Gardner v R - [2004] NSWCCA 303 - NSWCCA 2004 case summary — Zoe

NSWNSWCCA

Gardner v R

[2004] NSWCCA 303

Court of Criminal Appeal (NSW)|2004-09-08|Before: Spigelman CJ, Wood CJ, Grove J, Dunford J, Howie J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2004-09-08

Before

Spigelman CJ, Wood CJ, Grove J, Dunford J, Howie J

Source

Original judgment source is linked above.

Judgment (79 paragraphs)

[1]

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.

[2]

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.

[14]

(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:

[28]

(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.

[44]

(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.

[45]

(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.

[47]

(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:

[49]

…………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.

[50]

(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).

[51]

(c) Inconsistency in sentences imposed 80 The Attorney General submits, relying upon statements of the Chief Justice in R v Jurisic (1998) 45 NSWLR 209 at 221 and R v Henry (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.

[52]

(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.

[54]

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) 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.

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(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.

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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

[58]

(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) 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.

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(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.

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(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.

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(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) 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.

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(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.

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ANNEXURE History of PCA Legislation YEAR ACT OFFENCE PENALTY LICENCE DISQUALIFICATION 1968 s 4E introduced into Motor Traffic Act 1909, creating new offence Drink driving with a higher than the prescribed range of alcohol (0.08g or more of alcohol in 100ml of blood) Maximum penalty of $400 and/or 6 months imprisonment Court empowered to impose any period of licence disqualification it thinks fit: s 10(1)(b) Traffic Act 1980 Traffic Act amended to divide offences into "lower" and "higher" categories "Lower prescribed range" (concentration of 0.05g or more but less than 0.08g of alcohol in 100ml of blood) First offence: First offence: Maximum penalty of $400 Automatic period of licence disqualification was introduced, being 6 months (with discretion to eliminate altogether) Each subsequent offence: Each subsequent offence: Maximum penalty of $1000 Automatic period of licence disqualification was introduced, being 12 months (which could be shortened to not less than 3 months) "Higher prescribed range" (concentration of 0.08g or more of alcohol in 100ml of blood) First offence: First offence: Maximum penalty of $1000 and/or 6 months imprisonment Automatic licence disqualification of 12 months (which could be shortened to not less than 3 months) Each subsequent offence: Each subsequent offence: Maximum penalty of $1000 and/or 6 months imprisonment Automatic licence disqualification of 3 years (which could be shortened to not less than 6 months) 1982 Traffic Act amended to create three categories of offences Low range (0.05g or more but less than 0.08g of alcohol per 100ml of blood) First offence: First offence: Maximum penalty of $550 Automatic licence disqualification of 6 months (with discretion to eliminate altogether) Each subsequent offence: Each subsequent offence: Maximum penalty of $1,000 Automatic licence disqualification for 12 months (which could be shortened to not less than 6 months) Mid range (0.08g or more but less than 0.15g of alcohol per 100ml of blood) First offence: First offence: Maximum penalty of $1,000 and/or 6 months imprisonment Automatic licence disqualification of 12 months (which could be shortened to not less than 3 months) Each subsequent offence: Each subsequent offence: Maximum penalty of $1,000 and/or 6 months imprisonment Automatic licence disqualification of 3 years (which could be shortened to not less than 6 months) High range (0.15g or more of alcohol per 100ml of blood) First offence: First offence: Maximum penalty of $1,500 and/or 9 months imprisonment Automatic licence disqualification of 3 years (which could be shortened to not less than 6 months) Each subsequent offence: Automatic licence disqualification of 5 years (which could be shortened to not less than 12 months) Each subsequent offence: Maximum penalty of $2,000 and/or 12 months imprisonment

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Mid range (0.08g or more but less than 0.15g of alcohol per 100ml of blood) First offence: First offence: Maximum penalty of $2,200 and/or 9 months imprisonment Automatic licence disqualification of 12 months (with discretion to increase or shorten to not less than 6 months) Each subsequent offence: Each subsequent offence: Maximum penalty of $3,300 and/or 12 months imprisonment Automatic licence disqualification of 3 years (with discretion to increase or shorten to not less than 12 months) High range (0.15g or more of alcohol per 100ml of blood) First offence: First offence: Maximum penalty of $3,300 and/or 18 months imprisonment Automatic licence disqualification of 3 years (with discretion to increase or shorten to not less than 12 months) Each subsequent offence: Each subsequent offence: Maximum penalty of $5,500 and/or 2 years imprisonment Automatic licence disqualification of 5 years (with discretion to increase or shorten to not less than 2 years) 1999 Road Transport (Safety and Traffic Management) Act 1999 enacted All offences remain the same, but now to be found in s 9 of the RT (STM) Act All penalties remain the same, but now to be found in s 9 of the RT (STM) Act Road Transport (General) Act 1999 enacted Licence disqualification periods remain the same, but now to be found in s 25 of the RT (G) Act 2002 Road Transport (General) Act amended s 25C inserted - allows court to order that disqualification be suspended if person participates in interlock program 2004 RT (STM) Act amended to introduce "novice range". All other offences with their penalties and disqualification periods are unchanged Novice range (0g or more but less than 0.02g of alcohol per 100ml of blood) First offence: First offence: Maximum penalty of $1,100 Automatic licence disqualification of 6 months (with discretion to shorten to not less than 3 months) Each subsequent offence: Each subsequent offence: Maximum penalty of $2,000 Automatic licence disqualification for 12 months (with discretion to increase or shorten to not less than 6 months)

Parties

Applicant/Plaintiff:

Gardner

Respondent/Defendant:

Cases Cited (21)

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 HEARING DATE(S) : 05/05/2004 JUDGMENT DATE : 8 September 2004

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. Crimes (Sentencing Procedure) Act 1999 Road Transport (Safety and Traffic Management) Act 1999 Motor Traffic Act 1909 Road Transport (Driver Licensing) Act 1998 LEGISLATION CITED : 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 Gardner v R [2003] NSWCCA 199 Re Stubbs (1947) 47 SR(NSW) 329 Kinney v Green (1992) 29 NSWLR 137 Ormes v Jones (1994) 20 MVR 76 R v Way [2004] NSWCCA 131 R v Wickham [2004] NSWCCA 193 Veen v The Queen (No. 2) (1988) 164 CLR 465 R v MA [2004] NSWCCA 92 Attorney General's Application (No. 2 of 2002) [2002] NSWCCA 515 Re Attorney-General's Application [No. 1] under s 26 of the Criminal Procedure Act 1999 (1999) 48 NSWLR 327 Cobiac v Liddy (1969) 119 CLR 257 R v Finnie (No. 2) [2003] NSWCCA 150 R v Jurisic (1998) 45 NSWLR 209 R v Henry (1999) 46 NSWLR 346 CASES CITED : R v Scott [1999] NSWCCA 233 Briant v Bessell (1994) 74 A Crim R 204 R v Whyte (2002) 55 NSWLR 252 H (1980) 3 A Crim R 53 Oliver (1980) 7 A Crim R 174 Rich & Silbermann v The Australian Securities and Investments Commissions [2003] NSWCA 342 R v Lancaster (1991) 58 A Crim R 290 R v Rhodes (NSWCCA, 20 November 1996, unreported) R v Daetz (2003) 139 A Crim R 398 R v McIntyre (1988) 38 A Crim R 135 R v Musumeci (NSWCCA, 30 October 1997, unreported) Walder v Hensler (1987) 163 CLR 561 R v Paris [2001] NSWCCA 83 Hills v Warner (1990) 10 MVR 479 Brain v Bentley (1991) 15 MVR 537 The Attorney General for NSW PARTIES : Director of Public Prosecutions (NSW0 Senior Public Defender FILE NUMBER(S) : CCA AG003/02 R. Cogswell SC with N. Sharp and J. Quilter - Attorney General COUNSEL : J. Stratton SC with D. Yehia and P. Young - Senior Public Defender G. Smith SC - Director of Public Prosecutions I.V. Knight - Crown Solicitor

(1992) 29 NSWLR 137

(1994) 20 MVR 76

(1988) 164 CLR 465

(1999) 48 NSWLR 327

(1969) 119 CLR 257

(1998) 45 NSWLR 209

(1999) 46 NSWLR 346

(2002) 55 NSWLR 252

(1987) 163 CLR 561

(1990) 10 MVR 479

(1991) 15 MVR 537

[2004] NSWCCA 131