DUI case study – appealing a driving offence

Case facts

On several occasions over a two-week period, our client was involved in three very serious traffic offences over which he was ultimately charged.

The first offence, Drive Under the Influence of Alcohol (DUI), arose after he was captured on CCTV footage driving into a public car park. He was discovered unconscious in his vehicle by police, and was later found to be heavily intoxicated.

He failed a roadside breath test and was taken to the police station. However, police are only entitled to conduct a breath analysis within two hours of the alleged driving offence. In this case, more than two hours had passed. Our client was charged with DUI and was released.

Upon his release, our client took a taxi back to the car park where his motor vehicle remained. He had purchased more alcohol, which he proceeded to drink before attempting to drive home. A short time later, our client was again found unconscious in his car after it had collided with a gutter. The police attended at the scene and our client was conveyed to hospital, where blood tests revealed a blood alcohol concentration of 0.429 – almost a lethal level. Our client was charged with the offence of High Range PCA, but despite this was not immediately suspended from driving.

Approximately two weeks later, our client once again drank a substantial amount of alcohol and drove his car. He collided with a traffic light pole, which resulted in the police being called and him being arrested. This time, he returned a blood alcohol reading of 0.213, and was again charged with High Range PCA. He was also refused bail by police.

 

Potential penalties

High Range PCA and Driving under the Influence are both serious offences which attract potentially very significant penalties.

High Range PCA can attract up to 18 months imprisonment for a first offence, a fine of up to $3,300, a minimum disqualification period of six months under the interlock program, and a two-year interlock period.

For a second High Range PCA offence in a five-year period, the potential penalties increase to imprisonment of up to two years, a fine of up to $5,500 and a minimum disqualification period under interlock of nine months. The interlock period is four years.

If convicted of DUI, the potential imprisonment period is up to nine months, with a minimum disqualification period of six months, in addition to a fine of up to $2,200.

 

Sentencing factors

In 2004, the NSW Court of Criminal Appeal delivered a guideline judgment in relation to the offence of High Range PCA. This judgment was formulated to deal with concerns about the manner in which High Range PCA matters were being dealt withby the Local Court, and the intention of the judgment was to ensure that some uniformity was introduced to the sentencing process.

In creating the guideline judgment, an “ordinary case” was formulated. This ordinary case refers to examples of High Range PCA where an offender pleads guilty to the offence, has no prior criminal record, an otherwise good traffic record, was not involved in a collision or was not brought to police attention by erratic driving. The guideline judgment also provides an indication of the appropriate sentence to be applied in certain circumstances.

The following passage of the guideline judgment is particularly informative:

(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.

In the guideline judgment, the court also considered cases where an offender’s “moral culpability” was increased in the circumstances.

Factors increasing the seriousness of the offence include:

• A particularly high blood alcohol reading (over 0.15).
• Dangerous driving.
• Involvement in a collision.
• Increased risk to other people (for example because of the length of the journey or the number of passengers).

According to the guideline judgment, when the above factors are met, the following circumstances are likely to be imposed:

(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 subsequenthigh 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.

 

Case result

 

We entered a guilty plea in relation to all three of the offences, and the matter proceeded to a sentencing hearing in the Parramatta Local Court. Importantly, our client did not have any prior criminal record whatsoever, including any prior drink-driving related offences. According to the guideline judgment, our client’s moral culpability was increased because of his two aggravated High RangePCA offences. Therefore the guidelines suggested that our client should be imprisoned.

We appeared on behalf of our client in the sentencing proceedings and argued that,in the circumstances of our client’s offending, the magistrate was able to impose analternative penalty other than a full time custodial sentence.

We obtained and provided to the court several reports and certificates which demonstrated that our client had a significant alcohol problem which required treatment with detoxification and rehabilitation. We also successfully convinced the magistrate that our client’s three offences should all be dealt with as first offences,rather than being assessed cumulatively as second or subsequent offences.

After lengthy submissions, the magistrate sentenced our client to imprisonment for seven months, with a non-parole period of two months. In making this decision, the magistrate clearly accepted that in our client’s case there were special circumstances allowing a departure from the usual statutory ratio determining the head sentence and the non-parole period set out in section 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Nonetheless we lodged a severity appeal in the Parramatta District Court and our client was released on bail pending that hearing.

We argued on behalf of our client that his custodial sentence should be converted to home detention in accordance with section 7 of the Crimes (Sentencing Procedure) Act. Taking into account all of the relevant factors, our client was permitted to serve his seven-month prison sentence by way of home detention.

 

Nyman Gibson Miralis provides expert advice and representation in all areas of drink driving and traffic law. 

Contact us if you require assistance.