ON 8 SEPTEMBER 2004, the NSW Court of Criminal Appeal delivered 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.

The NSW Attorney General made an application to the Court of Criminal Appeal seeking a guideline judgment for sentencing of offenders convicted of high range drink driving. The Attorney General held a concern that too many offenders were receiving leniency by way of s10 orders dismissing or conditionally discharging the offence without a conviction being recorded.

The guideline identifies:

• Circumstances in which s10 orders will be appropriate or inappropriate.
• An “ordinary case” of high range drink driving (in which a s10 order will rarely be considered appropriate).
• Factors that increase the moral culpability of an offender.
• Appropriate penalties in circumstances of high moral culpability.

The actual guideline is as follows:

(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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ON THIS DAY In 2004, the High Court of Australia delivered GAS v R [2004] HCA 22; 217 CLR 198; 206 ALR 116; 78 ALJR 786 (19 May 2004).

The court made these general observations about the documentation and recording of plea agreements in criminal cases:

“It is as well to add some general observations about the way in which the dealings between counsel for the prosecution and counsel for an accused person, on subjects which may later be said to have been relevant to the decision of the accused to plead guilty, should be recorded. In most cases it will be desirable to reduce to writing any agreement that is reached in such discussions. Sometimes, if there is a transcript of argument, it will be sufficient if an agreed statement is made in court and recorded in the transcript as an agreed statement of the position reached. In most cases, however, it will be better to record the agreement in writing and ensure that both prosecution and defence have a copy of that writing before it is acted upon. There may be cases where neither of these courses will be desirable, or, perhaps, possible, but it is to be expected that they would be rare.

Although the recording of the agreement is most obviously necessary in cases where some agreement is reached about matters of fact that will be put to the court as agreed facts or circumstances bearing upon questions of sentence, the desirability of recording what is agreed is not confined to those cases. It extends to every substantial matter that is agreed between the parties on subjects which may later be said to have been relevant to the decision of an accused person to plead guilty.

Recording what is agreed, in an agreed form of words, should reduce the scope for misunderstanding what is to be, or has been, agreed. It should serve to focus the minds of counsel, and the parties, upon the application of the three fundamental principles which are set out earlier in these reasons and describe the respective responsibilities of the prosecutor, the accused person and the sentencing judge. Most importantly, it enables counsel for both sides to be clear about the instructions to be obtained from their respective clients and the matters about which, and basis on which, counsel should tender advice to their respective clients. There should then be far less room for subsequent debate about the basis on which an accused person chose to enter a plea of guilty.”

http://www.austlii.edu.au/au/cases/cth/HCA/2004/22.html

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