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 (joint judgment of Howie J, with all other members agreeing)
Background
The Attorney General for NSW applied to the Court of Criminal Appeal under s 37(1) of the Crimes (Sentencing Procedure) Act 1999 for a guideline judgment governing the sentencing of offenders convicted of high range prescribed concentration of alcohol (PCA) offences. High range PCA is defined as a blood alcohol concentration of 0.15g or more per 100ml of blood, the most serious of the five PCA offence categories under s 9 of the Road Transport (Safety and Traffic Management) Act 1999. The Attorney General and the Director of Public Prosecutions both supported the making of a guideline; the Senior Public Defender opposed it, arguing the material before the Court did not justify the exercise of the jurisdiction.
The application arose against a backdrop of persistent drink-driving conduct in NSW. High range PCA was the fifth most common offence sentenced in the Local Court in the 2002 calendar year, with 15,133 convictions recorded between December 1999 and March 2003. Statistical evidence before the Court indicated that a blood alcohol reading in the high range increases the probability of a vehicle crashing by 25 times, and that high-range offenders accounted for 50 per cent of drivers and motorcycle riders killed or injured in alcohol-related crashes in 2001.
The Court was also presented with detailed evidence of the legislative history of drink-driving offences in NSW, showing successive increases in penalties over time, and empirical data on sentencing patterns in the Local Court, where the vast majority of high range PCA matters are finalised.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction under s 37 of the Crimes (Sentencing Procedure) Act 1999 to issue a guideline judgment for the high range PCA offence, and whether it should exercise that jurisdiction on the material before it.
- What principles should govern sentencing for high range PCA offences, having regard to the seriousness of the offence, its prevalence, and the purposes of sentencing including general deterrence.
- What guideline, if any, should be formulated to promote consistency and transparency in the sentencing of high range PCA offenders in the Local Court.
Decision
The Court accepted jurisdiction to issue a guideline judgment and rejected the Senior Public Defender's submission that the material was insufficient to warrant one. Howie J, with whom all other members agreed, identified the high prevalence of the offence, the serious risk it poses to public safety, and the evidence of inconsistency in Local Court sentencing as factors justifying the exercise of the jurisdiction.
The judgment reviewed the legislative history of PCA offences in NSW in considerable detail, noting that Parliament had progressively increased maximum penalties and disqualification periods to reflect community condemnation of drink-driving. For a first offence of high range PCA, the maximum penalty is a fine of $3,300 and/or 18 months imprisonment, with automatic licence disqualification of three years. Subsequent offences attract a maximum of $5,500 and/or two years imprisonment, with automatic disqualification of five years.
The Court emphasised that general deterrence is a primary consideration in sentencing for this offence, given its prevalence and the widespread public awareness that drink-driving is both dangerous and criminal. The judgment noted that a full-time custodial sentence is a sentencing option that must remain available and that courts should not treat imprisonment as exceptional for cases involving serious aggravating features, such as a very high blood alcohol reading, dangerous driving, prior offending, or a combination of those factors.
The Court's guideline was directed principally at Local Court sentencing, aiming to establish a framework that is consistent with the seriousness Parliament has attributed to the offence while preserving appropriate judicial discretion to respond to the individual circumstances of each case.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed its jurisdiction under s 37 of the Crimes (Sentencing Procedure) Act 1999 to issue guideline judgments for summary offences tried in the Local Court, provided sufficient material justifies the exercise of that power.
- High range PCA (blood alcohol of 0.15g or more per 100ml) carries a maximum penalty of 18 months imprisonment for a first offence and two years for subsequent offences, alongside lengthy automatic licence disqualification periods.
- General deterrence is a primary sentencing consideration for high range PCA, given the offence's prevalence, the scale of its social and economic costs, and widespread public awareness that such conduct is both dangerous and criminal.
- A full-time custodial sentence remains an available and, in appropriate cases, necessary response to high range PCA, particularly where aggravating factors are present such as a very high blood alcohol reading, dangerous driving, or prior drink-driving offences.
- In dismissing the Senior Public Defender's challenge to the application, the Court reinforced that statistical evidence of sentencing inconsistency, combined with evidence of the offence's social impact, can be sufficient to warrant the formulation of a guideline judgment.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW)
- Road Transport (General) Act 1999 (NSW)
- Road Transport (Driver Licensing) Act 1998 (NSW)
- Road Transport (Vehicle Registration) Act 1997 (NSW)
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW)
- Fines Act 1996 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Motor Traffic Act 1909 (NSW)
- Corporations Act 2001 (Cth)
Key Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Henry (1999) 46 NSWLR 209
- Attorney General's Application (No. 2 of 2002) [2002] NSWCCA 515
- Re Attorney-General's Application [No. 1] under s 26 of the Criminal Procedure Act 1999 (1999) 48 NSWLR 327
- R v Way [2004] NSWCCA 131
- R v Whyte (2002) 55 NSWLR 252
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- Cobiac v Liddy (1969) 119 CLR 257
- Gardner v R [2003] NSWCCA 199
- R v Daetz (2003) 139 A Crim R 398