How the Judge decides, for a driving offence

8.1The s 10(3) matters applied to a presence offence

The court's discretion under s 10 is structured by s 10(3): the person's character, antecedents, age, health and mental condition; the trivial nature of the offence; the extenuating circumstances; and any other matter the court thinks proper to consider. For s 111 the second and fourth matters do most of the work.

On triviality, a presence offence with no impairment, no collision and no aggravating feature sits close to the least serious form of the offence, and the courts have accepted that a low-level presence detected some time after consumption can be characterised as trivial in the s 10(3)(b) sense [review: authority]. On "any other matter", the disproportion between the mandatory disqualification and the offender's circumstances is the argument. The relevant line is the NSW decisions treating the consequences of a conviction, including licence loss, as a matter properly weighed under s 10(3)(d) [review: identify the leading NSW authority on extra-curial consequences and s 10; commonly cited are the guideline judgment in Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act (high-range PCA guideline) and subsequent District Court decisions].

8.2The high-range PCA guideline judgment and its shadow

The 2004 guideline judgment for high-range PCA [review: citation] is not about s 111, but it shaped Local Court practice on when s 10 is appropriate for driving offences generally. Its statement that a s 10 for high-range PCA should be rare has been read down for low-level offences, and s 111 presence is at the low end, but the practitioner should expect a Judge to have the guideline's caution in mind and to address it: this is not a high-range matter, the offence is one of presence, and the factors the guideline identifies as weighing against s 10 (prior offences, high reading, actual danger) are absent.

8.3The Traffic Offenders Program as evidence

Completion of an accredited program before sentence is treated as evidence of insight and of reduced likelihood of reoffending, and Local Court Judges routinely ask whether it has been done. It is not a formal precondition to s 10, but its absence is read as a failure to engage, and its completion is close to a minimum expectation for a s 10 argument on a driving matter. The certificate is tendered with the other subjective material.

8.4Structuring the submission

The four s 10(3) headings, in order; under (b), the presence-not-impairment point and any evidence of the time since consumption; under (d), the disproportion argument with the licence-need evidence; then the ask, which for s 111 should be specific: a conditional release order without conviction under s 9, for a stated period, with the conditions the client can comply with. The fallback is a conviction with disqualification reduced to the statutory minimum, and the submission should say why the minimum is appropriate if the court is against the client on s 10.