"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:

  2. drive a motor vehicle, or
  3. occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
  4. 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.