The Court of Criminal Appeal on the 8th of September 2004 had delivered the guideline judgment with respect to offences of High Range PCA because of an application by the Attorney General pursuant to section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment with respect to High Range PCA offences.
The ‘Guideline Judgment’ was issued because of the growing concern surrounding drink driving in NSW, particularly for High Range Offences.
The purpose of the guideline judgment is to ‘guide’ courts and assist the Courts when dealing with offenders who appear before the Court for High range PCA (Prescribed Concentration of Alcohol). It should be noted that the guideline judgment is not binding on every single case, and we will discuss the meaning of the words ‘Guideline Judgment’ in further detail below.
What is a ‘Guideline Judgment’?
It was noted in the case of Regina v Jurisic  45 NSWLR 209 that:
“Such guidelines are intended to be indicative only. They are not intended to be applied to every case as if they were rules binding on sentencing judges. Decisions of appellant courts on sentencing are not to be treated as binding precedents.
“In accordance with this approach, guideline judgments perform a limited role. Nevertheless, in my opinion, such judgments will provide a useful statement of principle to assist trial judges to ensure consistency of sentencing with respect of particular kinds of offences. I reiterate that such guidelines are not binding in a formal sense. They represent a relevant indicator, much as trial judges have always regarded statutory maximum penalties as an indicator.”
NSW COURT OF CRIMINAL APPEAL DELIBERATIONS:
We will breakdown the bulk of the deliberations made by the NSW Court of Criminal Appeal in the following headings (Below). For more information on the ‘guideline judgment’ for high range PCA, please be sure to visit the following government website: https://www.caselaw.nsw.gov.au/decision/549faf243004262463b758d1
DRIVER EDUCATION PROGRAMS:
“There is evidence that suggests that attendance at such a program lessens the likelihood of reconviction for drink driving. This may be not only because of the educative value in causing the offender to appreciate the consequences of such conduct but also because of the humiliation experienced by an offender in being required to attend such a program.” [At Paragraph 74]
“Notwithstanding the undoubted beneficial affect upon a driver of participation in a driver education program, that fact can have little impact, in my view upon the appropriate sentence to be imposed for an offence of High Range PCA in the usual case, except in so far as the length of disqualification may be concerned or the amount of the fine. The offence in general is so serious and the criminality involved in even a typical case so high that, in my view the participation of the offender in a program cannot be seen as an alternative to punishment for an offence of this nature. In particular there is no warrant at all for the making of an order under Section 10 simply because the offender has participated in such a program or is to do so as part of the conditions of a bond.” [At Paragraph 121]
‘REASONS WHY THE OFFENDER DRANK.’
‘’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.’’ [At Paragraph 142]
PARTICIPATION IN A DRIVER EDUCATION PROGRAM.
‘’Notwithstanding the undoubted beneficial effect upon a driver of participation in a driver education program, that fact can have little impact, in my view, upon the appropriate sentence to be imposed for an offence of high range PCA in the usual case, except in so far as the length of disqualification may be concerned or the amount of a fine. The offence in general is so serious and the criminality involved in even a typical case so high that, in my view, the participation of the offender in a program cannot be seen as an alternative to punishment for an offence of this nature. In particular, there is no warrant at all for making an order under s 10 simply because the offender has participated in such a program or is to do so as part of the conditions of a bond.’’ [At Paragraph 121]
‘’Punishment for the offence of high range PCA is concerned principally with denunciation of the conduct and general deterrence. For the typical offender recidivism is not a concern of the court. Parliament has already provided a higher penalty where the offender might be considered as a risk of re-offending by reason of the commission of a previous offence. I accept that an attendance at a program may add to the general understanding in the community of the seriousness of the offence and its potential consequences and it may, by word of mouth, help to spread the message through the community. But in an offence of high range PCA the possible benefits arising from attendance at a program are outweighed, in my view, by the need for appropriate punishment. I cannot accept that any degree of humiliation felt by the offender at being required to attend such a course can expiate the criminality involved in the offence such that by attendance at a program the offender can escape a conviction that is otherwise called for to reflect the objective seriousness of the offence.’’ [At Paragraph 122]
‘’I accept that in many cases the offender will have been without a licence since the commission of the offence because the police will have suspended the licence under s 34 of the RT (General) Act and it cannot be restored until the court deals with the offender. It might be the case that the period is extended while the offender participates in an education course hoping to achieve a better result on sentence. However, s 34(6) requires the court to take into account the period during which the licence was suspended when disqualifying the offender under s 25. That period can be regarded as satisfying the whole or part of the minimum period of disqualification: s 34(6)(b).’’ [At Paragraph 124]
OFFENDER’S NEED FOR A LICENCE.
“Licence disqualification is such a significant matter and can have such a devastating affect on a person’s ability to derive income and to function appropriately within the community that it is a matter which, in my view, must be taken into account by a court when determining what the consequences should be, both penal and otherwise for a particular offence committed by a particular offender. This is not to say that the sentencing discretion should be controlled by one particular factor alone, such as the offender’s need for a licence or the consequences of the offender of being disqualified for a significant period.” [At Paragraph 116]
An ordinary case of High Range PCA was constructed by the Court and his honour in his wisdom made the following observations:
(1) An ordinary case of the offence of high range PCA is one where:
(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
the offender was detected by a random breath test;
(iii) the offender has prior good character;
(iv) the offender has nil, or a minor, traffic record;
(v) the offender’s licence was suspended on detection;
(vi) the offender pleaded guilty;
(vii) there is little or no risk of re-offending;
(viii) the offender would be significantly inconvenienced by loss of licence.
(2) In an ordinary case of an offence of high range PCA:
(i) an order under s 10 of the Sentencing Act will rarely
(iii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver’s education or awareness course;
(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
a good reason under (iii) may include:
(a) the nature of the offender’s employment;
(b) the absence of any viable alternative transport;
(c) sickness or infirmity of the offender or another person.
(3) In an ordinary case of a second or subsequent high range PCA offence:
(i) an order under s 9 of the Sentencing Act will rarely
(ii) an order under s 10 of the Sentencing Act would very rarely be appropriate;
(iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
(4) The moral culpability of a high range PCA offender is increased by:
(i) the degree of intoxication above 0.15;
(ii) erratic or aggressive driving;
a collision between the vehicle and any other object;
(iv) competitive driving or showing off;
(v) the length of the journey at which others are exposed to risk;
(vi) the number of persons actually put at risk by the driving.
(5) In a case where the moral culpability of a high range PCA offender is increased:
(i) an order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would
very rarely be appropriate;
(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.
(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
(ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.
FULL CASE CITATION: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002)  NSWCCA 303.
FOR MORE INFORMATION ON THE ‘GUIDELINE JUDGMENT’ FOR HIGH RANGE PCA, PLEASE BE SURE TO VISIT THE FOLLOWING GOVERNMENT WEBSITE: https://www.caselaw.nsw.gov.au/decision/549faf243004262463b758d1
It is very important that you speak with a lawyer so that you can get the appropriate legal advice which you require prior to going to court.
Our team of experienced solicitors are there for you and can help you answer all your questions, so be sure to contact Nicopoulos Sabbagh Lawyers.
*This article correctly reflects the Laws of NSW as at 18TH November 2022.
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