By Paul Gregoire and Ugur Nedim
In 2004, then NSW attorney general Bob Debus called on the NSW Court of Criminal Appeal (NSWCCA) to provide a guideline judgment with reference to the offence of driving with a high range of prescribed concentration of alcohol (PCA) in their system, which is commonly referred to as high range drink driving.
The request made under section 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW), came two decades after random breath testing (RBT) for alcohol was implemented in NSW and increasing awareness around the dangers of drink driving had been promoted.
And at that time, around a fifth of matters and offenders before the NSW Local Courts were there in relation to drink driving charges.
These days, the five types of PCA offences appear under section 110 of the Road Transport Act 2013 (NSW), with high range PCA, the most serious offence, appearing under subsection 110(5).
High range PCA involves a blood alcohol concentration of more than 0.15 grams of alcohol per 100 millilitres of blood.
At present, those charged with high range drink driving face up to 18 months in prison for a first offence and/or a fine of $3,300, while a second or subsequent offence can see a driver put away for up to 2 years and/or receive a fine of $5,500.
A second or subsequent penalty involves the accused having been convicted of a major traffic offence within the past 5 years.
An automatic and immediate licence disqualification of 3 years also applies for high range drink driving. And a court can drop this to 12 months or hike it without limit, while second or subsequent offences can result in 5 years licence disqualification, which can be dropped to 2 years or lifted without limit.
The crime of high range drink driving was having an enormous “social and economic impact” at the turn of the century, yet NSW parliament’s attempts to address it were causing disagreements in relation to sentencing over this offence.
So, it was thought best that a panel of judges should determine a guideline judgment to provide an even playing field for judicial officers when sentencing over this offence.
High range drink driving in context
High range drink driving is an offence of strict liability, meaning that the prosecution does not have to prove fault, but the defence of reasonable and honest mistake is open to the accused. And strict liability is often applied to offences that impact public health, safety or the environment.
According to then NSWCCA Justice Roderick Howie when the judgment was handed down on 8 September 2004, because of high range PCA being a strict liability offence, “the vast majority of persons charged with” it tended to plead guilty.
High range PCA is a summary offence, meaning it’s tried in the NSW Local Court, and an appeal avenue exists via the NSW District Court. And the maximum prison terms accompanying the crime in 2004 are the same as now, 18 months for a first-time offence, and 2 years for a subsequent offence.
Since early 2015, mandatory periods of the use of interlock devices on offenders’ vehicles, which prevent a convicted person from turning on their car unless they provide a breath sample that doesn’t contain the presence of any alcohol, began to apply to drink driving offences.
And a first-time high range PCA offender today can receive an interlock order for a minimum of 24 months, when licence disqualification is between 6 to 9 months, while subsequent offences result in 48 months of interlock device application, when 9 to 12 months licence disqualification has been imposed.
The need for a guideline
The then NSW attorney general sought the sentencing guideline, so that it ensures high range drink driving is always regarded as an “objectively serious” summary offence and to prevent further instances of committing the offence, including reoffending.
Further Debus stressed the need for licence disqualification not to be a part of the overall punitive process and that it should not be taken into account as part of the totality of the penalty handed down, while the shortening of licence disqualifications should have good reasons behind it.
The NSW Senior Public Defender put it to the court during the 5 May 2004 hearing, that instances of high range drink driving had not been increasing over recent decades, and over the past decade, the number of persons dealt with in regard to high range PCA was in decline.
However, the AG argued it was still a prevalent offence. And Howie added that high range drink driving was clearly a commonly committed offence, and the value in having a sentencing guideline was not detracted from because the offence itself was not on the rise.
Data from the Judicial Information Research System (JIRS) was cited, which confirmed that “over 15,000 offenders” had been convicted of “high range PCA between December 1999 and March 2003”, and of them, 61 percent, or 9,277 had been sentenced “by way of fine alone”.
JIRS data further outlined that from the overall number of those convicted offenders, 16 percent, or 2,498, were placed on a good behaviour bond, while 11 percent, 1,615 offenders, were dealt with via dismissal of their charge, and 5 percent were sent to prison, while only 2 percent, or 369 persons, had received the maximum prison term.
“The attorney general submits that these findings reveal that there is a systemic leniency in sentencing for high range PCA offences, both for those offenders with no relevant prior offence and those having a relevant prior conviction,” Justice Howie explained.
“It is argued that the inadequacy of sentences is revealed in the percentage of persons who received a fine, the quantum of the fines imposed, the improbability of a sentence of imprisonment being imposed and the sentences imposed when a court does sentence an offender to imprisonment.”
The guideline set out
Justice Howie found that a sentencing guideline should be issued in regard to high range drinking driving, and he then outlined what that should be.
And due to the rest of the five-panel bench of NSWCCA justices agreeing with his findings, this is the six step guideline judgment that continues to hold until this day.
Those NSW justices that agreed with Justice Howie were then NSW Chief Justice James Spigelman, then NSW Chief Judge at Common Law James Wood and then NSWCCA Justices Michael Grove and John Dunford.
The first part of the guideline judgment asserts that an ordinary case of high range drink driving involves an offender being caught, via random breath testing, who committed the act either for convenience or due to thinking they weren’t that drunk.
The ordinary case also involves a driver of prior good character, who has no prior traffic convictions and that their licence was suspended automatically on detection by the NSW police.
And further, the ordinary case involves the person being charged with high range PCA then pleading guilty, and it was also found that they posed little risk of reoffending and that they’d been inconvenienced by the loss of their licence.
Secondly, in terms of an ordinary case, letting a driver off with no conviction is rarely appropriate. And a conviction can’t be avoided due to the offender’s participation in drivers’ education or an awareness course.
And as well, the automatic licence disqualification period should apply unless there is a good reason for reduction. A good reason can be the nature of their employment, the absence of viable alternative transportation or due to the sickness or infirmity of the person themselves or another person.
Thirdly, in terms of an ordinary second or subsequent high range drink driving offence, a sentence served in the community is rarely appropriate, no conviction at all is “very rarely” appropriate, and when no prior high range PCA is a factor, any sentence less than “a community service order would generally be inappropriate”.
Fourthly, in terms of moral culpability, it is increased due the higher the level of intoxication, as well as due to any erratic or aggressive driving that occurred, along with whether a collision with another vehicle or an object had happened.
And also, whether the driver was involved in competitive driving or was showing off at the time of the offence, as well as the length of journey they were attempting can also increase culpability, as can the number of persons that had been put at risk.
Fifthly, in a case where moral culpability is increased, noncustodial sentences or non conviction orders such as section 10 dismissals and conditional release orders without conviction are “very rarely” appropriate, and in the case where “a number of factors of aggravation are present to a significant degree”, a sentence less severe than imprisonment would generally be inappropriate.
And lastly, in terms of a case where moral culpability is increased and it is a second or subsequent offence, a sentence less than prison would generally be inappropriate, and where a number of other aggravating factors applied or a past offence involved high range PCA, “a sentence of less severity than full-time imprisonment would generally be inappropriate”.
