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]. Additionally, since R v Whyte, there have been changes to sentencing practice including an acknowledgement that references to “moral culpability” in the guideline are now to be understood as references to the objective criminality of the offence: R v Eaton [2023] NSWCCA 125 at [56].

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.

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:

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: s 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), (2) and 52AB(1)), the maximum penalty is 3 years imprisonment: s 54B(3).

The guideline judgment in R v Whyte (2002) 55 NSWLR 252, provides as follows:

Note: References to “moral culpability” in the guideline of R v Whyte (2002) 55 NSWLR 252 (as indicated in the commentary below) are to be understood as references to the objective criminality of the offence: R v Eaton [2023] NSWCCA 125 at [56].

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].

The R v Whyte guideline provides at [214]:

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].

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 [10-405].

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 R v Russell [2022] NSWCCA 294, the offender towed a grossly overloaded caravan for 130 km into a planned 250 km journey before it began swaying, causing a fatal collision. Even though the dangerousness of that journey did not manifest until the caravan began to sway (and regardless of the foreseeability of that occurring) the Court of Criminal Appeal found others were exposed to risk for 130 km, and that the intended longer journey was relevant to assessing the offender’s moral culpability: at [57], [68], [115].

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].

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:

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:

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.

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:

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]. Of the relationship between these offences, Howie J in R v Borkowski [2009] NSWCCA 102 said, at [58] that:

Examples of 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]. The conduct in Davidson v R [2022] NSWCCA 153 was considered to be an unprecedented and “very serious” example of criminally negligent conduct with “catastrophic consequences” involving, as it did, one act of criminally negligent driving causing the death of four children walking on a public footpath and injury to three other children: [40] (Brereton JA); [138] (Adamson J); [333]–[334] (N Adams J). The offender’s appeal on the basis of manifest excess was allowed, by majority, and he was re-sentenced to an aggregate sentence of 20 years with a non-parole period of 15 years (reduced from 28 years with a non-parole period of 21 years).

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.

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].

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]:

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].

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. In determining a disqualification period for these offences (pursuant to s 205(2) or (3)), the court must consider whether or not to vary the automatic disqualification period: Pearce v R [2022] NSWCCA 68 at [56]–[57].

Where an offender’s licence has been suspended for an offence, s 206B requires a court to take into account the period of suspension when deciding the period of disqualification. Section 206B is only engaged when a court orders a period of disqualification, not where an automatic period takes effect: Pearce v R at [55]. Where an order is made varying a licence disqualification period, s 206B(4) requires the period of suspension to be counted towards any disqualification period: Pearce v R at [55].

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].

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].

In Hoskins v R [2020] NSWCCA 18 the offender struck a woman crossing the street then fled, aware she was likely dead. He was sentenced for failure to stop and assist and two summary traffic offences. The Court (Basten JA; RA Hulme and N Adams JJ agreeing) found that the maximum penalties for failure to stop offences, being the same as for dangerous driving offences, made the sentencing exercise “more than usually difficult” and that “too heavy a focus on [the maximum penalty]… is apt to lead to anomalous results”: at [14]–[15]. The Court held the sentencing 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 and gave excessive weight to the maximum penalty: at [43]. The court said at [40]:

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].

The guideline for dangerous driving occasioning death in R v Whyte (2002) 55 NSWLR 252 affords guidance in dangerous navigation cases: Buckley v R [2012] NSWCCA 85 at [41]. However, although it may be an appropriate "check" for sentencing in such cases, the analogy between the offences is not perfect: R v Eaton [2023] NSWCCA 125 at [71] For example, dangerous driving offences are far more prevalent than s 52B offences which is relevant to the significance of general deterrence: R v Eaton at [71].

In Buckley v R, the sentencing judge had appropriate regard to relevant factors when assessing the circumstances of the dangerous navigation which resulted in the death of two people. These factors included a consideration of the defendant’s level of experience, his degree of intoxication, whether persons on the vessel were wearing life jackets and could swim, together with the offender’s efforts immediately after the incident to assist or obtain assistance: at [43]–[48].

In R v Eaton, the heavily intoxicated offender capsized a single-person kayak, drowning a four-year-old child on board. The type of vessel involved meant many aggravating features identified in R v Whyte were not relevant such as the number of people put at risk and the degree of speed: at [71]. The court also observed the guideline is not designed to place a straight-jacket on sentencing judges because, in this case, the offender’s subjective circumstances resulted in a substantial reduction in her “moral culpability”, whereas the guideline “focussed attention on the objective circumstances of the offence”: [72]–[73].