ON 12 OCTOBER 1998, the NSW Court of Criminal Appeal delivered R v Jurisic  NSWSC 423 (12 October 1998).
The court delivered a Guideline Judgment for NSW courts to follow when sentencing offenders for dangerous driving (occasioning death and grievous bodily harm). The judgment was the first of its kind in NSW, made in response to concerns about the consistency and adequacy of sentences for dangerous driving since the introduction of s52A of the Crimes Act 1900 (NSW) in 1994.
The Court of Criminal Appeal promulgated the following guidelines:
“1 A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment.
2 With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional.
The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.”
Spigelman CJ at CL at 228 quoted the following passage from Hunt CJ at CL in R v Musumeci (unrep, 30/10/97, NSWCCA):
“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.”
The guideline has been reformulated in R v Whyte and other subsequent decisions.
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ON 24 SEPTEMBER 1982, the High Court of Australia delivered Neal v R  HCA 55; (1982) 149 CLR 305 (24 September 1982).
The ethnic or other background of an offender may be a material fact to be taken into account in sentencing.
ON 10 SEPTEMBER 1924, Nathan Leopold Jr and Richard Loeb were sentenced to 99 years imprisonment after being convicted of attempting to kidnap and murder a 14 year old boy.
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ON 20 AUGUST 2002, the NSW Court of Criminal Appeal delivered R v Whyte  NSWCCA 343 (20 August 2002).
Whyte was sentenced to imprisonment for two years and three months, with a non-parole period of 12 months, after pleading guilty to one charge of aggravated dangerous driving occasioning grievous bodily harm (s52A Crimes Act 1900 (NSW)). The Crown appealed against the sentence to the NSW Court of Criminal Appeal (CCA).
The CCA determined that the sentence was manifestly inadequate but exercised its discretion not to interfere.
The CCA delivered a guideline judgment with respect to sentencing for breach of s52A.
The CCA ruled that “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.”
For typical cases involving high moral culpability, “…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.”
A typical case was one which was considered to involve:
- Young offender.
- Of good character with no or limited prior convictions.
- Death or permanent injury to a single person.
- The victim is a stranger.
- No or limited injury to the driver or the driver’s intimates.
- Genuine remorse.
- Plea of guilty of limited utilitarian value.
An appropriate increment is required for aggravating factors, which include:
- 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.
The guideline focuses on objective circumstances of the offence. The subjective circumstances of the offender must also be considered.
The CCA (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ) confirmed the validity of guideline judgments in NSW. The court ruled that ss 21A(4), 42A and 37A of the Crimes (Sentencing Procedure) Act 1999 require a sentencing judge to follow a guideline judgment given by the Court of Criminal Appeal and that such a judgment ought to have the force of legislation.
The CCA said that numerical guidelines provide adequacy and consistency of sentencing where there is a tension between individualised justice and the principle of consistency.
The guideline is not a “rule” or “presumption” but a “check” or “sounding board”.
If a sentencing judge does not apply a guideline, reasons should be given.
In New South Wales, a conviction for the offence driving with a prescribed concentration of alcohol (ie drink driving) carries the following range of penalties:
NOVICE RANGE (0.00 – 0.019). First offence, $1,100 max fine, 3-6 months disqualification. Second offence within 5 years, $2,200 max fine, 6-12 months disqualification.
SPECIAL RANGE (0.02-0.049). First offence, $1,100 max fine, 3-6 months disqualification. Second offence within 5 years, $2,200 max fine, 6-12 months disqualification.
LOW RANGE (0.05-0.079). First offence, $1,100 max fine, 3-6 months disqualification. Second offence within 5 years, $2,200 max fine, 6-12 months disqualification.
MIDDLE RANGE (0.08-0.149). First offence, $2,200 max fine, 6-12 months disqualification, 9 months max imprisonment. Second offence within 5 years, $3,300 fine, 12 months-3 years disqualification, 12 months max imprisonment.
HIGH RANGE (0.15+). First offence, $3,300 fine, 12 months – 3 years disqualification, 18 months max imprisonment. Second offence within 5 years, $5,500 fine, 2-5 years disqualification, 2 years max imprisonment.
See Road Transport Act 2013 (NSW) penalty provisions (s110) and disqualification provisions (s205): http://www.austlii.edu.au/au/legis/nsw/consol_act/
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ON 2 AUGUST 1984, the High Court of Australia delivered Lowe v R  HCA 46; (1984) 154 CLR 606 (2 August 1984).
The case sets out the principle of due proportionality to be imposed by Australian courts when sentencing criminal offenders.
Whilst co-offenders do not have to receive the same sentence for the same offence, any discrepancy must not give the sense or appearance of their being an injustice done to the offender with the heavier sentence.
At 623, Dawson J (with whom WIlson J agreed) said:
“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.”
The principle is an application of the fundamental principle of equality of justice. At 610, Mason J observed:
“Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”
The parity principle only applies to co-offenders: per Gibbs CJ at 609, Mason J at 611 and Brennan J at 617-618.
Disparity may be an indicator of appelable error: per Brennan J at 617-618.
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ON 24 JULY 1997, the High Court of Australia delivered Postiglione v R  HCA 26; (1997) 189 CLR 295; (1997) 145 ALR 408; (1997) 71 ALJR 875 (24 July 1997).
The decision is an exposition of the principle of due proportionality set out in the earlier decision of the court in Lowe v R  HCA 46; (1984) 154 CLR 606 (2 August 1984).
At 302, Dawson and Gaudron JJ said:
“Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”
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