Howie .121 at 9:30am after bottle of wine 7-11pm

As James Madden reports in the Australian, Acting Justice of the Supreme Court Rod Howie officially blew .121 at 9:30am on 19 May 2011, after apparently causing a three car accident.

This was after, as Paul Bibby reports in the SMH, he had blown .168 on the roadside, and had been observed by Police as "unsteady on his feet, his face was flushed and his eyes watery".

The Police Facts, apparently accepted by the plea of guilty on his behalf this morning at Ryde Local Court, contain a claim by Howie that he had consumed a bottle of red wine between 7pm and 11pm the night before on May 18.

But would a Court be prepared to accept such a submission? One would expect most Magistrates to at least raise an eyebrow, if not smash the submission straight out of the ground.

The Magistrate at Ryde Local Court has already given hints that he is so far not pleased. As Madden reports:

the retired judge sent a note to the court informing it of his guilty plea and acknowledging that he expected to lose his licence and be fined.

But the magistrate said that Justice Howie appeared to have a "misapprehension" of sentencing options before the court, and said it was possible that a jail sentence could be handed down.

The magistrate also expressed his displeasure at Justice Howie's failure to appear today, saying "whoever the offender might be, it's a matter where I expect the man to be before the court".

The accident, as reported by Bibby, reveals at least some culpability on the part of Howie, who can be thankful no serious injuries were caused:

Howie was planning to drive to the central coast at 9:30am on May 19 when he failed to give way to a B-Double truck, according to a police statement of facts tendered in Ryde Local Court this morning.

Police say the 61-year-old, who has presided over many significant cases, including that of Dianne Brimble, hit the truck's rear trailer as he pulled onto Beecroft Road in Sydney's northwest, just minutes from his home.

They say he then mounted the footpath before crossing onto the other side of the road into oncoming traffic, colliding head on with a car coming the other way and sending it into a third car travelling in the same direction.

The driver of the car that Justice Howie hit head on was taken to hospital with neck pain but did not suffer serious injury.

If all of that is right, and there is no indication of a dispute to the Police Facts, there must be a prospect of further charges being laid by Police.

The matter has been adjourned to September.

Drink driving judge 'could be jailed'

Janelle Wells | ABC Online | 22 June 2011

A retired Sydney judge who wrote guidelines for sentencing drink drivers has pleaded guilty to being over the limit himself.

Former New South Wales Supreme Court judge Roderick Howie was charged with mid-range drink driving after a three-vehicle crash at Beecroft, in Sydney's north-west, on May 19.

Police say his car ran into the back of a truck about 9:30am (AEST), then crossed to the other side of Beecroft Road and hit another car.

In Ryde Local Court this morning, Howie's lawyer entered a guilty plea on his behalf, as the 61-year-old is on holidays in Japan.

Howie did send a note to the court though, saying he expected to be fined and to lose his license.

But the magistrate noted a jail sentence is also an option, saying Howie has an "unusual misapprehension about sentencing options"

He also emphasised that the former judge must be in court when he is sentenced in September.

Howie retired from the Supreme Court last year and took a position with the state's Law Reform Commission.

He is also an acting judge in the NSW Court of Criminal Appeal.

In 2004 he was on a panel of five judges in the appeals court that ruled magistrates were too lenient when sentencing in high-range drink driving cases.

"It is trite to observe that what is commonly referred to as drink driving amounts to socially irresponsible behaviour of a very significant degree," Howie said in the 2004 judgement.

"It must also be a matter of common knowledge within the public in general that it is a criminal offence to drive a motor vehicle whilst under the influence of alcohol, and that substantial penalties, including imprisonment, are available to the courts to punish those who commit the offence.

"A person who commences to consume alcohol outside his or her home must appreciate that he or she runs the risk of reaching a level of intoxication at which it is a criminal offence to drive a motor vehicle."

Justice Roderick Howie charged with Mid-range drink driving

Well, well, well, won't this make an interesting plea in mitigation?

Back in 2004, the NSW Court of Criminal Appeal delivered a guideline judgment relating to the sentencing of high range drink-driving offences. And who wrote the judgment with which the other members of the Court agreed?

None other than Howie J, who at Ryde Local Court this Wednesday will be referred to as the defendant. 

Some excerpts from the guideline judgment:

[7] It is trite to observe that, what is commonly referred to as, “drink-driving” amounts to socially irresponsible behaviour of a very significant degree having regard to the potential consequences of any driver on a public road being unable to properly manage and control a motor vehicle. It must also be a matter of common knowledge within the public in general that it is a criminal offence to drive a motor vehicle whilst under the influence of alcohol and that substantial penalties, including imprisonment, are available to the courts to punish those who commit the offence.

...

[102] A person, who commences to consume alcohol outside his or her home, must appreciate that he or she runs the risk of reaching a level of intoxication at which it is a criminal offence to drive a motor vehicle. As alcohol is continuously consumed, not only does that risk increase but also the potential seriousness of the offence increases 

... 

[118] This Court has frequently observed that the fact that the driver convicted of an offence under s 52A is of otherwise good character is of less relevance than it might be in sentencing for other types of offences: R v McIntyre (1988) 38 A Crim R 135 at 139. This is because of the prevalence of the commission of the offence by persons of good character and the importance of general deterrence: R v Musumeci (NSWCCA, 30 October 1997, unreported).

[119] This observation applies equally, in my view, to sentencing for PCA offences in general and high range PCA offences in particular.  

...

[142] Generally speaking the reason for the consumption of alcohol will be irrelevant. The offence is not concerned with punishing the drinking of alcohol but with the driving thereafter. Therefore, it is of no significance that the alcohol was consumed at a wake or a celebration, or because the person was abusing alcohol either generally or on the particular occasion because of some emotional or psychiatric condition. Yet in a number of the 199 random cases, the reason for the consumption of alcohol seems to have been a factor in the magistrate making an order under s 10. For example, in one case the magistrate apparently took into account that the offender had consumed alcohol after being with her brother who was dying of cancer. As much as this fact might give rise to feelings of sympathy for the offender, it had nothing to do with the culpability involved in driving at high range PCA. It may have simply indicated that the offence was unlikely to occur in the future so that specific deterrence was not a consideration. 

...

[143] Clearly the subjective features of the offender are relevant to a determination of the penalty for any offence, and high range PCA is no exception. But general sentencing principles require that the penalty reflect the object seriousness of the offence and that too much allowance cannot be given to subjective features particularly where deterrence and denunciation are important factors in sentencing.

...

[144] ... The fact that a person is unlikely to offend in the future does not generally mitigate the criminality of the offence ...