Aggravating and mitigating considerations
There are a number of factors that the court will have regard to when considering the appropriate penalty for the defendant following a conviction for motoring offences. There are aggravating factors that are considered, which increase the seriousness of the offence and mitigating factors that are presented to reduce the seriousness of the offence. Special reasons may also be considered by the courts.
Such factors will be considered where there is a highly culpable standard of driving at the time of the offence, for example: the consumption of drugs or alcohol, speeding excessively or driving competitively against another vehicle, disregarding warnings from fellow passengers, persistently bad or aggressive driving, driving whilst distracted or with a known medical condition which is likely to affect the defendant’s driving skills, driving whilst deprived of sleep or general drowsiness, or driving a poorly maintained vehicle.
Other aggravating factors that the court may consider are: driving without a licence, insurance or whilst disqualified, the use of any stolen vehicle or driving without consent. The court may also take into account any relevant past motoring convictions, particularly any instances of driving whilst excessively intoxicated or offences that involved bad driving.
Irresponsible behaviour by the defendant, whilst driving, is considered an aggravating factor. Such behaviour can include failing to stop, falsely blaming a victim for the cause of an accident or committing the driving offence whilst on bail.
As with any other type of offence, before sentencing, the defendant’s solicitor will provide the court with a plea in mitigation on the defendant’s behalf; where there is a discretion to disqualify the defendant from driving.
The solicitor will try to persuade the court not disqualify the defendant and impose the lowest amount of penalty points it is able to, or if the court does decides to disqualify the defendant, it should do so for the shortest period possible for the particular offence, taking account of all mitigating factors.
If the court has an obligatory duty to impose a disqualification on the defendant, the solicitor should raise mitigating factors to reduce the length of disqualification to the shortest period it feels able to and limit the level of any financial penalty.
Where there is a serious driving offence and the court is considering a custodial sentence, mitigating factors should be presented to persuade the court to deal with the matter other than by way of imprisonment, such as through a community sentence or a fine.
Examples of mitigating factors
‘Offence Mitigation’ relates to the offence itself and can include pleas such as: the defendant’s speed was not excessive, there was not much traffic on the road, the defendant was guilty only of a momentary lapse in concentration, there was only minor damage or injury caused and the defendant entered an early guilty plea.
‘Offender Mitigation’ relates to the personal circumstances of the defendant; the points commonly raised are: the defendant’s age and number of years he/she has been driving, the defendant having a ‘clean’ licence, it may be that the defendant’s job requires him to have a driving licence or that the defendant drives a large number of miles each year.
Such circumstances may be considered by the court where the defendant has accumulated 12 or more penalty points on his/her driving licence and the court is able to impose a disqualification from driving for at least 6 months. If the defendant is able to prove on the balance of probabilities that mitigating circumstances exist, the Magistrates have a discretion to either disqualify the defendant, or they may disqualify him/her, but for less than 6 months.
A defendant seeking to avoid disqualification under the penalty points system will normally need to persuade the court that such a penalty is likely to cause exceptional hardship. Evidence must be presented to the court to support this assertion.
Circumstances that will not be considered by the court are: the triviality of any of the offences for which the points were initially imposed or any general hardship that disqualification would cause; only exceptional hardship will be considered by the court.
If a defendant is convicted of a motoring offence and an obligatory disqualification is likely to apply or the defendant’s licence is to be endorsed with penalty points, the court may consider ‘special reasons’ why such a penalty should not be imposed.
For a matter to amount to a special reason, it must be a mitigating or extenuating circumstance, it must not amount to a defence of the charge, it must be directly connected to the offence and it must be a matter which the court ought to take into account when imposing a sentence.
Examples of special reasons include: the defendant’s drinks were spiked, the distance that was driven on the date of the offence was extremely short, or the defendant only drove on that occasion due to an emergency.
Powers available to the court if a special reason is found
The court has a discretion not to disqualify the defendant or to only disqualify him/her for a short period. With regard to penalty points, the court can either impose the relevant number of penalty points for the particular offence, or it may decide not to impose any points at all. It cannot impose a lower number of points than the offence would normally carry.