On 8 September 2004, the New South Wales Court of Criminal Appeal delivered a “Guideline Judgment” concerning the offence of High-Range PCA (Prescribed Concentration of Alcohol) in Re: Application by Attorney-General (No. 3 of 2002) (2004) 61 NSWLR 305).

The Guideline Judgment is relevant to offenders found guilty of High-Range PCA, however, courts often refer to the same principles when Sentencing offenders charged with Low-Range and Mid-Range PCA offences.

The Judgment Guideline sets out the nature and the elements for consideration when Sentencing an offender.

The Supreme Court of New South Wales provided the following aggravating factors: –

• Degree of intoxication;
• Erratic or aggressive driving;
• Competitive driving or showing off;
• Length of the journey at which others are exposed to risk; and
• Number of persons put at risk by the driving (i.e. the number of passengers in the vehicle).

The Supreme Court also made the following observations: –

• Prior good character is of less relevance because persons of otherwise good character often commit these offences;
• Nature of the driving: Once the vehicle is in motion the offence is more serious because of the risk of death or injury to others is increased;
• Involvement in a driver education program: This will have little impact on the appropriate sentence to be imposed with High-Range PCA, except in relation to the length of disqualification or the amount of a fine. 

The Court further provided that the offence is “so serious and the criminality… so high” that the participation in a program cannot be seen as an alternative to punishment. It will not warrant the making of a section 10 simply because the offender has participated in such a program.

In terms of the period of disqualification, the automatic period is not the maximum, but merely a default period that operates on conviction unless some other order is made. The disqualification period can be extended. There should be “sufficient and appropriate reasons for reducing the automatic period”.

There will almost invariably be hardship, or at least inconvenience, caused by disqualification for such a lengthy period.

The following factors will assist the offender: –

• The offender is of prior good character;
• The offender has no or a minor traffic record;
• The offender pleaded guilty at the first opportunity;
• The offender completed the Traffic Offenders Rehabilitation Program;
• There is little or no risk of re-offending; and/or
• The offender would be significantly inconvenienced by loss of licence.

The following options are available to the accused depending on his/her instructions: –

1. We’ll negotiate with the Prosecutor to have the charges withdrawn, downgraded and/or the Police Fact Sheets amended; or
2. We’ll enter a plea of not guilty and proceed to a hearing; or
3. We’ll enter a plea of guilty to the charges and proceed to dispute the Police Fact Sheets at a special “disputed facts” hearing; or
4. We’ll enter a plea of guilty with full acceptance of the Police Fact Sheets; and
5. We’ll submit thoroughly researched legal submissions requesting that the Court not record a criminal conviction.