Australia: An unforgivable lack of judgment? An insight into drink driving offences in NSW

"She'll be right" is an expression we hear in our day to day conversations and which we may use ourselves (at times misguidedly) to optimistically believe that a dilemma will right itself over time. This ingrained behavioural attitude troublingly continues to be used in our decision making process to decide whether we have allowed a sufficient period of time to pass to 'sober up' after having a few rounds of alcohol prior to driving a motor vehicle. Whilst alcohol is excreted from the body in sweat, breath and urine, it is only through the passing of sufficient time that allows one's liver to break down alcohol and be rid of it from our bodily system.

What constitutes sufficient time is dependent on a myriad of variables including one's gender, rate of alcohol consumption, and liver functionality just to name a few. These variables highlight the risk involved in the judgment call often made by drivers in NSW. What is clear, having regard to the number of drink driving offences listed for sentence in NSW Local Courts is that erroneous and poor decisions and misguided judgment calls continue to be made by individuals regarding their own sobriety to drive a motor vehicle following the consumption of alcohol.

Road safety campaigns launched by the NSW Government, such as the 'Plan B' and 'Towards Zero' have targeted debunking the misguided "She'll be right" attitude by focusing on the strict message: "If you are drinking, don't drive." Even if this hard line message postulates a view that our society is becoming a 'nanny state', NSW road injury and death statistics arguably justify the preventative measures initiated to curb the disastrous consequences arising from drink driving.

With the depressant effect alcohol has upon brain function, the slowing of reaction times, impairment of balance and the facilitating of an increase in bravado and risk taking, drink driving is one of the biggest causes of injury and death on NSW roads, accounting for about one in five crashes in NSW where someone loses their life, with males under the age of 40 years being the predominant causalities.1 Given these grave consequences, we will take a look at the sentencing statistics (for the period July 2016 to June 2018) produced by the Judicial Commission of NSW (current as at January 2019) to gain an insight into whether or not sentencing outcomes for drink driving offenders correlate with the hard line message that the NSW Government has tried to promote, to not drink and drive.

For the purposes of this analysis we will concentrate upon the low, middle and high range prescribed concentration of alcohol ('PCA') offences stated in section 110 of the Road Transport Act 2013 (NSW) (the 'RT Act').

Low range offence

Section 110(3) of the RT Act provides:

A person must not, while there is present in the person's breath or blood the low range prescribed concentration of alcohol:

  1. drive a motor vehicle, or
  2. occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
  3. if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)—occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Maximum penalty: 10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence).

A penalty unit is $110.00.

Low range PCA means a concentration of 0.05 grams or more, but less than 0.08 grams, of alcohol in 210 litres of breath or 100 millilitres of blood.2

Upon conviction for this offence, an automatic driver's licence disqualification period of 6 months is imposed by the Court on a 'first time' offender, but this may be reduced to a shorter period (at the discretion of the Court) but not shorter than 3 months.3 For a 'repeat offender' who previously was convicted of a "major offence" (that includes a conviction for any PCA offence in the five years prior to the current conviction, whether of the same or different kind) an automatic driver's licence disqualification period of 12 months is imposed by the Court, but this may be reduced to a shorter period (at the discretion of the Court) but not shorter than 6 months.4 The Court however may alternatively impose a longer period.5

For the offence of drive with low range PCA (first offence), the Judicial Commission statistics show that out of a total of 10,145 cases sentenced by the Local Courts in NSW (from July 2016 to June 2018) 43% of offenders (4,402) had a conviction entered and a fine imposed on sentence, whilst 50% of offenders (5,115) received an order pursuant to section 10(1)(b) or (c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) meaning that no conviction was entered against the offender and that they were discharged on a good behaviour bond (now known as a 'conditional release order') or entered into an intervention program. A further 5% of offenders (552) had their charges dismissed without proceeding to the entering of a conviction. Whilst each offender is dealt with by the Courts on the merits of their own individual case (taking into account objective features of the offending conduct and subjective circumstances of the offender) the statistics show that over half of first time offenders were sentenced without conviction or a fine, lending weight to a purported observation that first time offenders committing the offence of drive with low range PCA are more likely to be forgiven for their lack of judgment of drinking and driving.

For repeat offenders charged with drive with low range PCA, 89% of offenders (896) had a conviction entered against them along with a fine imposed by the Court. Only 7% of repeat offenders (66) received an order pursuant to section 10(1)(b) or (c) of the Crimes (Sentencing Procedure) Act, that is, no conviction being entered against the offender and that they were discharged on a good behaviour bond or entered into an intervention program. For repeat offenders, the statistics show that forgiveness for the lack of judgment (by way of no conviction being entered and no penalty being imposed) is not a likely outcome.

Middle range offence

A person is charged with an offence pursuant to section 110(4) of the RT Act when there is present in the person's breath or blood the middle range PCA whilst they drive (or occupy the driving seat and attempt to put in motion) a motor vehicle, or occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.6 Middle range PCA means a concentration of 0.08 grams or more, but less than 0.15 grams, of alcohol in 210 litres of breath or 100 millilitres of blood.7

The maximum penalty for this offence is 20 penalty units ($2,200) or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units ($3,300) or imprisonment for 12 months or both (in the case of a second or subsequent offence).8

Upon conviction for this offence, an automatic driver's licence disqualification period of 12 months is imposed by the Court on a first time offender, but this may be reduced to a shorter period (at the discretion of the Court) but not shorter than 6 months.9 A longer disqualification period may also be imposed by the Court on sentence.10 For a repeat offender of a major offence who is charged with drive with middle range PCA, an automatic driver's licence disqualification period of 3 years is imposed by the Court, but this may be reduced to a shorter period (at the discretion of the Court) but not shorter than 12 months11; the Court however may impose a longer period of disqualification.12

For the offence of drive with middle range PCA (first offence), the Judicial Commission statistics show that out of a total of 11,508 cases sentenced by the Local Courts in NSW (from July 2016 to June 2018) 66% of offenders (7,593) had a conviction entered against them and a fine imposed on sentence, 14% of offenders (1,554) had a conviction entered against them and were discharged on a good behaviour bond (pursuant to the then applicable section 9 of the Crimes (Sentencing Procedure) Act), whilst 16% of offenders (1,804) received an order pursuant to section 10(1)(b) or (c) of the Crimes (Sentencing Procedure) Act. Of the total 11,508 cases, only 34 offenders (0.2%) had their charges dismissed without conviction.

Whilst 41% of repeat offenders (645) charged with drive with middle range PCA had a conviction entered against them and were discharged on a good behaviour bond, the statistics show that the prospects of a term of imprisonment being ordered cannot be ruled out, with 4% of offenders (59) being sentenced to a term of imprisonment. Of those 59 offenders, 27% of them (16) received a 9 month period of imprisonment, 22% of offenders (13) received an 8 month period of imprisonment, and 12% of offenders (7) received a 12 month period of imprisonment.

For this middle level of drink driving offending, the statistics purport to show that on sentence, Courts take this offending conduct seriously and do not easily forgive an offender's lack of judgment, with the likely outcome being a conviction being entered against the offender with a fine being imposed on sentence, as well as the possibility of a term of imprisonment being imposed on a repeat offender.

High range offence

A person is charged with an offence pursuant to section 110(5) of the RT Act when there is present in the person's breath or blood the high range PCA whilst they drive (or occupy the driving seat and attempt to put in motion) a motor vehicle, or occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.13 High range PCA means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.14

The maximum penalty for this offence is 30 penalty units ($3,300) or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units ($5,500) or imprisonment for 2 years or both (in the case of a second or subsequent offence).15

Upon conviction for this offence, an automatic driver's licence disqualification period of 3 years is imposed by the Court on the offender, but this may be reduced to a shorter period (at the discretion of the Court) but not shorter than 12 months.16 A longer disqualification period may also be imposed by the Court on sentence.17 For a repeat offender of a major offence who is charged with drive with high range PCA, an automatic driver's licence disqualification period of 5 years is imposed by the Court, but this may be reduced to a shorter period (at the discretion of the Court) but not shorter than 2 years18; the Court however may impose a longer period.19

For the offence of drive with high range PCA (first offence), the Judicial Commission statistics show that out of a total of 4,335 cases sentenced by the Local Courts in NSW (from July 2016 to June 2018) 30% of offenders (1,282) had a conviction entered against them and a fine imposed on sentence, 37% of offenders (1,594) had a conviction entered against them and were discharged on a good behaviour bond, 14% of offenders (601) received a Community Service Order (pursuant to the then applicable section 8 of the Crimes (Sentencing Procedure) Act), 12% of offenders (505) received a Suspended Sentence (pursuant to the then applicable section 12 of the Crimes (Sentencing Procedure) Act), 3% of offenders (139) received an Intensive Correction Orders, and a further 3% of offenders (114) were sentenced to a period of imprisonment. Of those offenders who were sentenced to a period of imprisonment, 34% of those (38) were sentenced to a period of 12 months imprisonment, whilst 17% of those offenders (19) were sentenced to 9 months imprisonment.

For repeat offenders of a major offence charged with drive with high range PCA (888 in total), 20% of offenders (180) had a conviction entered against them and were discharged on a good behaviour bond, 17% of offenders (152) received a Community Service Order, 25% of offenders (222) received a Suspended Sentence, 13% of offenders (114) received an Intensive Correction Orders, and a further 17% of offenders (155) were sentenced to a period of imprisonment. Of those 155 offenders who were sentenced to a period of imprisonment, 15% of offenders (23) were sentenced to a period of 9 months imprisonment, 34% of offenders (53) were sentenced to a period of 12 months imprisonment, and 15% of those offenders (23) were sentenced to 18 months imprisonment.

For this most serious of drink driving offences, the statistics purport to show that on sentence, Courts not only do not forgive an offender's lack of judgment in deciding to drive a motor vehicle with a high range PCA but will be prepared to sentence an offender to a period of imprisonment, especially in the case of a repeat drink driving offender who is charged with high range PCA (approximately to 1 in 5).

Conclusion

There is a great temptation to adopt the "She'll be right" attitude when it comes to making a judgment call on whether to drink and then drive a motor vehicle, especially during celebratory occasions and during the holidays. The only way to avoid that risk is not to drive after consuming alcohol (which could also extend to refraining from driving the next day(s) after a big day or night out when alcohol can still be present in one's body long after its consumption).

Every time a person in NSW consumes alcohol (regardless of whether they are male or female, or have built up an alcohol tolerance through the years, or has consumed food with their alcohol intake) and then decides to get behind the steering wheel of a motor vehicle and drives that vehicle (or attempts to drive it) runs the risk of being charged by NSW Police with a PCA offence. Being charged with second or subsequent PCA offence (within the last 5 years of the last conviction) also opens up the possibility that the sentencing Court will order and impose heavier penalties for the repeated offending conduct.

It is important to speak with a lawyer to obtain timely legal advice should you be charged with a PCA offence in NSW. There are many ramifications (personal, professional and financial) that may arise from being charged and convicted with a PCA offence that extend beyond losing one's eligibility to drive a motor vehicle. The impact of these ramifications may also extend to family, friends and work colleagues. A risk of injury and death to yourself as well as others is a very real consequence of the judgment calls we make each and every day when consuming alcohol and driving a motor vehicle afterwards, where forgiveness may not only be required to be sought from a sentencing Court, but also from those who may well suffer immensely from the lack of judgment and poor decision that was previously made.

Footnotes

1NSW Centre for Road Safety; http://roadsafety.transport.nsw.gov.au/stayingsafe/alcoholdrugs/drinkdriving/index.html

2 Road Transport Act 2013, s.108

3 Road Transport Act 2013, s.205(2)(a)

4 Road Transport Act 2013, s.205(3)(a)

5 Ibid.

6 Road Transport Act 2013, s.110(4)

7 Road Transport Act 2013, s.108

8 Road Transport Act 2013, s.110(4)

9 Road Transport Act 2013, s.205(2)(b)

10 Ibid.

11 Road Transport Act 2013, s.205(3)(b)

12 Ibid.

13 Road Transport Act 2013, s.110(5)

14 Road Transport Act 2013, s.108

15 Road Transport Act 2013, s.110(5)

16 Road Transport Act 2013, s.205(2)(d)

17 Ibid.

18 Road Transport Act 2013, s.205(3)(d)

19 Ibid.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions