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Even when you plead guilty to the offence, you may still avoid getting a criminal conviction. What criminal records are held by the Police?
Yes, the LEAP records are broader than the usual criminal records, the Police will not necessarily release the information if; The magistrate finds you not guilty You completed the conditions and the diversionary programs Do offences outside the judiciary give me a criminal record?
Do offences outside the country give me a Criminal conviction? Is a criminal record for life? Such as; Murder Sexually related offences Major Child violation and abuse Multiple offenders Major financial fraudulent conviction Or where the conviction attracts sentence imprisonment of more than 6 months Wrapping Up The surest way to know of any convictions in your criminal history record is to apply for an updated national police history check.
National Police Check. Police Check in NSW. Police Check in Victoria. Police Check in QLD. Police Check in SA. Police Check in WA. Police Check in Tasmania. Police Check in NT. Many offences have penalties that can affect your driver's licence. Disqualification means that you are not allowed to drive for a period of time specified by the court. In certain circumstances, your licence may also be cancelled and you will have to re-sit your test to get your licence back when the disqualification has ended.
For some offences, especially if you have been given an infringement notice, you may receive demerit points instead of a disqualification. If you receive a total of 12 demerit points or less for novice drivers , you will be under a demerit point suspension.
If your licence is subject to more than one type of disqualification or suspension, there are complicated rules about when the different orders start and finish. This could mean that it will take even longer before you are able to legally drive again.
You should get legal advice to work out when your licence will be clear, and try to get direct confirmation from the Department of Transport before you drive again. For many traffic offences, a minimum penalty is fixed by law.
This might be a fine, or a fine and period of disqualification. The court must impose at least the minimum fine and at least the minimum period of disqualification for the particular offence. The court can impose more if it thinks it is appropriate, but can never impose less than the minimum. For some offences you might also be subject to the Alcohol Interlock Scheme. You will then need to meet certain requirements from the Department of Transport before being permitted to drive.
It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. In other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment.
The obligation to have regard to the matters set out in [the previous] ss 10 and 11 of the Criminal Law Sentencing Act and established sentencing principles are sufficient further guide to the sentence. The court must consider "good reason" for suspension even where imprisonment seems appropriate. Even where a sentence of imprisonment may be appropriate because of the contumacious character of the driving itself, the sentencing Magistrate should nevertheless have regard to whether there is good reason to suspend that sentence [see Sentencing Act SA s 96].
Alternative penalties may be considered where the offending is not contumacious. Where the circumstances of the offending do not amount to contumaciousness the Magistrate may find there is good reason to substitute an alternative penalty such as a fine or community service [see Sentencing Act SA s 25]. Suspension of sentence for second or subsequent offenders is not possible. In the case of a second or subsequent offence, it will naturally be harder but not necessarily impossible for the sentencing Magistrate to order a penalty other than an immediate sentence of imprisonment.
As explained by Lander J, in Cadd at :. A person who commits a second or subsequent offence will, because of the circumstances of the offence, be more likely to be imprisoned in relation to that offence.
That is because a second offence would ordinarily exhibit contumacy on the part of the offender. So also will that person be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence. Again however, in my opinion, having regard to the fact that this type of offence is simply one which must be considered in relation to the circumstances of the offence and the circumstances of the offender it would be inappropriate to lay down any further guidelines than that.
Of course, different considerations must apply to the offender who is before the Court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.
Progressive steps must be taken in determining penalty. The Court is required to approach the sentencing task by progressive steps to determine the appropriate penalty in the individual case. The appellant had been sentenced to an immediate term of imprisonment for 21 days just prior to the decision in Cadd. Counsel for the appellant submitted that the appellant believed the disqualification had expired at the time he drove.
The appeal was allowed and the matter remitted back to the summary court for sentencing afresh and to hear evidence if necessary. The sentencing Magistrate would have to first satisfy him or herself whether the circumstances amounted to contumacious offending to determine whether a sentence of imprisonment should be imposed. If it were, the question of suspension would then need to be considered. If so, then the starting point should be a sentence of imprisonment. If not, the court may find good reason to impose a lesser penalty such as a fine or community service.
The defendant had been detected driving at kph in a kph zone. He had been a passenger but had taken over driving while his friend consumed food bought at a service station stop. Justice Mullighan allowed the appeal stating at :. Where the driving is found to have been contumacious the court should have regard to the personal circumstances of the offender to consider whether there is good reason to suspend a sentence of imprisonment.
However, even if it is contumacious behaviour it will not necessarily give rise to an immediate sentence of imprisonment. There will still need to be an inquiry into whether good reason exists for suspending the sentence [see Sentencing Act SA s 96]. Where the driving is found not to be contumacious or may be characterised as trivial or committed in the context of genuine emergency the full range of sentencing options and principles arising under the Sentencing Act SA is available to the sentencing Magistrate.
However, it must be conceded that without conviction cases would be rare in view of the serious nature of the offence. In addition to trivial or emergency situation examples, driving which would be accepted as non-contumacious would normally include those cases where the driver has acted under a mistake of law, such as where the driver was in genuine error as to the operative dates of the disqualification, or the time at which the disqualification came into effect or expired, or was under an honest but not reasonable misapprehension as to the operation of an administrative disqualification by the Registrar of Motor Vehicles.
In Bates v Police , Perry J stated at 73 :. I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress.
In Harshazi v Police , Mullighan J disagreed at , :. It is not appropriate, in my view, in effect to circumscribe the circumstances which amount to contumacious offending in the manner expressed by Perry J. The offending may not be contumacious even though the driving is over more than a short distance and in circumstances [that] do not involve an emergency of duress.
The present case is an example. The offending was foolish, not contumacious. If the meaning of contumacious in the present context was defined in that way so as to exclude only very few types of cases from its reach, there would be a very different sentencing standard than that expressed by the majority in Cadd. Because the test is contumacy the inquiry must be more directed to attitude.
The reasons for driving a motor vehicle, in circumstances where the offender well knew that he or she had been ordered by a Court or by administrative action not to drive a motor vehicle, are important. If the driving exhibits an attitude of defiance then that would normally amount to contumacy and may call for a sentence of imprisonment.
To drive a motor vehicle in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance. It rather suggests that it does not suit the driver to obey the order of the Court. The defendant was disqualified due to demerit points and was a first offender. He made regular arrangements for alternative transport to adjust to the disqualification and had arranged for a friend to drive him and his two sons to Port Pirie for a BMX race meeting.
The friend was too intoxicated to drive them back to Adelaide three days later so the defendant drove. Lander J was not prepared to categorise his behaviour as contumacious because it did not indicate an attitude of total disregard of, and disobedience to the authority which had ordered the disqualification.
Up until the point in time when he drove the car his behaviour had suggested appropriate obedience to the disqualifying authority [see Johns v Police [] SASC ]. The defendant was a year-old man who drove his unregistered and uninsured car to obtain parts for it, but only thirteen days after the disqualification imposed. He had prior convictions for unregistered and uninsured driving. Perry J held that the driving was contumacious and that an immediate sentence of imprisonment would have been appropriate were it not for the effect of his incarceration on the two young children of his sister to whom he was sole de facto parent, his sister having suicided in custody some four years before.
The defendant was disqualified for a PCA offence. The defendant received an immediate term of imprisonment of two weeks. Mullighan J substituted this penalty with an order for 50 hours community service on the basis that the Magistrate did not conclude that the offending was contumacious and did not have sufficient regard to the personal circumstances of the appellant and in particular to his employment and family circumstances [see Harshazi v Police 71 SASR ; [] SASC ].
On the occasion of the offence, the employer had unexpectedly required him to travel to an associated place of work at the end of his late shift when no public transport was available. The defendant panicked, rode his bicycle home to get his car and drove to the required destination.
On appeal it was held not to be a premeditated, positive act of defiance with a number of substantial mitigating features. The original sentence of immediate imprisonment for a period of seven days was set aside, and a sentence of twenty-one days imprisonment suspended substituted [see Theophilus v Police [] SASC ].
The defendant was disqualified by order of the Registrar of Motor Vehicles for non-payment of fines. He had a de facto wife and a five-year-old child, and he had undergone training and obtained permanent employment since the offence. He was ordered to serve an immediate term of imprisonment for a period of twenty-one days. On appeal, it was held that the offending was contumacious and warranted a term of imprisonment but it would be appropriate to suspend the term of imprisonment. The grounds for this decision was based upon the realisation that an immediate term of imprisonment would likely undo the rehabilitation undertaken by the appellant during the six months between the offence and the date of the hearing [see Hinds v Police [] SASC Unreported, Lander J, 15 July This was a decision handed down soon after Cadd ].
The defendant had received concurrent sentences of twenty-one days each for driving whilst disqualified and driving under the influence of alcohol. He had been disqualified as a result of a previous PCA offence but had never before served a custodial sentence. He had driven from Murray Bridge to Mannum reluctantly and under a considerable degree of pressure from his intoxicated friend, his own judgement being impaired by alcohol.
This was his fourth drink driving offence in the space of six years. It was argued that a requirement to serve a sentence of immediate imprisonment would result in a loss of employment and would cause distress to his ill and elderly Greek parents. The defendant had received an immediate sentence of imprisonment of fourteen days. He was a fifty-five-year-old grandfather on a disability support pension. His wife was not home and the house was locked.
There was no public transport available and no money for a taxi. It was raining heavily and the child was crying with discomfort. The defendant took the spare car key from outside the house and drove home with the child.
On appeal, despite some sympathy for the circumstances, it was found there was no error in not exercising the discretion to suspend. Leniency was appropriately shown by ordering an immediate sentence of imprisonment of fourteen days only [see French v Police [] SASC ].
The defendant was a sole parent to two young children. The defendant had a background of post-traumatic stress disorder and clinical depression.
He was disqualified as a result of a PCA offence. When driving under disqualification he had a blood alcohol reading of 0. An order to serve twenty-eight days imprisonment was upheld on appeal. While the background and circumstances of the appellant did justify some compassion, the driving was contumacious and aggravated by the high blood alcohol reading in the context of the prior PCA disqualification [see Wood v Police [] SASC ].
The defendant had a deplorable record including offences involving the use of motor vehicles. The drive whilst disqualified offence was committed while the defendant was on parole. He rode a motorcycle a short distance from a reserve at Morgan to the house where the motorcycle was kept.
On appeal it was held that although this was not a particularly serious example of an offence of its type, it was nevertheless not a case of a minor breach nor one committed by a first offender. Therefore there was no proper basis for suspending. The degree of defiance in the offending will be important in consideration of penalty [see Johnston v Wilkinson 11 A Crim R ].
The Court will look at the following factors in determining defiance:. Driving whilst disqualified, coupled with a manner of driving which breaches any provisions in the Road Traffic Act , and particularly where that breach repeats the breach that resulted in the initial disqualification, will be viewed seriously by the Court [see Evans v Higgins LSJS ]. The defence of honest and reasonable mistake of fact is available for the offence of drive whilst disqualified [see Davis v Bates 43 SASR ].
This defence may arise where the driver claims that he or she was unaware of disqualification, such as where the driver was not present in court when the order was made or where the driver doesn't receive a demerit point notice informing him or her of a licence disqualification. It is important for the duty solicitor to note that if a person is disqualified other than by court order and denies receiving notification of that disqualification, it is up to the prosecution to prove that the notice was received.
Without such proof the charge would ordinarily be withdrawn after negotiations. Appeal cases on defence of honest and reasonable mistake of fact. The defendant was convicted of illegal use of a motor vehicle and disqualified until further order. The defendant was under the impression that he was disqualified for nine months and had applied and received a licence after the nine months had elapsed.
On appeal it was held that no offence is committed if there is an honest and mistaken belief, based on reasonable grounds, as to the state of facts, which if true, would render the act itself innocent [see Davis v Bates 43 SASR ]. The defendant was disqualified for a breach of probationary conditions and disqualified for three months until the twenty-fifth of January. He was caught driving on the twenty-fifth of January and raised the defence of an honest mistaken belief on reasonable grounds.
On appeal it was held that the mistaken belief as to the effect of the endorsement on the licence was a mistake of law and the defence was therefore not available. The Road Traffic Act creates three major offences involving the combination of driving and drugs or alcohol. These are commonly known as:. A police officer may also require the driver of any motor vehicle that approaches a random breath testing station to submit to an alcotest , which is a small hand held unit that drivers blow into, usually without leaving their vehicles.
Alcotest units must comply with the requirements of the Road Traffic Act [see s 47H]. The police have a broad power to require a person to submit to an alcotest or breath analysis , or both. A police officer can require a person to submit to an alcotest where that police officer believes on reasonable grounds that a person is driving, or has driven a motor vehicle; is attempting, or has attempted to put a motor vehicle in motion; or is acting, or has acted as a qualified supervising driver for the holder of a permit or licence [see Road Traffic Act s 47E 1 ].
In addition, a police officer can randomly direct a person driving a vehicle to stop the vehicle and submit to an alcotest or breath analysis [see ss 47E 2 ; s 47EA for exercise of random testing powers]. A person may not, in the exercise by police of random testing powers, be required to submit to a breath analysis unless an alcotest indicates that the prescribed concentration of alcohol may be present in the blood of the person [see s 47E 2ab ].
An alcotest or breath analysis may not be commenced more than eight hours after the conduct of the person which gave rise to the requirement [see s 47E 2b ]. When an alcotest shows that the prescribed concentration of alcohol may be present in the blood of a driver, the driver can be required to submit to a breath analysis.
If the breath analysis indicates the prescribed concentration of alcohol, the police officer who conducted the test must tell the driver of their right to have a blood test taken and that, if a blood test is not taken, the result of the breath test cannot be challenged in court [see Road Traffic Act s 47K 2a a ; Road Traffic Miscellaneous Regulations regs 21 and 22].
Furthermore, a police officer may request further testing by way of a drug screening test, an oral fluid analysis, or a blood test in certain circumstances [see Road Traffic Act s 47EAA for further information]. It is an offence to drive a vehicle, or attempt to put a motor vehicle in motion, while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle [see Road Traffic Act s 47; Criminal Law Clamping, Impounding and Forfeiture of Vehicles Act ; Criminal Law Clamping, Impounding and Forfeiture of Vehicles Regulations r 4 b ].
In the case of a first offence, where the Court is satisfied by evidence given on oath that the offence is trifling the court may order a lesser period of disqualification but for not less than one month [see s 47 3 b ]. For the purposes of this offence, a person is deemed to be incapable of exercising effective control of a vehicle if any physical or mental faculty is lost or appreciably impaired [see s 47 2 ].
It is therefore possible to be convicted of driving under the influence of alcohol even if the blood alcohol level is less than the prescribed concentration. In attempting to prove charges of driving under the influence, prosecution submit evidence of the manner in which the vehicle was being driven and any signs of intoxication, for example the smell of alcohol about the driver, unsteadiness, watery or bloodshot eyes, and slow or slurred speech. This offence differs from the offence of driving while exceeding the prescribed concentration of alcohol in your blood "Exceed PCA".
A person who drives, or attempts to drive, a vehicle so much under the influence of alcohol or drugs as to be incapable of exercising effective control of the vehicle AND while a child under the age of 16 years is present in the vehicle, is guilty of an offence [see Road Traffic Act SA s 47 1a ]. The same penalties apply as if the person was charged with driving under the influence pursuant to section 47 1 of the Road Traffic Act SA.
In the event a person is charged with driving under the influence while a child is present in the vehicle, and the court is not satisfied that the offence has been committed, the court can instead convict the person of driving under the influence pursuant to section 47 1 of the Road Traffic Act SA if that offence has so been established [see Road Traffic Act SA s 47 1b ].
Where a person is convicted of driving under the influence while a child is present in the vehicle, they will be required to undertake a drug and alcohol dependency assessment before reapplying for their licence, to show they are no longer dependant on drugs or alcohol - see Drug and Alcohol Assessment; [ Motor Vehicles Act SA s 79B 1 c ].
It is an offence for a person to drive a motor vehicle, or attempt to put a motor vehicle in motion while there is present in his or her blood the prescribed concentration of alcohol [see Road Traffic Act s 47B 1 ; Motor Vehicles Act s 81C for licence disqualification upon expiation ; Criminal Law Clamping, Impounding and Forfeiture of Vehicles Act ; Criminal Law Clamping, Impounding and Forfeiture of Vehicles Regulations reg 4 b ].
The prescribed concentration of alcohol is a concentration of. For unlicensed, learner or probationary drivers the prescribed concentration of alcohol is zero [see Road Traffic Act s 45A for definition]. The following penalties apply:. Where the concentration of alcohol is more than. Where the concentration of alcohol is less than. A concentration of alcohol of. In determining whether an offence is a first, second, third or subsequent offence, any previous drink or drug driving offence for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see Road Traffic Act s 47B 4 ].
The prescribed period is three years in the case of a previous offence that is a category one offence that being an offence against section 47B 1 involving a concentration of alcohol of less than. In the case of a first offence, where the court is satisfied by evidence given on oath that the offence is trifling the court may order a lesser period of disqualification but not for less than one month [see s 47B 3 b ].
The definitions for category 1, 2 and 3 offences came into effect on 1 May , and apply to any offence which occurred on or after that date [see Statutes Amendment Transport Portfolio-Alcohol and Drugs Act ]. A person can be charged with a separate PCA offence if they drive, or attempt to drive, a motor vehicle with more than the 'prescribed concentration of alcohol' in their blood AND a child aged under 16 years is present in the vehicle [see Road Traffic Act SA s 47B 1a ].
For the purposes of this offence, the prescribed concentration of alcohol is 0. A person charged with this offence faces the same penalty as if they were charged with the equivalent offence pursuant to section 47B 1 of the Road Traffic Act SA. Where a person is convicted of driving with more than the prescribed concentration of alcohol in their blood and while a child aged under 16 years is present, they will be required to undergo a drug or alcohol dependency assessment before reapplying for their licence [see Drug and Alcohol Assessment; Motor Vehicles Act SA s 79B 1 c i ].
For the purposes of this section, a prescribed drug is: deltatetrahydrocannabinol, methyl amphetamine or 3, 4-methylenedioxymethamphetamine MDMA [see Road Traffic Miscellaneous Regulations reg 16]. As of 8 March , a mandatory 3 month licence disqualification applies for a first offence of driving with prescribed drug in oral fluid or blood.
In determining whether an offence is a first, second, third or subsequent offence, any previous drink or drug driving offence s for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see Road Traffic Act s 47BA 5 ].
It is an offence to drive a vehicle where a prescribed drug is present in a person's oral fluid or blood, AND a child aged under 16 years is also present in the vehicle at the time of the offence [see Road Traffic Act SA s 47BA 1a ]. Mandatory licence disqualifications apply for this offence. The same penalties apply as if the person was charged with Driving with a prescribed drug in oral fluid or blood pursuant to section 47BA 1 of the Road Traffic Act SA.
Penalties are as follows:. A person convicted of this offence will be required to undergo a drug dependency assessment prior to reapplying for their licence at the end of the disqualification period, to show they are not dependant on drugs [see Motor Vehicles Act SA 79B 2 c ]. It is an offence to refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement to submit to an alcotest or breath analysis , particularly to refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted [see Road Traffic Act s 47E 3 for offence and defences; Jasinski v Police LSJS ; [] SASC for strict liability offence].
In the case of a first offence, where the court is satisfied by evidence given on oath that the offence is trifling the Court may order a lesser period of disqualification but for not less than one month [see s 47E 6 b ]. In determining whether an offence is a first or subsequent offence, any previous drink or drug driving offence s for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see s 47E 7 ].
The penalties that apply are:. On this basis, if a person commits an offence having committed a drink or drug driving offence within the previous five years, they are to be dealt with as a second or subsequent offender. A person who has committed an offence more than five years earlier will be given a penalty within a first offence category, but the Court may choose to take the previous offence into account and give the driver a higher penalty within that range.
The Court has very limited power to reduce the penalties below the minimum. A court can reduce the minimum disqualification to one month for a first offence if it is satisfied that the offence is trifling.
When deciding whether or not an offence is trifling, the court takes into account all of the surrounding circumstances, including the blood alcohol level, the extent of impairment of faculties, the locality, the nature and extent of the driving and the actual or potential damage to the public.
A low alcohol reading alone will not be enough to be considered trifling; there must be additional circumstances that are rare and exceptional.
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