ON 20 AUGUST 2002, the NSW Court of Criminal Appeal delivered R v Whyte [2002] NSWCCA 343 (20 August 2002).

http://www.lawlink.nsw.gov.au/scjudgments/2002nswcca.nsf/a16acdaf45f305714a256724003189f5/3688dc39ade04a36ca256c1a001c5f31?OpenDocument

Whyte was sentenced to imprisonment for two years and three months, with a non-parole period of 12 months, after pleading guilty to one charge of aggravated dangerous driving occasioning grievous bodily harm (s52A Crimes Act 1900 (NSW)). The Crown appealed against the sentence to the NSW Court of Criminal Appeal (CCA).

The CCA determined that the sentence was manifestly inadequate but exercised its discretion not to interfere.

The CCA delivered a guideline judgment with respect to sentencing for breach of s52A.

The CCA ruled that “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.“

For typical cases involving high moral culpability, “…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.”

A typical case was one which was considered to involve:

• Young offender.
• Of good character with no or limited prior convictions.
• Death or permanent injury to a single person.
• The victim is a stranger.
• No or limited injury to the driver or the driver’s intimates.
• Genuine remorse.
• Plea of guilty of limited utilitarian value.

An appropriate increment is required for aggravating factors, which include:

• Extent and nature of the injuries inflicted.
• Number of people put at risk.
• Degree of speed.
• Degree of intoxication or of substance abuse.
• Erratic or aggressive driving.
• Competitive driving or showing off.
• Length of the journey during which others were exposed to risk.
• Ignoring of warnings.
• Escaping police pursuit.
• Degree of sleep deprivation.
• Failing to stop.

The guideline focuses on objective circumstances of the offence. The subjective circumstances of the offender must also be considered.

The CCA (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ) confirmed the validity of guideline judgments in NSW. The court ruled that ss 21A(4), 42A and 37A of the Crimes (Sentencing Procedure) Act 1999 require a sentencing judge to follow a guideline judgment given by the Court of Criminal Appeal and that such a judgment ought to have the force of legislation.

The CCA said that numerical guidelines provide adequacy and consistency of sentencing where there is a tension between individualised justice and the principle of consistency.

The guideline is not a “rule” or “presumption” but a “check” or “sounding board”.

If a sentencing judge does not apply a guideline, reasons should be given.