Transcript Dangerous driving - legalstudies-HSC-aiss

DANGEROUS DRIVING
Michael C + Summar
Intro from Judicial Commission…
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The expressions ‘guidelines’ and ‘guidelines judgments’ have no precise connotation.
They cover a variety of methods adopted by appellate courts for the purpose of
giving guidance to primary judges charged with the exercise of judicial discretion.
Those methods range from statements of general principle, to more specific
indications of particular factors to be taken into account or given particular weight,
and sometimes to indications of the kind of outcome that might be expected in a
certain kind of case, other than in exceptional circumstances.
One of the legitimate objectives of such guidance is to reduce the incidence of
unnecessary and inappropriate inconsistency. All discretionary decision-making
carries with it the probability of some degree of inconsistency. But there are limits
beyond which such inconsistency itself constitutes a form of injustice. The outcome of
discretionary decision-making can never be uniform, but it ought to depend as little
as possible upon the identity of the judge who happens to hear the case. Like cases
should be treated in like manner. The administration of criminal justice works as a
system; not merely as a multiplicity of unconnected single instances. It should be
systematically fair, and that involves, amongst other things, reasonable consistency.”
Features of the offence
A frequently recurring case of an offence under s 52A has
the following characteristics:
 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
Relevant Statutory
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Section 52A Crimes Act 1900
Section 52B Crimes Act 1900
Section 21A Crimes (Sentencing Procedure) Act 1999
Section 5 of the Criminal Legislation Amendment Act
2001 – amended the Crimes (Sentencing Procedure)
Act 1999
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 fetus of a pregnant
woman.
Section 52A Crimes Act 1900
(1)
(2)
(3)
Dangerous driving occasioning death
Aggravated dangerous driving occasioning death
Dangerous driving occasioning grievous bodily harm
(1) Dangerous driving occasioning
death
A person is guilty of the offence of dangerous driving
occasioning death if the vehicle is involved in an impact
causing death and the driver was at the time:
 Under the influence of intoxicating liquor or of a drug
 At a speed dangerous to another person or persons
 In a manner dangerous to another person or person
A person convicted of an offence under this subsection is
liable to imprisonment for 10 years.
(2) Aggravated dangerous driving
occasioning death
A person is guilty of the offence of aggravated
dangerous 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.
(3) 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 a drug
 At a speed dangerous to another person or persons
 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
Crimes Act 1900 – Section 52B
(1)
(2)
(3)
(4)
Dangerous navigation occasioning death
Aggravated dangerous navigation
Dangerous navigation causing grievous bodily harm
Aggravated dangerous navigation occasioning greivous bodily
harm
(1) 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 death of another person
and the driver, as at the time of impact, driving the
vehicle:
 (a) under the influence of intoxicating liquor or of a
drug, or
 (b) at a speed dangerous to another person or persons,
or
 (c) in a manner dangerous to another person or persons.
(2) Aggravated dangerous driving
occasioning death
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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
(3) 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:
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(a) under the influence of intoxicating liquor or of a
drug, or
(b) at a speed dangerous to another person or persons,
or
(c) in a manner dangerous to another person or persons.
Sentencing guidelines
The sentencing of the accused are based on the factors listed in the Crimes Act
1900, under S52A and S52B.
S52A Dangerous driving: substantive matters:
(1) Dangerous driving occasioning death: A person convicted of an offence under this
subsection is liable to imprisonment for 10 years.
2) Aggravated dangerous driving occasioning death: A person convicted of an
offence under this subsection is liable to imprisonment for 14 years.
(3) Dangerous driving occasioning grievous bodily harm: A person convicted of an
offence under this subsection is liable to imprisonment for 7 years.
(4) Aggravated dangerous driving occasioning grievous bodily harm: A person
convicted of an offence under this subsection is liable to imprisonment for 11 years.
Mitigating factors
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Youth
Good Character
Extra-curial suffering
Injuries to the offender
Family Hardship
Payment of damages
Other Aggravating Factors
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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 warnings
Escaping police pursuit
Degree of sleep deprivation
Failing to stop
R v Whyte (2002) NSW
A Typical Case
A frequently recurring case of an offence under s52A has the
following characteristics.
 (i) Young offender.
 (ii) Of good character with no or limited prior convictions.
 (i) Death or permanent injury to a single person.
 (ii) The victim is a stranger.
 (iii) No or limited injury to the driver or the driver's intimates.
 (iv) Genuine remorse.
 (vii) Plea of guilty of limited utilitarian value.
R v Whyte 2002 acts as a guideline example to respect individual 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”
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“This court should take particular care when expressing a guideline
judgment to ensure that it does not, as a matter of practical effect,
impermissibly confine the exercise of discretion. This involves, in my
opinion, ensuring that the observations in the original guideline
judgment of Juris — that a guideline was only an ‘indicator’ — must
be emphasized, albeit reiterated in the language of the 2001 Act
as a matter to be ‘taken into account’. A guideline is to be taken into
account only as a ‘check’ or ‘sounding board’ or ‘guide’ but not as a
‘rule’ or ‘presumption’. I see this as a reaffirmation of the reasoning
in Jurisic.”
Wong v The Queen (2001)
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Questioned whether the Crown Appeal jurisdiction
permitted the court to promulgate guideline judgments
on its own motion
In response to this case, Parliament introduced Section 5
of the Criminal Legislation Amendment Act 2001 ->
amended the Crimes (Sentencing Procedure) Act 1999
by giving the Court of Criminal Appeal power to issue
guidelines on its own motion wherever it considered it
appropriate.
The decision in Wong cast doubts on all guideline
judgments including Jurisic
R v Jurisic 1998
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Analyzed the impact of the guideline judgment
handed down in the NSW Court of Criminal appeal
In Jurisic the CCA gave careful consideration to the
sentences handed down for dangerous driving
offences:
Unacceptable level of inconsistency in sentences
imposed
Need to raise the general level of penalties to more
adequately reflect the intention of Parliament and
the wishes of the community