More on the Guideline Judgment

Sentencing for High Range PCA – More Info

If you’re interested in reading the Guideline Judgment and how it provides guidance as to sentencing in more detail, here it is below. Otherwise, just call Drink Driving Lawyers Sydney on (02) 9533 2269 for advice on how the Guideline Judgment relates to your particular High Range PCA charge, and for representation in Court in order to ensure the best possible sentencing and outcome.

Drink Driving Lawyers Sydney - Guideline Judgment Sentencing for High Range PCA

New South Wales
Court of Criminal Appeal

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) [2004] NSWCCA 303
HEARING DATE(S) : 05/05/2004
JUDGMENT DATE : 8 September 2004
JUDGMENT OF : Spigelman CJ at 1; Wood CJ at CL at 2; Grove J at 3; Dunford J at 4; Howie J at 5

Particular considerations

(i) Prior good character

This Court has frequently observed that the fact that the driver convicted of an offence under s 52A is of otherwise good character is of less relevance than it might be in sentencing for other types of offences: R v McIntyre (1988) 38 A Crim R 135 at 139. This is because of the prevalence of the commission of the offence by persons of good character and the importance of general deterrence: R v Musumeci (NSWCCA, 30 October 1997, unreported).

This observation applies equally, in my view, to sentencing for PCA offences in general and high range PCA offences in particular. This is because it can be inferred that, just as persons of otherwise good character commit the offence of dangerous driving by having the prescribed concentration of alcohol in their blood, so they commit such an offence when it does not result in death or serious injury. Of 5,700 persons convicted of the offence in the five years to 2001, 77 per cent had no prior conviction for a PCA offence: Saffron and Chilvers, at 2.

(ii) nature of the driving

The offence is completed when the offender gets behind the wheel of the motor vehicle and attempts to put it into motion. Clearly once the vehicle is in motion the offence is more serious because the risk of death or injury to other persons is increased. As I have already indicated, aspects of the driving can increase the moral culpability of the offender and aggravate the offence. But it is not the case that the absence of those matters is a mitigatory matter. So the fact that there was no accident resulting from the driving, or that there was no observable sign of the effect of the intoxication on the manner of driving, or that the offender was detected at a random breath test is not a relevant matter and certainly does not reduce the seriousness of the conduct.

(iii) involvement 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.

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.

I note that under the proposed diversionary scheme set out in the RT General Act, the interlock program, participation in that program is not an alternative to the driver being convicted: s 25C. Nor does participation in the scheme mean that the driver can avoid a period of disqualification. For a person convicted of a high range PCA without a relevant prior offence the period of disqualification that must be served before the offender can participate in the scheme is 6 months: s 25D and Schedule 1A. Where the offence is a second or subsequent offence, the period of disqualification that must be served before entry into the program is 12 months. Further, the disqualification period specified by the court is merely suspended during the currency of participation in the program.

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).

Mr Stratton suggested that, based upon the results of the 199 cases randomly selected and placed before the court, it might be the fact that in at least half of the cases where orders under s 10 are made, the offender has attended and completed a relevant program. He also submits that this might explain the rise in the use of the section in recent years. If these two propositions are correct, then it follows, in my view, that a large number of the orders made under s 10 for high range PCA offences are founded upon an irrelevant consideration.

(iv) the disqualification period.

It should be noted that the automatic period of disqualification prescribed for a particular offence is not to be considered as if it were the maximum period of disqualification for that offence. The automatic period is merely the default period that operates on conviction unless some other order is made: that is in the usual case in which there is no need to vary the period one way or the other. There must be cases where the automatic disqualification period should be increased, although the available material does not indicate that this is so. There is some suggestion that increased periods are occasionally ordered but only where the offender receives a gaol sentence and the court considers that there should be some period of disqualification after release.

It appears to me that courts are too ready to reduce the automatic period and to choose the minimum disqualification period as the alternative. The failure of the courts to give sufficient regard to the automatic disqualification periods prescribed by Parliament is indicated by a finding that in only 11 per cent of cases was the offender disqualified for as long as 2 years and 14 per cent for as long as 3 years: MacKinnell, Sentencing Drink-Driving Offenders, Sentencing Trends, 19 November 2003. There should be sufficient and appropriate reasons for reducing the automatic period that are capable of being expressed by the court before such a step is taken. Those reasons should take into account the scheme of the Act and the significance of Parliament’s view that the automatic period is the period of disqualification to apply in the usual case.

This means that there will almost invariably be hardship, or at least inconvenience, caused to the offender deprived of his or her licence for such a lengthy period as Parliament has prescribed. This is particularly so in country areas and other places where public transport is rare or non-existent. Of course licence disqualification can have a severe impact upon the ability of a person to obtain or maintain employment. But the focus is here upon a criminal offence that Parliament considers to be one of the most serious summary offences. It is one, as I have already observed, that cannot be characterised as impulsive or arising as a result of a momentary aberration and where the offender must have been conscious that he or she was at least running the risk of committing the offence before getting into the motor vehicle. Had the conduct resulted in death or injury to some other person, the issue would be one of the length of the gaol sentence not the length of the disqualification period.

There is evidence to support the propositions that, firstly, there is no relationship between the length of the disqualification period and the probability of reconviction and, secondly, that very long periods of disqualification rather tempt the offender to drive contrary to the order than to deter the driver from re-offending: Homel, op cit (1987) at 232-236. But, as I have already indicated, this is a matter for Parliament and not the courts.

(v) orders under s 10 of the Sentencing Act

I accept that s 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 in all the circumstances to dismiss the charge or to discharge the offender. But those cases must in my view be rare. They must be exceedingly rare for a second or subsequent offence. I accept that the court must concentrate on the particular conduct of the offender and the circumstances of offending rather than on the nature of the offence in determining whether the particular offence before the court is trivial: Walder v Hensler (1987) 163 CLR 561 at 577. I am prepared to acknowledge the possibility that there may be cases where the offending is technical (rather than trivial), there being no real risk of damage or injury arising from the driving, so that the highly exceptional course in making an order under the section would be justified.

The court must also have regard to all of the criteria in s 10(3) in determining whether a dismissal of the offence or a discharge of the offender is appropriate: R v Paris [2001] NSWCCA 83. I recognise that there can be cases where there were such extenuating circumstances that a dismissal or a discharge under s 10 might be justified. It is impossible and inappropriate to delineate the situations in which an order under s 10 might be warranted notwithstanding the objective seriousness of the offence. One example might be where the driver becomes compelled by an urgent and unforseen circumstance to drive a motor vehicle, say, to take a person to hospital.

But where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of the offence committed. To recognise this fact is not to impose an undue restriction upon the section or to change the criteria for its operation on an offence by offence basis. Such an approach would clearly be erroneous. It is simply to apply normal sentencing principles to the offence under consideration. However, just as the discretion inherent in the section cannot be limited by the application of some overreaching general principle, neither can it be broadened simply because a court does not agree with Parliament’s view of the seriousness of a particular offence or believes that in general the penalties imposed under the scheme of the legislation are unduly harsh or unpalatable.

Yet there appears to me to be both generally and in some particular courts an over-utilisation of the section in dealing with high range PCA offences, presumably in order to avoid the statutory consequences of a conviction. In my opinion, in the overwhelming majority of the 199 cases in the qualitative study where the offence was dismissed or the offender was discharged, there was no proper basis for the application of the section. There was generally nothing about the offence or the offender that justified the magistrate in avoiding a conviction. There seems to have been too much regard paid to the subjective features of the offender and too little to the seriousness of the offence. In one case an offender with a reading of 0.19 had the benefit of the application of the section apparently only because of his prior good standing in the community.

Mr Stratton argues that it is open to the legislature to limit the use of the section for any offence if it believes that it is being misused and that this Court should not seek to do that which Parliament has not done. But I do not understand why the legislature should be driven to take a course which is fraught with the consequential risk of injustice, simply because the courts, or some of them, appear to be inappropriately using the section to avoid the penalties imposed by Parliament for a particular offence. The fact that the legislature has limited the use to be made of the section in relation to particular offenders should be seen only as further proof, if any is needed, of the seriousness with which the legislature views the offence in general.

Moffat Weatherburn and Fitzgerald, op cit, concluded that the likely explanation for the variation in the rate of the use made of s 10 for PCA offences in the Local Courts was the differing assessment made of that type of offence by magistrates and/or their varying views about the fairness of mandatory disqualification periods. In my opinion it is preferable that the courts themselves, and not Parliament, attempt to address such an inconsistency in approach and a guideline judgment is an appropriate method whereby such inconsistency can be avoided.

(vi) the ordinary case

In Whyte this Court was able to distil features common to offences under s 52A so as to describe a typical case. This was for the purposes of indicating the range of sentences that such a case might attract. It also helped a sentencing court to identify factors that might either aggravate or mitigate the seriousness of the offence from the typical case and, therefore, indicate whether the sentence to be imposed should be more or less severe than a sentence falling within the range applying to the typical case. The Court was able to take such a course because of cases that had come before it on appeal.

Such a course cannot be adopted in the case of high range PCA simply because the Court lacks the experience to identify a typical case and the appropriate range of penalties for such a case. However, the Court can in my view construct 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. It can undertake this task because of the data arising from the 199 random cases examined by the Attorney General’s Department and because of the nature of the offence with which the guideline is concerned.

(a) the driving

So far as the elements of the offence of high range PCA are concerned there is little scope for variation in the objective seriousness of the offence. It can only be committed in one of the three ways identified in s 9(4): driving a motor vehicle; being in the driver’s seat and attempting to put the vehicle in motion; or supervising a learner driver. The latter two instances of the offence appear to be rare and can be disregarded as atypical. The ordinary offence, therefore, will arise when a person drives the vehicle in a situation in which there is a real risk to other persons or property. This will of course be where the vehicle is being driven along a public street under unexceptional traffic conditions, very often in the night or very early morning. Clearly there will be variations because of the actual traffic conditions at the time that either increase or decrease the likelihood of risk of injury to others and, therefore, might raise or lower the seriousness of the offence.

I have already indicated that there can be factors concerned with the driving that will generally increase the moral culpability of the driver and, therefore, the seriousness of the offence in accordance with Whyte. These include the distance travelled, or that was to be travelled, before detection. I have already expressed my view that the manner of detection of the offender is irrelevant as a matter of mitigation but it may aggravate the offence.

The reasons for the driving may be relevant and in some very exceptional cases, as I have already noted, may give rise to extenuating circumstances that powerfully impact upon the sentencing of the offender. But in the ordinary case the offender will have simply chosen to drive for one or more of three reasons: firstly to avoid being inconvenienced by, for example, having to take public transport, to wait for a taxi, or to arrange for some other person to pick him or her up from where the alcohol was consumed; or, secondly, because the offender maintains that he or she was not aware of the amount of alcohol consumed or its effect upon the offender’s driving and thought that it was safe to drive; or thirdly, was prepared to run the risk of being detected.

It does not seem to me to be a highly relevant factor that the offender may have been mistaken about the nature of the alcohol being consumed, for example that the drinks were doubles rather than singles: Hills v Warner (1990) 10 MVR 479 cf Brain v Bentley (1991) 15 MVR 537.

(b) the drinking

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.

(c) the offender

Clearly the subjective features of the offender are relevant to a determination of the penalty for any offence, and high range PCA is no exception. But general sentencing principles require that the penalty reflect the object seriousness of the offence and that too much allowance cannot be given to subjective features particularly where deterrence and denunciation are important factors in sentencing. Simply stated, there are offences that are so serious that a penalty of some form must generally be imposed regardless of the personal circumstances of the offender. In my view high range PCA is such an offence.

Sentencing generally is concerned with punishment for the offence committed although the safety of the community may indicate that some element of protection from future conduct is appropriate. Concerns at future offending normally indicate that an element of specific deterrence is required or some step needs to be taken by way of punishment, proportional to the criminality of the offence committed, to prevent further offending. The fact that a person is unlikely to offend in the future does not generally mitigate the criminality of the offence. This is particularly so where, as with high range PCA, the offence is not impulsive nor the result of a momentary aberration. If the court were satisfied that the offender is unlikely to re-offend, this would tend to indicate that a good behaviour bond is an inappropriate sentencing disposition because there is no need to attempt to control the offender’s future conduct.

(d) loss of licence

It has already been acknowledged that the disqualification of a person from driving may have a very significant impact upon the offender’s ability to obtain or retain employment or may interfere with the offender’s capacity to function in the community. Of course the impact will differ from person to person and from locality to locality within the State. However, if a conviction is warranted because of the seriousness of the offence, the court can rarely refuse to take that course simply because of its impact upon the offender’s licence. In my view high range PCA is such a serious offence that a conviction cannot be avoided in the ordinary case simply to preserve the offender’s ability to hold a driver’s licence. The effect of loss of licence upon the particular offender may be so unusually severe that it might warrant a reduction in the disqualification period.

 

  • extracted from Court of Criminal Appeal Reports – online version at austlii.edu.au

 

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