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Local Court 25 September 2015

NSW Police v Pipe

[2015] NSWLC 20

Traffic & driving
CRIMINAL LAW HIGH RANGE PCA DRIVE WHILE SUSPENDED APPLICATION OF GUIDELINE JUDGMENT 2 OFFENCES WITHIN 24 HOURS DANGER TO PUBLIC

Citation: NSW Police v Pipe [2015] NSWLC 20
Court: Local Court of New South Wales
Date: 25 September 2015
Judge(s): Magistrate R Clisdell

Background

The defendant, a 48-year-old man with no criminal history and an otherwise excellent driving record, was arrested twice in less than 24 hours for high-range prescribed concentration of alcohol (PCA) offences in the Winmalee and Springwood areas of the Blue Mountains. On the first occasion, 9 March 2015, an off-duty police officer found him unable to start his vehicle in the middle of a busy intersection, so intoxicated he could not stand or walk unassisted. His breath analysis returned a reading of 0.387.

His licence was suspended immediately following that arrest. The following afternoon, 10 March 2015, the defendant drove to a local shopping centre to buy more alcohol. He collided with three separate vehicles while attempting to park and recorded a reading of 0.361. He was also charged with driving while suspended, having received the suspension notice the previous day.

A psychiatric report from Dr Glen Smith diagnosed the defendant with severe alcohol use disorder and a moderate, recurrent major depressive disorder. The defendant had been drinking two to three bottles of wine daily, attributing the escalation to the breakdown of a prior relationship in 2009. He entered residential rehabilitation following the second offence and was progressing well at the time of sentencing.

  • Whether the circumstances of these offences placed them within or outside the "ordinary case" framework established by the High Range PCA Guideline Judgment
  • Whether the combination of aggravating factors, including two offences within 24 hours, extreme readings, and significant danger to the public, required a custodial sentence
  • Whether an Intensive Correction Order (ICO) or suspended sentence was an appropriate alternative to full-time imprisonment
  • How to balance the defendant's prior good character, genuine rehabilitation, and serious alcohol disorder against the need for general deterrence

Decision

Magistrate Clisdell found these offences were far removed from the "ordinary case" described in the High Range PCA Guideline Judgment issued by the NSW Court of Criminal Appeal in 2004. The guideline contemplates an offender detected by random breath test who drove out of personal inconvenience and poses little risk of reoffending. This defendant drove on both occasions despite being grossly incapacitated, in high-traffic locations near schools, with very high readings on each occasion.

The Magistrate acknowledged the defendant's genuine remorse, prior good character, excellent traffic history, and the genuine progress he had made in rehabilitation. These were weighty mitigating factors. However, they were insufficient to avoid a custodial sentence given the extreme danger posed to the public on both occasions, the commission of a second offence the day after the first, and the powerful need for general deterrence in high-range PCA cases.

The court considered both ICOs and suspended sentences as alternatives to full-time imprisonment but rejected them. The gravity of two high-range PCA offences committed within 24 hours, in busy public areas with children present, demanded a sentence that reflected both the objective seriousness of the conduct and the community's interest in deterring such behaviour. Special circumstances were found to justify a longer parole period to support the defendant's continued rehabilitation.

For the driving while suspended offence, which was treated as less serious in context, the court imposed a good behaviour bond rather than imprisonment, with conditions requiring supervision and continued engagement with drug and alcohol rehabilitation programs.

Orders Made

High Range PCA, 9 March 2015:
- Convicted and sentenced to a fixed term of imprisonment of 6 months, commencing 25 September 2015, with eligibility for release on 24 March 2016

High Range PCA, 10 March 2015:
- Convicted and sentenced to imprisonment with a non-parole period of 6 months and an additional term of 6 months (total 12 months), commencing 25 September 2015, with eligibility for parole on 24 March 2016 (special circumstances found)

Driving while suspended, 10 March 2015:
- Convicted and ordered to enter into a section 9 good behaviour bond for 18 months, with conditions requiring supervision by Community Corrections and compliance with directions for counselling and drug and alcohol rehabilitation; defendant to report to Community Corrections at Penrith within 7 days of release
- Disqualified from driving for 12 months from 25 September 2015

Mandatory Interlock Orders (both PCA offences):
- Disqualification compliance period of 9 months commencing 25 September 2016, followed by a participation period of 3 years

Note: On appeal to the District Court on 13 November 2015, the sentences for the two PCA offences were varied. The first offence resulted in a 3-year good behaviour bond under section 9(1). The second offence resulted in a 12-month term of imprisonment suspended on condition of a 12-month good behaviour bond under section 12 of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • Two high-range PCA offences committed within 24 hours, involving extremely high readings and real danger to pedestrians and other road users in busy public areas, placed these offences well outside the "ordinary case" contemplated by the High Range PCA Guideline Judgment.
  • Prior good character and an excellent traffic record remain relevant mitigating considerations in high-range PCA sentencing, but they do not automatically displace the need for full-time imprisonment where objective seriousness and general deterrence demand it.
  • Under the Guideline Judgment, alternatives to full-time imprisonment such as ICOs and suspended sentences become increasingly difficult to justify where multiple serious offences are committed in rapid succession and the danger to the public is pronounced.
  • Special circumstances can be found to extend the parole component of a sentence where ongoing rehabilitation programs, including psychiatric treatment and residential detoxification, indicate that a longer period of supervised release would serve the offender's prospects of recovery.
  • The District Court, on appeal, took a different view of the appropriate sentencing range and substituted suspended sentences for the full-time custodial terms imposed at first instance, illustrating that sentencing outcomes in this area can be genuinely contested at the appellate level.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 9, 10, 12, 67

Cases:
- 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 High Range PCA Guideline Judgment)
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
- R v Zamagias [2002] NSWCCA 17
- Whelan, Heath Andrew v R [2012] NSWCCA 147