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[2026] NSWCCA 144
Court of Criminal Appeal (NSW)
2026-09-18
Bell CJ; Payne JA; N Adams CJ at CL; Hamill J; Roberts J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Cripps v R (s 52A guideline judgment) [2026] NSWCCA 144
Hearing dates: 27 July 2026
Date of orders: 18 September 2026
Decision date: 18 September 2026
Before: Bell CJ; Payne JA; N Adams CJ at CL; Hamill J; Roberts J
Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords: SENTENCING — guideline judgment — dangerous driving offences contrary to Crimes Act 1900 (NSW), s 52A — whether Whyte guideline judgment should be revoked — where guideline judgment conflated concepts of moral culpability and objective seriousness — impact of sentencing developments including the statutory discount scheme and standard non-parole periods — guideline judgment revoked and replaced
SENTENCING — guideline judgment — new guideline judgment for dangerous driving offences contrary to s 52A — statement of relevant sentencing principles — no numerical guideline — consideration of the purposes of sentencing — matters relevant to the objective seriousness of dangerous driving offences — findings of reduced moral culpability — role of past decisions and sentencing statistics
SENTENCING — appeal against sentence — two offences of dangerous driving occasioning grievous bodily harm — assessment of objective seriousness — whether sentencing judge conflated matters relevant to the assessment of objective seriousness with those relevant to subjective case — error found — no lesser sentence warranted — appeal dismissed
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW), ss 52A, 52AB, 97(1), 112(1), 195
Crimes Act 1914 (Cth), s 16A
Crimes (Amendment) Act 1951 (NSW)
Crimes (Dangerous Driving Offences) Amendment Act 1994 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 10A, 21A, 22, 25D, 32, 36, 37, 37A, 37B, 38, 39, 39A, 40, 42A, 54D, 66, 67, 68
Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 (NSW)
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
Criminal Appeal Act 1912 (NSW), ss 5C, 5D
Criminal Legislation Amendment Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW), Pt 8, s 26 (repealed)
Customs Act 1901 (Cth), s 233B
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5
Cases Cited: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Content of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303
Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Attorney-General v Bindoff (1953) 53 SR (NSW) 489
Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Byrne v R; Cahill v R [2021] NSWCCA 185
Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214
Delleci v R [2020] NSWCCA 4
DG v R [2025] NSWCCA 137
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
DS v R [2025] NSWCCA 53
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Engert v R (1995) 84 A Crim R 67
Foaiaulima v R [2020] NSWCCA 270; (2020) 285 A Crim R 222
Harris v R [2021] NSWCCA 322
Hawat v R [2020] NSWCCA 121
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kerr v R [2016] NSWCCA 218
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Moodie v R [2020] NSWCCA 160; (2020) 284 A Crim R 87
Morabito v Regina [2007] NSWCCA 126
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
NK v R [2025] NSWCCA 73
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
Paterson v R [2021] NSWCCA 273
R v Boswell [1984] 3 All ER 353; [1984] 1 WLR 1047
R v Eaton [2023] NSWCCA 125; (2023) 308 A Crim R 465
R v Garlick (1994) 73 A Crim R 433
R v Heinrich (1992) 61 A Crim R 212
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Jiminez (1991) 23 NSWLR 394
R v Jurisic (1998) 45 NSWLR 209
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Millwood [2012] NSWCCA 2
R v Ngui and Tiong (2000) 1 VR 579; [2000] VSCA 78
R v Slattery (1996) 90 A Crim R 519
R v Takai [2004] NSWCCA 392; (2004) 149 A Crim R 593
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Weldon [2025] NSWCCA 21
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
R v Wong (1999) 48 NSWLR 340; [1999] NSWCCA 420
Rangihuna v R [2025] NSWCCA 186
Re Attorney General’s Application (No 1) Under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435
Regina v Berg [2004] NSWCCA 300
Rummukainen v R [2020] NSWCCA 187
Sarhene v R [2022] NSWCCA 79
Silvestri v R [2016] NSWCCA 245
Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3
Stanton v R [2021] NSWCCA 123
Stanyard v R [2013] NSWCCA 134
Stubbings v R [2023] NSWCCA 69
Stuckey v R [2025] NSWCCA 216
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
TM v R [2008] NSWCCA 158
Tuite v R [2018] NSWCCA 175
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zreika v R [2021] NSWCCA 243
Texts Cited: Explanatory Note, Criminal Legislation Amendment Bill 2001 (NSW)
New South Wales Law Reform Commission, Serious road crime, (Consultation Paper 23, December 2023)
New South Wales Law Reform Commission, Serious road crime, (Report 152, February 2025)
Judicial Conference of Australia Colloquium, “Out of Touch or Out of Reach” (Speech, Adelaide, 2 October 2004)
Category: Principal judgment
Parties: Timothy Cripps (Applicant)
The Crown (Respondent)
Attorney General (NSW) (Intervenor)
Senior Public Defender (Intervenor)
Representation: Counsel:
Ms C O’Neill / Ms S Ramsden (Applicant)
Ms S Dowling SC / Ms M Millward / Ms M Reynolds (Respondent)
Ms K Morgan SC / Ms C Raad (Attorney General (NSW))
Mr T Quilter SC / Ms S Talbert (Senior Public Defender)
Solicitors:
ADL Solicitors (Applicant)
Solicitor of Public Prosecutions (NSW) (Respondent)
Crown Solicitor’s Office (Attorney General (NSW))
File Number(s): 2023/00046744
Publication restriction: Nil.
[This headnote is not to be read as part of the judgment]
The applicant was sentenced in the District Court to 4 years’ imprisonment with a non-parole period of 2 years and 6 months for two counts of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW).
He sought leave to appeal against this sentence on the sole ground that the sentencing judge erred in his assessment of objective seriousness by taking into account factors in the guideline judgment of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (“Whyte”) that were not relevant to that assessment.
The Attorney General of New South Wales, the Senior Public Defender and the Director of Public Prosecutions (NSW) were all notified that the Court intended to review the guideline judgment in Whyte. Their joint position was that this Court should revoke that guideline judgment and issue a new non-numerical guideline which identified the relevant sentencing principles for offences under s 52A of the Crimes Act.
The Court (Bell CJ, Payne JA, N Adams CJ at CL, Hamill and Roberts JJ) held, granting leave to appeal and dismissing the appeal:
As to the revocation of the Whyte guideline judgment:
(1) References to “moral culpability” in Whyte do not reflect the current understanding of that concept and are in fact references to the objective seriousness of the offending: at [77]-[79].
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, applied.
(2) Reference to a “plea of guilty of limited utilitarian value” as a characteristic of the “typical case” in Whyte has been the source of some confusion and is potentially inconsistent with the statutory sentencing discount scheme: at [84].
Stanton v R [2021] NSWCCA 123; Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; Rangihuna v R [2025] NSWCCA 186; Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17, considered.
(3) While characteristics of the “typical case” in Whyte included “a young offender of good character” with “no or limited prior convictions”, most s 52A offenders are now over 25 years of age and have a prior criminal record. Changes over time to the “typical case” was a factor in support of revocation: at [87], [91].
(4) There is no data or material supporting a proposition that the Whyte guideline precluded a sentencing court from imposing an intensive correction order (“ICO”) in an appropriate case and statistics suggest that a significant number of offenders have received these sentences: at [96], [141].
(5) Legislative amendments to the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”), including the introduction of standard non-parole periods, have diminished the role of guideline judgments over time: at [97].
Foaiaulima v R [2020] NSWCCA 270; (2020) 285 A Crim R 222, considered.
(6) It had not been shown that the Whyte guideline had artificially depressed sentencing patterns: at [105].
(7) While serving an important purpose at the time it was promulgated, the Whyte guideline judgment should now be revoked: at [106].
As to the new guideline judgment:
(8) A sentencing court must pay close attention to the purposes of sentencing and remain mindful of the maximum penalty: at [154], [156].
(9) While it is not appropriate in a non-numerical guideline to identify some point beyond which a certain sentence should result, it should be in only a very rare case that a term of imprisonment is not imposed for s 52A offences: at [152], [155].
(10) No list of “aggravating” factors is identified in the new guideline. Instead, sentencing judges should have regard to any relevant aggravating and mitigating factors in s 21A of the Sentencing Act. There should be no double counting when considering the aggravating factors in s 52A(7): at [151], [157].
(11) Sentencing judges should have regard to the list of matters relevant to the objective seriousness of a s 52A offence: at [158]. Those matters are:
(1) The extent and nature of injuries inflicted;
(2) The number of people put at risk (including persons other than the victims);
(3) The degree of speed, noting that the assessment of this matter will depend on the circumstances in which the offence is committed;
(4) The degree of intoxication or of substance abuse (noting that this factor is relevant even where the Crown cannot establish a more serious offence was committed);
(5) Any erratic or aggressive driving;
(6) Any competitive driving or “showing off”;
(7) The length of the journey during which others were exposed to risk. This refers to the length of the intended journey, not the journey attenuated by the collision. The danger created by the length of the journey will vary according to other circumstances, such as the time at which it is undertaken, the amount of traffic, and the locale;
(8) Ignoring of warnings;
(9) Escaping police pursuit (noting that this is a statutory aggravating factor under s 52A(7)(c));
(10) The degree of sleep deprivation;
(11) Failing to stop;
(12) The offender is a professional driver/rider (such as truck, bus, taxi, or ride share driver) where the nature of the vehicle being driven contributes to the potential for harm to others;
(13) Driving while using a mobile phone or visual display device;
(14) Taking part in an unlawful speed race or speed trial; and
(15) Where the offence is a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle: s 21A(2)(p) Sentencing Act.
(12) As in all sentencing matters, it is necessary and appropriate for sentencing judges to consider separately the offender’s moral culpability when the evidence or submissions give rise to that issue. A finding that moral culpability is reduced due to mental illness, cognitive impairment, deprived childhood or youth does not automatically translate into a reduced sentence: at [113], [127], [160].
Harris v R [2021] NSWCCA 322; NK v R [2025] NSWCCA 73; R v Millwood [2012] NSWCCA 2; Engert v R (1995) 84 A Crim R 67, considered.
(13) Revoking Whyte is not intended to have any impact on the past decisions and sentencing statistics concerning s 52A, which continue to be of some limited assistance in sentencing but do not fix the boundaries of the appropriate sentence: at [131]-[135], [161].
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied.
(14) Whether an ICO is available depends on whether an aggregate sentence of three years or a single sentence of two years’ imprisonment reflects the purposes of sentencing in a particular case. ICOs may be appropriate in cases involving a brief lapse of attention: at [142], [149], [162].
R v Weldon [2025] NSWCCA 21, considered.
As to the substantive appeal:
(15) Under the heading “Seriousness of the dangerous driving offences”, the sentencing judge took into account subjective factors such as the applicant’s age and prior convictions when considering the “typical case” in Whyte. Sufficient doubt exists about whether his Honour included subjective factors in his assessment of objective seriousness such as to demonstrate error: at [207]-[212].
Zreika v R [2021] NSWCCA 243; Stuckey v R [2025] NSWCCA 216; Hawat v R [2020] NSWCCA 121, considered.
(16) This was objectively serious offending in which members of the public were put at serious risk due to the applicant’s prolonged course of dangerous driving. In exercising the sentencing discretion afresh, the Court would have arrived at a slightly higher sentence than that imposed by the sentencing judge and thus dismissed the appeal: at [220]-[221].
The learned sentencing judge erred in his assessment of the objective seriousness of the dangerous driving offences by taking into account factors in the guideline judgment that were not relevant to that assessment. (Emphasis added.)
The reference to the “guideline judgment” is a reference to R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (“Whyte”). That guideline was issued by this Court 24 years ago. Whyte was itself a reconsideration of the earlier guideline for sentencing for dangerous driving offences promulgated in R v Jurisic (1998) 45 NSWLR 209 (“Jurisic”) in 1998, 28 years ago.
When listing this matter for hearing, it was considered that the applicant’s appeal would be an appropriate opportunity for this Court to review the Whyte guideline judgment given the effluxion of time since it was delivered. The Attorney General of New South Wales, the Senior Public Defender and the Director of Public Prosecutions (NSW) (“the Director”) were all notified of that intention by the Court.
The Attorney General intervened and provided submissions under s 39A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) and the Senior Public Defender intervened and provided submissions pursuant to s 38 of the Sentencing Act. Although already a party to the appeal, the Director also made submissions on this issue pursuant to s 39 of the Sentencing Act.
The joint position of the Director, the Attorney General and the Senior Public Defender was that this Court should revoke the Whyte guideline judgment. The applicant did not seek to be heard against revocation.
The Court will first consider the question of whether the Whyte guideline judgment should be revoked and what, if anything, should replace it, before turning to consider the applicant’s appeal against his sentence.
The first guideline judgment issued by the Court was Jurisic. As will be discussed further below, it followed a number of successful Crown appeals in dangerous driving cases under s 52A of the Crimes Act.
After Jurisic, the Court issued four more guideline judgments over the following two years.
In R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (heard on 18 and 19 March 1999 and issued on 12 May 1999), the Court (Spigelman CJ, Wood CJ at CL, Newman, Hulme and Simpson JJ) issued a guideline for sentencing for the offence of armed robbery contrary to s 97(1) of the Crimes Act.
In R v Wong (1999) 48 NSWLR 340; [1999] NSWCCA 420 (“Wong (CCA)”) (heard on 30 July 1999 and issued on 16 December 1999) the Court (Spigelman CJ, Mason P, Simpson, Sperling and Barr JJ) issued a guideline in relation to narcotics importation offences contrary to the then s 233B of the Customs Act 1901 (Cth).
In Re Attorney General*’*s Application (No 1) Under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435 (“Ponfield”) (heard on 1 October 1999 and issued on 16 December 1999) the Court (Spigelman CJ, Grove and Sully JJ) issued a guideline in relation to the offence of break, enter and steal contrary to s 112(1) of the Crimes Act. That guideline was issued under the now repealed Part 8 (s 26) of the Criminal Procedure Act 1986 (NSW).
In R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (heard on 12 May 2000 and issued on 17 August 2000) the Court (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ) issued a guideline in relation to discounts for pleas of guilty under s 22 of the Sentencing Act.
Doubt was raised by the High Court as to whether this Court has the power or jurisdiction to issue guideline judgments, at least concerning federal matters, in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 (“Wong”) in which the guideline judgment in Wong (CCA) was overturned. While that case was ultimately decided on a finding of incompatibility between that particular guideline judgment and s 16A of the Crimes Act 1914 (Cth), Gaudron, Gummow and Hayne JJ held that this Court had neither jurisdiction nor power to issue a guideline judgment, observing the following at [84] (footnotes omitted):
No doubt the provisions of the Criminal Appeal Act which give the Court of Criminal Appeal its jurisdiction and its powers are to be read without “making implications or imposing limitations which are not found in the express words”. But the conclusion that the jurisdiction conferred on the Court of Criminal Appeal by the Criminal Appeal Act does not extend to publication of expected or intended results in proceedings other than the proceeding before the Court is a conclusion that does not depend on implying some limitation on or in the provisions by which the jurisdiction is given. In the words of s 5D(1) of the Criminal Appeal Act, the Court’s powers were to “vary the sentence and impose such sentence” on the particular offenders as was proper. It had jurisdiction in the matter which concerned the sentence passed on those particular offenders. It had no jurisdiction in respect of sentences passed or to be passed on others. The publication of a table of future punishments was neither to vary the sentence that was passed nor to pass a new sentence. It is not within the jurisdiction or the powers of the Court to publish such a table because, to adopt constitutional terms, that is not directed to the quelling of the only dispute which constitutes the matter before the Court. Nothing in s 12 of the Criminal Appeal Act gave the Court any relevant additional jurisdiction or power. (Emphasis in original.)
Division 4 of Part 3 of the Sentencing Act was enacted in 2001 and commenced on 18 December 2001. Since that time, it has governed the process by which this Court may make, review, vary and revoke guideline judgments. The Sentencing Act now expressly provides that the Court may give a guideline judgment either on the application of the Attorney General (s 37(1)) or on its own motion (s 37A). Before giving a guideline judgment, the Court must give the Senior Public Defender, the Director and Attorney General an opportunity to appear as provided for in ss 38, 39 and 39A (s 37A(2)).
A guideline judgment is defined in s 36 as:
… a judgment that is expressed to contain guidelines to be taken into account by courts sentencing offenders, being—
(a) guidelines that apply generally, or
(b) 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).
Sentencing judges are required to take guideline judgments into account when sentencing for the particular offence: Whyte at [65]; Moodie v R [2020] NSWCCA 160; (2020) 284 A Crim R 87 at [24]. A guideline is in addition to any other matter required to be considered under Division 1 of Part 3 of the Sentencing Act and does not limit or derogate from any such requirement: s 42A.
Section 37B provides for the review, variation and revocation of guideline judgments:
37B Review, variation and revocation of guideline judgments
A guideline judgment given in proceedings under section 37 or 37A may be reviewed, varied or revoked in a subsequent guideline judgment of the Court, whether or not given under the same section.
Nothing in this Division—
(a) limits any power or jurisdiction of the Court to give a guideline judgment that the Court has apart from this Division, or
(b) requires the Court to give any guideline judgment under this Division if it considers it inappropriate to do so.
Following the enactment of Division 4 of Part 3 of the Sentencing Act, three more guideline judgments were issued pursuant to the Sentencing Act.
This Court (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ) revisited the Jurisic guideline in Whyte (heard on 15 April 2002 and issued on 20 August 2002). We shall return to that guideline in more detail below.
In Attorney General*’*s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 (heard on 25 November 2002 and issued on 20 December 2002), the Court (Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ) issued a guideline in relation to Form 1 documents under s 32 of the Sentencing Act.
Finally, in Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Content of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303 (“High Range PCA Guideline”) (heard on 5 May 2004 and issued on 8 September 2004), the Court (Spigelman CJ, Wood CJ at CL, Grove, Dunford and Howie JJ) issued a guideline in relation to high range prescribed content of alcohol (PCA) offences.
No guideline judgment has been issued by this Court since the High Range PCA Guideline in 2004.
For completeness it should be noted that in 2002 the Court (Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ) declined to issue a guideline for the offence of assault police: Attorney General*’*s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196 (“Application for a guideline for Assault Police”). We will consider that decision further below at [59].
ensure that guideline judgements (whether given on application of the Attorney General or on the Court’s own motion) may be reviewed, varied or revoked in any subsequent guideline judgment of the Court …
(Explanatory Note, Criminal Legislation Amendment Bill 2001 (NSW) at 6)
The Senior Public Defender queried whether there was a mechanism for this Court to revoke Whyte without making its own “subsequent guideline judgment” and submitted that this Court should instead issue a statement of reasons providing guidance to sentencing courts without any numerical component.
The Director agreed with the Senior Public Defender that s 37B in its terms required a new guideline to be issued in the event of revocation of the existing guideline, but submitted that this would only require guidance on the sentencing principles applicable to s 52A offences rather than requiring a numerical guideline. The Attorney General submitted that when an existing guideline judgment is revoked, the judgment that does this is in any event a “guideline judgment”.
None of the parties contended that this Court should simply revoke the guideline without issuing any guidance as to the relevant principles applicable when sentencing for offences contrary to s 52A of the Crimes Act.
Given the broad definition of “guideline judgment” in s 36 of the Sentencing Act, there is no statutory bar to this Court revoking a guideline judgment and in lieu thereof issuing as a “guideline judgment” a statement of relevant sentencing principles for s 52A offences without quantitative guidance: see Wong at [60]. That was the course advanced by the parties and which, for reasons set out below, we consider it is appropriate for the Court to adopt. We set out later in these reasons a statement of sentencing principles which should be treated as a new guideline for s 52A offences and thus is required to be taken into account by sentencing judges in accordance with s 42A of the Sentencing Act.
Each member of the Court has considered the judgments and sentencing outcomes in many cases of dangerous driving causing death and grievous bodily harm. A survey of the authorities spanning several decades serves as a reminder that these are some of the most challenging and potentially traumatising cases to come before the Court. The lives of people directly involved in the events have been turned upside down by the offence or offences and their involvement in the judicial process that follows.
In cases involving death, members of the victim’s family and community – or “secondary victims” – are left with devastating grief and a sense of bewilderment and loss that may, and probably will, last their whole lives. A gaol sentence, regardless of its length and severity, will rarely, if ever, seem long enough for those whose loved ones have been taken away by a random and tragic event.
Similar considerations apply to those who have been seriously injured. These victims have suffered, and will usually continue to suffer, significant pain and disability which may impact on them psychologically, socially and financially for many years. Their pain and suffering are likely to last well beyond any term of imprisonment that a sentencing judge can properly impose.
On the other side of these cases are the family of offenders, and the offenders themselves, who must also live with the tragedy and its legal consequences. Even in the worst of cases, the offender generally did not act with a malicious intention towards the victim. As we will observe, these are crimes of strict liability and, perhaps more than most offences, punish consequences. They are also cases where the sentencing court often has compelling evidence of real and deep contrition on the part of the offender. None of this is to understate the criminality involved in causing injury or taking human life by driving dangerously or while intoxicated. However, there are people who regularly drive too fast, or aggressively, or after consuming alcohol or drugs, who never get caught, let alone cause a collision which results in devastating injury or takes human life. The offender and their family, if properly advised, will be told at an early stage that that a gaol sentence is the most likely outcome. They will live with that hanging over them during the inevitable delay in the court process.
The offence of “culpable” driving was created to overcome “the reluctance of courts to convict motorists of manslaughter”: R v Jiminez (1991) 23 NSWLR 394 at 400 citing Attorney-General v Bindoff (1953) 53 SR (NSW) 489; see also the remarks of Gleeson CJ to the Judicial Conference of Australia Colloquium, “Out of Touch or Out of Reach” (Speech, Adelaide, 2 October 2004). In turn, the guideline judgments in Jurisic and Whyte responded to a pattern of inadequate sentencing probably resulting from the judges’ compassion for the offender.
We raise these matters because they bring into focus the sensitivity of these cases, the human toll they take, and the reality that sentencing judges are called on to make very difficult evaluative decisions in an emotionally charged atmosphere. This provides a strong reason why continuing guidance is desirable in relation to offences under s 52A.
Section 52A was inserted into the Crimes Act by the Crimes (Amendment) Act 1951 (NSW). It created a misdemeanour of “culpable driving”. When first enacted, the maximum penalty for culpable driving causing death was 5 years’ imprisonment and the maximum penalty for culpable driving causing grievous bodily harm was 3 years’ imprisonment.
In 1994, s 52A was repealed and re-enacted with substantially increased penalties by the Crimes (Dangerous Driving Offences) Amendment Act 1994 (NSW). This was in response to concerns that the maximum penalties were so low that sentencing judges were left with insufficient scope to impose appropriate penalties: see R v Heinrich (1992) 61 A Crim R 212 at 220; R v Garlick (1994) 73 A Crim R 433 at 439-440 (Carruthers J).
Section 52A of the Crimes Act relevantly provides as follows:
(1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle—
(a) under the influence of intoxicating liquor or of a drug, or
(b) at a speed dangerous to another person or persons, or
(c) in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 10 years.
(2) Aggravated dangerous driving occasioning death A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.
(3) Dangerous driving occasioning grievous bodily harm A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle—
(a) under the influence of intoxicating liquor or of a drug, or
(b) at a speed dangerous to another person or persons, or
(c) in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 7 years.
(4) Aggravated dangerous driving occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years.
…
(7) Circumstances of aggravation In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which—
(a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or
(b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or
(c) the accused was driving the vehicle to escape pursuit by a police officer, or
(d) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination).
Thus, it can be seen that the four offences created by s 52A are all offences of strict liability (but not “absolute” liability): Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14 at [15], [17]-[18]. They are as follows:
Dangerous driving occasioning death (s 52A(1)) – maximum penalty of 10 years’ imprisonment;
Aggravated dangerous driving occasioning death (s 52A(2)) – maximum penalty of 14 years’ imprisonment;
Dangerous driving occasioning grievous bodily harm (s 52A(3)) – maximum penalty of 7 years’ imprisonment; and
Aggravated dangerous driving occasioning grievous bodily harm (s 52A(4)) – maximum penalty of 11 years’ imprisonment.
Hunt CJ at CL considered the effect of the increased maximum sentences for offences contrary to s 52A in R v Slattery (1996) 90 A Crim R 519 at 524:
The action of the legislature in almost tripling the maximum sentence for a particular type of offence must be taken by the courts as reflecting community standards in relation to the seriousness of that offence, and the courts are required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner. (Footnote omitted.)
In the years after 1994, the significant increases to the maximum penalties were not reflected in the sentences imposed for offences contrary to s 52A of the Crimes Act. As Spigelman CJ observed in Jurisic, despite clear indications from the Court about the seriousness of the offence, there had been a “pattern of inadequacy” and “a continued flow of, almost invariably successful, Crown appeals from sentences for offences under s 52A” (at 228-229). Observing the need for further guidance from the Court, this Court in Jurisic promulgated its first guideline judgment for s 52A offences.
As to the gravamen of the offences in s 52A of the Crimes Act, Spigelman CJ cited R v Boswell [1984] 3 All ER 353 at 356; [1984] 1 WLR 1047 (Lord Lane CJ) at 223 of Jurisic as follows:
… the motor car is a potentially lethal instrument. Any driver who fails to realise that what he is doing at the wheel is creating a risk when to any ordinary person such risk would be obvious, or, even worse, sees the risk and nevertheless takes a chance on avoiding disaster and so kills, is prima facie deserving a severe punishment.
As explained above, the Jurisic guideline was reviewed in Whyte. The Court issued a guideline judgment on its own motion under s 37A of the Sentencing Act to replace that in Jurisic. This was done, not only to clarify the concerns about the degree of prescription in guideline judgments following Wong, but also to state more fully the particular case to which the numerical guideline applied (at [195]-[197]).
Whyte involved a Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW). The respondent was charged with one count of aggravated dangerous driving occasioning grievous bodily harm contrary to s 52A(4) of the Crimes Act. After the Crown closed its case, the respondent entered a guilty plea. He was sentenced to a term of imprisonment of 2 years and 3 months.
Spigelman CJ (with whom Mason P, Barr, Bell and McClellan JJ agreed) observed the following at [68]:
Nothing in any of the judgments in Wong qualifies the general principle that it is appropriate for intermediate courts of appeal to lay down guidelines for the exercise of a discretion. As Mason and Deane JJ said in Norbis v Norbis (1986) 161 CLR 513 at 519:
“… it does not follow that, because a discretion is expressed in general terms, Parliament intended that the court should refrain from developing rules or guidelines affecting its exercise.”
(i) A young offender;
(ii) Of good character with no or limited prior convictions;
(iii) Death or permanent injury to a single person;
(iv) The victim is a stranger;
(v) No or limited injury to the driver or the driver’s intimates;
(vi) Genuine remorse; and
(vii) Plea of guilty of limited utilitarian value.
As the Parliament has made clear, in the maximum penalties for the offence, conduct which causes death or grievous bodily harm, even in the absence of any intention to cause such injury, is to be regarded as a serious crime. However, in determining the appropriateness of full time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence. (Emphasis added.)
The guideline this Court should give pursuant to s37A of the Crimes (Sentencing Procedure) Act 1999 with respect to the typical case identified above is: A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment. (Emphasis added.)
(i) Extent and nature of the injuries inflicted;
(ii) Number of people put at risk;
(iii) Degree of speed;
(iv) Degree of intoxication or of substance abuse;
(v) Erratic or aggressive driving;
(vi) Competitive driving or showing off;
(vii) Length of the journey during which others were exposed to risk;
(viii) Ignoring of warnings;
(ix) Escaping police pursuit;
(x) Degree of sleep deprivation; and
(xi) Failing to stop.
… frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion. (Emphasis added.)
“Where the offender’s moral culpability is high, a full time custodial head sentence 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.”
In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate. (Emphasis added.)
In the case of the aggravated version of each offence under s52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment. (Emphasis added.)
This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration. For the reasons I have given above, when discussing the proportionality cases, particularly Dodd, this approach reflects the principle of proportionality as discussed in those cases. … (Emphasis added.)
Section 21A of the Sentencing Act was introduced by the Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 (NSW). It commenced on 15 April 2002. By coincidence, W**hyte was heard by the CCA on that same day and delivered on 20 August 2002. Spigelman CJ referred to s 21A in Whyte at [57]-[66] and [232]-[233].
Section 21A was initially headed, “General sentencing principles”. It listed a number of factors that the court “must take into account … as are relevant and known to the court”. These were:
(a) the nature and circumstances of the case,
(b) if the offence forms part of a course of conduct consisting of a series of criminal acts—that course of conduct,
(c) the personal circumstances of any victim of the offence, including:
(i) the age of the victim (particularly if the victim is very old or very young), and
(ii) any physical or mental disability of the victim, and
(iii) any vulnerability of the victim arising because of the nature of the victim’s occupation,
(d) any injury, loss or damage resulting from the offence,
(e) the degree to which the offender has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence, or
(ii) in any other manner,
(f) the need to deter the offender or other persons from committing an offence of the same or a similar character,
(g) the need to protect the community from the offender,
(h) the need to ensure that the offender is adequately punished for the offence,
(i) the character, antecedents, cultural background, age, means and physical or mental condition of the offender,
(j) the prospect of rehabilitation of the offender.
Section 21A was significantly amended from 1 February 2003 in the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW). It enumerated aggravating and mitigating factors to coincide with the introduction of standard non-parole periods (“SNPPs”). It was re-headed “Aggravating, mitigating and other factors in sentencing” at that time.
By the same amending Act and on the same day, 1 February 2003, Part 4, Division 1A of the Sentencing Act commenced. It set out SNPPs for specified offences in the table behind s 54D of the Sentencing Act. No SNPP was provided for offences contrary to s 52A of the Crimes Act.
The guideline judgment is sought pursuant to an application dated 10 May 2002. After this date the Parliament of New South Wales has made substantial amendments to the regime for sentencing offenders in the State. The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (“the 2002 Act”) received the Royal Assent on 22 November 2002. The Court has been informed that the amendments introduced by that Act are to be proclaimed to take effect as and from 1 February 2003.
…
The Senior Public Defender submitted that, if appropriate under any circumstances, a guideline judgment with respect to the present offence is premature. In this respect he relied in part on the recent enactment of the amendments to the Sentencing Procedure Act by the 2002 Act. Those amendments include the identification of purposes of sentencing in s3A. They also include the identification of a list of aggravating and mitigating factors in the new s21A.
Many of the listed aggravating and mitigating factors reflect the common law. Nevertheless, some are expressed in ways which differ from that contained in any judgment. Furthermore, they differ from the list of considerations identified in the former s21A which was based in large measure on s16A of the Commonwealth Crimes Act. That section included matters covered in the new s3A as well as many of the matters referred to in s21A.
The list of aggravating factors is stated in a form which has not hitherto been required to be taken into account by sentencing judges. The guideline proposed is basically derived from this list of aggravating factors plus three specific additional ones, based on circumstances that often arise with respect to offences under s60(1).
Further, this Court did not receive submissions about the impact of s3A of the 1999 Act which also takes effect from 1 January 2003. It is arguable that some of the “purposes of sentencing” which must now guide sentencing decisions constitute a change of pre-existing sentencing principle.
For example, “prior” case law refers to the role of sentencing to protect the community, but that objective was often said to be achieved by means of rehabilitation, deterrence or retribution. Section 3A(c) now suggests that this should be regarded as a separate “purpose” and one concerned with protection of the community “from the offender”.
It may also be arguable that s3A(c) – making the offender “accountable” - introduces a new element into the sentencing task. The same may be true of the reference to “harm” to “the community” in s3A(g).
In the absence of argument, I would not wish to be understood to be expressing a view on these matters. The possibility that prior sentencing principle may need to be reviewed does, however, support the conclusion that the present application is premature.
The guideline is sought at a time when the new identification of the purposes of sentencing and the specification of a list of aggravating factors has not been considered by any court. What, if any, effect this new regime will have on the sentencing pattern for offences under s60(1) of the Crimes Act must be a matter of speculation.
Finally, as I have noted above, both offences under s60(2) and s60(3) of the Crimes Act 1900 are included in the table for which the Sentencing Procedure Act now provides for a standard non-parole period. Though not directly relevant for purposes of s60(1), the three subsections of s60 clearly involve offences in a hierarchy, with the maximum sentences increasing from five years to seven years to twelve years, being respectively three years, two years and two to five years longer than the maximum sentences for the parallel offences when committed against a person other than a police officer. A new sentencing pattern may well emerge for s60(2), because of the introduction of standard minimum non-parole periods. This new pattern could have an influence on future sentencing patterns for s60(1).
In my opinion, this Court should allow the new legislative scheme to operate, and to acquire some experience with its effects, prior to determining a guideline with respect to this offence.
… the last guideline judgment dealing with sentencing for a particular offence was delivered in 2004 (for high range PCA offences). In the Keynote Address to the Sentencing Conference 2008, entitled “Consistency in Sentencing” (2008) 9 TJR 45 at 53, Spigelman CJ explained why guideline judgments had fallen into disuse:
“In New South Wales the system of guideline judgments was first established by the Court of Criminal Appeal but was reinforced by supportive legislation. It is a system which has ceased to grow because of the introduction into our sentencing legislation of a scheme of indicative ‘standard’ non-parole periods, providing the same guidance in legislative form. The scheme of the legislation is such as to cover virtually every offence that was capable of being the subject of a guideline judgment.
Such judgments are not prescriptive in character but they do establish a system in which sentencing judges have to take the guideline into account as a check or indicator or guide, with a requirement to address the guideline and to articulate reasons for its applicability or inapplicability to the case in hand. The principal objective of a guideline judgment is to promote consistency.”
The standard non-parole period scheme was enacted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, which also introduced ss.3A and 21A into the Crimes (Sentencing Procedure) Act 1999. In a judgment which declined to issue a guideline judgment for assault police offences under s.60(1) Crimes Act 1900, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) noted the enactment of ss.3A and 21A as well as the creation of the standard non-parole period scheme, which did not apply to s.60(1) Crimes Act 1900 offences: *Re Attorney General’*s Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) (2002) 137 A Crim R 196; [2002] NSWCCA 515 at [13]-[17], [54]-[61]. The introduction of ss.3A and 21A bore on the question whether the Court should issue a guideline judgment. …
As Rothman J noted at [131], a policy decision was taken in 2002 not to extend the standard non-parole period scheme to offences which had been the subject of guideline judgments.
Since 2002, offences have been added to the standard non-parole period scheme and some periods have been altered, all by statutory amendment. In addition, after the decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, amendments were made in 2013 to ss.54A and 54B Crimes (Sentencing Procedure) Act 1999: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [91]-[96], [103]-[113].
These statutory developments were accompanied by many decisions of this Court which have considered the proper construction and operation of ss.3A and 21A Crimes (Sentencing Procedure) Act 1999 as well as the operation of the standard non-parole period scheme.
…
It is now 21 years since R v Henry was decided and 18 years since the decision in R v Whyte. Self-evidently, there have been substantial developments in statutory and common law principles concerning sentencing in New South Wales during that period.
It remains the case that offences under s.97(1) Crimes Act 1900 are not included in the standard non-parole period scheme although offences under s.98 Crimes Act 1900 (robbery with arms etc and wounding) do attract a standard non-parole period.
There has been no application for a revised guideline judgment for s.97(1) offences. If a standard non-parole period was not to be fixed for s.97(1) offences, then a revised guideline judgment for s.97(1) offences would have the advantage of setting a guideline in the contemporary context of sentencing law, including ss.3A and 21A, together with principles which have been stated by the High Court of Australia and by this Court since 1999.
These observations are not made to urge that a particular approach be taken by the legislature or by the Attorney General. Rather, they are intended to emphasise the fact that District Court Judges (at first instance) and this Court (on appeal) are called upon to consider and apply guideline judgments, which continue to have statutory force, alongside a range of statutory and common law principles which have developed since the R v Henry guideline judgment was issued in 1999.
Although there was general agreement that the Whyte guideline judgment should be revoked, the parties relied on slightly different arguments to submit why that was the case.
The Attorney General, the Senior Public Defender and the Director all agreed that two of the reasons why the Whyte guideline judgment should be revoked are that:
The guideline judgment’s references to “moral culpability” are correctly to be understood as matters going to “objective seriousness” and those references are now apt to cause confusion; and
Reference to a “plea of guilty of limited utilitarian value” as an indicium of the “typical case” is outdated in light of the subsequent codification of sentencing discounts in the Sentencing Act.
The Attorney General and the Senior Public Defender also submitted that the “typical case” identified in Whyte no longer reflects the reality of this type of offending as demonstrated by the statistics.
The Senior Public Defender also submitted that Whyte is outdated due to subsequent statutory developments. For example, the guideline’s reference to full-time imprisonment was made prior to the introduction of intensive correction orders (“ICOs”).
Finally, the Attorney General contended that the Whyte guideline has had the effect of artificially depressing sentencing patterns for offences contrary to s 52A, particularly in relation to more serious offences and offending. Neither the Director nor the Senior Public Defender joined in this submission. The Attorney General’s submission relied upon a detailed examination of various sentencing statistics.
We will address these submissions in turn.
The parties submitted that the reference to “moral culpability” in Whyte was apt to cause confusion and went beyond matters properly so described. We agree.
As this Court observed in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [64], citing Beech-Jones CJ at CL in Paterson v R [2021] NSWCCA 273, a finding of objective seriousness involves an objective assessment of the seriousness of the crime and the matters causally related to it, whereas a finding of moral culpability is concerned with an offender’s moral blameworthiness for the offence.
The term “moral culpability” can be traced to the decision of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (“Veen (No 2)”). In Veen (No 2) the High Court explained the following regarding the relevance of an offender having prior offences for similar offending at 477-8:
There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell [(1970) AC 642, at p 650]. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted*. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case*, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties. (Emphasis added; footnote included.)
Although moral culpability was first raised as a sentencing consideration in Veen (No 2), it has really only been since the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (“Muldrock”) in 2011, and the later decisions of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 in 2013, that making a finding as to an offender’s “moral culpability” has become a common feature in a judge’s sentencing reasons. Following these decisions, it is now recognised that an offender’s “moral culpability” for the offending may be reduced by reason of a mental illness or intellectual disability or impairment (Muldrock; see also Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”)), an offender’s profoundly deprived childhood (Bugmy) or youth (see for example Sarhene v R [2022] NSWCCA 79 at [25]; TM v R [2008] NSWCCA 158 at [33]-[36]). Whether such a finding is made will depend on the evidence put before the court in any given case.
An assessment of the “objective seriousness” of an offence, on the other hand, is a finding that must be made in every sentencing exercise. That is because of the principle of proportionality. As the High Court observed in Hoare v The Queen (1989) 167 CLR 348 at 354; [1989] HCA 33 (“Hoare”) (having cited various passages from Veen (No 2)):
… a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances. (Emphasis in original.)
… no matter how poor the offender’s subjective case and how much of a danger to the community they represent, absent express statutory authority to the contrary, a court cannot impose a sentence which exceeds that which is appropriate or proportionate to the gravity of their crime.
In a line of cases, commencing with R v Dodd (1991) 57 A Crim R 349 at 354, referred to and affirmed by a five judge bench in R v Whyte (2002) 55 NSWLR 252 at [156]-[158], the proportionality principle is also held to apply so that a sentence should not be less than the objective gravity of the offence requires.
Thus, no matter how positive an offender’s subjective case might be, a sentencing court cannot impose a sentence which is less than that which is appropriate or proportionate to the objective gravity of their crime.
This Court (Beech-Jones CJ at CL, N Adams and Cavanagh JJ) considered the interaction between these two separate but related concepts in DS v R; DM v R, in which the Court rejected a submission that an assessment of an offender’s “moral culpability” was part of the determination of the objective seriousness of the offending. As the Court concluded at [128]:
The principal contention made in support of this ground was that the sentencing judge erred in failing to “take into account [DM’s] moral culpability in assessing the objective seriousness of this offence”. For the reasons addressed above, the proposition that an assessment of moral culpability informs or is part of the assessment of the objective seriousness of the offence is rejected.
(1) The “objective seriousness” of an offence and the “moral culpability” of the offender are “two separate but related concepts”. The former involves an objective assessment of the seriousness of the crime and the matters causally related to it. The latter is concerned with an offender’s moral blameworthiness for the offence: DS v R; DM v R at [64] citing Paterson v R [2021] NSWCCA 273 at [29] per Beech-Jones CJ at CL with whom R A Hulme and N Adams JJ agreed.
(2) References to moral culpability being “reduced” means reduced by reference to the moral culpability that corresponds or substantially corresponds with the objective seriousness (or gravity) of the offence: DS v R; DM v R at [91]. This corresponds with what Beech-Jones CJ at CL observed in Paterson v R at [31], namely, that the moral culpability of an offence includes a consideration of the objective seriousness of the offence because that is what the moral blameworthiness is being assessed against.
(3) “Objective seriousness” and “moral culpability” are not statutory phrases and the discussion of them is not meant to burden sentencing judges but rather “to assist them by inviting, and to an extent requiring, them to determine the seriousness of the offence and how much moral blame the offender bears, but only as part of a consideration of the weight to be attached to the various sentencing factors and for the purpose of undertaking the instinctive synthesis described in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25”: DS v R; DM v R at [92]-[93].
(4) Although the Court rejected the suggestion that an assessment of moral culpability forms part of the assessment of objective seriousness, it was accepted that an offender’s mental condition “may” affect an assessment of the objective seriousness of an offence in limited circumstances. The Court explained this at [95] and [96] as follows:
“[95] In relation to moral culpability, it has long been accepted that ‘[w]here the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced’ (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]) with potential consequential effects upon the weight to be afforded to the various sentencing factors, including denunciation and general deterrence. This form of connection between the offence and its commission might be described as ‘a’ causal connection, but it need not be the direct or precipitating cause (see Moiler v R [2021] NSWCCA 73 at [59] per Button J with whom Basten JA and Davies J agreed) (emphasis added).
[96] It follows that an offender’s mental impairment is a matter that can affect both an assessment of moral culpability and objective seriousness. However, while a mental impairment ‘may’ affect an assessment of the objective seriousness of an offence it will not necessarily do so, even if it is said that there is ‘a’ causal connection between the impairment and the offence. The critical factors are the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter. The most obvious such circumstance is where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. Another example may be where an offender damaged property during a period of psychosis or while suffering delusions but in circumstance that fall short of that which might establish a mental illness defence. In such a case, it could be said that the objective seriousness of the offending was reduced perhaps substantially. Such an offence would not be premediated or planned, and the offender would not have sought or derived any advantage from their offending or possessed any malice in doing do. On the other hand, where an offender suffered from depression that impaired their decision making, it is very difficult to accept that the objective seriousness of a sexual assault they committed is somehow reduced even though it might be said that their depression materially contributed to their inability to overcome their own impulse to commit the offence. Such circumstances might warrant a reduction in their moral culpability which would in turn warrant further consideration be given to the weight attached to various sentencing factors, although it would not necessarily result in a reduction in their sentence.”
Taking these principles into account, it must be accepted that the description by Spigelman CJ in Whyte of an offender’s moral culpability being a “critical component of the objective circumstances of the offence” (at [205]) does not reflect the current understanding of “moral culpability” as discussed in the decisions of the High Court and this Court since that time. Similarly, the references to the aggravating factors as bearing upon whether the offender’s “moral culpability is high” (at [228]) are in fact references to objective features of the offending, as this Court observed in R v Eaton [2023] NSWCCA 125; (2023) 308 A Crim R 465 (“Eaton”).
In Eaton, Hamill J (with whom Lonergan and Ierace JJ agreed) considered the Whyte guideline and noted the “blurring of the terminology” and “conflation” of the two concepts of objective seriousness and moral culpability (at [45]). His Honour went on to observe the following at [56]:
… [T]he language of the guideline judgment, in the context of more recent case law, is somewhat beguiling. Spigelman CJ referred to the guideline judgment being associated with an assessment of the offender’s “moral culpability”. In doing so, his Honour referred to the features of a “frequently recurring case”, most of which were objective matters and not personal to the offender, and aggravating factors that might arise, all of which were objective features of the offence. These were the things that bore upon whether “the offender’s moral culpability was high”. The Director (in this case) submitted – correctly I think – that the references to “moral culpability” in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (“Whyte”), were, in fact or essentially,references to the objective criminality of the offending. Whyte was decided in 2002. It is in more recent times, perhaps since the decision in Bugmy in 2013, that the terms have come to be discussed as different, but related, factors in the complex mixture of things to be synthesised in exercising the sentencing discretion. (Footnotes omitted.)
The second reason for revoking the Whyte guideline upon which the Attorney General, the Senior Public Defender and the Director all agreed was the significance of the codification of discounts for guilty pleas.
One of the characteristics of a typical case identified by Spigelman CJ was a “plea of guilty of limited utilitarian value” (at [204(vii)]). As Beech-Jones J noted in Stanton v R [2021] NSWCCA 123 at [29], “[t]his suggests that the guidelines allowed for the effect of the plea”.
The Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) inserted Division 1A of Part 3 entitled “Sentencing discounts for guilty pleas to indictable offences” into the Sentencing Act. Section 25D now prescribes the discounts to be applied for the utilitarian value of guilty pleas to offences on an indictment based on the timing of the plea. The guideline in Whyte is thus outdated in this respect, and the parties all submitted that this lends further support to revocation.
As Bell CJ (with whom Bellew and Ierace JJ agreed) observed in Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81 at [6], prior to the introduction of Division 1A “the utilitarian value of an early plea of guilty was one of a number of factors that could be taken into account in the synthetic sentencing exercise”. The guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 provided that the utilitarian value of a plea should generally be assessed in the range of a 10 to 25% discount with the primary consideration being the timing of the plea. Division 1A then introduced a “strict fixed sentencing discount scheme” which replaced the common law discount for the utilitarian value of a guilty plea: Stubbings v R [2023] NSWCCA 69 at [15] (Gleeson JA). It is a “mandatory and exclusive code” that operates in a “mechanical” manner depending upon when the plea is entered and almost no element of discretion is involved: Rangihuna v R [2025] NSWCCA 186 at [139] citing Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 at [2] and Doyle v R at [6].
We are satisfied that the inclusion of one of the characteristics of a “typical case” in the Whyte guideline as being a “plea of guilty of limited utilitarian value” has been the source of some confusion and potentially inconsistent with the statutory sentencing discount scheme. This provides a further basis for revoking the guideline.
The Attorney General and the Senior Public Defender also submitted that the “typical case” listed in Whyte at [204] does not represent a “typical” or “frequently recurring” case as demonstrated by the statistics.
The appropriate treatment of the characteristics of a typical case listed in Whyte was considered by Howie J in Regina v Berg [2004] NSWCCA 300 at [21] as follows:
… [T]he factors in the list set out in Whyte, as indicative of a typical case, do not operate as a checklist, the presence or absence of characteristics having some mathematical relationship with the sentence to be imposed. They merely describe the typical case and were not intended to circumscribe the sentencing judge’s discretion in the way the applicant suggests. If the applicant does not fall within a typical case for whatever reason, then the guideline is of less assistance than it might otherwise have been.
Statistics maintained by the NSW Bureau of Crime Statistics and Research (BOCSAR) indicate that most offenders convicted of an offence under s 52A are now over 25 years of age and most offenders convicted of offences contrary to ss 52A(2) and (4) had a prior criminal record. This is to be compared with the characteristics of the “typical case” in the Whyte guideline said to involve “a young offender” who is “[o]f good character with no or limited prior convictions”.
In the absence of the typical case identified in Whyte, the Attorney General submitted that the continued utility of the guideline judgment is doubtful.
The Senior Public Defender agreed that, on balance, this factor offers support for revocation. This is because inaccurate labels of the typical case are unhelpful where sentencing judges have regard to the prevalence of an offence when considering issues such as general deterrence. The Senior Public Defender also submitted that the “frequently recurring case” is necessarily incomplete, and it can distort the sentencing exercise where the guideline seeks to attribute numerical value to some rather than all of the considerations informing a sentence. The Senior Public Defender submitted that the more beneficial guide is sentences imposed in past comparable cases in the manner contemplated in Hili v The Queen*; Jones v* The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54] (“Hili”).
The Director disagreed that the inaccuracy of the “typical case” requires revocation. It was submitted that the utility of the Whyte guideline as a “guide” or “check” as opposed to a prescriptive checklist does not turn on the accuracy of the labels “frequently recurring case” or “typical case” or whether the hypothetical characteristics identified are incomplete. In any event, the Director noted that recent statistics show that a high proportion of s 52A offences are committed by young offenders.
Overall, the changes over time to the “typical case” would not alone have been a sufficient basis to warrant the revocation of the guideline. Despite this, it remains a factor in support of revocation in addition to the two reasons already discussed.
The Senior Public Defender raised a number of further developments in sentencing that, in his submission, impact the relevance of Whyte. We have already referred to some of these statutory changes above.
First, the Senior Public Defender submitted that the introduction of s 21A means that judges sentencing for s 52A offences must navigate three types of aggravating factors: the list in Whyte at [216], the list in s 21A and the “circumstances of aggravation” listed in s 52A(7) of the Crimes Act which create the aggravated forms of the offences. This was said to pose challenges in avoiding double counting and complying with the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
The Director noted in this regard that s 21A predated Whyte and was in fact discussed by Spigelman CJ (at [57]-[66]). In light of this, the Director agreed that it would be preferable not to describe the factors informing the objective seriousness of dangerous driving offences as “aggravating”.
Secondly, the Senior Public Defender observed that ICOs were introduced as a sentencing option in 2010. Since 2018, a sentencing judge must also have regard to the mandatory considerations in s 66 of the Sentencing Act before imposing an ICO which identifies community safety as the paramount consideration. The Senior Public Defender submitted that the Whyte numerical guideline, which refers to sentences of full-time imprisonment, does not account for the considerations governing the imposition of an ICO. In response to this submission, the Director submitted that these considerations have been developed and applied alongside the requirement to take into account the guideline judgment.
The Director’s submission should be accepted. There is no data or other material supporting a proposition that the Whyte guideline precludes a sentencing court from considering an ICO if the statutory scheme otherwise renders an offender eligible for one. On the contrary, the statistics maintained by the Judicial Commission’s Judicial Information Research System (“JIRS”) suggest that a significant number of offenders have been sentenced to ICOs in both the Local Court and District Court.
Otherwise, it may be accepted that changes to the Sentencing Act, and, in particular, the introduction of SNPPs, have diminished the role of guideline judgments over time.
A more controversial reason for revocation proffered by the Attorney General is the contention that Whyte has artificially depressed sentencing patterns for offences under s 52A, particularly in relation to more serious offending. The Attorney General pointed to a concern that the two and three-year numerical guidelines in Whyte are being treated by sentencing judges as a “starting point” for all offences under s 52A in a way that inappropriately directs attention away from the maximum penalties.
The statistical basis for the Attorney General’s position is perhaps best summarised by the following extract from the New South Wales Law Reform Commission, Serious r**oad c**rime, (Consultation Paper 23, December 2023) (“NSWLRC’s Consultation Paper 23”) at [4.83]:
For dangerous driving occasioning death offences, the average head sentence has hovered around 3 years (that is, the numerical guideline in Whyte). Figure 4.1 sets out average head sentences (1995–2022) for proven court appearances where dangerous driving occasioning death was the defendant’s most serious (or principal) offence. As the figure shows, there were no such court appearances in 1995. Since Jurisic was handed down, the average head sentence ranged from 2 years and 7 months, to 3 years and 9 months. (Footnotes omitted.)
Experience in other areas of the law has shown that judicially expressed guidelines can have a tendency, with the passage of time, to fetter judicial discretion by assuming the status of rules of universal application which they were never intended to have. It would, in my opinion, be unfortunate if such a trend were to emerge in the sentencing process where the exercise of the judge’s discretion, within established principles, to fix a just sentence according to the individual circumstances of the case before him or her is fundamental to our system of criminal justice. (Footnotes omitted.)
The Senior Public Defender did not accept the Attorney General’s contention that Whyte has artificially depressed sentencing patterns for offences under s 52A. It was submitted that that contention has no evidentiary foundation by reference to either case examples or statistical analysis. It was also submitted that the Attorney General’s contention suggests that sentencing judges have treated the guideline judgment as prescriptive and not as a “guide” or “check” without proffering an example where a court has made such an error. The Senior Public Defender relied upon statistics showing that sentences for s 52A offences increased following Jurisic. It was also submitted that the fact the maximum sentence has not been imposed is unremarkable where the Crown often pursues a charge of manslaughter in grave instances of death caused by driving.
Although the Senior Public Defender rejected the Attorney General’s contention that Whyte has artificially depressed sentencing patterns for offences under s 52A, included in his submission were figures taken from the NSWLRC’s Consultation Paper 23 which summarised the average annual head sentences under s 52A as follows: s 52A(1) (dangerous driving occasioning death) “hovered around 3 years”; s 52A(2) (aggravated dangerous driving offences) reflected “the higher maximum penalty, and … level of moral culpability”; s 52A(3) (dangerous driving occasioning grievous bodily harm) generally “hovered a bit below” 2 years; and s 52A(4) (aggravated dangerous driving causing grievous bodily harm) “hovered slightly below” 3 years. On one level, those figures are consistent with a “flattening” of sentences.
The NSWLRC’s Consultation Paper 23 at [4.81]-[4.82] said this:
In 2020, Justice Button commented that “there has been an obvious trend” towards “more severe sentences in more serious fatal driving cases” since Whyte was handed down in 2002. An earlier evaluation of Jurisic had also concluded that it led to more severe penalties, less prosecution appeals for inadequate sentences and greater consistency in sentencing.
A full examination of sentencing trends since Whyte would require a detailed statistical analysis, which is beyond the scope of this review. However, statistics suggest that average sentences of custody for offences under s 52A of the Crimes Act 1900 (NSW) (Crimes Act) have remained relatively consistent since the guideline judgments were handed down. (Footnote omitted.)
The Director’s position was that any finding in this regard would require a detailed qualitative analysis of sentences imposed since the Whyte guideline and cannot be based on statistics alone. This would, in her submission, be beyond the capacities of the parties and this Court. Rather, concerns about inadequate sentences can be addressed by a reaffirmation by this Court of the importance of consideration of the maximum penalty and the nature and scope of the criminal conduct proscribed by an offence.
It is ultimately not necessary for this Court to make any finding as to whether the Whyte guideline judgment has kept the sentencing “range” compressed. There are sufficient reasons for revocation without needing to make such a finding. Despite this, the existing sentencing pattern, reflected in the statistics extracted above at [99], remains a relevant guidepost for future sentencing of offenders who have committed offences contrary to s 52A. We will return to this issue further below.
As Spigelman CJ observed in 2008 (quoted in Foaiaulima v R at [60] above), the need for guideline judgments has declined since the enactment of ss 3A and 21A of the Sentencing Act as well as the introduction of SNPPs. Despite this, the Director, the Senior Public Defender and the Attorney General all agreed that sentencing judges and the legal profession would be assisted by this Court issuing a guideline for sentencing offences contrary to s 52A of the Crimes Act. Such a guideline would include the relevant principles for sentencing offences contrary to s 52A, including an identification of the factors relevant to the assessment of objective seriousness. By way of example, the Court’s attention was drawn to the decision of the five judge bench in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 which set out relevant sentencing principles for supplying a prohibited drug contrary to the Drug Misuse and Trafficking Act 1985 (NSW) at [107]-[115].
Although there was consensus that a new “guideline” concerning dangerous driving offences should be confined to setting out the relevant sentencing principles for s 52A, there were differences in emphasis as between the Director, the Senior Public Defender and the Attorney General about what those principles should include. All parties agreed that the list should include factors relevant to the assessment of objective seriousness, some general statements of principle in relation to driving offences and the relevance of ss 3A and 21A of the Sentencing Act. As we have said at [27], the parties also agreed that there was no need for a numerical guideline. The factors upon which the parties joined issue, or which were otherwise unresolved were:
What, if anything, should be included in the new guideline about moral culpability;
Whether a “failure to heed a warning not to drive” is a factor relevant to objective seriousness or moral culpability;
What, if anything, should be said about the existing “range” of sentences found in decisions of this Court and the Judicial Commission statistics;
What, if anything, the guideline should include as to the availability of an ICO as a sentencing outcome; and
What, if anything, should be said about “aggravating” factors and the concept of “abandonment of responsibility”.
We propose to consider the submissions on these issues in turn before turning to state the relevant principles to be applied henceforth in lieu of those promulgated in the Whyte guideline.
In their submissions in support of revocation of Whyte, the Attorney General and the Senior Public Defender contended that the Whyte guideline failed to direct sentencing judges to consider moral culpability after assessing objective seriousness. This raised the question of whether the new guideline should make any reference to the need to make a separate finding of moral culpability.
As stated above, in more recent times it has become a common feature of sentencing reasons to make a separate finding in connection with an offender’s subjective case as to whether their “moral culpability” is reduced (whether on account of a deprived background, mental illness, cognitive impairment or youth). It is important to note that such a finding does not automatically translate to a reduced sentence. As Dhanji J observed in Harris v R [2021] NSWCCA 322 at [89]:
The purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act are varied and, as has been said many times, will commonly pull in different directions. As the High Court’s decision in Bugmy makes clear, while a finding of reduced moral culpability may lead to a reduction in the weight to be given to general deterrence, that reduction may be counter-balanced by a corresponding need for community protection: Bugmy at [44], set out above. Additionally, the need to “recognise the long standing obligation of the State to vindicate the dignity of each victim of violence” and to “express the community’s disapproval” of the offending remained: Munda at [54] and see also Christopher Ross v R [2019] NSWCCA 314 at [44]; Dungay v R [2020] NSWCCA 209 at [142].
It is incumbent upon a sentencing judge to first assess whether that background operates to reduce the offender’s moral blameworthiness for the offending. For example, the exposure to domestic and family violence or alcohol and drug use, during an offender’s formative years, may operate to normalise that conduct such as to have an impact upon their capacity to reason, appreciate the full wrongfulness of their actions, control their conduct, understand the consequences of their offending, and may impair their capacity for emotional regulation, and increase immaturity and impulsivity.
A sentencing judge is then required to consider how the offender’s reduced moral culpability, and the reason for that reduction, bears upon the weight to be attached to the various sentencing factors such as general and specific deterrence, protection of the community, retribution and promotion of rehabilitation: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [92]-[93] (per Beech-Jones CJ at CL, N Adams and Cavanagh JJ). A reduction in moral culpability may also have an impact upon other sentencing considerations including but not limited to a finding of special circumstances.
A reduction in moral culpability does not automatically translate to a reduced sentence: Harris v R [2021] NSWCCA 322 per Dhanji J at [89] (Simpson AJA and Ierace J agreeing). A sentencing judge is required to have regard, as far as is relevant, to countervailing factors which may include the protection of the community and the need for the sentence to vindicate the dignity of the victim and reflect the community’s disapproval of the offending: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54] (per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); Marrah v The Queen [2014] VSCA 119 at [16] (per Redlich and Tate JJA).
The requirement for a sentencing judge to consider a separate submission as to whether an offender’s moral culpability is reduced has become more common. In those circumstances, this guideline judgment confirms that it is necessary and appropriate to consider separately the offender’s moral culpability when the evidence or submissions give rise to that issue.
A further question arose during the hearing of this matter as to what, if any, circumstances may warrant a finding that the moral culpability of the offence of dangerous driving might be increased. The Director and Senior Public Defender were given leave to file short notes addressing this issue and subsequently did so.
Neither the Director nor the Senior Public Defender was able to identify a reported decision in which there had been a finding that an offender’s moral culpability should increase the length of that sentence. Despite this, they both agreed that such a case could arise as a matter of sentencing principle.
The Director submitted that it was not possible to exhaustively define or list examples of matters that may increase an offender’s moral culpability for an offence. They will generally arise out of matters personal to an offender that increase their appreciation of the wrongfulness of their actions, their awareness of the risk posed by their actions and/or their understanding of the consequences of the offending.
As the High Court recognised in Veen (No 2), one recognised example of a matter which may increase an offender’s moral culpability for an offence is their antecedent criminal history*.* But, as the Director acknowledged, not every criminal history will necessarily have that effect; it will depend on the particular case. There must be a sufficient connection between the prior offending and the subject offence such that the prior offending makes the offender more morally blameworthy for the later offence. It may be that an offender with a prior conviction for drink driving is considered more morally blameworthy for a dangerous driving causing death offence committed whilst under the influence of alcohol. This is because the prior conviction(s) would have provided the offender with the opportunity to understand the possible consequences of the offending.
The Director submitted that a further basis upon which an offender’s moral culpability might be increased was if they were aware, because of their background, that particular conduct is attended by a risk of harm. An example provided was where an offender knows that they have a tendency to be violent when under the influence of drugs or alcohol but consumes the drug or alcohol anyway and commits a violent offence. Similarly, when an offender has a greater appreciation of the consequences of their actions by reason of their background or profession.
In summary, the Director submitted that any reference in a new guideline to factors which might increase moral culpability should be made “cautiously” with an appreciation that other factors in the same case may diminish moral culpability.
On behalf of the Senior Public Defender, it was accepted that, in theory, the matters identified by the Director could lead to an increase in an offender’s moral culpability but whether that occurs would depend on the circumstances of the offence and the offender.
Taking the example of an offender who was exposed to violence as a child, on the one hand that offender might be alerted to the profound and long-term consequences of such conduct which might increase their moral culpability. But, on the other hand, as the High Court observed in Bugmy at [44]:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced.
However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
A further example of how the same subjective factor may pull in different directions for the purposes of making a finding about moral culpability is a police officer who might develop an awareness of the impact of crime by attending graphic crime scenes (suggesting an increase in moral culpability) but in doing so that offender might also develop post-traumatic stress disorder (PTSD) which might later contribute to their own offending leading to a diminution of their moral culpability.
In this context it is pertinent to note the decision of this Court in R v Millwood [2012] NSWCCA 2. That decision concerned a Crown appeal against the asserted inadequacy of sentences imposed upon an offender following his pleas of guilty to one count of aggravated dangerous driving occasioning death and one count of aggravated dangerous driving occasioning grievous bodily harm. Further offences were included on a s 166 certificate. The offender was sentenced to an effective head sentence of 5 years’ imprisonment with a non-parole period of 3 years and 9 months.
The offender had a previous conviction for drink driving but also had experienced a dysfunctional childhood. In dismissing the Crown appeal Simpson J made the following oft-cited observation at [69]:
I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a “normal” or “advantaged” upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.
Thus, despite his prior convictions for drink driving, his moral culpability was reduced on another basis.
As stated above at [113], an offender’s moral culpability is a factor to be considered when raised in sentencing for s 52A offences. It will generally be invoked in submissions that the sentence should be reduced, but that is not absolute. On the other hand, there has been very little judicial consideration of the circumstances in which an offender’s moral culpability may be increased. For that reason, it is not appropriate to include that issue in the new guideline.
A question arose during the hearing as to whether a “failure to heed a warning not to drive”, which is one of the factors included in the Whyte guideline to assess what is now understood to be the “objective seriousness” of a s 52A offence, is a factor relevant to the assessment of moral culpability.
The failure by an offender to heed a warning to slow down or not to drive at all is usually considered in the context of the offender’s course of driving prior to the collision. It has historically been considered as part of the assessment of the objective seriousness of the offending, although some may also contend that it goes to moral culpability, as indeed was noted by the Senior Public Defender. The Director submitted that failing to heed warnings was a matter properly to be considered as relevant to the objective seriousness of the offending.
In all the circumstances, including the need to avoid double counting in the sentencing process, this factor should be seen as relevant to the assessment of objective seriousness.
The existing case law and the JIRS statistics all reflect cases in which the Whyte guideline has been applied. The question arises whether revoking Whyte is intended to have any impact on those decisions and statistics, particularly in the context that the Attorney General contended that the existing guideline has had a “flattening” effect on sentencing. The short answer to that question is “no”.
It is well established that although sentencing statistics such as those kept by the Judicial Commission can be of assistance, they do not fix the boundaries for future sentencing. In Hili, the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) adopted the following observations of Simpson J in De L**a Rosa at [54]:
In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”. (Footnotes omitted.)
These principles remain applicable for the future sentencing of offenders for offences of dangerous driving contrary to s 52A of the Crimes Act. The JIRS statistics will continue to have some use in sentencing as well as in seeking to establish that a sentence may be manifestly excessive or inadequate. Despite this, without detailed consideration of the objective and subjective features of each case, that assistance is usually only limited: Tuite v R [2018] NSWCCA 175 at [100]; Delleci v R [2020] NSWCCA 4 at [58]-[60].
As to whether Whyte acted to “flatten” the range of sentences for s 52A offences, as was identified by the Senior Public Defender, one possible explanation is that some of the worst cases of aggravated dangerous driving causing death would warrant the offender being charged with the offence of manslaughter instead. As N Adams J observed in Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214 at [208]-[209]:
In some cases, it may well be a matter of prosecutorial discretion as to whether an offender is charged with the aggravated statutory offence or manslaughter by criminal negligence. By way of example, an offender who causes the death of one or more persons as a result of engaging in a police chase could be liable either for the statutory offence or the offence of manslaughter. The relevant distinction, whether they were driving to escape pursuit by a police officer (s 52A(2)) or whether they were driving in such a breach of their duty to other members of the public as to merit criminal punishment, may often be a fine line.
It is well settled that when an offender, such as the applicant, is being sentenced for vehicular manslaughter he or she is being sentenced for the most serious of the driving offences which cause a death. As Howie J observed in Borkowski at [58] …:
“…[I]n cases of motor manslaughter, in my opinion, the sentence to be imposed must also take into account the fact that there is a structure of offences dealing with the occasioning of death through driving and that manslaughter stands at the very pinnacle of that structure as the most serious offence. In particular the sentence must take into account that there is a less serious offence of causing death by driving under s 52A(2) of the Crimes Act that carries a maximum penalty of imprisonment for 14 years.”
7 Intensive correction orders
(1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.
(2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.
(3) This section does not apply to an offender who is under the age of 18 years.
(4) This section is subject to the provisions of Part 5.
(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.
(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.
(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
This provision was considered by the High Court in Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3.
Section 67 of the Sentencing Act provides that ICOs are not available for certain offences. None of the offences created by s 52A of the Crimes Ac**t are included. Section 68 provides that an ICO can be imposed where the sentence of imprisonment in respect of a single offence does not exceed 2 years and the aggregate sentence of imprisonment imposed for multiple offences does not exceed 3 years.
As the Court observed in R v Weldon [2025] NSWCCA 21, which concerned a Crown appeal against the purported manifest inadequacy of a sentence in a dangerous driving causing grievous bodily harm case, there is “abundant guidance” available to sentencing judges with respect to the proper approach to the imposition of an ICO. In that context Yehia J observed the following at [86]-[88]:
In Stanley, the majority of the High Court clearly set out the three steps to be undertaken by a sentencing court in considering the imposition of an ICO. Firstly, a determination that no sentence other than a sentence of imprisonment is appropriate. Secondly, a determination of the appropriate term of the sentence of imprisonment. Thirdly, where the issue arises, consideration of whether to make an ICO: at [59].
Subsequently, this Court in Zheng v R [2023] NSWCCA 64 reaffirmed that whether an offender is to be sentenced to a term of imprisonment and if so, for what term, are questions that must be answered prior to any consideration of whether or not to impose an ICO: at [270].
Gleeson JA (Hamill and Ierace JJ agreeing) helpfully set out the necessary steps as follows:
“[270] Turning to the sequence of determinations to be made by a sentencing court under the Sentencing Act, as Gageler J recently observed in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [30]:
‘The Court of Criminal Appeal of the Supreme Court of New South Wales has held, repeatedly and correctly, that whether an offender is to be sentenced to a term of imprisonment, and (if so) for what term, are questions to be asked and answered within the scheme of the Sentencing Procedure Act before any question can arise as to whether or not to make an ICO and (if so) on what conditions.’ (Citations omitted)
[271] As to the question of whether the threshold in s 5(1) of the Sentencing Act is met, I accept her Honour’s unchallenged finding that no penalty other than imprisonment is appropriate. The applicant did not argue to the contrary.
[272] It is next necessary to determine the appropriate term of the sentence of imprisonment and, where the issue arises, consideration of whether or not to make an ICO. An ICO is a sentence of imprisonment for the purpose of s 5(1) of the Sentencing Act that is directed, under s 7(1), to be served by way of intensive correction in the community rather than full-time detention. The determination of the appropriate term of the sentence of imprisonment to be imposed is to be made without regard to, and cannot be adjusted to reflect, the manner in which the sentence is to be served: R v Zamagias [2002] NSWCCA 17 at [26]; Wany v R (2020) 103 NSWLR 620; [2020] NSWCA 318 at [20].”
Although the Senior Public Defender relied on the availability of an ICO, which was not available when Whyte was delivered, as a further reason to revoke the guideline, an analysis of the figures shows that offenders charged with offences of dangerous driving frequently do in fact receive ICOs. This is reflected in the NSW Law Reform Commission’s Report 152 in which it was observed that courts have imposed both custodial and non-custodial sentences for dangerous driving occasioning death, with 36% of offenders receiving an ICO and 60% receiving full-time imprisonment. This was said to reflect “the wide spectrum of conduct covered by each offence and the different circumstances of individual offenders” (at [5.82]).
In that report, the NSW Law Reform Commission considered a submission that ICOs should be removed as an available sentencing option for dangerous driving occasioning death. The Commission concluded that ICOs should remain available because their exclusion would otherwise inappropriately restrict the discretion of sentencing courts (at [5.77]). It was noted that ICOs may be appropriate in cases involving a brief lapse of attention. We agree that ICOs may be appropriate in cases involving a brief lapse of attention.
Some assistance as to when an ICO is not appropriate can be gleaned from the decision of this court in R v Weldon.
R v Weldon was a Crown appeal. The offender pleaded guilty to an offence of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act and an offence of failing to stop and assist after vehicle impact occasioning grievous bodily harm contrary to s 52AB(2) of the Crimes Act. An aggregate sentence of imprisonment for 2 years and 4 months to be served by way of an ICO was imposed.
The offender had been drinking with the victim and another male and was observed to consume eight and a half schooners of beer between 4:23pm and 8:37pm. He was asked to leave the hotel between 10:00pm and 11:00pm. The three men left the hotel. Sometime later the offender said to the victim, “it’s my car, give me the keys or I’ll slap ya”. The victim complied. Regrettably, he did not put his seatbelt on. After taking a wrong turn, the offender began to drive more recklessly at about 75 kilometres per hour, which was about 25 kilometres per hour above the recommended speed limit for that portion of the road. What happened next is described in the judgment as follows at [10]:
The motor vehicle drifted to the left. It then left the road and drove into a ditch, at which point the respondent lost control as he tried to swerve back onto the road. The vehicle hit three guideposts and a small warning sign, before mounting a raised bitumen section of the road and colliding with the front left side of a railway signal post. The vehicle became airborne and collided with a small wire fence, landing upside down with such force that its front grille was torn off and the left front wheel ripped away. The vehicle stopped 35 metres away from the end point of the skid mark which it had left on the road.
The most significant injuries were to his spinal cord, leading to his permanent paraplegia. The victim had a displaced shattered fractured right collar bone and fractures to his neck and back. He suffered a bilateral pulmonary contusion to his left and right ears, fractures to his sternum, a fracture to his clavicle and other lacerations. The victim is now paralysed from the chest down and requires ongoing 24-hour care. The injuries are catastrophic.
He demonstrated genuine remorse. He was assessed as posing a low risk of reoffending and having good prospects of rehabilitation. He has remained abstinent. He has no prior convictions and was found to be a person of good character. The respondent’s mental health issues and the challenges he faced in his childhood were appropriately taken into account in reducing his moral culpability.
Notwithstanding the respondent’s compelling subjective case, this Court (Davies J, Yehia J and R A Hulme AJ) held that the aggregate sentence did not reflect the totality of the criminality involved: at [115]. Although their Honours were all satisfied that the aggregate sentence was manifestly inadequate, Davies and Yehia JJ exercised the residual discretion not to intervene; R A Hulme AJ was in dissent on that question.
Despite the fact that Mr Weldon should not have been sentenced to an ICO, in that he should have received an aggregate sentence of a length which would have precluded that option, it is to be accepted that there will be less serious offending falling within s 52A in which an aggregate sentence of three years or a single sentence of two years’ imprisonment may reflect the purposes of sentencing. The question of whether an ICO should be imposed will only arise in those cases.
In the context of Whyte being a numerical guideline, it was held that, adjusting the language to modern usage, a custodial sentence will usually be appropriate unless the objective seriousness of the offence is low such as in the case of momentary inattention or misjudgement. Moreover, it was held that when the objective seriousness is high, sentences of less than the identified lengths would not generally be appropriate.
The submission of the Director and the Senior Public Defender that any statement of principle in a reissued guideline should not include a list of “aggravating” factors should be accepted. Not only are aggravating factors already included in s 52A(7), they are also included in s 21A(2) of the Sentencing Act.
Nor is it appropriate in a non-numerical guideline to identify some “point” (such as an abandonment of responsibility) beyond which a certain result would normally be appropriate. Despite this, it should remain the case that it would be in only a very rare case that a term of imprisonment would not be imposed.
The Whyte guideline is revoked. Instead, sentencing courts should henceforth approach sentencing in dangerous driving cases contrary to s 52A of the Crimes A**ct by applying general sentencing principles with particular regard to the following.
First, it is necessary for a sentencing court to pay close attention to the purposes of sentencing listed in s 3A of the Sentencing Act which include:
(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
Secondly, a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate: s 5(1) of the Sentencing Act. Despite this, it would be a very rare case in which the s 5 threshold was not crossed for any of the offences created by s 52A of the Crimes Act.
Thirdly, it is necessary for sentencing judges to remain mindful of the maximum penalty. As Gleeson CJ, Gummow, Hayne and Callinan JJ observed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]:
… [C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
Fourthly, sentencing judges should have regard to any relevant aggravating and/or mitigating factors in s 21A of the Sentencing Act. As always, judges should be careful to identify which of these are relevant to the finding of objective seriousness and those applicable to an offender’s subjective case. In so doing, judges should ensure that there has been no “double counting” when considering the aggravating factors in s 52A(7) of the Crimes Act.
In assessing the objective seriousness of an offence contrary to s 52A of the Crimes Act the following matters may be relevant:
The extent and nature of injuries inflicted;
The number of people put at risk (including persons other than the victims: Silvestri v R [2016] NSWCCA 245 at [20]);
The degree of speed, noting that the assessment of this matter will depend on the circumstances in which the offence is committed: Kerr v R [2016] NSWCCA 218 at [96]-[97] (Bathurst CJ); Stanyard v R [2013] NSWCCA 134 at [29] (Fullerton J);
The degree of intoxication or of substance abuse (noting that this factor is relevant even where the Crown cannot establish a more serious offence was committed: Rummukainen v R [2020] NSWCCA 187 at [24] (Payne JA));
Any erratic or aggressive driving;
Any competitive driving or “showing off”;
The length of the journey during which others were exposed to risk. This refers to the length of the intended journey, not the journey attenuated by the collision. The danger created by the length of the journey will vary according to other circumstances, such as the time at which it is undertaken, the amount of traffic, and the locale: R v Takai [2004] NSWCCA 392; (2004) 149 A Crim R 593 at [39] (Simpson J); Byrne v R; Cahill v R [2021] NSWCCA 185 at [115] (Rothman J);
Ignoring of warnings;
Escaping police pursuit (noting that this is a statutory aggravating factor under s 52A(7)(c) of the Crimes Act);
The degree of sleep deprivation;
Failing to stop;
The offender is a professional driver/rider (such as truck, bus, taxi, or ride share driver) where the nature of the vehicle being driven contributes to the potential for harm to others: Morabito v R**egina [2007] NSWCCA 126 at [57]-[58] (Mason P);
Driving while using a mobile phone or visual display device;
Taking part in an unlawful speed race or speed trial; and
Where the offence is a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle: s 21A(2)(p) of the Sentencing Act.
In assessing the objective seriousness of any given offence, the presence of more than one of these factors will usually lead to an increase in that assessment.
As in all sentencing matters, if a submission is made that the offender’s moral culpability for the offending should be reduced, whether because of the offender’s mental illness, cognitive impairment, deprived childhood or youth, and material is put before the Court grounding that submission, then the usual sentencing principles apply. As stated above at [111] such a finding does not automatically translate to a reduced sentence. Gleeson CJ said in Engert v R (1995) 84 A Crim R 67 at 68:
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
The JIRS statistics will continue to have a role in sentencing, but they do not fix “the boundaries within which future judges must, or even ought, to sentence”. When considering past decisions concerning s 52A offences it will be necessary to consider the whole of the circumstances of each case: Hili at [54].
As for the availability of an ICO, such a sentencing option would only be available when the offender receives a head sentence of two years’ imprisonment or less or an aggregate sentence of three years’ imprisonment or less. Whether a sentence of that length reflects the totality of the criminality will depend on the facts and circumstances of each case.
By notice of appeal filed on 29 January 2026, the applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act to appeal against the sentence imposed on him by his Honour Judge Arnott SC in the District Court on 14 November 2024.
The applicant pleaded guilty in the Local Court to two offences of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act and one offence of destroy or damage property contrary to s 195(1)(a) of the Crimes Act. These charges related to offending on 13 August 2022 when the applicant collided head-on with the victims’ vehicle after crossing onto the incorrect side of the road whilst travelling approximately 20km/h over the speed limit. He was affected by methylamphetamine use and alcohol consumption. Both victims were seriously injured.
With respect to the two dangerous driving offences, after applying a discount of 25% for his guilty pleas, the sentencing judge imposed an aggregate sentence of 4 years’ imprisonment with a non-parole period of 2 years and 6 months, commencing on 14 November 2024. The non-parole period will expire on 13 May 2027 and the head sentence will expire on 13 November 2028.
With respect to the offence of destroy or damage property, the applicant was convicted without further penalty pursuant to s 10A of the Sentencing Act.
The applicant seeks leave to appeal against the aggregate sentence on a single ground of appeal, namely that the sentencing judge erred in his assessment of the objective seriousness of the dangerous driving offences by taking into account factors in the Whyte guideline judgment that were not relevant to that assessment.
The applicant filed a Notice of Intention to Appeal on 12 December 2024. While a Notice of Appeal was filed within time on 13 November 2025, it was later substituted by the present Notice of Appeal filed on 28 January 2026. The applicant has applied for leave to file the notice of appeal out of time pursuant to r 3.5 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The Crown does not oppose the extension of time.
Agreed Facts were placed before the sentencing court (Exhibit A) and were summarised by the sentencing judge in his remarks on sentence. The following summary is drawn from his Honour’s findings of fact, which are not disputed on appeal.
On the morning of Saturday 13 August 2022, between 7:15 and 7:23am, the applicant was driving a Hilux utility vehicle. He crossed onto the incorrect side of the road as he rounded a left-hand bend on Remembrance Drive in Razorback. In doing so, he drove into the direct path of the oncoming vehicle occupied by Mr Roger Comfort and Mrs Roslyn Comfort. Mr Comfort was driving and noticed the applicant’s vehicle come around the corner “at speed” and cross into his lane. He braked as hard as he could but was unable to avoid the collision. The two vehicles collided head on.
Data from the airbag control module indicated that the applicant was travelling approximately 20km/h in excess of the speed limit, namely between 109km/h and 113km/h in an 80km/h zone.
Paramedics who attended the scene observed the applicant was confused and smelt of alcohol. The applicant could not be breath tested because of his injuries but told a police officer that he had had “possibly eight drinks”. While the applicant denied having used drugs, blood tests revealed the presence of methylamphetamine in his system. It was agreed based on expert pharmacological opinion that at the time of the offences the applicant was “under the influence of methylamphetamine to the extent that his driving ability was impaired”. The Agreed Facts stated that the applicant most likely used methylamphetamine earlier on the same day of the accident.
Prior to the collision, at approximately 6:50am, the applicant had tailgated another driver, Brittney Fox, as she drove down Argyle Street in Picton. He drove so close to her vehicle that she was worried he would hit her. She noticed the applicant’s vehicle drift from one side of the road to the other and on a couple of occasions swerve onto the wrong side of the road for a few seconds before returning to the correct lane. As she passed the George Hotel on Argyle Street, Ms Fox noticed that the applicant’s vehicle was on the wrong side of the road “completely”, travelling in the wrong lane for a longer period of time. Ms Fox reported the incident to Narellan Police Station.
At 7:15am, the applicant drove into a stationary advertising sign at the Coles Express Service Station on Argyle Street, smashing its glass cover (the destroy or damage property offence). The applicant reported the damage to the service station attendant who noticed that his speech was slow and slurred. Another witness to the incident observed that the applicant smelt of alcohol and was unable to stand without leaning. The witness told the applicant not to drive. The applicant replied that he had just had a “really big night”. The witness called Triple Zero to report the applicant’s driving to police.
After leaving the service station the applicant drove straight onto Remembrance Drive to where the accident ultimately occurred. Closed-circuit television (CCTV) footage obtained from Picton McDonald’s showed the applicant’s vehicle as he drove past travelling in the middle of two lanes.
As a result of the collision, Mr Comfort suffered fractures to the left radius and ulna (wrist), to his left ankle and to a rib on his right-hand side as well as injuries to his lower back and right shoulder. He was taken to Liverpool Hospital where he underwent surgery to repair a number of the fractures. He remained in hospital for six days. The Agreed Facts record that Mr Comfort “may be subject to long term effects to his left wrist and ankle with risk of chronic pain, joint stiffness, post-traumatic arthritis and possible further surgeries”.
Mrs Comfort suffered a fractured right first rib and a fracture of the L1 transverse process of her spine as well as a fractured pelvis. She also sustained a lumbar hernia in her lower abdomen, 10cm bilateral lacerations to her legs and a mildly comminuted fracture of her left wrist. She was treated at Liverpool Hospital for those injuries as well as the re-suturing of a surgical incision which had been healing but was reopened by the trauma of the collision. Mrs Comfort remained in hospital for 13 days but later returned to hospital for a hernia repair operation. The Agreed Facts record that Mrs Comfort had one surgery and would require at least one other, as well as a long period of rehabilitation.
The applicant also suffered injuries including tearing to his bladder and small and large intestines. The latter corresponded with seatbelt injuries. He had a small amount of blood in his lungs as well as a number of minor rib fractures and a mildly displaced fracture to his nose.
The proceedings on sentence took place on 7 November 2024. The Crown tendered the Agreed Facts, the applicant’s criminal and custodial history, and Sentencing Assessment Reports.
The victim impact statements of Mr and Mrs Comfort were also tendered. Mrs Comfort stated that she has not been able to work since the accident or lift her grandchildren and has lost motivation to socialise. Mr Comfort said that he had counselling for post-traumatic stress disorder following the accident and limits his driving.
The applicant gave evidence during the sentencing proceedings. He stated that he had no memory of the accident and did not learn of the injuries to Mr and Mrs Comfort until six months later when he was issued with the Court Attendance Notice. He gave evidence that because the incident occurred on a Saturday, he believed he was probably on his way to work.
The applicant also relied on the following documents to establish mitigating factors on sentence:
Psychological report of Lisa Boland dated 2 August 2024;
A report regarding the applicant’s successful completion of the ASPIRE Traffic Offender course;
Three testimonials from the applicant’s partner and his work supervisors; and
A letter of apology from the applicant.
Both the Crown and the applicant relied on written submissions on sentence.
The sentencing judge found that the offence of recklessly damaging property was at the lower end of the range of seriousness for offences of that type.
The complaint made by the applicant under the sole ground of appeal concerns what the sentencing judge included in his reasons under the heading “Seriousness of the dangerous driving offences”. Given the nature of the complaint, that his Honour fell into error in the manner in which he considered the Whyte guideline, it is necessary to extract his Honour’s reasons under that heading in full. They were as follows:
Although a separate assessment of the seriousness of the two offences of dangerous driving needs to be made, quite clearly apart from the differences in the injuries suffered by Mr and Mrs Comfort, both offences have common features.
In R v Whyte [2002] 55 NSWLR 252 the Chief Justice identified features of a typical offence under s 52A of the Crimes Act. There do exist the typical features of Mr and Mrs Comfort being strangers to him, that he is genuinely remorseful and I allow a 25 per cent discount for his early pleas of guilty to the sentences that I would otherwise have imposed. Additionally, he did suffer significant injuries rather than no or limited injuries. On the other hand and more serious than the “typical” features identified by the Chief Justice, is that this matter is “atypical” in that the offender is not a young offender, his prior convictions are not limited, serious injury occurred not to a single person but two, Mr and Mrs Comfort.
The Chief Justice also listed factors that aggravated a typical or frequently recurring breach of s 52A as follows:
“(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.
(viii) Ignoring of warnings.
(ix) Escaping police pursuit.”
His Honour added two other factors which are not relevant here. In the above list of aggravating factors, items (iii) to (ix) are what he described as referring to the conduct of the offender. The Chief Justice went on to say about (iii) to (ix) at [228]:
“Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct.”
I find there has been an abandonment of responsibility. I consider all items are present except item (ii) number of people put at risk, (vi) competitive driving or showing off and (iv) escaping police pursuit. The extent and nature of the injuries inflicted upon Mr and Mrs Comfort were serious. He was travelling at 20 kilometres an hour over the speed limit at the time of the accident. As to the extent of alcohol and methylamphetamine in his system it was sufficient to have impaired his driving ability, although to what extent I am unable to find. His ability to drive was not very substantially impaired by substance abuse and the concentration of alcohol in his system was certainly less than 0.15 grams of alcohol in 100 millilitres of blood. He drove aggressively tailgating Brittney Fox about half an hour prior to the accident and erratically swerving onto the wrong side of the road at and from Picton exposing others to risk during the length of his journey. He ignored the warning given to him about his dangerous driving and ability when he damaged the advertising sign.
The numerical guideline once the threshold of abandoning responsibility has been reached where the offender’s moral culpability is high, which is clearly the case with both dangerous driving offences here, is a fulltime custodial sentence of not less than 2 years in the case of grievous bodily harm. The presence of additional aggravating factors or their increased intensity determines the sentence. In stating this I keep in mind that the guideline is precisely that, a guideline and not a tramline.
(Emphasis added.)
The applicant was 42 years old at the time of the offending and 44 years old at the time of sentence.
The applicant grew up in Sydney with his parents and two brothers, but he no longer has contact with his family. The sentencing judge was prepared to accept the opinion of the psychologist, Ms Boland, that the applicant suffered anxiety since childhood and “fell in with” an unhealthy social group. This led to him commencing substance use as a teenager. He appeared to have functioned with anxiety and substance use disorder to varying degrees over the course of his life.
The sentencing judge described his criminal history as “extensive”. It included violence-related offences including domestic violence, drug possession and driving matters. He committed drink driving offences in 2004, 2008 and 2020. He also has a record of speeding offences in 2006, 2007, 2019, 2020 and 2022.
It was observed in the Sentencing Assessment Report that the applicant’s pattern of offending appears consistent with his ongoing substance abuse issues.
Leading up to the day of the offending, the applicant had been using methylamphetamine daily and drinking alcohol. He acknowledged that since being discharged from hospital since the accident he had “fallen off my horse” two or three times and taken drugs. He gave evidence, which was accepted by the sentencing judge, that he had been abstinent from illicit drugs for 12 to 18 months, but his alcohol abuse was not fully under control.
The sentencing judge found that the applicant demonstrated remorse and contrition and accepted responsibility for his actions. In the Sentencing Assessment Report, he expressed “full awareness that his choice to use drugs and drive was selfish and he felt sick from guilt regarding his actions”.
His Honour found that the applicant has reasonable or “guardedly optimistic” prospects of rehabilitation and not reoffending. His Honour noted the support of his partner, a strong motivation to prove himself an upstanding citizen and maintain his sobriety, and his attendance of sessions with a psychologist. His prospects were found to be dependent upon him remaining substance free and “gaining full insight, which at the moment is only partial, into his alcohol use issues”.
Special circumstances within the meaning of s 44(2B) of the Sentencing Act were found in the applicant’s need for assistance with his drug and alcohol issues, his anxiety disorder and the accumulation of sentences.
The sentencing judge applied a 25% discount to each of the indicative sentences for the pleas of guilty.
The sentencing judge specified an indicative sentence of 3 years’ imprisonment for both dangerous driving offences. For the damaging property offence, the sentencing judge indicated a sentence of conviction with no further penalty pursuant to s 10A of the Sentencing Act.
As outlined above, the aggregate sentence was 4 years’ imprisonment with a non-parole period of 2 years and 6 months.
The applicant’s complaint is that the sentencing judge conflated the issue of objective seriousness with the application of the guideline judgment, resulting in subjective factors being taken into account when assessing objective seriousness. It was contended that the sentencing judge erroneously took into account the subjective factors of the applicant’s age and prior convictions in determining that the offences were objectively more serious than the typical case.
It was also submitted that his Honour erroneously took into account that there was serious injury to two victims notwithstanding that this fact was reflected in two separate offences which attracted indicative sentences.
This is not the first case in which an applicant has contended in this Court that a guideline judgment has led the sentencing judge into error by conflating matters relevant to objective seriousness with those relevant to the applicant’s subjective case.
In Zreika v R [2021] NSWCCA 243, the sentencing judge, when applying the Whyte guideline, referred to matters personal to the offender when assessing the objective seriousness of the offences: at [29]. Bell P (Price and Hamill JJ agreeing) observed the following at [43]:
… the sentencing judge, in making reference to the Applicant’s age, limited evidence of remorse and driving record at [32] of the remarks on sentence and the fact, noted at [36] of the remarks, that the Applicant’s driver’s licence had been suspended and not renewed at the time of the accident, were all matters that, whilst relevant to other aspects of the sentencing process, were extraneous and not properly taken into account in the assessment of the objective seriousness of the offences.
In the context of the judgment as a whole, it is difficult to see how the reference to “the seriousness of the offending” or the “overall seriousness” means anything other than the “objective seriousness of the offending” given the structure of the document, the references to objective seriousness in the relevant section of the remarks, the unqualified reference to Ponfield, and that the applicant’s subjective case, including his criminal history, was dealt with separately, in an entirely different section of the remarks. (Emphasis in original.)
In Hawat v R [2020] NSWCCA 121, this Court considered the issue of conflation of objective seriousness with the application of the guideline judgment of R v Henry in sentencing reasons delivered ex tempore. The Court determined that there had been no conflation as the sentencing judge made no finding as to the objective seriousness of the offences at all (at [35]).
Turning to the applicant’s complaint, the success of the ground turns on whether the heading “Seriousness of the dangerous driving offences” was a reference to the fact that everything under that heading was relevant to the finding of objective seriousness of the offence or, as the Crown contended, a reference to both subjective and objective factors.
The applicant’s contention should be accepted for the following reasons.
First, it is difficult to accept that a sentencing judge would enumerate relevant subjective features under a heading “Seriousness of the dangerous driving offences”.
Secondly, the sentencing reasons followed the “orthodox” structure which includes, first, an assessment of the objective seriousness of the offending (after setting out the facts) before then turning to consider the applicant’s subjective case.
Thirdly, the sentencing judge took into account the subjective factors of the applicant’s age and criminal record again when addressing his subjective case.
Fourthly, the sentencing judge appears to have assessed the objective seriousness of the applicant’s offending in two parts: first, by finding that his offending was more serious than a “typical” case (which includes both objective and subjective factors); and secondly, by finding that the offending was aggravated because of the presence of the aggravating factors in Whyte, which are objective. It is the first part of that assessment that discloses error.
It is to be accepted that his Honour’s finding that there had been an “abandonment of responsibility” (which was a relevant finding for the purposes of the numerical portion of the guideline) was made in the context of his Honour focussing on the (objective) aggravating factors. The difficulty is that prior to that, under the same heading, namely, “Seriousness” of the offences, his Honour referred to some factors which were personal to the applicant.
This case highlights the difficulty caused by the fact that the Whyte guideline included both subjective and objective features and there was a conflation of some of those features. His Honour was obliged to apply the guideline and did so but, in considering the guideline under the heading directed at the finding of “objective seriousness”, sufficient doubt exists as to whether his Honour included subjective factors in that assessment such as to demonstrate error.
We would uphold this ground.
Error having been established, this Court is required to put the aggregate sentence imposed by the sentencing judge to one side and exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].
The applicant relied on his affidavit affirmed on 24 June 2026 in the event of re-sentence. Since the time of sentence, his partner gave birth to their first child and they are planning a second. The applicant found it difficult not to be present for the birth. He deposed that when he is released, he intends to be a “good dad” and to work. His partner is planning a second round of IVF using sperm the applicant provided before he entered custody.
The applicant has been consistently employed in custody. At one stage he was employed as the “activities sweeper” which involved handing out “buy-ups” in the gaol, but he lost that position when he tested positive to alcohol in custody on 21 April 2026. He had also earlier tested positive for amphetamines on 15 June 2025 and on 10 October 2025 he was charged with interfering with correctional centre property. At the time of affirming his affidavit he was employed at the sheep farm. He deposed that:
I’m at the end of taking drugs. It’s been like flicking a switch – I’m not interested in them anymore. My quality of life has been so much better with Sandy [his partner]. This is my big second chance at turning it around.
In the absence of the guideline judgment, this Court should proceed to re-sentence the applicant on the basis of the general sentencing principles extracted above at [153]-[162]. As to the assessment of the objective seriousness of the offending, we note the injuries suffered by each of the victims relevant to their respective charges as well as the following:
The applicant was travelling between 109 and 113 km/h in an 80 km/h zone at the time of the collision.
As for the applicant’s course of driving, 25 to 30 minutes prior to the accident he had tailgated another driver. When his vehicle dropped back it drifted onto the wrong side of the road and on a couple of occasions swerved onto the wrong side of the road. He then drove into a stationary advertising sign at a service station. The attendant noted that his speech was slow and slurred.
A witness at the service station observed the applicant was unable to stand without leaning. Another witness told the applicant not to drive to which the applicant replied, “I just had a really big night”. The attendant was sufficiently concerned to telephone police.
The applicant’s blood sample revealed a number of drugs in his system prior to the accident including amphetamine, methylamphetamine, diazepam and nordiazepam, although the amount of diazepam and nordiazepam was very low. The expert evidence is that he was under the influence of methylamphetamine to the extent that his driving ability was impaired. He was unable to be breath tested due to his injuries.
The applicant submitted that this Court would re-sentence the applicant to a sentence of imprisonment that was less than that imposed by the sentencing judge. It was accepted that the manner of driving exhibited a high degree of dangerousness, but it was submitted that the grievous bodily harm was at the lower end of the range. The applicant also submitted that the finding of special circumstances to vary the statutory ratio should be preserved.
This Court would re-sentence the applicant based on the same findings as made by the sentencing judge. To the extent that his Honour found that the applicant had “reasonable” or “guardedly optimistic” prospects of rehabilitation and not offending further, his conduct in custody is disappointing. Despite this, we would re-sentence the applicant on the same basis.
We have had regard to the applicant’s subjective case and ameliorated the aggregate sentence we would impose on the same basis that the sentencing judge did. The difficulty is that, although the grievous bodily harm was towards the lower end of the range, Mr and Mrs Comfort suffered serious injuries in circumstances where the applicant should not have been driving, was warned not to continue driving, smashed into a sign and still decided to keep driving. This was objectively serious offending in which members of the public were put at serious risk due to the applicant’s prolonged course of dangerous driving.
Having distilled the relevant objective and subjective features of the applicant’s case we have arrived at indicative sentences and an aggregate sentence that is slightly higher than that imposed by the sentencing judge. As N Adams J observed in DS v R [2025] NSWCCA 53 at [86]-[87]:
… [W]hen this Court resentences an applicant, the original sentence is put to one side and this Court exercises its sentencing discretion afresh. It is highly likely that in doing so, this Court will arrive at a different sentence. That is particularly so when the applicant is being sentenced for multiple serious offences and an aggregate sentence is to be imposed. As the High Court has stated, there is no “correct” sentence: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 is [27].
Sometimes the new aggregate sentence imposed will be higher than that which was imposed at first instance and sometimes it will be lower. Sometimes the new aggregate sentence will be higher even though some of the indicative sentences were lower, but the application of the totality principle has resulted in a greater degree of notional accumulation. Sometimes the new aggregate sentence will be higher even having regard to factors favourable to the applicant which were not taken into account by the sentencing judge, including a discount. In such a case, it does not mean that there was no recognition of the discount. It simply means that, consistent with a proper application of the principles derived from Kentwell v The Queen, this Court arrived at higher indicative sentences before the application of the discount and went on to arrive at a higher aggregate sentence. In such cases, the practice is to dismiss the appeal for the reasons explained in RO v R [2019] NSWCCA 183. That is what occurred in this case.
Accordingly, we make the following orders:
Grant leave to appeal.
Dismiss the appeal.
**********
Cripps
R (s 52A guideline judgment)
(2004) 61 NSWLR 305
(2002) 56 NSWLR 146
(2022) 107 NSWLR 225
(2013) 249 CLR 571
(2010) 79 NSWLR 1
(2022) 108 NSWLR 1
(2022) 109 NSWLR 82
(2010) 242 CLR 520
(1989) 167 CLR 348
(1992) 173 CLR 572
(2014) 252 CLR 601
(2005) 228 CLR 357
(2011) 244 CLR 120
(2013) 249 CLR 600
(2017) 96 NSWLR 633
(1999) 46 NSWLR 346
(1991) 23 NSWLR 394
(1998) 45 NSWLR 209
(2006) 66 NSWLR 566
(2000) 1 VR 579
(2000) 49 NSWLR 383
(2002) 55 NSWLR 252
(1999) 48 NSWLR 340
(1999) 48 NSWLR 327
(2023) 278 CLR 1
(1981) 147 CLR 383
(1988) 164 CLR 465
(2001) 207 CLR 584
(1986) 161 CLR 513
(2020) 103 NSWLR 620