The court delivered a Guideline Judgment for NSW courts to follow when sentencing offenders for dangerous driving (occasioning death and grievous bodily harm). The judgment was the first of its kind in NSW, made in response to concerns about the consistency and adequacy of sentences for dangerous driving since the introduction of s52A of the Crimes Act 1900 (NSW) in 1994.

The Court of Criminal Appeal promulgated the following guidelines:

“1 A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment.

2 With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional.

The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.”

Spigelman CJ at CL at 228 quoted the following passage from Hunt CJ at CL in R v Musumeci (unrep, 30/10/97, NSWCCA):

“This court has held that a number of considerations which had to be taken into account when sentencing for culpable driving must also be taken into account when sentencing for this new offence of dangerous driving:

1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.
2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.
3. Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases.
4. The courts must tread warily in showing leniency for good character in such cases.
5. So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.
6. Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order.
7. The statement made by this court in relation to the previous offence of culpable driving — that it cannot be said that a full-time custodial sentence is required in every case — continues to apply in relation to the new offence of dangerous driving. As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case), but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence.”

The guideline has been reformulated in R v Whyte and other subsequent decisions.

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Lee v R [1998] HCA 60

September 30, 1998 Legal Helpdesk Lawyers

ON 30 September 1998, the High Court of Australia delivered Lee v R [1998] HCA 60; 195 CLR 594; 157 ALR 394; 72 ALJR 1484 (30 September 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/60.html

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Graham v R [1998] HCA 61

September 30, 1998 Legal Helpdesk Lawyers

ON 30 SEPTEMBER 1998, the High Court of Australia delivered Graham v R [1998] HCA 61; 195 CLR 606; 157 ALR 404; 72 ALJR 1491 (30 September 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/61.html

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Criminal Law, Criminal Procedure, LAW FIRM

Pearce v R [1998] HCA 57

September 10, 1998 Legal Helpdesk Lawyers

ON 10 SEPTEMBER 1998, the High Court of Australia delivered Pearce v R [1998] HCA 57; 194 CLR 610; 156 ALR 684; 72 ALJR 1416 (10 September 1998).

Where more than one offence contains the same elements of conduct, an offender should not be punished more than once for the overlapping elements. The punishment should reflect what the offender has done and should not be affected by how the offence is expressed: at [40].

There is no single correct sentence for a particular offence to be applied with mathematical precision. It is important for proper principle to be applied: at [46].

Sydney, Australia

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Causation, Duty of Care, Evidence, LAW FIRM, Medical negligence, Negligence, Personal Injury

Chappel v Hart [1998] HCA 55

September 2, 1998 Legal Helpdesk Lawyers

ON 2 SEPTEMBER 1998, the High Court of Australia delivered Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/55.html

A procedure to repair a perforation of the oesophagus carried a small inherent risk of infection which could damage the plaintiff’s laryngeal nerve and voice. The patient was not warned of these risks. It was found that had the patient been informed of the risks he would have deferred the procedure and had it performed by a more experienced surgeon.

Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure to do with the actual care provided.

The court also applied a subjective approach for determining what the patient done had the doctor not been negligent in failing to warn him of the risk.

Per Gaudron J at [32]:

“Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The enquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts of omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff has suffered.”

Per McHugh J at [23]:

“The question of causation is not resolved by philosophical or scientific theories of causation”

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Farrell v R [1998] HCA 50

August 13, 1998 Legal Helpdesk Lawyers

ON 13 AUGUST 1998, the High Court of Australia delivered Farrell v R [1998] HCA 50; 194 CLR 286; 155 ALR 652; 72 ALJR 1292 (13 August 1998).

http://www.austlii.edu.au/au/cases/cth/high_ct/1998/50.html

Expert evidence is admissible to assist the court with the provision of specialized information likely to “outside the experience and knowledge of the judge or jury” and “beyond the experience of ordinary persons” (at 292-293).

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