Author: Phillip Gibson
Phillip Gibson is an Accredited Specialist In Criminal Law and a Partner at Nyman Gibson Miralis
There have been many years of disparity in the application of penalties for the offence of High Range PCA in NSW. In 2004, it was decided that some uniformity in judgment needed to be set for the lower levels of the judiciary. This resulted in the guideline judgement.
Let’s take a look at the intent of the judgement, whether it has worked and some of the possible alternatives.
What is the guideline judgment for High Range drink driving?
The Court of Criminal Appeal gathered together five judges with the aim of determining a consistent way to deal with the offence of high range drink driving. The outcome of those discussions became known as the Guideline Judgment for High Range Drink Driving  NSWCCA 303.
The main judgment, delivered by Justice Howie (as he then was), provided a sentencing formula for magistrates to follow. The judgement also filtered down to affect sentencing for mid range and, to a lesser extent, low range offences.
What was the intent?
The key intention of the guideline judgment was to increase sentences and apply uniformity to sentencing.
It also sought to send a message to the community at large that driving with a high blood alcohol content is unacceptable, and repeat offenders in particular can potentially be dealt with very harshly.
So… has it worked?
Although the idea behind the guideline judgment is inarguably correct – drivers should be deterred from drink driving, particularly with a high level of blood alcohol content – it is questionable whether it has had the intended effect.
In the 10 years between 1992 and 2002, the average number of people charged each year with drink driving offences in NSW was about 19,000. However, figures from the NSW Bureau of Crime Statistics and Research show an average of 22,985 people were charged with the same offences in 2009 and again in 2010.
These statistics show that despite the increasing penalties, the number of people committing drink driving offences has not decreased. So why could this be?
The only logical explanations are that either:
- The penalties are not significant enough for the message of deterrence to spread through the community; or
- Increased punishment does not work.
The question of deterrence
In my view, punishment and penalties are not generally sufficient to deter offenders from committing crimes. General deterrence has an application in its basest form, namely that if you commit a crime you will be punished, and the worse the offending the greater the punishment.
However beyond this, deterrence cannot be relied on as a guiding sentencing principle. For example – despite the death penalty remaining in place for murder in some countries, murders continue to be committed in those places.
Instead, the aim should be to rehabilitate the offender. There are far more effective ways to do this than by imprisoning people convicted of drink driving or taking their licences away for lengthy periods.
But what are some other options for dealing with drink driving offences?
The interlock program
Under this program, an Interlock device is hardwired into a vehicle to monitor the driver’s alcohol consumption. If the driver blows above a certain level, the engine will quite simply not start. The most obvious advantage of the system is that the offender can continue to drive, meaning that family life and employment will not be affected, but the community is also safe from drink driving.
The Interlock program is already compulsory for all high Range PCA offences in NSW and any second drink driving offence committed within five years. There is no good reason why this program has not been applied for all drink driving offences in NSW. The length of time the device is fitted for varies depending on the offence, but can be up to four years. This could be increased for higher range offences.
Traffic Offender Intervention Program
The Traffic Offender Intervention Program could also be made compulsory for all those charged with drink driving offences.
The program is a legislated form of punishment in NSW, which provides driver education to participants. If the program is completed by an offender, the court is required to take that fact into account in sentencing.
The feedback from many people who have participated in this program – which I have been lecturing at for many years – is that it should be compulsory for all drivers to complete before they are even issued with a licence, let alone those who are convicted of drink driving.
Prison has long been known as somewhere which provides an education in criminality – it is no good mixing somebody who has committed driving offences with hardened mainstream criminals because of the potential for an increase in criminality.
Instead, a “traffic prison” could be created where those convicted only of traffic offences are imprisoned. Even a short sentence in this specially created prison with compulsory driver education could have a permanent rehabilitative effect.
Abolish habitual offender declarations
Current penalties are simply not having the deterrent effect which they are intended to, and removing licences from offenders for decades is just as unsuccessful.
The real victims of habitual offender declarations are rarely those who are terrible drivers and put other road users at risk, but are more often people in the following scenario:
A young person is issued a traffic fine and can’t pay it, resulting in a suspended driver’s licence. That person then drives while suspended for one reason or another and is discovered at a random breath testing station. The young offender’s licence is disqualified.
For various reasons, they may drive again and are caught because they are known to be an unlicensed driver. Under the current penalty system, the young offender may be imprisoned with rapists and murderers, despite having posed no significant risk to the community.
There has to be a better way forward for NSW to deal with drink driving offenders.
However, unless and until those changes are made, ensure that you obtain the best possible representation if you are charged with any drink driving offence.