Author: Nyman Gibson Miralis

Parramatta Local Court Solicitor: Nyman Gibson Miralis

Facts: Our client had two sets of charges – both relating to drink driving. She had been a successful business woman who had a fall from grace after several traumatic events and developed severe depression and anxiety. She coped with these conditions by drinking alcohol.

The first offences occurred when driving in a suburban street and the car mounted a kerb and collided with a Give Way sign. A witness saw and rushed to our client’s aid. The driver was severely intoxicated at the time. She ignored the offer of help and attempted start the car and detach the car from the sign, eventually driving home. Police subsequently investigated the traffic accident.

Our client was charged with 3 offences:

  1. Drive Whilst Under the Influence of Alcohol (DUI) pursuant to section 12(1)(a) of Road Transport (Safety and Traffic Management) Act 1999.
  2. Negligent Driving pursuant to section 42(1)(c) of Road Transport (Safety and Traffic Management) Act 1999.
  3. Not give particulars pursuant to section 287(1) of the Road Rules 2008

Note: DUI is a different charge to the ordinary PCA offence. They are commonly confused – for a further explanation see our article on Driving Under the Influence (DUI).

The second lot of offences arose from our client driving with a blood alcohol concentration of 0.257 – more than 5 times over the limit.

The car mounted a kerb and collided with a fence. After failing the roadside breath test, the client was arrested and taken to the nearest police station for a breath analysis on the Lion Intoxylizer.

She was charged with High Range Drink Driving pursuant to section 9(4) Road (Safety and Traffic Management) Act 1999 which carries penalties that include a fine of up to $3,300 imprisonment for up to 18 months and a consequential disqualification period of not less than 12 months with an automatic period of 3 years. For a second or subsequent offence (applicable here), the fine increases up to $5,500 with imprisonment of up to 2 years and an automatic disqualification period of 5 years with a minimum of 2 years. A person may make application for participation in the Interlock Program, however if it is the second or subsequent offence in 5 years, a close examination of the traffic record is warranted in case a Habitual Offender Declaration might be made.

Criminal Record and Driving Record:

Before 2008 the woman had no criminal convictions. However, over the next 5 years she had three offences at separate times for either high range drink driving or mid-range drink driving.

Guideline Judgement: In 2004 the NSW Court of Criminal Appeal handed down a guideline judgement to assist in providing uniformity to the Courts upon sentencing for drink driving offences – see 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 (Safety and Traffic Management) Act 1999 (no.3 of 2002) [2004] NSWCCA 303

The Guideline Judgement stipulates that where the moral culpability of the offender of a second or subsequent high range PCA offence is increased, a sentence of any less severity than imprisonment of some kind would generally be inappropriate; and, 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.

Sentence: After the second set of offences, our client admitted herself into a residential rehabilitation facility in order to deal with her alcohol dependency.

As a result of the Guideline Judgement, the Local Court Magistrate was essentially bound to consider imposing a term of full-time custody because of her lengthy prior record and the presence of aggravating factors which increased the moral culpability of the accused.The court properly had to consider the need for general deterrence to send a message to the community that the offence will not be tolerated, as well as considering the protection of the community.

As a consequence of the client addressing her alcohol dependency, we were able to obtain a psychological report to outline the nature of the therapy and depth of the problem. We then made submissions to demonstrate that in all the circumstances, a sentence other than full time imprisonment was appropriate. One of the main cases relied upon was that of Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194. A number of important principles apply (see paragraphs 177 and 178)

“Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.
It may reduce or eliminate the significance of specific deterrence.

Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. The mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence”

Ultimately, the Magistrate sentenced our client to a suspended prison sentence pursuant to section 12 of the Crimes (Sentencing Procedure) Act.

The client had resolved herself to the expectation that she would spend a lengthy period in custody. Upon exiting Court the realisation set in and she broke down into tears. In the words of our client:

you just kept fighting and didn’t give up. The only reason I’m not in prison greens is because of you! I still can’t believe it!