signed and photocopied twice, the original to be handed to the magistrate, one copy for the prosecutor and one for yourself in case the magistrate asks you a question about it. Remember that the magistrate may request that a referee attend the court to give evidence personally, although this is very rare.
In this section you are going to be preparing what you will say to the magistrate in court. The facts of the case will have been handed to the magistrate or read to the court, the references will have been read, and the magistrate will turn to you and say: "What would you like to say for yourself?"
This is a very important time – when the ill-prepared mumble something either incoherent or very unhelpful ("I drive okay when I'm drunk" is a favourite). It is now that you really can tilt the balance of the court in your favour with a little preparation. Some example submissions are contained in Example submissions.
Even though the end result will probably only take five or at most 10 minutes, to deliver, worthy submissions will take at least an hour or two to prepare.
A good method is to start by saying "I would like your Honour to take into account..." and then list the factors you would like him or her to consider. Remember that each submission will be different, as each person will have different circumstances.
Plea of guilty
"I would like your Honour to take into account that I have pleaded guilty on the first available occasion."
The fact that you have pleaded guilty, and probably on the first occasion, is a recognised factor in your favour. The court will generally deal with a defendant who pleads guilty more leniently than one who is found guilty following a hearing. This is not only because the time of the court has not been wasted and delay was not caused, but also because a plea of guilty is in itself evidence of remorse.
"My prior record is..."
This is obviously optional - the magistrate will have your record before him or her and it may be best not to draw the court's attention to an appalling record. You should always obtain a copy of your record of prior convictions from the police prior to going to court. If you are unclear what your prior record is, you can request to see a copy of the record from the prosecutor or the magistrate on the day of court.
Assuming that you have a completely clear record, this should be stated together with a reference to the number of years you have been driving. If you drive long distances for your employment or other reasons, this should be drawn to the attention of the court. Magistrates will usually be impressed where a defendant, who drives very long distances for work, such as a taxi or truck driver, has a clear driving record.
Assuming that you have a prior traffic record, but no prior alcohol-related driving offences, point this out to the court. Again, state the number of years you have been driving and stress the number of kilometres travelled each year if it seems relevant.
If you have prior major driving offences but these are outside the five-year period, stress this to the court. As discussed above, the penalties are much greater if there are offences within the five-year period.
If you have a prior criminal record, you should try to distinguish the nature of the offences without down-playing their importance. For example it is appropriate to state:
"Your Honour will see I have a stealing offence seven years ago. That was a shop-lifting offence and I would ask you to note that I have no prior drink-driving offences."
If your prior record is particularly poor, you may do best not to refer to it at all, and move on to the other factors below.
"The reading is at the low end of the range."
"The reading is not at the high end of the range."
The courts tend to me more lenient for a Mid Range PCA reading of 0.08 than they are for a reading of 0.14. If your reading is not high within the range, point this out clearly to the court.
Means of apprehension
"I was apprehended as a result of a random breath test."
If you are caught because you were weaving all over the road, or as a result of an accident, this is not going to be in your favour. On the other hand, where a driver is apprehended as a result of a random breath test many magistrates tend to apply a lesser penalty, and it is worth pointing this out. The theory seems to be that if your driving was noticeably affected by your alcohol consumption, so that it was brought to the attention of the police, or caused an accident, you should have known of your condition, and are more deserving of punishment.
Attendance at a program on drink-driving
"I have attended and completed the traffic offender program on drink-driving conducted by the PCYC and I hand up the certificate I obtained as part of that course."
Some regions have special programs designed to educate drink-drivers. These programs, referred to as Traffic Offender Programs (TOP), are approved by the courts and successful completion may result in a s10 dismissal, a shorter disqualification period or a lower fine being imposed. (For details of these programs see The penalty). If there is a program in your region and you wish to enrol you will need to ask for an adjournment. This is explained further on in The day of court).
"My personal circumstances are..."
Obvious factors are living circumstances, personal history, employment, education, nationality and health.
This information is most important - many magistrates will deal with scores of PCA matters in one day, and you must now show the magistrate what is different about you. What could help the court to understand?
Unfair perhaps, but a person married with seven children will have the court's ear more than a single person with no dependants. Those with military service, particularly active military service, are likely to receive more leniency.
Some factors worth including are:
- community activities and involvement, such as sporting groups, charities, services and religious organisations;
- recent trauma, including the death of loved ones, illness or injury, financial problems, job loss or marital breakdown;
- special areas of responsibility, including family care, maintenance or employees;
- dependants, including children.
Of course these submissions should be relevant - one example comes to mind where a 37-year-old man, not-so-ably represented by a lawyer, had submissions made on his behalf that started: "my client comes from a broken home, his father having left when my client was eight..." The magistrate interrupted with a curt "who cares - he's a pretty big boy now!" However, if the factor is recent and has an on-going effect on your life, then it should be mentioned. The magistrate wants to have a small glimpse into your life and these special factors assist.
Need for a licence
"I need a driver's licence because..."
This should have already been covered in your references, so needs only a short mention here.
It may be that without a licence you will lose your job. This should be stated clearly.
The availability of public transport may also be relevant - particularly for those who live in the country where public transport is almost non-existent.
If you have children, family or community responsibilities that involve your need to drive, those commitments should be mentioned clearly.
For example, for a single parent living in an isolated rural area to lose their licence may well be catastrophic for the whole family. An example that comes to mind was a farmer whose wife suffered from chronic and life-threatening asthma, requiring urgent attendance at a hospital. He had a clean record, 30 years of driving and a reading of 0.14 (Mid Range PCA). He was dealt with pursuant to section 10 and kept his licence.
Circumstances of the offence
"The circumstances of the offence were..."
Usually there is some reason for the lapse of judgement that leads to the commission of the offence.
Sometimes it is a "morning after" type of offence - where a person genuinely believes that they have slept the effects of alcohol off and drive home the next morning. This may lead to a lenient approach from the courts.
For some it is a big occasion - a family celebration, a sporting victory, a romantic evening - that leads to the error of judgement.
The aim of this part of your submission is to convince the magistrate that this is a "one off", an unusual event that is out of character for a normally cautious, aware driver.
It may be that you deliberately stopped drinking some time before getting behind the wheel in an effort to reduce the risks of committing the offence and this is worth mentioning.
Be wary of underestimating the number of drinks that you had - if you cannot remember it is better to leave that area alone.
Seizure of licence
"My licence was taken on the (date) and I would ask that any period of disqualification take effect from that date..."
If your licence was taken by the police at the time of your arrest and thus you have not been able to drive since, you should state this. This generally only applies to High Range PCA, Mid range PCA and Driving under the Influence.
Ability to pay a fine
"My income is XYZ after tax and super - my main outgoings are..."
You should briefly list any major outgoings such as rent/board/mortgage, significant loan repayments and regular medical and other bills for yourself and your family. Magistrates are not keen on lenient fines for people whom they perceive to be well off, and capacity to pay is a recognised factor in determining the amount of the fine. Make sure your submissions are real though - if your expenditure is greater than your income you may face some curly questions.
If your sole source of income is social security, or a fixed payment such as workers' compensation it is worth bringing the appropriate paperwork with you just in case you are asked.
"Your Honour, I wish to say finally that I am genuinely sorry for this offence - I am well aware of the dangers in drink-driving, and I would be appalled if my children/family/friends were to get in the car with a drunk. I am only pleased that no one was hurt as a result of my actions. I can undertake to the court that this will not happen again."
This is just an example, and is best put in your own words and with your real feelings behind it. Frank statements admitting guilt and indicating remorse are best delivered with eye contact and from the heart. They can make a big difference.
Of course the example above does not work for second or further offences - it becomes difficult to say "this won't happen again" if it has happened before. In such circumstances, you should simply keep it short and say something like:
"Your Honour, I wish to finally say that I am genuinely sorry for this offence and I realise that any further offences place me at even graver risk of imprisonment."
In most cases it is not appropriate to make any direct submissions as to penalty - it is too risky for those who represent themselves.
If you aim too low, the magistrate may well become offended and penalise you accordingly. Going above the penalty the magistrate had in mind may push him or her higher. Many practitioners do not suggest a penalty until they have been appearing before a particular magistrate for a long time and are familiar with his or her "form".
In most circumstances it is better not to ask for a particular penalty.
There are exceptions to this including:
- If it is a Low Range PCA and you have a clean drink-driving record, it is appropriate to ask the magistrate "to exercise discretion and deal with the matter pursuant to s10 of the Crimes (Sentencing Procedure) Act." (See The penalty)
- If it is a first offence of any other type (especially at the low end of the range), and you have a reasonable record, it is appropriate to ask that "the minimum period of disqualification be applied to the offence".
- If neither of the above apply to you, it may be appropriate to say something like: "having regard to all of the matters I have raised in my submissions, I ask that some leniency be considered by your Honour".
- If you have shown a real need for a licence and, for example, your boss will hold your job for a fixed period without a licence, then it is appropriate to ask for that period of time, provided it is not less than the minimum disqualification period (MDP) for the offence you have been convicted of see Penalty chart.
- If you are considering participating in the interlock program (see The penalty) you must ask the magistrate to make a Disqualification Suspension Order.