Seven Mile Beach, Broken Head
“Bold and Excellent”
Drink drivers could get on the wagon
Catchwords: Crime, drink driving, drug driving, non-conviction, PCA, rehabilitation. S 10(1)(c) Crimes (Sentencing Procedure) Act, S 10(1) remains in place, the “factors”, disqualify upon conviction, loss of license, high range drink driving, Guideline Judgment, intervention amendment, MERIT, Traffic Offenders Intervention Program, TOIP, Road Transport Act
Drink drivers who do rehabilitation still have a better chance of not losing their licences and obtaining a non-conviction.
Intervention amendment 2003
The “intervention” amendment commenced in NSW on 24 February 2003. At that time, alcohol and substance rehabilitation became a clearer option in sentencing for some summary offences including Prescribed Concentration of Alcohol (“PCA” or “drink-driving”). The amendment in S 10(1)(c) Crimes (Sentencing Procedure) Act gave the Court another option to not convict. Has it really been used?
At the 2nd Reading Speech in the Legislative Council (Copy here), [Hansard, 21/11/02 p. 7346]
“The amendment to section 10 allows a court to make an order discharging the person on the condition that he or she participates in an intervention program. The court may make such an order only if it is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.” This was incorporated into S10(2A).
The objects of the amendments, including S10(1)(c), were stated to give a formal legislative framework for intervention programs to “reduce causes of offending behaviour” and acknowledged “the value … to participate in a program that seeks to address the underlying causes of their offending behaviour” and that “there is an enormous benefit to both offender and community…through addressing these underlying issues” and “to break successfully the cycle of criminal behaviour … an undeniable benefit to…society as a whole.”
An “intervention program” or “plan” is defined under the Criminal Procedure Act, and the Criminal Procedure Regulation. The “Traffic Offender Program” is a classic intervention program declared under the regulations.
In theory, yes, the Courts received this specific power under S10(1)(c) – with regulations to follow- to discharge drink drivers without conviction, even though they may be guilty, on the basis that they participate in an “intervention program”. The mechanics are in place in Part 8C. But did drug and alcohol counselling or residential rehab regulations follow! No, not really.
The idea of the intervention amendment was that if offenders broke the good behaviour bond, they could be re-sentenced and convicted, but it is discretionary. If they succeeded they could be discharged without conviction. Clearly, the legislature in 2002 wanted rehabilitation of substance offenders. Rehabilitation by stopping the underlying cause, say drinking or drugging, is a more desirable community outcome than punishment. It addresses cause not effect. This was a noble object.
But sadly, in practice, the only relevant regulations about an “intervention program” for drink or drug driving offences so far has been the Traffic Offender Program.
Traffic Offenders Program
The Traffic Offender’s Program is beneficial because it provides knowledge to help in driver rehabilitation. However, what society is dealing with here is sickness and addiction. Sickness and addiction require more than self knowledge for rehabilitation. What is required to rehabilitate drink and drug drivers is expert intervention, not just knowledge. This includes out-patient treatment by drug and alcohol counselling and medical help and also in some cases in-patient residential rehabilitation interventions.
The regulations made since 2003, have stopped short of making attendance at registered rehabilitation clinics for drug and alcohol a designated “intervention program”.
Will the legislature now make specific regulations for intervention programs for genuine substance abusers, including alcohol abusers and alcohol dependents, to change their ways by obtaining treatment or attending a rehabilitation clinic? This remains to be seen.
Guideline Judgment 2004
Along came the Guideline Judgment which was handed down by the N.S.W. Court Of Criminal Appeal (online copy here) on 8 September 2004. It related to the High Range drink driving offence and 2nd or subsequent High Range drink driving offences.
It determined that for “an ordinary case” of a first High Range drink driving offence, a S10 non-conviction “will rarely be appropriate”. For and ordinary case of a 2nd or subsequent High Range drink driving offence a S10 non-conviction “would very rarely be appropriate”, and in addition to the above, a S9 “community service order” as an alternative to prison “will” rarely be appropriate.
“Moral culpability” is increased by “aggravating factors” including the degree of intoxication above 0.15, erratic or aggressive driving, an accident, competitive driving or showing off, long trips and exposure of others to risk, number of people at risk; and if present, anything less than prison (including a suspended sentence) would rarely be appropriate, and for a 2nd High Range offence full time prison if there are a number of those aggravating factors present.
The Guideline Judgment was sought on application of the Attorney-General [S37 Crimes (Sentencing Procedure) Act] due to government concerns as to “inadequate” sentencing across the State for the prevalent offence of ordinary High Range drink driving.
The Judgment did not decide anything about offenders participating voluntarily in drug and alcohol treatment, self initiated interventions including rehabilitation programs and whether a S10 non-conviction was applicable in those situations.
And the model case of an ordinary High Range drink driving offence (which denies a S10 as “will rarely be appropriate”) makes no mention of an offender who seeks drug and alcohol treatment and rehabilitation to lessen the sentence. Because the Court did not decide that issue, there is no res judicata.
Therefore, in the author’s opinion, a S10 non-conviction application for High Range drink driving, for a first or second offence, is not ruled out by the Guideline Judgment by an offender obtaining voluntary treatment, intervention and rehabilitation.
Furthermore, the Judgment is only concerned with High Range drink driving offences, not the other ranges.
Upon conviction, no discretion to not disqualify
Loss of licence for regional people has far more severe consequences than city folk – isolation, lack of transport and loss of work. The legislation is imbalanced as it works more harshly in practice on regional drink-drivers.
The problem is that the Court has no discretion to not disqualify, as the judicial hands are tied (including mandatory interlock orders).
The person, upon conviction of a “major offence” which includes the S110 traffic drink-driving offence, “is” disqualified from driving. That is mandatory. It is only a question of how much time for the disqualification period. (S110, S205 Road Transport Act (NSW) “RTA”)
A declaration of a “habitual traffic offender”
A person can be declared an “habitual traffic offender” if in the previous five (5) years they have also been convicted of two (2) other relevant offences (S217 RTA). Relevant offences include drink and drug driving and excessive speeding offences. The declaration carries a five (5) year disqualification period, unless the Court when it convicts orders longer (including life) or shorter but not shorter than two (2) years (S219 RTA).
The declaration of “habitual traffic offender” stems from two (2) previous convictions, and added disqualification consequences of a third conviction.. However, a S10, if successful, is a non-conviction. So a S10 application, in theory, is not ruled out by a declaration of habitual traffic offender.
Old law is still good law
However, the old law is still good law and the old S10(1)(a) “dismissal” or S10(1)(b) “discharge” on a good behaviour bond of up to two (2) years are still available sentencing options for a “non-conviction”.
The criteria for a S10 non-conviction (online copy here) are as follows:
S10(2) The Court may be satisfied that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or that it is expedient to release the person on a good behaviour bond.
S10(3) The Court is to have regard to the following “factors”:
a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider
There has been no previous S10 applied in the last 5 years to an applicable offence, including drink or drug driving (S203 RTA).
So a S10 non-conviction is potentially available, subject to Court discretion, if it is satisfied that it is “expedient”, having regard to the “factors”, including any “extenuating circumstances”. The factors are “all” of the factors (See: Guideline Judgment ) but this does not mean, in the author’s opinion, that each and every factor is positively proven to a finding, just that the Court considers them all. And this is provided a S10 non-conviction has not been applied by the Court to an applicable offence like drink or drug driving in the previous 5 years.
The Court still has discretion and can still be satisfied that voluntary self treatment and admission into out-patient drug and alcohol counselling; or into an in-patient rehabilitation clinic, with evidence of attendance, will reduce the chance of committing further offences.
The promotion of “rehabilitation of the offender” is a legitimate sentencing purpose. It is one of the total of seven (7) purposes of sentencing in New South Wales (S3A(d) Crimes (Sentencing Procedure) Act.)
Voluntary admission for a drink or drug driver into counselling or a drug and alcohol rehab improves the offender’s chances of avoiding conviction and keeping a drivers’ license.
It means getting on the water wagon. But at least it’s a wagon!
Jonathan de Vere Tyndall
Updated 1 March 2015, originally published Country Leader 4/8/2003, North West Magazine 1/9/03, North Coast Town and Country 9/2003.
Editors note: The articles published contain comment only and not legal advice, for which you should retain a solicitor. No responsibility is accepted for the accuracy of the contents.