High Range Drink Driving Guideline Judgement: In this “NSW DUI Court Bible” article we explore how the Guideline Judgement for High Range Drink Driving in New South Wales was introduced in 2004 and provides the Courts with a general guide to sentencing in the Local Court.

What is High Range Drink Driving?

High Range drink driving also known as High Range PCA in New South Wales is a criminal charge brought by police when a person has been accused of operating a motor vehicle when their blood alcohol limit is above 0.150. This offence is considered to be a be a very serious criminal offence since the higher a persons blood alcohol level is the increased potential there is for causing an accident,  injury or death to someone within the community. A persons ability to operate a motor vehicle when their blood alcohol level is above 0.150 has been proven to dramatically reduce reaction times, the ability to focus,

In New South Wales the legislation for High Range PCA comes from the Road Transport Act 2013 and says the following;

High Range PCA

“Section 110 (5) – Offence-high range prescribed concentration of alcohol:

A person must not, while there is present in his or her breath or blood the high range prescribed concentration of alcohol:

(a)        drive a motor vehicle, or

(b)        occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c)        if the person is the holder of a driver licence (other than a provisional licence or a learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.”

A person charged with High Range PCA will have been subject to a breath analysis which produces a specific result indicating what the person blood alcohol level is. This is the scientific evidence that Police will rely upon in Court to prove a persons guilt. Unless a specific defence to PCA or drink driving an be argued in Court then it is more than likely that a person will be found guilty of such an offence.

The Courts have a whole range of penalties and sentences at their disposal including fines, conviction, licence disqualification, good behaviour bond and even more serious penalties such as community service orders, intensive correctional orders, suspended sentences, home detention and even full time custodial imprisonment.

So by now it should be abundantly clear that High Range PCA is the most serious of drink driving offences in New South Wales and the only thing that can increase the seriousness of the charge is if the facts of the matter including any kind of aggravating factors.

Aggravating features of a case can include a whole range of issues, including but not limited to, the level of blood alcohol, other charges in conjunction with the way the person was operating the vehicle, whether the person was involved in an accident and whether any damage was caused or injury was sustained by any person. The more serious the aggravating features are the more serious the penalties and sentences that the Courts will issue to the defendant.

So with this in mind the Courts have set out to deal with High Range PCA offences pursuant to the Guideline Judgement which we will look into in more detail below.

What is the Guideline Judgement?

A Guideline Judgement is a decision handed down by the Courts which provides guidance to the Judges and Magistrates for they way in which they should sentences particular types of offences. The idea is to provide a general benchmark for how offences should be handled, what this does is it reduces inconsistencies throughout the state so that specific types of offences are dealt with in a similar manner.

In the case of High Range PCA offences a Guideline Judgement was handed down on 8 September 2004 by the Court of Criminal Appeal in response to the  Application by Attorney-General (No. 3 of 2002)(2004) 61 NSWLR 305.

In this guideline judgment the court established what a model or ordinary High Range PCA case would involve. The purpose of this was to provide a meaningful and structured guidance to the way in which judges handed down penalties in the sentencing process for High Range PCA. The lead judgment was handed down by Howie J, there is no substitute for reading the whole judgment however a summarised version of the guideline is as follows:

Ordinary case of high range PCA

(1) An ordinary case of an offence of high range PCA is one where:

• 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;
• the offender has prior good character;
• the offender has nil, or a minor, traffic record;
• the offender’s licence was suspended on detection;
• the offender pleaded guilty;
• there is little or no risk of re-offending;
• the offender would be significantly inconvenienced by the loss of licence.

(2) In an ordinary case of an offence of high range PCA:

• an order under s 10 of the Sentencing Act will rarely be appropriate;
• a conviction cannot be avoided only because the offender has attended, or will attend, a driver education or awareness course;
• the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
• a good reason 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:

• an order under s 9 of the Sentencing Act will rarely be appropriate;
• an order under s 10 of the Sentencing Act would very rarely be appropriate;
• 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:

• the degree of intoxication above 0.15;
• erratic or aggressive driving;
• a collision between the vehicle and any other object;
• competitive driving or showing off;
• the length of the journey at which others are exposed to risk;
• 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:

• an order under section 9 or section 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
• 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:

• a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
• 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

Impact the Guideline Judgement has had on sentences for High Range Drink Driving?

Impact of the High Range PCA Guideline Judgment on Sentencing Drink Drivers in NSW, being part of the Sentencing Trends and Issues series published by the Judicial Commission of New South Wales (No 35, September 2005) by Patrizia Poletti.

Since the inception of the Guideline Judgement in 2004 we have seen quite drastic changes to the way in which Courts have come to sentence defendants for High Range drink driving offences in New South Wales. Generally speaking the severity of sentences for High Range PCA offences have increased and from the above mentioned publication we see the sentencing patterns for High Range PCA offences both before and after the Guideline Judgement was introduced. From this publication the following was found to have occurred:

• There has been a dramatic reduction in the number of section 10 orders where criminal convictions are not recorded.
• An increase in the number of defendants who are disqualified from driving.
• An increase in the length of disqualification periods with more defendants receiving the automatic disqualification period as opposed to the minimum disqualification period.

These 3 main issues have been the most remarkable changes which have been noticed since the Guideline Judgement was introduced.

What is also interesting is that whilst the Guideline Judgement specifically relates to High Range PCA offences it has been noticed that Courts have also increased there severity of sentences when dealing with other PCA and drink driving offences. As mentioned above the critical areas that the Guideline Judgement has impacted on are the reduced number of section 10 dismissal orders, the increase number of defendants being disqualified from driving and the increase periods in which the defendants have been disqualified for.

For a more in depth analysis of the study that was undertaken and the results and statistics that were found then please see – http://www.judcom.nsw.gov.au/publications/st/st35/st35.pdf.

The Impact of the High Range PCA Guideline Judgment on sentencing for PCA offences in NSW, being part of the Crime and Justice Bulletin published by the New South Wales Bureau of Crimes Statistics and Research (No 123 November 2008) by Stephanie D’Apice.

Practical effects of the Guideline Judgement for High Range Drink Driving cases?

From the way the Guideline Judgement has been worded there is little doubt that its effect on the sentencing for High Range drink driving offenders has become far more severe. What the Guideline Judgement does is it sets out a number of broad yet common situations and circumstances that come before the Courts in respect of High Range PCA matters. Furthermore, it acts as a general guide for Courts to follow when assessing such matters and considering appropriate sentences.

Throughout the Guideline Judgement there are numerous sentencing recommendations which are given to guide the Court in a consistent direction. For example the Guideline Judgement states in Paragraph 2 that in an ordinary case of an offence of high range PCA – an order under s 10 of the Sentencing Act will rarely be appropriate. This doesn’t mean that the Court cannot give a section 10 for a High Range PCA offence, however there is an implied understanding that there must be some extenuating reasons why a defendant should be given a section 10.

Also in paragraph 6 of the Guideline Judgement it says that in a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased a sentence of any less severity than imprisonment of some kind would generally be inappropriate. Whilst this is the Guideline Judgement it is only there to act as a guide and this is not to subtract away from the fact that the Court has a discretion in the way that is can deal with offenders and the various different situations and circumstances that present before the Court. For example in paragraph 6, whilst is makes the recommendation that ‘any less severity than imprisonment would generally be inappropriate’, this refers to an offender who has been charged with High Range PCA and where they have a previous High Range PCA charge within the past 5 years. The Courts should not take such a view where the offenders prior conviction is for a lesser charged than High Range PCA.

The Guideline Judgement is just that – a guide for the Court to drive their sentences in a general consistent direction. It certainly does not diminish the Courts discretion in dealing with High Range PCA offences in a particular way.

If you have been charged with a High Range PCA offence then your starting point should be to look at the Guideline Judgement because it will give you a rough indication of where you stand and what you might expect when your matter is dealt with by the Courts. But you must also understand that the Guideline Judgement is only a guide and every matter that comes before the Court generally has different circumstances which will cause the Court to take these into consideration when handing down its sentence. These circumstances of each matter can be either positive or negative issues which may in turn hinder or help the sentences that the Courts make.

R v Whyte (2002) NSWCCA 343

The following comments, inter alia, from the matter of R v Whyte (2002) should be understood when considering the practical impacts that the Guideline Judgement will have on a High Range PCA offence:

• Sentencing judges are obliged to “take into account” a guideline judgment given by this Court.
• Guideline judgments should be expressed so as not to impermissibly confine the exercise of the sentencing discretion. Guideline judgments are to be taken into account as a “check” or “sounding board” or “guide”, but not as a “rule” or “presumption”.
• Numerical guidelines have a role to play in achieving equality of justice where, as a matter of practical reality, there is tension between the principle of individualised justice and the principle of consistency.

Summary

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