NEW SOUTH WALES

High Range Drink Driving Guideline Judgment NSW

In shortThe NSW Court of Criminal Appeal's 2004 guideline judgment ([2004] NSWCCA 303) tells sentencing courts how to approach high range PCA. In an ordinary case, a section 10 will rarely be appropriate and a program alone is no reason to avoid conviction. It must now be read with mandatory interlock orders and the 2018 sentencing reforms.

Ordinary case: detected by random testing, good character, guilty plea; s 10 rarely appropriate and the usual disqualification generally applies.
Repeat and aggravated cases: much tougher; imprisonment generally expected where multiple aggravating features are present.
Today: high range PCA is s 110(5) of the Road Transport Act 2013, a mandatory interlock order applies (s 211), and s 203 limits repeat s 10 orders.

New South Wales law · law checked 21 Oct 2026

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Important Features of the High Range PCA Guideline Judgment

The Guideline Judgment delivered by the NSW Court of Criminal Appeal highlights several key issues that sentencing courts must weigh when dealing with High Range PCA. These include whether the offence is a “first” or “subsequent” offence, the role of Traffic Offender Programs, the impact of licence disqualification, and whether the Court should ever consider a Section 10 (no conviction) outcome.

What Is a “Second or Subsequent” Offence?

The Guideline Judgment discussed when an offence is a “second or subsequent” offence. Today that question is answered by s 9 of the Road Transport Act 2013: broadly, an offence is a second or subsequent offence if, within the 5 years before the conviction, you were convicted of another major offence of a relevant kind, including one dealt with by penalty notice. This means, for example, that if a person is charged twice but has not yet been sentenced for either charge, that person is still dealt with as a first offender at sentencing. This distinction matters because the Guideline expects much tougher sentences for true repeat offenders.

Traffic Offender Intervention Programs

One common question is whether completing a Traffic Offender Program will convince the Magistrate to be lenient, or even to dismiss the matter. The Guideline Judgment recognises that these programs can reduce the risk of re-offending by educating the driver, confronting them with the real-world consequences of drink driving, and frankly, by the humiliation of having to attend. Many NSW courts still take completion of these programs into account.

However, the NSW Court of Criminal Appeal was very direct: while completing a Traffic Offender Program can help the Court consider reducing the length of the disqualification period or the size of a fine , it does not mean you avoid punishment entirely, and it is not in itself a ticket to walk out without a conviction. Specifically, the Court said there is “no warrant at all” for making a Section 10 order (dismissal without conviction) simply because the offender has done, or promises to do, a Traffic Offender Program.

Key Takeaway on Traffic Offender Programs

These programs can help shape the final penalty, but they are not a way to avoid punishment for High Range PCA. The offence is considered too serious, and the level of criminality even in a so-called “ordinary” High Range PCA case is considered high. Courts prioritise community safety and deterrence.

Reasons for Consuming Alcohol “Don’t Excuse It”

The Guideline Judgment also makes it clear that why you drank — whether you were at a party, funeral, under stress, struggling with mental health or alcohol dependency — generally carries little weight in reducing the seriousness of High Range PCA. The courts focus on the risk created on the road , not on how sad, stressful or emotional the circumstances were beforehand. In other words, the reasons for drinking will not usually reduce the seriousness of a High Range PCA offence.

Your Need for a Driver Licence

The NSW Court of Criminal Appeal also accepted that licence disqualification can have a devastating practical effect on a person: loss of job, loss of income, inability to care for dependants or vulnerable family members. The Court said that the impact of disqualification should be taken into account when deciding on the length of disqualification. That does not mean “no disqualification”, but it can justify reducing the period where there is clear evidence of hardship, such as:

the nature of the offender’s employment (for example, professional drivers, trades requiring constant site travel),
the absence of any reasonable alternative transport, and
health issues of the offender or someone who depends on the offender for transport.

The Guideline confirms that while hardship is relevant, sentencing is never driven by just one factor. Protecting the public and deterring dangerous conduct is still front and centre for NSW Courts.

Section 10 (No Conviction) and High Range PCA

Under Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) , a Court can technically deal with an offence without recording a conviction. This can avoid a criminal record, fines and licence disqualification. Since 2015, s 203 of the Road Transport Act 2013 also prevents a s 10 for a drink or drug driving offence if you received one for a relevant offence in the previous 5 years. The Guideline Judgment confirms that Section 10 is still legally available in High Range PCA matters — but the Court made it very clear that granting Section 10 in these cases must be rare , and for repeat High Range PCA offenders it must be exceedingly rare .

To even consider Section 10, the Court wants to see truly exceptional circumstances (for example a genuine emergency or sudden and unforeseeable situation where driving was almost unavoidable). Even then, the Magistrate or Judge is not obliged to grant Section 10 — it remains a pure discretion. The clearest message from the Guideline is that High Range PCA is so objectively serious that “no conviction” outcomes are at the outer edge of what is appropriate.

For current maximum penalties, disqualification and interlock periods, see drink driving penalties in NSW and alcohol interlock laws in NSW.

The “Ordinary” High Range PCA Case

The Guideline Judgment set out what the Court considered an “ordinary” High Range PCA offence. It listed factors that commonly appear in a typical case:

The person drove mainly to avoid inconvenience, or believed they were “okay to drive”.
The person was detected by random breath testing (not because of a crash or obvious dangerous driving).
The person has prior good character.
The person has either no traffic record or only a minor record.
The person’s licence was suspended immediately on detection.
The person pleaded guilty.
The person is assessed as being at little or no risk of re-offending.
The person would suffer significant inconvenience from being disqualified (work, family, etc.).

Interestingly, the Guideline noted that even in this so-called “ordinary” case of High Range PCA — where the driver is not a criminal in the stereotypical sense, has a good background, shows remorse, and would suffer from losing their licence — the conduct is still considered so serious that the Court should rarely consider outcomes like Section 10 (no conviction). The Guideline treats High Range PCA in NSW as inherently dangerous conduct that places the public at significant risk.

How the Court Should Sentence an “Ordinary” High Range PCA Offence

The Guideline Judgment then gave direct guidance to Local Courts about what is appropriate in an “ordinary” High Range PCA sentencing exercise. The Court stated that:

An order under Section 10 (no conviction) will rarely be appropriate.
A conviction cannot be avoided just because the driver has completed or will complete a Traffic Offender / Driver Education Program.
The “automatic” disqualification period is usually appropriate unless there is a good reason to reduce it. (Today, where a mandatory interlock order is made, the court instead sets the disqualification within the range in the s 211 Table, 6 to 9 months for a first high range offence, followed by at least 24 months on an interlock.)

Examples of a “good reason” to shorten the disqualification period include:

the nature of the offender’s employment,
no viable alternative transport, or
serious sickness or infirmity of the offender or someone who relies on them.

Even then, this is about trimming the length of the disqualification, not removing it altogether. NSW Courts consider licence disqualification to be a crucial public safety measure in High Range PCA matters.

Repeat High Range PCA Offenders

For a second or subsequent High Range PCA offence, the Guideline Judgment is even tougher. It says:

Sentences under the old Section 9 (good behaviour bonds; today, conditional release orders) will rarely be appropriate.
Section 10 (no conviction) would be very rarely appropriate.
Where the prior offence was itself High Range PCA, any sentence less severe than a community service order (today, a community correction order with a community service work condition) would generally be inappropriate.

In other words, if you come before the Court with a High Range PCA on your record already, the Court is directed towards more serious penalties. There is an obvious public safety logic here: repeat high-range drink driving is seen as a serious and ongoing threat to the community, not a one-off lapse.

Aggravating Factors That Increase Moral Culpability

The Guideline Judgment sets out certain aggravating features that elevate the moral blameworthiness of a High Range PCA offence. These include:

Very high intoxication above the 0.150 BAC threshold (the higher the BAC, the greater the culpability).
Erratic or aggressive driving.
A collision (any crash into another vehicle, object, roadside structure, etc.).
Competitive or “show off” driving (racing, dangerous stunts).
The distance or length of journey when the public was exposed to risk.
The number of people actually put at risk, including passengers in the car.

Where those aggravating factors are present, the Court of Criminal Appeal says that Section 10 or other very light outcomes should “very rarely” be considered appropriate. In fact, if there are multiple aggravating factors to a significant degree, the Court says that anything less than imprisonment of some kind (suspended sentences no longer exist in NSW; today the options include an intensive correction order, which is a sentence of imprisonment served in the community) would generally be inappropriate.

For repeat High Range PCA offenders whose case also involves aggravating features — such as a crash or extremely dangerous driving — the Guideline is even more blunt: a penalty of less severity than imprisonment would generally be inappropriate, and where multiple aggravating features are present, a sentence less severe than full-time imprisonment would generally be inappropriate.

That is why High Range PCA is not “just a traffic ticket”. It is a criminal sentencing exercise that can and does result in jail, especially for repeat offenders or cases involving serious danger to the public.

Disclaimer

The material on this page is general information only. It is not a substitute for tailored legal advice. Sentencing in High Range PCA matters depends on your reading, your driving, your criminal and traffic record, the Local Court you appear in, and the view taken by the sitting Magistrate or Judge.

High Range PCA sentencing also changes over time through legislation and case law. Always seek up-to-date legal advice about your specific case before Court. Call 1300 941 900 or make an enquiry about legal representation.

For general information on drink driving penalties and disqualification, see Transport for NSW's drink and drug driving penalties page. That material may change over time.

Preparing for sentence in a high range PCA matter

Because the guideline sets a high starting point, preparation matters. Material that courts commonly consider includes:

evidence of your driving and criminal history, and an explanation of any entries;
character references from people who know about the charge;
evidence of steps taken since the offence, such as counselling, a drug and alcohol assessment, or a traffic offenders program;
evidence of hardship from losing your licence, such as an employer letter or medical evidence for a dependant; and
a realistic plan for complying with the interlock order once the disqualification ends.

The court will also consider the facts: your reading, how you were driving, the distance driven, and whether anyone was put at risk. An early plea of guilty attracts a discount on the sentence. For what happens at court, see the NSW DUI court process guide.

Example: applying the guideline today

A 45-year-old with no criminal record and a clean traffic history is stopped at a random breath test and returns a reading of 0.16. There was no crash and the driving was not erratic. They plead guilty at the first opportunity, complete a traffic offenders program and provide references and an employer letter explaining that they drive to job sites.

On the guideline, this looks like an "ordinary" case. A s 10 would rarely be appropriate. The court would usually record a conviction, impose a fine or a community-based order, and make a mandatory interlock order: a disqualification of between 6 and 9 months, followed by at least 24 months on an interlock licence. The hardship evidence may be relevant to where in the 6 to 9 month range the disqualification falls. This example is illustrative only; every sentence depends on the facts.

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FAQs: the NSW high range PCA guideline judgment

What is the High Range PCA Guideline Judgment?

A 2004 decision of the NSW Court of Criminal Appeal giving sentencing guidance for high range PCA offences. It describes the "ordinary" case, when disqualification can be reduced, when community-based orders are appropriate and when imprisonment is expected.

Can I get a section 10 for high range PCA?

It is legally possible, but the guideline says it will rarely be appropriate, and very rarely for repeat offenders. It is not available if you had a s 10 for a drink or drug driving offence in the previous 5 years (RTA s 203).

Does a traffic offenders program help?

It can be taken into account, for example in the length of the disqualification or the fine, but the guideline says it is not a reason to avoid a conviction.

When is jail expected?

Where moral culpability is increased by aggravating features, a sentence less than imprisonment is generally inappropriate. For repeat offenders with aggravating features, full-time imprisonment can be expected.

Can my disqualification be reduced because I need my licence?

The guideline allows hardship to be taken into account. Today, a mandatory interlock order applies to high range PCA, and the disqualification is set within the s 211 range before the interlock period.

Sources and date checked

The law on this page was checked against these primary and official sources on 21 Oct 2026. Penalty unit dollar amounts are as at 21 Oct 2026.

Application by the Attorney General ... High Range Prescribed Concentration of Alcohol (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 — checked 21 Oct 2026
Road Transport Act 2013 (NSW) – ss 9, 110, 203, 205, 211 — checked 21 Oct 2026
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 9, 10, 37 — checked 21 Oct 2026
Judicial Commission of NSW – Sentencing Bench Book, guideline judgments — checked 21 Oct 2026

This page is general information about New South Wales law only. It is not legal advice. Every matter turns on its own facts.

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