Prescribed Concentration of Alcohol (PCA)

Published by Geoff Harrison | 11 July 2023

The offences related to the Prescribed Concentration of Alcohol (PCA) are set out under s110 of the Road Transport Act 2013 ('the Act'). If the court convicts a person for an alcohol-related major offence, the court must disqualify the driver for the minimum relevant disqualification period - the disqualification is in addition to any other penalty (s205(5) of the Act). Mandatory Interlock Orders apply to offences relating to mid-range, high-range PCA or to any second alcohol-related major offence within a 5-year period. A person can be issued with a penalty notice for a low-range PCA offence provided that they have not been issued with a penalty notice for the same or a similar offence within the last 5 years. If the person pays the infringement notice there is no conviction; however, the person is suspended from driving for 3 months.

At the time of conviction, the court must make either a Mandatory Interlock Order or an Interlock Exemption Order (s210 of the Act). For the minimum disqualification periods and the minimum interlock periods click here. The steps for participation in the Interlock Program are here. For the court to make an Interlock Exemption Order the conditions of s212 of the Act need to be satisfied at the time of conviction (see below). If an Interlock Exemption Order is made the relevant disqualification period is as per the disqualification period for major traffic offences. Upon imposing any disqualification period the court is required to take into account any period of suspension imposed at the time of the alleged offence (see s206B(2) of the Act). The disqualification period starts on the day of conviction unless the court orders the disqualification to begin on a later date specified by the court (s207A of the Act). Section 206A(3) of the Act extends any period of disqualification for any term of imprisonment imposed as a result of the conviction.

A guidelines judgement applies to High Range PCA offences: 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.

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110 PRESENCE OF PRESCRIBED CONCENTRATION OF ALCOHOL IN PERSON'S BREATH OR BLOOD

(cf STM Act, ss 9, 10, 11 and 11A)

(1) Offence--novice range prescribed concentration of alcohol A novice driver must not, while there is present in the driver's breath or blood the novice range prescribed concentration of alcohol--

(a) drive the motor vehicle, or

(b) occupy the driving seat of the motor vehicle and attempt to put the motor vehicle in motion.

Maximum penalty--20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence).

(2) Offence--special range prescribed concentration of alcohol A person must not, while there is present in the person's breath or blood the special range prescribed concentration of alcohol--

(a) if the person is a special category driver in respect of a motor vehicle--drive the motor vehicle, or

(b) if the person is a special category driver in respect of a motor vehicle--occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is a special category supervisor in respect of a motor vehicle and the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)--occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Maximum penalty--20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence).

(3) Offence--low range prescribed concentration of alcohol A person must not, while there is present in the person's breath or blood the low range prescribed concentration of alcohol--

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)--occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Maximum penalty--20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence).

(4) Offence--middle range prescribed concentration of alcohol A person must not, while there is present in the person's breath or blood the middle range prescribed concentration of alcohol--

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)--occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Maximum penalty--20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).

(5) Offence--high range prescribed concentration of alcohol A person must not, while there is present in the person's breath or blood the high range prescribed concentration of alcohol--

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)--occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Maximum penalty--30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

Note : Division 1 of Part 7.4 provides for the disqualification of persons from holding driver licences for certain offences (including offences against this section).

(6) Alternative verdicts for lesser offences If the court on a prosecution of a person for an offence against any subsection of this section is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section of a less serious nature, the court may acquit the person of the offence with which the person is charged and find the person guilty of an offence against the other subsection. The person is liable to be punished accordingly.

(7) For the purposes of subsection (6)--

(a) an offence against subsection (1), (2), (3) or (4) is of a less serious nature than an offence against subsection (5), and

(b) an offence against subsection (1), (2) or (3) is of a less serious nature than an offence against subsection (4), and

(c) an offence against subsection (1) or (2) is of a less serious nature than an offence against subsection (3), and

(d) an offence against subsection (1) is of a less serious nature than an offence against subsection (2).

(8) Presence of higher concentration of alcohol not defence It is not a defence to a prosecution for an offence against a subsection of this section if the defendant proves that, at the time the defendant engaged in the conduct that is alleged to have contravened the subsection, a greater concentration of alcohol was present in the defendant's breath or blood than the prescribed concentration of alcohol referred to in the subsection.

(9) Defence for offence relating to novice range prescribed concentration of alcohol It is a defence to a prosecution for an offence against subsection (1) if the defendant proves to the court's satisfaction that, at the time the defendant engaged in the conduct that is alleged to have contravened the subsection, the presence in the defendant's breath or blood of the novice range prescribed concentration of alcohol was not caused (in whole or in part) by any of the following--

(a) the consumption of an alcoholic beverage (otherwise than for the purposes of religious observance),

(b) the consumption or use of any other substance (for example, food or medicine) for the purpose of consuming alcohol.

212 INTERLOCK EXEMPTION ORDERS

(1) An interlock exemption order is an order that exempts an offender from the operation of section 211.

(2) Section 205 (Disqualification for certain major offences) applies to and in respect of an offender to whom an interlock exemption order applies.

Note : If an interlock exemption order is made, the offender concerned will automatically be disqualified from holding a driver licence for the relevant period set out in section 205 and will not be subject to the requirement to participate in an interlock program.

(3) A court may make an interlock exemption order only if the offender proves to the court's satisfaction--

(a) that the offender does not have access to a vehicle in which to install an interlock device, or

Note : For example, there is only one vehicle to which the offender has access in which an interlock device could be installed and it is used jointly with a family member or other person who has a medical condition preventing the person from providing a sufficient breath sample to operate the device and it is not reasonably practicable to modify the device.

(b) that the offender has a medical condition diagnosed by a registered medical practitioner that prevents the offender from providing a sufficient breath sample to operate an approved interlock device and it is not reasonably practicable for an interlock device to be modified to enable the offender to operate the device, or

(c) if the offender is convicted of an offence against section 110(4)(a), (b) or (c) or 111A(2) that is a first offence--

(i) that the making of a mandatory interlock order would cause severe hardship to the offender, and

(ii) that the making of an interlock exemption order is more appropriate in all the circumstances than the making of a mandatory interlock order.

(4) A person has

"access" to a vehicle for the purposes of subsection (3)--

(a) if the person is the registered operator, owner or part owner of the vehicle or shares the use of the vehicle with the registered operator, owner or part owner of the vehicle, and

(b) it is reasonable in all the circumstances to install an interlock device in the vehicle.

(5) An interlock exemption order must not be made (except in relation to a conviction for an offence against section 110(4)(a), (b) or (c) or 111A(2) that is a first offence) merely because an offender--

(a) cannot afford the cost of installing or maintaining an approved interlock device, or

Note : Financial assistance for use of approved interlock devices is available in certain cases--see section 48.

(b) will be prevented from driving a vehicle in the course of his or her employment if a mandatory interlock order is made, or

(c) has access to a vehicle but the registered operator of the vehicle refuses to consent to the installation of an interlock device in the vehicle.

Note : For example, the offender's spouse is the registered operator of the only vehicle to which the offender has access and the spouse refuses consent to installation of an interlock device in it; the offender owns a chauffeur-driven limousine business and seeks exemption from installing an interlock device in cars used in the business.

(6) Transport for NSW may, by notice in writing given to an offender to whom an interlock exemption order applies, require the offender to undergo a drink driving education program nominated by Transport for NSW within a period specified by Transport for NSW.

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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 (8 September 2004)

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

FILE NUMBER(S):

AG003/02

HEARING DATE(S): 05/05/2004

JUDGMENT DATE: 08/09/2004

PARTIES:

The Attorney General for NSW

Director of Public Prosecutions (NSW0

Senior Public Defender

JUDGMENT OF: Spigelman CJ Wood CJ at CL Grove J Dunford J Howie J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

R. Cogswell SC with N. Sharp and J. Quilter - Attorney General

J. Stratton SC with D. Yehia and P. Young - Senior Public Defender

G. Smith SC - Director of Public Prosecutions

SOLICITORS:

I.V. Knight - Crown Solicitor

S. O'Connor - Solicitor for Senior Public Defender

S. Kavanagh - Solicitor for Public Prosecutions

CATCHWORDS:

Criminal Practice and Procedure - Guideline judgment in respect of sentencing for offences of high range PCA under the Road Transport (Safety and Traffic Management) Act 1999.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999

Road Transport (Safety and Traffic Management) Act 1999

Motor Traffic Act 1909

Road Transport (Driver Licensing) Act 1998

Road Transport (Vehicle Registration) Act 1997

Road Transport (General) Act 1999

Crimes (Local Courts Appeal and Review) Act 2001

Fines Act 1996

Criminal Appeal Act 1912

Corporations Act (Cth) 2001

DECISION:

See para. 146.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

AG003/02

SPIGELMAN CJ

WOOD CJ at CL

GROVE J

DUNFORD J

HOWIE J

WEDNESDAY 8 SEPTEMBER 2004

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)

Judgment

1 SPIGELMAN CJ: I agree with Howie J.

2 WOOD CJ AT CL: I agree with Howie J.

3 GROVE J: I agree with Howie J.

4 DUNFORD J: I agree with Howie J’s judgment and the Guideline proposed by him.

5 HOWIE J: The Attorney General for the State has made an application pursuant to s 37(1) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”) for a guideline judgment with reference to the offence of high range prescribed concentration of alcohol (“high range PCA”). The Attorney General was represented by the Crown Advocate, Mr Cogswell SC, Ms Sharp and Dr J Quilter. The Senior Public Defender appeared pursuant to s 38 of the Sentencing Act and was represented by Mr Stratton SC, Ms Yehia and Mr Young. The Director of Public Prosecutions (“the Director”) appeared pursuant to s 39 of that Act and was represented by Mr Smith SC, the Senior Deputy Director.

6 Neither the Director nor the Senior Public Defender contended that the Court did not have jurisdiction to make a guideline as sought by the Attorney General. The Director supported the application and adopted the guideline proposed by the Attorney General. The Senior Public Defender, however, submitted that the Court should decline to exercise its jurisdiction, as a guideline was not warranted on the material placed before the Court.

Introduction

7 It is trite to observe that, what is commonly referred to as, “drink-driving” amounts to socially irresponsible behaviour of a very significant degree having regard to the potential consequences of any driver on a public road being unable to properly manage and control a motor vehicle. It must also be a matter of common knowledge within the public in general that it is a criminal offence to drive a motor vehicle whilst under the influence of alcohol and that substantial penalties, including imprisonment, are available to the courts to punish those who commit the offence. For many years there has been an extensive media campaign to stress the seriousness of such conduct and the consequences that flow from it, both so far as the offender is concerned and in terms of its impact upon the safety of members of the public on or about the highways. In addition, drivers of motor vehicles must be aware that the use of random breath testing since 1982 has increased the chances of detection and hence the likelihood of conviction, punishment and licence disqualification.

8 Yet studies show that drink driving remains a commonly occurring offence as measured by court appearances, conviction rates and by self-report studies. Offences of driving whilst there is present a prescribed concentration of alcohol in the driver’s blood (a “PCA offence”) contrary to s 9 of the Road Transport (Safety and Traffic Management) Act 1999 (the “RT Safety Act”) accounted for 19.6 per cent of the matters for which sentence was passed in the Local Court in the period between April 2000 and April 2002: C. Bayari Sentencing Drink-Driving Offenders in the NSW Local Court (JIRS, Monograph Series No 27, March 2003) at 3. Such offences accounted for 20.6 per cent of all offenders sentenced in the Local Courts in the 2002 calendar year: J Keane and P Poletti, Common Offences in the Local Court, Sentencing Trends and Issues (JIRS, Monograph Series No 28, September 2003) at 3. Surveys of drivers have found that in any year nearly a third of Australian drinkers drive when “slightly intoxicated” or when they have had four or more drinks: R. Homel, “Preventing Alcohol-Related Injuries”, O’Malley and Sutton eds, Crime Prevention in Australia: Issues in Policy and Research, Federation Press 1997 at 163.

9 Statistical information maintained by the NSW Roads and Traffic Authority (the “RTA”), reveals the high costs of drink-driving not only in terms of death or injury to drivers and other users of the roads, but also in terms of economic cost involving loss of earnings, decreased enjoyment of life, medical and hospital expenses, costs associated with damage or loss of personal property, and the public expenditure on the investigation and prosecution of offenders. See for example: Road Traffic Accidents in NSW 2001, Statistical Statement: Year ended 31 December 2001 (RTA Road Safety Strategy Branch, January 2003) at p iii.

10 Of the five types of PCA offences created by s 9 of the RT Safety Act, the most serious is that involving a concentration of alcohol at the “high range”, that is a blood alcohol reading of more than 0.15g per 100 millilitres of blood. It is axiomatic that the higher the concentration of alcohol in the blood the more likely it is that the person’s ability to control and manage a motor vehicle will be adversely affected and the greater is the risk of the vehicle being involved in an accident. A blood alcohol reading within the “high range” increases the probability of the vehicle crashing by 25 times, that is 2,500 per cent: R T A, Drink Driving: Problem Definition and Countermeasure Summary (August 2000) at 2. In 2001 of 1,055 motor vehicle drivers and motorcycle riders killed or injured and who had a blood alcohol concentration over the legal limit, 50 per cent are in the high range; RTA Statistical Statement, above, at p iii.

11 In the 2002 calendar year, high range PCA was the fifth most common offence to be sentenced in the Local Court: Keane and Poletti, above, at 2. In the period April 2000 to April 2002, this offence accounted for 4.6 per cent of all cases before the Local Court: Bayari, above, at 3. Statistics maintained in the JIRS databank reveal that there were 15,133 convictions for high range PCA between December 1999 and March 2003, an average of 378 per month.

12 The prevalence of this offence and its social and economic impact on the community must be viewed against Parliament’s attempts to address it. Over recent years Parliament has taken, what were at the time, unprecedented steps in an attempt to deter such conduct by legislating for mandatory penalties, such as minimum periods of disqualification that operate upon conviction by a court. The court has also been denied the discretion to avoid convicting certain types of offenders charged with such an offence, thus depriving the court of the capacity to avoid punishing the offender.

High Range PCA

(a) History of the offence

13 The offence of high range PCA was first introduced in 1968 by s 4E of the Motor Traffic Act 1909 (“Traffic Act”). There was at that time a single prescribed range, which was defined as a concentration of 0.08g or more of alcohol in 100ml of blood. The offence carried a maximum penalty of a fine of $400 and/or 6 months imprisonment. The Court was also empowered to impose any period of licence disqualification that it thought fit upon conviction: s 10(1)(b) Traffic Act.

14 In 1978, the maximum fine for the offence was increased to $1000.

15 In 1980, the Traffic Act was amended to divide the offence into two categories: “lower prescribed range” and “higher prescribed range” offences. The “lower prescribed range” was defined as meaning “a concentration of 0.05g but less than 0.08g of alcohol in 100ml of blood”. The offence carried a maximum penalty of a fine of $400 for a first offence and $1000 for each subsequent offence. In addition, an automatic period of licence disqualification was introduced, being 6 months for a first offence and 12 months for a second or subsequent offence, which could be reduced by the court to a period of not less than 3 months.

16 The “higher prescribed range” was defined as meaning “a concentration of 0.08g or more of alcohol in 100ml of blood”. The offence carried a maximum penalty of $1000 and/or 6 months imprisonment, and in addition, an automatic licence disqualification of 12 months for a first offence, which could be reduced to a period being not less than 3 months, and 3 years for a second or subsequent offence, which could be reduced to a period of not less than 6 months.

17 In 1982, the Traffic Act was again amended to create three categories of offence: low range (0.05g or more but less than 0.08g), mid range (0.08g or more but less than 0.15g) and high range (0.15g or more of alcohol per 100ml of blood)

18 The next most significant amendment was made in 1998 when the penalties for the offences involving high range PCA were substantially increased.

19 On 1 December 1999 the Traffic Act was repealed and replaced by a group of statutes referred to as “road transport legislation”, each Act in the package dealing with a separate aspect of the control of motor vehicles on public roads. The legislation included, for example, the Road Transport (Driver Licensing) Act and Road Transport (Vehicle Registration) Act. Offences concerned with the manner of driving and the safe use of vehicles are found in the RT Safety Act. Provisions relating to the disqualification of licensed drivers are found in Part 3 of the Road Transport (General) Act (the “RT General Act”) which is headed “Enforcement of Road Transport and Other Legislation”.

20 A table setting out the history of the legislation dealing with offences involving prescribed concentrations of alcohol is set out in Annexure A to this judgment.

(b) The Scheme of the Legislation

(i) The PCA Offences – s 9 RT Safety Act

21 Section 3 of the RT Safety Act is relevantly as follows:

The objects of this Act are as follows:

(a) to provide for a system of safety and traffic management that is consistent with the uniform national approach envisaged by the agreements scheduled to the National Road Transport Commission Act 1991 of the Commonwealth,

(b) to re-enact with some modifications certain other provisions of the Traffic Act 1909 (as in force immediately before its repeal by the Road Transport Legislation Amendment Act 1999) relating to safety and traffic management,

(c) to improve safety and efficiency of transport on roads and road related areas,

(d) to reduce the costs of the administration of road transport.

22 Section 9 of the Act makes it an offence to drive a motor vehicle, occupying the driving seat of a motor vehicle and attempting to put the vehicle in motion, or supervising a learner driver whilst there is present in the driver’s blood a prescribed concentration of alcohol. The various activities to which the section applies will be referred to as “driving” and the person, who is the subject of the offence, as “the driver”. The section, as it was at the date the application was filed, divided the offences into four classes of PCA: the special category, low range, middle range and high range. On 2 May 2004, a fifth category was inserted into the section, the novice range.

23 Section 9(4) contains the high range offence with which this application is concerned. It provides that:

A person must not, while there is present in his or her blood the high range prescribed concentration of alcohol:

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of a drivers licence – occupy the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle.

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

24 A “penalty unit” is defined by s 17 of the Sentencing Act as having a monetary value of $110. Therefore, the maximum penalty prescribed by s 9(4) for a first offence is currently a fine of $3,300 and/or imprisonment for 18 months. For a “second or subsequent offence”, the maximum penalty increases to a fine of $5,500 and/or imprisonment for 2 years.

25 The term “high range prescribed concentration of alcohol” is defined in the Dictionary to the RT Safety Act as meaning “a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood”.

26 A “second or subsequent offence” is defined by cl 2(1) of the Dictionary to the RT Safety Act as follows:

An offence against a provision of this Act is a second or subsequent offence only if, within the period of 5 years immediately before a person is convicted of the offence, the person was convicted of another offence against the same provision or of a major offence.

27 A “major offence” is given the same meaning as that term has under the RT General Act. Section 3(1) of that Act defines a “major offence” as:

(a) a crime or offence referred to in the definition of “convicted person” in section 25(1), or

(b) any other crime or offence that, at the time it was committed, was a major offence under this Act or the Traffic Act 1909.

Section 25(1) of the Act defines “convicted person” to mean:

(a) a person who is, in respect of the death of or bodily harm to another person caused by or arising out of the use of a motor vehicle driven by the person at the time of the occurrence out of which the death of or harm to the other person arose, convicted of:

(i) the crime of murder or manslaughter, or

(ii) an offence under section 33, 35, 53 or 54 or any other provision of the Crimes Act 1900, or

(b) a person who is convicted of an offence under section 51A of the Crimes Act 1900, or

(c) a person who is convicted of an offence under any of the following provisions:

(i) section 42 of the Road Transport (Safety and Traffic Management) Act 1999 of driving a motor vehicle on a road or road related area furiously or recklessly or at a speed or in a manner which is dangerous to the public,

(ii) section 42 of the Road Transport (Safety and Traffic Management) Act 1999 of driving a motor vehicle negligently (being driving occasioning death or grievous bodily harm),

(iii) section 43 of the Road Transport (Safety and Traffic Management) Act 1999,

(iv) section 9(1A), (1), (2)(a) or (b), (3)(a) or (b), (4)(a) or (b) or section 15(4) or 16 of the Road Transport (Safety and Traffic Management) Act 1999,

(v) section 22(2) of the Road Transport (Safety and Traffic Management) Act 1999,

(vi) section 12(1)(a) or (b) of the Road Transport (Safety and Traffic Management) Act 1999,

(vii) section 29(2) of the Road Transport (Safety and Traffic Management) Act 1999,

(viii) section 70 of the Road Transport (Safety and Traffic Management) Act 1999, or

(d) a person who is convicted of aiding, abetting, counselling or procuring the commission of, or being an accessory before the fact to, any such crime or offence

28 It follows that, for the purposes of s 9 of the RT Safety Act and so far as is presently relevant, a conviction for an offence under s 9 will be a second or subsequent offence if, within a period of five years prior to the conviction for the current offence, the offender has been convicted of an offence under s 9, regardless of the class of PCA to which the prior offence related.

29 The four other categories of PCA offences contained in s 9, their applications and definitions, as set out in the Dictionary to the Act, are:

9(1A) the novice range: applies to the holder of a learner licence or a provisional licence and means “a concentration of more than zero grammes, but less than 0.02 grammes, of alcohol in 100 millilitres of blood”.

9(1) the special range: applies to a “special category of driver”, see s 8 of the RT Safety Act, and means “a concentration of 0.02 grammes or more, but less than 0.05 grammes, of alcohol in 100 millilitres of blood”.

9(2) the low range: means “a concentration of 0.05 grammes or more, but less than 0.08 grammes, of alcohol in 100 millilitres of blood”.

9(3) the middle range: means “a concentration of 0.08 grammes or more, but less than 0.15 grammes, of alcohol in 100 millilitres of blood”.

30 The maximum penalties, by way of fine and or imprisonment, prescribed for each of the offences contained in s 9 are as follows:

PCA class First offence Second offence

Novice range: $1,100 $2,200

Special category: $1,100 $2,200

Low range: $1,100 $2,200

Middle range: $2,200/ 9 months $3,300/ 12 months

High range: $3,300/ 18 months $5,500/ 2 years

(ii) Licence disqualification – s 25 RT General Act

31 Section 25 of the RT General Act provides for the disqualification from holding a driver licence for persons convicted of a “major offence”. As has been noted above, a “major offence” for this purpose includes, relevantly, persons convicted of an offence under s 9, except in the case of low, middle or high range PCA where the person has been supervising a learner driver.

32 The scheme of the section is to provide for a specified period of automatic disqualification that follows a conviction for a particular offence but to permit the court convicting the offender to retain a discretion to order a shorter period of disqualification, being not less than a specified period for that offence. This latter period is usually referred to as the minimum period of disqualification. The section defines “automatic disqualification” to mean “a disqualification under this section from holding a driver licence without specific order of a court”. The court also has power to impose a longer disqualification period than the automatic period, but it cannot impose an indefinite period of disqualification: Gardner v R [2003] NSWCCA 199.

33 Section 25 prescribes the period of licence disqualification for each of the five classes of PCA and according to whether the offence for which the person is convicted is a first or a second or subsequent offence. Those provisions of s 25 relevantly provide:

(2) Disqualification if no previous major offence. If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction (whether that period commenced before or commences after the commencement of this section), the convicted person is not or has not been convicted of any other major offence (whether of the same or a different kind):

(a) where the conviction is for an offence under section 9(1A), (1) or (2) of the Road Transport (Safety and Traffic Management) Act 1999:

(i) the person is automatically disqualified for 6 months from holding a driver licence, or

(ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 3 months) of disqualification — the person is disqualified from holding a driver licence for such shorter period as may be specified in the order, or

(b) where the conviction is for an offence under section 9(3) or 12(1) of the Road Transport (Safety and Traffic Management) Act 1999:

(i) the person is automatically disqualified for 12 months from holding a driver licence, or

(ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 6 months) or longer period of disqualification — the person is disqualified from holding a driver licence for such period as may be specified in the order, or

(c)...........

(d) where the conviction is for any other offence:

(i) the person is automatically disqualified for a period of 3 years from holding a driver licence, or

(ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification — the person is disqualified from holding a driver licence for such period as may be specified in the order.

3) Disqualification if previous major offence. If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction (whether that period commenced before or commences after the commencement of this section), the convicted person is or has been convicted of one or more other major offences (whether of the same or a different kind):

(a) where the conviction is for an offence under section 9(1A), (1) or (2) of the Road Transport (Safety and Traffic Management) Act 1999:

(i) the person is automatically disqualified for 12 months from holding a driver licence, or

(ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 6 months) or longer period of disqualification — the person is disqualified from holding a driver licence for such period as may be specified in the order, or

(b) where the conviction is for an offence under section 9(3) or 12(1) of the Road Transport (Safety and Traffic Management) Act 1999:

(i) the person is automatically disqualified for 3 years from holding a driver licence, or

(ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification — the person is disqualified from holding a driver licence for such period as may be specified in the order, or

(c).............

(d) where the conviction is for any other offence:

(i) the person is automatically disqualified for 5 years from holding a driver licence, or

(ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 2 years) or longer period of disqualification — the person is disqualified from holding a driver licence for such period as may be specified in the order.

(4) Calculation of disqualification periods in case of multiple offences............

(5) Disqualification in addition to any other penalty Any disqualification under this section is in addition to any penalty imposed for the offence.

(6).................

34 It should be noted then that: s 25(2)(a) and s 25(3)(a) apply to offences of PCA in the novice and low range and the special category; s 25(2)(b) and s 25(3)(b) apply to offences of PCA in the middle range; and s 25(2)(d) and s 25(3)(d) apply to high range PCA offences.

35 The consequence is that conviction for an offence under s 9 of the RT Safety Act will result in a period of licence disqualification as follows:

No previoius major offence

PCA class Automatic Minimum

Novice range 6 months 3 months

Special category 6 months 3 months

Low range 6 months 3 months

Middle range 12 months 6 months

High range 3 years 12 months

PREVIOUS MAJOR OFFENCE WITHIN 5 YEARS

PCA class Automatic Minimum

Novice range 12 months 6 months

Special category 12 months 6 months

Low range 12 months 6 months

Middle range 3 years 12 months

High range 5 years 2 years

36 There is provision for the court to suspend the period of disqualification imposed or arising from the conviction for an offence under s 9 of the RT Safety Act if the offender participates in an interlock program; s 25C of the RT General Act. It is unnecessary at this time to do more than note that the provisions in Subdivision 2 of Division 3 of Part 3 of the Act are a statutory alternative to the automatic licence disqualification period that permits a person convicted of high range PCA to drive under limited circumstances and only after a compliance period of disqualification has been served.

37 The terms of s 25(5) set out above should be noted in that it provides that disqualification is in addition to any penalty imposed for the offence. The meaning of this provision was a matter of considerable debate during the hearing and is a question to which I shall return when considering the nature of an order of disqualification.

(iii) Conviction

38 Penalties and disqualification apply only upon conviction for an offence under s 9 of the RT Safety Act. If a court proceeds under s 10 of the Sentencing Act so that, having found the offence proved, the court nevertheless dismisses the charge or discharges the offender without proceeding to a conviction, the court has no power to impose a fine or imprisonment. Nor does the court have power to disqualify the offender from holding a driver’s licence and the automatic disqualification period does not apply: Re Stubbs (1947) 47 SR(NSW) 329. A conviction that represents a bare finding of guilt, such as would authorise the issuing of a warrant to bring an offender before the court for sentencing under s 25(2) of the Sentencing Act, does not engage the automatic disqualification period; Kinney v Green (1992) 29 NSWLR 137.

39 I will return to consider s 10 of the Sentencing Act and its application to charges of high range PCA later in this judgment. However, it should be noted that s 24(6)(c) of the RT General Act provides in effect that s 10 of the Sentencing Act does not apply where a person charged before a court with an offence under s 9 of the RT Safety Act has, within a period of 5 years immediately before the sentencing for that offence, had the section applied to an offence under s 9 or any other of certain offences specified in the section. The section has been held to apply where two offences for PCA were dealt with at the same time and the court applied the equivalent of s 10 to the first offence with which the court dealt; Ormes v Jones (1994) 20 MVR 76.

(iv)The offence in context

40 The offence of high range PCA is a summary offence. It is dealt with at first instance in the Local Court: s 47 of the RT General Act. The offence is one of strict liability and, therefore, the vast majority of persons charged with the offence plead guilty. An appeal lies to the District Court against both conviction and sentence under Division 1 of Part 3 of the Crimes (Local Courts Appeal and Review) Act. The prosecution may appeal against sentence under Division 3 of Part 3 of that Act. An appeal against sentence, by either the defendant or the prosecutor, is of right and is generally determined by a rehearing of the evidence before the magistrate although fresh evidence may be received.

41 The maximum penalty that can be imposed upon the conviction of the offence is 18 months imprisonment for a first offence. For a second or subsequent offence, the maximum penalty is imprisonment for 2 years. This latter penalty is the equivalent of the maximum penalty that can be imposed by a magistrate for any one offence: s 267(2) of the Sentencing Act. It is the extent of the magistrate’s jurisdiction to sentence for indictable offences under Table 2 of that Act. The maximum penalty that a magistrate can impose for an offence of dangerous driving occasioning grievous bodily harm under s 52A of the Crimes Act is 18 months imprisonment. The maximum penalty prescribed for an offence of negligent driving occasioning death for a first offence is imprisonment for 18 months or 2 years for a second or subsequent offence; s 42(1) of the RT Safety Act.

42 There are other offences relating to drink-driving. It is an offence to drive while under the influence of alcohol or a drug: s 12(1) of the RT Safety Act. The maximum penalty prescribed for that offence and the automatic and minimum disqualification periods are the same as for a middle range PCA offence. The offence of refusing or failing to submit to a breath analysis under s 15(4) of the RT Safety Act, carries the same maximum penalties and disqualification periods as a high range PCA offence, as does an offence of refusing or failing to submit to the taking of a blood or urine sample under s 29(2) of that Act. The offence of wilfully altering the blood concentration under s 16 of that Act also carries the same maximum penalties and disqualification periods as a high range PCA offence.

43 High range PCA is one of most serious offences under the Road Traffic legislation. The only offences that carry similar maximum penalties and disqualification periods are the offences of negligent driving occasioning death contrary to s 42(1)(a) of the RT Safety Act, menacing driving with intent to menace, s 43(1), and knowingly failing to stop and give assistance following an accident causing death or injury, s 70. Offences of driving whilst disqualified, driving whilst licence cancelled and driving whilst licence suspended under s 25A of the Road Transport (Driver Licensing) Act, carry the same maximum penalties as high range PCA but have different disqualification periods.

44 The maximum penalty for a first offence has increased three-fold from a fine of $1,000 and /or 6 months imprisonment in 1980 to the current fine of $3,300 and/or 18 months imprisonment. There has been a similar increase for the penalty for a second or subsequent offence. There has been a four-fold increase in the minimum disqualification period over the same period, from 6 months in 1980 to the present 2 years.

(v) Sentencing generally

45 The Sentencing Act provides the framework upon which a court determines the sentence to be imposed upon a particular offender for any offence. The Act provides the sentencing practice, principles and penalty options that operate in all courts exercising State jurisdiction. There are also the sentencing principles and practices derived from the common law and that have been preserved by the provisions of the Act. So, for example, the list of mitigating and aggravating factors set out in s 21A of the Act must be read in the light of principles established by the courts independently of the Act: s 21A(4), and R v Way [2004] NSWCCA 131; R v Wickham [2004] NSWCCA 193.

46 Section 3A of the Sentencing Act states:

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

This provision has been considered to be a statutory endorsement of the purposes of punishment identified by the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; R v MA [2004] NSWCCA 92 at [23]. Observations made in the Attorney General’s Application (No 2 of 2002) [2002] NSWCCA 515 that the terms of the section may require a reconsideration of established sentencing principles relating to the purpose of punishment have not so far been pursued and the present application is not a suitable vehicle to do so. No arguments were addressed by the parties to the present application as to the particular significance of the section in sentencing for high range PCA.

47 It may be trite to observe that the principles set out in the Sentencing Act and otherwise established by the courts apply to PCA offences and the offence of high range PCA in particular. But courts called upon to sentence offenders for commonly committed offences, and almost as a matter of routine in long lists of matters, must be vigilant to apply proper sentencing principles and seek to achieve a result in an individual matter that promotes the purposes of punishment set out in s 3A of the Sentencing Act.

SUBMISSIONS

(A) Guideline judgments generally

48 The Court has a wide power under Division 4 of Part 3 of the Sentencing Act to issue a sentencing guideline. The only prohibition arising from the definition of “guideline judgement” under the definition of that term in s 36 of the Sentencing Act is a guideline made in respect of particular offenders. Section 37(4) of the Act provides that the Court has the same power and jurisdiction to give a guideline judgment in respect of an indictable or summary offence on the application of the Attorney General as the Court has in respect of a guideline given in proceedings pending in the Court under s 37A of the Act.

49 The nature of sentencing guidelines, their content and purpose, and the jurisdiction of this Court to issue them are matters that have been the subject of a number of judgements of this Court and the High Court. It is unnecessary for present purposes to review, or add to, those decisions. The sentencing guidelines so far given by the Court have been made during the course of sentencing proceedings otherwise before the Court and in respect of indictable offences. An application by the Attorney General for a guideline in respect of the offence of assaulting a police officer under s 60(1) of the Crimes Act, an indictable offence but one dealt with almost invariably by summary proceedings in the Local Court, was refused. The Court was of the view that the application was premature: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515.

50 In Re Attorney-General’s Application [No 1] Under s 26 of the Criminal Procedure Act 1999 [1999] NSWCCA 435; (1999) 48 NSWLR 327 at [10], Grove J, with whom the other members of the Court agreed, stated:

Recognised circumstances calling for a guideline judgment are perceptions of the prevalence of the offence, inconsistency in sentence quantification and emergent patterns of sentence which are either to harsh or too lenient and the requirements of general deterrence: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.

The Attorney General has submitted that, applying these criteria, a guideline should be promulgated for the offence of High Range PCA.

51 The proposed guideline that the Attorney General seeks contains statements of principle of a general and a particular nature both as to the approach to be taken to sentencing for the offence and the use to be made of various sentencing options including licence disqualification. It is as follows (the passages in italics are quotes from s 3A of the Sentencing Act):

“(a) The offence of High Range PCA should always be regarded as an objectively serious summary offence which puts the lives of the offender and others in danger.

(b) The need to “prevent crime by deterring ... other persons from committing similar offences” must be given particular significance by courts when sentencing an offender for the offence of High Range PCA.

(c) In respect of High Range PCA offenders with a prior PCA conviction, the need to “prevent crime by deterring the offender ... from committing similar offences” must be given particular significance by courts when sentencing an offender for the offence of High Range PCA.

(d) The offence of High Range PCA is not a trivial offence. An order under s 10 of the [Sentencing Act] discharging an offender without conviction is appropriate only in the most exceptional of circumstances.

(e) The legislation makes specific provision for an increased penalty where a person has a prior PCA conviction. Where the offender has a prior PCA conviction, serious consideration should be given to the imposition of a custodial sentence.

(f) Licence disqualification does not form part of the punitive process and periods of licence disqualification should not be taken into account when determining the totality of the penalty.

(g) The court should give consideration to ordering a shorter period of licence disqualification only after it has determined the totality of the penalty and sentenced the offender.

(h) The court should order a shorter period of licence disqualification only if there are good reasons for doing so above the ordinary hardship inevitably occasioned by reason of licence disqualification.

(i) The court cannot reduce the period of disqualification beyond the statutory minimum periods in s 25 of the [RT (General) Act].”

(B) Criteria justifying a guideline

(a) Prevalence of offence

52 Mr Stratton on behalf of the Senior Public Defender conceded that the offence of High Range PCA was a “relatively common offence”. However, he argued that from available statistics it appears that it is not increasing in prevalence. Keane and Poletti, above, at 3 noted that the number of persons being dealt with for PCA offences generally have remained the same in the decade since 1992. The number of persons dealt with rose only slightly from 11,001 to 11,501 despite a general increase in the number of persons appearing before the Local Court over the same period. Mr Stratton also stressed that the number of persons dealt with for high range PCA offences have declined over that decade and that the number of persons prosecuted for high range PCA in 2003 was 4894 out of over 3.1 million drivers subjected to breath tests in that year, that is about 16 persons in every 1,000.

53 However, the Attorney General points to the fact that not only is the offence itself generally a prevalent one, in the sense that it is commonly occurring, but also the commission of the offence by a person with a prior PCA conviction is prevalent. Data maintained by the NSW Bureau of Crime Statistics and Research (“BOCSAR”), for the five year period immediately prior to 30 June 2001, reveals that 22.7 per cent of all persons convicted of high range PCA had at least one prior PCA conviction and 12.5 per cent of those persons had at least one prior offence of high range PCA.

54 Clearly if an offence is a prevalent one, in that it is one for which courts are commonly being called upon to impose sentence, a guideline judgment is more likely to be of utility to the courts whose function it is to impose sentence for that offence. The fact that the prevalence may not be increasing does not detract from the value of a sentencing guideline, nor does it mean that a guideline should not emphasise that general or specific deterrence must be reflected in the appropriate penalty.

(b) Emergent pattern of sentencing

(i) Conviction

55 Before considering the available data for sentences imposed upon offenders charged with high range PCA offences, it is worthwhile recalling that the maximum penalty prescribed for the offence is imprisonment for 18 months and/or a fine of $3,300 and imprisonment for 2 years and/or a fine of $5,000 for a second or subsequent offence.

56 It is well established that a fine is the most common penalty imposed upon persons convicted of high range PCA: see Moffat, Weatherburn & Fitzgerald, Sentencing PCA Drivers: The Use of Dismissals and Conditional Discharges, (2004) 81 Crime and Justice Bulletin and Saffron and Chilvers, Sentencing high range PCA drink-drivers in NSW, Contemporary issues in Crime and Justice No 77, BOCSAR, August 2004; Keane & Poletti, above and Bayari, above.

57 Data from JIRS reveals that, of over 15,000 offenders convicted of high range PCA between December 1999 and March 2003, 61 per cent, or 9,277 offenders, were sentenced by way of fine alone. Of the balance of those offenders: 16 per cent, that is 2,498 offenders, were placed on a bond under s 9 of the Sentencing Act; 11 per cent, 1615 offenders, were dealt with by a dismissal of the charge under s 10 of that Act; 5 per cent of offenders were sentenced to imprisonment and it was only in 2 per cent of the cases, 369 offenders, that a sentence of full-time imprisonment was imposed.

58 Similar findings were made in Bayari’s study of offenders sentenced between April 2000 and April 2003: 62.7 per cent were fined; 15.6 per cent received a bond under s 9; 9.6 per cent a dismissal under s 10; 5 percent were sentenced to imprisonment and 2.2 percent received a sentence of full-time imprisonment. However, as compared with findings made in 1995, the percentage of offenders fined decreased by 9 per cent and custodial sentences increased by 3 per cent: Bayari, above, at 16.

59 A study conducted by the Attorney General’s Department of a random sample of 199 offenders sentenced for high range PCA in Local Courts across the State in 2002 (“the qualitative study”), revealed that 15 per cent were placed on a bond under s 9 and 8.5 per cent were dealt with by a dismissal under s 10. Only in 2.5 per cent of the cases was the offender sentenced to imprisonment and three of those five offenders had the sentence of imprisonment suspended under s 12 of the Sentencing Act.

60 The probability of an offender being sentenced to full-time imprisonment for high range PCA in the five year period prior to 30 June 2001 was 1.5 per cent for a person with no prior PCA conviction, 9.1 per cent where one prior conviction, 31.4 per cent for two prior convictions and 67.1 per cent for three prior convictions: Saffron and Chilvers, above, at 9.

61 In those cases where an offender was sentenced to full-time imprisonment between December 1999 to March 2003, JIRS data shows that: of the 369 offenders, 194 (or 53 per cent) received a sentence of a term of 6 months or less; 128 (or 34 per cent) a term of between 7 and 12 months; and 47 (or 14 per cent) a term of more than 12 months. The material does not identify repeat offenders.

62 Of the 9276 persons fined for high range PCA in the period between December 1999 and March 2003, JIRS data reveals that the highest fine imposed was $3,000 and it was the penalty in 165 cases (or 2 per cent). A fine of $2,000 was imposed in 32 per cent of the cases and a fine of $1,000 in 31 per cent of cases.

63 The Attorney General submits that these findings reveal that there is a systemic leniency in sentencing for high range PCA offences, both for those offenders with no relevant prior offence and those having a relevant prior conviction. It is argued that the inadequacy of sentences is revealed in the percentage of persons who received a fine, the quantum of the fines imposed, the improbability of a sentence of imprisonment being imposed and the sentences imposed when a court does sentence an offender to imprisonment.

64 Further, the Attorney General observed that the sentences imposed do not reflect the increase in the maximum penalties for the offence in 1998 when they were doubled. JIRS data reveals that the median fine increased by 40 per cent after the increase in the maximum fine by 100 per cent. Notwithstanding the two-fold increase in the prescribed maximum gaol sentence in 1998, the rate of imprisoning offenders dropped from 2.9 per cent in the four-year period prior to 1998 to 2.4 per cent in the period of four years after the amendments. The rate of dismissing the charge without conviction increased from 5.9 per cent to 9.7 per cent over the same period.

65 Mr Stratton answers these submissions by noting that, if the JIRS data dealing with the period from 1999 to 2003 is split up into two periods, the first being October 1999 to September 2001 and the second being October 2001 and September 2003, the material reveals that there has been an increase in the rate of imprisoning offenders from 2 per cent in the first period to 2.8 per cent in the second period. If all types of custodial orders are considered, including suspended sentences, the figures show an increase from 5.1 per cent in the first period to 7.5 per cent in the second.

66 He submitted that the statistics showing the rapid increase in the probability of a gaol sentence being imposed with an increase in prior offences disclose that the courts are approaching the task of sentencing offenders appropriately by reflecting the increased seriousness of the offence arising from a prior conviction of the relevant type and the increasing need for specific deterrence in such cases.

67 Mr Stratton also argued that by applying ordinary sentencing principles it should be unlikely that a person being sentenced for a high range PCA offence for the first time would be sentenced to imprisonment. In particular, he relied upon the principle enshrined in s 5 of the Sentencing Act, being that imprisonment is a sentence of last resort to be imposed where no other penalty is appropriate. He drew the Court’s attention to the social and economic impact that would follow upon a dramatic increase in the imprisonment rate for persons convicted of the offence, given that the offence is a prevalent one.

68 With respect to sentences by way of fines, Mr Stratton submitted that it would be difficult for the Court to reach any conclusion as to their appropriateness or otherwise. He pointed out that the amount of a fine could not be considered in isolation from the impact of the penalty upon the particular offender. For example, it was noted that the average weekly earnings of an adult in full-time employment in November 2003 was $939.60 and, as against that figure, a fine of $2,000 represents a substantial financial penalty. Further, he argued that the court is obliged under s 6 of the Fines Act to take into account the ability of the offender to pay a fine and, therefore, there cannot be a mathematical relationship between the maximum penalty under the RT Safety Act and the mean fine imposed by the courts.

(ii) Non-conviction

69 Section 10 of the Sentencing Act is as follows:

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2) An order referred to in subsection (1)(b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to release the person on a good behaviour bond.

(2A) An order referred to in subsection (1)(c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) Subsection (1)(c) is subject to Part 8C.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

(4) An order under this section has the same effect as a conviction:

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

70 The Attorney General submits that the use of an order dismissing a charge under s 10 of the Sentencing Act to deal with offences of high range PCA is manifestly too frequent with the consequence that, not only is the offender not punished for the offence, but also the minimum disqualification period is avoided by such an order. Reliance is placed upon the following finding of Moffat, Weatherburn and Fitzgerald, above, at 3:

Over the last decade there has been a rapid growth in the frequency with which PCA offences have been dismissed or conditionally discharged, and a corresponding decline in the proportion of PCA offences resulting in licence disqualification. The growth in the use of dismissals and conditional discharges has been very uneven, with some courts becoming much more likely to deal with PCA offences in this manner and other courts only rarely doing so.

71 The Attorney General argues for a guideline that should limit the use to be made of s 10 in high range PCA offences to cases where there are the “most exceptional of circumstances”.

72 Mr Stratton, however, notes that the legislature can, if it wishes, limit the use to made of s 10 by courts when sentencing for any offence and has done so in s 24 of the RT General Act where an offender has already had the benefit of a dismissal of a charge under s 10. But, it is argued, the legislature has not otherwise limited the use of the section and it is not appropriate for this Court to do so, particularly having regard to the strictures of the legislation and the minimum penalties that apply on conviction. The Court was reminded of what was said by Windeyer J in Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 269 on this very issue:

............The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia’s sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.

73 Further, it is argued that the charging of the offender, the suspension of his or her licence by police under s 34 of the RT General Act and the financial implications for having to attend court, often with private legal representation, are matters that themselves penalise the offender without the court doing so.

74 It is also submitted that the increased use of s 10 dismissals or discharges can be viewed as a consequence of the use being made of driver education programs, such as the Sober Driver Program, attendance at which will generally result in the offender receiving a lesser sentence than would otherwise be the case. There is evidence to suggest that attendance at such a program lessens the likelihood of reconviction for drink driving: Moffat, Weatherburn and Fitzgerald, above, at 3. This may be not only because of their educative value in causing the offender to appreciate the consequences of such conduct but also because of the humiliation experienced by an offender in being required to attend such a program.

75 Mr Stratton also points to those of the 199 cases in the qualitative study, where a dismissal under s 10 or a bond under s 9 was utilised by the magistrate, as indicative of the fact that the section is not being misapplied. It was submitted that an analysis of those cases reveals that the decision to deal with the offender in that way was appropriate having regard to the circumstances of the offence and the offender. In particular, it is noted that often the offender had been without the benefit of a licence for a period before sentencing because the police had suspended it when the offender was charged or because the offender had been involved in a diversionary program.

(iii) Disqualification

76 The Attorney General submits that there is an unduly lenient approach taken by the courts in respect of licence disqualification arising from three identified “problems”:

· Magistrates are failing to impose minimum periods of disqualification where they are required;

· Magistrates are more often than not reducing automatic periods of disqualification;

· Magistrates have misconstrued the purpose of the disqualification provisions and misapply them.

77 The quantitative study of 1999 case revealed that on two occasions the disqualification period imposed was less than the minimum required by the RT General Act. These appear not to be isolated incidents. Of course, failures to impose the minimum disqualification period can be rectified by proceedings under s 43 of the Sentencing Act to correct a penalty that is not in accordance with the law: see R v Finnie (No 2) [2003] NSWCCA 150. The definition of “penalty” in s 43(6)(e) includes an order of “disqualification, loss or suspension of licence”. Such orders may be mere errors arising from the complexity of the legislation, as Mr Stratton argues, or they might be indicative of a failure on the part of some magistrates to appreciate the importance of disqualification as part of the scheme of the legislation and one of the measures chosen by Parliament in an endeavour to address the problem of drink-driving.

78 Although the automatic period of disqualification for high range PCA without prior relevant conviction is 3 years and for a second or subsequent 5 years, the mean period of disqualification imposed for all offenders between April 2000 and April 2002 was 15 months; Bayari, above, at 13. For all offenders in the period of 5 years prior to 2001 it was 21 months; Saffron, above. The minimum periods of disqualification are respectively 12 months and 2 years. The study of the 199 cases revealed that in 89.5 per cent of cases, that is 163 offenders, the automatic period was reduced. In 55 per cent of cases, 100 offenders, the disqualification period was reduced to the statutory minimum. In 17 cases an order was made under s 10 of the Sentencing Act so that there was no period of disqualification imposed because there was no conviction.

79 Mr Stratton argues that the material before the Court does not reveal undue leniency and a closer examination of the available statistics discloses that the median disqualification period rose from 15 months to 18 months after the statutory disqualification periods were increased in 1989. He points to the fact that studies of the effectiveness of disqualification suggest that the optimal effective period is 18 months and above that period the offender will simply ignore the fact of disqualification: see Homel, Penalties and the Drink Driver: A study of One Thousand Offenders, ANZJ Crim (1981) 14 (225-241).

(c) Inconsistency in sentences imposed

80 The Attorney General submits, relying upon statements of the Chief Justice in R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 at 221 and R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [109] that the statistical material produced demonstrates that there have been a large proportion of unduly lenient sentences imposed and, therefore, there is the likelihood of inconsistency when consideration is given to those who would not be the recipients of such leniency.

81 Particular reliance is placed upon the findings of the study conducted by Bayari into offences within the period April 2000 and April 2002 that suggest there is a difference in sentencing trends between the courts in the Sydney metropolitan area and those in the rest of NSW. It was found that the use of fines was more common in the former, 70 per cent, than the latter, 55.6 per cent, but that there was more use of dismissals under s 10 of the Sentencing Act in the latter, 14 per cent, than the former, 5.6 per cent. The “harsher” penalties, ranging from community service to imprisonment, were more commonly used outside the Sydney metropolitan area, 12.9 per cent, than within it, 9.1 per cent.

82 Further the study by Moffat, Weatherburn and Fitzgerald, op cit, reported that in cases dealt with in 2002 there appeared to be a significant difference in the use of dismissals under s 10 of the Sentencing Act between particular courts. In Newcastle Local Court more than 45 per cent of high range PCA cases were dealt with under s 10. This can be compared with a rate of 11 per cent over the whole of the Local Courts in the State and with no use being made of that section by the Local Courts in Kempsey, Windsor, Nowra and Wollongong. The authors concluded that the variations were more than might be expected by chance.

83 Of course, as the Attorney General concedes, it is difficult to draw any firm conclusions by having regard to mere statistics without knowing more about the types of cases dealt with by the different courts, the practical impact of a conviction in a particular area because of, for example, a lack of public transport in that area, the ability of persons in a particular area to pay a fine or the availability of offender programmes. Mr Stratton submitted that the failure of particular courts to make an order under s 10 might tend to indicate that the section is being under-utilised in some courts. However, he also conceded that there is likely to be some variation in the attitude of particular judicial officers to particular offences and the appropriateness of a particular sentencing option. He argued that, if such a variation in opinion needs to be addressed, it should be by way of judicial education rather than by the intervention of this Court.

(d) Deterrence

84 The Attorney General emphasised the need for sentences to reflect general deterrence both because high range PCA is a prevalent offence and because of the danger it poses to the social and economic wellbeing of the community in general. He relies upon statements of this and other courts emphasising the importance of deterring other drivers from committing serious offences arising from the use of a motor vehicle on public streets: see, for example, R v Scott [1999] NSWCCA 233, generally, and Briant v Bessell (1994) 74 A Crim R 204, in relation to drink driving.

85 Mr Cogswell argues that general deterrence can only be effective if knowledge of the consequences of a particular criminal conduct is conveyed to members of the public likely to conduct themselves in that way. One way for that knowledge to be imparted is through the punishments actually imposed by the courts on offenders: another is by way of a guideline judgement from this Court.

86 Mr Stratton stressed that empirical studies into the relationship between punishment and the occurrence of drink-driving offences have denied the effectiveness of punishment as a deterrent, especially so far as increased penalties are concerned. Rather those studies suggest that the most efficient and effective means of deterring such conduct is by increasing the risk of detection: see generally, Homel and Wilson, Death and Injuries on the Road: Critical Issues for Legislative Action and Law Enforcement, August 1987, Australian Institute of Criminology. A study of the effect of different attitudes to dealing with drink driving offences between Norway and Sweden and research into the effects of imprisonment when compared with treatment in California have shown that imprisonment is an ineffective deterrent either generally or for specific individuals. Mr Stratton argues that the cost of imprisonment, both in money value and its impact upon prisoners and their families, is not justified in attempting to ensure public safety.

(e) Prosecution appeals

87 It has been noted earlier that both the offender and prosecutor can appeal as of right against the sentence imposed in the Local Court. The relevance of prosecutor’s appeals, or the lack of them, can be to indicate firstly, whether there has been a perception by the police or the Director that the sentences imposed by the Local Court are routinely and unduly lenient and, secondly, whether there is any apparent undue leniency in the manner in which the offence is dealt with in the District Court on appeal.

88 Statistics maintained by BOCSAR show that between 1999 and 2003 there were 33 appeals lodged by the Director against sentences imposed upon individual offenders. Of those cases, 23 were in respect of dismissals under s 10 or the now repealed s 556A of the Crimes Act. Only 9 of those appeals succeeded. In each of the successful appeals upon a conviction being recorded in the District Court, the minimum period of disqualification was imposed. In at least five of the cases in which appeals were dismissed, the sentence appears to me to be manifestly inadequate to a very marked degree having regard only to the antecedent record of the offenders.

89 It should be recorded that there has been no appeal to this Court by either the prosecution or an offender under s 5B of the Criminal Appeal Act in respect of any appeal to the District Court for an offence of high range PCA.

Is a Guideline warranted?

(a) General considerations

90 As I noted earlier in this judgment, s 37A of the Sentencing Act provides that the Attorney General can seek a guideline judgment from this Court in respect of a summary offence. It has been recognised that a relevant factor to be taken into account, when the Court is considering an application under that provision, is the Court’s lack of direct experience with sentencing for the offence in question: Attorney General’s Application No 2 of 2002 at [53]. This may cause the Court to hesitate before declaring that the level of sentencing applied by the courts, which routinely exercise that discretion, is inadequate.

91 In this case, however, the Court is not completely without some understanding and feeling for the considerations that attend sentencing for this particular summary offence. The Court is very familiar with sentencing for the offence of dangerous driving under s 52A of the Crimes Act and has delivered guideline judgments in respect of that offence: see R v Jurisic, above and R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. The conduct that gives rise to the offence of high range PCA is identical to the conduct that can give rise to an offence under s 52A(4), aggravated dangerous driving. This is because one of the circumstances of aggravation set out in s 52A(7) is that at the time of impact occasioning death or grievous bodily harm “the prescribed concentration of alcohol was present in the accused’s blood”. “The prescribed concentration of alcohol” for the purpose of that provision is defined by s 52A(9) to mean “a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood”. That is in effect the same as high range PCA offence. In my opinion, the Court can use that experience to fashion an appropriate guideline for an offence under s 9(4) of the RT Safety Act, if the need arises.

92 The Senior Public Defender argued that there is no need for a guideline from this Court because the legislation itself provides an involved scheme of penalties, including disqualification, that would point a court in the right direction for determining the appropriate penalty. For example, the fact that the Act itself contains a limitation upon the use that can be made of the power to dismiss a charge under s 10 of the Sentencing Act is a more emphatic limitation upon the exercise of the sentencing discretion than a guideline of this Court. But this consideration seems to me to be a factor that might rather indicate that this Court should be prepared to enter into an area of sentencing even where it might otherwise fear to tread. If this Court did form the view that the apparent intentions of Parliament manifested in the scheme of the legislation are not being carried into effect by the courts, it should say so. And it should take that course regardless of the attitude taken by prosecutors to the sentences being imposed or what perception might arise from an absence of appeals by the Director to the District Court.

93 Further, as I have already noted, it is understandable that, where an offence is prevalent and makes up a significant proportion of the matters dealt with in the Local Court, sentencing for that offence may unwittingly become a matter of routine with the result that insufficient regard is had to the scheme of the legislation, the seriousness of the offence in objective terms and the purpose of punishment as set out in s 3A of the Sentencing Act. For example, in the 199 matters examined by the Attorney General’s Department, it was evident that magistrates were generally not giving reasons for the decision to reduce the automatic period of disqualification to the minimum period. Although Mr Stratton conceded that this was not a satisfactory practice, he noted that it might be that the transcript of the proceedings would reveal the nature of the submissions made by the offender’s representative toward obtaining such an order and it could be assumed that these were adopted by the magistrate as justifying the reduction in the disqualification period. But the failure to give reasons for so significant a matter might indicate that the magistrate failed to have sufficient regard to its importance in light of the fact that Parliament has specified an automatic disqualification period for that offence and limited the power of the court to reduce that period.

94 Much of the argument on the hearing and in written submissions concerned the significance or otherwise of the apparent failure of the Director to appeal in a significant number of cases notwithstanding that it is now claimed by both the Attorney General and the Director that the general trend of sentencing for this offence is inadequate. In the Attorney General’s Application No 2 of 2002, above, there was some consideration of the Director’s right to appeal against sentence and its role in overcoming particular instances of, what appeared to this Court to be, manifestly inadequate sentences imposed by magistrates. It was noted by the Chief Justice at [47] that limits upon the power of this Court to intervene in appeals by the Crown under s 5D of the Criminal Appeal Act do not constrain the District Court in determining an appeal by the Director. One obvious difference is that this Court is only concerned with the correction of error, whereas the appeal to the District Court is by way of rehearing.

95 However, I believe that this Court must take a realistic and pragmatic approach when considering the exercise of the Director’s discretion to appeal against what he perceives to be inadequate sentencing by magistrates for summary offences. The Director’s power is constrained by practical considerations, not the least being that officers under his direct control do not routinely appear in such matters. There is presumably a discretionary filter exercised by the police and then again in the office of the Director.

96 Further, an appeal to the District Court is a re-exercise of the sentencing discretion with respect to the matter then before the court. It is not designed to be a vehicle by which the Director can attempt to obtain or maintain consistency in sentencing by magistrates. The disposition of the appeal in the District Court is not determined by a finding that the sentence imposed by the magistrate was either right or wrong: the hearing is not concerned with identifying and then correcting error. The evidence before the appeal court may not be the same as it was before the magistrate. No doubt in determining whether to appeal in a particular matter, the Director will have regard to the pressures upon the District Court in exercising its own primary jurisdiction without overburdening it by frequently requiring it to re-hear matters already dealt with in the Local Court.

(b) Specific criteria

97 It is clear that the offence of high range PCA is a prevalent one, in that it is a commonly occurring offence, and I have already expressed the view that this fact alone suggests that a guideline might be warranted. Even if it were the case that the prevalence of the offence is not increasing, that consideration would not alone suggest to my mind that a guideline should not be given if it were otherwise appropriate to do so.

98 It may be the case, as Mr Stratton argued, that there are more effective ways of deterring drink-driving than by the imposition of high penalties and lengthy periods of disqualification. But that is a matter for the legislature and not the courts. Parliament, by increasing the penalties for drink-driving offences and by determining on a scheme involving automatic and minimum disqualification periods, has sent a clear message to the courts that it believes that a penal regime is the appropriate method for addressing this social problem. It is not open to the courts to second-guess Parliament by attempting to subvert its will by inappropriately ameliorating the penalties chosen by it. Nor are the social and economic ramifications of increased sentences or longer periods of disqualification matters of concern to the court if these are the consequences arising from an insistence that the courts dealing with these offences comply with the spirit and policy of the legislation.

99 There is a somewhat circular argument involved in determining whether there is an emergent trend of inadequate sentencing in relation to a particular offence such that a guideline is warranted. In order to determine whether the pattern of sentencing suggests an unduly lenient approach warranting a guideline, the Court must have formed at least a provisional view about what the pattern of sentencing should be. This is of course where the unfamiliarity of the Court with sentencing for a particular offence gives rise to the disquiet about entering into the field. But there are certain indicia that the Court can apply in a general way to determine whether the sentences being imposed appear to be appropriate. The first is a consideration of the particular offence in the context of the legislation creating it and the policy that can be gleaned from the provisions of the legislation, for example, any statement of the objects of the legislation. The second is a consideration of the objective nature of the offence itself.

100 As I have already indicated, the aggravated form of the high range PCA offence, that is a second or subsequent offence, carries the highest maximum sentence for any offence under the road traffic legislation and is at the top of the jurisdiction of a magistrate to sentence for any one offence. The maximum penalty prescribed is indicative of the way in which Parliament regards the offence and thus it represents the public's view of the seriousness of the crime: H (1980) 3 A Crim R 53. The maximum penalty is fundamental to a determination of the seriousness of the type of offence before the court and hence to the appropriate sentence to be imposed upon the particular offender: Oliver (1980) 7 A Crim R 174. It should be noted that Parliament considers that the offence is as serious as an offence of negligent driving causing death.

101 Of course PCA offences are conduct offences: there is no element of the offence that is dependent upon the establishment of the consequences of the impugned conduct. The offence is committed even if the vehicle is not actually put into motion. It is an offence of strict liability. But, if this fact has any relevance in the determination of how an offence should be dealt with by the courts, and I do not believe that it has, it can have no weight in the case of high range PCA. It is a matter of common knowledge that at the level of intoxication represented by a reading of 0.15 the person must have consumed a quantity of alcohol that would not only manifestly influence his or her driving skills but have led the person to appreciate that fact or, at least the risk of it.

102 A person, who commences to consume alcohol outside his or her home, must appreciate that he or she runs the risk of reaching a level of intoxication at which it is a criminal offence to drive a motor vehicle. As alcohol is continuously consumed, not only does that risk increase but also the potential seriousness of the offence increases. At the high range level of PCA it could rarely, if ever, be suggested that the person lacked this appreciation at some point of time before the decision was made to get behind the wheel of motor vehicle. These observations may be trite, but they must be kept in mind when consideration is given to the level of criminality involved in driving at the high range PCA and the appropriate punishment necessary to reflect it.

103 Much of the argument in the present matter was concerned with whether the criteria for a guideline judgment, identified in other cases and summarised in the quote from Grove J set out earlier in this judgment, apply in the present case. I do not believe that the resolution of that matter is of significance to the determination of this application. This is because I believe that the Court has already given a guideline that can be usefully adapted to provide an appropriate response to the Attorney General’s request comfortably with the purpose of s 37A and the Court’s earlier decisions as to the exercise of its power and duty under that provision.

What should be the content of the guideline?

(a) moral responsibility

104 As I have already noted the conduct giving rise to the offence of high range PCA is the very same that gives rise to the aggravated offence under s 52A(4) of the Crimes Act where that conduct happens infelicitously to result in death or grievous bodily harm. Of course an offence under s 52A comprises both the impugned conduct and the consequences of it. It is an example of the law having regard to the consequences of a person’s conduct when determining the seriousness of the offence committed. So dangerous driving causing death gives rise to a more serious offence than dangerous driving causing grievous bodily harm. The former, an offence under s 52A(1) carries a maximum penalty of 10 years imprisonment and the latter, an offence under s 52A(3), a maximum of 7 years imprisonment even though the conduct giving rise to each offence might be of exactly the same type and seriousness.

105 But the nature of the conduct itself can give rise to a more serious offence even though the consequences of the conduct are identical. So an offence under s 52A is aggravated where there is present a particular aggravating feature of the driving as specified in s 52A(7). Hence the maximum penalty for an aggravated offence of dangerous driving causing death, an offence under s 52A(2), is 14 years imprisonment and that for the aggravated form of dangerous driving causing grievous bodily harm, an offence under s 52A(4), is 11 years imprisonment.

106 However, the aggravating features of any particular offence of dangerous driving are not simply found in s 52A(7). The judgment in Whyte identifies factors that will aggravate an offence of dangerous driving other than those contained in the legislation itself. These factors are of two kinds, those that affect an evaluation of the moral culpability of the offender and those that affect an assessment of the seriousness of the consequences of the conduct. Those that fall into the second category are, of course, irrelevant to a consideration of the seriousness of an offence of high range PCA because they are concerned with the seriousness of the consequences of the driving in terms of the harm inflicted upon some person as a result of the driving.

107 But, in my opinion those factors that aggravate the moral culpability of the driver and aggravate the seriousness of the conduct apply with equal force to the offence of high range PCA. These are expressed in Whyte as:

· Degree of intoxication

· Erratic or aggressive driving

· Competitive driving or showing off

· Length of the journey at which others are exposed to risk

108 I would also add to the list:

· Number of persons put at risk by the driving

Although this was identified as an aggravating factor in Whyte, it was not marked as a matter relating to the moral culpability of the offender. With respect, I agree that this is so if this factor is having regard to members of the public in general. But I consider that a person’s moral culpability is increased where the driver knows that other persons are being put at risk, for example where there are passengers in the vehicle.

109 Of course Whyte was a case concerned with the pronouncement of a numerical guideline, that is one identifying a range of sentences in terms of a number of year’s imprisonment that would be appropriate to punish a class of offending. That is not the type of guideline sought in the present case. But the factors identified in Whyte as being significant to an assessment of the moral culpability of the offender and hence the seriousness of the offence are relevant to a consideration of the range of sentencing dispositions open to a magistrate dealing with an offence of high range PCA.

(b) The nature of licence disqualification

110 I have already referred to the fact that there was considerable debate before the Court as to the nature of disqualification and, in particular, whether it should be considered to be part of the penalty imposed for the offence. Mr Cogswell argued that, on the only possible construction of the road transport legislation, disqualification was not a penalty and was a matter to be considered by the magistrate once punishment for the offence had been determined. Mr Stratton argued that it was illogical and unreasonable to construe the relevant provisions in such a way that disqualification was a matter to be considered independently from a determination of the punishment for the offence.

111 There is some prospect that the High Court may deliver a judgment relevant to this issue. That Court has reversed the decision of the Court of Appeal in Rich & Silbermann v The Australian Securities and Investments Commission [2003] NSWCA 342: see [2004] HCA Trans 121. The Court has not yet delivered its reasons for that decision. The case was concerned with interlocutory proceedings in connection with an application for declarations that two persons be disqualified from the management of companies under provisions of the Corporations Act (Cth). In order to deal with the matter, the Court of Appeal was required to consider whether such a disqualification was properly characterised as a penalty or as a protective order. The Court of Appeal held it was the latter. The implication arising from the High Court’s decision upholding the appeal is that it is the former.

112 However, it seems to me that, so far as the present matter is concerned, the issue can be resolved without recourse to such a distinction, if it exists, under the road traffic legislation. Mr Cogswell’s argument is that, because disqualification is not a penalty for the purpose of the relevant legislation, it is a matter to be considered independently from the question of the appropriate punishment for an offence. So, it is submitted, the court should only consider the length of the disqualification period after it has sentenced the offender by imposing a penalty recognised by the Sentencing Act. This would have the consequence that the court would have to determine what sentence to impose without considering the consequence of that sentence so far as it might affect the offender’s licence to drive. A court, therefore, could not take into account the applicant’s need for a licence when determining whether to convict the offender.

113 Of course this is not an argument that is restricted to sentencing for high range PCA. If disqualification is not a penalty and, therefore, not part of the sentence imposed by the court, then the court could not take into account licence disqualification when sentencing for any offence, even an offence in respect of which disqualification is not automatic and no minimum period of disqualification is prescribed. As Mr Stratton points out, this would have the consequence that the magistrate could not take into account, in determining the quantum of a fine to impose upon an offender, the fact that the offender might be out of work for a certain period because the magistrate was to impose a period of licence disqualification.

114 If the sentencing court could have no regard to disqualification when imposing a penalty for an offence under the RT Safety Act, it would place sentencing under the road traffic legislation in a very unique position. Generally, when sentencing for a criminal offence, a court is entitled to consider all the consequences to the offender arising from the commission of that offence in determining what penalty to impose. Extra-curial punishments are routinely taken into account by sentencing courts and it would be unjust to do otherwise. For example, this Court has taken into account the consequences of a particular form of punishment for a particular individual in determining whether that punishment is warranted. In R v Lancaster (1991) 58 A Crim R 290, the Court took into account the consequences of imprisonment on the military careers of serving soldiers including their loss of accrued pension rights. Similarly, the fact that a particular sentence would have the consequence that the offender would lose his employment has been taken into account in allowing an appeal and substituting a different sentence: R v Rhodes (NSWCCA, 20 November 1996, unreported)

115 In R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398 this Court considered the relevance of extra-curial punishment in some detail and concluded that it was a matter that a sentencing court was entitled to take into account. Of course the Court was there concerned with events that had occurred prior to sentencing, but as Lancaster makes plain, a court can have regard to prospective penalties, those that will arise as a result of the conviction or a particular sentence, when determining what punishment should be imposed on the particular offender before the court.

116 In my opinion, if Parliament had intended that a court could not take into account licence disqualification when determining the appropriate sentence to impose for an offence under the RT Safety Act, it should have said so in plain and simple terms. Such a significant departure from normal sentencing principle should be made obvious and not left to be inferred by way of construing the provisions of particular statutes. Licence disqualification is such a significant matter and can have such a devastating effect upon a person’s ability to derive income and to function appropriately within the community that it is a matter which, in my view, must be taken into account by a court when determining what the consequences should be, both penal and otherwise, for a particular offence committed by a particular offender.

117 This is not to say that the sentencing discretion should be controlled by one particular factor alone, such as the offender’s need for a licence or the consequences to that offender of being disqualified for a significant period. Nor can the court in fixing the sentence disregard the clear intention of the Parliament as to the effect that the commission of an offence is to have upon the offender’s right or privilege to drive a motor vehicle on public streets. I shall return to this matter shortly.

(c) Particular considerations

(i) Prior good character

118 This Court has frequently observed that the fact that the driver convicted of an offence under s 52A is of otherwise good character is of less relevance than it might be in sentencing for other types of offences: R v McIntyre (1988) 38 A Crim R 135 at 139. This is because of the prevalence of the commission of the offence by persons of good character and the importance of general deterrence: R v Musumeci (NSWCCA, 30 October 1997, unreported).

119 This observation applies equally, in my view, to sentencing for PCA offences in general and high range PCA offences in particular. This is because it can be inferred that, just as persons of otherwise good character commit the offence of dangerous driving by having the prescribed concentration of alcohol in their blood, so they commit such an offence when it does not result in death or serious injury. Of 5,700 persons convicted of the offence in the five years to 2001, 77 per cent had no prior conviction for a PCA offence: Saffron and Chilvers, at 2.

(ii) nature of the driving

120 The offence is completed when the offender gets behind the wheel of the motor vehicle and attempts to put it into motion. Clearly once the vehicle is in motion the offence is more serious because the risk of death or injury to other persons is increased. As I have already indicated, aspects of the driving can increase the moral culpability of the offender and aggravate the offence. But it is not the case that the absence of those matters is a mitigatory matter. So the fact that there was no accident resulting from the driving, or that there was no observable sign of the effect of the intoxication on the manner of driving, or that the offender was detected at a random breath test is not a relevant matter and certainly does not reduce the seriousness of the conduct.

(iii) involvement in a driver eduction program

121 Notwithstanding the undoubted beneficial effect upon a driver of participation in a driver education program, that fact can have little impact, in my view, upon the appropriate sentence to be imposed for an offence of high range PCA in the usual case, except in so far as the length of disqualification may be concerned or the amount of a fine. The offence in general is so serious and the criminality involved in even a typical case so high that, in my view, the participation of the offender in a program cannot be seen as an alternative to punishment for an offence of this nature. In particular, there is no warrant at all for making an order under s 10 simply because the offender has participated in such a program or is to do so as part of the conditions of a bond.

122 Punishment for the offence of high range PCA is concerned principally with denunciation of the conduct and general deterrence. For the typical offender recidivism is not a concern of the court. Parliament has already provided a higher penalty where the offender might be considered as a risk of re-offending by reason of the commission of a previous offence. I accept that an attendance at a program may add to the general understanding in the community of the seriousness of the offence and its potential consequences and it may, by word of mouth, help to spread the message through the community. But in an offence of high range PCA the possible benefits arising from attendance at a program are outweighed, in my view, by the need for appropriate punishment. I cannot accept that any degree of humiliation felt by the offender at being required to attend such a course can expiate the criminality involved in the offence such that by attendance at a program the offender can escape a conviction that is otherwise called for to reflect the objective seriousness of the offence.

123 I note that under the proposed diversionary scheme set out in the RT General Act, the interlock program, participation in that program is not an alternative to the driver being convicted: s 25C. Nor does participation in the scheme mean that the driver can avoid a period of disqualification. For a person convicted of a high range PCA without a relevant prior offence the period of disqualification that must be served before the offender can participate in the scheme is 6 months: s 25D and Schedule 1A. Where the offence is a second or subsequent offence, the period of disqualification that must be served before entry into the program is 12 months. Further, the disqualification period specified by the court is merely suspended during the currency of participation in the program.

124 I accept that in many cases the offender will have been without a licence since the commission of the offence because the police will have suspended the licence under s 34 of the RT (General) Act and it cannot be restored until the court deals with the offender. It might be the case that the period is extended while the offender participates in an education course hoping to achieve a better result on sentence. However, s 34(6) requires the court to take into account the period during which the licence was suspended when disqualifying the offender under s 25. That period can be regarded as satisfying the whole or part of the minimum period of disqualification: s 34(6)(b).

125 Mr Stratton suggested that, based upon the results of the 199 cases randomly selected and placed before the court, it might be the fact that in at least half of the cases where orders under s 10 are made, the offender has attended and completed a relevant program. He also submits that this might explain the rise in the use of the section in recent years. If these two propositions are correct, then it follows, in my view, that a large number of the orders made under s 10 for high range PCA offences are founded upon an irrelevant consideration.

(iv) the disqualification period.

126 It should be noted that the automatic period of disqualification prescribed for a particular offence is not to be considered as if it were the maximum period of disqualification for that offence. The automatic period is merely the default period that operates on conviction unless some other order is made: that is in the usual case in which there is no need to vary the period one way or the other. There must be cases where the automatic disqualification period should be increased, although the available material does not indicate that this is so. There is some suggestion that increased periods are occasionally ordered but only where the offender receives a gaol sentence and the court considers that there should be some period of disqualification after release.

127 It appears to me that courts are too ready to reduce the automatic period and to choose the minimum disqualification period as the alternative. The failure of the courts to give sufficient regard to the automatic disqualification periods prescribed by Parliament is indicated by a finding that in only 11 per cent of cases was the offender disqualified for as long as 2 years and 14 per cent for as long as 3 years: MacKinnell, Sentencing Drink-Driving Offenders, Sentencing Trends, 19 November 2003. There should be sufficient and appropriate reasons for reducing the automatic period that are capable of being expressed by the court before such a step is taken. Those reasons should take into account the scheme of the Act and the significance of Parliament’s view that the automatic period is the period of disqualification to apply in the usual case.

128 This means that there will almost invariably be hardship, or at least inconvenience, caused to the offender deprived of his or her licence for such a lengthy period as Parliament has prescribed. This is particularly so in country areas and other places where public transport is rare or non-existent. Of course licence disqualification can have a severe impact upon the ability of a person to obtain or maintain employment. But the focus is here upon a criminal offence that Parliament considers to be one of the most serious summary offences. It is one, as I have already observed, that cannot be characterised as impulsive or arising as a result of a momentary aberration and where the offender must have been conscious that he or she was at least running the risk of committing the offence before getting into the motor vehicle. Had the conduct resulted in death or injury to some other person, the issue would be one of the length of the gaol sentence not the length of the disqualification period.

129 There is evidence to support the propositions that, firstly, there is no relationship between the length of the disqualification period and the probability of reconviction and, secondly, that very long periods of disqualification rather tempt the offender to drive contrary to the order than to deter the driver from re-offending: Homel, op cit (1987) at 232-236. But, as I have already indicated, this is a matter for Parliament and not the courts.

(v) orders under s 10 of the Sentencing Act

130 I accept that s 10 must apply to the offence of high range PCA and there may be cases where, notwithstanding the objective seriousness of the offence committed, it is appropriate in all the circumstances to dismiss the charge or to discharge the offender. But those cases must in my view be rare. They must be exceedingly rare for a second or subsequent offence. I accept that the court must concentrate on the particular conduct of the offender and the circumstances of offending rather than on the nature of the offence in determining whether the particular offence before the court is trivial: Walder v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 577. I am prepared to acknowledge the possibility that there may be cases where the offending is technical (rather than trivial), there being no real risk of damage or injury arising from the driving, so that the highly exceptional course in making an order under the section would be justified.

131 The court must also have regard to all of the criteria in s 10(3) in determining whether a dismissal of the offence or a discharge of the offender is appropriate: R v Paris [2001] NSWCCA 83. I recognise that there can be cases where there were such extenuating circumstances that a dismissal or a discharge under s 10 might be justified. It is impossible and inappropriate to delineate the situations in which an order under s 10 might be warranted notwithstanding the objective seriousness of the offence. One example might be where the driver becomes compelled by an urgent and unforseen circumstance to drive a motor vehicle, say, to take a person to hospital.

132 But where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of the offence committed. To recognise this fact is not to impose an undue restriction upon the section or to change the criteria for its operation on an offence by offence basis. Such an approach would clearly be erroneous. It is simply to apply normal sentencing principles to the offence under consideration. However, just as the discretion inherent in the section cannot be limited by the application of some overreaching general principle, neither can it be broadened simply because a court does not agree with Parliament’s view of the seriousness of a particular offence or believes that in general the penalties imposed under the scheme of the legislation are unduly harsh or unpalatable.

133 Yet there appears to me to be both generally and in some particular courts an over-utilisation of the section in dealing with high range PCA offences, presumably in order to avoid the statutory consequences of a conviction. In my opinion, in the overwhelming majority of the 199 cases in the qualitative study where the offence was dismissed or the offender was discharged, there was no proper basis for the application of the section. There was generally nothing about the offence or the offender that justified the magistrate in avoiding a conviction. There seems to have been too much regard paid to the subjective features of the offender and too little to the seriousness of the offence. In one case an offender with a reading of 0.19 had the benefit of the application of the section apparently only because of his prior good standing in the community.

134 Mr Stratton argues that it is open to the legislature to limit the use of the section for any offence if it believes that it is being misused and that this Court should not seek to do that which Parliament has not done. But I do not understand why the legislature should be driven to take a course which is fraught with the consequential risk of injustice, simply because the courts, or some of them, appear to be inappropriately using the section to avoid the penalties imposed by Parliament for a particular offence. The fact that the legislature has limited the use to be made of the section in relation to particular offenders should be seen only as further proof, if any is needed, of the seriousness with which the legislature views the offence in general.

135 Moffat Weatherburn and Fitzgerald, op cit, concluded that the likely explanation for the variation in the rate of the use made of s 10 for PCA offences in the Local Courts was the differing assessment made of that type of offence by magistrates and/or their varying views about the fairness of mandatory disqualification periods. In my opinion it is preferable that the courts themselves, and not Parliament, attempt to address such an inconsistency in approach and a guideline judgment is an appropriate method whereby such inconsistency can be avoided.

(vi) the ordinary case

136 In Whyte this Court was able to distil features common to offences under s 52A so as to describe a typical case. This was for the purposes of indicating the range of sentences that such a case might attract. It also helped a sentencing court to identify factors that might either aggravate or mitigate the seriousness of the offence from the typical case and, therefore, indicate whether the sentence to be imposed should be more or less severe than a sentence falling within the range applying to the typical case. The Court was able to take such a course because of cases that had come before it on appeal.

137 Such a course cannot be adopted in the case of high range PCA simply because the Court lacks the experience to identify a typical case and the appropriate range of penalties for such a case. However, the Court can in my view construct an ordinary case of high range PCA to use as a model against which a sentencing court can determine whether the case before it is similar or more or less serious. It can undertake this task because of the data arising from the 199 random cases examined by the Attorney General’s Department and because of the nature of the offence with which the guideline is concerned.

(a) the driving

138 So far as the elements of the offence of high range PCA are concerned there is little scope for variation in the objective seriousness of the offence. It can only be committed in one of the three ways identified in s 9(4): driving a motor vehicle; being in the driver’s seat and attempting to put the vehicle in motion; or supervising a learner driver. The latter two instances of the offence appear to be rare and can be disregarded as atypical. The ordinary offence, therefore, will arise when a person drives the vehicle in a situation in which there is a real risk to other persons or property. This will of course be where the vehicle is being driven along a public street under unexceptional traffic conditions, very often in the night or very early morning. Clearly there will be variations because of the actual traffic conditions at the time that either increase or decrease the likelihood of risk of injury to others and, therefore, might raise or lower the seriousness of the offence.

139 I have already indicated that there can be factors concerned with the driving that will generally increase the moral culpability of the driver and, therefore, the seriousness of the offence in accordance with Whyte. These include the distance travelled, or that was to be travelled, before detection. I have already expressed my view that the manner of detection of the offender is irrelevant as a matter of mitigation but it may aggravate the offence.

140 The reasons for the driving may be relevant and in some very exceptional cases, as I have already noted, may give rise to extenuating circumstances that powerfully impact upon the sentencing of the offender. But in the ordinary case the offender will have simply chosen to drive for one or more of three reasons: firstly to avoid being inconvenienced by, for example, having to take public transport, to wait for a taxi, or to arrange for some other person to pick him or her up from where the alcohol was consumed; or, secondly, because the offender maintains that he or she was not aware of the amount of alcohol consumed or its effect upon the offender’s driving and thought that it was safe to drive; or thirdly, was prepared to run the risk of being detected.

141 It does not seem to me to be a highly relevant factor that the offender may have been mistaken about the nature of the alcohol being consumed, for example that the drinks were doubles rather than singles: Hills v Warner (1990) 10 MVR 479 cf Brain v Bentley (1991) 15 MVR 537.

(b) the drinking

142 Generally speaking the reason for the consumption of alcohol will be irrelevant. The offence is not concerned with punishing the drinking of alcohol but with the driving thereafter. Therefore, it is of no significance that the alcohol was consumed at a wake or a celebration, or because the person was abusing alcohol either generally or on the particular occasion because of some emotional or psychiatric condition. Yet in a number of the 199 random cases, the reason for the consumption of alcohol seems to have been a factor in the magistrate making an order under s 10. For example, in one case the magistrate apparently took into account that the offender had consumed alcohol after being with her brother who was dying of cancer. As much as this fact might give rise to feelings of sympathy for the offender, it had nothing to do with the culpability involved in driving at high range PCA. It may have simply indicated that the offence was unlikely to occur in the future so that specific deterrence was not a consideration.

(c) the offender

143 Clearly the subjective features of the offender are relevant to a determination of the penalty for any offence, and high range PCA is no exception. But general sentencing principles require that the penalty reflect the object seriousness of the offence and that too much allowance cannot be given to subjective features particularly where deterrence and denunciation are important factors in sentencing. Simply stated, there are offences that are so serious that a penalty of some form must generally be imposed regardless of the personal circumstances of the offender. In my view high range PCA is such an offence.

144 Sentencing generally is concerned with punishment for the offence committed although the safety of the community may indicate that some element of protection from future conduct is appropriate. Concerns at future offending normally indicate that an element of specific deterrence is required or some step needs to be taken by way of punishment, proportional to the criminality of the offence committed, to prevent further offending. The fact that a person is unlikely to offend in the future does not generally mitigate the criminality of the offence. This is particularly so where, as with high range PCA, the offence is not impulsive nor the result of a momentary aberration. If the court were satisfied that the offender is unlikely to re-offend, this would tend to indicate that a good behaviour bond is an inappropriate sentencing disposition because there is no need to attempt to control the offender’s future conduct.

(d) loss of licence

145 It has already been acknowledged that the disqualification of a person from driving may have a very significant impact upon the offender’s ability to obtain or retain employment or may interfere with the offender’s capacity to function in the community. Of course the impact will differ from person to person and from locality to locality within the State. However, if a conviction is warranted because of the seriousness of the offence, the court can rarely refuse to take that course simply because of its impact upon the offender’s licence. In my view high range PCA is such a serious offence that a conviction cannot be avoided in the ordinary case simply to preserve the offender’s ability to hold a driver’s licence. The effect of loss of licence upon the particular offender may be so unusually severe that it might warrant a reduction in the disqualification period.

The guideline

146 In my view the following guideline should be made:

(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 Sentencing Act will rarely be appropriate;

(iii) 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 Sentencing Act will rarely be appropriate;

(ii) an order under s 10 of the Sentencing 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 Procedure) 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 imprisonment 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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