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Presenting your guilty plea at court

 

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Here are some tips from the NSW Government Law Access website.

 

When you go to court for the mention, you will need to find the courtroom where your case will be heard. The court will usually put up a list of all the cases being heard that day. You should look for your name on the list, as it will tell you the courtroom you need to go to.

 

At some local courts, you might have to appear before a registrar who will ask you how you intend to plead. This is called a 'call over'. If you tell the registrar you want to plead guilty, your case may be moved to another court for 'Sentence' by a magistrate. Not all local courts have a 'call over'. At some local courts you may appear before a magistrate straight away. The magistrate will ask you how you intend to plead. If you tell the magistrate you want to plead guilty, the magistrate will usually sentence you (decide what penalty to give you, if any) on the spot.

 

Even though your case may be listed at a certain time, it is a good idea to get to the court half an hour earlier to find out what courtroom your case will be heard in. If you think you are going to be late, you should ring the court registry and let them know. If you are not there the court can decide your case without you.

 

There are often many cases listed on the same day and you have to wait until your name is called. You can take a seat in the courtroom or if the courtroom is full you can wait outside. Make sure you stay close enough to the courtroom to hear the court officer call your name. If you leave, or are not there when you are called, your case can be decided without you.

 

The magistrate or registrar may close the courtroom for morning tea (usually around 11:30am) and for lunch (usually from 1:00pm to 2:00pm). You will have to leave the courtroom during these breaks. You can check with the court officer or the registry what time the courtroom will reopen.

 

It is possible that you could be at the court for a few hours, and sometimes for most of the day, so you should make arrangements with your work or childcare if necessary.

 

Remember to turn off your mobile phone before going into the courtroom. You should also remove hats and sunglasses and be quiet in the courtroom while the magistrate is dealing with other cases.

 

When you go into the courtroom, you should sit down in the public area and wait for your name to be called. Once your name is called, you will usually be asked to stand next to the bar table, where the lawyers and prosecutor sit. If you are unsure of where to sit or who else will be in the courtroom, see Who's who in court.

 

Depending on the offence, the prosecutor may be a police, council or RSPCA officer or a lawyer representing the Roads and Maritime Service (RMS).

 

The magistrate will then ask you how you want to plead (that is, whether you want to plead guilty or not guilty). When you tell the magistrate that you are pleading guilty, the following will usually happen:

 

the prosecutor will give the magistrate a document (fact sheet) setting out what happened, when the offence was committed, and your criminal and/or driving history (if you have a history)

the magistrate will read the prosecutor's documents

you will be asked if you want to make submissions (say anything) or if you have any documents (for example character references or a letter from a doctor) you want to give to the court

the magistrate will listen to your submissions and read your documents, if you have any

you will be asked if there is anything else you want to say

the magistrate will make a decision.

 

You should ask the prosecutor to let you have a look at the fact sheet before they are given to the magistrate. If there is anything you disagree with in the facts, you should let the prosecutor know. If the prosecutor agrees, they may be able to amend the facts. Or there may be a hearing to decide what the correct facts are. You should also have a look at your criminal and/or driving history to confirm that it is correct and that you know about the offences listed on your history, if any.

 

When giving documents to the magistrate, such as character references, you will first need to show these to the prosecutor. If there is no objection, the court officer will take the documents from you and give them to the magistrate. You should not approach the bench (the table where the magistrate sits) unless you are given permission.

 

When making your submissions you should mention the things listed on your checklist, if you prepared one.

 

The magistrate will usually sentence you after they have read all the material and listened to your submissions. If you are enrolled in, or want to enrol in, an offenders program, the magistrate may adjourn sentencing until after you have completed that program.

 

When sentencing you, the magistrate will usually go through the details of the offence and your history. The magistrate will then tell you what sentence they are giving you. In most cases, the sentence will be a fine. The amount of the fine will depend on a number of factors, such as:

 

the circumstances of the offence

the maximum penalty for the particular offence

your financial situation

your driving or criminal history

whether you have completed any relevant programs.

Hint icon The maximum fine a court can impose is usually a lot higher than the original fine.

 

Magistrates have the power to find you guilty but not record a conviction. This is commonly known as a 'section 10 dismissal'. A section 10 dismissal can either be instant or come after a period of good behaviour (a good behaviour bond) of up to two years.

 

A section 10 dismissal means that you will not be fined or have to face any other punishment. A section 10 dismissal is hard to get, and will usually only be given where:

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you have a clear criminal and driving record

the offence is minor

there is little chance of you offending again

there were mitigating factors that led to the offence.

Even if the above factors apply to your case, there is no guarantee you will get a section 10 dismissal. If you want to know whether you could get a section 10 dismissal for your case, you should get legal advice.

 

If you get a section 10 for a traffic matter, you will not get any demerit points for the offence but you may have to pay court costs.

 

For some driving offences there are minimum periods of disqualification that the court must impose. If you are concerned about losing your licence, you should get legal advice.

 

Appeal

 

If you think that the sentence you are given is too harsh or inappropriate, do not argue with the magistrate. You may be able to appeal the decision to the District Court within 28 days of the decision. Before you file an appeal, you should get legal advice

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Law Access NSW suggests:

Get references and prepare a letter to the Magistrate or written notes of what you will say.
It may be helpful to get written references from people who can talk about your good character. These references should be addressed to the Magistrate and refer to the current charges. Ask for the Legal Aid information card about Character References. The court will consider a number of factors in deciding the appropriate penalty and disqualification. These include:
• whether you believed you were over the limit when you drove;
• any particular reason as to why you chose to drive;
• whether you were detected by Random Breath Test or as a result of erratic or dangerous driving;
• the length of the journey/intended journey;
• the number of people put at risk by the driving (passengers, members of the public etc)
• any collision that occurred;
• any significant effect that licence disqualification may have on you, your employment or other people who rely on you (children, sick relative, etc.);
• if there are no other forms of transport you can use;
• how long you have held a licence and what your overall traffic record is like;
• your likelihood of reoffending.
• Either prepare a short letter in your own words to give to the Magistrate, or prepare written notes. Include any explanation that relates to the factors set out above. In particular, address:
o any special reason why you were driving;
o why you were driving after consuming alcohol;
o why the court should accept that you will not drink and drive in future;
o whether you need a driver's licence for work. Make sure you have a letter from your employer to say what will happen to your job if you are disqualified from driving for a long time;
o whether you have other reasons for needing a driver's licence, for example a disabled child or health problems. Make sure you have evidence, for example a doctor's certificate or report from another treating health practitioner to support this;
o what your weekly income and expenses are. This assists the court in calculating any fine to be imposed.
You should not drive to court in case you lose your licence. Bring your licence with you unless the police have already taken it, as the court may require you to surrender it.
The police will have a fact sheet which says why you were arrested. It may also refer to what the police say you told them about how many drinks you had. Make sure you read the fact sheet. Also, check the certificate which states your blood alcohol level and the machine printout from the breath analysis machine to see that they match the time on the police fact sheet. If you disagree with what the police say happened, you may tell the Magistrate when it is your turn to speak.
The police prosecutor should also show you a copy of your previous criminal record if you have one and a copy of your driving history. Read these documents to make sure they really are yours. You should dispute any incorrect information on your criminal or traffic record.
If you are convicted, you will lose your licence for some time – the higher your alcohol reading, the longer the period. You may also have to pay a fine. For repeat or serious drink driving convictions you will also be subject to a mandatory alcohol interlock order. Other penalties can also be imposed, including a gaol sentence for more serious offences. TIME TO CALL DEVINE
If you are convicted of repeat or serious drink driving offences the court will impose a mandatory interlock order.  The effect of these orders is that you will have your licence disqualified for 5 years unless you complete a shorter period of disqualification (ranging between 1-12 months) and then a period of participation in the interlock program (usually for 1-4 years). After these periods are complete you must apply for a new unrestricted licence. The shorter disqualification and interlock periods can vary in length according to the offence you are charged with and the discretion of the court.
Participating in the interlock program means that you will only be licensed to drive vehicles fitted with an interlock. Also, you must have an interlock fitted to a vehicle you use.
An interlock is an electronic breath testing device connected to the ignition of a vehicle. It stops the vehicle from starting if alcohol is detected. Randomly timed breath tests must also be passed while driving. 
While you are on the interlock program you will be monitored by Roads & Maritime Services (RMS). All breath test results, a photograph of the person providing the sample and any attempts to tamper with the device are recorded by the interlock and monitored by RMS. Possible consequences if you try to drive after consuming alcohol include warning letters, referrals for health interventions, extension of your interlock licence period, suspension or cancellation of your licence or fresh charges and disqualification.
RMS has estimated that the cost of installing and maintaining an interlock is about $2,200 per year but this is subject to the rates offered by suppliers and may change over time. You must pay this cost. There are concession rates (discounted by 35%) for full-rate pensioners, health care card holders and some veterans. If you are in 'severe financial hardship' you can apply to the RMS for short term financial assistance.
If you have been disqualified from driving for a period of time, you must hand in your licence. The maximum penalty for driving while disqualified is 18 months gaol and/or a $3,300 fine (or 2 years gaol and a $5,500 fine if it is a second or subsequent offence). There is also an automatic minimum disqualification for an additional 12 months (or two years if it is a second or subsequent offence) when you are convicted for driving while disqualified.
Once your disqualification period is over, you have to re-apply for your licence as you will not get it back automatically. You will be a cancelled driver until you reapply for your licence (it is an offence to drive whilst cancelled).
If you think you will have trouble paying your fine within 28 days, speak to court staff before you leave about making a 'time to pay' arrangement. If you do not pay the fine within the time set, the State Debt Recovery Office (SDRO) can impose a range of penalties against you. For more information call the SDRO on 1300 655 805.
You can appeal to the District Court if you are not satisfied with the Magistrate's decision. You should seek legal advice before lodging any appeal. The appeal must be lodged within 28 days. There is a fee payable. Alternately, if, for good reason, you were not present in court when the Magistrate made the decision, you can apply to have the decision reviewed. 

This is general information and not legal advice. See a lawyer with your particular and specific facts and instructions.

TIME TO CALL DEVINE  1300 59 33 98

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