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Court of Criminal Appeal 18 September 2026

Cripps v R (s 52A guideline judgment)

[2026] NSWCCA 144

Traffic & driving
SENTENCING GUIDELINE JUDGMENT PAROLE PERIODS GUIDELINE JUDGMENT REVOKED AND REPLACED NO NUMERICAL GUIDELINE FINDINGS OF REDUCED MORAL CULPABILITY

Citation: Cripps v R (s 52A guideline judgment) [2026] NSWCCA 144
Court: Court of Criminal Appeal
Date: 18 September 2026
Judge(s): Bell CJ; Payne JA; N Adams CJ at CL; Hamill J; Roberts J

Background

The applicant was convicted on two counts of dangerous driving occasioning grievous bodily harm under s 52A(3)(c) of the Crimes Act 1900 (NSW). The offending occurred when he drove head-on into another vehicle while exceeding the speed limit, under the influence of methylamphetamine and alcohol. He had been warned not to drive, had struck a service station sign shortly before the collision, and was observed driving erratically in the period leading up to the crash. Both occupants of the other vehicle suffered serious injuries.

The applicant was sentenced in the District Court to an aggregate term of four years' imprisonment with a non-parole period of two years and six months. He sought leave to appeal on the basis that the sentencing judge had misapplied the longstanding guideline judgment in R v Whyte (2002) 55 NSWLR 252 by conflating matters going to objective seriousness with matters properly belonging to his subjective case.

When listing the appeal, the Court of Criminal Appeal identified it as an appropriate vehicle to review the Whyte guideline judgment, which had governed sentencing for s 52A offences for 24 years. The Attorney General, the Director of Public Prosecutions, and the Senior Public Defender all intervened and jointly submitted that the Whyte guideline should be revoked.

Legal Issues

  • Whether the Whyte guideline judgment should be revoked
  • If revoked, what should replace it, and whether a non-numerical statement of sentencing principles could constitute a "guideline judgment" under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the Whyte guideline impermissibly conflated objective seriousness with moral culpability
  • Whether the statutory guilty plea discount scheme rendered aspects of the Whyte guideline outdated
  • Whether the sentencing judge in the applicant's case erred by including subjective factors in his assessment of objective seriousness
  • Whether, if error was established, a lesser sentence was warranted on re-sentence

Decision

Issue 1: Revocation of the Whyte guideline

The Court held that sufficient grounds existed to revoke the Whyte guideline. Three principal reasons supported revocation. First, Whyte used the language of "moral culpability" as if it were part of the objective assessment of the offence, which no longer reflects the settled understanding of that concept following intervening High Court decisions in Muldrock, Bugmy, and related cases (at [67]-[79]). Second, the guideline identified a "plea of guilty of limited utilitarian value" as a characteristic of the typical case, but the introduction of the statutory guilty plea discount scheme under Division 1A of Part 3 of the Sentencing Act rendered this inconsistent with the current legislative framework (at [80]-[84]). Third, and as a contributing rather than standalone basis, the "typical case" described in Whyte no longer reflects the statistical profile of offenders sentenced under s 52A (at [85]-[91]).

The Court did not make a finding as to whether the Whyte guideline had "artificially flattened" the sentencing range, finding insufficient material to resolve that question (at [105]). The Court noted, however, that the existing sentencing statistics remain a relevant guidepost for future sentencing (at [105], [131]-[135]).

Issue 2: Form of replacement guideline

The Court held that, given the broad definition of "guideline judgment" in s 36 of the Sentencing Act, there is no statutory bar to revoking Whyte and replacing it with a statement of sentencing principles that contains no numerical component (at [25]-[29]). Accordingly, the Court issued such a statement, which sentencing judges are required to take into account under s 42A of the Sentencing Act.

The replacement guideline confirms: courts must attend carefully to the purposes of sentencing in s 3A; custody is not to be imposed unless no other penalty is appropriate under s 5(1), though crossing that threshold would be rare for any s 52A offence; the maximum penalty must be kept firmly in mind; relevant factors from s 21A of the Sentencing Act apply but must not be double-counted against the aggravating circumstances in s 52A(7); and a custodial sentence will usually be appropriate unless objective seriousness is low, as in the case of momentary inattention or misjudgement (at [153]-[162]). The Court confirmed that intensive correction orders may be appropriate in cases involving a brief lapse of attention, but only where the length of the sentence makes that option available (at [141]-[142], [162]).

Issue 3: Objective seriousness and moral culpability

The Court affirmed that objective seriousness and moral culpability are distinct concepts. Objective seriousness is an assessment of the gravity of the crime and matters causally related to it. Moral culpability concerns the offender's personal blameworthiness and is a separate consideration, typically relevant to the subjective case (at [67]-[77]). The new guideline lists matters relevant to the assessment of objective seriousness, including the degree of intoxication, the nature and duration of dangerous driving, the failure to heed warnings, the severity of injuries, and the number of victims endangered (at [158]-[159]).

Issue 4: The applicant's sentence appeal

The Court upheld the ground of appeal. The sentencing judge, in a section of his reasons headed "Seriousness of the dangerous driving offences," referred to the applicant's age and prior criminal record, matters personal to the applicant that are properly part of the subjective case. The Court accepted that this structure disclosed error: the orthodox approach calls for objective seriousness to be assessed before the subjective case is addressed, and the heading used by the judge indicated that all matters beneath it were being treated as going to objective seriousness (at [198]-[213]).

Notwithstanding the error, the Court found on re-sentence that no lesser sentence was warranted. Applying the new guideline, the Court characterised the offending as objectively serious: the applicant drove while heavily intoxicated by alcohol and methylamphetamine, was warned not to continue driving, struck a service station sign, and then drove directly onto the road where the collision occurred, causing serious injuries to two victims (at [217]-[220]). Taking into account the applicant's subjective case and his conduct in custody, including positive drug and alcohol tests since sentence, the Court arrived at an aggregate sentence slightly higher than that imposed by the sentencing judge (at [219]-[222]). The appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal revoked the Whyte guideline judgment for sentencing under s 52A of the Crimes Act 1900 (NSW) after 24 years, replacing it with a non-numerical statement of sentencing principles that sentencing courts are required to take into account (at [1]-[6], [25]-[29]).

  • Objective seriousness and moral culpability are separate concepts in sentencing: objective seriousness involves an assessment of the gravity of the crime and causally related matters, whereas moral culpability concerns the offender's personal blameworthiness and is properly addressed as a distinct step in the sentencing exercise (at [67]-[77]).

  • A custodial sentence will be appropriate in almost all cases under s 52A; an intensive correction order may be considered only in cases of genuinely low objective seriousness, such as a brief lapse of attention, and only where the length of the sentence permits that option (at [141]-[142], [150]-[152], [162]).

  • Where a sentencing judge addresses objective seriousness and subjective factors under the same heading, and the structure of the reasons creates genuine doubt that subjective matters have been imported into the objective assessment, that amounts to a sentencing error sufficient to warrant intervention on appeal (at [198]-[213]).

  • The JIRS sentencing statistics for s 52A offences continue to serve as a guidepost for future sentencing but do not define the permissible range; courts must consider the maximum penalty and the full circumstances of each case rather than treating historical averages as a ceiling or anchor (at [131]-[135], [161]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A, 52AB, 97(1), 112(1) , 195
- Crimes Act 1914 (Cth), s 16A
- Crimes ( Amendment) Act 1951 (NSW)
- Crimes ( Dangerous Driving Offences) Amendment Act 1994 (NSW)
- Crimes ( Sentencing Procedure) Act 1999 (NSW), ss 3 A, 5, 10A, 21A , 22, 25D, 32, 36, 37, 37A, 37B, 38, 39, 39A, 40, 42A, 54D, 66, 67, 68
- Crimes ( Sentencing Procedure) Amendment ( General Sentencing Principles) Act 2002 (NSW)
- Crimes ( Sentencing Procedure) Amendment ( Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5C, 5D
- Criminal Legislation Amendment Act 2001 (NSW)
- Criminal Procedure Act 1986 (NSW) , Pt 8, s 26 (repealed)
- Customs Act 1901 (Cth) , s 233B
- Justice Legislation Amendment ( Committals and Guilty Pleas) Act 2017 (NSW)
- Supreme Court ( Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases
- Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Content of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303
- Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196
- Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Attorney-General v Bindoff (1953) 53 SR (NSW) 489
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Byrne v R; Cahill v R [2021] NSWCCA 185
- Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214
- Delleci v R [2020] NSWCCA 4
- DG v R [2025] NSWCCA 137
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
- DS v R [2025] NSWCCA 53
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Engert v R (1995) 84 A Crim R 67
- Foaiaulima v R [2020] NSWCCA 270; (2020) 285 A Crim R 222
- Harris v R [2021] NSWCCA 322
- Hawat v R [2020] NSWCCA 121
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
- Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kerr v R [2016] NSWCCA 218
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Moodie v R [2020] NSWCCA 160; (2020) 284 A Crim R 87
- Morabito v Regina [2007] NSWCCA 126
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- NK v R [2025] NSWCCA 73
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Paterson v R [2021] NSWCCA 273
- R v Boswell [1984] 3 All ER 353; [1984] 1 WLR 1047
- R v Eaton [2023] NSWCCA 125; (2023) 308 A Crim R 465
- R v Garlick (1994) 73 A Crim R 433
- R v Heinrich (1992) 61 A Crim R 212
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Jiminez (1991) 23 NSWLR 394
- R v Jurisic (1998) 45 NSWLR 209
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Millwood [2012] NSWCCA 2
- R v Ngui and Tiong (2000) 1 VR 579; [2000] VSCA 78
- R v Slattery (1996) 90 A Crim R 519
- R v Takai [2004] NSWCCA 392; (2004) 149 A Crim R 593
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Weldon [2025] NSWCCA 21
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Wong (1999) 48 NSWLR 340; [1999] NSWCCA 420
- Rangihuna v R [2025] NSWCCA 186
- Re Attorney General’s Application (No 1) Under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435
- Regina v Berg [2004] NSWCCA 300
- Rummukainen v R [2020] NSWCCA 187
- Sarhene v R [2022] NSWCCA 79
- Silvestri v R [2016] NSWCCA 245
- Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3
- Stanton v R [2021] NSWCCA 123
- Stanyard v R [2013] NSWCCA 134
- Stubbings v R [2023] NSWCCA 69
- Stuckey v R [2025] NSWCCA 216
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- TM v R [2008] NSWCCA 158
- Tuite v R [2018] NSWCCA 175
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Zreika v R [2021] NSWCCA 243