Drink-drivers pour through loophole

Sydney Morning Herald

Saturday 28 February 2004

By Joseph Kerr, Transport Reporter

Where the courts are lenient

Huge numbers of drink-driving motorists are escaping automatic loss of their licences, and it pays to face the charge in the right suburb or city.

In Newcastle more than 45 per cent of drink-drivers caught at three times the legal limit (0.15 blood alcohol level and above) kept their licence in 2002. In Wollongong none did.

For low-level offenders (0.05 to 0.08), Balmain was the place to face court, with 80 per cent keeping their licences. In Windsor the figure was just over 10 per cent.

Magistrates also appeared to favour female offenders, with 37.8 per cent keeping their licences, compared with 22.9 per cent of men. They also let 44.1 per cent of drivers over 50 keep the car keys, compared with only 18.3 per cent of the under-25s.

The Bureau of Crime Statistics and Research figures show that loss of licence for low-level offenders dropped from about 75 per cent in 1993 to just over 55 per cent in 2002. For those between 0.08 and 0.15 it dipped from about 85 per cent to under 75 per cent.

And more than 10 per cent of people caught at over 0.15 do not lose their licence, about double the 1993 rate.

Any conviction for drink-driving carries an automatic licence disqualification period, but section 10 of the Crimes (Sentencing Procedure) Act allows a magistrate to find a person guilty but dismiss the charge, put them on a good behaviour bond or into a program designed to stop them reoffending.

The director of the Bureau of Crime Statistics, Don Weatherburn, believes the mandatory disqualification period is causing the problem.

Magistrates can only prevent an offender from losing a licence by allowing him or her a section 10 dismissal or conditional discharge. "In quite a few courts these laws are regarded as an anathema because they take away all discretion," Dr Weatherburn said.

"Some magistrates take the view that some people convicted of these offences don't deserve to lose their licences."

He said that neither the Parliament nor the higher courts had clearly indicated when it was appropriate to try to rehabilitate a drink-drive offender and when it was appropriate to deter them, by taking their licence.

The NSW Attorney-General, Bob Debus, commissioned the bureau research and will use it in arguing in the Court of Appeal "for more consistent and deterrent penalties" for high-range offenders.

His submission to the court, to be heard on May 5, argues that orders under section 10 "should only be made in the most exceptional of cases and that where an offender has a prior [drink-driving] conviction, serious consideration should be given to the imposition of a custodial sentence".

The chairman of the Pedestrian Council of Australia, Harold Scruby, called for magistrates to lose their discretion not to remove licences, but a spokesman for Mr Debus said no two cases were the same and clearer guidelines were the answer.

Mr Scruby said that for offenders under 0.07, 10 demerit points should be applied.