Dangerous Driving Offences in New South Wales

On 20 August 2002 the New South Wales Court of Criminal Appeal delivered a guideline judgment concerning the offences of dangerous driving causing death and dangerous driving causing grievous bodily harm.

What is a guideline judgment?

Section 36 of the Crimes (Sentencing Procedure) Act 1999 defines a guideline judgment to mean a judgment containing guidelines to be taken into account by courts sentencing offenders, including:

• guidelines that apply generally, or
• guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders).

General principles concerning guideline judgments

The decision of Spigelman CJ in the case of Regina v. Jurisic (1998) 45 NSW LR209 provides an excellent summary of the practical effect of guideline judgments.

Some of the passages from this judgment are set out below:

“Guidelines are intended to be indicative only. They are not intended to be applied to every case as if they were rules binding on sentencing judges. Decisions of appellant courts on sentencing are not to be treated as binding precedents.

“In accordance with this approach, guideline judgments perform a limited role. Nevertheless, in my opinion, such judgments will provide a useful statement of principle to assist trial judges to ensure consistency of sentencing with respect of particular kinds of offences. I reiterate that such guidelines are not binding in a formal sense. They represent a relevant indicator, much as trial judges have always regarded statutory maximum penalties as an indicator.”

In the decision of R v Whyte, Spigelman CJ went further to say that “a guideline is to be taken into account only as a ‘check’ or ‘sounding board’ or ‘guide’ but not as a ‘rule’ or ‘presumption’.

The guideline

The court constructed a typical case for dangerous driving causing death and dangerous driving causing grievous bodily harm to use as a model against which a sentencing court can determine whether the case before it is similar or more or less serious.

The court found that a typical case for dangerous driving causing death and dangerous driving causing grievous bodily harm is one which has the following characteristics:

• young offender;
• of good character with no or limited prior convictions;
• death or permanent injury to a single person;
• the victim is a stranger;
• no or limited injury to the driver or the driver’s intimates;
• genuine remorse;
• plea of guilty of limited utilitarian value.

Guidelines with respect to a jail sentence

A full-time jail sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.

Where the offender’s moral culpability is high, a full-time jail sentence (both non parole and parole period) of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.

Aggravating factors

The court listed factors which would make the offence more serious then the typical case:

• extent and nature of the injuries inflicted;
• number of people put at risk;
• degree of speed;
• degree of intoxication or of substance abuse;
• erratic or aggressive driving;
• competitive driving or showing off;
• length of the journey during which others were exposed to risk;
• ignoring of warnings;
• escaping police pursuit;
• degree of sleep deprivation;
• failing to stop.

Aggravated factors require a harsher penalty

The court said that where the offence is aggravated, an appropriate increment (increase in penalty) is required. Other factors, such as the number of victims, will also require an appropriate increment.

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