Many, many people have been charged with a drink driving offence and have received a notice to attend court.
For most of these people, this is a totally foreign experience for them as they have never been to court before.
Some see a lawyer, and some decide to try their luck and go it alone.
I’m never one to criticise people who choose not to engage legal representation for their court appearance for such matters.
There are numerous justifications for not engaging a lawyer, the most obvious of which is that the person simply cannot afford the amount the lawyer charges.
‘Going it alone,’ however, is fraught with danger, and this is no better emphasised than in regards to those persons charged with high range drink driving, which means driving with a blood alcohol concentration of 0.15 or higher.
In 2004 the NSW Attorney General asked the NSW Court of Criminal Appeal to deliver a guideline judgement on the offence of high range prescribed concentration of alcohol.
The proposed guideline that the Attorney General sought was to contain statements of principle of a general and a particular nature, both as to the approach to be taken to sentencing for the offence and the use to be made of various sentencing options including licence disqualification.
This request was based, it appears, on the inconsistency of the penalties imposed on defendants convicted of this offence previously.
Penalties ranging from being let off with no conviction being recorded and therefore being able to continue to drive, through to being sentenced to a term of fulltime imprisonment had been imposed prior to 2004.
The guidleline judgement was delivered in September of 2004, and ever since, judges and magistrates in NSW have been obliged to follow it when they sentence a defendant on the charge of high range PCA.
The guideline judgement categorising high range PCA offences, in terms of whether it is a first offence or otherwise, as well as setting out criteria for a judge or magistrate to consider when sentencing.
The guideline judgement also discusses the moral culpability of a driver at the time of an offence, and this moral culpability is determined by the facts of the case, including but not limited to:
1. the driver’s degree of intoxication above 0.15
2. whether the driver had been involved in a collision
3. whether the driver’s driving had been erratic or aggressive
4. the length of the journey
5. the number of people the driver put at risk as a result of his drink driving
The guideline judgement, in practical terms sets out for the judges and magistrates, the penalties that they should be imposing on defendants convicted of this charge, detailing the sentencing options and setting sentencing parameters, by stating for example, under one set of circumstances “an order under Section 10 of the Sentencing Act ( this is where no conviction is recorded and therefore the defendants licence is not disqualified) will rarely be appropriate,” or under other circumstances, ”a sentence of less severity than fulltime imprisonment would generally be inappropriate”.
Now any competent criminal lawyer knows this, and when representing their client, they would frame their plea in mitigation, around the parameters of this guidline judgement, addressing the issues the guideline judgement deems as relevant when sentencing, and would ask for a sentence to be imposed that is reflective of the guideline judgement.
Unfortunately, the vast majority of those people who choose to represent themselves when charged with high range PCA, would have no idea about this guideline judgement, would not address the judge or magistrate on its applicability.
This lack of knowledge, and therefore failure to address on the guideline judgement, could lead to a very different result than that imposed on a defendant represented by a lawyer who had addressed the court on the applicability of the guideline judgement.
If ever you are charged with high range PCA in NSW, if it is possible for you to have a good criminal lawyer represent you, please do. It might well be the best investment you ever make. At the very least, come and see me or a member of my team for a free advice.