NSW Police v Pipe

Subjective factors

1. Mr Pipe is 48 years of age. He has nothing on his criminal record. He was first licenced in May 1984. He has one entry in 2008 for camera detected speeding for which he received a caution and one entry for disobeying traffic lights (camera detected) in 2011. I am satisfied that he was previously a person of good character and that he has an excellent driving history.
2. The Court has the benefit of a Pre-Sentence Report (PSR) as well as a report from Dr Glen Smith, a Consultant Psychiatrist.
3. Mr Pipe is currently in a de facto relationship. He and his partner have a five year old son. He had a prior relationship of some length which ended acrimoniously in 2009. His three children of that relationship live with their mother but he sees them regularly. It appears he has been abusing alcohol for at least four years, but probably since the breakdown of his marriage in 2009 he has been drinking to excess.
4. Until April 2014 he had been in regular full-time employment. He left work to address both his alcohol misuse and personal problems. Although he is now seeking work, he remains unemployed. Throughout 2014 his problems with alcohol increased and he began a cycle of binge drinking that eventually resulted in the subject offences. After the second offence he entered into residential rehabilitation at Northside West Clinic from 25 March until 13 April 2015. He continues attendance as an outpatient weekly and according to the PSR is progressing well. He attends Alcoholics Anonymous (AA) twice a week. He continues to see Dr Smith each fortnight.
5. Dr Smith began treating Mr Pipe at the Northside West Clinic. He saw him eight times as an inpatient and continues to monitor his rehabilitation both at the Clinic and in his rooms.
6. His description of Mr Pipe's drinking and the effect of alcohol on him is that of a classic alcoholic. The breakdown of his prior relationship and work stresses saw Mr Pipe increase his alcohol consumption over a period of time until he was drinking between two and three bottles of wine a day. He developed a marked tolerance requiring more alcohol to achieve the effect he was seeking. Withdrawal symptoms including anxiety, tremors, agitation and cravings when not consuming alcohol, caused him to commence drinking early in the morning in order to ease the symptoms. Attempts at abstinence over the past two years failed. He spent five days in Katoomba Hospital in December 2014 but upon release immediately lapsed into alcohol abuse. He told Dr Smith he frequently had blackouts where he could not remember events due to alcohol consumption. Dr Smith diagnosed Mr Pipe with a moderate, recurrent, major depressive disorder and severe alcohol use disorder.
7. Perhaps not surprisingly, Mr Pipe does not have a good recollection of his offending behaviour. A memory blackout would normally occur when a person returns readings as high as those recorded by Mr Pipe. The Police descriptions of him at the time of both arrests detail someone so intoxicated as to be unable to communicate clearly and in one case unable to stand or walk unassisted. He accepts his guilt and appears to be genuinely remorseful. It is fair to say that his rehabilitation is going very well and his prognosis is good.

The Guideline Judgment

1. All NSW Courts are bound by the guideline judgment on High Range PCA offences, Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303. The guideline is set out in paragraph 146: In my view the following guideline should be made: (1) An ordinary case of the offence of high range PCA is one where: (i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol; (ii) the offender was detected by a random breath test; (iii) the offender has prior good character; (iv) the offender has nil, or a minor, traffic record; (v) the offender's licence was suspended on detection; (vi) the offender pleaded guilty; (vii) there is little or no risk of re-offending; (viii) the offender would be significantly inconvenienced by loss of licence. (2) In an ordinary case of an offence of high range PCA: (i) an order under s 10 of the Sentencing Act will rarely be appropriate; (ii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver's education or awareness course; (iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification: (iv) a good reason under (iii) may include: (a) the nature of the offender's employment; (b) the absence of any viable alternative transport; (c) sickness or infirmity of the offender or another person. (3) In an ordinary case of a second or subsequent high range PCA offence: (i) an order under s 9 of the Sentencing Act will rarely be appropriate; (ii) an order under s 10 of the Sentencing Act would very rarely be appropriate; (iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate. (4) The moral culpability of a high range PCA offender is increased by: (i) the degree of intoxication above 0.15; (ii) erratic or aggressive driving; (iii) a collision between the vehicle and any other object; (iv) competitive driving or showing off; (v) the length of the journey at which others are exposed to risk; (vi) the number of persons actually put at risk by the driving. (5) In a case where the moral culpability of a high range PCA offender is increased: (i) an order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate; (ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate. (6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased: (i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate; (ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.
2. Mr Pipe was prior to these offences a person of good character. The guideline judgment deals with the issue of general deterrence and prior good character in these types of cases. The Court said: 118 This Court has frequently observed that the fact that the driver convicted of an offence under s 52A is of otherwise good character is of less relevance than it might be in sentencing for other types of offences: R v McIntyre (1988) 38 A Crim R 135 at 139. This is because of the prevalence of the commission of the offence by persons of good character and the importance of general deterrence: R v Musumeci (NSWCCA, 30 October 1997, unreported). 119 This observation applies equally, in my view, to sentencing for PCA offences in general and high range PCA offences in particular. This is because it can be inferred that, just as persons of otherwise good character commit the offence of dangerous driving by having the prescribed concentration of alcohol in their blood, so they commit such an offence when it does not result in death or serious injury. Of 5,700 persons convicted of the offence in the five years to 2001, 77 per cent had no prior conviction for a PCA offence: Saffron and Chilvers, at 2.
3. Howie J also made the following observations about the seriousness of a second offence and the fact that these are conduct offences: 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.

Submissions on sentence

1. Mr Blunt, on behalf of the offender, conceded that imprisonment of some type was an appropriate penalty. His ultimate submission was that Mr Pipe should be dealt with by way of an Intensive Correction Order (ICO). He submitted that Mr Pipe was contrite, had undergone initial and apparently positive rehabilitation, was a person of prior good character, had an excellent driving history, was already assessed as suitable for a Community Service Order and was assessed as a low to moderate risk of re-offending. Mr Blunt further submitted that an ICO is a substantial punishment which may also reflect a significant degree of leniency. See R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [108] and Whelan, Heath Andrew v R [2012] NSWCCA 147 at [120].

Consideration of an Intensive Correction Order

1. Section 67 of the Crimes (Sentencing Procedure) Act 1999 sets out the suitability of an offender for an Intensive Correction Order. 67 Suitability of offender for intensive correction order (1) An intensive correction order may not be made with respect to an offender's sentence of imprisonment unless the court is satisfied: (a) that the offender is of or above the age of 18 years, and (b) that the offender is a suitable person to serve the sentence by way of intensive correction in the community, and (c) that it is appropriate in all of the circumstances that the sentence be served by way of intensive correction in the community, and (d) that the offender has signed an undertaking to comply with the offender's obligations under the intensive correction order. (2) In deciding whether or not to make an intensive correction order, the court is to have regard to: (a) the contents of the assessment report on the offender (prepared under section 70), and (b) such evidence from the Commissioner of Corrective Services as the court considers necessary for the purpose of deciding whether to make such an order. (3) A court may, for any reason it considers sufficient, decline to make an intensive correction order despite the contents of the assessment report. (4) A court may make an intensive correction order with respect to an offender's sentence of imprisonment only if the assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve the sentence by way of intensive correction in the community. (5) If a court declines to make an intensive correction order with respect to an offender's sentence of imprisonment despite an assessment report that states that the offender is a suitable person to serve the sentence by way of intensive correction in the community, the court must indicate to the offender, and make a record of, its reasons for doing so. (6) A sentence of imprisonment is not invalidated by a failure to comply with subsection (5).
2. Subject to an assessment report I am satisfied that Mr Pipe is otherwise eligible to serve a sentence by way of an ICO. Although an ICO was not an available penalty when the guideline judgment was handed down there is no doubt that it is a custodial penalty (s 7, Crimes (Sentencing Procedure) Act). The purposes of an ICO were made clear by the Attorney General in the second reading speech where he said an ICO is "designed to reduce an offender's risk of re-offending through the provision of intensive rehabilitation and supervision in the community". Further he said: "Essentially, an intensive correction order is a sentence of imprisonment of up to two years that is ordered to be served in the community, where offenders can be subject to a range of stringent conditions including 24 hour monitoring, regular community work and a combination of tailored educational, rehabilitative and other related activities."
3. Nevertheless no sentence can be imposed that does not meet the requirements of s 3A, Crimes (Sentencing Procedure) Act: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
4. Submissions on behalf of Mr Pipe emphasised that his rehabilitation may falter and that his current treatment regime would be limited by a sentence of full-time custody. In R v Pogson, McClelland CJ at CL and Johnson J dealt with the meaning of rehabilitation in the sentencing process. Their Honours said at [115]-[117]: 115 It will be observed that s.3A(d) provides for a purpose of sentencing being to promote the "rehabilitation of the offender". The word "rehabilitation" is not defined in the Sentencing Procedure Act. 116 The term "rehabilitation" is used, as well, in s.16A(2) Crimes Act 1914 (Cth), which requires a sentencing court to take into account certain "matters as are relevant and known to the court", including "the prospect of rehabilitation of the person" (s.16A(2)(n)). Once again, the term "rehabilitation" is not defined in the Crimes Act 1914 (Cth). 117 Although not defined by statute, the term "rehabilitation" has a well-recognised content in the context of sentencing. Rehabilitation as an object of sentencing has not been confined to those who are regarded as being ill or predisposed to crime by environmental factors, including alcohol or drug abuse. A statement frequently cited with respect to the concept of rehabilitation is that of King CJ in Vartzokas v Zanker (1989) 51 SASR 277 at 279 where he said: "The passage which I have quoted from the remarks of the learned sentencing magistrate discloses, in my opinion, an error of principle. It implies that rehabilitation or reform, as an object of sentencing, is confined to those who are 'in need of rehabilitation by reason of factors such as illness or being 'predisposed to such behaviour by his environment or his experiences of life', that is to say, to persons subject to some personal or social disadvantage. That involves a misconception of the meaning of rehabilitation and its place in the sentencing process. Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person."
5. Rehabilitation is however only one aspect of s 3A that a Court must take into account. It is not accorded any priority as a consideration on sentence (except in relation to juvenile offenders). It is clear from the guideline judgment that in matters of High Range PCA offences, general deterrence and denunciation are factors of great importance in the sentencing process. As Howie J said at [143]: Clearly the subjective features of the offender are relevant to a determination of the penalty for any offence, and high range PCA is no exception. But general sentencing principles require that the penalty reflect the object seriousness of the offence and that too much allowance cannot be given to subjective features particularly where deterrence and denunciation are important factors in sentencing. Simply stated, there are offences that are so serious that a penalty of some form must generally be imposed regardless of the personal circumstances of the offender. In my view high range PCA is such an offence.
6. Although rehabilitation is a major aspect in the imposition of an ICO it is not a mandatory requirement of that sentencing option. As McClelland CJ at CL and Johnson J said in R v Pogson at [105] referring to the imposition of an ICO: It is apparent that there is no provision within Division 2 of Part 2 of the Sentencing Procedure Act (ss.5-7), relating to custodial sentences, which specifies that an assessment of the offender's prospects of rehabilitation is required for the purpose of selection of the sentencing option.

Consideration of a suspended sentence (s 12 bond)

1. Although there was no specific submission for Mr Pipe to be dealt with by way of a suspended sentence, I am still required to consider all options for the way in which a custodial sentence is to be served. At [144] of the guideline judgment Howie J observed: Sentencing generally is concerned with punishment for the offence committed although the safety of the community may indicate that some element of protection from future conduct is appropriate. Concerns at future offending normally indicate that an element of specific deterrence is required or some step needs to be taken by way of punishment, proportional to the criminality of the offence committed, to prevent further offending. The fact that a person is unlikely to offend in the future does not generally mitigate the criminality of the offence. This is particularly so where, as with high range PCA, the offence is not impulsive nor the result of a momentary aberration. If the court were satisfied that the offender is unlikely to re-offend, this would tend to indicate that a good behaviour bond is an inappropriate sentencing disposition because there is no need to attempt to control the offender's future conduct.
2. Mr Pipe has made good progress in his rehabilitation to date. However the PSR assessed him as "a low to medium risk of re-offending". The Community Corrections Officer identified criminogenic needs as "Education/employment, Leisure/recreation, Alcohol/drug problems and Emotional/personal". It is common knowledge that overcoming any addiction is not easy. It is often a long and tortuous path littered with potholes. Alcohol addiction is never easy to beat and as AA reminds their attendees you are always an alcoholic and only one drink away from a relapse. I do not believe that I can conclude that Mr Pipe is "unlikely" to re-offend. The submissions on his behalf were in fact that he needed continued supervision and that was why an ICO was a preferable sentencing option. As continued supervision is required a suspended good behaviour bond might be an option to consider, subject to the other requirements of s 3A and the principles in R v Zamagias [2002] NSWCCA 17 as set out in [26]-[28]. 26 Having determined that there is no other penalty appropriate other than a sentence of imprisonment, the court is next to determine what the term of that sentence should be; R v Foster [2001] NSWCCA 215 at [30]. This has been regarded as the first step of a two-step approach in the imposition of a sentence of imprisonment, see R v Blackman and Walters [2001] NSWCCA 121 at [50] to [52]; JCE at [17]. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed, see s 6 (periodic detention order), s 7 (home detention order) and s 12. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example it cannot be increased because it is to be served by way of periodic detention: R v Wegener [1999] NSWCCA 405, or by home detention: R v Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is unavailable: R v T (NSWCCA, 19 June 1995). 27 The fact that a term of a sentence is to be determined without regard to the fact that it is to be suspended is consistent with the approach adopted in other jurisdictions where that sentencing alternative has been available for many years, see R v Percy [1975] Tas SR 62 at 73; Stevens v Giersh (1976) 14 SASR 81 at 82; Dinsdale v The Queen (2000) 202 CLR 321 at 346 per Kirby J. 28 Once the term of the sentence has been determined the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, see for example s 77 of the Act with respect to home detention. But the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic at 250B.

The sentence

1. It is clear that both of the drink driving offences have high degrees of moral culpability as set out in the guideline judgment. The degree of intoxication in both instances is extreme. On both occasions the driving took place in areas of high volume traffic at peak times. The off duty police officer was lucky to escape injury when Mr Pipe managed to restart his vehicle on 9 March. On 10 March there was a collision between Mr Pipe's ute and two other vehicles, a fence post and a garden. On each occasion there was actual and potential danger to a large number of people.
2. Despite the need for ongoing supervision of the offender's rehabilitation, I do not consider that a suspended sentence bond could be appropriate for offences as serious as the two High Range PCA offences. On these facts such a sentence could never adequately reflect the objective seriousness of the offending behaviour.
3. I am also of the view that in particular s 3A (b), (f) and (g), Crimes (Sentencing Procedure) Act make an ICO or Home Detention inappropriate options, in that neither option would fulfill the "manifold purposes of punishment". I, and no doubt many in the community, would view such options as unduly lenient. Both offences fall at the higher end of the scale of objective seriousness. Indeed it is difficult to think of any circumstances that could be more serious in respect of the second offence, without there being some injury or worse.
4. The manner of driving and the extremely high moral culpability including the level of intoxication require a sentence of full-time custody.
5. As pleas of guilty were entered at the first available opportunity the full discount of 25% will be applied to each sentence. Although they are separate offences one day apart, for the purpose of penalty, the "second" offence carries the same penalty as the first offence as the offender had not been convicted of the first offence prior to the commission of the second offence.
6. The charge of driving whilst suspended is not in my view an offence that requires a custodial sentence. A s 9 bond with supervision can appropriately reflect the seriousness of breaching a Notice of Suspension issued by Police, particularly having regard to the offender's prior good character and excellent driving record.
7. Finally, I must turn to the issue of disqualification. Mr Pipe faces an automatic period of disqualification of twelve (12) months for driving whilst suspended. He must also be subject to Mandatory Interlock Orders for the drink driving matters. The disqualification for driving whilst suspended must be served before the interlock order can commence. In assessing the periods to apply to the Mandatory Interlock Orders, I have taken into account the fact that they will be served concurrently and that Mr Pipe previously had an excellent driving record.
8. Mr Pipe, for the offence of High Range PCA on 9 March 2015 you are convicted and sentenced to a fixed term of imprisonment of six (6) months to commence from today 25 September 2015. You will be eligible for release on 24 March 2016. For the offence of High Range PCA on 10 March 2015 you are convicted and sentenced to a term of imprisonment with a non-parole period of six (6) months, an additional term of six (6) months a total sentence of twelve (12) months to commence from today as well. You will be eligible for release on parole from 24 March 2016. I find special circumstances warrant a longer period on parole to aid your rehabilitation. For the offence of driving whilst suspended on 10 March 2015 you are convicted and ordered to enter into a s 9 bond to be of good behaviour for 18 months and to appear before the Court for further sentence if the bond is breached. It will be a further condition of that bond that you accept supervision from Community Corrections and obey all reasonable directions for counselling and drug and alcohol rehabilitation. You must report to Community Corrections at Penrith within seven (7) days of your release from custody.
9. Further, in respect of driving whilst suspended you are disqualified from driving for twelve (12) months from today 25 September 2015. For the two High Range PCA offences I make a Mandatory Interlock Order with a disqualification compliance period of nine (9) months to commence from 25 September 2016 and a participation period of three (3) years. Magistrate R Clisdell Penrith Local Court 25 September 2015

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NOTE: On 13 November 2015, on appeal to the District Court against the sentences imposed for the high range PCA offences, the offender was sentenced as follows:

• First offence - to enter into a good behaviour bond for 3 years pursuant to s 9(1), Crimes (Sentencing Procedure) Act 1999
• Second offence - to a term of imprisonment of 12 months, suspended on condition that he enter into a good behaviour bond under s 12, Crimes (Sentencing Procedures) Act 1999 for a term of 12 months DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2015