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270
Court of Criminal Appeal 20 August 2002

REGINA v WHYTE

[2002] NSWCCA 343

Also reported as (2002) 55 NSWLR 252 (2002) 134 A Crim R 53
Traffic & driving
CRIMINAL LAW SENTENCING GUIDELINE JUDGMENTS CRIMES ACT 1900, S52A.

Citation: Regina v Whyte [2002] NSWCCA 343
Court: NSW Court of Criminal Appeal
Date: 20 August 2002
Judges: Spigelman CJ, Mason P, Barr J, Bell J, McClellan J

Background

The respondent pleaded guilty mid-trial to one count of aggravated dangerous driving occasioning grievous bodily harm, an offence under s 52A of the Crimes Act 1900. The District Court sentenced him to two years and three months imprisonment with a non-parole period of twelve months. The Crown appealed, contending the sentence was manifestly inadequate.

The case came before a five-judge bench of the Court of Criminal Appeal, with the Attorney General and the Senior Public Defender each appearing as interveners. The broad constitution of the bench reflected that this was not simply a Crown appeal against one sentence: the Court took the opportunity to revisit and reformulate its guideline judgment for s 52A offences, originally laid down in R v Jurisic (1998).

A central question was whether the High Court's decision in Wong v The Queen (2001), which had cast doubt on the use of numerical sentencing guidelines, required the Court to overrule or abandon the Jurisic and R v Henry (1999) guidelines.

  • Whether Wong v The Queen required the Court of Criminal Appeal to overrule the existing guideline judgments in R v Jurisic and R v Henry
  • Whether issuing guideline judgments is compatible with the Court's role as a repository of Commonwealth judicial power (raising constitutional issues under Kable v DPP)
  • Whether the statutory framework introduced after Wong (in particular ss 21A(4), 37A and 42A of the Crimes (Sentencing Procedure) Act 1999) altered the legal basis for guideline judgments
  • Whether the existing Jurisic guideline should be reformulated
  • Whether the sentence imposed on the respondent was manifestly inadequate, and if so, whether the Court should nonetheless decline to intervene

Decision

The Court held that Wong did not require it to overrule the Jurisic or Henry guideline judgments. Importantly, new statutory powers conferred after Wong now expressly require sentencing judges to "take into account" guideline judgments issued by the Court of Criminal Appeal, under ss 21A(4), 37A and 42A of the Crimes (Sentencing Procedure) Act 1999. This legislative development gave the guidelines a firmer statutory footing than they had possessed at the time Wong was decided.

The Court confirmed that guideline judgments are not to operate as binding rules or presumptions. Rather, they function as a "check", "sounding board", or "guide" for the exercise of the sentencing discretion, which remains individualised. The Court also rejected the constitutional challenge, finding no incompatibility between issuing guideline judgments and the Court's exercise of Commonwealth judicial power.

Spigelman CJ (with the others agreeing) exercised the power under s 37A to reformulate the Jurisic guideline. The reformulated guideline identifies a "typical case" for s 52A offences and sets out aggravating factors, most of which bear on an offender's moral culpability. For the typical case where moral culpability is high, a full-time custodial head sentence of less than three years (for death) or two years (for grievous bodily harm) would not generally be appropriate, with further increments required for aggravated offences or multiple victims.

On the specific sentence under appeal, the Court found the sentence imposed was manifestly inadequate. However, the Court exercised its discretion not to intervene, declining to resentence the respondent despite the error below. The appeal was accordingly dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The NSW Court of Criminal Appeal confirmed that Wong v The Queen did not require the overruling of the Jurisic and Henry guideline judgments for dangerous driving offences, particularly given the subsequent enactment of express statutory obligations for sentencing judges to take guideline judgments into account.
  • Under ss 21A(4), 37A and 42A of the Crimes (Sentencing Procedure) Act 1999, sentencing judges are obliged to take into account guideline judgments issued by the Court of Criminal Appeal, though the judgments operate as a guide rather than a mandatory rule or presumption.
  • A reformulated guideline was issued for offences under s 52A of the Crimes Act 1900: where an offender's moral culpability is high, a head sentence of less than three years (death) or two years (grievous bodily harm) would not generally be appropriate for the typical case, with further increments for aggravated offences.
  • Eleven specific aggravating factors were identified, including degree of speed, level of intoxication, erratic or aggressive driving, escaping police pursuit, and failing to stop; factors (iii) to (xi) are said to bear directly on the offender's moral culpability.
  • A finding of manifest inadequacy does not automatically result in resentencing: the Court retains a discretion not to intervene even where error is established, and exercised that discretion here to dismiss the appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(4), 37A, 42A
- Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 (NSW)
- Criminal Procedure Amendment (Sentencing Guidelines) Act 1998 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Legislation Amendment Act 2001 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1914 (Cth)
- Customs Act 1901 (Cth)

Key Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Henry (1999) 46 NSWLR 346
- Wong v The Queen (2001) 76 ALJR 79
- Kable v Director of Public Prosecutions (1996) 189 CLR 51
- R v Thomson (2000) 49 NSWLR 383
- Veen v The Queen [No 2] (1987-1988) 164 CLR 465
- House v The King (1936) 55 CLR 499