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District Court Severity Appeal Successful for Middle-Range Drink Driving


Our client is a 37-year old woman who lives in Maroubra, in Sydney’s south.

She is employed as a doctor at a public hospital in Sydney.

She attended a Christmas party for her workplace, where she consumed a number of alcoholic drinks, before leaving and resting for a period of time in her car where she drank water until she believed she would be under the legal limit to drive home.

While on her way home, she was pulled over by police and registered an excessive breath alcohol limit during a roadside breath test.

She was arrested on that basis and conveyed to the police station, where she registered a reading in the upper mid-range.

She was then charged with driving with a middle-range prescribed concentration of alcohol (0.136).

She then attended our offices for a free first conference where her assigned lawyer provided her with advice regarding the offence, her options and the best way forward.

She instructed us that she wished to plead guilty to the offence, but was concerned about the impact of a criminal conviction on her present employment and career.

Her assigned lawyer provided her with advice and documents to assist in placing her in the best possible position for making submissions in court for a ‘non-conviction order’, such as a conditional release order without conviction.

To our client’s great credit, she provided us with her employment contract which contained the stipulation that her employment could be reviewed in the event of a criminal conviction. 

She also provided us with a letter of apology outlining that she took full responsibility for the offence and was genuinely remorseful. The letter also describes her concerns regarding her employment and career.

She additionally undertook a traffic offender program and provided us with character references from her long time friends as well as a colleague.

In the Local Court, the magistrate immediately made clear upon receiving the police ‘facts’ that he would not entertain a submission for a non-conviction order, given the blood alcohol reading, the prevalence of the offence in the community and the resulting need for general deterrence; that is, the need to send a message to others that such conduct will not be tolerated.

His Honour repeated that view upon reading the character references, letter of apology, employment contract and letter of completion from the traffic offender program.

Her lawyer made extensive submissions with a view to persuading the court that a non-conviction order could sensibly be made in this particular case given our client’s limited traffic history, the absence of previous convictions, her need for a driver licence, the fact she pleaded guilty at the first available opportunity, demonstrated genuine remorse, accepted responsibility, had contributed immensely to the community in extremely difficult circumstances and, importantly, the potential impact of a criminal conviction on both her and the general community – which had been facing a shortage in medical practitioners in the context of increased pressure on the public health system.

Despite all of those submissions, his Honour recorded a criminal conviction, imposed the minimum disqualification period and a fine.

We advised our client regarding a ‘severity appeal’ to the District Court – which is an appeal against the severity of the sentence imposed by the Local Court; including advice that, for all intents and purposes, such appeals cannot result in a more severe sentence as the District Court judge must warn about this in court, which gives the lawyer the opportunity to withdraw the appeal.

Our client instructed that she wished to lodge an appeal, and we did this for her immediately after court.

This meant the conviction and all other penalties were ‘stayed’; meaning not put in place until the outcome of the appeal.

In the District Court, the presiding judge was also initially reluctant to entertain an order without conviction given the blood alcohol reading, and the need for general deterrence given the prevalence of the offence.

Much persuasion was required, but after extensive submissions her Honour was ultimately persuaded not to record a criminal conviction against our client, but to place her on a 12 month ‘conditional release order’ without conviction.

This means our client does not receive a criminal record, driver licence disqualification or a fine and can move forward with her life, career and the vital work she undertakes for the community without impediment.

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