Drink Driving – A Guideline Judgment

In the years leading up to 2004, much concern was raised by the Government of the day that insufficient penalties were being imposed for the offence of High Range Drink Driving.

As a result, the Attorney General made an application pursuant to s 37(1) of the Crimes (Sentencing Procedure) Act 1999 for the Court of Criminal Appeal to convene and give a Guideline Judgment with reference to the offence of High Range Prescribed Concentration of Alcohol.

Commencing 5th May, 2004, five Judges convened to hear the case, which was argued by representatives for the Attorney General, representatives for the Public Defender and representatives for the Director of Public Prosecutions.

On 8th September, 2004 Justice Howie gave a single judgment, with which the other members of the Court agreed.

Justice Howie began his judgment as follows:

It is trite to observe that, what is commonly referred to as, “drink-driving” amounts to socially irresponsible behaviour of a very significant degree having regard to the potential consequences of any driver on a public road being unable to properly manage and control a motor vehicle. It must also be a matter of common knowledge within the public in general that it is a criminal offence to drive a motor vehicle whilst under the influence of alcohol and that substantial penalties, including imprisonment, are available to the courts to punish those who commit the offence.”

This reflects the introductory concern the Court had for the offence of High Range Drink Driving.

Justice Howie delivered a lengthy judgment comprising some 38 pages in which he gave a lengthy discourse in respect of the history of drink driving in New South Wales together with the increase in penalties and the effect on those penalties when involving a “second or subsequent” offence.

It will be seen, when one studies the judgment, that the commission of a second or subsequent offence puts an offender into a very serious position so far as his/her liberty is concerned.

Second or Subsequent Offence

A second or subsequent offence for the purposes of penalty is legally defined. It is bounded by time.

His Honour observed [para. 26] that a “second or subsequent offence” was defined by cl 2(1) of the Dictionary to the (now repealed) Road Transport (Safety and Traffic Management) Act 1999 as follows:

…An offence against a provision of this Act is a second or subsequent offence only if, within a period of 5 years immediately before a person is convicted of the offence, the person was convicted of another offence against the same provision or of a major offence.

Note: This provision is now contained in s.9 of the Road Transport Act 2013.

His Honour covered much material that was submitted concerning the trends in sentencing for High Range Drink Driving and addressed a number of issues that bear upon the appropriate sentence for such an offence, including the use of Driver Education Programs, the need a person has for a licence, the reasons a person drove at the time and various other considerations.

Another important factor which His Honour analysed carefully, was the question of “Moral Responsibility”. He concluded as follows at [107] –
“But, in my opinion those factors which aggravate the moral culpability of the driver and aggravate the seriousness of the conduct apply with equal force to the offence of high range PCA.

These are expressed in R v Whyte as:
– Degree of intoxication
– Erratic or aggressive driving
– Competitive driving or showing off
– Length of the journey at which others are exposed to risk.”

His Honour added a fifth factor at [108] –
– Number of persons put at risk by the driving.

He stated :
“But I consider that a person’s moral culpability is increased where the driver knows that other persons are being put at risk, for example where there are passengers in the vehicle.”
His Honour also looked in detail at the use that had been made of s.10 of the Sentencing Act in dismissing such offences.

In finally concluding that a Guideline was appropriate, His Honour set it out as follows –

The guideline

[146] In my view the following guideline should be made:

(1) An ordinary case of the offence of high range PCA is one where:
(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
(ii) the offender was detected by a random breath test;
(iii) the offender has prior good character;
(iv) the offender has nil, or a minor, traffic record;
(v) the offender’s licence was suspended on detection;
(vi) the offender pleaded guilty;
(vii) there is little or no risk of re-offending;
(viii) the offender would be significantly inconvenienced by loss of licence.

(2) In an ordinary case of an offence of high range PCA:
(i) an order under s 10 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
(ii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver’s education or awareness course;
(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
(iv) 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.

(3) In an ordinary case of a second or subsequent high range PCA offence:
(i) an order under s 9 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
(ii) an order under s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
(iii) 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:
(i) the degree of intoxication above 0.15;
(ii) erratic or aggressive driving;
(iii) a collision between the vehicle and any other object;
(iv) competitive driving or showing off;
(v) the length of the journey at which others are exposed to risk;
(vi) 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:
(i) an order under s 9 or s 10 of the Crimes (Sentencing Pro¬cedure) Act would very rarely be appropriate;
(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than impris¬onment 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:
(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
(ii) 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.

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