DANGEROUS DRIVING

Michael C + Summar

Intro from Judicial Commission… The expressions ‘guidelines’ and ‘guidelines judgments’ have no precise

connotation. They cover a variety of methods adopted by appellate courts for the purpose of giving guidance to primary judges charged with the exercise of judicial discretion. Those methods range from statements of general principle, to more specific indications of particular factors to be taken into account or given particular weight, and sometimes to indications of the kind of outcome that might be expected in a certain kind of case, other than in exceptional circumstances.

One of the legitimate objectives of such guidance is to reduce the incidence of unnecessary and inappropriate inconsistency. All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.”

Features of the offence

A frequently recurring case of an offence under s 52A has the following characteristics: 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

Relevant Statutory

Section 52A Crimes Act 1900 Section 52B Crimes Act 1900 Section 21A Crimes (Sentencing Procedure) Act

1999 Section 5 of the Criminal Legislation Amendment

Act 2001 – amended the Crimes (Sentencing Procedure) Act 1999

Crimes Amendment (Grievous Bodily Harm) Act 2005 – amended the Crimes Act 1900 to ensure that offences relating to the infliction of grievous bodily harm extend to encompass the destruction of the fetus of a pregnant woman.

(1) Dangerous driving occasioning death(2) Aggravated dangerous driving occasioning death(3) Dangerous driving occasioning grievous bodily

harm

Section 52A Crimes Act 1900

(1) Dangerous driving occasioning death

A person is guilty of the offence of dangerous driving occasioning death if the vehicle is involved in an impact causing death and the driver was at the time: Under the influence of intoxicating liquor or of a

drug At a speed dangerous to another person or persons In a manner dangerous to another person or person

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 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: Under the influence of intoxicating liquor or a drug At a speed dangerous to another person or persons 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

(1) Dangerous navigation occasioning death(2) Aggravated dangerous navigation(3) Dangerous navigation causing grievous bodily harm(4) Aggravated dangerous navigation occasioning

greivous bodily harm

Crimes Act 1900 – Section 52B

(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 death of another person and the driver, as at the time of 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.

(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

(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.

Sentencing guidelines

The sentencing of the accused are based on the factors listed in the Crimes Act 1900, under S52A and S52B.

S52A Dangerous driving: substantive matters:(1) Dangerous driving occasioning death: A person convicted of an offence under this subsection is liable to imprisonment for 10 years. 2) Aggravated dangerous driving occasioning death: 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 convicted of an offence under this subsection is liable to imprisonment for 7 years.

(4) Aggravated dangerous driving occasioning grievous bodily harm: A person convicted of an offence under this subsection is liable to imprisonment for 11 years.

Mitigating factors

Youth Good Character Extra-curial suffering Injuries to the offender Family Hardship Payment of damages

Other Aggravating Factors

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 warnings Escaping police pursuit Degree of sleep deprivation Failing to stop

R v Whyte (2002) NSW

A Typical CaseA frequently recurring case of an offence under s52A has the following characteristics. (i) Young offender. (ii) Of good character with no or limited prior

convictions. (i) Death or permanent injury to a single person. (ii) The victim is a stranger. (iii) No or limited injury to the driver or the driver's

intimates. (iv) Genuine remorse. (vii) Plea of guilty of limited utilitarian value.

R v Whyte 2002 acts as a guideline example to respect individual to custodial sentences – “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”

“This court should take particular care when expressing a guideline judgment to ensure that it does not, as a matter of practical effect, impermissibly confine the exercise of discretion. This involves, in my opinion, ensuring that the observations in the original guideline judgment of Juris — that a guideline was only an ‘indicator’ — must be emphasized, albeit reiterated in the language of the 2001 Act as a matter to be ‘taken into account’. A guideline is to be taken into account only as a ‘check’ or ‘sounding board’ or ‘guide’ but not as a ‘rule’ or ‘presumption’. I see this as a reaffirmation of the reasoning in Jurisic.”

Wong v The Queen (2001)

Questioned whether the Crown Appeal jurisdiction permitted the court to promulgate guideline judgments on its own motion

In response to this case, Parliament introduced Section 5 of the Criminal Legislation Amendment Act 2001 -> amended the Crimes (Sentencing Procedure) Act 1999 by giving the Court of Criminal Appeal power to issue guidelines on its own motion wherever it considered it appropriate.

The decision in Wong cast doubts on all guideline judgments including Jurisic

R v Jurisic 1998

Analyzed the impact of the guideline judgment handed down in the NSW Court of Criminal appeal

In Jurisic the CCA gave careful consideration to the sentences handed down for dangerous driving offences:

Unacceptable level of inconsistency in sentences imposed

Need to raise the general level of penalties to more adequately reflect the intention of Parliament and the wishes of the community