The high range drink driving guideline judgment (‘the Guideline’) was developed in response to an application by the NSW Attorney General to address insufficient and ineffective sentencing outcomes.
In the years leading up to the Guideline, high range drink driving was one of the most common offences to be sentenced in the Local Court and although the maximum penalties were quite high, they were rarely used.
The NSW Attorney General submitted that high range drink driving was an “objectively serious summary offence which puts the lives of the offender and others in danger”. The approach to sentencing leading up to the Guideline was declared too lenient and was not working to discourage people from committing the offence.
Therefore, it was suggested that a ‘guideline’ was needed to set out rules to enforce a stricter, more consistent sentencing regime.
Harsher penalties that have a bigger impact on the lives of offenders are designed to deter potential wrongdoers that driving after consuming a lot of alcohol is dangerous and not to be tolerated. While concern for public and personal safety should be enough to convince people not to drive, the prospect of large fines, criminal conviction and possible prison time further works to convince people that high range drink driving is just not worth the risk.
The “ordinary case”:
The Guideline sets out the common characteristics of an ‘average’ high range drink driving offence – it refers to this as the “ordinary case”. In individual sentence hearings, magistrates can use this description of the “ordinary case” to place the matter currently before them on a scale from less serious → average → more serious offending conduct. They can then adjust the scale and type of penalty accordingly.
The “ordinary case” includes:
- A person who drove to avoid “personal inconvenience” or because they believed they weren’t too impaired by alcohol.
- They were detected by RBT (as opposed to police arriving because of a collision or road incident).
- The offender had prior good character, no criminal record and a minor traffic record.
- The offender pleaded guilty straight away and showed no risk of re-offending.
- Loss of licence would be a significant inconvenience for the offender.
An “aggravated” case:
The Guideline also sets out a list of common factors that would “aggravate” or make the offending conduct more serious, warranting a higher penalty. Generally, there is a focus on the degree of danger the offender and the public were placed in by the offending conduct. These factors make an offender more “morally culpable” – which means they have a higher degree of blame or liability placed on them for their actions.
Aggravating factors in a high range drink driving incident can include:
- Driving with other passengers in the car
- Being involved in an actual collision with people or property
- Driving in an erratic, aggressive or dangerous way
- Driving for an extended period of time
- The degree of intoxication (i.e. how far past the 0.15 threshold are they?)
- The number of people actually put at risk by the driving (e.g. was someone driving in an area and at a time when there were lots of other road users and pedestrians present?)
Having a poor traffic record and in particular a history of drink driving offences will also increase the severity of the penalty. This is because the court hopes to ‘deter’ someone from repeat offending by imposing increasingly harsh penalties on them. In cases where someone has multiple high range drink driving convictions, the Guideline states that prison time is the most appropriate outcome.
The Guideline lists rules that should be followed when deciding a sentence for those cases in the range of the “ordinary case”.
For a first offence high range drink driving conviction:
- A ‘section 10’ (or non-conviction order) will rarely be appropriate
- Attending a driving re-education course or intervention program is not a valid reason to get a non-conviction.
- The automatic disqualification period should be imposed unless there is a good reason to reduce it (reasons can involve employment, medical issues or lack of other viable transport in the area).
- A fine, or combination of a fine and a community release order (which generally involves a good behaviour bond) is likely to be the lowest form of penalty received for this offence.
For a second or subsequent high range drink driving conviction:
- A section 10 (non-conviction order) would be almost impossible to receive.
- A community release order would also be rarely appropriate in the circumstances.
- Where the prior offence was also a high range drink driving charge, anything less than a community service order would be inappropriate.
The Guideline has further rules for offences that contain circumstances of aggravation:
- Non-conviction orders or community release orders would be exceedingly inappropriate in almost all cases.
- When it is a second or subsequent offence or where there are multiple, “significant” aggravating factors, the most appropriate sentence is a term of imprisonment – either full time or served via an intensive correction order.
- Where it is both a subsequent offence and there were significant aggravating factors, the most appropriate sentence is a full-time term of imprisonment.
Why are non-conviction orders rarely appropriate?
The Guideline was partly created in order to address an ‘over-use’ of non-conviction orders for high range drink driving offences. The NSW Attorney General raised concerns that dealing with a large amount of these offences by way of non-conviction trivialised the offence and did not serve as strong enough deterrence, both for the specific offender and for the community at large.
The maximum penalty for high range drink driving places it on the same level as negligent driving occasioning death. This is an indication of how serious a breach of public safety the legislation considers high range drink driving to be.
The Guideline explicitly states that “there are offences that are so serious that a penalty of some form must be imposed regardless of the personal circumstances of the offender. In my view high range PCA is such an offence”.
While proof of prior good character, evidence of rehabilitation (like attending a traffic offenders intervention program), expressions of strong remorse, and taking responsibility for behaviour will help a person’s sentencing outcomes, they can rarely, if ever, be used to get a non-conviction outcome.
However, the Guideline allows for a small range of scenarios where a non-conviction order may be appropriate. These include:
- When the offending is largely technical, and no real danger arises from the act of driving.
- When there are exceptional “extenuating circumstances” that justify the need to drive while significantly intoxicated (an example of having to drive someone in need of immediate medical attention is given).
The situations in which the court finds appropriate circumstances have proven to be exceedingly rare. In the period September 2018 – September 2021 of recorded cases the court gave 3 section 10 non-convictions out of a total 7 255 cases.