Dangerous driving and navigation

[18-300] Statutory history

In 1994, the offence of culpable driving was replaced with four dangerous driving offences under s 52A Crimes Act 1900 (NSW) which carry heavier penalties than was previously the case.

In 1998, following “a pattern of inadequacy” of sentences, a guideline was promulgated: R v Jurisic (1998) 45 NSWLR 209 at 229–230. The guideline was reformulated in R v Whyte (2002) 55 NSWLR 252 and is set out at [18-320]. The guideline has statutory force because of Pt 3, Div 4 of the Crimes (Sentencing Procedure) Act 1999 and must be taken into account on sentence: R v Whyte at [32]–[67]; Moodie v R [2020] NSWCCA 160 at [24]; see also [13-600] Sentencing guidelines. However, it must only be taken into account as a “check or sounding board”: Kerr v R [2016] NSWCCA 218 at [96].

In 2006, new offences against s 52AB Crimes Act 1900 were introduced concerning the failure to stop and assist after a vehicle impact causing the death of, or occasioning grievous bodily harm to, another person.

[18-310] The statutory scheme for dangerous driving offences

A person is guilty of a s 52A dangerous driving offence if, they were driving under the influence of an intoxicating liquor or drug, at a dangerous speed or in a dangerous manner, when they drove a vehicle involved in an impact resulting in death or grievous bodily harm.

The maximum penalties for the four dangerous driving offences are as follows:

Section Offence   Maximum penalty
52A(1) Dangerous driving occasioning death   10 yrs imprisonment
52A(2) Aggravated dangerous driving causing death   14 yrs imprisonment
52A(3) Dangerous driving occasioning grievous bodily harm   7 yrs imprisonment
52A(4) Aggravated dangerous driving occasioning grievous bodily harm   11 yrs imprisonment

Circumstances of aggravation are set out in s 52A(7). These include driving more than 45 km per hour, driving to escape police and being very substantially impaired by drugs and/or alcohol.

Where a person knows, or ought to reasonably know, an impact has caused death or grievous bodily harm to another person, it is an offence to fail to stop and give assistance. A maximum penalty of 10 years imprisonment applies if the other person dies (s 52AB(1)) and 7 years where the person suffers grievous bodily harm (s 52AB(2)). See further at [18-415].

Further offences may be committed when the relevant dangerous driving offence causes the loss of a foetus of a pregnant woman: see ss 54A and 54B. These provisions only apply to offences allegedly committed on, or after, 29 March 2022: Crimes Legislation Amendment (Loss of Foetus) Act 2021, Sch1[2]. If the offence is a “relevant GBH provision” (defined in s 54A(7)), the maximum penalty is the total of the maximum penalty and 3 years imprisonment: ss 54A(3). For example, an offence against s 52A(3) would be a relevant GBH provision. As such, the maximum penalty would be a total of 10 years imprisonment (7 years imprisonment being the maximum penalty for an offence against s 52A(3) plus the 3 years specified in s 54A(3)). If the victim of the offence is a pregnant woman and the relevant conduct constitutes an offence under a “homicide provision” (defined in s 54B(6) to include offences against ss 52A(1), 52A(2) and 52AB(1)), the maximum penalty is 3 years imprisonment: s 54B(3).

[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:

(i) 

young offender

(ii) 

of good character with no or limited prior convictions

(iii) 

death or permanent injury to a single person

(iv) 

the victim is a stranger

(v) 

no or limited injury to the driver or the driver’s intimates

(vi) 

genuine remorse

(vii) 

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 [214].

Aggravating factors

(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 or aggressive 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

(x) 

degree of sleep deprivation

(xi) 

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 [229].

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 [228]:

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 [232], Kerr v R [2016] NSWCCA 218 at [96]. The reference to a head sentence of three years is not prescriptive: R v Nguyen [2008] NSWCCA 113 at [48]. A guideline is “not a tramline” and should not be used to impermissibly confine the exercise of sentencing discretion: Legge v R [2007] NSWCCA 244 at [59]. It is also erroneous to treat the Whyte guideline as a “starting point” rather than a reference point: R v Errington [2005] NSWCCA 348 at [40]. While formal reference to the guideline is not necessarily required, it is expected that a sentencing judge will advert to the presence or absence of the factors identified in the guideline relevant to assessing moral culpability and objective seriousness in the particular case: Moodie v R [2020] NSWCCA 160 at [47]–[48].

The guideline is not a comprehensive checklist

Relevant factors influencing the assessment of the objective serious of these offences are found in three distinct, but related areas: the elements of the offence, the guideline and s 21A of the Crimes (Sentencing Procedure) Act 1999: there is a degree of overlap between them: R v Berg [2004] NSWCCA 300 at [15]; SBF v R [2009] NSWCCA 231 at [77].

In R v Berg, Howie J, (Spigelman CJ and Wood CJ at CL agreeing), said at [21]:

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 …

Further, while the guideline outlines a list of frequently recurring aggravating factors, there may be other circumstances of aggravation, not found in the guideline, which may also be taken into account: R v Tzanis [2005] NSWCCA 274 at [24]-[25]; Kerr v R at [96]. For example, speed may be taken into account as an aggravating factor where it is excessive in light of the surrounding circumstances: Kerr v R at [97]. In that case, the court concluded the sentencing 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.

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 [2005] NSWCCA 274 at [28]; R v Whyte at [233].

Impact of changes in sentence practice since guideline

Changes in sentencing practice since Whyte was decided should be taken into account when applying the guideline. For example, while the “typical case” in Whyte included an offender who had offered a guilty plea of limited utilitarian value, suggesting the guideline allowed for the effect of the plea, guilty plea discounts, for offences on indictment, are now specified by statute: Stanton v R [2021] NSWCCA 123 at [29]; see [11-515] Guilty plea discounts for offences dealt with on indictment. Further, those factors identified in Whyte relevant to an offender’s moral culpability (which can include subjective factors such as an offender’s mental illness) may be relevant to an assessment of their “objective criminality”: Stanton v R at [29].

[18-330] The concepts of moral culpability and abandonment of responsibility

The guideline indicates that an assessment of the offender’s moral culpability, which is a critical component of the objective circumstances of these offences, 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 [205], [214] and [229]; R v Errington [2005] NSWCCA 348 at [26]. This is because a wide range of negligence or recklessness may result in commission of any of the offences: Lawson v R [2018] NSWCCA 215 at [32].

Although a full-time custodial sentence may be inevitable where it is determined 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 [2005] NSWCCA 248 at [29].

The expressions “abandonment of responsibility”, “low level of culpability” and “the offender’s moral culpability is high”, employed in the guideline, are useful but necessarily flexible and were not intended to become “terms of art in this branch of sentencing law”: Markham v R [2007] NSWCCA 295 per Hidden J at [25].

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 [2006] NSWCCA 308 at [21]. 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 [21].

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”, the judge must have regard to all the objective circumstances relevant to the assessment: R v Gardiner [2004] NSWCCA 365 at [41]. Evidence relevant to an offender’s moral culpability should not be narrowly confined and can include evidence about any disability or impairment laboured by the offender: Rummukainen v R [2020] NSWCCA 187 at [26]; R v Shashati [2018] NSWCCA 167 at [24]; R v Manok [2017] NSWCCA 232 at [4]–[7]; [74], [76]. The entirety of the surrounding circumstances is relevant to the assessment of moral culpability: R v Shashati at [23]–[24].

Howie J said in Gonzalez v R [2006] NSWCCA 4 at [13]:

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 [25]. The list of factors is illustrative only and not definitive: Errington at [36].

According to Rosenthal v R [2008] NSWCCA 149 at [16], 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 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 [16].

In R v Errington, Mason P, with whom Grove and Buddin JJ agreed, said at [27]:

The jurisprudence in this field recognises “abandonment of responsibility” as one method of describing a high degree of moral culpability (cf Whyte at 287 [224]). 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 [2000] NSWCCA 32, Simpson J (dissenting) held at [31]:

“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 [21]:

… 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 R v Whyte guideline provides at [214]:

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 misjudgment: R v Pisciuneri [2007] NSWCCA 265 at [75]; see, for example, R v Balla [2021] NSWCCA 325.

However, a failure to see a vehicle because the offender did not look properly and assess oncoming traffic will not constitute “momentary inattention”: Elphick v R [2021] NSWCCA 167 at [24]–[25].

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 [2016] NSWCCA 218 at [98]–[99].

[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 [25]. 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 [26]; Kerr v R [2016] NSWCCA 218 at [69]. 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 [2008] NSWCCA 149 at [16]–[17], 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 [2008] NSWCCA 113 at [51]; R v Scicluna (unrep, 19/9/1991, NSWCCA).

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] NSWCCA 102 at [47]. 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 [47]. In Kerr v R at [117], the judge was entitled to hold that the offender’s traffic record indicated a need for personal deterrence. In Stanyard v R [2013] NSWCCA 134, it was permissible for the judge (see [25]–[26]) 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: Stanyard v R at [38]. In Rummukainen v R [2020] NSWCCA 187 at [29], it was permissible for the judge to take a prior drink driving offence into account in a “limited way … as a matter of context”.

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]. However, 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 [2004] NSWCCA 186 at [45].

See further discussion in Prior record at [10-400].

[18-336] Length of the journey

The guideline 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] NSWCCA 392 at [39]. 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 [39]; R v Shashati [2018] NSWCCA 167 at [28].

[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 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:

1. 

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.

2. 

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.

3. 

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.

4. 

The courts must tread warily in showing leniency for good character in such cases.

5. 

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.

6. 

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.

7. 

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.

In R v Manok [2017] NSWCCA 232, Wilson J reiterated the importance of general deterrence, explaining that this was “because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle”: at [78]–[79]. The risk any driver could commit an offence resulting in death or severe injury meant all drivers must be deterred from driving dangerously by the sentences imposed on those who transgress: R v Manok at [79].

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] NSWCCA 59 at [29]–[31]. 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 [30]. Even if the Crown cannot prove an offender was above the legal limit, evidence of alcohol consumption remains relevant to general deterrence: Rummukainen v R [2020] NSWCCA 187 at [29].

In Kerr v R [2016] 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 [117].

In Elphick v R [2021] NSWCCA 167, where the offender’s conduct in driving into the side of a highly visible vehicle on a highway was found to demonstrate an egregious want of care, the court found general deterrence was not served by ordering the sentence be served by way of an intensive correction order: at [26]–[27].

For young offenders, in some cases, general deterrence is a dominant factor on sentence: SBF v R [2009] NSWCCA 231 at [152]; Byrne v R [2021] NSWCCA 185 at [102]–[103]. 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:

(1) 

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.

(2) 

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.

In some cases, the requirements of both manslaughter by gross criminal negligence and manslaughter by unlawful and dangerous act will be satisfied: Crowley v R [2021] NSWCCA 45 at [18].

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 the offending: R v Borkowski [2009] NSWCCA 102 at [49], [51], applying R v Pullman.

Further, manslaughter is no less serious a crime because it is committed by the use of a motor vehicle: Lawler v R [2007] NSWCCA 85 at [41]; see also, R v McKenna (1992) 7 WAR 455. In Lawler v R, the applicant appealed his sentence of 10 years 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 the braking system was defective, but continued driving for commercial gain. In dismissing the appeal, the Court of Criminal Appeal emphasised the importance of general deterrence in cases where people are prepared to blatantly disregard the safety of other users of the road: Lawler v R at [42].

When sentencing for motor vehicle manslaughter, it is “unproductive” to consider what might have been the appropriate sentence for an offence of aggravated dangerous driving occasioning death, which is a much less serious offence, carrying a maximum penalty of 14 years imprisonment compared to 25 years for manslaughter: R v Cameron [2005] NSWCCA 359 at [26]; R v Cramp [1999] NSWCCA 324 at [108].

Examples of these cases include: Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114 (a particularly serious example); Smith v R [2020] NSWCCA 181 at [49]–[78], Day v R [2014] NSWCCA 333 at [17]–[28], Spark v R [2012] NSWCCA 140 at [48] and Bombardieri v R [2010] NSWCCA 161 at [41]–[55].

[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 [214]. 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 [2005] NSWCCA 248 at [34]. Grievous bodily harm encompasses a very broad range of consequences extending from, at one end of the spectrum, a broken leg, and, at the other, a permanent vegetative state: Conte v R [2018] NSWCCA 209 at [5].

Offences relating to the infliction of grievous bodily harm extend to the destruction of the foetus of a pregnant woman: s 4(1) Crimes Act 1900. See also the discussion of s 54A at [18-310] above.

[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].

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 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 [2005] NSWCCA 274 at [11]–[13].

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] NSWCCA 231 at [88].

[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 [2009] NSWCCA 231 at [108].

The suggestion in R v Borkowski [2009] NSWCCA 102 at [56] and SBF v R at [97] 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 [38]. The High Court in King v The Queen at [38] 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 [44]–[46]. The offence of dangerous driving causing death does not require the Crown to prove an element of negligence: King v The Queen at [44]–[46]. As to the concept of negligence having “no role to play” for an offence of dangerous driving, see King v The Queen at [45]. 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 [118]. 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 [2003] NSWCCA 13 at [10]; Thompson v R [2007] NSWCCA 299 at [15].

According to SBF v R at [128]:

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 [129].

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 [2004] 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 [31]:

… 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] NSWCCA 48 at [33]. The death of a foetus constitutes grievous bodily harm: R v King (2003) 59 NSWLR 472 at [96].

It is already comprehended in the charge of dangerous driving causing death that the victim has sustained grievous bodily harm: Hughes v R at [28].

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 [2005] NSWCCA 248.

It is not a mitigating factor that the victim knew the driver was intoxicated and willingly travelled in the vehicle fully aware of the danger. The fact the passenger was also intoxicated and did not try to dissuade the offender from driving cannot go to mitigation: R v Errington [1999] NSWCCA 18 at [27]–[28].

In R v Dutton at [35], the fact the victim had her arm out the window was not a relevant matter, whether the respondent was aware of it or not. It was noted at [36] that a driver is responsible for the safety of his or her passengers. In R v Berg [2004] NSWCCA 300 at [26] the fact the passenger was not wearing a seat belt and so suffered the injuries leading 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

Youth

Generally, 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 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 (unrep, 27/8/97, NSWCCA).

In some cases general deterrence is a dominant factor on sentence: SBF v R [2009] NSWCCA 231 at [152]. The fact 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 [151]; Byrne v R [2021] NSWCCA 185 at [101]–[103]. “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 [151]. Persuasive subjective considerations, such as youth and good character, must not lead to inadequate weight being given to the objective circumstances: R v Slattery (unrep, 19/12/96, NSWCCA); R v Musumeci (unrep, 30/10/97, NSWCCA); R v Jurisic (1998) 45 NSWLR 209 per Spigelman CJ at 228–229. See also General Deterrence at [18-340].

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). 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].

However, even where the relevant dangerous driving offences are close to the worst kind, youth remains a relevant factor. In Conte v R [2018] NSWCCA 209, the 20 year old applicant’s offending demonstrated an atrocious abandonment of responsibility — he was disqualified from driving, under the influence of drugs, and seen to be driving in what witnesses described as “the most reckless form of driving imaginable”: at [40]. However, Payne JA and Button J (Schmidt J dissenting) concluded an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years 6 months, did not appropriately reflect the applicant’s youth or his deprived upbringing, the fact the offences (against ss 52A(2), 52A(4) and 52AB(1)) arose from one incident, and that the maximum penalty for aggravated dangerous driving causing death is 14 years imprisonment, compared to manslaughter which is 25 years: at [23].

To suggest youth cannot operate as a mitigating factor when the offender commits grave driving offences is not to dispense with the principles that apply to youth, but involves balancing those principles against the greater need and greater significance of general deterrence to deter persons in that class from undertaking such conduct by an understanding of the dire consequences: Byrne v R at [103]. In Byrne v R, Bell P (Button J agreeing) observed at [3] that the fact both drivers, youths engaging in a street race, were on provisional licences exacerbated the culpability of their offending and made deterrence particularly important. His Honour said at [5]:

The message must be sent in unequivocal terms that motor vehicles are not playthings or dodgem cars to be raced by young people for fun or thrills and with impunity. They are to be used responsibly and strictly in accordance with the rules of the road … The holding of a driver’s licence conferring the right to drive a motor vehicle is a privilege which carries heavy responsibilities.

Good character

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 (unrep, 23/11/88, NSWCCA); R v Musumeci (see above under General deterrence at [18-340]).

In R v Whyte (2002) 55 NSWLR 252, Spigelman CJ said at [145]:

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.

Extra-curial suffering

The offender’s relationship with the victim “may be some indication of extra-curial suffering flowing from the occurrence”: R v Howcher [2004] NSWCCA 179 at [16]. In R v Koosmen [2004] NSWCCA 359, Smart AJ at [32]–[33] cautioned:

Dhanhoa [[2000] 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] NSWCCA 48 at [23], Grove J emphasised that “leniency does not derive from the mere fact that the deceased was not a stranger: R v Howcher [2004] NSWCCA 179, 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 [25].

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 [2005] NSWCCA 248 at [38]. 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 [2008] NSWCCA 149 at [20], the injury occasioned to the applicant’s wife and the loss suffered by the applicant at the death of his unborn child were taken into account in re-sentencing.

Injuries to the offender

The fact the offender suffered serious injuries in the collision may be taken into account: R v Turner (unrep, 12/8/91, NSWCCA); R v Slattery (unrep, 19/12/96, NSWCCA); Rosenthal v R at [20].

Family hardship

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 (unrep, 17/12/96, NSWCCA); R v Grbin [2004] NSWCCA 220; R v X [2004] 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 (unrep, 5/8/98, NSWCCA); R v Sadebath (1992) 16 MVR 138; R v Errington [1999] NSWCCA 18 at [29]–[30].

Payment of damages

The fact the offender has lost their car or suffered significant financial loss because their car was damaged in the collision is not a mitigating factor: R v Garlick (unrep, 29/7/94, NSWCCA). 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).

[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 [2006] NSWCCA 43 at [10] 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 [10]:

… 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 [43]:

… 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 [2005] NSWCCA 28 at [38] and disapproved the comment in R v Ancuta [2005] NSWCCA 275 at [12]. The approach taken in R v Elyard has been followed in other decisions: Hei Hei v R [2009] NSWCCA 87 at [15]–[21]; Rose v R [2010] NSWCCA 166 at [9].

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 [2005] NSWCCA 274 at [11] 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 [12]–[13].

[18-400] Totality

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 [2005] 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 [23]:

… 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 [2016] NSWCCA 218 at [109] where there were seven victims. In Richards v R [2006] NSWCCA 262 at [78], 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].

Worst cases

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 [1999] NSWCCA 101 and R v Scott [1999] NSWCCA 233. Examples of serious cases of offences of aggravated dangerous driving causing death include R v Wright [2013] NSWCCA 82 where the offence was described, at [86], as “close to the worst type of offence of its kind” and Conte v R [2018] NSWCCA 209 where the offending was said, at [7], to demonstrate an atrocious abandonment of responsibility and was towards the upper end of the scale.

[18-410] Licence disqualification

In all cases of dangerous driving and failing to stop and provide assistance (a “major offence” as defined in s 4 Road Transport Act 2013), licence disqualification is mandatory and additional to any penalty imposed for the offence: s 205 Road Transport Act 2013.

Where an offender is sentenced to imprisonment for a major disqualification offence (defined in s 206A(1)), the specified licence disqualification period is extended “by any period of imprisonment under that sentence” 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). If a “major disqualification offence” is one of a number of offences dealt with by imposing an aggregate sentence, the sentence for the purpose of determining the period by which the disqualification is extended is the aggregate sentence: Gray v R [2018] NSWCCA 39 at [43]–[44]. The extension of the disqualification period is subject to any order of a court sentencing an offender: s 206A(5); Hoskins v R [2020] NSWCCA 18 at [23].

[18-415] Failure to stop and assist

Offences of failing to stop and assist another person after causing an accident resulting in their death or occasioning grievous bodily harm are serious offences, with maximum penalties of 10 years, when death is occasioned, 7 years, for grievous bodily harm: Crimes Act 1900, s 52AB(1). Section 52A(5) and (6), which prescribe the circumstances in which a vehicle is taken to be involved in an impact, apply to this section in the same way as they apply for the purposes of s 52A: s 52AB(3).

These offences are directed to a driver’s obligation to assist police and the injured person including where assistance could have been of material benefit to “save a life, minimise injury, improve the prospect of recovery, alleviate suffering and preserve… dignity”: Second Reading Speech quoted in Geagea v R [2020] NSWCCA 350 at [44]. While s 52AB offences range in seriousness, they “will rarely bear the same degree of moral culpability” as dangerous driving causing death and “giving excessive weight to the statutory maximum for the failure to stop may lead to anomalous results”: Hoskins v R [2020] NSWCCA 18 at [14]–[16]; Geagea v R [2020] NSWCCA 350 at [43].

In Hoskins v R the offender struck a woman crossing the street then fled, aware she was likely dead. He was not sentenced for dangerous driving causing death and the Court of Criminal Appeal (Basten JA; RA Hulme and N Adams JJ agreeing) found the judge erred by imposing a sentence “within the range for an offence of causing death by dangerous driving, which is inappropriate for the lesser offence of failing to stop”: at [16].

In Geagea v R the offender struck a man standing on a suburban street with his van and then fled. Despite being promptly assisted by local residents the victim died at the scene. The applicant was sentenced for dangerous driving occasioning death and failing to stop to render assistance. The court concluded the sentencing judge erred by assessing the failure to stop and assist offence at a higher level of objective seriousness than was warranted. The court said at [40]:

Where an offender is to be sentenced both for causing death by dangerous driving and for failing to stop at the scene, care is required not to give undue weight to the fact that Parliament has prescribed the same maximum penalty for each offence. Each sentence must of course take into account the prescribed maximum but at the same time the comparative length of the two sentences must be capable of being reconciled, rationally and coherently, with the very different criminality involved in each... In relation to failing to stop, the result of the offending will be highly variable. If the victim could have been saved by assistance being promptly rendered, or if his or her suffering could have been relieved, then the result of the offence may be very grave. Otherwise, as in the present case, the result may be limited to impeding a police investigation, which is obviously a much less serious matter than a death. A constant in all offences of failing to stop will be that it is dishonest to fail to identify oneself and to take responsibility. But the gravity of failing to assist a police investigation of the accident, in any circumstances of which one can conceive, appears far less than the gravity of causing a death by dangerous driving.

[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). Further offences are created when the dangerous navigation offence causes the loss of a foetus of a pregnant woman: see ss 54A and 54B and the commentary at [18-310] above.

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 [2013] NSWCCA 165 at [43].

[18-430] Application of the guideline to dangerous navigation

The guideline for dangerous driving offences, R v Whyte (2002) 55 NSWLR 252, affords guidance in dangerous navigation cases: R v Reynolds; R v Small [2010] NSWSC 691 at [96]–[97]; Buckley v R [2012] NSWCCA 85 at [41]. 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 [43]–[48]. 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 [2009] NSWDC 209.

One of the potentially aggravating factors listed in R v Whyte at [216] 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 [49].

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 [9], [12].