Guideline Judgement for High Range PCA in New South Wales

2 October 2023 in Criminal Law

Background 

Drink driving is arguably one of the most common offences sentenced in the Local Court in New South Wales. Prior to 2004, there had been inconsistency surrounding the way people were being sentenced for high range drink driving. To achieve greater consistency across sentences and penalties for high range drink driving, an application was made by the NSW Attorney General to address inconsistent and ineffective sentencing outcomes. 

In response to the NSW Attorney General’s submission, the NSW Criminal Court of Appeal determined that the Courts were not imposing sentences that reflected the objective seriousness of the offence (at 133, (2004) 61 NSWLR 305). In light of this, on 8 September 2004, a five-judge bench of the NSW Criminal Court of Appeal delivered a Guideline Judgement for the offence of high range PCA.

The Guideline Judgement titled Guideline Judgement for High Range Drink Driving [2004] NSWCCA 303 aims to set out rules to enforce a stricter, more consistent sentencing regime. The implication of harsher penalties on offenders are designed to deter potential wrongdoers that drive after consuming substantial amounts of alcohol whilst further addressing the concerns for public and personal safety.

The potential prospects for larger fines, criminal conviction and possible prison time further aims to convince potential wrongdoers that high range drink driving is simply not worth the risk.

What is the Guideline Judgement?

The Guideline Judgement refers to the history of the offence, what has been done in the past and sets out a set of guidelines for the Courts to follow for future sentencing. The Guideline Judgement specifically covers:

• A outline of what an ‘ordinary case’ of high range PCA is
• A outline of what an ‘aggravated case’ of high range PCA is
• The moral culpability of the person
• The penalties and sentencing for an ordinary case and for second and subsequent offences

What is the ‘ordinary case’?

The Guideline Judgement sets out the primary characteristics to establish an ‘average’ high range drink driving offence, and it is what is referred to as the “ordinary case”. During sentencing proceedings, Magistrates can use this description to describe the matter before them as either less serious, average or more serious offending conduct. They then can adjust the scale and seriousness of the penalties accordingly.

The “ordinary case” includes:

• A person who drove to avoid ‘personal inconvenience’ or because they believed that they weren’t too impaired by alcohol
• They were detected by RBT (not by police arriving due to a road incident or collision)
• The offender has no criminal record and a less than serious traffic record (amounting to having prior good character)
• The offender entered a plea of guilty at the earliest opportunity and has shown no risk of re-offending
• A loss of licence would be a significant inconvenience for the offender.

What is an ‘aggravated case’?

The Guideline Judgement outlines a set of common factors that describe an ‘aggravating case’ which raises the objective seriousness and usually warrants a steeper penalty. Generally, emphasis is placed on the degree of danger that the offender and the public were exposed to due to the misconduct. These factors increase the offenders ‘moral culpability’ which raises their level of responsibility and liability for carrying out the offence. 

The “aggravated case” includes:

• Operating the vehicle with other passengers onboard
• Being involved in an actual collision with individuals or property
• Driving in a reckless, aggressive or hazardous manner
• Prolonged duration of the driving incident
• The extent of intoxication (i.e. how far above the 0.15 threshold)
• The number of individuals endangered by the driving (e.g. whether the incident took place in an area and at a time with a substantial presence of other road users and pedestrians)

Furthermore, possessing a poor traffic record, particularly with past instances of drink driving offences, will increase the gravity of the penalty. This approach stems from the Court’s intention to ‘dissuade’ individuals from recurring offences by imposing progressively more serious penalties. In instances where an individual has multiple high range PCA convictions, the Guideline stipulates that a full time custodial sentence is the most fitting consequence. 

Standard Penalties

The Guideline outlines general rules that should be abided by when deciding a sentence outcome for those cases in the range of the criteria of “ordinary case”.

For an individual’s first offence of a high range PCA conviction:

• A Section 10 non conviction will rarely be appropriate
• Proof of attendance to a driving education or intervention program is not a valid reason to receive a non-conviction. 
• The automatic disqualification period outlined in the legislation should be imposed unless there is a good reason to reduce it. Examples of good reasons include:
  • Employment reasons
  • Medical Issues
  • Lack of other viable transport in the area
• A combination of a fine and a community release order (CRO) with some period of good behaviour is likely to be the lowest form of penalty for this offence. 

For an individuals second or subsequent high range PCA conviction:

• A Section 10 non conviction would be almost impossible to be receive in these circumstances
• A community release order (CRO) would also rarely be appropriate
• Where there are previous convictions or instances of high range drink driving, anything less than a community corrections order (CCO) would be inappropriate. 

Aggravated Penalties

The Guideline Judgement also contains additional rules for offences that contain aggravating factors:

• Non-conviction penalties or community release orders (CRO) would be inappropriate in almost all cases
• When it is an individual’s second or subsequent offence, or where multiple aggravating factors are present, the most appropriate sentence is a term of imprisonment. This can either be served in the community by way of an intensive corrections order (ICO) or served full time. 

Why are Section 10 non-convictions rarely appropriate? 

One of the primary reasons for the Guidelines creation was to address the ‘overuse’ of high range PCA offenders being let off without a conviction. The NSW Attorney General had concerns that utilising non-conviction orders for high range drink driving offences trivialised the offence and did not serve as a strong enough deterrent for the offender and the community. 

The maximum penalty for high range drink driving is the same as negligent driving occasioning death, indicating the severity of the breach of public safety that high range PCA represents. The Guideline explicitly states that high range PCA is an offence that requires a penalty to be imposed regardless of the personal circumstances of the offender. While proof of good character, evidence of rehabilitation, expressions of strong remorse, and taking responsibility for the behaviour can assist in an individual’s sentencing outcomes, they can rarely, if ever, be used to obtain a non-conviction penalty.

However, the Guideline allows for a small range of scenarios where a non-conviction order may be appropriate, such as when the offending is mostly technical, and no real danger arises from the act of driving or when there are extenuating circumstances that justify the need to drive while significantly intoxicated. 

The evidence is clear that the Court has found appropriate circumstances to be exceedingly rare, as from September 2018 to September 2021, the Court granted only three Section 10 non convictions out of a total of 7,255 cases. 

Has the Guideline Judgement been effective?

The sentencing evidence suggests that the addition of the Guideline Judgement has been extremely effective in increasing the severity and consistency of sentencing for high range PCA offences. The use of Section 10 non conviction orders for high range PCA fell by 71 percent and has even had a flow-on effect for mid range PCA offences. 

Overall, in issuing the Guideline Judgement for the offence of high range PCA, the NSW Criminal Court of Appeal has reduced systemic leniency in sentencing by guiding sentencers to impose penalties that more closely reflects the aims and intent of the guiding legislation. In particular, the Guideline Judgement has curbed the rapid growth and the frequency with which high range PCA offences were being dismissed or conditionally discharged. 

How can BSM help? 

The criminal team at Brander Smith McKnight Lawyers appear at all Criminal Courts in NSW and are highly experienced with drink driving offences. Contact us now and we will strongly advocate for you in the legal system, represent you in court and protect your rights.