Guideline Judgment for High Range PCA

On 8 September 2004 the New South Wales Court of Criminal Appeal delivered a guideline judgment concerning the offence of high range PCA (Prescribed Concentration of Alcohol.)

The court held that there were sufficient grounds set out by the Attorney-General to issue a guideline judgment concerning high range PCA.

What is a guideline judgment?

A guideline judgment is taken into account by courts in sentencing offenders. It includes:

• guidelines that apply generally, or
• guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders).

General principles concerning guideline judgments

The decision of Spigelman CJ in the case of Regina v Jurisic (1998) 45 NSW LR209 provides an excellent summary of the practical effect of guideline judgements.

Some of the passages from this judgment are set out below:

“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.”

Deliberations

During the course of its deliberations, the NSW Court of Criminal Appeal made the following useful statements:

Second or subsequent offence

“An offence is a second or subsequent offence only if, within the period of five years immediately before a person is convicted of the offence, the person was convicted of another offence against the same provision of a major offence.

“This means that a person who has been charged with two counts of high range PCA but not sentenced for either is to be regarded as a first offender.”

Driver education programs

The court made the following statements in respect to the effectiveness of driver education programs and how they may be used by a sentencing court when considering an appropriate penalty.

“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.”

“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.”

The guideline judgment does not say that participation in a driver education program has no value and cannot affect the length of the disqualification period imposed by the court. Quite clearly this is not the case. It appears quite clear that participation in a driver education program should reduce the period of disqualification and the amount of a fine if a fine is appropriate.

Reason for drinking

The court commented that generally speaking, the reason for the consumption of alcohol will be irrelevant. It stated it will be 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.

Need for a licence

The Court of Criminal Appeal considered the need for a licence as one of the paramount considerations when looking at the length of the disqualification period. The court made the following statements concerning a person’s need to hold a driver’s 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.”

Orders under section 10 of the Crimes (Sentencing Procedure) Act 1999

The court acknowledged that a section 10 must apply to the offence of high range PCA and there may be cases where, notwithstanding the objective seriousness of the offence committed, it is appropriate to dismiss the charge or to discharge the offender. But those cases must be rare. They must be exceedingly rare for a second or subsequent offence. The court went on further to recognise that there can be cases where there were such extenuating circumstances that a dismissal or a discharge under section 10 might be justified. The court stated it is impossible and inappropriate to delineate the situations in which an order under section 10 might be warranted notwithstanding the objective seriousness of the offence. One example might be where the driver becomes compelled by an urgent and unforeseen circumstance to drive a motor vehicle, say to take a person to hospital.

The guideline

The court constructed an ordinary case of high range PCA to use as a model against which a sentencing court can determine whether the case before it is similar or more or less serious. The court found that 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 at loss of licence.

The model fails to recognise that there will be different levels of good character and different levels of good traffic record. For instance, an offender who has held a licence for three years without conviction is a person with nil traffic record. An offender who has held a licence for 40 years without conviction is likewise a person with nil traffic record. Similarly a person of 18 years of age who is regarded by his or her peers as a person of good character will be treated the same as a person who has devoted their life to helping others and working with charities.

The Court of Criminal Appeal delivered the following guidelines based on this model:

(1) In an ordinary case of an offence of high range PCA:
an order under s 10 of the 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 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.

(2) In an ordinary case of a second or subsequent high range PCA offence:

• an order under s 9 of the Act will rarely be appropriate;
• an order under s 10 of the 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.

(3) 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.

(4) In a case where the moral culpability of a high range PCA offender is increased:

• an order under 9 or s 10 of the 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.

(5) 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.

For advice or representation in any legal matter, please contact Armstrong Legal.