Whyte guideline

In response to Wong , in s 37A was inserted into the Crimes Sentencing Procedure Act which gave the Court of Criminal Appeal power to issue guidelines on its own motion wherever it considered it appropriate, and retrospectively validated the previously issued State guidelines.

Div 4 of Pt 3 of the Crimes Sentencing Procedure Act contains the statutory scheme for sentencing guidelines. An application for a guideline judgment may include submissions with respect to the framing of the proposed guidelines.

An application is not to be made in any proceedings before the Court with respect to a particular offender. The powers and jurisdiction of the Court to give a guideline judgment in proceedings under this section in relation to an indictable or summary offence are the same as the powers and jurisdiction that the Court has, under section 37A, to give a guideline judgment in a pending proceeding in relation to an indictable offence.

A guideline judgment under this section may be given separately or may be included in any judgment of the Court that it considers appropriate. The Court may give a guideline judgment on its own motion in any proceedings considered appropriate by the Court, and whether or not it is necessary for the purpose of determining the proceedings.

The Court is to give the Senior Public Defender, Director of Public Prosecutions and Attorney General an opportunity to appear as referred to in sections 38, 39 and 39A before giving a guideline judgment. In Wong v The Queen CLR the High Court held that the formulation of the drug importation guideline was flawed because it unduly elevated the weight of the drug as the crucial factor to be taken into account when sentencing: joint judgment at [34]—[88]; Kirby J at [89]—[].

Callinan J questioned the prescriptive nature of the guideline and the significance attached to the quantity of drug as the chief determinative factor in sentencing: at []. The joint judgment also cast doubt on the use of numerical guidelines generally and saw this as restricting the proper exercise of sentencing discretion see [72] and [76]—[78].

On the other hand, the break, enter and steal guideline, which listed relevant factors without a numerical guideline, was approved: at [60]. In the course of its reasons, the court effectively dealt with the matter as a test case for guideline judgments. The issues discussed included: the effect of Wong v The Queen CLR on the guidelines promulgated in R v Jurisic 45 NSWLR and R v Henry 46 NSWLR ; the effect of the retrospective statutory power conferred on the CCA to issue guideline judgments; the obligation of sentencing judges to take into account guideline judgments; whether by issuing guidelines the CCA is exercising a function which is incompatible with its exercise of Commonwealth judicial power; the role that numerical guidelines play in terms of sentencing consistency; and, finally, whether the Jurisic driving guideline should be reformulated.

The new retrospective statutory power conferred on the CCA under s 37A of the Crimes Sentencing Procedure Act overcomes at least some of the jurisdictional limitations of the Crown appeal power referred to in the joint judgment of Wong v The Queen. The High Court in King v The Queen at [38] said in the course of analysing a materially similar dangerous driving causing death offence that it:.

It is not necessary to that coherence that the terms of the section be embellished by reading into them a requirement for proof of some species of criminal negligence.

There are differences between dangerous driving causing death and manslaughter by criminal negligence. Dangerous driving is not a species of negligent driving and negligence is not an element of dangerous driving: King v The Queen at [44]—[46]. The offence of dangerous driving causing death does not require the Crown to prove an element of negligence: King v The Queen at [44]—[46]. Therefore, an assessment of a dangerous driving causing death offence should avoid reference to degrees of negligence or an evaluation of the breach of duty of care.

Nonetheless, in the statutory hierarchy of offences, manslaughter should be treated as a most serious offence for the purposes of the principle in The Queen v De Simoni CLR SBF v R at [].

An assessment of the level of moral culpability and the degree of abandonment of responsibility may in some cases involve language which is close to aspects of manslaughter. It is not an error to take into account other circumstances of aggravation different from the circumstances supporting the charge. The offence of dangerous driving causing death under s 52A 1 has three variations: driving under the influence, driving at a speed dangerous, and driving in a manner dangerous.

Each variation carries the same penalty. The De Simoni principle can have no application in a case where the so-called matters of aggravation are merely variations of the same offence and do not render the offender to a greater penalty: R v Douglas 29 MVR The appellant in R v Vale [] NSWCCA was intoxicated to an extent that was sufficient to establish the more serious offence of aggravated dangerous driving occasioning death carrying a maximum penalty of 14 years.

Santow JA said at [31]:. The judge breached the De Simoni principle by taking into account the higher level of intoxication as an aggravating factor. Where an act of dangerous driving causes the death of a pregnant woman, it is an error to have additional regard to the death of her foetus as a matter increasing the seriousness of the offence: Hughes v R A Crim R at [33].

It is already comprehended in the charge of dangerous driving causing death that the victim has sustained grievous bodily harm: Hughes v R at [28]. See further Fact Finding at Sentence at [ ]ff. It is not a mitigating factor that the victim knew the driver was intoxicated and willingly travelled in the vehicle fully aware of the danger. The fact the passenger was also intoxicated and did not try to dissuade the offender from driving cannot go to mitigation: R v Errington [] NSWCCA 18 at [27]—[28].

In R v Dutton at [35], the fact the victim had her arm out the window was not a relevant matter, whether the respondent was aware of it or not. It was noted at [36] that a driver is responsible for the safety of his or her passengers. In R v Berg [] NSWCCA at [26] the fact the passenger was not wearing a seat belt and so suffered the injuries leading to his death was held to be an aggravating factor in the circumstances of that case rather than a matter of mitigation.

The youth of the offender is relevant to sentence. While generally speaking, deterrence is given less weight in cases involving young offenders and there is a greater emphasis on rehabilitation, this is often not the case for dangerous driving offences. The usual rule that general deterrence applies with less force to the sentencing of young offenders does not apply to dangerous driving offences because there is a prevalence of these offences among young drivers and the courts have a duty to seek to deter this behaviour: R v Smith 95 A Crim R The courts have acknowledged that it is a difficult thing to send a young person of good character to gaol, but where appropriate, it must be done as a deterrent to others: R v Slattery 90 A Crim R at However, even where the relevant dangerous driving offences are close to the worst kind, youth remains a relevant factor.

See discussion of s 6 Children Criminal Proceedings Act in Principles relating to the exercise of criminal jurisdiction at [ ]; Relevance of youth at sentence at [ ]. The courts must tread warily in showing leniency for good character in these cases to avoid giving the impression that persons of good character may, by their irresponsible actions, take the lives of others and yet receive lenient treatment: R v MacIntyre 38 A Crim R at ; R v Musumeci see above under General deterrence at [ ].

Some sentencing judges find it very difficult to accept that a person of good character who is unlikely to re-offend should be sent to gaol. However, Parliament has made it quite clear that the injuries occasioned by driving dangerously and, no doubt, the prevalence of the offence, require condign punishment.

Dhanhoa [[] NSWCCA ] is authority for the proposition that the effect of the death in the accident on the offender and self punishment the self inflicted sense of shame and guilt were often highly relevant factors, that the weight to be given to these depended on the circumstances and that different judges may give different weight to those factors. Where the facts reveal gross moral culpability judges should be wary of attaching too much weight to considerations of self punishment.

Genuine remorse and self punishment do not compensate for or balance out gross moral culpability. In the present case the judge took the self punishment into account, including the major depression and the post traumatic stress disorder. The despair and depression experienced by the applicant was a significant element of mitigation: Hughes v R at [25].

The fact the offender has lost their car or suffered significant financial loss because their car was damaged in the collision is not a mitigating factor: R v Garlick 73 A Crim R at Section 21A 2 provides that the court is not to have regard to a factor if it is an element of the offence. An inherent characteristic of dangerous driving offences is that they are committed without regard for public safety. In this case there was no evidence to support that finding of unusually heinous behaviour.

The seriousness of the injuries to the victim of the grievous bodily harm remains relevant to the objective seriousness of the offence: R v Tzanis at [12]—[13]. It is legitimate in sentencing for dangerous driving to have regard to the consequences of that driving. In terms of seriousness, the greater the number of deaths, the greater the number of persons injured, the graver the crime becomes.

In R v Janceski [] NSWCCA , the sentencing judge erred in imposing concurrent sentences for two dangerous driving occasioning death offences and taking the approach of sentencing for a single action aggravated by multiple victims. Hunt AJA said at [23]:. See the discussion of dangerous driving cases in Structuring sentences of imprisonment and the principle of totality at [ ]. In all cases of dangerous driving, licence disqualification is mandatory and additional to any penalty imposed for the offence: s Road Transport Act The dangerous navigation offences under s 52B 1 — 4 mirror the categories of offences and penalties for dangerous driving under s 52A 1 — 4.

For a case involving a low level of moral culpability, where the sentencing judge found the death was a result of momentary inattention and a sentence of period detention was imposed, see R v MacIntyre [] NSWDC One of the potentially aggravating factors listed in R v Whyte at [] is the length of the journey.

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