If you are found guilty of a Chain of Responsibility (CoR) offence under the Heavy Vehicle National Law (HVNL), there are several mitigating factors the court will take into account to reduce the sentence.
Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) imposes an obligation on courts to take certain factors into account when determining the appropriate sentence to hand down to a party that has committed an offence.
Subsection (3) provides a list of mitigating factors that will be taken into account. Mitigating factors are circumstances that may reduce the punishment an offender receives after being found guilty or pleading guilty to an offence. They reduce the severity or the effect of a wrongful act.
If an offence occurs, you should give thought to any mitigating factors that may apply and either put measures in place to satisfy them or gather evidence to prove them.
Tip 1. Whether a guilty plea was entered. If you plead guilty to the offence, the court is obliged to take this into account when deciding your sentence. A plea of guilty indicates you take responsibility for your actions and often results in a 25% discount on any sentence imposed.
Tip 2. The amount of injury, emotional harm, loss or damage caused by the offence. It will work in your favour if you can prove that the offence you committed caused little damage.
Tip 3. Your previous criminal history. If you have no prior convictions, you can generally expect to be treated more leniently than someone who does have prior convictions. On the other hand, if you do have prior convictions, this will be treated as an aggravating factor, and you will need to explain why this most recent offence should not be seen as a pattern of bad behaviour.
Tip 4. Whether you are of good character. Good character may be shown through community involvement, general compliance with the law or other obligations, or written character references from someone who knows you personally or professionally.
Tip 5. The likelihood of you reoffending. If the court is satisfied that you are unlikely to reoffend, your sentence may be reduced. This involves a prediction about your future offending behaviour.
Given that one of the elements of the ‘all reasonable steps’ defence under the HVNL is the steps taken to address and remedy past compliance problems, any person breaching the HVNL should put response measures in place. If you do this, it should demonstrate that you are unlikely to reoffend.
Tip 6. Your prospects of rehabilitation. If the court decides you have good prospects of rehabilitation, e.g. because of your age or past performance, you may receive a lesser sentence. But if the court thinks you are unlikely to reoffend, it doesn’t necessarily mean it will also think you have good prospects of rehabilitation.
Tip 7. Whether remorse was shown. You may show remorse by confessing to the police, entering an early guilty plea or cooperating with authorities. You must be able to demonstrate real contrition.
Tip 8. The degree of pre-trial disclosure. A court may impose a lesser penalty if you disclose information not in your interests before the trial, e.g. admit fault for a certain action. However, admitting facts that are not in dispute, e.g. that you were the driver of the vehicle that crashed, will not amount to pre-trial disclosure.
Tip 9. Whether you provided assistance to law enforcement authorities. The court will look favourably on any assistance you have provided to law enforcement authorities, e.g. if you have cooperated in any investigations into an incident and/or provided information that will help to bring other offenders to justice.
You should always aim for a full and frank cooperation with the authorities.
Tip 10. Subscribe to CoR Adviser. Having more detailed information about this subject and other Chain of Responsibility-specific information at your fingertips will help you avoid breaches in the HVNL.
Written by the legal experts at Holding Redlich (in plain English), subscribe today to see how the information in CoR Adviser can help simplify your business.