Whyte guideline revoked: The new NSW sentencing principles for dangerous driving

The NSW Court of Criminal Appeal (CCA) in the decision of Cripps v R (s 52A guideline judgment) [2026] NSWCCA 144 ('Cripps') has revoked the previous guideline judgment of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 ('Whyte') which related to the sentencing of dangerous driving offences pursuant to s 52A Crimes Act 1900.

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What happened in Cripps v R?

The CCA delivered judgment in Cripps on 18 September 2026. Given the length of time since Whyte was delivered in 2002, the CCA considered the Cripps appeal an appropriate opportunity to review the guideline. The CCA notified the Attorney General of NSW ('AG'), the Senior Public Defender and the Director of Public Prosecutions (NSW) ('DPP') of the Court's intention to review Whyte.

The AG (intervening and providing submissions), Senior Public Defender (intervening and providing submissions) and DPP (providing submissions) all held the joint position that the Court should revoke the guideline judgment of Whyte, while the applicant did not wish to be heard against the revocation.

The CCA ultimately decided to revoke the guideline judgment of Whyte and provided how Courts should approach sentencing of Dangerous driving offences at [153].

Why did the CCA revoke the Whyte guideline?

The first reason was the reference to "moral culpability" in Whyte which generally caused confusion which was submitted by all the parties and the CCA agreed when considering the "objective seriousness" of an offence with "moral culpability" relating to the moral blameworthiness and objective seriousness involves an objective assessment of the seriousness of the offence and matters causally related to it.

The second reason was that since Whyte there was codification of discounts for guilty pleas, initially in Whyte one of the characteristics that was identified in a 'typical' case was a "plea of guilty of limited utilitarian value". Significantly since Whyte was decided there were amendments made which introduced prescribed statutory discounts that are to be applied for the utilitarian value of guilty pleas to offences on indictment based on the timing of the plea (s 25D Crimes (Sentencing Procedure) Act 1999) ('CSPA') and that the characteristic of a "plea of limited utilitarian value" was now outdated.

The AG and Senior Public Defender submitted that what was described as the "typical case" in Whyte was no longer representative of the "typical" or "frequently recurring" cases and referenced statistics maintained by the NSW Bureau of Crime Statistics and Research which showed most offenders convicted of a s 52A offence were over 25 years of age and most convicted of ss 52A(2) and (4) had a prior criminal record whereas Whyte described a "typical case" as involving a "young offender who is of good character with no or limited prior convictions". The DPP disagreed that the changes to a "typical case" required revocation and submitted that the utility of Whyte was a guide or check as opposed to a prescriptive list, the CCA said that the changes to the "typical case" would not alone have been a sufficient reason to warrant the revocation of the guideline judgment but it was a factor in support of revocation in addition to the previous two reasons.

The Senior Public Defender submitted that the introduction of statutory aggravating factors under s 21A CSPA meant a sentencing judge would have to be wary of three sets of aggravating factors. Those set out in Whyte at [216], the list in s 21A CSPA and the circumstances of aggravation listed in s 52A(7) Crimes Act that create aggravated forms of s 52A Crimes Act offences, the Senior Public Defender submitted this posed challenges to avoid double counting and to comply with the De Simoni principle. The DPP agreed that it was preferable to not describe factors that would inform the objective seriousness of the offence as "aggravating" as described in Whyte. The CCA accepted that changes to the Sentencing Act and the introduction of standard non-parole periods (SNPPs) have diminished the role of guideline judgments over time.

Based on these reasons and the joint position of the AG, Senior Public Defender and DPP, the CCA decided that a sufficient case had been made to revoke the guideline judgment of Whyte.

What replaces the Whyte guideline?

The AG, Senior Public Defender and DPP all agreed that sentencing judges and the legal profession would be assisted by the CCA issuing a guideline for sentencing in respect of offences contrary to s 52A Crimes Act and such a guideline would include relevant principles for sentence and identify factors that would be relevant to the assessment of objective seriousness.

A question arose as to whether a "failure to heed a warning not to drive" was relevant to objective seriousness or moral culpability, historically it was considered as part of the objective seriousness of the offence and it was noted by the Senior Public Defender that some might contend that it goes to moral culpability. The DPP submitted it was a matter properly considered as to the objective seriousness of the offence and the CCA has decided in all the circumstances, including the need to avoid double counting that a "failure to heed a warning not to drive" is a factor that is to be seen as relevant to the assessment of objective seriousness.

The new sentencing principles for s 52A dangerous driving offences

The CCA set out that sentencing courts should approach sentences for Dangerous driving offences contrary to s 52A Crimes Act by applying general sentencing principles with particular focus on:

1. That it is necessary for sentencing courts to pay close attention to the purposes of sentencing set out in s 3A CSPA;

2. That a sentencing court must not sentence an offender to imprisonment unless satisfied no other penalty other than imprisonment is appropriate (s 5(1) CSPA) with the CCA noting that it would be a very rare case for the s 5 threshold would not be crossed for any offences under s 52A Crimes Act;

3. That sentencing judges remain mindful of the maximum penalty; and

4. That sentencing judges should have regard to any relevant aggravating and/or mitigating factors in s 21A CSPA and they should be careful to identify which are relevant to the finding of objective seriousness and applicable to the offender's subjective case and ensure there is no double counting when considering the aggravating factors in s 52A(7) Crimes Act.

The CCA also identified the following matters that may be relevant to the assessment of objective seriousness in relation to a s 52A Crimes Act offence:

1. The extent and nature of injuries inflicted;

2. The number of people put at risk (including persons other than the victims);

3. The degree of speed, noting that the assessment of this matter will depend on the circumstances in which the offence is committed;

4. The degree of intoxication or of substance abuse (noting that this factor is relevant even when the Crown cannot establish a more serious offence was committed);

5. Any erratic of aggressive driving;

6. Any competitive driving or "showing off";

7. The length of the journey during which others were exposed to risk. This refers to the length of the intended journey, not the journey attenuated by the collision. The danger created by the length of the journey will vary according to other circumstances, such as the time at which it is undertaken, the amount of traffic and the locale;

8. Ignoring of warnings;

9. Escaping police pursuit (noting that this is a statutory aggravating factor under s 52A(7)(c) of the Crimes Act);

10. The degree of sleep deprivation;

11. Failing to stop;

12. The offender is a professional driver/rider (such as truck, bus, taxi or ride share driver) where the nature of the vehicle being driven contributes to the potential for harm to others;

13. Driving while using a mobile phone or visual display device;

14. Taking part in an unlawful speed race or speed trial; and

15. Where the offence is a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender's vehicle: s 21A(2)(p) of the Sentencing Act.

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Frequently asked questions

1. Has the Whyte guideline judgment been revoked?
Yes. On 18 September 2026, the NSW Court of Criminal Appeal revoked the Whyte guideline judgment in Cripps v R (s 52A guideline judgment) [2026] NSWCCA 144. Whyte, a 2002 decision, dealt with sentencing for dangerous driving offences under s 52A of the Crimes Act 1900 (NSW).

2. Why did the CCA revoke the Whyte guideline?
Parts of Whyte had caused confusion or become outdated. Its references to "moral culpability" caused confusion with objective seriousness. Its "plea of limited utilitarian value" was overtaken by the statutory guilty plea discounts in s 25D of the Crimes (Sentencing Procedure) Act 1999. The Attorney General, Senior Public Defender and DPP all supported revocation.

3. Why was the "typical case" in Whyte considered out of date?
Most s 52A offenders no longer fit it. Whyte described a young offender of good character with no or limited prior convictions. BOCSAR statistics showed most offenders were over 25, and most convicted under ss 52A(2) and (4) had a prior record. The CCA treated this as a factor supporting revocation, though it would not have been enough alone.

4. What sentencing principles apply to s 52A dangerous driving offences after Cripps?
Courts apply general sentencing principles. They must pay close attention to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999. They may impose imprisonment only if no other penalty is appropriate (s 5(1)), and must keep the maximum penalty in mind. They weigh the aggravating and mitigating factors in s 21A without double counting those in s 52A(7) of the Crimes Act 1900.

5. What matters are relevant to the objective seriousness of a dangerous driving offence?
The CCA in Cripps listed 15 matters. They include the injuries caused, the number of people put at risk, speed, intoxication, ignoring warnings, escaping police pursuit, sleep deprivation and mobile phone use. The full list is at [158] of Cripps v R [2026] NSWCCA 144.

6. Is failing to heed a warning not to drive relevant to objective seriousness or moral culpability?
Objective seriousness. The CCA in Cripps held that a failure to heed a warning not to drive is relevant to objective seriousness, partly to avoid double counting.

7. Will a s 52A dangerous driving offence usually result in imprisonment?
Usually, yes. The CCA in Cripps noted it would be a very rare case where the s 5 threshold is not crossed for a s 52A offence. That threshold is met when no penalty other than imprisonment is appropriate.