Dangerous driving and navigation
[18-300] Statutory history
The offence of culpable driving was repealed in 1994 and replaced with various dangerous driving offences under s 52A Crimes Act 1900 (NSW). The Court of Criminal Appeal held that the enactment of heavier penalties in 1994 illustrates the seriousness with which these offences are viewed and the prominence that necessarily must be given to the principle of deterrence: R v Slattery (1996) 90 A Crim R 519 at 522–523. A “sharp upward movement in penalty” was appropriate under the new regime: R v Slattery at 523. In 1998, as a result of what the court described as “a pattern of inadequacy” of sentences, a guideline was promulgated: R v Jurisic (1998) 45 NSWLR 209 at 229–230.
The guideline was subsequently reformulated in R v Whyte (2002) 55 NSWLR 252 and is set out below. It remains a “check or sounding board”: Kerr v R  NSWCCA 218 at .
[18-310] The statutory scheme
Section 52A Crimes Act 1900 sets out the following offences:
52A Dangerous driving: substantive matters
Dangerous driving occasioning death
A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:
under the influence of intoxicating liquor or of a drug, or
at a speed dangerous to another person or persons, or
in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 10 years.
Aggravated dangerous driving occasioning death
A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.
Dangerous driving occasioning grievous bodily harm
A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle:
under the influence of intoxicating liquor or of a drug, or
at a speed dangerous to another person or persons, or
in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 7 years.
Aggravated dangerous driving occasioning grievous bodily harm
A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years.
[18-320] Guideline judgment
The guideline judgment in R v Whyte (2002) 55 NSWLR 252, provides as follows:
A typical case
A frequently recurring case of an offence under s 52A has the following characteristics:
of good character with no or limited prior convictions
death or permanent injury to a single person
the victim is a stranger
no or limited injury to the driver or the driver’s intimates
plea of guilty of limited utilitarian value.
Guideline with respect to custodial sentences
A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.: at .
extent and nature of the injuries inflicted
number of people put at risk
degree of speed
degree of intoxication or of substance abuse
erratic or aggressive driving
competitive driving or showing off
length of the journey during which others were exposed to risk
ignoring of warnings
escaping police pursuit
degree of sleep deprivation
failing to stop.
Items (iii) to (xi) relate to the moral culpability of an offender.
Guideline with respect to length of custodial sentences
For offences against s 52A(1) and (3) for the typical case:
Where the offender’s moral culpability is high, a full-time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.: at .
For the aggravated version of each offence under s 52A an appropriate increment is required. Other factors, such as the number of victims, will also require an appropriate increment.
Spigelman CJ said at :
In the above list of aggravating factors, items (iii)–(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion.
The guideline is a check or indicator
The guideline is a “check” or “indicator”, and in a given case the sentence “… will be determined by the exercise of a broad discretion”: R v Whyte (2002) 55 NSWLR 252 at , applied in Money v R  NSWCCA 317 at ; Kerr v R  NSWCCA 218 at . A guideline is “not a tramline” and should not be used to impermissibly confine the exercise of sentencing discretion: Legge v R  NSWCCA 244 at . It is also erroneous to treat the Whyte guideline as a “starting point” rather than a reference point: R v Errington (2005) 157 A Crim R 553 at .
The reference to a head sentence of three years in R v Whyte is not prescriptive: R v Nguyen  NSWCCA 113 at .
The guideline is not a comprehensive checklist
In R v Berg  NSWCCA 300, Howie J, with whom Spigelman CJ and Wood CJ at CL agreed, said at :
The factors in the list set out in Whyte, as indicative of a typical case, do not operate as a checklist, the presence or absence of characteristics having some mathematical relationship with the sentence to be imposed. They merely describe the typical case and were not intended to circumscribe the sentencing judge’s discretion …
The aggravating factors listed in R v Whyte (2002) 55 NSWLR 252 remain illustrative, not definitive, of what is capable of representing “abandoning responsibility”: R v Errington at . Circumstances of aggravation other than those found in the guideline may be taken into account: Kerr v R at ; applying Stanyard v R  NSWCCA 134 at ; R v Tzanis  NSWCCA 274 at –. Speed may be taken into account as an aggravating factor where it is excessive in light of the surrounding circumstances: Kerr v R at . The judge was entitled to treat the offender’s driving at a speed of 70 kph in the near vicinity of a group of cyclists as a matter of aggravation even though it was within the speed limit: Kerr v R at .
While the guideline focuses attention on the objective circumstances of the offence, the subjective circumstances of the offender such as contrition, good prospects of rehabilitation and the unlikelihood of re-offending also require consideration and may be deserving of considerable weight: R v Tzanis  NSWCCA 274 at .
[18-330] The concepts of moral culpability and abandonment of responsibility
The guideline indicates that an assessment of the offender’s moral culpability is relevant to determining whether a custodial sentence should be imposed, as well as to determining the appropriate length of the sentence: R v Whyte (2002) 55 NSWLR 252 at  and . It is the “central inquiry with regard to the objective circumstances of the particular offence”: R v Errington (2005) 157 A Crim R 553 at . Although a full-time custodial sentence may be inevitable where it is determined that the offender has abandoned responsibility, it does not follow that where the offender has not abandoned responsibility that a full-time custodial sentence can be avoided: R v Dutton  NSWCCA 248 at .
The expressions “abandonment of responsibility”, “low level of culpability” and “the offender’s moral culpability is high”, employed in the guideline judgment, are useful but necessarily flexible and “it was not intended that they become terms of art in this branch of sentencing law”: Markham v R  NSWCCA 295 per Hidden J at .
Assessing moral culpability and abandonment of responsibility
Sentencing judges must make a clear finding of where on the continuum of criminality the moral culpability of the offender lies: DPP v Samadi  NSWCCA 308 at . The requirement to do so is not discharged by a finding that an offender’s culpability is “significantly below the upper end of the scale, yet not at the lowest point in the scale”. Within those two points lies a considerable continuum of criminality: DPP v Samadi at .
According to Rosenthal v R  NSWCCA 149 at , abandonment of responsibility:
… is directed to the objective gravity of the offence. It is concerned, where relevant, with the extent to which the driver was affected by alcohol or a drug and, generally, with the course of driving and the danger posed by it in its attendant circumstances.
The fact that the offender was disqualified from driving, on conditional liberty at the time of the offence and had previous driving offences is not relevant to the question of whether he or she had abandoned responsibility: Rosenthal v R at . The question of whether an offender has abandoned responsibility for their conduct “involves an element of judgment on which sentencing judges could reasonably differ”: R v Whyte at .
It is wrong to “take a restrictive view of the circumstances that can lead to the conclusion that there is a high degree of moral culpability”: R v Gardiner  NSWCCA 365 at . The judge must have regard to all the objective circumstances relevant to the assessment: R v Gardiner at .
Howie J said in Gonzalez v R  NSWCCA 4 at :
There is a high degree of moral culpability displayed where there is present to a material degree one or more of the aggravating factors numbered (iii) to (ix) set out in Whyte. However, there may be other factors that reflect on the degree of moral culpability involved in a particular case and the factors identified in Whyte can vary in intensity: R v Tzanis (2005) 44 MVR 160 at . The list of factors is illustrative only and not definitive: Errington at .
In R v Errington, Mason P, with whom Grove and Buddin J agreed, said at :
The jurisprudence in this field recognises “abandonment of responsibility” as one method of describing a high degree of moral culpability (cf Whyte at 287 ). This does not however endorse a brightline sub-category. There is a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing degrees of abandonment. It is not required that cases be assigned to one or other of two pigeon holes marked respectively “momentary inattention or misjudgment” and “abandoned responsibility”. In R v Khatter  NSWCCA 32, Simpson J (dissenting) held at :
“Offences under s 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.”
Sully J (Carruthers AJ concurring) agreed with these remarks, while differing from her Honour in the disposition of the appeal.
Latham J in DPP v Samadi said at :
… it is not correct to assert that an offender’s moral culpability must be low, once the circumstances of the offence do not warrant the description “abandonment of responsibility” or do not justify a finding of high moral culpability.
[18-332] Momentary inattention or misjudgment
The Whyte ((2002) 55 NSWLR 252) guideline provides at :
A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement.
This aspect of the guideline is premised upon the fact that, since the offence may be committed where the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence. A non-custodial sentence for an offence against s 52A is almost invariably confined to cases involving momentary inattention or misjudgement: R v Pisciuneri  NSWCCA 265 at . Where the offender’s driving behaviour amounts to little more than momentary inattention or misjudgment, or involves carelessness rather than deliberateness, or involves no sustained pattern of driving that could be described as dangerous, a court may be entitled to conclude that the offence falls within the exception of dangerous driving cases for which a non-custodial sentence is appropriate: R v Pyritz (1998) 29 MVR 90.
If a collision is not due to momentary inattention, the time and distance travelled by the offender without attention to the road becomes a relevant and aggravating factor: Kerr v R  NSWCCA 218 at –.
[18-334] Prior record and the guideline
An offender’s prior driving record is to be ignored when assessing the objective seriousness of the offence: R v McNaughton (2006) 66 NSWLR 566 at . An offender’s prior record is relevant to determining where a sentence should lie within a boundary set by the objective circumstances of the offence: R v McNaughton at ; Kerr v R  NSWCCA 218 at . It “cannot be given such a weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
In Rosenthal v R  NSWCCA 149 at –, the judge erroneously used the fact that the offender was subject to a 12-month licence disqualification at the time of the offence as relevant to the question of whether the offender had abandoned responsibility. The court held that prior record was not relevant to that issue but rather to issues of personal and general deterrence. The commission of prior driving offences may be indicative of “an attitude of disobedience towards the law” and require increased weight to be given to retribution and deterrence: R v Nguyen  NSWCCA 113 at ; R v Scicluna (unrep, 19/9/1991, NSWCCA).
There are some cases decided before R v McNaughton that are inconsistent with this position. A poor prior traffic record in R v Howcher (2004) 146 A Crim R 371 at  demonstrated that the offence was not “an isolated or uncharacteristic aberration”, and was considered to be a relevant matter in assessing the offender’s moral culpability. Prior cases which describe a poor driving record as a matter of aggravation such as R v Swadling (unrep, 25/3/1993, NSWCCA) should be read with caution. It is the use of the phrase “moral culpability” both in the Whyte guideline itself and by the High Court in Veen v The Queen (No 2) at 477 (“It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender”) that may be a source of confusion.
Generally it is matter for the sentencing court to decide whether a criminal record will be used for or against an offender: R v Borkowski (2009) 195 A Crim R 1 at . It was open to the judge in R v Borkowski to find that the offender’s previous record disentitled him to the leniency usually extended to a first offender: R v Borkowski at . In Kerr v R at , the judge was entitled to hold that the offender’s traffic record indicated a need for personal deterrence. In Stanyard v R  NSWCCA 134, it was permissible for the sentencing judge (see –) to hold that the offender’s traffic history distinguished him from the typical case of a young offender with good character with limited or no prior convictions for the purposes of the guideline judgment: Stanyard v R at .
The Whyte ((2002) 55 NSWLR 252) guideline applies to a frequently recurring case which is said to include a young person of good character with no or limited prior convictions: see Mitigating factors at [18-380]. Youth, good character and a clear record are not afforded the same weight for dangerous driving offences as they are for other offences. It is erroneous to hold that the fact that the offender has no criminal record should be regarded as an “important mitigating factor”: R v Price  NSWCCA 186 at .
See further discussion in Prior record at [10-400].
[18-336] Length of the journey
The guideline judgment provides that an aggravating factor is the “[l]ength of the journey during which others were exposed to risk”: see item (vii) in [18-320]. This permits the judge to take into account the distance travelled and the distance intended to be travelled before detection: R v Takai (2004) 149 A Crim R 593 at . In short “the journey” contemplated in R v Whyte (2002) 55 NSWLR 252 was not just the journey attenuated by the collision. There is no absolute demarcation of what is a “long journey”, a “not long journey” or a “short journey”. The danger created by the length of the journey will vary according to other circumstances, such as the time at which the journey is undertaken, the amount of traffic, and the locale: R v Takai at .
[18-340] General deterrence
In R v Jurisic (1998) 45 NSWLR 209, Spigelman CJ at CL at 228 quoted the following passage from the judgment of Hunt CJ at CL in R v Musumeci (unrep, 30/10/97, NSWCCA) describing it as being in many respects a guideline judgment relating to the approach to be taken in sentencing for offences under s 52A Crimes Act 1900:
This court has held that a number of considerations which had to be taken into account when sentencing for culpable driving must also be taken into account when sentencing for this new offence of dangerous driving:
The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.
The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.
Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases.
The courts must tread warily in showing leniency for good character in such cases.
So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.
Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order.
The statement made by this court in relation to the previous offence of culpable driving — that it cannot be said that a full-time custodial sentence is required in every case — continues to apply in relation to the new offence of dangerous driving. As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case), but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence.
Spigelman CJ added that although these observations were made in the context of dangerous driving causing death, the comments can be readily adapted to the cognate offence of dangerous driving causing grievous bodily harm: R v Jurisic at 228.
It can readily be seen that, particularly in cases involving death of the victim, general deterrence is usually given primacy over other considerations personal to the offender. In R v Musumeci, Hunt CJ at CL also said:
It is never easy to send a youthful person of good character to gaol but, where it is appropriate, it is something which must be done as a deterrent to others. The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson. Also, retribution remains an important purpose which the sentence must serve.
Where the offence involves the intoxication of the offender, there is a particular need for sentences to adequately reflect general deterrence: R v Carruthers (2008) 182 A Crim R 481 at –. McClellan CJ at CL there emphasised the fact that a licence is a privilege, and that the use of alcohol significantly increases the risk to other drivers on the road. Where the blood alcohol reading of an offender is high and that person has previous convictions for driving a motor vehicle while under the influence of alcohol, a term of full time imprisonment may be the only appropriate sentence to deter both that offender and others contemplating similar offending: R v Carruthers at .
In Kerr v R  NSWCCA 218, general deterrence was considered important to emphasise that cyclists lawfully using the road are entitled to do so without the danger of a random act of dangerous driving: Kerr v R at .
Even for young offenders, in some cases, general deterrence is a dominant factor on sentence: SBF v R (2009) 198 A Crim R 219 at . See further [18-380] below.
[18-350] Motor vehicle manslaughter
The question of whether a motor vehicle manslaughter falls under the manslaughter category of gross criminal negligence or an unlawful and dangerous act is determined by applying the test in R v Pullman (1991) 25 NSWLR 89 at 97:
An act which constitutes a breach of some statutory or regulatory prohibition does not, for that reason alone, constitute an unlawful act sufficient to found a charge of manslaughter within the category of an unlawful and dangerous act.
Such an act may, however, constitute such an unlawful act if it is unlawful in itself — that is, unlawful otherwise than by reason of the fact that it amounts to such a breach.
R v Pullman was applied in R v Borkowski (2009) 195 A Crim R 1 at . However there is no hierarchy of seriousness within manslaughter and it will be the particular facts rather than the class of manslaughter that determines the seriousness of offending: R v Borkowski at .
In cases of manslaughter involving motor vehicles, it is “unproductive” to consider what might have been the appropriate sentence for an offence of aggravated dangerous driving occasioning death: R v Cameron (2005) 157 A Crim R 70 at . It was recognised in R v Cramp (1999) 110 A Crim R 198 at  that manslaughter is “a much more serious offence than aggravated dangerous driving occasioning death”, which carries a maximum penalty of 14 years imprisonment as opposed to 25 years for manslaughter: R v Cramp at .
In R v McKenna (1992) 7 WAR 455; (1992) 63 A Crim R 452, Ipp J (then of the Western Australian Court of Criminal Appeal) stated that “criminality is not reduced simply because the crime can be categorised as ‘motor vehicle manslaughter’”: at 452. This approach has since been adopted in New South Wales. In Lawler v R (2007) 169 A Crim R 415, the applicant appealed against his sentence of 10 years and 8 months, with a non-parole period of 8 years, for manslaughter caused when his prime mover collided with the victim’s vehicle. The applicant was aware that the braking system of his prime mover and trailer was defective, but continued to drive for commercial gain. In dismissing the appeal, the Court of Criminal Appeal emphasised the importance of general deterrence in such cases: Lawler v R at , and held that the applicant’s conduct involved a high degree of criminality, adding, “[i]t is to be clearly understood that manslaughter is no less serious a crime because it is committed by the use of a motor vehicle”: Lawler v R at .
[18-360] Grievous bodily harm
The extent and nature of injuries inflicted will contribute to the determination of the appropriate penalty for these offences: R v Whyte (2002) 55 NSWLR 252 at . Where the injuries are serious, both retribution and general deterrence need to be reflected to a considerable level in the sentence imposed: R v Dutton  NSWCCA 248 at .
The Crimes Amendment (Grievous Bodily Harm) Act 2005 amended the Crimes Act 1900 to ensure that offences relating to the infliction of grievous bodily harm extend to encompass the destruction of the foetus of a pregnant woman.
[18-365] Victim impact statements
See generally Victims and victim impact statements at [12-790]ff, Victim impact statements of family victims at [12-838] and Special Bulletin 7.
A victim impact statement cannot be taken into account to indicate that the offence of dangerous driving occasioning death caused “substantial” harm to the victim for the purposes of aggravating the offence under s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. The fact that the victim suffered “substantial” harm is already an element of the offence. Issues of fact or degree may, however, arise in the case of grievous bodily harm: R v Tzanis  NSWCCA 274 at –.
There is no statutory or other restriction upon the extent to which a court may set out the contents of victim impact statements providing the limitations of such statements are acknowledged: SBF v R (2009) 198 A Crim R 219 at .
[18-370] Application of the De Simoni principle
The statutory hierarchy
Manslaughter sits above a s 52A offence in the hierarchy of offences. This is evidenced by s 52AA(4) which provides that on a trial for an offence of manslaughter a jury can return a verdict of guilty of an offence under s 52A: SBF v R  NSWCCA 231 at .
The suggestion in R v Borkowski (2009) 195 A Crim R 1 at  and SBF v R at  that the driving offences in Crimes Act 1900 (including manslaughter) “involve varying degrees of negligence” was not accepted by the High Court in King v The Queen (2012) 245 CLR 588 at . The High Court in King v The Queen at  said in the course of analysing a materially similar dangerous driving causing death offence that it:
… takes its place in a coherent hierarchy of offences relating to death or serious injury arising out of motor vehicle accidents. It is not necessary to that coherence that the terms of the section be embellished by reading into them a requirement for proof of some species of criminal negligence.
There are differences between dangerous driving causing death and manslaughter by criminal negligence. Dangerous driving is not a species of negligent driving and negligence is not an element of dangerous driving: King v The Queen at –. The offence of dangerous driving causing death does not require the Crown to prove an element of negligence: King v The Queen at –. The decision of R v Buttsworth  1 NSWLR 658 was disapproved: at . As to the concept of negligence having “no role to play” for an offence of dangerous driving, see King v The Queen at . The assessment of whether the manner of driving was dangerous depends on whether it gave rise to the degree of risk set out by Barwick CJ in McBride v The Queen (1966) 115 CLR 44 at 50, approved in Jiminez v The Queen (1992) 173 CLR 572. Therefore, an assessment of a dangerous driving causing death offence should avoid reference to degrees of negligence or an evaluation of the breach of duty of care.
Nonetheless, in the statutory hierarchy of offences, manslaughter should be treated as a most serious offence for the purposes of the principle in The Queen v De Simoni (1981) 147 CLR 383: SBF v R at . The distinction between the extent of culpability for an offence of manslaughter and an offence of dangerous driving causing death may be a fine one: R v Vukic  NSWCCA 13 at ; Thompson v R  NSWCCA 299 at .
According to SBF v R at :
An assessment of the level of moral culpability and the degree of abandonment of responsibility may in some cases involve language which is close to aspects of manslaughter.
The factual findings by the court in SBF v R — that the applicant must have realised the very serious danger in driving in the way he did and that it was “potentially lethal” — did not cross “the line into findings which took into account circumstances of aggravation which would have warranted a conviction for the more serious offence of manslaughter”: SBF v R at .
Facts constituting a more serious offence
It is not an error to take into account other circumstances of aggravation different from the circumstances supporting the charge. The offence of dangerous driving causing death under s 52A(1) has three variations: driving under the influence, driving at a speed dangerous, and driving in a manner dangerous. Each variation carries the same penalty. The De Simoni principle can have no application in a case where the so-called matters of aggravation are merely variations of the same offence and do not render the offender to a greater penalty: R v Douglas (1998) 29 MVR 316.
The appellant in R v Vale  NSWCCA 469 was intoxicated to an extent that was sufficient to establish the more serious offence of aggravated dangerous driving occasioning death (carrying a maximum penalty of 14 years). However, the appellant’s charge and plea were based on the lesser offence under s 52A(1)(a) of dangerous driving occasioning death (carrying a maximum penalty of 10 years). Santow JA said at :
… the sentencing judge explicitly used the language of “the aggravating factors” thus wrongly conflating the more serious offence of “aggravated dangerous driving occasioning death” (s 52A(2)) to the still serious but lesser offence of “dangerous driving occasioning death” (s 52A(1)).
The judge breached the De Simoni principle by taking into account the higher level of intoxication as an aggravating factor.
Where an act of dangerous driving causes the death of a pregnant woman, it is an error to have additional regard to the death of her foetus as a matter increasing the seriousness of the offence: Hughes v R (2008) 185 A Crim R 155 at . The death of a foetus constitutes grievous bodily harm: R v King (2003) ) 59 NSWLR 472 at .
It is already comprehended in the charge of dangerous driving causing death that the victim has sustained grievous bodily harm: Hughes v R at .
See further Fact Finding at Sentence at [1-400]ff.
Conduct of the victim
It is not appropriate to have regard to the conduct of the victim as mitigating the offender’s criminal behaviour in putting members of the public, including passengers, at risk: R v Dutton  NSWCCA 248.
It is not a mitigating factor that the victim knew that the driver was intoxicated and willingly travelled in the vehicle fully aware of the danger. The fact that the passenger was also intoxicated and did not try to dissuade the offender from driving cannot go to mitigation: R v Errington  NSWCCA 18 at –.
In R v Dutton at , the fact that the victim had her arm out the window was not a matter of any relevance, whether the respondent was aware of it or not. It was noted at  that a driver is responsible for the safety of his or her passengers. In R v Berg  NSWCCA 300 at  the fact that the passenger was not wearing a seat belt and so suffered the injuries that led to his death was held to be an aggravating factor in the circumstances of that case rather than a matter of mitigation.
[18-380] Mitigating factors
The youth of the offender is relevant to sentence. While generally speaking, deterrence is given less weight in cases involving young offenders and there is a greater emphasis on rehabilitation, this is often not the case for dangerous driving offences. The usual rule that general deterrence applies with less force to the sentencing of young offenders does not apply to dangerous driving offences because there is a prevalence of these offences among young drivers and the courts have a duty to seek to deter this behaviour: R v Smith (1997) 95 A Crim R 373.
In some cases general deterrence is a dominant factor on sentence: SBF v R (2009) 198 A Crim R 219 at . The fact that young men may perceive themselves as “bullet proof” is a significant reason for general deterrence to be a prominent factor in dangerous driving cases: SBF v R at . “Inexperience and immaturity, in persons aged 17 years and over, cannot operate as mitigating factors where the offender commits grave driving offences, with fatal consequences …”: SBF v R at .
Section 6(b) Children (Criminal Proceedings) Act 1987 provides that courts exercising criminal jurisdiction over children consider that “children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance”. It is a misconception to see s 6 Children (Criminal Proceedings) Act 1987 as having some talismanic quality which entitles a young person of 17 years and 11 months (the age in the case) who commits a serious criminal offence to be dealt with as though a child in the colloquial understanding of the description: R v Williams (unrep, 17/12/1996, NSWCCA).
The courts have acknowledged that it is a difficult thing to send a young person of good character to gaol, but where appropriate, it must be done as a deterrent to others: R v Slattery (1996) 90 A Crim R 519 at 523.
But in cases involving youthful offenders of good character, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective considerations must not lead to inadequate weight being given to those objective circumstances: R v Slattery at 523; R v Musumeci (unrep, 30/10/97, NSWCCA) at ; R v Jurisic (1998) 45 NSWLR 209 per Spigelman CJ at 228–229; and R v Howland (1999) 104 A Crim R 273 at –.
See discussion of s 6 Children (Criminal Proceedings) Act 1987 in Principles relating to the exercise of criminal jurisdiction at [15-010]; Relevance of youth at sentence at [15-015].
The courts must tread warily in showing leniency for good character in these cases to avoid giving the impression that persons of good character may, by their irresponsible actions, take the lives of others and yet receive lenient treatment: R v MacIntyre (1988) 38 A Crim R 135 at 139; R v Musumeci (see above under General deterrence at [18-340]).
In R v Whyte (2002) 55 NSWLR 252, Spigelman CJ said at :
Some sentencing judges find it very difficult to accept that a person of good character who is unlikely to re-offend should be sent to gaol. However, Parliament has made it quite clear that the injuries occasioned by driving dangerously and, no doubt, the prevalence of the offence, require condign punishment.
The offender’s relationship with the victim “may be some indication of extra-curial suffering flowing from the occurrence”: R v Howcher (2004) 146 A Crim R 371 at . In R v Koosmen  NSWCCA 359, Smart AJ at – cautioned:
Dhanhoa [ NSWCCA 257] is authority for the proposition that the effect of the death in the accident on the offender and self punishment (the self inflicted sense of shame and guilt) were often highly relevant factors, that the weight to be given to these depended on the circumstances and that different judges may give different weight to those factors. Where the facts reveal gross moral culpability judges should be wary of attaching too much weight to considerations of self punishment. Genuine remorse and self punishment do not compensate for or balance out gross moral culpability.
In the present case the judge took the self punishment into account, including the major depression and the post traumatic stress disorder. His reasons indicate some real understanding of the applicant’s position.
In Hughes v R (2008) 185 A Crim R 155 at , Grove J emphasised that “leniency does not derive from the mere fact that the deceased was not a stranger: R v Howcher (2004) 146 A Crim R 371, but from the consequential quality and depth of the remorse and shock”. The despair and depression experienced by the applicant was a significant element of mitigation: Hughes v R at .
The impact of the crime upon the offender’s mental health where the victim has not died may also be a matter in mitigation, on the same basis as if a physical injury had been suffered: R v Dutton  NSWCCA 248 at . It was also relevant in R v Dutton that the victim was the offender’s friend, and the offender had given her assistance and support following the accident. In Rosenthal v R  NSWCCA 149 at , the injury occasioned to the applicant’s wife and the loss suffered by the applicant at the death of his unborn child was taken into account in re-sentencing.
Injuries to the offender
The fact that the offender suffered serious injuries in the collision may be taken into account: R v Turner (unrep, 12/8/91, NSWCCA); R v Slattery (1996) 90 A Crim R 519; Rosenthal v R at .
Hardship caused to family/dependents by full-time imprisonment is only taken into account in extreme or highly exceptional cases where the hardship goes beyond the sort of hardship that inevitably results when the breadwinner is imprisoned: R v Edwards (1996) 90 A Crim R 510; R v Grbin  NSWCCA 220; R v X  NSWCCA 93. The fact that young children will be left without a carer as a result of the imposition of a gaol term is not normally an exceptional circumstance: R v Byrne (1998) 104 A Crim R 456 at 464; R v Sadebath (1992) 16 MVR 138; R v Errington  NSWCCA 18 at –.
Payment of damages
The fact that the offender has lost his or her car or suffered significant financial loss because his or her car was damaged in the collision is not a mitigating factor: R v Garlick (1994) 73 A Crim R 433 at 438. However, the court may take into account that the offender has paid or is required to pay a significant amount in damages: R v Thackray (unrep, 19/8/98, NSWCCA) at .
[18-390] Other sentencing considerations
Section 21A Crimes (Sentencing Procedure) Act 1999
Section 21A(2)(i) Crimes (Sentencing Procedure) Act 1999 provides that an aggravating feature that a court may take into account is where “the offence was committed without regard to public safety”. Section 21A(2) provides that the court is not to have regard to a factor if it is an element of the offence. In R v Elyard  NSWCCA 43 at  it was held that the prohibition in s 21A(2) extends to inherent characteristics of an offence. An inherent characteristic of dangerous driving offences is that they are committed without regard for public safety.
Basten JA said at :
… acting without regard for public safety should not, in [s 52A cases], be given additional effect as an aggravating factor in its own right, unless the circumstances of the case involve some unusually heinous behaviour, or inebriation above the statutory precondition.
Howie J said at :
… in a particular case the lack of regard for public safety may be so egregious that it transcends that which would be regarded as an inherent characteristic of the offence.
In this case there was no evidence to support that finding of unusually heinous behaviour. The court approved of the approach in R v McMillan  NSWCCA 28 at  and disapproved the comment in R v Ancuta  NSWCCA 275 at . The approach taken in R v Elyard has been followed in other decisions: Hei Hei v R  NSWCCA 87 at –; Rose v R  NSWCCA 166 at .
Section 21A(2)(g), that “the injury, emotional harm, loss or damage caused by the offence was substantial”, cannot be taken into account as an aggravating factor of an offence causing death. Spigelman CJ said in R v Tzanis  NSWCCA 274 at  that: “[i]n the case of death there can be no issue of fact and degree. The injury was necessarily ‘substantial’”. The seriousness of the injuries to the victim of the grievous bodily harm remains relevant to the objective seriousness of the offence: R v Tzanis at –.
It is legitimate in sentencing for dangerous driving to have regard to the consequences of that driving. In terms of seriousness, the greater the number of deaths, the greater the number of persons injured, the graver the crime becomes.
In R v Janceski  NSWCCA 288, the sentencing judge erred in imposing concurrent sentences for two dangerous driving occasioning death offences and taking the approach of sentencing for a single action aggravated by multiple victims. Hunt AJA said at :
… separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender.
The principle was applied in Kerr v R  NSWCCA 218 at  where there were seven victims. In Richards v R  NSWCCA 262 at , the sentencing judge’s failure to accumulate sentences for one dangerous driving occasioning death offence and three dangerous driving occasioning grievous bodily harm offences “appears to have been a failure to acknowledge the harm done to the individual victims”.
See the discussion of dangerous driving cases in Structuring sentences of imprisonment and the principle of totality at [8-230].
See generally the discussion with regard to worst cases and the abolition of the word “category” at [10-005] Cases that attract the maximum.
A determination of whether or not offences fall into the worst class of case is not dependent precisely on whether all of the matters referred to in s 52A(7) are present, but is to be determined on a consideration of all objective and subjective features: R v Black (unrep, 23/7/98, NSWCCA), per Ireland J. For examples of the most serious cases (causing grievous bodily harm), see R v Austin  NSWCCA 101 and R v Scott  NSWCCA 233.
[18-410] Licence disqualification
In all cases of dangerous driving, licence disqualification is mandatory and additional to any penalty imposed for the offence: s 205 Road Transport Act 2013. It is “no real punishment” to disqualify an offender for a period that exactly coincides with the period the offender will spend in prison: R v Veatufunga  NSWCCA 54 at . The disqualification should have “some real and manifest sting” in terms of general and specific deterrence: R v Veatufunga at . The court in R v Veatufunga varied the order to extend the disqualification period during the respondent’s parole period.
From 1 August 2014, upon the commencement of the Road Transport Amendment (Licence Disqualification on Conviction) Act 2013, where an offender is sentenced to imprisonment for a major disqualification offence (as defined in s 206A(1) Road Transport Act 2013), the specified period of licence disqualification is extended “by any period of imprisonment” so that it is served after the person is released: s 206A(2)–(4) Road Transport Act 2013. A “period of imprisonment” does not include any period that the person has been released on parole: s 206A(4).
In R v Errington (2005) 157 A Crim R 553, the judge declined to shorten the 3-year period of statutory disqualification prescribed by s 25(2)(d) Road Transport (General) Act 1999. In R v Errington, it was noted that the question of whether the function of licence disqualification is punitive as distinct from protective awaits definitive resolution (cf Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 at ff). The view taken in R v Veatufunga at , and applied in R v Greaves  NSWCCA 194 at , is that the sanction of disqualification exists for the protection of the public.
[18-420] Dangerous navigation
The dangerous navigation offences under s 52B(1)–(4) mirror the categories of offences and penalties for dangerous driving under s 52A(1)–(4).
While “navigate” or “navigation” are not defined in the Crimes Act 1900, for the purpose of assessing culpability it is clear that s 52B is directed at persons driving, steering or helming vessels and there is no reason to confine the term to the person with overall responsibility for management of the vessel rather than the person physically controlling the vessel: Small v R  NSWCCA 165 at .
[18-430] Application of the guideline to dangerous navigation
The guideline judgment for dangerous driving offences, R v Whyte (2002) 55 NSWLR 252, affords guidance in dangerous navigation cases: R v Reynolds; R v Small  NSWSC 691 at –; Buckley v R  NSWCCA 85 at . This includes assessing moral culpability which, depending on the circumstances of the dangerous navigation, may involve consideration of the defendant’s level of experience and any delegation of responsibility, the degree of irresponsibility demonstrated by alcohol or drug consumption, whether persons on the vessel were wearing life jackets and could swim, and efforts by the defendant immediately after the incident to assist or obtain assistance: Buckley v R at –. For a case involving a low level of moral culpability, where the sentencing judge found the death was a result of momentary inattention and a sentence of period detention was imposed, see R v MacIntyre  NSWDC 209.
One of the potentially aggravating factors listed in R v Whyte at  is the length of the journey. Although an extended journey elevates the period of risk, a short journey in a vessel or a brief period spent at the helm does not become a matter of mitigation. To postulate a factor which might make an offence worse does not mean its absence lessens the seriousness of the offence: R v Reynolds; R v Small at .
Consideration of the number of persons put at risk involves having regard to the number of persons on a vessel, compared to the licensed capacity of the vessel, as well as other users of the area. The vessel in R v Reynolds; R v Small was licensed to carry eight persons but was in fact carrying 14 persons, six of whom were killed in the collision: at , .