sentencing dangerous drivers in new south wales · sentencing dangerous drivers in new south wales...

impact of the Jurisic guidelines on sentencing practice

2002monograph series 21

Sentencing dangerous driversin New South Wales

Judicial Commission of New South Wales

Lynne A BarnesSenior Research Officer

(Legal)

Patrizia PolettiSenior Research Officer

(Special Projects)

Ivan PotasDirector

(Research & Sentencing)

Judicial Commission of New South Wales

Sentencing dangerous driversin New South Wales

impact of the Jurisic guidelines on sentencing practice

Published in Sydney by —

Judicial Commission of New South WalesLevel 5, 301 George StreetSydney NSW 2000

GPO Box 3634Sydney NSW 2001

Printed July 2002

ISBN 0 7313 5602 0

© Judicial Commission of New South Wales 2002

This publication is copyright. Other than for the purposes of, and subject to the conditions prescribedunder, the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical,microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system ortransmitted without prior permission. Enquiries should be addressed to the publisher.

The views expressed in this monograph are the views of the individual authors and do not represent anyofficial views of the Judicial Commission of New South Wales, nor are they necessarily shared by themembers of the staff of the Commission. Whilst all reasonable care has been taken in the preparation of thispublication, no liability is assumed for any errors or omissions.

Editing — Ruth Sheard

Design and production — Ruth Sheard

Cover photography — Gary Graham: Newspix; PhotoDisc

Printers — Bloxham & Chambers Lithographic Printers

List of tables & figures ............................................................................................................... ivCases cited .................................................................................................................................... vLegislation cited .......................................................................................................................... viSummary ...................................................................................................................................... vii

1 Introduction ...................................................................................................................... 11.1 Aims of the study .......................................................................................................................2

2 The offence ....................................................................................................................... 32.1 Background ...................................................................................................................................32.2 Current legislation .....................................................................................................................42.3 Relevant case law ........................................................................................................................6

2.3.1 The guideline judgment in Jurisic ........................................................................82.4 The High Court ....................................................................................................................... 10

3 Methodology ................................................................................................................. 133.1 The meaning of consistency in sentencing ................................................................. 133.2 Time frame and data .............................................................................................................. 143.3 Statistical tests ........................................................................................................................... 143.4 The research questions .......................................................................................................... 15

3.4.1 The first guideline ..................................................................................................... 153.4.2 The second guideline .............................................................................................. 153.4.3 Court of Criminal Appeal .................................................................................... 16

4 Analysis & findings ..................................................................................................... 174.1 The effect of Jurisic in terms of severity and consistency

measured on severity of penalty type ............................................................................. 174.2 The effect of Jurisic in terms of severity and consistency

measured by length of full time imprisonment ........................................................ 204.3 Analysis of the Court of Criminal Appeal decisions ............................................. 28

4.3.1 Crown appeals ............................................................................................................. 294.3.2 Sentence severity appeals ....................................................................................... 304.3.3 Exceptional cases ....................................................................................................... 31

4.4 Changes in the prison population after Jurisic ......................................................... 32

5 Conclusions ................................................................................................................... 33

AppendicesA Crimes Act 1900 (NSW), ss 52A and 52AA .............................................................. 35B Table of CCA cases pre & post Jurisic .......................................................................... 39

Selected bibliography .............................................................................................................. 45

Contents

Impact of the Jurisic guidelines on sentencing practiceiv

List of tables & figures

Tables1 Characteristics of offenders sentenced under s 52A of the

Crimes Act 1900 (NSW) — pre and post Jurisic ............................................................................ 172 Trends in overall penalty types for offences under s 52A of the

Crimes Act 1900 (NSW) — pre and post Jurisic ............................................................................ 183 Trends in custodial penalties for offences under s 52A of the

Crimes Act 1900 (NSW) by subsection — pre and post Jurisic .............................................. 194 Severity and consistency of full time custody (head sentences

and non-parole periods) for offences under s 52A of theCrimes Act 1900 (NSW) by subsection — pre and post Jurisic .............................................. 21

5 CCA appeals under s 52A of the Crimes Act 1900 (NSW) —pre and post Jurisic ........................................................................................................................................ 28

6 Sentenced inmates in full time custody for driving offences on 30 June:1997–2001 ........................................................................................................................................................ 32

7 Dangerous driving causing death — Appeals against severity of sentence ....................... 398 Dangerous driving causing death — Crown appeals .................................................................. 409 Dangerous driving occasioning GBH — Appeals against severity of sentence .............. 4210 Dangerous driving occasioning GBH — Crown appeals ......................................................... 44

Figures1 Length of full time custody (head sentences and non-parole periods) under

s 52A(1)(a) of the Crimes Act 1900 (NSW) — pre and post Jurisic .................................... 222 Length of full time custody (head sentences and non-parole periods) under

s 52A(1)(c) of the Crimes Act 1900 (NSW) — pre and post Jurisic .................................... 233 Length of full time custody (head sentences and non-parole periods) under

s 52A(2) of the Crimes Act 1900 (NSW) — pre and post Jurisic .......................................... 244 Length of full time custody (head sentences and non-parole periods) under

s 52A(3)(a) of the Crimes Act 1900 (NSW) — pre and post Jurisic .................................... 255 Length of full time custody (head sentences and non-parole periods) under

s 52A(3)(c) of the Crimes Act 1900 (NSW) — pre and post Jurisic .................................... 266 Length of full time custody (head sentences and non-parole periods) under

s 52A(4) of the Crimes Act 1900 (NSW) — pre and post Jurisic .......................................... 27

Impact of the Jurisic guidelines on sentencing practice v

Cases cited

Coventry v The King (1938) 59 CLR 633DPP v Smith [1960] 3 All ER 161Everett v The Queen (1994) 181 CLR 295R v Ashman (1858) 1 F&F 88; 175 ER 638R v B (unreported, 21 August 1990, NSWCCA)R v Bailey [2001] NSWCCA 10R v Begbie [2001] NSWCCA 206R v Black (unreported, 23 July 1998,

NSWCCA)R v Boswell (1984) 79 Cr App R 277R v Burnett (1996) 85 A Crim R 76R v Byrne (1998) 104 A Crim R 456R v Davies (unreported, 27 March 1998,

NSWCCA)R v Davies [2000] NSWCCA 84R v Dhanhoe [2000] NSWCCA 257R v Dodd (1991) 57 A Crim R 349R v Douglas (unreported, 11 December 1998,

NSWCCA)R v Errington [1999] NSWCCA 18R v Foster [2001] NSWCCA 215R v Frascella [2001] NSWCCA 137R v Fuller (unreported, 4 March 1998,

NSWCCA)R v Hallocoglu (1992) 29 NSWLR 67R v Hanlon [2000] NSWCCA 55R v Hill (unreported, 4 December 1998,

NSWCCA)R v Howland [1999] NSWCCA 10R v Jaworowski [1999] NSWCCA 430R v Jurisic (1998) 45 NSWLR 209; (1998)

101 A Crim R 259; (1998) 29 MVR 49R v Kalanj (unreported, 18 December 1997,

NSWCCA)R v Katoa [2000] NSWCCA 223R v Khatter [2000] NSWCCA 32R v Kilborn [2001] NSWCCA 116R v King [2001] NSWCCA 18R v Lambrinos (unreported, 17 July 1998,

NSWCCA)R v Lemoto (unreported, 24 July 1998,

NSWCCA)

R v McDonald (unreported, 12 October 1998,NSWCCA)

R v MacIntyre (1988) 38 A Crim R 135R v McKinney [1999] NSWCCA 51R v Mansour [1999] NSWCCA 180R v Marlin (unreported, 10 September 1997,

NSWCCA)R v Menzies [1999] NSWCCA 222R v Milsom (unreported, 10 December 1997,

NSWCCA)R v Murnin (unreported, 16 August 1985,

NSWCCA)R v Musumeci (unreported, 30 October 1997,

NSWCCA)R v Ngo (unreported, 15 November 1996,

NSWCCA)R v Panetta (1997) 26 MVR 332R v Pellow (unreported, 1 August 1997,

NSWCCA)R v Pyritz (unreported, 23 November 1998,

NSWCCA)R v Romanic [2002] NSWCCA 524R v Rushby [1977] 1 NSWLR 594R v S (1991) 22 NSWLR 548R v Savka (1996) 88 A Crim R 393R v Sellers (1997) 92 A Crim R 381R v Sen [1999] NSWCCA 199R v Simpson [1999] NSWCCA 367R v Slattery (1996) 90 A Crim R 519R v Smith (1997) 95 A Crim R 373R v Tadman (2001) 8 Crim LN 51R v Tapfield (unreported, 30 July 1997,

NSWCCA)R v Thackray (unreported, 17 August 1998,

NSWCCA)R v Tomson [1999] NSWCCA 308R v Vitasovic [2000] NSWCCA 232R v Whyte (unreported, 8 December 1997,

NSWCCA)R v Wong; R v Leung (1999) 48 NSWLR 340Wong v The Queen; Leung v The Queen

(2001) 76 ALJR 79

Impact of the Jurisic guidelines on sentencing practicevi

Legislation cited

New South Wales

Crimes (Dangerous Driving Offences) Amendment Bill 1994Traffic (Negligent Driving Offences) Amendment Bill 1994Crimes Act 1900

s 24s 52As 52A(1)s 52A(2s 52A(3)s 52A(4)s 52A(7)s 52A(8)s 52A(9)s 52AA(3)(a)s 52AA(5)

Crimes (Amendment) Act 1951Crimes (Dangerous Driving Offences) Amendment Act 1994Crimes Legislation Further Amendment Act 1997

Sch 1[1]Sch 1[2]

Crimes (Sentencing Procedure) Act 1999Criminal Appeal Act 1912

s 5Ds 12

Criminal Legislation Amendment Act 2001Sch 5

Road Transport (General) Act 1999s 25

Road Transport (Safety and Traffic Management) Act 1999s 42(1)(a)s 42(1)(b)s 2(1)(a)

Traffic Act 1909s 2Es 10A(2)(c)

Commonwealth

Customs Act 1901s 233B

This study analyses the impact of the guideline judgment handed down in the NewSouth Wales Court of Criminal Appeal (CCA) case of R v Jurisic.1 The guidelinesrelate to sentences imposed for dangerous and aggravated dangerous driving offencesheard in the higher courts of New South Wales.

The authors trace the background to these offences and describe the current legislation.Particular note is taken of the fact that the offence of culpable driving, as set out ins 52A of the Crimes Act 1900 (NSW), was replaced in 1994 by a new s 52A. Thisamendment introduced a name change — dangerous driving rather than culpabledriving — and added an aggravated form for each of the two categories of thisoffence (occasioning death and occasioning grievous bodily harm). In addition themaximum penalties were greatly increased.

In Jurisic the CCA gave careful consideration to the sentences handed down fordangerous driving offences. It concluded not only that there was an unacceptablelevel of inconsistency in the sentences imposed, but that there was a need to raise thegeneral level of penalties to more adequately reflect the intention of Parliament andthe wishes of the community.

This study aimed to determine whether:

■ the Jurisic guidelines have contributed to achieving greater consistency in thesentences imposed for these offences

■ as a consequence of the guideline judgment there was a general increase in theseverity of sentences imposed.

The method used to answer these questions was to compare sentencing patterns forcases decided three years before and three years after the Jurisic guidelines werepromulgated.

The study found that there was not only greater consistency of result in the sentenceshanded down by the courts after the guideline judgment, but that there was a clearand discernible increase in the severity of penalties imposed under the variouscategories of dangerous driving offences.

The study also examined the pattern of sentencing appeals and observed a noticeabledrop in the number of Crown appeals (including successful Crown appeals) after theguidelines were introduced. Again this indicates that sentences were both moreconsistent and more severe after Jurisic.

1 (1998) 45 NSWLR 209; (1998) 101 A Crim R 259; (1998) 29 MVR 49.

Summary

This study provides an analysis of the sentences imposed on offenders who pleadedguilty or were convicted of certain driving offences in the higher courts of NewSouth Wales. The offences studied are those which fall under the provisions of s 52Aof the Crimes Act 1900 (NSW) and encompass circumstances that may broadly bedescribed as involving dangerous driving or aggravated dangerous driving and, ineither case, activity resulting in death or injury to the victim of the offence.2 Thiscategory of offence, previously known as culpable driving, provides a middle groundin terms of seriousness between the offences of negligent, furious or reckless drivingcausing grievous bodily harm3 and the offence of manslaughter.4

The person before the court in dangerous driving cases is frequently of otherwisegood character. Further, unlike in the case of many other crimes, the prosecutor,judge and members of the jury can often easily identify with the defendant in termsof “there but for the grace of God go I”. Sentencing such offenders to terms ofimprisonment cannot be easy. On the other hand, the social costs of dangerousdriving are considerable, and Parliament has legislated severe penalties not simply inthe hope of deterring others from engaging in similar conduct, but to raise awarenessof the moral responsibility shared by all who drive on our roads. As observed:

“Someone who is injured for life, or who loses a partner or child, in anaccident resulting from, for example, reckless driving will expect thatthe person responsible be punished. The victim, and indeed society,may well feel that justice has not been done if the penalty imposed onthe offender appears to bear no relation to the harm caused.”5

Even this passage underlies a problem associated with sentencing for this offence. Inthis context, the use of the term “accident” rather than the use of pejorative expressionssuch as “crime”, “criminally culpable behaviour” or even “grossly negligent conduct”serves to diminish the social unacceptability of the behaviour, therefore making it moredifficult to justify the imposition of harsh penalties in many such cases. Disparities insentencing outcomes can be readily explained if some sentencers perceive these offencesin terms of unintended or accidental events (focusing on the subjective considerationsrelating to the offender), rather than on the consequences or objective circumstances of

Introduction1

2 Sentencing for murder (where a motor vehicle is used as the instrument of attack) and, in similarcircumstances, for manslaughter, where the requisite mental element for murder is lacking or elsethe heinousness of the offence is so grave that a manslaughter charge, rather than one under s 52A isconsidered appropriate, are not considered in this study. As for some of the problems associated withselecting the offence to prosecute, see S Cunningham, “The reality of vehicular homicides: Convictionsfor murder, manslaughter and causing death by dangerous driving” [2001] Crim Law R 679.

3 The Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 42(1)(a) and (b).4 The Crimes Act 1900 (NSW), s 24.5 The Road Traffic Law Review, 1988, p 113, cited in Staysafe 25, Death and serious injury on New South

Wales roads: An examination of the provisions of the Crimes Act 1900 (NSW) regarding dangerous driving,1994, Joint Standing Committee on Road Safety, New South Wales Parliament, Sydney, p 5.

Impact of the Jurisic guidelines on sentencing practice2

the offence (particularly on the harm caused to the victim). The general scheme of the legislationrelating to dangerous driving offences shows that the level of culpability is closely associatedwith the level of injury or harm resulting from the offence. Thus, all other things being equal,a person who kills rather than causes grievous bodily harm as a result of dangerous drivingwould generally expect to receive a more severe sentence.

In Jurisic,6 the CCA held that there was clear evidence of inconsistency in the sentenceshanded down by the courts for s 52A offences. Before coming to this conclusion it hadclosely examined past sentencing decisions relating to dangerous driving offences andcarefully considered relevant sentencing statistics emanating from the Judicial Commission’ssentencing information system.7 The CCA also found that there was a need to lift publicconfidence in the administration of criminal justice and that the promulgation of a guidelinejudgment, the first of its kind to be handed down in New South Wales, was justified.Broadly speaking, this guideline was to indicate not only the kind of matters to whichcourts should have regard when sentencing for these offences, but to link them, in a relativelyspecific way, to the level of sentence that ordinarily should be regarded as appropriate forsuch offences. The aim of the guideline was to promote greater consistency in sentencing.

The guideline, which will be discussed in greater detail later in this study, also sought torequire sentencing judges to take a “sharp upward movement in penalty” on the basis thatsentencing judges had not responded sufficiently to the increases made in 1994 to themaximum penalties. The guideline not only advocated custodial sentences for dangerousdriving and aggravated dangerous driving offences, but also prescribed discretionary startingpoints in the level of imprisonment to be imposed.

It is premature to conclude that debate on sentencing levels for dangerous driving will beput at rest through the application of Jurisic. The topic is a complex and emotive one, andcertainly one in which views may vary. In this regard media criticism, an important featureof open justice, can be constructive. On the other hand ill-informed criticism may serve toundermine public confidence in the courts.

The central question examined in the ensuing pages is: What has been the impact, if any, ofthe Jurisic guidelines on sentencing practice? It is hoped that a careful appraisal of ourfindings will lead to a more informed debate about sentencing and the work of the courtsin this area of the law.

1.1 Aims of the studyThe main aims of this study were to:

1. Present an analysis of the impact of the guideline judgment in R v Jurisic on sentencesimposed for dangerous driving and aggravated dangerous driving offences under s 52Aof the Crimes Act 1900 (NSW). In particular, the study sought to answer the questionas to whether sentencing practice had changed in a way that would indicate a greaterconsistency in sentencing for these types of offences.

2. Provide a description of the type and quantum of sentences commonly handed downfor dangerous driving and aggravated dangerous driving offences in New South Wales.

3. Indicate whether or not there had been an increase in the severity of penalties imposedfor these offences.

6 (1998) 45 NSWLR 209; (1998) 101 A Crim R 259; (1998) 29 MVR 49.7 Now known as JIRS — Judicial Information Research System.

The history of s 52A of the Crimes Act 1900 can be characterised as a quest bylegislators to clearly define dangerous driving offences and provide penalties thatreflect the seriousness with which society regards them. Over time, the definition ofthe offence has had to adapt to:

■ continuing technological advances in motor transport

■ ever increasing numbers of motor vehicles on public thoroughfares

■ changes in society which have seen increasing numbers of young people withaccess to motor vehicles

■ widespread use of alcohol and various other drugs.

The task of legislators to continually redefine s 52A to take into account these andother relevant factors has been assisted by judicial decisions that have widened themeaning of particular words in the section,8 and by the refinement of the skills oflegislative drafters.

2.1 BackgroundIncreasing concern about the number of motor vehicle accidents in New South Walesresulting in the death or serious injury to another person through dangerous drivingled, in 1947, to the parliamentary appointment of a Select Committee upon RoadAccident Casualties. The Committee’s report, tabled in Parliament in 1948, made anumber of recommendations and resulted in the passage of the Crimes (Amendment)Act 1951. The Act introduced the new offence,9 a misdemeanour, of “culpable driving”,through the insertion of s 52A into the Crimes Act 1900. The amendment, intendedat the time as “an experiment” only, was designed to solve the problem of the “grievousroad accident problem”. It was decided that if the experiment did not work, someother solution would have to be found.10

Before the introduction of s 52A, less serious driving offences were punishablesummarily under the Traffic Act 1909 (NSW). A person causing death or seriousinjury to another person through dangerous driving could only be charged onindictment under the Crimes Act with the felonies of manslaughter, or causing grievousbodily harm by an unlawful or negligent act. The Attorney General of the day notedin his Second Reading Speech that:

The offence2

8 See, for example, R v B (unreported, 21 August 1990, NSWCCA) and R v S (1991) 22 NSWLR 548which were influential in later amendments to s 52A with the effect that the section applied equallyto impacts which occurred on highways as elsewhere.

9 Section 2(e).10 The Hon C E Martin, Attorney General, New South Wales Parliamentary Debates, Legislative Assembly,

3 October 1951, p 3351.


“The law in this regard had its roots in an era long before the motor car wasinvented, and the law is such that it is exceedingly difficult to obtain convictionsin cases where the ordinary person would think, I imagine, that there shouldbe a conviction…”11

Section 52A provided that a person would be guilty of the misdemeanour of culpabledriving if, at the time of the incident which caused the death of, or grievous bodily harm toanother person, the driver was:

a) under the influence of intoxicating liquor or of a drug; or

b) driving at a speed or in a manner dangerous to the public.

The maximum penalty for causing death by culpable driving was imprisonment for fiveyears and for causing grievous bodily harm imprisonment for three years.

In the years following the introduction of the offence of culpable driving there were anumber of both substantive and miscellaneous changes to the section.12 Since 195113 theNew South Wales Parliament has progressively broadened the scope of the section andsubstantially increased the maximum penalties, hoping this would act as a strong deterrentto those who might otherwise be tempted to drive dangerously.

For present purposes the most significant change occurred in 1994 when the offence ofculpable driving was replaced by the present regime of dangerous and aggravated dangerousdriving with substantially increased penalties. These changes are set out below.

2.2 Current legislationIn 1994 following recommendations by the Staysafe Committee,14 and the CCA,15 legislationwas passed to repeal the old s 52A and introduce a new s 52A into the Crimes Act.16 Thesection was redefined and broadened,17 and the maximum penalties under the sectionsubstantially increased. It was hoped that by recasting s 52A in this way it would be moreeasily understood by the community.18 In substance the elements of the two offences aresimilar, and as such the law relating to the repealed offence of culpable driving would applysubstantially to the offence of dangerous driving. Since the introduction of the new section,

11 The Hon C E Martin, Attorney General, New South Wales Parliamentary Debates, Legislative Assembly, 26September 1951, p 3223.

12 For details of the amendments to s 52A between 1955 and 1990 see Staysafe 25, Death and serious injury onNew South Wales roads: An examination of the provisions of the Crimes Act 1900 (NSW) regarding dangerousdriving, 1994, Joint Standing Committee on Road Safety, New South Wales Parliament, Sydney, pp 188–193. See also D Ash and I Potas, “Driving causing death: Section 52A of the Crimes Act 1900” (1997) 15Sentencing Trends, Judicial Commission of NSW, Sydney.

13 When the offence of culpable driving was first introduced partly because of concerns that juries would notconvict for manslaughter in such cases.

14 See Staysafe 25, Death and serious injury on New South Wales roads: An examination of the provisions of theCrimes Act 1900 (NSW) regarding dangerous driving, 1994, Joint Standing Committee on Road Safety, NewSouth Wales Parliament, Sydney, pp 15–19.

15 See, for example, R v Heinrich (1992) 61 A Crim R 212 at 220; R v Garlick (1994) 73 A Crim R 433 perCarruthers J.

16 The Crimes (Dangerous Driving Offences) Amendment Act 1994, operational from 23 December 1994.17 The artificial and restrictive distinctions relating to highways, vehicles and impacts were removed.18 The Hon J P Hannaford, Attorney General, Minister for Justice and Vice President of the Executive Council,

Second Reading Speech, Crimes (Dangerous Driving Offences) Amendment Bill; Traffic (Negligent DrivingOffences) Amendment Bill, New South Wales Parliamentary Debates, Legislative Council, 27 October 1994,p 4793.

The offence 5

further amendments have broadened the scope of the section and brought various definitionswithin the section into line with cognate legislation.19

In addition to changing the name of the offence from culpable to dangerous driving, theoffence was divided into four levels of seriousness — two basic offences and two aggravatedoffences — with an increase in penalties that reflected the seriousness of each level of theoffence. The two basic offences, dangerous driving occasioning death20 and dangerous drivingoccasioning grievous bodily harm21 remained, however, the maximum penalties were increasedfrom five years to ten years, and from three years to seven years respectively. If any aggravatingfactors listed in s 52A(7) were present when the death or injury occurred, the maximumpenalty increased by four years, to 14 years for aggravated dangerous driving causing death,22

and 11 years for aggravated dangerous driving causing grievous bodily harm.23

If present at the time of the impact causing death or grievous bodily harm, the followingcircumstances are factors of aggravation under ss 52A(2) and 52A(4):24

a) the prescribed concentration (0.15 gm/100 ml or higher) of alcohol was present inthe accused’s blood;25 or

b) the accused was driving the vehicle concerned on a road at a speed that exceeded, bymore than 45 kilometres per hour, the speed limit (if any); 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 accusedwas under the influence of a drug (other than intoxicating liquor) or a combination ofdrugs (whether or not intoxicating liquor was part of that combination).26

An offence under s 52A is an offence of strict liability and as such the prosecution does nothave to prove mens rea. However, it is open to the accused to raise a defence of an honestbut reasonable mistake of fact, which the prosecution must negative. It is a defence to acharge under this section27 if the impact causing the death or grievous bodily harm was notin anyway attributable (as relevant):

a) to the fact that the person charged was under the influence of intoxicating liquor, or adrug or a combination of drugs;28 or

b) to the speed at which the vehicle was driven; or

c) to the manner in which the vehicle was driven.

19 For example, see s 52A(9) where “drug” has the same meaning as it does in the Road Transport (Safety andTraffic Management) Act 1999, and “road” has the same meaning as it does in the Road Transport (General)Act 1999.

20 Section 52A(1).21 Section 52A(3). Section 4 of the Crimes Act defines grievous bodily harm as “any permanent or serious

disfiguring of the person”. However, it is not necessary that the harm is either permanent or dangerous: R vAshman (1858) 1 F&F 88; 175 ER 638. It is bodily injury of a really serious kind: DPP v Smith [1960] 3 AllER 161.

22 Section 52A(2).23 Section 52A(4).24 Section 52A(7).25 A reading taken within two hours after the impact: s 52AA(3)(a).26 Section 52A(7)(d) was inserted by the Crimes Legislation Further Amendment Act 1997 (NSW), Sch 1[1],

operational from 16 January 1998. Persons were previously charged under s 52A(1)(a).27 Section 52A(8).28 Inserted by the Crimes Legislation Further Amendment Act 1997 (NSW), Sch 1[2], operational from 16

January 1998.


If at trial a jury is not satisfied the accused is guilty of an aggravated offence under s 52A(2)or s 52A(4), but the evidence supports a finding of guilty under s 52A(1) or s 52A(3), thenthe jury may find the accused guilty of the lesser offence and subject to the penalties thatapply for the lesser offence.29 In all cases of a conviction under s 52A, licence disqualificationis mandatory and additional to any other penalty.30

Sections 52A and 52AA are reproduced at Appendix A.

2.3 Relevant case lawThere was an expectation that existing sentencing patterns would change following theintroduction of the more severe penalties provided for under the new s 52A. As Hunt CJ atCL pointed out in R v Slattery 31 when considering the general approach to sentencing inthese matters:

“The action of the legislature in almost tripling the maximum sentence for aparticular type of offence must be taken by the courts as reflecting communitystandards in relation to the seriousness of that offence, and the courts arerequired to give effect to the obvious intention of the legislature that theexisting sentencing patterns are to move in a sharply upward manner.”

In R v Musumeci 32 Hunt CJ at CL stated that the same considerations which were applicableto the old offences of culpable driving must be taken into account when sentencing offendersfor dangerous driving offences. After observing that the new regime involved four gradationsof offence seriousness, that is, whether the offence involved death or grievous bodily harmand then whether each of these involved aggravating circumstances, his Honour proceededto summarise the case law under the following seven points:

“1. The Legislature has always placed a premium upon human life, and thetaking of a human life by driving a motor vehicle dangerously is to beregarded as a crime of some seriousness.33

2. The real substance of the offence is not just the dangerous driving; it is thedangerous driving in association with the taking of a human life.34

3. Such is the need for public deterrence in this type of case, the youth of anyoffender is given less weight as a subjective matter than in other types ofcases.35

4. The courts must tread warily in showing leniency for good character insuch cases.36

29 Section 52AA(5).30 See the Road Transport (General) Act 1999, s 25.31 (1996) 90 A Crim R 519 at 524 per Hunt CJ at CL. In this case the respondent in a Crown appeal pleaded

guilty to two charges of aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act1900. The maximum sentence for each of the offences to which he pleaded guilty was imprisonment for14 years. He was sentenced on each charge to concurrent fixed terms of imprisonment for three years, to beserved by way of periodic detention. The appeal was upheld and in lieu of the previous sentences, there wasimposed on each count a sentence of imprisonment for three years, consisting of a minimum term of 12 monthsand an additional term of two years.

32 (unreported, 30 October 1997, NSWCCA).33 R v Murnin (unreported, 16 August 1985, NSWCCA).34 R v MacIntyre (1988) 38 A Crim R 135 at 139.35 Ibid.36 Ibid.

The offence 7

5. So far as youthful offenders of good character who are guilty of dangerousdriving, the sentence must be seen to have a reasonable proportionality tothe objective circumstances of the crime, and persuasive subjectivecircumstances must not lead to inadequate weight being given to thoseobjective circumstances.37

6. Periodic detention has a strong element of leniency built into it and, aspresently administered, it is usually no more punitive than a communityservice order.38

7. The statement made by this Court in relation to the previous offence ofculpable driving — that it cannot be said that a full time custodial sentenceis required in every case39 — continues to apply in relation to the newoffence of dangerous driving.40 As that offence is committed even thoughthe offender has had no more than a momentary or casual lapse ofattention,41 there must always be room for a non-custodial sentence(although that does not mean that a non-custodial sentence is ordinarilyappropriate in such a case), but the case in which a sentence other thanone involving full time custody is appropriate must be rarer for this newoffence.42”

These same points were quoted with approval by Spigelman CJ in Jurisic and were said to bereadily adaptable to the cognate offence of dangerous driving causing grievous bodily harm.43

However, judged by the level of media disquiet,44 frequency of Crown appeals against theinadequacy of sentences45 and critical observations made from time to time by the CCA onsentences imposed for these offences,46 the actual penalties imposed by courts appear tohave fallen short of what the community was demanding. History now shows that despitethe clear legislative intent of the new regime to bring about an increase in the level ofpenalties imposed by the courts, and indeed, in spite of the efforts of the CCA itself to callfor tougher penalties, many sentences continued to fall short of their mark. What emergedwas “a continued flow of, almost invariably successful, Crown appeals from sentences foroffences under s 52A”.47

37 R v Rushby [1977] 1 NSWLR 594; R v Dodd (1991) 57 A Crim R 349.38 R v Hallocoglu (1992) 29 NSWLR 67; R v Burnett (1996) 85 A Crim R 76.39 R v Hallocoglu (1992) 29 NSWLR 67 at 77.40 R v Panetta (1997) 26 MVR 332.41 Coventry v The King (1938) 59 CLR 633.42 R v Panetta (1997) 26 MVR 332.43 R v Jurisic (1998) 45 NSWLR 209 at 228.44 For example, a search of the Sydney Morning Herald archives for reports on “dangerous driving” retrieved 106

such articles, including the following examples of emotive headlines: “‘Soft’ sentences come under fire”;“FREE The car thief who took these two young lives”; “Sentence too short, says mum”; “Jail term ‘not goodenough’”; “Young and deadly”; “Stolen life”; “Death driver jailed for five years”.

45 See T Poletti and L Barnes, “Conviction and sentence appeals in the New South Wales Court of CriminalAppeal 1996–2000” (2002) 22 Sentencing Trends, Judicial Commission of NSW, Sydney.

46 See the analysis of the cases in Jurisic itself.47 R v Jurisic (1998) 45 NSWLR 209 at 229 per Spigelman CJ. Cases in which there was a successful Crown

appeal: R v Savka (1996) 88 A Crim R 393; R v Slattery (1996) 90 A Crim R 519; R v Sellers (1997) 92 ACrim R 381; R v Smith (1997) 95 A Crim R 373; R v Tapfield (unreported, 30 July 1997, NSWCCA); R vMusumeci (unreported, 30 October 1997, NSWCCA); R v Milsom (unreported, 10 December 1997,NSWCCA); R v Kalanj (unreported, 18 December 1997, NSWCCA); R v Lambrinos (unreported, 17 July1998, NSWCCA); R v Black (unreported, 23 July 1998, NSWCCA); R v Byrne (1998) 104 A Crim R 456;R v Thackray (unreported, 17 August 1998, NSWCCA).


2.3.1 The guideline judgment in JurisicOn 12 October 1998 the Full Bench48 of the CCA in handing down its decision in R vJurisic 49 took the opportunity of promulgating the first guideline judgment in New SouthWales. Prior to setting out the guideline it is useful to review the facts of the case.

Christopher Tom Jurisic had pleaded guilty to three counts of dangerous driving occasioninggrievous bodily harm under s 52A(3)(a).50 He had, while under the influence of cocaine,lost control of his motor vehicle. It had impacted with a rock wall, mounted a median strip,crossed onto the other side of the highway and collided with a motor vehicle travelling inthe opposite direction. The occupants of the other car, a family of five, were all injured.Three victims required hospitalisation. One victim underwent a series of operations tocorrect injuries sustained in the impact. Mr Jurisic was aged 27 years at the time of theaccident and was married with a small child. When he was 14 years old he had suffered ahead injury which later changed his behaviour and personality. Prior to the instant offences,he had a history of driving convictions, including one for driving in a manner dangerous.

On the first count, the sentencing judge imposed a sentence of imprisonment for 18 monthswith an order that he be assessed for suitability to serve his sentence in home detention. Hewas also disqualified from holding a driver’s licence for one year. Sentence was deferred inrespect of the other two offences, on condition that he enter into a recognisance, in the sumof $1,000, to be of good behaviour for two years. The Crown appealed on the basis thatthis sentence was excessively lenient.

In upholding the appeal, the CCA held51 that in all the circumstances the respondentshould have been ordered to serve a period of full time imprisonment. With regard to thefirst count, the CCA ordered that the sentence below be quashed and a term of full timeimprisonment for two years, comprising a minimum term of one year and an additionalterm of one year, be substituted. The order of licence disqualification for one year was alsoquashed. In lieu, the respondent was disqualified for a period of two years.

In the course of the judgment Spigelman CJ addressed the issues of inconsistency insentencing decisions and the resulting public criticism such decisions attracted:

“That there are a multiplicity of factors that need to be considered in sentencinghas long been recognised. There is, however, a tension between maintainingmaximum flexibility in the exercise of the discretion, on the one hand, andensuring consistency in sentencing decisions, on the other. Inconsistency insentencing offends the principle of equality before the law. It is itself amanifestation of injustice. It can lead to a sense of grievance amongst individualson whom uncharacteristically severe sentences are imposed and amongstthe broader community, or victims and their families, in the case ofuncharacteristically light sentences.”52

48 Spigelman CJ, Wood CJ at CL, and Sully, James and Adams JJ.49 (1998) 45 NSWLR 209; (1998) 101 A Crim R 259; (1998) 29 MVR 49.50 At the time the maximum penalty provided under this section was seven years, with an automatic licence

disqualification of three years under s 10A(2)(c) of the Traffic Act 1909 (NSW). However, a court of competentjurisdiction could reduce the period of licence disqualification.

51 Per Sully J with whom all members of the Court agreed.52 (1998) 45 NSWLR 209 at 216.

The offence 9

The Chief Justice stated that courts must show they are responsive to public criticism relatingto inconsistency in sentencing decisions. The issuing of guideline judgments would assist inattaining consistency in sentencing decisions by ensuring that the legal profession and sentencingjudges were aware of the CCA’s suggestions. This in turn “may assist in diverting unjustifiablecriticism of the sentences imposed in particular cases, or by particular judges”.53 Importantlyhe stressed that guideline judgments are “not to be treated as binding precedent”, they “areintended to be indicative only. They are not intended to be applied to every case as if theywere rules binding on sentencing judges.” They are intended as a “mechanism for structuringdiscretion, rather than restricting discretion”.54 The critical difference between guidelinejudgments and other sentencing systems, such as mandatory, mandatory minimum or gridsentencing schemes, is their flexibility. The broad discretionary powers of sentencing judges“are central to the ability of the criminal courts to ensure justice is done in all the extraordinaryvariety of circumstances of individual offences and individual offenders”.55

In relation to the offence of dangerous driving under s 52A the Chief Justice observed:

“The nature of the offence is not such that the court can devise a simple tablein which indicative penalties are linked to a quantitative measure of the offence…What can be done, however, in case of an offence covering a wide range ofconduct which varies qualitatively rather than quantitatively, is to indicate ina general way the kind of case which would usually require a particular kindor level of sentence, whilst acknowledging that there will always be exceptionalcases.” 56

During the course of the judgment Spigelman CJ listed a number of factors,57 some ofwhich were already included under “circumstances of aggravation” under s 52A(7), thatwhen present or absent — and their degree — will determine the appropriate penalty.These were:

“(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.” 58

The Chief Justice indicated that the first two factors related to the occurrence of the offence,while the other factors focused on the conduct of the offender. When any of the latter factors arepresent they may indicate that the offender has abandoned responsibility for his or her ownconduct. Further, “when the presence of such a factor can be so described, then it can be said tobe present to a material degree for the purposes of determining an appropriate sentence”.59

53 Ibid at 220.54 Ibid at 220.55 Ibid at 221.56 Ibid at 230.57 Ibid at 231; collected by Lord Lane CJ in R v Boswell (1984) 79 Cr App R 277.58 Ibid at 231.59 Ibid at 231.


The concept of abandonment of responsibility of a driver for his or her own conduct wasreflected in the guidelines, which his Honour then promulgated. However, the guidelinejudgment clearly distinguishes between cases “involving momentary inattention ormisjudgment” on the one hand, and cases of “abandonment of responsibility” on the other.

The sentencing guidelines for the offences of dangerous driving under s 52A are as follows:

“(1) A non-custodial sentence for an offence against s 52A should beexceptional and almost invariably confined to cases involving momentaryinattention or misjudgment.

(2) With a plea of guilty, wherever there is present to a material degree anyaggravating factor involving the conduct of the offender, a custodialsentence (minimum plus additional or fixed term) of less than threeyears (in the case of dangerous driving causing death) and less than twoyears (in the case of dangerous driving causing grievous bodily harm)should be exceptional.

…

The period of three or two years, once the threshold of abandoningresponsibility has been reached, is a starting point. The presence ofadditional aggravating factors, or their increased intensity, will determinethe actual sentence.”60

There has been some difference of opinion among members of the CCA as to whether theguidelines require that every case be classified as falling within one or other of the guidelines.61

However, the better view may be that there is a middle ground between momentaryinattention or misjudgment and abandoning responsibility 62 because:

“Those are the two extremes. There are shades and gradations of moralculpability in different instances of the offence and it is proper for the courtsto recognise a continuum, rather than a dichotomy, when assessing moralculpability.”63

With respect to the latter part of the second guideline, it has been held that in sentencingfor an offence under s 52A(2) or s 52A(4) it is an error to start consideration of the appropriatesentence at three years, and then add on aggravating factors to increase the sentence beyondthat term.64

2.4 The High CourtJust over three years after the Jurisic guideline judgment was promulgated, the High Courtof Australia handed down its decision in an appeal relating to a later guideline judgment ofthe New South Wales CCA on drug importation,65 Wong v The Queen; Leung v The Queen.66

60 Ibid at 231.61 See R v Foster [2001] NSWCCA 215 at [16] per Badgery Parker AJ, citing R v Davies [2000] NSWCCA 84

at [19] per Hulme J (with whom Sheller JA agreed) who said not. However, in Davies Hulme J at [51] citedR v Pyritz (unreported, 23 November 1998, NSWCCA) per Simpson J, with whom Kirby J agreed, whoregarded the two-part classification as exhaustive. Hulme J did not agree.

62 R v Foster [2001] NSWCCA 215.63 R v Khatter [2000] NSWCCA 32 at [31] per Simpson J.64 R v Tadman (2001) 8 Crim LN 51.65 R v Wong and Leung (1999) 48 NSWLR 340; the Customs Act 1901 (Cth), s 233B.66 (2001) 76 ALJR 79.

The offence 11

The appeal was upheld by majority (Gummow, Hayne, Gaudron and Kirby JJ; with GleesonCJ and Callinan J dissenting) and the matter remitted to the CCA for reconsideration inthe light of the reasons set out by the High Court. Of particular relevance was the fact thatthe High Court’s decision appeared to question not only the validity of the guideline underconsideration, but other guidelines, particularly the Jurisic guidelines. Among other thingsthe High Court found that in relation to the Criminal Appeal Act 1912 (NSW)67 the CCA:

“…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 thesentence that was passed nor to pass a new sentence. It was not within thepowers of the Court to publish such a table because, to adopt constitutionalterms, that is not directed to the quelling of the only dispute which constitutesthe matter before the Court.”68

The New South Wales Government acted swiftly in an attempt to remove any uncertaintyin relation to the validity of the guideline judgments, introducing amending legislation,which among other things, purported to validate all guideline judgments handed down bythe CCA.69

Despite the amending legislation, a number of criticisms made by members of the HighCourt leave open the possibility of further challenges to some aspects of guideline decisions.One criticism was that some guidelines are overly prescriptive rather than descriptive, therebypotentially intruding on the province of the legislative arm of government, or else havingthe effect of depriving judicial officers from exercising their full range of sentencing powers.The joint judgment of Gummow, Hayne and Gaudron JJ was particularly critical ofnumerical guidelines, being concerned that these hinder the proper application of sentencingprinciples. These issues, and the future status of guideline judgments, although important,are outside the scope of this study and will not be discussed further.

Meanwhile, the Chief Justice in a speech in January 2002 reiterated what he had said inJurisic, a proposition we respectfully suggest would find universal acceptance:

“It is essential for the maintenance of public confidence in the administrationof justice that the outcomes of similar cases are, within reasonable bounds,the same. Consistency in sentencing must be more than empty rhetoric. Thatis the primary task of the Court of Criminal Appeal.”70

67 Sections 5D and 12.68 (2001) 76 ALJR 79 at [84] per Gaudron, Gummow and Hayne JJ.69 Schedule 5 of the Criminal Legislation Amendment Act 2001 amended the Crimes (Sentencing Procedure) Act

1999.70 Opening of Law Term Dinner, New South Wales Law Society, Parliament House, Sydney, 29 January 2002,

available url <www.lawlink.nsw.gov.au/sc/sc.nsf/pages/spigelman_290102>.

Thus far this study has given consideration to a number of areas related to sentencing,such as sentencing principles, aspects of public opinion, guideline judgments andspecific offences.71 However, as it is beyond the scope of this paper to cover all ofthese areas in depth we now turn to consider what remains our main focus: theimpact of the Jurisic guideline judgment. As over three years have elapsed since theCCA issued its historic judgment, there is now enough data available to determinewhat impact, if any, Jurisic has had in terms of consistency and severity of sentencefor those prosecuted for offence(s) under s 52A of the Crimes Act.

3.1 The meaning of consistency in sentencingAlthough the notion of consistency was central to the judgment in Jurisic it was notdefined, thus it is unclear as to the precise aspect of the sentencing process it wasintended to refer. As we propose to use consistency in sentencing as a measure of theimpact of Jurisic on sentencing practice in NSW, a definition of what we mean bythat term is required.

A general definition of the word “consistency” is “constantly adhering to the sameprinciples of thought or action”.72 However, when the term is applied to sentencingMorgan and Murray73 suggest that consistency can be viewed from a number ofdifferent perspectives:

■ The first of these they describe as consistency of purpose or philosophy. Underthis definition consistency would involve agreement on the basic purpose ofsentencing, for example deterrence.

■ The second view of consistency relates to the approach taken in sentencing. Inother words, taking account of the same factors and giving similar weight tothose factors.

■ The third perspective of consistency focuses on the outcome or result of thesentencing exercise, that is, imposing the same type and quantum of sentence.

■ Finally they suggest that consistency may be any combination or variation of theabove views.

In this study consistency was measured in terms of the actual sentences handed down,that is, the sentencing outcomes for the particular category of offence underconsideration. Thus both the kind of sanction imposed and the severity of sanctionwere the measures used in this study to determine consistency. This would fall under

71 See the selected bibliography for articles in these areas.72 The Shorter Oxford English Dictionary, 1973, Clarendon Press, Oxford, p 405.73 N Morgan and B Murray, “What’s in a name? Guideline judgments in Australia” (1999) 23 Criminal

Law Journal 91 at 95.

3Methodology


the third meaning of consistency in sentencing suggested by Morgan and Murray. Thefocus of our attention, therefore, was not on whether there was consistency of approach,but rather whether there was consistency of result in the sentences imposed under s 52A.

However, consistency of result may be a consequence of consistency of purpose and approach.For example, if courts consistently apply the matters set out under the Jurisic criteria (consistencyof purpose and approach) they may be expected also to impose sentences consistent with thenumerical values in the guidelines (consistency of result). When viewed in this way ourdefinition also encapsulates the traditional understanding of consistency in sentencing, namelythat like cases should be decided alike and that unlike cases should be decided differently.

3.2 Time frame and dataThis study examined s 52A offence sentencing data over a six-year period, from 12 October1995 to 11 October 2001. This time frame allowed for a comparison of sentencing trends forthese offences for the three-year period prior to the issuing of the Jurisic guideline judgment(12/10/1995 to 11/10/1998) with the three-year period post Jurisic (from 12/10/1998 to11/10/2001). Thus, throughout the study references are made to pre Jurisic and post Jurisiccases to signify whether they were decided before or after the availability of the guideline.

The reader should be aware of a number of factors relating to the limitations of the datawhen considering the findings of this study. The analysis is based on data derived from theNSW Bureau of Crime Statistics and Research (BOCSAR). Only the principal offence foreach finalised matter was retained. The principal offence is the offence attracting the severestpenalty in the group of offences for which an offender has been convicted.74 This meansthat when there was more than one offence all secondary offences were excluded. TheCommission then audited the data against its own database of CCA sentencing decisionsand made corrections as required. Whenever sentences are quashed or varied by the CCA,the Commission’s database is used to correct first instance penalties handed down in theDistrict and Supreme Courts. Thus, where the outcome of an appeal to the CCA resultedin an acquittal, new trial or remit to sentencing court, then the record was deleted andexcluded from the study. However, if the outcome of an appeal resulted in a new penalty,the penalty at first instance was deleted and the new penalty substituted.

In addition, any matter that was heard by the CCA on or after Jurisic was published(12 October 1998) was categorised as post Jurisic even if the CCA declined to alter theoriginal sentence handed down pre Jurisic.

3.3 Statistical testsVarious statistical techniques were utilised to make meaningful comparisons of the sentencesimposed in the pre Jurisic and post Jurisic periods. These were mainly descriptive in nature(frequencies and cross tabulations), however chi square tests (for categorical data) and mediantests (for numerical data) were used when the analysis involved studying the relationshipbetween certain factors and whether any statistically significant differences occurred in thepre Jurisic and post Jurisic periods. The statistical analysis was undertaken using the softwareapplication known as Statistical Package for the Social Sciences (SPSS).

74 If two or more offences attracted the same penalty then the offence with the greatest maximum penalty wasselected as the principal offence. After this stage, if two or more offences still qualified as equally severe, thenthe first offence in the list was selected as the principal offence.

Methodology 15

3.4 The research questionsThe analysis is divided into three main parts:

■ the first part examines the impact of the first Jurisic guideline

■ the second part examines the extent to which the second Jurisic guideline has affectedsentencing practice

■ the third part analyses the types of CCA appeals and their outcomes.

3.4.1 The first guideline

A non-custodial sentence for an offence against s 52A should be exceptional and almostinvariably confined to cases involving momentary inattention or misjudgment.

In this study, and unless otherwise indicated, we take the term “custodial sentence” to referonly to a sentence of full time imprisonment, and we have conducted our primary analysisbased on this premise. However, the term custodial sentence is sometimes understood toinclude other forms of custodial sentences (such as home detention, periodic detentionand s 12 suspended sentences). Where indicated in the text, an additional analysis has beenundertaken on the basis of this extended meaning.

The questions addressed in the analysis based on the first guideline were:

1. What was the overall range of penalty types handed down to offenders convicted of anoffence under s 52A in the study period?

2. What differences, if any, were there in the percentages for full time custodial, otherforms of custodial and non-custodial penalties in the pre and post Jurisic periods?

3. What differences, if any, were there in the percentages for full time custodial, otherforms of custodial and non-custodial penalties for individual subsections of s 52A inthe pre and post Jurisic periods?

3.4.2 The second guideline

With a plea of guilty, wherever there is present to a material degree any aggravating factorinvolving the conduct of the offender, a custodial sentence (minimum plus additional or fixedterm) of less than three years (in the case of dangerous driving causing death) and less thantwo 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 beenreached, is a starting point. The presence of additional aggravating factors, or their increasedintensity, will determine the actual sentence.

In this section we answer questions of consistency, measured by quantum of penalty, analysingonly sentences of full time imprisonment. This decision was taken as the second guidelinewas ambiguous as to the exact meaning of a custodial sentence for not less than two or threeyears. For example, home detention is only available for up to a maximum period of18 months and could not have been a valid option under guideline two. Similarly, we haveexcluded periodic detention and s 12 suspended sentences as falling within the meaning ofcustodial sentence for the purposes of this guideline.


It was decided to select only s 52A(2) and s 52A(4) for analysis here as at least one of theaggravating factors referred to by the Chief Justice in the guideline judgment75 would haveto be present for an offender to be charged under either of these subsections. A similaranalysis was not possible for the other subsections, as the first instance data for these offenceslacked the detailed information necessary for this analysis.

The questions addressed in the analysis based on the second guideline were:

4. How many sentences for a conviction under s 52A(2), taking into account a guiltyplea, resulted in a full time custodial sentence greater than or equal to three years?

5. How many sentences for a conviction under s 52A(4), taking into account a guiltyplea, resulted in a full time custodial sentence greater than or equal to two years?

3.4.3 Court of Criminal AppealAnother way to examine the effect of Jurisic on sentencing consistency under s 52A is toanalyse the type and outcome of appeals in the CCA: see Appendix B for a table of allappeal cases relating to s 52A. In the pre Jurisic period it was said that trial judges werehanding down inadequate sentences, evidenced by the high number of Crown appealsagainst the inadequacy of sentence. In the post Jurisic period with the guidelines calling foran increase in sentence severity, one might expect to see an increase in the number ofappeals against sentence severity and a corresponding decrease in the number of Crownappeals. Therefore, the question to be addressed in assessing the CCA data was:

6. What change, if any, was there in the pattern of appeals relating to sentences for s 52Acases in the pre and post Jurisic periods?

75 (1998) 45 NSWLR 209 at 231.

In the six-year period covered by this study there were a total of 477 cases in which anoffender was sentenced for an offence(s) under s 52A of the Crimes Act 1900. Therewere 190 cases in the three-year pre Jurisic period and 287 in the post Jurisic period.76

Analysis of the data showed no statistically significant differences in the characteristicsof offenders convicted and sentenced for an offence(s) under s 52A in the pre andpost Jurisic periods: see Table 1. The majority of offenders were male (89.7%), aged27 years (median77), with no prior convictions (62.9%) and at liberty at the timethey committed the offence (94.5%). They pleaded guilty (86.6%) to one count ofthe principal offence under s 52A (87.2%) and had no Form 1 matters taken intoaccount at sentencing (81.3%).

Table 1 Characteristics of offenders sentenced under s 52A of the Crimes Act1900 (NSW) — pre and post Jurisic

Characteristic Pre Post Overall12/10/95–11/10/98 12/10/98–11/10/01 12/10/95–11/10/01

n % n % n %No Form 1 matters 157 82.6 231 80.5 388 81.3

One count of the principal offence 165 86.8 251 87.5 416 87.2

No priors (any type) 122 64.2 178 62.0 300 62.9

Plea guilty 167 87.9 246 85.7 413 86.6

At liberty† at time of offence 180 94.7 271 94.4 451 94.5

Males 169 88.9 259 90.2 428 89.7

Median age 27 years 28 years 27 years

† Not subject to a court order.

4.1 The effect of Jurisic in terms of severity and consistencymeasured on severity of penalty type

Question 1 What was the overall range of penalty types handed down tooffenders convicted of an offence under s 52A in the study period?

While the full range of custodial and non-custodial penalties were available tosentencing judges, Table 2 shows that some penalties (non-conviction dismissals,non-conviction bonds/recognisances and fines) were not utilised by sentencing judgesat all in the pre Jurisic period, and rarely used in the post Jurisic period. The most

4Analysis & findings

76 It should be noted that the pre and post Jurisic numbers relate to the sentence dates of the studyperiod, not the date of the offence.

77 The median describes the midpoint where 50% of cases fall below or above. The median was used todescribe the average in preference to the mean because the mean may be distorted by extreme valuesat either end of the distribution.


common penalty handed down to an offender convicted under s 52A in both periods wasa full time custodial sentence. The next most common penalties were periodic detentionand community service orders.

Table 2 Trends in overall penalty types for offences under s 52A of the Crimes Act 1900(NSW) — pre and post Jurisic

Penalty Pre Post % Differencen % n %

FFFFFull time custodialull time custodialull time custodialull time custodialull time custodial 9494949494 49.4749.4749.4749.4749.47 195195195195195 67.9467.9467.9467.9467.94 18.4718.4718.4718.4718.47

Other custodialOther custodialOther custodialOther custodialOther custodial 4444444444 23.1623.1623.1623.1623.16 5353535353 18.4718.4718.4718.4718.47 -4.69-4.69-4.69-4.69-4.69

Home detention 8 4.21 4 1.39 -2.82

Periodic detention 36 18.95 39 13.59 -5.36

s 12 suspended sentence(a) 10 3.48 3.48

Non-Non-Non-Non-Non-custodialcustodialcustodialcustodialcustodial 5252525252 27.3727.3727.3727.3727.37 3939393939 13.5913.5913.5913.5913.59 -13.78-13.78-13.78-13.78-13.78

Community service order 29 15.26 25 8.71 -6.55

Bonds/recognisances(b) 23 12.21 12 4.18 -7.92

Fines 0 0.00 1 0.35 0.35

Non-conviction bonds/recognisances(c) 0 0.00 1 0.35 0.35

Non-conviction dismissals(c) 0 0.00 0 0.00 0.00

OverallOverallOverallOverallOverall 190190190190190 100.00100.00100.00100.00100.00 287287287287287 100.00100.00100.00100.00100.00

(a) This penalty option became available from 3/4/2000.(b) Includes both s 558 recognisances and s 9 good behaviour bonds which replaced s 558 recognisances on 3/4/2000.(c) Includes both s 556A non-conviction orders and s 10 non-conviction orders which replaced s 556A non-conviction

orders on 3/4/2000.

Question 2 What differences, if any, were there in the percentages for full time custodial,other forms of custodial and non-custodial penalties in the pre and post Jurisic periods?

When individual penalty types were examined (see Table 2) a marked increase was apparentin the proportion of offenders sentenced to a term of full time imprisonment in the postJurisic period. Overall, the rate for the penalty of full time imprisonment increased from49.47% pre Jurisic to 67.94% post Jurisic. This represents an 18.47% difference in the useof this penalty in the pre and post Jurisic periods. The overall increase in this category ofpenalty resulted, as one would expect, in a reduction in other categories of penalty. The lastcolumn in Table 2 shows the percentage difference between the pre and post Jurisic periodsfor all penalties. The penalties that showed the greatest reductions in use were bonds/recognisances (from 12.21% pre Jurisic to 4.18% post Jurisic) and community service orders(from 15.26% pre Jurisic to 8.71% post Jurisic).

Question 3 What differences, if any, were there in the percentages for full time custodial,other forms of custodial and non-custodial penalties for individual subsections of s 52A inthe pre and post Jurisic periods?

Following the judgment in Jurisic every subsection of s 52A (where cases exist) showed agreater proportion of offenders being sentenced to a term of full time imprisonment, however,some subsections showed a greater increase than others: see Table 3. The greatest increase interms of a penalty of full time imprisonment was for the offence under s 52A(3)(a) ofdangerous driving occasioning grievous bodily harm while driving under the influence ofintoxicating liquor or of a drug. The proportion of offenders convicted and sentencedunder this subsection to a term of full time imprisonment almost doubled in the study

Analysis & findings 19

period, from 35.7% pre Jurisic to 66.7% post Jurisic. Section 52A(1)(c), dangerous drivingoccasioning death while driving in a manner dangerous to another person or persons, ands 52A(3)(c), dangerous driving occasioning grievous bodily harm while driving in a mannerdangerous to another person or persons, also nearly doubled, from 28.6% pre Jurisic to55.0% post Jurisic and from 28.0% pre Jurisic to 51.1% post Jurisic, respectively.

Table 3 Trends in custodial penalties for offences under s 52A of the Crimes Act 1900(NSW) by subsection — pre and post Jurisic

Section Full time custodial Other custodial Non-custodialn % n % n %

Death — non-aggravatedDeath — non-aggravatedDeath — non-aggravatedDeath — non-aggravatedDeath — non-aggravateds 52A(1)(a) — DUIs 52A(1)(a) — DUIs 52A(1)(a) — DUIs 52A(1)(a) — DUIs 52A(1)(a) — DUI

pre 20 83.3 3 12.5 1 4.2

post 25 96.2 1 3.8 0 0.0

% difference 12.9 -8.7 -4.2

s 52A(1)(b) — Speeds 52A(1)(b) — Speeds 52A(1)(b) — Speeds 52A(1)(b) — Speeds 52A(1)(b) — Speed

pre 1 100.0 0 0.0 0 0.0

post – – – – – –

% difference – – –

s 52A(1)(c) — DMDs 52A(1)(c) — DMDs 52A(1)(c) — DMDs 52A(1)(c) — DMDs 52A(1)(c) — DMD

pre 22 28.6 24 31.2 31 40.3

post 61 55.0 25 22.5 25 22.5

% difference 26.4 -8.7 -17.8

Death — aggravatedDeath — aggravatedDeath — aggravatedDeath — aggravatedDeath — aggravateds 52A(2)s 52A(2)s 52A(2)s 52A(2)s 52A(2)

pre 25 92.6 1 3.7 1 3.7

post 32 100.0 0 0.0 0 0.0

% difference 7.4 -3.7 -3.7

GBH — non-aggravatedGBH — non-aggravatedGBH — non-aggravatedGBH — non-aggravatedGBH — non-aggravateds 52A(3)(a) — DUIs 52A(3)(a) — DUIs 52A(3)(a) — DUIs 52A(3)(a) — DUIs 52A(3)(a) — DUI

pre 5 35.7 6 42.9 3 21.4

post 24 66.7 11 30.6 1 2.8

% difference 31.0 -12.3 -18.6


pre – – – – – –

post – – – – – –

% difference – – –


pre 7 28.0 3 12.0 15 60.0

post 23 51.1 9 20.0 13 28.9

% difference 23.1 8.0 -31.1

GBH — aggravatedGBH — aggravatedGBH — aggravatedGBH — aggravatedGBH — aggravateds 52A(4)s 52A(4)s 52A(4)s 52A(4)s 52A(4)

pre 14 63.6 7 31.8 1 4.5

post 30 81.1 7 18.9 0 0.0

% difference 17.5 -12.9 -4.5

DUI — driving under the influence of intoxicating liquor or a drugDMD — driving in a manner dangerousGBH — grievous bodily harm


Question 4 How many sentences for a conviction under s 52A(2), taking into account aguilty plea, resulted in a full time custodial sentence greater than or equal to three years?

Of all offenders who pleaded guilty and were convicted prior to Jurisic of an offence unders 52A(2), aggravated dangerous driving occasioning death, 69.6% received a sentence offull time custody of three or more years. However, following Jurisic all offenders (100.0%)received full time imprisonment terms of three years or more.

Question 5 How many sentences for a conviction under s 52A(4), taking into account aguilty plea, resulted in a full time custodial sentence greater than or equal to two years?

Prior to Jurisic half or 50% of all offenders who pleaded guilty and were sentenced for anoffence under s 52A(4), aggravated dangerous driving occasioning grievous bodily harm,received a sentence of full time custody of two years or longer. Post Jurisic this figure increasedto 77.8% of all offenders.

4.2 The effect of Jurisic in terms of severity and consistencymeasured by length of full time imprisonment

While the previous section provided details specific to the effect of the guideline judgmentfor aggravated offences under s 52A, this section provides information on the effect ofJurisic for all offences under s 52A, whether the offender pleaded guilty or not. It should benoted the analysis refers to the head, non-parole period and fixed term sentences.

Addressing the issue of sentence severity first, the median terms of full time imprisonmentwere compared for the pre and post Jurisic periods. While the overall figures (see Table 4)show no increase in the median term of the full time head sentence (both 36 months) ornon-parole period (both 18 months), it should be noted that there was a sharp increase inthe proportion of offenders being sentenced to a term of full time imprisonment from49.5% pre Jurisic to 67.9% post Jurisic.

In addressing the issue of consistency, we decided to look at sentences clustered around themiddle 50% range of imprisonment. This decision was made because of the many factorstaken into account in sentencing which can result in prison terms at the extreme ends of thesentencing range. Table 4 illustrates that overall there was a slight narrowing around themiddle 50% range, from 24–52 months pre Jurisic to 24–48 months post Jurisic. However,there was a slight expansion in the middle 50% range for the non-parole period from 12–28months pre Jurisic to 12–30 months post Jurisic. Once again, it should be remembered thatmore offenders are being sentenced to full time imprisonment who previously may havereceived another more lenient type of penalty. Hence, one would expect a somewhat loweraverage length prison sentence in the post Jurisic period to accommodate increased numberscoming in at the bottom end of the imprisonment spectrum.

The reason there was no overall change observed in the median term of the full time headsentence, non-parole period or the middle 50% range of sentences was the combined effectof the increase in the severity of penalty type, and fluctuations in the custodial sentencelengths imposed under the majority of the subsections of s 52A. Consequently, a moredetailed analysis of the impact of Jurisic on each subsection under s 52A follows.

The results for each subsection are presented in Table 4 and the distribution of full timeprison terms (head sentence and non-parole period) is graphically presented in Figures 1–6.


Table 4 Severity and consistency of full time custody (head sentences and non-paroleperiods) for offences under s 52A of the Crimes Act 1900 (NSW) by subsection— pre and post Jurisic

Section Full time custody If full time custodyHead sentence(a) Non-parole period(b)

median middle full median middle fullterm 50% range term 50% range

range rangen % (mths) (mths) (mths) (mths) (mths) (mths)

Death — non-aggravatedDeath — non-aggravatedDeath — non-aggravatedDeath — non-aggravatedDeath — non-aggravateds 52A(1)(a) — DUIs 52A(1)(a) — DUIs 52A(1)(a) — DUIs 52A(1)(a) — DUIs 52A(1)(a) — DUI

pre 20 83.3 36 30–60 24–72 18 12–30 12–48

post 25 96.2 42 36–60 18–84 24 18–36 6–54


pre 1 100.0 42 – 42 18 – 18

post – – – – – – – –


pre 22 28.6 36 16–48 4–72 12 12–34 4–42

post 61 55.0 36 24–42 3–74 18 9–24 3–56

Death — aggravatedDeath — aggravatedDeath — aggravatedDeath — aggravatedDeath — aggravateds 52A(2)s 52A(2)s 52A(2)s 52A(2)s 52A(2)

pre 25 92.6 48 35–60 20–72 24 12–30 8–42

post 32 100.0 60 48–72 36–96 36 30–48 12–63

GBH — non-aggravatedGBH — non-aggravatedGBH — non-aggravatedGBH — non-aggravatedGBH — non-aggravateds 52A(3)(a) — DUIs 52A(3)(a) — DUIs 52A(3)(a) — DUIs 52A(3)(a) — DUIs 52A(3)(a) — DUI

pre 5 35.7 18 12–36 6–42 12 7–18 6–24

post 24 66.7 24 24–30 12–48 12 9–16 6–36


pre – – – – – – – –

post – – – – – – – –


pre 7 28.0 28 15–36 12–84 18 4–27 3–48

post 23 51.1 30 24–40 12–64 12 6–20 2–48

GBH — aggravatedGBH — aggravatedGBH — aggravatedGBH — aggravatedGBH — aggravateds 52A(4)s 52A(4)s 52A(4)s 52A(4)s 52A(4)

pre 14 63.6 36 24–51 12–62 13.5 12–24 5–36

post 30 81.1 30 24–48 18–72 15 12–24 6–45

OverallOverallOverallOverallOverallpre 94 49.5 36 24–52 4–84 18 12–28 3–48

post 195 67.9 36 24–48 3–96 18 12–30 2–63

(a) The head sentence refers to the non-parole period (or minimum term) and additional term or fixed term.(b) The non-parole period also refers to the minimum term or fixed term.DUI — driving under the influence of intoxicating liquor or a drugDMD — driving in a manner dangerousGBH — grievous bodily harm


Section 52A(1)(a) — Dangerous driving occasioning death while drivingunder the influence of intoxicating liquor or of a drug

Figure 1 Length of full time custody (head sentences and non-parole periods) under s 52A(1)(a)of the Crimes Act 1900 (NSW) — pre and post Jurisic

An increase in the median term of both the head sentence and non-parole period was evident inthis subsection. The median head sentence increased from 36 months pre Jurisic to 42 monthspost Jurisic. Similarly, the median non-parole period increased from 18 months to 24 months.

Head sentences for the middle 50% range showed a slight narrowing from 30–60 monthspre Jurisic to 36–60 months post Jurisic. While the middle 50% range for non-paroleperiods did not narrow, they clearly attracted higher average non-parole periods. As Figure 1indicates there has been a shift to the higher end of the penalty ranges for both headsentences and non-parole periods.

Section 52A(1)(b) — Dangerous driving occasioning death while driving ata speed dangerous to another person or personsDuring the study period there was only one case under this subsection. The case was in thepre Jurisic period and it attracted a full time custodial sentence of 42 months, with a non-parole period of 18 months.

Head sentence (months)

Non-parole period (months)

0%

5%

10%

15%

20%

25%

30%postpre

91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

0%

5%

10%

15%

20%

25%

30%

35%

91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

postpre


Section 52A(1)(c) — Dangerous driving occasioning death while driving ina manner dangerous to another person or persons

Figure 2 Length of full time custody (head sentences and non-parole periods) under s 52A(1)(c)of the Crimes Act 1900 (NSW) — pre and post Jurisic

While no change was noted in the median head sentence (both 36 months), the non-paroleperiod showed an increase in the median term from 12 months pre Jurisic to 18 monthspost Jurisic.

A distinct narrowing of the middle 50% range of both the head sentences and non-paroleperiods was evident in this subsection. For head sentences, the middle 50% range narrowedconsiderably from 16–48 months pre Jurisic to 24–42 months post Jurisic. The same patternwas repeated for non-parole periods from 12–34 months pre Jurisic to 9–24 months postJurisic. Figure 2 shows the distribution of head sentences and non-parole periods for thissubsection.



0%

5%

10%

15%

20%

25%

30%

35%

91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

0%

10%

20%

30%

40%

50%

91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

postpre

postpre


Section 52A(2) — Aggravated dangerous drivingoccasioning death

Figure 3 Length of full time custody (head sentences and non-parole periods) under s 52A(2) ofthe Crimes Act 1900 (NSW) — pre and post Jurisic

This subsection witnessed the greatest increase in the median term of imprisonment forboth the head sentence (from 48 months pre Jurisic to 60 months post Jurisic) and the non-parole period (24 months pre Jurisic to 36 months post Jurisic).

Only a slight narrowing in the middle 50% range of head sentences (35–60 months preJurisic to 48–72 months post Jurisic) and a slight expansion in the same range for the non-parole period (12–30 months pre Jurisic to 30–48 months post Jurisic) were observed.However, there was a dramatic upward movement in the severity of sentence lengths forthis offence: see Figure 3.



0%

5%

10%

15%

20%

25%

30%

35%

91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

0%

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15%

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25%

30%

35%

91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

postpre

postpre


Section 52A(3)(a) — Dangerous driving occasioning grievous bodily harmwhile driving under the influence of intoxicating liquor or of a drug

Figure 4 Length of full time custody (head sentences and non-parole periods) under s 52A(3)(a)of the Crimes Act 1900 (NSW) — pre and post Jurisic

While this subsection had a much smaller number of cases in the pre Jurisic period (n=5)compared to the post Jurisic period (n=24), there was nevertheless an increase in the medianhead sentence from 18 months pre Jurisic to 24 months post Jurisic. The median non-parole period, however, remained stable at 12 months.

The middle 50% range narrowed for both head sentences (from 12–36 months pre Jurisicto 24–30 months post Jurisic) and non-parole periods (from 7–18 months pre Jurisic to 9–16months post Jurisic). Figure 4 demonstrates a clear upward movement in penalty lengthsfor both head sentences and non-parole periods.

Section 52A(3)(b) — Dangerous driving occasioning grievous bodily harmwhile driving at a speed dangerous to another person or personsNo cases under this subsection were dealt with in the study period.



0%

10%

20%

30%

40%

50%

91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

0%

10%

20%

30%

40%

50%

91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

postpre

postpre


Section 52A(3)(c) — Dangerous driving occasioning grievous bodily harmwhile driving in a manner dangerous to another person or persons

Figure 5 Length of full time custody (head sentences and non-parole periods) under s 52A(3)(c)of the Crimes Act 1900 (NSW) — pre and post Jurisic

In this subsection a slight increase was observed in the median head sentence from 28 monthspre Jurisic to 30 months post Jurisic. However, the median non-parole period fell from 18months pre Jurisic to 12 months post Jurisic. Caution should be exercised when drawingany firm conclusions based on these figures because of the small number of cases ofimprisonment in the pre Jurisic period (n=7). As already mentioned above, one explanationcould be that there was a significant increase in the number of offenders sentenced to a fulltime custodial sentence in the post Jurisic period (28.0% pre Jurisic to 51.1% post Jurisic)and many of those would fall at the bottom end of the imprisonment range.

The middle 50% range narrowed for both head sentences (from 15–36 months pre Jurisicto 24–40 months post Jurisic) and non-parole periods (from 4–27 months pre Jurisic to 6–20months post Jurisic). Again, as Figure 5 demonstrates, there was a movement towards moresevere head sentences under this subsection.



0%

5%

10%

15%

20%

25%

30%

35%

40%

91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

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35%

91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

postpre

postpre


Section 52A(4) — Aggravated dangerous driving occasioning grievousbodily harm

Figure 6 Length of full time custody (head sentences and non-parole periods) under s 52A(4)of the Crimes Act 1900 (NSW) — pre and post Jurisic

This was the only subsection that showed a decrease in the median head sentence, fallingfrom 36 months pre Jurisic to 30 months in the post Jurisic period. It should be noted,however, that there was a substantial increase in the proportion of offenders sentenced to fulltime custody, increasing from 63.6% pre Jurisic to 81.1% post Jurisic. Again cases whichmight previously have attracted non-custodial sentences pre Jurisic might now appear at thebottom end of the imprisonment spectrum, thus accounting for a drop in the length of themedian head sentence. Nevertheless, the median non-parole period rose from 13.5 monthspre Jurisic to 15 months post Jurisic, indicating a slight increase in overall severity.

There was no appreciable difference noted in the middle 50% range of head sentences(24–51 months pre Jurisic to 24–48 months post Jurisic). The middle 50% range for thenon-parole period was the same in both periods (12–24 months). Figure 6 shows thedistribution of head sentences and non-parole periods for this subsection.



0%

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91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

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40%

91–9685–9079–8473–7867–7261–6655–6049–5443–4837–4231–3625–3019–2413–187–120–6

postpre

postpre


4.3 Analysis of the Court of Criminal Appeal decisionsIn the six-year study period there was a total of 89 appeals relating to offences under s 52A.This figure translates into a first instance appeal rate for this offence of approximately onein five (18.4%). However, there was no significant difference in appeal rates between thepre (35 or 18.0%) and post (54 or 18.7%) Jurisic periods.78 These figures include all typesof appeals: conviction, sentence severity and Crown appeals.

The following section provides an analysis of CCA sentence appeals for the pre and postJurisic periods. The analysis excluded conviction appeals, as the focus of the study was onthe type and quantum of sentence. This eliminated eight of the original 89 cases, leaving81 cases for analysis (31 pre Jurisic and 50 post Jurisic).

The question this section seeks to answer is:

Question 6 What change, if any, was there in the pattern of appeals relating tosentences for s 52A cases in the pre and post Jurisic periods?

Table 5 shows support for the statement by the Chief Justice in Jurisic that trial judges upto that time were sentencing too leniently for offences under s 52A. This can be seen by thenumber of Crown appeals against inadequacy of sentence in the pre Jurisic period. In thatperiod over half (51.6%) of all sentence appeals were Crown appeals against the inadequacyof the first instance sentence, compared with 30.0% in the post Jurisic period. The majorityof these Crown appeals were successful (81.3% pre Jurisic and 66.7% post Jurisic).

On the other hand, the number of appeals against sentence severity showed a sharp increase,from 48.4% of sentence appeals in the pre Jurisic period to 70.0% in the post Jurisic period.While it is difficult to draw any firm conclusions from the small number of cases, it shouldbe noted that only two cases (13.3%) were successful in the pre Jurisic period, while 13 cases(37.1%) were successful in the post Jurisic period. This would tend to indicate that preJurisic, offenders were not generally displeased with the severity of sentences imposed uponthem. On the other hand, after Jurisic sentencing judges were handing down more severesentences at first instance, hence the sharp rise in severity appeals.

Table 5 CCA appeals under s 52A of the Crimes Act 1900 (NSW) — pre and post Jurisic

Pre Post12/10/95–11/10/98 12/10/98–11/10/01

N = 31 N = 50n % n %

Crown appealsCrown appealsCrown appealsCrown appealsCrown appeals 1616161616 51.651.651.651.651.6 1515151515 30.030.030.030.030.0

Successful outcome 13 81.3 10 66.7

Result of outcome — new sentence 13 100.0 10 100.0

Sentence severity appealsSentence severity appealsSentence severity appealsSentence severity appealsSentence severity appeals 1515151515 48.448.448.448.448.4 3535353535 70.070.070.070.070.0

Successful outcome 2 13.3 13 37.1

Result of outcome — new sentence 1 50.0 13 100.0

Result of outcome — remit for re-sentence 1 50.0 0 0.0

78 As mentioned earlier, successful conviction appeals were excluded from the study. However, in order toderive first instance appeal rates, these cases needed to be included. As such, these figures were calculatedfrom a total of 483 cases (194 pre Jurisic and 289 post Jurisic).


4.3.1 Crown appealsIn the pre Jurisic period, there were 13 successful Crown appeals against sentence. Of thesematters, four offenders received a penalty of full time custody at first instance;79 three wereordered to serve their term of imprisonment by way of home detention;80 two by way ofperiodic detention;81 and four by a community service order.82 Following the successful outcomeof the Crown appeals, community service orders were eliminated as a penalty type and thenumber of offenders receiving a penalty of full time custody increased from four to nine.

In the post Jurisic period, there were ten successful Crown appeals. Of these ten matters,only two offenders had received a penalty of full time custody at first instance.83 Three hadreceived a term of imprisonment to be served by way of home detention84 and five weregiven periodic detention.85 Following the successful outcome of the Crown appeals, all butone matter86 resulted in the offender serving a sentence of full time custody.

Some examples of the reasons for upholding Crown appeals included:

■ sentence length manifestly inadequate in light of the facts established by the evidence,87

or the objective seriousness of the offence warranted the imposition of a full time custodialsentence88

■ combination of aggravating factors (high speed, heroin, behaviour after the offence andprior record) warranted an increase in sentence89

■ need for general deterrence90 outweighing the fact the offender was youthful and ofgood character91

■ objective seriousness of the offence, including the extent of the grievous bodily harm,92

multiple victims93

■ worst case scenario94

■ offender evidenced a continuing disregard for the law.95

79 R v Sellers (1997) 92 A Crim R 381; R v Tapfield (unreported, 30 July 1997, NSWCCA); R v Kalanj(unreported, 18 December 1997, NSWCCA); and R v Black (unreported, 23 July 1998, NSWCCA).

80 R v Smith (1997) 95 A Crim R 373; R v Thackray (unreported, 19 August 1998, NSWCCA); and R v Byrne(1998) 104 A Crim R 456.

81 R v Musumeci (unreported, 30 October 1997, NSWCCA); and R v Slattery (1996) 90 A Crim R 519.82 R v Pellow (unreported, 1 August 1997, NSWCCA); R v Lemoto (unreported, 24 July 1998, NSWCCA);

R v Savka (1996) 88 A Crim R 393; and R v Milsom (unreported, 10 December 1997, NSWCCA).83 R v McDonald (unreported, 12 October 1998, NSWCCA); and R v McKinney [1999] NSWCCA 51.84 R v Begbie [2001] NSWCCA 206; R v Jurisic (1998) 45 NSWLR 209; (1998) 101 A Crim R 259; (1998) 29

MVR 49; and R v Errington [1999] NSWCCA 18.85 R v Douglas (unreported, 11 December 1998, NSWCCA); R v Howland [1999] NSWCCA 10; R v Khatter

[2000] NSWCCA 32; R v Romanic [2000] NSWCCA 524; and R v King [2001] NSWCCA 18.86 R v Begbie [2001] NSWCCA 206. This case was unusual in that at first instance the penalty handed down

was 18 months imprisonment to be served by way of home detention. As a result of a successful Crownappeal the penalty was converted to one of periodic detention for a term of 2 years and 9 months.

87 R v Sellers (unreported, 4 April 1997, NSWCCA).88 R v Slattery (1996) 90 A Crim R 519; R v Douglas (unreported, 11 December 1998, NSWCCA); R v Khatter

[2000] NSWCCA 32; R v Howland [1999] NSWCCA 10.89 R v Tapfield (unreported, 30 July 1997, NSWCCA).90 R v Musumeci (unreported, 30 October 1997, NSWCCA); R v McKinney [1999] NSWCCA 51.91 R v Smith (1997) 95 A Crim R 373; R v Pellow (unreported, 1 August 1997, NSWCCA).92 R v Savka (1996) 88 A Crim R 393.93 R v Romanic [2000] NSWCCA 524.94 R v Black (unreported, 23 July 1998, NSWCCA).95 R v McDonald (unreported, 12 October 1998, NSWCCA).


While the principle of double jeopardy is always a primary consideration in Crown appeals,96

some reasons for unsuccessful Crown appeals included:

■ the difference in the sentence imposed at first instance and the sentence the CCA wouldimpose should they intervene was not great enough to warrant the intervention of the Court97

■ error at first instance in sentencing to home detention, however, a delay occurred whichresulted in the appeal coming on very shortly before the expiration of the offender’sminimum term98

■ the absence of any aggravating features, but many mitigating factors and a momentaryreckless error of judgment99

■ sentence was within the sentencing range100

■ sentence not so lenient as to warrant intervention by the CCA.101

4.3.2 Sentence severity appealsIn the pre Jurisic period, there were two successful appeals against the severity of the sentence.In the first case, the non-parole period was reduced by half, from 24 months to 12 months,however, the head sentence remained unaltered at 60 months.102 In the second case, wherethe offender had received at first instance a fixed term of 15 months to be served by way ofhome detention, the CCA ordered the matter be remitted to the District Court forresentencing.103

Of the 13 cases that were successful in the post Jurisic period, seven resulted in a reductionin the head sentence and the non-parole period,104 three received a reduction in the non-parole period only,105 and three received another penalty type.106

In sentence severity appeals examples of factors that resulted in a reduction of first instancepenalties include:

■ error at first instance in the apportionment of the minimum (non-parole period) andadditional terms107

■ bottom end of culpability108

■ momentary inattention109

96 See Everett v The Queen (1994) 181 CLR 295.97 R v Ngo (unreported, 15 November 1996, NSWCCA).98 R v Menzies [1999] NSWCCA 222; leave to appeal was refused.99 R v Tomson [1999] NSWCCA 308.100 R v Simpson [1999] NSWCCA 367.101 R v Dhanhoe [2000] NSWCCA 257.102 R v Fuller (unreported, 4 March 1998, NSWCCA).103 R v Whyte (unreported, 8 December 1997, NSWCCA).104 R v Hill (unreported, 4 December 1998, NSWCCA); R v Mansour [1999] NSWCCA 180; R v Bailey [2001]

NSWCCA 10; R v Sen [1999] NSWCCA 199; R v Tadman [2001] NSWCCA 225; R v Kilborn [2001]NSWCCA 116; and R v Vitasovic [2000] NSWCCA 232.

105 R v Frascella [2001] NSWCCA 137; R v Jaworowski [1999] NSWCCA 430; and R v Hanlon [2000]NSWCCA 55.

106 R v Katoa [2000] NSWCCA 223; R v Pyritz (unreported, 23 November 1998, NSWCCA); and R v Douglass[2001] NSWCCA 250.

107 R v Fuller (unreported, 4 March 1998, NSWCCA).108 R v Kotoa [2000] NSWCCA 223.109 R v Pyritz (unreported, 23 November 1998, NSWCCA).


■ hardship on victim (wife became a quadriplegic)110

■ special circumstances — restructure111 or reduction112

■ strong subjective features113

■ excessive sentencing at first instance114

■ sentenced as if aggravating offence and abandonment of responsibility, but really midway between that and momentary inattention.115

4.3.3 Exceptional casesThe Chief Justice in Jurisic clearly stated that the guidelines for s 52A would not apply inevery case. There will be exceptional cases in which the sentencing judge in weighing up theobjective and subjective facts of the case will, in exercising his or her discretion, hand downa sentence that is outside the guidelines.

Five Crown appeals from the pre and post Jurisic periods provide some examples of casesthat could be regarded as exceptional in that the offenders received a non-custodial sentenceat first instance. While two of the cases were in the pre Jurisic period, and therefore not ofthe exceptional type of case referred to in the first guideline, they nevertheless provide aninsight into why a non-custodial sentence was imposed at first instance. Although four ofthe five cases involved the offence of dangerous driving occasioning death under s 52A(1)(c),none involved the aggravated offence under s 52A(2). The fifth case involved the offence ofdangerous driving occasioning grievous bodily harm under s 52A(3)(a).

In dismissing the Crown appeal in these cases against the inadequacy of the first instancesentence the CCA found that:

■ the facts of the case were of a kind rarely seen in the cases from which a general sentencingpattern could be discerned116

■ on the facts presented at trial the sentence was lenient and at the bottom end of thesentencing range; while the sentence was lenient it was not outside the sentencingdiscretion available117

■ although there was an error at first instance in sentencing to home detention, delayresulted in the appeal coming on very shortly before the expiration of the offender’sminimum term118

■ the facts revealed a momentary reckless error of judgment.119

110 R v Douglass [2000] NSWCCA 250.111 R v Jaworowski [1999] NSWCCA 430; R v Hanlon [2000] NSWCCA 55.112 R v Bailey [2001] NSWCCA 10; R v Tadman [2001] NSWCCA 225; R v Kilborn [2001] NSWCCA 116.113 R v Mansour [1999] NSWCCA 180; R v Katoa [2000] NSWCCA 223.114 R v Hill (unreported, 4 December 1998, NSWCCA).115 R v Vitasovic [2000] NSWCCA 232.116 R v Marlin (unreported, 10 September 1997, NSWCCA). A pre Jurisic case in which the offender killed his

daughter and friend. He was sentenced at first instance to 200 hours of community service.117 R v Davies (unreported, 27 March 1998, NSWCCA). A pre Jurisic case in which the offender received a

sentence of 36 months to be served by way of periodic detention.118 R v Menzies [1999] NSWCCA 222.119 R v Tomson [1999] NSWCCA 308. The offender, who killed his wife in the accident, received a recognisance

for 36 months. Jurisic was distinguished. In R v Foster [2001] NSWCCA 215 the offender had killed hispassenger and received a suspended sentence of imprisonment for 22 months. The offence was at the low endof culpability and not one which required a custodial penalty.


4.4 Changes in the prison population after JurisicFigures from the Department of Corrective Services (see Table 6) indicate that after Jurisicthere was a substantial rise in the number of inmates serving a term of full time custody forwhich their principal offence was related to driving causing death or bodily harm,120 ordangerous driving. Between 30 June 1998 and 30 June 1999 (covering almost nine monthspost Jurisic) there was a 40% increase from 73 inmates to 102 inmates. On 30 June 2000the number of such inmates in full time custody rose to 119 and on 30 June 2001 thenumber reached 149. It should be noted that the figures are based on the number of inmatesin full time custody at a given point in time, census night, and do not account for inmateswho served a period of full time custody which falls short of the census time frame.Conversely, double counting may be a factor in the increase in the number of inmatesbecause inmates serving a longer prison term may be counted on more than one occasion.Ultimately, however, the figures are a function of both the numbers of offenders beingsentenced to imprisonment and the length of time to be served in custody, and they reveala palpable increase in the severity of sentencing for these types of offences.

Table 6 Sentenced inmates in full time custody for driving offences on 30 June: 1997–2001

Most serious offence(a) 1997 1998 1999 2000 2001

Driving causing death 34 42 58 62 72

Driving causing bodily harm(b) 18 17 29 38 43

Other dangerous driving 14 14 15 19 34

Total dangerous driving 66 73 102 119 149

(a) Offence with the longest aggregate sentence in the imprisonment episode.(b) Bodily harm includes grievous bodily harm and actual bodily harmSource: Department of Corrective Services — April 2002 (unpublished data).

120 These figures use data from the departmental computerised inmate management system (OMS) and arebased on the annual inmate census conducted on 30 June each year. They cannot be compared with theCommission figures because of the different time frames and the fact that the Department of CorrectiveServices combines grievous bodily harm and actual bodily harm which encompasses offences other thans 52A driving offences, for example, the Road Transport (Safety and Traffic Management) Act 1999 (NSW),s 42(1)(a) and (b).

The guidelines promulgated in Jurisic were designed to provide guidance for trialjudges when sentencing offenders for dangerous driving offences under s 52A of theCrimes Act 1900. It was envisaged that the direction provided by the guidelines (whichretained judicial discretion in sentencing by allowing sentencing judges to departfrom them in exceptional cases) would result in consistency in sentencing of offendersconvicted of these offences. This was something that was not evident in sentencingpatterns for offences under this section up to the time the guideline judgment wasissued in October 1998.

Based on the findings presented above, and bearing in mind the measures ofconsistency utilised in this study —severity of penalty type and quantum of penalty— only one conclusion can be reached. The guidelines have resulted in consistentresults or outcomes in the sentencing of offenders convicted of dangerous drivingoffences under s 52A. In addition, after reading the various judgments in the courseof this study it became apparent that since Jurisic consistency is also evident in thearticulation of the purpose underlying the type and quantum of sentences handeddown, and in the approach taken by trial judges in sentencing for these offences.

The main findings of this study relating to the sentences handed down after theguideline became available can be summarised as:

■ sentences of full time custody increased for all offences committed under thevarious subsections of s 52A

■ in relation to the aggravated dangerous driving offences there was a significantincrease in the proportion of offenders sentenced to a term of full time imprisonmentfor three years or longer (for s 52A(2)), or two years or longer (for s 52A(4))

■ generally, there was a sharp upward movement in the length of full time custodialsentences, both in terms of the median head sentences and median non-paroleperiods

■ where this sharp upward movement did not occur, it is suggested that this may beexplained by the increased use of short full time custodial sentences, wherepreviously less severe dispositions would have been employed

■ there was a decrease in the proportion of Crown appeals against leniency of sentenceand conversely an increase in the proportion of sentence severity appeals.

In terms of severity and consistency of penalty type, proportionately more offenders(18.47%) were sentenced to a term of full time custody than in the period prior tothe issuing of the guidelines (rising from 49.47% pre Jurisic to 67.94% post Jurisic).In line with the first guideline in Jurisic which stated that penalties other than fulltime custodial sentences would be exceptional, the study found that in the postJurisic period there was a decline in the use of other forms of penalties, especiallybonds/recognisances and community service orders.

5Conclusions


In relation to the second guideline in Jurisic, where an offender pleaded guilty and wasconvicted of an aggravated offence under s 52A, it was found that in the post Jurisic periodall offenders convicted of an offence under s 52A(2), aggravated dangerous driving causingdeath, received a term of full time custody for three years or longer. Prior to Jurisic 69.6%of offenders received an equivalent sentence. In the case of s 52A(4), aggravated dangerousdriving causing grievous bodily harm, again there was a significant increase in the proportionof offenders being sentenced to a term of full time custody for two years or longer (from50.0% pre Jurisic to 77.8% post Jurisic).

In terms of severity and consistency measured by the length of full time imprisonment,overall there were no changes in the median term of head sentences, non-parole periods orthe middle 50% range of prison sentences. This finding is understandable when oneconsiders, first, that in the post Jurisic period proportionately more offenders were sentencedto a term of full time imprisonment, and second, the overall figures have been aggregatedacross all subsections of s 52A.

However, while no changes in the length of full time custodial sentences were evident in theoverall picture of s 52A, changes were apparent when the individual subsections were examined.The greatest increase in the median term of full time imprisonment was in relation to theaggravated offence of dangerous driving causing death under s 52A(2). A “sharp upwardmovement” was clearly evident in the increase of the median head sentence from four yearspre Jurisic to five years post Jurisic. Similarly, the non-parole period increased from two yearspre Jurisic to three years post Jurisic. For penalties imposed under all other subsections therewas an upward movement in the median head term, the non-parole period or both.

The impact of the Jurisic guidelines was also evident in the decisions of the CCA. Whilethere was no difference in the proportion of first instance dangerous driving cases going toappeal, there was a dramatic change in the pattern of appeals.

In the pre Jurisic period there were slightly more Crown appeals against the leniency ofsentence (51.6%), compared to appeals against severity of sentence (48.4%). Conversely,in the post Jurisic period the majority of appeals were against severity of sentence (70.0%),rather than leniency of sentence (30.0%).

A change was also evident in the trend of appeal outcomes in the study period. In the preJurisic period 81.3% of Crown appeals were successful, while in the post Jurisic period thesuccess rate had fallen to 66.7%. On the other hand, the rate of successful sentence severityappeals increased from 13.3% pre Jurisic to 37.1% post Jurisic.

In conclusion, the impact of the Jurisic guidelines is clearly demonstrated by the increasedseverity of sentences and also by the greater consistency of result in the penalties imposedon offenders convicted of dangerous driving and aggravated dangerous driving offencesunder s 52A of the Crimes Act 1900 (NSW).

A

52A Dangerous driving: substantive matters

(1) Dangerous driving occasioning death.A person is guilty of the offence of dangerous driving occasioning death if the vehicledriven by the person is involved in an impact occasioning the death of another personand 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 for10 years.

(2) Aggravated dangerous driving occasioning death.A person is guilty of the offence of aggravated dangerous driving occasioning deathif the person commits the offence of dangerous driving occasioning death incircumstances of aggravation. A person convicted of an offence under this subsectionis 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 bodilyharm if the vehicle driven by the person is involved in an impact occasioning grievousbodily harm to another person and the driver was, at the time of the impact, drivingthe 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 for7 years.

(4) Aggravated dangerous driving occasioning grievous bodily harm.A person is guilty of the offence of aggravated dangerous driving occasioning grievousbodily harm if the person commits the offence of dangerous driving occasioninggrievous bodily harm in circumstances of aggravation. A person convicted of anoffence under this subsection is liable to imprisonment for 11 years.

(5) When vehicle is involved in impact — generally.For the purposes of this section, the circumstances in which a vehicle is involved inan impact occasioning the death of, or grievous bodily harm to, a person include ifthe death or harm is occasioned through any of the following:

Crimes Act 1900 (NSW)

Appendix


(a) the vehicle overturning or leaving a road while the person is being conveyed in or onthat vehicle (whether as a passenger or otherwise),

(b) an impact between any object and the vehicle while the person is being conveyed inor on that vehicle (whether as a passenger or otherwise),

(c) an impact between the person and the vehicle,

(d) the impact of the vehicle with another vehicle or an object in, on or near which theperson is at the time of the impact,

(e) an impact with anything on, or attached to, the vehicle,

(f ) an impact with anything that is in motion through falling from the vehicle.

(6) When vehicle is involved in causing other impacts.For the purposes of this section, a vehicle is also involved in an impact occasioning thedeath of, or grievous bodily harm to, a person if:

(a) the death or harm is occasioned through the vehicle causing an impact betweenother vehicles or between another vehicle and any object or person or causing anothervehicle to overturn or leave a road, and

(b) the prosecution proves that the vehicle caused the impact.

(7) Circumstances of aggravation.In this section, “circumstances of aggravation” means any circumstances at the time of theimpact occasioning death or grievous bodily harm in which:

(a) the prescribed concentration of alcohol was present in the accused’s blood, or

(b) the accused was driving the vehicle concerned on a road at a speed that exceeded, bymore than 45 kilometres per hour, the speed limit (if any) applicable to that lengthof 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 theaccused was under the influence of a drug (other than intoxicating liquor) or acombination of drugs (whether or not intoxicating liquor was part of thatcombination).

(8) Defences.It is a defence to any charge under this section if the death or grievous bodily harm occasionedby the impact was not in any way attributable (as relevant):

(a) to the fact that the person charged was under the influence of intoxicating liquor orof a drug or a combination of drugs, or

(b) to the speed at which the vehicle was driven, or

(c) to the manner in which the vehicle was driven.

(9) Definitions.In this section:

“drug” has the same meaning as it has in the Road Transport (Safety and Traffic Management)Act 1999.

“object” includes an animal, building, structure, earthwork, embankment, gutter, stormwaterchannel, drain, bridge, culvert, median strip, post or tree.

Appendix A 37

“prescribed concentration of alcohol” means a concentration of 0.15 grammes or more ofalcohol in 100 millilitres of blood.

“road” means:

(a) a road or road related area within the meaning of the Road Transport (General) Act1999 (other than a road or road related area that is the subject of a declaration madeunder section 9 (1) (b) of that Act relating to all of the provisions of that Act), or

(b) any other place.

“vehicle” means:

(a) any motor car, motor carriage, motor cycle or other vehicle propelled wholly orpartly by volatile spirit, steam, gas, oil, electricity, or by any other means other thanhuman or animal power, or

(b) a horse-drawn vehicle,

whether or not it is adapted for road use, but does not mean a vehicle used on a railway ortramway.

52AA Dangerous driving: procedural matters

(1) Presumption as to intoxication.For the purposes of section 52A, the accused is conclusively presumed to be under theinfluence of liquor if the prosecution proves that the prescribed concentration of alcoholwas present in the accused’s blood at the time of the impact occasioning death or grievousbodily harm.

(2) Evidence of intoxication.For the purposes of section 52A, evidence may be given of the concentration of alcoholpresent in the accused’s blood at the time of the impact occasioning death or grievousbodily harm occurring at a place that is not a road or road related area within the meaningof the Road Transport (General) Act 1999 (other than a road or road related area that is thesubject of a declaration made under section 9 (1) (b) of that Act relating to all of theprovisions of that Act) as determined by a blood analysis carried out in accordance withDivision 4 of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999.

(3) Time of intoxication.A concentration of alcohol determined by the means referred to in subsection (2) is takento be the concentration of alcohol in the accused’s blood at the time of the impact occasioningdeath or grievous bodily harm:

(a) if the blood sample that was analysed was taken within 2 hours after the impact, and

(b) unless the accused proves that the concentration of alcohol in the accused’s blood atthe time of the impact was less than the prescribed concentration of alcohol.

(4) Alternative verdicts.If on the trial of a person who is indicted for murder or manslaughter or for an offenceunder section 53 or 54 the jury is satisfied that the person is guilty of an offence undersection 52A, it may find the accused guilty of the offence under section 52A, and theaccused is liable to punishment accordingly.


(5) Question of aggravation.If on the trial of a person for an offence under section 52A (2) or (4) the jury is not satisfiedthat the accused is guilty of the offence charged, but is satisfied on the evidence that theaccused is guilty of an offence under section 52A (1) or (3), it may find that the accused isguilty of the offence under section 52A (1) or (3), and the accused is liable to punishmentaccordingly.

(6) Double jeopardy.This section does not take away the liability of any person to be prosecuted for or foundguilty of murder, manslaughter or any other offence or affect the punishment that may beimposed for any such offence. However, a person who:

(a) has been convicted or acquitted of an offence under section 52A cannot be prosecutedfor murder or manslaughter or for any other offence under this Act on the same, orsubstantially the same, facts, or

(b) has been convicted or acquitted of murder or manslaughter or of any other offenceunder this Act cannot be prosecuted for an offence under section 52A on the same,or substantially the same, facts.

(7) Definitions.In this section:

“prescribed concentration of alcohol” means a concentration of 0.15 grammes or more ofalcohol in 100 millilitres of blood.

B

Table 7 Dangerous driving causing death — Appeals against severity of sentence

Name CCA date Offence Aggravating Appeal Trial Outcomeunder feature type sentence of appealCrimes Act1900

PPPPPre re re re re Jurisic Jurisic Jurisic Jurisic Jurisic decisionsdecisionsdecisionsdecisionsdecisions

Gore 27 Nov 1996 death DUI — drugs sentence min 4 yrs dismisseds 52A(1)(a) (heroin), add 2 yrs

unlicenseddriver

Masella 14 May 1997 death DUI — drugs sentence min 3 yr dismisseds 52A(1)(a) add 1 yr

Fuller 4 Mar 1998 death DUI — alcohol sentence min 3 yrs dismisseds 52A(1)(a) add 2 yrs

Romanov 26 Jun 1998 death DUI — alcohol, sentence min 18 mths dismisseds 52A(1)(a) speed add 18 mths

disqual 3 yrs

Meehan 8 Apr 1997 death DMD — alcohol, sentence min 3 yrs dismisseds 52A(1)(c) vehicle add 1 yr

unroadworthy disqual 3 yrs

Sluka 28 Jul 1997 death (x 4) DMD — drugs, sentence min 3 yrs 6 mths dismisseds 52A(1)(c) speed add 2 yrs 6 mths

Pattenden 1 Oct 1997 death DMD — drugs, sentence min 2 yrs dismisseds 52A(1)(c) alcohol add 3 yrs

disqual 3 yrs

Williams 17 Dec 1996 aggravated PCA sentence min 2 yrs 3 mths dismisseddeath add 2 yrs 9 mthss 52A(2) disqual 5 yrs

Ingram 26 Aug 1997 aggravated PCA sentence min 3 yrs 6 mthsdeath add 2 yrs 6 mths dismisseds 52A(2)

Winter 9 Oct 1998 aggravated PCA sentence min 3 yrs 3 mths dismisseddeath add 2 yrs 3 mthss 52A(2) disqual 3 yrs 3 mths

PPPPPost ost ost ost ost Jurisic Jurisic Jurisic Jurisic Jurisic decisionsdecisionsdecisionsdecisionsdecisions

Comber 11 Nov 1998 death DUI — heroin sentence min 1 yr 10 mths dismisseds 52A(1)(a) add 1 yr 8 mths

disqual 5 yrs

Wells 4 Aug 1999 death DUI — drugs sentence min 4 yrs dismisseds 52A(1)(a) add 2 yrs

Table of CCA cases

Appendix

CSO community service order

DMD driving in a manner dangerous

DUI driving under the influence

GBH grievous bodily harm

Appendix B keyHD home detention

npp non-parole period

PCA prescribed concentration of alcohol

PD periodic detention


Table 7 — continued


Everett 21 Feb 2000 death DUI — drugs sentence min 2 yrs dismisseds 52A(1)(a) add 2 yrs

Hemsworth 21 Mar 2001 death DUI — drugs sentence min 3 yrs dismisseds 52A(1)(a) add 2 yrs

Hill 4 Dec 1998 death DMD — speed, sentence min 3 yrs alloweds 52A(1)(c) alcohol, disqual add 3 yrs min 2 yrs

driver add 2 yrs 6 mthsdisqual 4 yrs

Mansour 25 Jun 1999 death DMD sentence min 2 yrs alloweds 52A(1)(c) add 2 yrs min 1 yr

disqual 2 yrs add 1yr

Davies 4 April 2000 death DMD — fail conviction min 18 mths dismisseds 52A(1)(c) stop red light, & sentence add 18 mths

speed disqual 2 yrs

Katoa 2 Jun 2000 death DMD sentence min 8 mths alloweds 52A(1)(c) add 10 mths remaining 7

disqual 3 yrs mths of minterm to beserved in PDdisqual 3 yrs

Kinny 5 Jul 2000 death DMD — alcohol, sentence min 4 yrs 8 mths dismisseds 52A(1)(c) drugs, speed add 18 mths

Bailey 14 Feb 2001 death DMD conviction min 3 yrs sentences 52A(1)(c) & sentence add 1 yr allowed

min 2 yrsadd 1 yr

Frascella 6 Apr 2001 death DMD — speed sentence head 4 yrs alloweds 52A(1)(c) npp 2 yrs head 3 yrs 6 mths

disqual 2 yrs npp 18 mthsdisqual 2 yrs

Oddie 12 Dec 2001 death DMD — speed sentence head 2 yrs alloweds 52A(1)(c) npp 12 mths min 8 mths

disqual 2 yrs add 8 mths

Sen 11 Jun 1999 death, PCA (high range), sentence min 6 yrs 9 mths allowedaggravated speed add 2 yrs 3 mths min 5 yrs 3 mths(x 2) s 52A(2) add 1 yr 9 mths

Reeves 2 Jul 1999 death, PCA — alcohol sentence min 2 yrs 6 mths dismissedaggravated & medication add 2 yrs 6 mthss 52A(2) disqual 3 yrs

Jaworowski 29 Oct 1999 death, PCA (high range), sentence min 6 yrs allowedaggravated speed, disqual add 2 yrs min 5 yrss 52A(2) driver add 3 yrs

Hanlon 16 Feb 2000 death, PCA (high range), sentence min 3 yrs 9 mths allowedaggravated speed add 15 mths min 3 yrss 52A(2) add 2 yrs

Hawkins 11 Aug 2000 death, PCA — speed sentence min 4 yrs dismissedaggravated add 12 mthss 52A(2) disqual 4 yrs

Woodward 23 Mar 2001 death, PCA sentence min 4 yrs 2 mths dismissedaggravated add 2 yrs 10 mthss 52A(2) disqual 5 yrs

Tadman 29 May 2001 death, drugs sentence min 4 yrs allowedaggravated add 3 yrs add 2 yr 7 mthss 52A(2) min 2 yrs 8 mths disqual 5 yrs

Appendix B 41

Table 8 Dangerous driving causing death — Crown appeals



Sellers 4 Apr 1997 death DUI — alcohol Crown min 1 yr alloweds 52A(1)(a) add 2 yrs min 3 yrs

disqual 5 yrs add 2 yrs

Tapfield 30 Jul 1997 death DUI — disqual Crown min 1 yr alloweds 52A(1)(a) driver, failure to add 9 mths min 1 yr 9 mths

stop (hit and run) add 1 yr 3 mthsdisqual 3 yrs

Ngo 15 Nov 1996 death DMD — speed, Crown min 1 yr dismisseds 52A(1)(c) failure to stop add 4 mths

disqual 5 yrs

Pellow 1 Aug 1997 death DMD — speed, Crown 500 hrs CSO alloweds 52A(1)(c) sleep disqual 5 yrs 12 mths PD

Smith 27 Aug 1997 death DMD — drugs Crown min 6 mths alloweds 52A(1)(c) add 2 mths min 1 yr

HD add 4mthsHD

Marlin 10 Sep 1997 death (x 2) DMD — alcohol Crown 200 hrs CSO dismisseds 52A(1)(c) disqual 12 mths

Musumeci 30 Oct 1997 death DMD — speed, Crown 15 mths PD alloweds 52A(1)(c) disobey traffic disqual 3 yrs min 8 mths

signal add 7 mths

Lemoto 24 Jul 1998 death (x 2) DMD — speed, Crown 500 hrs CSO alloweds 52A(1)(c) vehicle with disqual 3 yrs 2 yrs 6 mths PD

defective lights

Thackray 19 Aug 1998 death DMD — alcohol Crown fixed 18 mths HD alloweds 52A(1)(c) disqual 3 yrs min 3 yrs

add 1 yr

Slattery 19 Dec 1996 death, PCA — speed Crown 3 yrs PD allowedaggravated disqual 5 yrs min 1 yr(x 2) s 52A(2) add 2 yrs

Kalanj 18 Dec 1997 death, PCA Crown min 1 yr 6 mths allowedaggravated add 1 yr 6 mths min 2 yrs 6 mthss 52A(2) disqual 3 yrs add 2 yrs 6 mths

Black 23 Jul 1998 death, PCA Crown min 2 yrs 3 mths allowedaggravated add 2 yrs 3 mths min 3 yrss 52A(2) disqual 3 yrs add 2 yrs

disqual 3 yrs

Byrne 5 Aug 1998 death, PCA Crown min 12 mths allowedaggravated add 4 mths min 9 mthss 52A(2) HD add 2 yrs

disqual 3 yrs

McDonald 12 Oct 1998 death, PCA Crown min 2 yrs allowedaggravated add 3 yrs min 3 yrss 52A(2) disqual 5 yrs add 3 yrs


Begbie 3 May 2001 death DUI Crown head 18 mths alloweds 52A(1)(a) npp 6 mths 2 yrs, 9 mths

HD PDdisqual 2 yrs

Dunlop 16 Nov 2001 death DUI Crown head 3 yrs alloweds 52A(1)(a) npp 12 mths head 3 yrs

PD npp 2 yrsdisqual 3 yrs PD

disqual 3 yrs

Douglas 11 Dec 1998 death (x 2) DMD — drugs Crown 1 yr PD alloweds 52A(1)(c) disqual 1 yr min 18 mths

add 18 mthsfull time custody




Howland 24 Feb 1999 death DMD Crown fixed 18 mths PD alloweds 52A(1)(c) disqual 3 yrs min 9 mths

add 9 mthsfull time custody

Menzies 2 Aug 1999 death DMD Crown min 12 mths dismisseds 52A(1)(c) add 6 mths

HDdisqual 2 yrs

Tomson 11 Aug 1999 death DMD — reckless Crown recog 3 yrs dismisseds 52A (1)(c) error of judgment disqual 6 mths

Khatter 29 Feb 2000 death DMD — high Crown fixed 2 yrs PD alloweds 52A(1)(c) range PCA fixed 3 mths

full time custody

Dhanhoa 18 Apr 2000 death DMD — alcohol, Crown min 12 mths dismisseds 52A(1)(c) speed add 2 yrs

disqual driver disqual 2 yrs

Foster 28 May 2001 death DMD Crown 22 mths dismisseds 52A(1)(c) sentence suspended

disqual 22 mths

McKinney 10 Mar 1999 aggravated PCA Crown fixed 3 yrs PD alloweddeath disqual 3 yrs min 18 mthss 52A(2) add 18 mths

full time custody

Simpson 10 Sep 1999 aggravated PCA, speed Crown min 3 yrs 6 mths dismisseddeath add 18 mthss 52A(2)

Table 9 Dangerous driving occasioning GBH — Appeals against severity of sentence



Falcone 4 Sep 1996 GBH DUI sentence min 12 mths dismisseds 52A(3)(a) add 6 mths

disqual 3 yrs

Masella† 14 May 1997 GBH DUI — drugs sentence fixed 2 yrs dismisseds 52A(3)(a)

Pine 4 Mar 1998 GBH DUI — alcohol sentence min 2 yrs dismisseds 52A(3)(a) add 1 yr 6 mths

disqual 3 yrs

Pattenden† 1 Oct 1997 GBH DMD — drugs, sentence fixed 2 yrs dismisseds 52A(3)(c) alcohol disqual 3 yrs

Smith 4 Mar 1998 GBH DMD sentence min 2 yrs 3 mths dismisseds 52A(3)(c) add 9 mths

disqual 3 yrs

Whyte 8 Dec 1997 GBH (x 3) PCA sentence min 1 yr remitted tos 52A(4) add 4 mths consider HD

Debnam 2 Mar 1998 GBH PCA sentence min 3 yrs dismisseds 52A(4) add 1 yr

disqual 3 yrs

Appendix B 43




Comber† 11 Nov 1998 GBH DUI — drugs sentence fixed 12 mths dismisseds 52A(3)(a) (heroin) disqual 5yrs

Scott 6 Aug 1999 GBH DUI — alcohol sentence min 2 yrs dismisseds 52A(3)(a) add 2 yrs

disqual 3 yrs

McGuiness 17 Sep 1999 GBH DUI — alcohol sentence min 18 mths dismisseds 52A(3)(a) add 6 mths

Gleeson 20 Mar 2000 GBH DUI — speed sentence min 18 mths dismisseds 52A(3)(a) add 6 mths

disqual 3 yrs

Ardron 11 Oct 2000 GBH DUI sentence min 16 mths dismisseds 52A(3)(a) add 16 mths

disqual 2 yrs

Kilborn 30 Mar 2001 GBH DUI — speed, sentence head 3 yrs alloweds 52A(3)(a) alcohol npp 2 yrs head 2 yrs 6 mths

npp 15 mths

Park 13 Aug 2001 GBH (x 2) DUI — alcohol sentence head 2 yrs dismisseds 52A(3)(a) npp 12 mths (ea)

Pyritz 23 Nov 1998 GBH DMD — distracted sentence fixed 2 yrs PD alloweds 52A(3)(c) disqual 1 yr fine $1,000

disqual 1 yr

Austin 24 May 1999 GBH (x 2) DMD — speed sentence min 3 yrs dismisseds 52A(3)(c) add 1 yr

disqual 6 yrs

Beckett 13 Oct 2000 GBH DMD — inattention sentence min 12 mths dismisseds 52A(3)(c) add 12 mths

disqual 3 yrs

Bicheno 9 Jun 1999 GBH (x 2) PCA sentence min 2 yrs dismisseds 52A(4) add 2 yrs

disqual 3 yrs

Reeves† 2 Jul 1999 GBH (x 2) DUI — medication sentence fixed 18 mths (ea) dismisseds 52A(4) disqual 3 yrs

McAskill 9 Aug 2000 aggravated PCA sentence min 3 yrs dismissedGBH add 1 yrs 52A(4) disqual 4 yrs

Quarta 4 Oct 2000 aggravated unlicensed driver, sentence min 3 yrs dismissedGBH police chase, add 2 yrss 52A(4) speed disqual 5 yrs

Khan 27 Oct 2000 aggravated PCA, speed sentence head 4 yrs dismissedGBH npp 3 yrs 4 mths,s 52A(4) 15 days

Turner 27 Oct 2000 aggravated PCA, speed sentence head 3 yrs dismissedGBH npp 2 yrs, 3 mthss 52A(4)

Pates 6 Apr 2001 aggravated police pursuit sentence head 4 yrs 6 mths dismissedGBH npp 18 mthss 52A(4) disqual 3 yrs

Douglass 23 May 2001 aggravated PCA sentence head 2 yrs allowedGBH npp 6 mths 21 mthss 52A(4) disqual 2 yrs suspended

Kaliti 29 June 2001 aggravated PCA sentence head 5 yrs dismissedGBH npp 3 yrs 9 mthss 52A(4) disqual 4 yrs

† Pattenden, Masella, Comber and Reeves, sentence concurrent with sentence for causing death: see Table 7.


Table 10 Dangerous driving occasioning GBH — Crown appeals



Davies 27 Mar 1998 GBH DUI — alcohol Crown 3 yrs PD dismisseds 52A(3)(a)

Pellow* 1 Aug 1997 GBH DMD — speed, Crown 500 hrs CSO alloweds 52A(3)(c) sleep 12 mths PD

disqual 5 yrs

Savka 26 Aug 1996 GBH (x 2) PCA Crown 300 hrs CSO alloweds 52A(4) min 1 yr 6 mths

add 1 yr 6 mthsdisqual 2 yrs

Milsom 10 Dec 1997 GBH (x 2) PCA Crown 400 hrs CSO alloweds 52A(4) 30 mths PD

disqual 3 yrs


Jurisic 12 Oct 1998 GBH DUI — drugs Crown 18 mths HD alloweds 52A(3)(a) disqual 12 mths min 1 yr

add 1yr

Romanic 28 Nov 2000 GBH DUI — alcohol Crown head 22 mths PD alloweds 52A(3)(a) npp 18 mths head 12 mths

npp 9 mthsfull time custodydisqual 18 mths

Vitasovic 23 Oct 2000 GBH DMD — speed Crown min 1 yr 11 mths alloweds 52A(3)(c) add 8 mths min 12 mths

add 12 mthsdisqual 32 yrs

Errington 3 Mar 1999 GBH, PCA, speed Crown fixed 18 mths HD min 1 yraggravated add 1 yr 6 mthss 52A(4) disqual 5 yrs

King 8 Feb 2001 GBH, PCA Crown fixed 24 mths PD allowedaggravated head 2 yrss 52A(4) npp 12 mths

disqual 3 yrs

* Pellow, sentence concurrent with the sentence for causing death: see Table 8.

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9 Sentence indication hearings pilot scheme, 1994

10 Sentenced homicides in NSW 1990–1993, 1995

11 The evidence of children, 1995

12 Judicial views about pre-sentence reports, 1995

13 The Sentencing Act 1989 and its effect on the size of the prison population,1996

14 Magistrates’ attitudes to drink-driving, drug-driving, and speeding, 1997

15 Child sexual assault, 1997

16 Sentencing disparity and the gender of juvenile offenders 1997

17 Sentencing disparity and the ethnicity of juvenile offenders 1998

18 Periodic detention revisited, 1998

19 Sentencing drug offenders: Analysis of sentences imposed in the highercourts of New South Wales, 1 January 1993–31 December 1997, 1999

20 Apprehended violence orders: A survey of magistrates, 1999

Sentencing Trends1 The Children’s Court, March 1991

2 The impact of truth in sentencing: Part 1 — The higher courts, March 1992

3 The impact of truth in sentencing: Part 2 — The Local Courts, June 1992

4 Sentencing in the Court of Criminal Appeal, February 1993

5 Common offences in the Local Court, March 1994

6 Common offences in the higher courts, July 1994


7 Sentencing homicide: The effect of legislative changes on the penalty for murder,June 1994

8 From murder to manslaughter: Partial defences in New South Wales — 1900 to1993, December 1994

9 Common offences in the Children’s Court, May 1995

10 Sentencing drink driver offenders, June 1995

11 “Sentenced to the Rising of the Court”, January 1996

12 The use of recognizances, May 1996

13 Sentencing deception offenders Part 1 — Local Court, June 1996

14 Sentencing deception offenders Part 2 — higher courts, October 1996

15 Driving causing death: Section 52A of the Crimes Act 1900, May 1997

16 An overview of sentence and conviction appeals in the NSW Court of CriminalAppeal, March 1998

17 Kidnapping, July 1998

18 Common offences in the higher courts 1990–1997, August 1998

19 Sentencing offenders in the Local Courts: Effects of the Criminal Procedure(Indictable Offences) Act 1995, February 2000

20 Sentencing female offenders in NSW, May 2000

21 Protective custody and hardship in prison, February 2001

22 Conviction and sentence appeals in the New South Wales Court of CriminalAppeal 1996–2000, February 2002

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