A drinker of fine champagne exclusively, Louis XIV would likely have had trouble obtaining a Section 10: Louis XIV by Adam Frans van der Meulen. Licensed under Public Domain via Wikimedia Commons.

A High Range PCA (“prescribed concentration of alcohol) driving offence in NSW is where the there is a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood (commonly known as “0.15”) see Road Transport Act 2013 (NSW), s 108.

In 2004 the NSW Court of Criminal Appeal gave a “guideline judgment” for sentences for persons convicted of High Range PCA. That judgment can be found here.

In that judgment His Honour Chief Justice Howie (as he then was) said: “I accept that s 10 must apply to the offence of high range PCA and there may be cases where, notwithstanding the objective seriousness of the offence committed, it is appropriate in all the circumstances to dismiss the charge or to discharge the offender. But those cases must in my view be rare. They must be exceedingly rare for a second or subsequent offence.” He says that “one example might be where the driver becomes compelled by an urgent and unforseen circumstance to drive a motor vehicle, say, to take a person to hospital.”

So unless there is unique and particular circumstances the changes of a s 10 on a conviction for High Range PCA is very low.

That being said, it does not mean that the submissions cannot be made to secure a convicted person of a sentence appropriate to them in the circumstances. This might include a reduced period of disqualification or a lesser fine than that which legislation says automatically occurs.

Alternatively, there may be grounds to challenge the facts in respect of the PCA reading. Expert analysis can be obtained which may allow for representations to be made that at the time of the offence the true and correct reading was less than 0.15. While this still places the accused in the mid-range PCA offence category, the Guideline Judgment does not apply and the magistrate has more scope for determining the appropriate sentence.