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)

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
Court: NSW Court of Criminal Appeal
Date: 8 September 2004
Judge(s): Spigelman CJ, Wood CJ at CL, Grove J, Dunford J, Howie J (judgment delivered by Howie J; all others agreeing)

Background

The Attorney General applied to the Court of Criminal Appeal under s 37 of the Crimes (Sentencing Procedure) Act 1999 for a guideline judgment governing sentencing for the offence of high range prescribed concentration of alcohol (PCA). High range PCA is committed when a person drives, or occupies the driver's seat and attempts to move a vehicle, while their blood alcohol concentration is 0.15 grams or more per 100 millilitres of blood, contrary to s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999.

The Senior Public Defender appeared pursuant to s 38 of the Sentencing Act and opposed the application, arguing that a guideline was not warranted on the material presented. The Director of Public Prosecutions appeared pursuant to s 39 and supported the application.

The Attorney General's case rested on statistical evidence showing that high range PCA was a prevalent offence, that sentencing patterns revealed systemic leniency, that there was marked inconsistency between courts, and that the legislative scheme's emphasis on disqualification was being regularly circumvented by the over-use of non-conviction orders under s 10 of the Sentencing Act.

Legal Issues

• Whether a guideline judgment was warranted for a summary offence dealt with in the Local Court, given the Court of Criminal Appeal's limited direct experience with sentencing for such offences
• Whether the existing pattern of sentencing for high range PCA disclosed systemic leniency or unacceptable inconsistency sufficient to justify a guideline
• Whether licence disqualification under the road transport legislation constitutes part of the penalty for sentencing purposes, or is a matter to be determined independently after punishment is fixed
• Whether and in what circumstances an order under s 10 of the Sentencing Act (dismissal or discharge without conviction) is appropriate for a high range PCA offence
• The content of any guideline, including the identification of an "ordinary case" and the factors that increase an offender's moral culpability

Decision

Issue 1: Jurisdiction and appropriateness of a guideline

The Court held that it had jurisdiction to issue a guideline for this summary offence under s 37(4) of the Sentencing Act. Although the Court acknowledged its limited direct experience with Local Court sentencing for high range PCA, it noted its familiarity with the closely analogous offence of dangerous driving under s 52A of the Crimes Act 1900, which involves identical underlying conduct. The Court concluded that a guideline was warranted having regard to the prevalence of the offence, the statistical evidence of systemic leniency, the inconsistency between courts in the use of s 10 orders, and the apparent failure by some magistrates to give effect to Parliament's legislative scheme.

Issue 2: Systemic leniency and inconsistency

Statistical evidence showed that between December 1999 and March 2003, 61 per cent of convicted high range PCA offenders were fined only, 11 per cent had charges dismissed under s 10, and full-time imprisonment was imposed in only 2 per cent of cases. The median disqualification period of 15 to 21 months stood well below the three-year automatic period. The rate of s 10 dismissals varied dramatically between courts, with one court dismissing more than 45 per cent of high range PCA matters under that section. The Court found that these patterns indicated insufficient regard to the seriousness of the offence and the purposes of punishment in s 3A of the Sentencing Act, particularly denunciation and general deterrence.

Issue 3: The nature of licence disqualification

The Court held that licence disqualification under the road transport legislation is a matter that a sentencing court must take into account when determining the overall consequences for an offender, consistent with general sentencing principle. The Court rejected the submission that disqualification operates entirely independently of the punitive process in such a way that it can never be considered alongside the penalty. It held that if Parliament had intended to exclude disqualification from the sentencing court's consideration, it would have said so plainly. The practical and financial impact of disqualification on an offender remains a relevant factor, but it does not override the court's obligation to give effect to Parliament's prescribed disqualification regime.

Issue 4: Use of s 10 non-conviction orders

The Court held that s 10 orders remain available for high range PCA offences, but that they will rarely be appropriate. The Court found that in the overwhelming majority of the 199 randomly sampled cases where s 10 was applied, there was no proper basis for avoiding a conviction. The Court rejected the proposition that attendance at a driver education program could of itself justify a s 10 order. A s 10 order could be warranted only in genuinely exceptional circumstances, such as where the offender drove in response to an urgent and unforeseen emergency. For second or subsequent offences, the Court stated that a s 10 order would very rarely be appropriate.

Issue 5: Content of the guideline

The Court constructed an "ordinary case" of high range PCA as a reference point against which sentencing courts could measure the particular matter before them. The ordinary case features a first offender of good character, detected at a random breath test, who drove to avoid personal inconvenience or because of a mistaken belief about their intoxication level. The Court identified factors that increase moral culpability, including the degree of intoxication above 0.15, erratic or aggressive driving, competitive driving, the length of the journey, and the number of persons placed at risk. Scaled sentencing thresholds were set for ordinary cases, second or subsequent offences, and cases of elevated moral culpability.

Orders Made

The orders extracted from the provided text reproduce the text of s 10 of the Crimes (Sentencing Procedure) Act 1999 rather than the formal orders of the Court. The guideline itself, set out at paragraph 146 of the judgment, constitutes the Court's substantive order and provides as follows:

• In an ordinary first-offence high range PCA case: a s 10 order will rarely be appropriate; conviction cannot be avoided solely because the offender attended a driver education course; the automatic disqualification period applies unless there is a good reason (such as the nature of the offender's employment, absence of viable alternative transport, or sickness or infirmity) to reduce it.
• For a second or subsequent high range PCA offence: a s 9 bond will rarely be appropriate; a s 10 order would very rarely be appropriate; where the prior offence was high range PCA, any sentence less severe than a community service order would generally be inappropriate.
• Where moral culpability is increased: a s 9 or s 10 order would very rarely be appropriate; where multiple aggravating factors are present to a significant degree, a sentence of less severity than imprisonment of some kind (including a suspended sentence) would generally be inappropriate.
• Where moral culpability is increased on a second or subsequent offence: a sentence of less than imprisonment of some kind would generally be inappropriate; where aggravating factors are significant or the prior offence was high range PCA, a sentence of less than full-time imprisonment would generally be inappropriate.

Key Takeaways

• High range PCA is an objectively serious summary offence carrying the highest maximum penalty available for any road traffic offence, and Parliament's prescriptive scheme of automatic and minimum disqualification periods signals its view that a penal response is appropriate.
• The Court of Criminal Appeal confirmed that statistical evidence of systemic leniency, inconsistency between courts, and failure to give effect to legislative intent can each independently justify the issue of a guideline judgment for a summary offence, even one the Court does not routinely encounter on appeal.
• Orders under s 10 of the Crimes (Sentencing Procedure) Act 1999 discharging an offender without conviction will rarely be appropriate for high range PCA; participation in a driver education or awareness program is not, without more, a basis for a non-conviction order.
• Licence disqualification under the road transport legislation is not a matter to be assessed in isolation from sentencing: a sentencing court must take into account the impact of disqualification on the offender, but that consideration cannot override Parliament's prescribed automatic disqualification periods absent good and expressly stated reasons for reduction.
• The automatic disqualification period (three years for a first offence, five years for a second or subsequent offence) is the default period applicable in the ordinary case and is not to be treated as a ceiling; courts should not routinely reduce it to the statutory minimum without identifying and articulating sufficient reasons.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated