201 Elizabeth Street
Sydney NSW 2000
99 William Street
Melbourne VIC 3000
231 North Quay
Brisbane QLD 4000
1 Farrell Place
Canberra ACT 2601
111 St Georges Terrace
Perth WA 6000
Contact Armstrong Legal:
Sydney: (02) 9261 4555
A guideline judgment is taken into account by courts in sentencing offenders. It includes:
The decision of Spigelman CJ in the case of Regina v. Jurisic (1998) 45 NSW LR209 provides an excellent summary of the practical effect of guideline judgements.
Some of the passages from this judgment are set out below:
"Such guidelines are intended to be indicative only. They are not intended to be applied to every case as if they were rules binding on sentencing judges. Decisions of appellant courts on sentencing are not to be treated as binding precedents.
"In accordance with this approach, guideline judgments perform a limited role. Nevertheless, in my opinion, such judgments will provide a useful statement of principle to assist trial judges to ensure consistency of sentencing with respect of particular kinds of offences. I reiterate that such guidelines are not binding in a formal sense. They represent a relevant indicator, much as trial judges have always regarded statutory maximum penalties as an indicator."
During the course of its deliberations, the NSW Court of Criminal Appeal made the following useful statements:
Second or subsequent offence
"An offence is a second or subsequent offence only if, within the period of five years immediately before a person is convicted of the offence, the person was convicted of another offence against the same provision of a major offence.
"This means that a person who has been charged with two counts of high range PCA but not sentenced for either is to be regarded as a first offender."
The Court made the following statements in respect to the effectiveness of driver education programs and how they may be used by a sentencing court when considering an appropriate penalty.
"There is evidence that suggests that attendance at such a program lessens the likelihood of reconviction for drink driving. This may be not only because of the educative value in causing the offender to appreciate the consequences of such conduct but also because of the humiliation experienced by an offender in being required to attend such a program."
The Court also stated:
"Notwithstanding the undoubted beneficial affect upon a driver of participation in a driver education program, that fact can have little impact, in my view upon the appropriate sentence to be imposed for an offence of High Range PCA in the usual case, except in so far as the length of disqualification may be concerned or the amount of a fine. The offence in general is so serious and the criminality involved in even a typical case so high that, in my view the participation of the offender in a program cannot be seen as an alternative to punishment for an offence of this nature. In particular there is no warrant at all for the making of an order under Section 10 simply because the offender has participated in such a program or is to do so as part of the conditions of a bond."
The guideline judgment does not say that participation in a driver education program has no value and cannot affect the length of the disqualification period imposed by the court. Quite clearly this is not the case. It appears quite clear that participation in a driver education program should reduce the period of disqualification and the amount of a fine if a fine is appropriate.
The Court commented that generally speaking the reason for the consumption of alcohol will be irrelevant. It stated it will be of no significance that the alcohol was consumed at a wake or a celebration, or because the person was abusing alcohol either generally or on the particular occasion because of some emotional or psychiatric condition.
The Court of Criminal Appeal considered the need for a licence as one of the paramount considerations when looking at the length of the disqualification period. The Court made the following statements concerning a person's need to hold a driver's licence:
"Licence disqualification is such a significant matter and can have such a devastating affect on a person's ability to derive income and to function appropriately within the community that it is a matter which, in my view, must be taken into account by a court when determining what the consequences should be, both penal and otherwise for a particular offence committed by a particular offender. This is not to say that the sentencing discretion should be controlled by one particular factor alone, such as the offender's need for a licence or the consequences of the offender of being disqualified for a significant period."
The Court acknowledged that a Section 10 must apply to the offence of high range PCA and there may be cases where, notwithstanding the objective seriousness of the offence committed, it is appropriate to dismiss the charge or to discharge the offender. But those cases must be rare. They must be exceedingly rare for a second or subsequent offence. The Court went on further to recognise that there can be cases where there were such extenuating circumstances that a dismissal or a discharge under Section 10 might be justified. The Court stated it is impossible and inappropriate to delineate the situations in which an order under Section 10 might be warranted notwithstanding the objective seriousness of the offence. One example might be where the driver becomes compelled by an urgent and unforeseen circumstance to drive a motor vehicle, say to take a person to hospital.
The Court constructed an ordinary case of high range PCA to use as a model against which a sentencing court can determine whether the case before it is similar or more or less serious.
The Court found that an ordinary case of an offence of high range PCA is one where:
The offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol.
The model fails to recognise that there will be different levels of good character and different levels of good traffic record. For instance, an offender who has held a licence for three years without conviction is a person with nil traffic record. An offender who has held a licence for 40 years without conviction is likewise a person with nil traffic record. Similarly a person of 18 years of age who is regarded by his or her peers as a person of good character will be treated the same as a person who has devoted their life to helping others and working with charities. Where such exemplary good character or good traffic record are present it is the opinion of the writer that the court would find that the particular offender's case was better than the ordinary case.
The Court of Criminal Appeal delivered the following guidelines based on this model:
(1) In an ordinary case of an offence of high range PCA:
an order under s 10 of the Sentencing Act will rarely be appropriate;
(2) In an ordinary case of a second or subsequent high range PCA offence:
(3) The moral culpability of a high range PCA offender is increased by:
(4) In a case where the moral culpability of a high range PCA offender is increased:
(5) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.