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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