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Traffic Law » Drink Driving » The Drink Driving Guideline Judgment

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The Drink Driving Guideline Judgment

To act as a guide to lower courts when sentencing offenders charged with high-range PCA, the NSW Supreme Court set out a Guideline Judgment.

Although the Guideline Judgment is in relation to offenders found guilty of high-range PCA, courts often refer to the principles and comments made by the judges in the Guideline Judgment when sentencing offenders charged with low range or mid-range PCA.

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Aggravating Factors

In the Guideline Judgment, the Supreme Court said that the following factors aggravate the seriousness of the offence:

  • The degree of intoxication
  • Erratic or aggressive driving
  • Competitive driving or showing off
  • Length of the journey at which others are exposed to risk
  • The number of persons put at risk by the driving (for example, passengers in the vehicle).

The Supreme Court also made the following observations:

  • Prior good character: Of less relevance because persons of otherwise good character often commit these offences.
  • Nature of the driving: Once the vehicle is in motion the offence is more serious because of the risk of death or injury to others is increased.
  • Involvement in a driver education program: This will have little impact on the appropriate sentence to be imposed with high range PCA, except in relation to the length of disqualification or the amount of a fine. The Court said that offence is “so serious and the criminality…so high” that the participation in a program cannot be seen as an alternative to punishment. It will not warrant the making of a section 10 simply because the offender has participated in such a program.
  • The period of disqualification: The automatic period is not the maximum, but merely a default period that operates on conviction unless some other order is made. The disqualification period can be longer. There should be “sufficient and appropriate reasons for reducing the automatic period”.
  • Hardship: There will almost invariably be hardship, or at least inconvenience, caused by disqualification for such a lengthy period. The focus is upon a criminal offence that Parliament considers to be one of the most serious summary offences.
  • Orders under s.10: For high-range offences, the cases where, notwithstanding the objective seriousness of the offences, it is appropriate in all the circumstances to deal with a matter under section10 will be rare, and exceedingly rare for a second or subsequent offence. One example may be where a driver becomes compelled by an urgent and unforseen circumstance to drive a motor vehicle, say, to take a person to hospital.

Importantly, the Supreme Court said an ordinary offender for the offence of high-range PCA is where:

  •  the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol
  •  the offender was detected by a random breath test
  •  the offender has prior good character
  •  the offender has nil, or a minor, traffic record
  •  the offender’s licence was suspended on detection
  •  the offender pleaded guilty
  •  there is little or no risk of re-offending
  •  the offender would be significantly inconvenienced by loss of licence

The Supreme Court then said that when sentencing an ordinary offender for high-range PCA:

  • an order under SECTION 10 will rarely be appropriate
  • a conviction cannot be avoided only because the offender has attended, or will attend, a driver’s education or awareness course
  •  the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification
  • a good reason to reduce the automatic period of disqualification may include:
    • the nature of the offender’s employment
    • the absence of any viable alternative transport
    • sickness or infirmity of the offender or another person.
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