By Paul Gregoire and Ugur Nedim
Then NSW Chief Justice James Spigelman announced in 1998, that the NSW Court of Criminal Appeal would commence handing down guideline judgments relating to specific crimes to ensure consistency in sentencing.
And guideline judgments would act as an indication for NSW judges and magistrates and not a prescription on sentencing.
The first guideline judgment produced by the NSWCCA was 1998’s R versus Jurisic, which related to the offence of dangerous driving causing death or grievous bodily harm under section 52A of the Crimes Act 1900 (NSW).
Dangerous driving occasioning death involves a driver who is intoxicated by alcohol or impaired by drugs or is has been speeding or their manner of driving was dangerous in general.
This crime carries a maximum penalty of 10 years imprisonment, but if the offence is aggravated, it can see a person put away for 14 years.
And in terms of dangerous driving occasioning grievous bodily harm, this crime involves a driver who is intoxicated, impaired, speeding or driving dangerously, and in its basic form the offence carries up to 7 years inside. But if the crime is aggravated, the sentence can rise up to 11 years gaol time.
In December 1999, the court went on to provide a guideline judgement on the federal law regarding drug importation in R versus Wong.
The guideline on drug importation, which was an offence then contained in the Customs Act 1901 (Cth), was overturned during the 2001 High Court appeal of the outcome in Wong, as the highest court found that the guideline was overly prescriptive.
A minority of the High Court challenged the worth of guidelines in the 2001 Wong appeal.
However, the majority held that the 1999 legislated process was incompatible with that particular federal law, while questions were then raised as to whether this affected the 1998 Jurisic guideline, although it was found not to.
But Justice Spigelman determined that the Jurisic guideline should be reformulated, due to the 2001 insertion of section 37A into the Crimes (Sentencing Procedure) Act 1999 (NSW), which contains a provision that a court must at least take a guideline judgment into account, despite being nonbinding.
Appeal dismissed
The issue the High Court had with the Wong sentencing guideline was that it provided a table with two columns, one column consisted of ranges of drug weight, while the other related to years in prison, which was taken to be too restrictive.
In the current 2002 proceedings against Dale Whyte, Spigelman suggested that the issue with an overly prescriptive sentencing guideline is that it loses it’s indicative and nonbinding qualities and begins to act as legislative in character.
On 13 November 2001, Dale Whyte pleaded guilty to one count of aggravated dangerous driving occasioning grievous bodily harm, under section 52A of the Crimes Act, in the District Court of New South Wales, after the Crown case had been put, which was when he changed his earlier plea from not guilty.
The trial judge went on to sentence Dale to 2 years and 3 months prison time, with non-parole being set at 12 months. The offender also had his driver licence suspended for a 4 year period. And it was the Crown that appealed against his sentence claiming it was manifestly inadequate.
A five- justice panel of the NSWCCA produced a new guideline judgement as part of the Crown appeal.
But Justice Spigelman then dismissed the matter on 20 August 2002. And those agreeing with his reasons were then NSWCCA Justices Keith Mason, Graham Barr, Virginia Bell and Peter McClellan.
And the NSWCCA panel further published this note on its finding: “The sentence imposed was manifestly inadequate, however, the court should exercise its discretion not to interfere.”
Quantitative elements
In terms of the scrutiny guideline judgments received in the higher court, then High Court Justice Michael Kirby considered that the fact that “so many judges in different jurisdictions have sought to promote greater consistency in sentencing by the use of what they have called ‘guidelines’” was reason to be cautious in condemning them as incompatible with the Australian Constitution.
Spigelman added that the nonprescriptive nature of guideline judgments does not lead to “pre-determined results”, as rather than restrict the sentencing process, if these judgments make any type of prescription, it’s to contemplate an extra list of considerations in particular matters.
During the 15 April 2002 guideline proceedings, the NSW Senior Public Defender asserted that guidelines shouldn’t contain quantitative elements, “in large measure because a guideline in that form was prescriptive and of a legislative character”.
However, his Honour set out that prior to Jurisic, there were a number of case law precedents from other jurisdictions that could be drawn upon in sentencing for aggravated dangerous driving, which judicial officers were failing to consider.
“The weight to be given to the need for public deterrence and the seriousness with which the community regarded the particular offences, manifest in a substantial increase in maximum penalties, had not been reflected in a substantial number of cases,” the then NSW Chief Justice outlined.
“As a result, there was a flow of almost invariably successful Crown appeals against sentences imposed under section 52A,” his Honour added.
“The large proportion of cases that did not result in a term of actual imprisonment suggested a pattern of leniency and of inconsistency on the part of sentencing judges.”
And according to the then highest judge in the state court hierarchy, the guideline set out in Jurisic had been having the intended effect that the court sought, which was adequacy and consistency in sentencing. And if the numerical factors that had been applied in its first iteration were not repeated in some form in reformulation, a “pattern of inadequacy and inconsistency would… quickly reemerge”.
Sentencing for dangerous driving
On 20 August 2002, the NSWCCA issued the following reformulated sentencing guideline for dangerous driving, which relates to a young offender of previous good character and none, or limited, prior convictions, who caused death or serious injury to a stranger when driving.
This guideline is further for a generic case in which the strangers’ intimates are not injured, or injury is limited, and the driver has shown genuine remorse, although their guilty plea was of limited utilitarian value.
In these circumstances the NSWCCA considers 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 misjudgement”.
Aggravating factors involved in this offence can include the extent and nature of injuries inflicted, the number of people put at risk, degree of speed or intoxication, whether driving was erratic, aggressive or competitive or it involved showing off, the length of the journey in which others were put at risk, the ignoring of warnings, escaping a police pursuit, sleep deprivation or failing to stop.
In terms of the basic unaggravated offences, the court advises that when “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”.
“For the aggravated version of each offence under section 52A an appropriate increment is required,” the guideline further reads. “Other factors, such as the number of victims, will also require an appropriate increment.”
“The guideline focuses attention on the objective circumstances of the offence,” the judgment concludes. “The subjective circumstances of the offender will also require consideration.”
