Can I Get a Non-Conviction Order For a High Range Drink Driving Offence?

High Range Drink Driving is an offence contrary to section 110(5) Road Transport Act 2013 which carries a maximum penalty of 18 months imprisonment and/or fines of up to $3,300.00 for a first-time offence and 24 months imprisonment and/or fines of up to $5,500.00 for second time or subsequent offences.

In this blog, Parramatta Criminal Lawyers | AMA Legal summarise the ordinary case as per the guideline judgment for the offence of high range drink driving, the licence disqualification and interlock periods applicable to high range PCA offences and whether the Courts can deal with the matter via a non-conviction.

The Offence  

The Road Transport Act 2013 makes it an offence to drive a motor vehicle, occupy the driving seat of a motor vehicle and attempt to put the vehicle in motion, or supervise a learner driver whilst there is present in the driver’s blood a prescribed concentration of alcohol of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.

The offence is one of strict liability and, therefore, the vast majority of persons charged with the offence plead guilty which is dealt with at the Local Courts of NSW at the first instance.

The Guideline Judgement

To bring about consistency in the sentencing offenders for high range drink driving, the NSW Court of Criminal Appeal gave judgement referred to as the Guideline judgement.

The Guideline judgement establishes the following:

1. An ordinary case of the offence is where the offender:

1. drove a car to avoid inconvenience or because they believed they were not affected by alcohol,
2. was detected by way of a random breath test,
3. has no criminal history or is a person of prior good character,
4. has no or minimal traffic record,
5. license was suspended on detection,
6. lacks any risks of reoffending,
7. would be significantly inconvenienced due to the loss of their licence. 

The Court states that when sentencing an offender for an ordinary case of high range drink driving:

1. a non-conviction order will rarely be appropriate,
2. a conviction cannot be avoided because the offender has completed a traffic offenders program,
3. the automatic licence disqualification will be appropriate unless there is a good reason to reduce the automatic disqualification period due to:

1. nature of the offender’s employment,
   1. the absence of any viable transport,
   1. the offender illness or any member of the offender’s family’s illness.

License Disqualification and interlock licence periods for high range PCA

On conviction, the Court will also disqualify the person’s driving licence and impose an interlock period. The following periods apply:

	Minimum Disqualification period	Max Disqualification period	Interlock period
High range PCA (first offence)	6 months	9 months	24 months
High range PCA (second or subsequent offence)	9 months	12 months	48 months

According to Parramatta Criminal Lawyers | AMA Legal, between October 2019 to September 2023, 782 offenders were sentenced by the NSW Local Courts for the offence of high range drink driving. The Local Courts only dealt with 11 offenders via a non-conviction. 

The Guideline judgement has indicated that there may be circumstances which would warrant the sentencing Court to deal with such an offence via a non-conviction and has provided the following as an example:

“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.”

When deciding to exercise discretion and not record a conviction, the Court consider the following:

1. the offender’s character, antecedents, age, health and mental condition,
2. the trivial nature of the offence,
3. the extenuating circumstances in which the offence was committed,
4. any other matter that the court thinks proper to consider.

The offence is not trivial, and an ordinary case already assumes the persons character and antecedents which only leaves consideration for extenuating circumstances an example of which was provided by the Courts.

Accordingly, unless an offender can show that there were extenuating circumstances that led to the offending, the Court will most likely record a conviction.

If you have a criminal matter that you wish to discuss, it’s advisable to search for Criminal Solicitor Parramatta or you can contact Criminal Lawyers Parramatta | AMA Legal on (02) 8610 3764.