Call for your free consultation (02) 9025 9888

GUIDELINE JUDGEMENTS: THE SERVANT NOT THE MASTER

“What will my likely sentence be?” It’s a hot question and rightfully so. Anyone pleading guilty to a charge will want to know where they stand – a percentage...

Charlotte Wheatley

“What will my likely sentence be?” It’s a hot question and rightfully so. Anyone pleading guilty to a charge will want to know where they stand – a percentage of their odds, a worst case scenario and what they might expect. It’s at this point that Guideline Judgements offer a tempting insight into where any given case might stand.

Guideline Judgements map out key points of consideration, how much weight certain factors should be given and the range of sentencing outcomes they lead to. The objectives of these guidelines are for decision makers to create consistency and transparency. But when it comes to sentencing, it’s clear the courts have wide powers to exercise their discretion. This is further supported by the recent decision in Murray Justin James v R [2013] NSWCCA 12 where Guideline Judgements have come under re-examination.

In this judgement, guidelines have been put back in their place as a servant not a master. Guidelines act as sign posts that can be followed, but when they point to different directions, they should not be automatically obeyed. Decision makers have been cautioned from indulging in formulaic applications and have instead been encouraged to rely on instinct and intuition when balancing the complexity of a case.

Nonetheless, Guideline Judgements do maintain an important place. They act as helpful check points but ones that should be applied with mindful fluidity.

GUIDELINE JUDGEMENT FOR HIGH RANGE PCA

In 2004 the NSW Court of Criminal Appeal delivered a Guideline Judgement for High Range PCA Matters.

THE ORDINARY CASE

The Guideline paints a picture of what an ordinary case of High Range PCA involves. It is the standard set of facts a Magistrate might expect to see as common place. Therefore these factors are given less weight and do not stand out as particularly noteworthy or exemplary.

The ordinary case is one where a driver:

–          Drove to avoid inconvenience

–          Didn’t know they were drunk

–          Were detected by random breath test

–          Has prior good character

–          Has nil, or a minor traffic record

–          Had their licence suspended on detection

–          Pleads guilty

–          Has little or no risk of reoffending

–          Will be significantly inconvenienced by the loss of their licence

The likely sentence:

–          A section 10 will rarely be appropriate

–          Attending a driver education or awareness courses will not mean a conviction will be avoided.

–          The automatic disqualification period applies, unless;

  • There are strong employment reasons for needing a licence.
  • There is no viable or alternative means of transport.
  • The driver or a family member is sick and reliant on using a car.

An ordinary case plus a prior conviction:

If a driver has a previous High Range PCA charge the sentence will be more severe. In this case:

–          A section 9 will rarely be appropriate, and a section 10 even more so.

–          The sentence should be more severe than just a community service order.

THE MORE SERIOUS CASE

The Guideline Judgement provides a spectrum that moves beyond the ordinary case. On the other end of the scale lies the more serious case. The Guideline sets out situations where a case of High Range PCA should be considered particularly serious.

There is more moral culpability if:

–          The level of intoxication in more than 0.15

–          There was erratic or aggressive driving such as:

  • Drag racing or showing off
  • It lead to a crash
  • The distance of the journey at which people were at risk was lengthy
  • There were a high number of people actually put at risk

In the more serious case, the likely sentence will be:

–          Neither a section 9 or section 10.

–          When a number of factors of aggravation are present to a significant degree, sentence should be no less severe than imprisonment.

A more serious cases plus a prior conviction:

When it is a more serious case and the driver has a previous high range PCA before:

–          Sentence should be at least imprisonment

–          Furthermore, if it’s more serious on a number of aggravating factors, the sentence should be at least as severe as full time imprisonment.

For more information about drink driving.  If you have recently been charged with an offence, please contact one of our lawyers now for a FREE consultation on 9025 9888.