monograph2002 series 21

Sentencing dangerous drivers in New South Wales impact of the Jurisic guidelines on sentencing practice

Judicial Commission of New South Wales

Sentencing dangerous drivers in New South Wales impact of the Jurisic guidelines on sentencing practice

Lynne A Barnes Senior Research Officer (Legal)

Patrizia Poletti Senior Research Officer (Special Projects)

Ivan Potas Director (Research & Sentencing)

Judicial Commission of New South Wales Published in Sydney by —

Judicial Commission of New South Wales Level 5, 301 George Street Sydney NSW 2000

GPO Box 3634 Sydney NSW 2001

Printed July 2002

ISBN 0 7313 5602 0

© Judicial Commission of New South Wales 2002

This publication is copyright. Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior permission. Enquiries should be addressed to the publisher.

The views expressed in this monograph are the views of the individual authors and do not represent any official views of the Judicial Commission of New South Wales, nor are they necessarily shared by the members of the staff of the Commission. Whilst all reasonable care has been taken in the preparation of this publication, no liability is assumed for any errors or omissions.

Editing — Ruth Sheard

Design and production — Ruth Sheard

Cover photography — Gary Graham: Newspix; PhotoDisc

Printers — Bloxham & Chambers Lithographic Printers Contents

List of tables & figures ...... iv Cases cited ...... v Legislation cited ...... vi Summary ...... vii

1 Introduction ...... 1 1.1 Aims of the study ...... 2

2 The offence ...... 3 2.1 Background ...... 3 2.2 Current legislation ...... 4 2.3 Relevant case law ...... 6 2.3.1 The guideline judgment in Jurisic ...... 8 2.4 The High Court ...... 10

3 Methodology ...... 13 3.1 The meaning of consistency in sentencing ...... 13 3.2 Time frame and data ...... 14 3.3 Statistical tests ...... 14 3.4 The research questions ...... 15 3.4.1 The first guideline ...... 15 3.4.2 The second guideline ...... 15 3.4.3 Court of Criminal Appeal ...... 16

4 Analysis & findings ...... 17 4.1 The effect of Jurisic in terms of severity and consistency measured on severity of penalty type ...... 17 4.2 The effect of Jurisic in terms of severity and consistency measured by length of full time imprisonment ...... 20 4.3 Analysis of the Court of Criminal Appeal decisions ...... 28 4.3.1 Crown appeals ...... 29 4.3.2 Sentence severity appeals ...... 30 4.3.3 Exceptional cases ...... 31 4.4 Changes in the prison population after Jurisic ...... 32

5 Conclusions ...... 33 Appendices A Crimes Act 1900 (NSW), ss 52A and 52AA ...... 35 B Table of CCA cases pre & post Jurisic ...... 39

Selected bibliography ...... 45 iv Impact of the Jurisic guidelines on sentencing practice

List of tables & figures

Tables 1 Characteristics of offenders sentenced under s 52A of the Crimes Act 1900 (NSW) — pre and post Jurisic ...... 17 2 Trends in overall penalty types for offences under s 52A of the Crimes Act 1900 (NSW) — pre and post Jurisic ...... 18 3 Trends in custodial penalties for offences under s 52A of the Crimes Act 1900 (NSW) by subsection — pre and post Jurisic ...... 19 4 Severity and consistency of full time custody (head sentences and non-parole periods) for offences under s 52A of the Crimes Act 1900 (NSW) by subsection — pre and post Jurisic ...... 21 5 CCA appeals under s 52A of the Crimes Act 1900 (NSW) — pre and post Jurisic ...... 28 6 Sentenced inmates in full time custody for driving offences on 30 June: 1997–2001 ...... 32 7 Dangerous driving causing death — Appeals against severity of sentence ...... 39 8 Dangerous driving causing death — Crown appeals ...... 40 9 Dangerous driving occasioning GBH — Appeals against severity of sentence ...... 42 10 Dangerous driving occasioning GBH — Crown appeals ...... 44

Figures 1 Length of full time custody (head sentences and non-parole periods) under s 52A(1)(a) of the Crimes Act 1900 (NSW) — pre and post Jurisic ...... 22 2 Length of full time custody (head sentences and non-parole periods) under s 52A(1)(c) of the Crimes Act 1900 (NSW) — pre and post Jurisic ...... 23 3 Length of full time custody (head sentences and non-parole periods) under s 52A(2) of the Crimes Act 1900 (NSW) — pre and post Jurisic ...... 24 4 Length of full time custody (head sentences and non-parole periods) under s 52A(3)(a) of the Crimes Act 1900 (NSW) — pre and post Jurisic ...... 25 5 Length of full time custody (head sentences and non-parole periods) under s 52A(3)(c) of the Crimes Act 1900 (NSW) — pre and post Jurisic ...... 26 6 Length of full time custody (head sentences and non-parole periods) under s 52A(4) of the Crimes Act 1900 (NSW) — pre and post Jurisic ...... 27 Impact of the Jurisic guidelines on sentencing practice v

Cases cited

Coventry v The King (1938) 59 CLR 633 R v McDonald (unreported, 12 October 1998, DPP v Smith [1960] 3 All ER 161 NSWCCA) Everett v The Queen (1994) 181 CLR 295 R v MacIntyre (1988) 38 A Crim R 135 R v Ashman (1858) 1 F&F 88; 175 ER 638 R v McKinney [1999] NSWCCA 51 R v B (unreported, 21 August 1990, NSWCCA) R v Mansour [1999] NSWCCA 180 R v Bailey [2001] NSWCCA 10 R v Marlin (unreported, 10 September 1997, R v Begbie [2001] NSWCCA 206 NSWCCA) R v Black (unreported, 23 July 1998, R v Menzies [1999] NSWCCA 222 NSWCCA) R v Milsom (unreported, 10 December 1997, R v Boswell (1984) 79 Cr App R 277 NSWCCA) R v Burnett (1996) 85 A Crim R 76 R v Murnin (unreported, 16 August 1985, R v Byrne (1998) 104 A Crim R 456 NSWCCA) R v Davies (unreported, 27 March 1998, R v Musumeci (unreported, 30 October 1997, NSWCCA) NSWCCA) R v Davies [2000] NSWCCA 84 R v Ngo (unreported, 15 November 1996, R v Dhanhoe [2000] NSWCCA 257 NSWCCA) R v Dodd (1991) 57 A Crim R 349 R v Panetta (1997) 26 MVR 332 R v Douglas (unreported, 11 December 1998, R v Pellow (unreported, 1 August 1997, NSWCCA) NSWCCA) R v Errington [1999] NSWCCA 18 R v Pyritz (unreported, 23 November 1998, R v Foster [2001] NSWCCA 215 NSWCCA) R v Frascella [2001] NSWCCA 137 R v Romanic [2002] NSWCCA 524 R v Fuller (unreported, 4 March 1998, R v Rushby [1977] 1 NSWLR 594 NSWCCA) R v S (1991) 22 NSWLR 548 R v Hallocoglu (1992) 29 NSWLR 67 R v Savka (1996) 88 A Crim R 393 R v Hanlon [2000] NSWCCA 55 R v Sellers (1997) 92 A Crim R 381 R v Hill (unreported, 4 December 1998, R v Sen [1999] NSWCCA 199 NSWCCA) R v Simpson [1999] NSWCCA 367 R v Howland [1999] NSWCCA 10 R v Slattery (1996) 90 A Crim R 519 R v Jaworowski [1999] NSWCCA 430 R v Smith (1997) 95 A Crim R 373 R v Jurisic (1998) 45 NSWLR 209; (1998) R v Tadman (2001) 8 Crim LN 51 101 A Crim R 259; (1998) 29 MVR 49 R v Tapfield (unreported, 30 July 1997, R v Kalanj (unreported, 18 December 1997, NSWCCA) NSWCCA) R v Thackray (unreported, 17 August 1998, R v Katoa [2000] NSWCCA 223 NSWCCA) R v Khatter [2000] NSWCCA 32 R v Tomson [1999] NSWCCA 308 R v Kilborn [2001] NSWCCA 116 R v Vitasovic [2000] NSWCCA 232 R v King [2001] NSWCCA 18 R v Whyte (unreported, 8 December 1997, R v Lambrinos (unreported, 17 July 1998, NSWCCA) NSWCCA) R v Wong; R v Leung (1999) 48 NSWLR 340 R v Lemoto (unreported, 24 July 1998, Wong v The Queen; Leung v The Queen NSWCCA) (2001) 76 ALJR 79 vi Impact of the Jurisic guidelines on sentencing practice

Legislation cited

New South Wales Crimes (Dangerous Driving Offences) Amendment Bill 1994 Traffic (Negligent Driving Offences) Amendment Bill 1994 Crimes Act 1900 s 24 s 52A s 52A(1) s 52A(2 s 52A(3) s 52A(4) s 52A(7) s 52A(8) s 52A(9) s 52AA(3)(a) s 52AA(5) Crimes (Amendment) Act 1951 Crimes (Dangerous Driving Offences) Amendment Act 1994 Crimes Legislation Further Amendment Act 1997 Sch 1[1] Sch 1[2] Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 s 5D s 12 Criminal Legislation Amendment Act 2001 Sch 5 Road Transport (General) Act 1999 s 25 Road Transport (Safety and Traffic Management) Act 1999 s 42(1)(a) s 42(1)(b) s 2(1)(a) Traffic Act 1909 s 2E s 10A(2)(c)

Commonwealth Customs Act 1901 s 233B Summary

This study analyses the impact of the guideline judgment handed down in the New South Wales Court of Criminal Appeal (CCA) case of R v Jurisic.1 The guidelines relate to sentences imposed for dangerous and aggravated dangerous driving offences heard in the higher courts of New South Wales. The authors trace the background to these offences and describe the current legislation. Particular note is taken of the fact that the offence of culpable driving, as set out in s 52A of the Crimes Act 1900 (NSW), was replaced in 1994 by a new s 52A. This amendment introduced a name change — dangerous driving rather than culpable driving — and added an aggravated form for each of the two categories of this offence (occasioning death and occasioning grievous bodily harm). In addition the maximum penalties were greatly increased. In Jurisic the CCA gave careful consideration to the sentences handed down for dangerous driving offences. It concluded not only that there was an unacceptable level of inconsistency in the sentences imposed, but that there was a need to raise the general level of penalties to more adequately reflect the intention of Parliament and the wishes of the community. This study aimed to determine whether: ■ the Jurisic guidelines have contributed to achieving greater consistency in the sentences imposed for these offences ■ as a consequence of the guideline judgment there was a general increase in the severity of sentences imposed. The method used to answer these questions was to compare sentencing patterns for cases decided three years before and three years after the Jurisic guidelines were promulgated. The study found that there was not only greater consistency of result in the sentences handed down by the courts after the guideline judgment, but that there was a clear and discernible increase in the severity of penalties imposed under the various categories of dangerous driving offences. The study also examined the pattern of sentencing appeals and observed a noticeable drop in the number of Crown appeals (including successful Crown appeals) after the guidelines were introduced. Again this indicates that sentences were both more consistent and more severe after Jurisic.

1 (1998) 45 NSWLR 209; (1998) 101 A Crim R 259; (1998) 29 MVR 49. 1 Introduction

This study provides an analysis of the sentences imposed on offenders who pleaded guilty or were convicted of certain driving offences in the higher courts of New South Wales. The offences studied are those which fall under the provisions of s 52A of the Crimes Act 1900 (NSW) and encompass circumstances that may broadly be described as involving dangerous driving or aggravated dangerous driving and, in either case, activity resulting in death or injury to the victim of the offence.2 This category of offence, previously known as culpable driving, provides a middle ground in terms of seriousness between the offences of negligent, furious or reckless driving causing grievous bodily harm3 and the offence of manslaughter.4 The person before the court in dangerous driving cases is frequently of otherwise good character. Further, unlike in the case of many other crimes, the prosecutor, judge and members of the jury can often easily identify with the defendant in terms of “there but for the grace of God go I”. Sentencing such offenders to terms of imprisonment cannot be easy. On the other hand, the social costs of dangerous driving are considerable, and Parliament has legislated severe penalties not simply in the hope of deterring others from engaging in similar conduct, but to raise awareness of the moral responsibility shared by all who drive on our roads. As observed: “Someone who is injured for life, or who loses a partner or child, in an accident resulting from, for example, reckless driving will expect that the person responsible be punished. The victim, and indeed society, may well feel that justice has not been done if the penalty imposed on the offender appears to bear no relation to the harm caused.”5 Even this passage underlies a problem associated with sentencing for this offence. In this context, the use of the term “accident” rather than the use of pejorative expressions such as “crime”, “criminally culpable behaviour” or even “grossly negligent conduct” serves to diminish the social unacceptability of the behaviour, therefore making it more difficult to justify the imposition of harsh penalties in many such cases. Disparities in sentencing outcomes can be readily explained if some sentencers perceive these offences in terms of unintended or accidental events (focusing on the subjective considerations relating to the offender), rather than on the consequences or objective circumstances of

2 Sentencing for murder (where a motor vehicle is used as the instrument of attack) and, in similar circumstances, for manslaughter, where the requisite mental element for murder is lacking or else the heinousness of the offence is so grave that a manslaughter charge, rather than one under s 52A is considered appropriate, are not considered in this study. As for some of the problems associated with selecting the offence to prosecute, see S Cunningham, “The reality of vehicular homicides: Convictions for murder, manslaughter and causing death by dangerous driving” [2001] Crim Law R 679. 3 The Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 42(1)(a) and (b). 4 The Crimes Act 1900 (NSW), s 24. 5 The Road Traffic Law Review, 1988, p 113, cited in Staysafe 25, Death and serious injury on New South Wales roads: An examination of the provisions of the Crimes Act 1900 (NSW) regarding dangerous driving, 1994, Joint Standing Committee on Road Safety, New South Wales Parliament, Sydney, p 5. 2 Impact of the Jurisic guidelines on sentencing practice

the offence (particularly on the harm caused to the victim). The general scheme of the legislation relating to dangerous driving offences shows that the level of culpability is closely associated with the level of injury or harm resulting from the offence. Thus, all other things being equal, a person who kills rather than causes grievous bodily harm as a result of dangerous driving would generally expect to receive a more severe sentence. In Jurisic,6 the CCA held that there was clear evidence of inconsistency in the sentences handed down by the courts for s 52A offences. Before coming to this conclusion it had closely examined past sentencing decisions relating to dangerous driving offences and carefully considered relevant sentencing statistics emanating from the Judicial Commission’s sentencing information system.7 The CCA also found that there was a need to lift public confidence in the administration of criminal justice and that the promulgation of a guideline judgment, the first of its kind to be handed down in New South Wales, was justified. Broadly speaking, this guideline was to indicate not only the kind of matters to which courts should have regard when sentencing for these offences, but to link them, in a relatively specific way, to the level of sentence that ordinarily should be regarded as appropriate for such offences. The aim of the guideline was to promote greater consistency in sentencing. The guideline, which will be discussed in greater detail later in this study, also sought to require sentencing judges to take a “sharp upward movement in penalty” on the basis that sentencing judges had not responded sufficiently to the increases made in 1994 to the maximum penalties. The guideline not only advocated custodial sentences for dangerous driving and aggravated dangerous driving offences, but also prescribed discretionary starting points in the level of imprisonment to be imposed. It is premature to conclude that debate on sentencing levels for dangerous driving will be put at rest through the application of Jurisic. The topic is a complex and emotive one, and certainly one in which views may vary. In this regard media criticism, an important feature of open justice, can be constructive. On the other hand ill-informed criticism may serve to undermine public confidence in the courts. The central question examined in the ensuing pages is: What has been the impact, if any, of the Jurisic guidelines on sentencing practice? It is hoped that a careful appraisal of our findings will lead to a more informed debate about sentencing and the work of the courts in this area of the law.

1.1 Aims of the study The main aims of this study were to: 1. Present an analysis of the impact of the guideline judgment in R v Jurisic on sentences imposed for dangerous driving and aggravated dangerous driving offences under s 52A of the Crimes Act 1900 (NSW). In particular, the study sought to answer the question as to whether sentencing practice had changed in a way that would indicate a greater consistency in sentencing for these types of offences. 2. Provide a description of the type and quantum of sentences commonly handed down for dangerous driving and aggravated dangerous driving offences in New South Wales. 3. Indicate whether or not there had been an increase in the severity of penalties imposed for these offences.

6 (1998) 45 NSWLR 209; (1998) 101 A Crim R 259; (1998) 29 MVR 49. 7 Now known as JIRS — Judicial Information Research System. 2 The offence

The history of s 52A of the Crimes Act 1900 can be characterised as a quest by legislators to clearly define dangerous driving offences and provide penalties that reflect the seriousness with which society regards them. Over time, the definition of the offence has had to adapt to: ■ continuing technological advances in motor transport ■ ever increasing numbers of motor vehicles on public thoroughfares ■ changes in society which have seen increasing numbers of young people with access to motor vehicles ■ widespread use of alcohol and various other drugs. The task of legislators to continually redefine s 52A to take into account these and other relevant factors has been assisted by judicial decisions that have widened the meaning of particular words in the section,8 and by the refinement of the skills of legislative drafters.

2.1 Background Increasing concern about the number of motor vehicle accidents in New South Wales resulting in the death or serious injury to another person through dangerous driving led, in 1947, to the parliamentary appointment of a Select Committee upon Road Accident Casualties. The Committee’s report, tabled in Parliament in 1948, made a number of recommendations and resulted in the passage of the Crimes (Amendment) Act 1951. The Act introduced the new offence,9 a misdemeanour, of “culpable driving”, through the insertion of s 52A into the Crimes Act 1900. The amendment, intended at the time as “an experiment” only, was designed to solve the problem of the “grievous road accident problem”. It was decided that if the experiment did not work, some other solution would have to be found.10 Before the introduction of s 52A, less serious driving offences were punishable summarily under the Traffic Act 1909 (NSW). A person causing death or serious injury to another person through dangerous driving could only be charged on indictment under the Crimes Act with the felonies of manslaughter, or causing grievous bodily harm by an unlawful or negligent act. The Attorney General of the day noted in his Second Reading Speech that:

8 See, for example, R v B (unreported, 21 August 1990, NSWCCA) and R v S (1991) 22 NSWLR 548 which were influential in later amendments to s 52A with the effect that the section applied equally to impacts which occurred on highways as elsewhere. 9 Section 2(e). 10 The Hon C E Martin, Attorney General, New South Wales Parliamentary Debates, Legislative Assembly, 3 October 1951, p 3351. 4 Impact of the Jurisic guidelines on sentencing practice

“The law in this regard had its roots in an era long before the motor car was invented, and the law is such that it is exceedingly difficult to obtain convictions in cases where the ordinary person would think, I imagine, that there should be a conviction…”11 Section 52A provided that a person would be guilty of the misdemeanour of culpable driving if, at the time of the incident which caused the death of, or grievous bodily harm to another person, the driver was: a) under the influence of intoxicating liquor or of a drug; or b) driving at a speed or in a manner dangerous to the public. The maximum penalty for causing death by culpable driving was imprisonment for five years and for causing grievous bodily harm imprisonment for three years. In the years following the introduction of the offence of culpable driving there were a number of both substantive and miscellaneous changes to the section.12 Since 195113 the New South Wales Parliament has progressively broadened the scope of the section and substantially increased the maximum penalties, hoping this would act as a strong deterrent to those who might otherwise be tempted to drive dangerously. For present purposes the most significant change occurred in 1994 when the offence of culpable driving was replaced by the present regime of dangerous and aggravated dangerous driving with substantially increased penalties. These changes are set out below.

2.2 Current legislation In 1994 following recommendations by the Staysafe Committee,14 and the CCA,15 legislation was passed to repeal the old s 52A and introduce a new s 52A into the Crimes Act.16 The section was redefined and broadened,17 and the maximum penalties under the section substantially increased. It was hoped that by recasting s 52A in this way it would be more easily understood by the community.18 In substance the elements of the two offences are similar, and as such the law relating to the repealed offence of culpable driving would apply substantially to the offence of dangerous driving. Since the introduction of the new section,

11 The Hon C E Martin, Attorney General, New South Wales Parliamentary Debates, Legislative Assembly, 26 September 1951, p 3223. 12 For details of the amendments to s 52A between 1955 and 1990 see Staysafe 25, Death and serious injury on New South Wales roads: An examination of the provisions of the Crimes Act 1900 (NSW) regarding dangerous driving, 1994, Joint Standing Committee on Road Safety, New South Wales Parliament, Sydney, pp 188– 193. See also D Ash and I Potas, “Driving causing death: Section 52A of the Crimes Act 1900” (1997) 15 Sentencing Trends, Judicial Commission of NSW, Sydney. 13 When the offence of culpable driving was first introduced partly because of concerns that juries would not convict for manslaughter in such cases. 14 See Staysafe 25, Death and serious injury on New South Wales roads: An examination of the provisions of the Crimes Act 1900 (NSW) regarding dangerous driving, 1994, Joint Standing Committee on Road Safety, New South Wales Parliament, Sydney, pp 15–19. 15 See, for example, R v Heinrich (1992) 61 A Crim R 212 at 220; R v Garlick (1994) 73 A Crim R 433 per Carruthers J. 16 The Crimes (Dangerous Driving Offences) Amendment Act 1994, operational from 23 December 1994. 17 The artificial and restrictive distinctions relating to highways, vehicles and impacts were removed. 18 The Hon J P Hannaford, Attorney General, Minister for Justice and Vice President of the Executive Council, Second Reading Speech, Crimes (Dangerous Driving Offences) Amendment Bill; Traffic (Negligent Driving Offences) Amendment Bill, New South Wales Parliamentary Debates, Legislative Council, 27 October 1994, p 4793. The offence 5 further amendments have broadened the scope of the section and brought various definitions within the section into line with cognate legislation.19 In addition to changing the name of the offence from culpable to dangerous driving, the offence was divided into four levels of seriousness — two basic offences and two aggravated offences — with an increase in penalties that reflected the seriousness of each level of the offence. The two basic offences, dangerous driving occasioning death20 and dangerous driving occasioning grievous bodily harm21 remained, however, the maximum penalties were increased from five years to ten years, and from three years to seven years respectively. If any aggravating factors listed in s 52A(7) were present when the death or injury occurred, the maximum penalty increased by four years, to 14 years for aggravated dangerous driving causing death,22 and 11 years for aggravated dangerous driving causing grievous bodily harm.23 If present at the time of the impact causing death or grievous bodily harm, the following circumstances are factors of aggravation under ss 52A(2) and 52A(4):24 a) the prescribed concentration (0.15 gm/100 ml or higher) of alcohol was present in the accused’s blood;25 or b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any); or c) the accused was driving the vehicle to escape pursuit by a police officer; or d) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination).26 An offence under s 52A is an offence of strict liability and as such the prosecution does not have to prove mens rea. However, it is open to the accused to raise a defence of an honest but reasonable mistake of fact, which the prosecution must negative. It is a defence to a charge under this section27 if the impact causing the death or grievous bodily harm was not in anyway attributable (as relevant): a) to the fact that the person charged was under the influence of intoxicating liquor, or a drug or a combination of drugs;28 or b) to the speed at which the vehicle was driven; or c) to the manner in which the vehicle was driven.

19 For example, see s 52A(9) where “drug” has the same meaning as it does in the Road Transport (Safety and Traffic Management) Act 1999, and “road” has the same meaning as it does in the Road Transport (General) Act 1999. 20 Section 52A(1). 21 Section 52A(3). Section 4 of the Crimes Act defines grievous bodily harm as “any permanent or serious disfiguring of the person”. However, it is not necessary that the harm is either permanent or dangerous: R v Ashman (1858) 1 F&F 88; 175 ER 638. It is bodily injury of a really serious kind: DPP v Smith [1960] 3 All ER 161. 22 Section 52A(2). 23 Section 52A(4). 24 Section 52A(7). 25 A reading taken within two hours after the impact: s 52AA(3)(a). 26 Section 52A(7)(d) was inserted by the Crimes Legislation Further Amendment Act 1997 (NSW), Sch 1[1], operational from 16 January 1998. Persons were previously charged under s 52A(1)(a). 27 Section 52A(8). 28 Inserted by the Crimes Legislation Further Amendment Act 1997 (NSW), Sch 1[2], operational from 16 January 1998. 6 Impact of the Jurisic guidelines on sentencing practice

If at trial a jury is not satisfied the accused is guilty of an aggravated offence under s 52A(2) or s 52A(4), but the evidence supports a finding of guilty under s 52A(1) or s 52A(3), then the jury may find the accused guilty of the lesser offence and subject to the penalties that apply for the lesser offence.29 In all cases of a conviction under s 52A, licence disqualification is mandatory and additional to any other penalty.30 Sections 52A and 52AA are reproduced at Appendix A.

2.3 Relevant case law There was an expectation that existing sentencing patterns would change following the introduction of the more severe penalties provided for under the new s 52A. As Hunt CJ at CL pointed out in R v Slattery 31 when considering the general approach to sentencing in these matters: “The action of the legislature in almost tripling the maximum sentence for a particular type of offence must be taken by the courts as reflecting community standards in relation to the seriousness of that offence, and the courts are required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner.” In R v Musumeci 32 Hunt CJ at CL stated that the same considerations which were applicable to the old offences of culpable driving must be taken into account when sentencing offenders for dangerous driving offences. After observing that the new regime involved four gradations of offence seriousness, that is, whether the offence involved death or grievous bodily harm and then whether each of these involved aggravating circumstances, his Honour proceeded to summarise the case law under the following seven points: “1. The Legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.33 2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.34 3. Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases.35 4. The courts must tread warily in showing leniency for good character in such cases.36

29 Section 52AA(5). 30 See the Road Transport (General) Act 1999, s 25. 31 (1996) 90 A Crim R 519 at 524 per Hunt CJ at CL. In this case the respondent in a Crown appeal pleaded guilty to two charges of aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900. The maximum sentence for each of the offences to which he pleaded guilty was imprisonment for 14 years. He was sentenced on each charge to concurrent fixed terms of imprisonment for three years, to be served by way of periodic detention. The appeal was upheld and in lieu of the previous sentences, there was imposed on each count a sentence of imprisonment for three years, consisting of a minimum term of 12 months and an additional term of two years. 32 (unreported, 30 October 1997, NSWCCA). 33 R v Murnin (unreported, 16 August 1985, NSWCCA). 34 R v MacIntyre (1988) 38 A Crim R 135 at 139. 35 Ibid. 36 Ibid. The offence 7

5. So far as youthful offenders of good character who are guilty of dangerous driving, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.37 6. Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order.38 7. The statement made by this Court in relation to the previous offence of culpable driving — that it cannot be said that a full time custodial sentence is required in every case39 — continues to apply in relation to the new offence of dangerous driving.40 As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention,41 there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case), but the case in which a sentence other than one involving full time custody is appropriate must be rarer for this new offence.42” These same points were quoted with approval by Spigelman CJ in Jurisic and were said to be readily adaptable to the cognate offence of dangerous driving causing grievous bodily harm.43 However, judged by the level of media disquiet,44 frequency of Crown appeals against the inadequacy of sentences45 and critical observations made from time to time by the CCA on sentences imposed for these offences,46 the actual penalties imposed by courts appear to have fallen short of what the community was demanding. History now shows that despite the clear legislative intent of the new regime to bring about an increase in the level of penalties imposed by the courts, and indeed, in spite of the efforts of the CCA itself to call for tougher penalties, many sentences continued to fall short of their mark. What emerged was “a continued flow of, almost invariably successful, Crown appeals from sentences for offences under s 52A”.47

37 R v Rushby [1977] 1 NSWLR 594; R v Dodd (1991) 57 A Crim R 349. 38 R v Hallocoglu (1992) 29 NSWLR 67; R v Burnett (1996) 85 A Crim R 76. 39 R v Hallocoglu (1992) 29 NSWLR 67 at 77. 40 R v Panetta (1997) 26 MVR 332. 41 Coventry v The King (1938) 59 CLR 633. 42 R v Panetta (1997) 26 MVR 332. 43 R v Jurisic (1998) 45 NSWLR 209 at 228. 44 For example, a search of the Sydney Morning Herald archives for reports on “dangerous driving” retrieved 106 such articles, including the following examples of emotive headlines: “‘Soft’ sentences come under fire”; “FREE The car thief who took these two young lives”; “Sentence too short, says mum”; “Jail term ‘not good enough’”; “Young and deadly”; “Stolen life”; “Death driver jailed for five years”. 45 See T Poletti and L Barnes, “Conviction and sentence appeals in the New South Wales Court of Criminal Appeal 1996–2000” (2002) 22 Sentencing Trends, Judicial Commission of NSW, Sydney. 46 See the analysis of the cases in Jurisic itself. 47 R v Jurisic (1998) 45 NSWLR 209 at 229 per Spigelman CJ. Cases in which there was a successful Crown appeal: R v Savka (1996) 88 A Crim R 393; R v Slattery (1996) 90 A Crim R 519; R v Sellers (1997) 92 A Crim R 381; R v Smith (1997) 95 A Crim R 373; R v Tapfield (unreported, 30 July 1997, NSWCCA); R v Musumeci (unreported, 30 October 1997, NSWCCA); R v Milsom (unreported, 10 December 1997, NSWCCA); R v Kalanj (unreported, 18 December 1997, NSWCCA); R v Lambrinos (unreported, 17 July 1998, NSWCCA); R v Black (unreported, 23 July 1998, NSWCCA); R v Byrne (1998) 104 A Crim R 456; R v Thackray (unreported, 17 August 1998, NSWCCA). 8 Impact of the Jurisic guidelines on sentencing practice

2.3.1 The guideline judgment in Jurisic On 12 October 1998 the Full Bench48 of the CCA in handing down its decision in R v Jurisic 49 took the opportunity of promulgating the first guideline judgment in New South Wales. Prior to setting out the guideline it is useful to review the facts of the case. Christopher Tom Jurisic had pleaded guilty to three counts of dangerous driving occasioning grievous bodily harm under s 52A(3)(a).50 He had, while under the influence of cocaine, lost control of his motor vehicle. It had impacted with a rock wall, mounted a median strip, crossed onto the other side of the highway and collided with a motor vehicle travelling in the opposite direction. The occupants of the other car, a family of five, were all injured. Three victims required hospitalisation. One victim underwent a series of operations to correct injuries sustained in the impact. Mr Jurisic was aged 27 years at the time of the accident and was married with a small child. When he was 14 years old he had suffered a head injury which later changed his behaviour and personality. Prior to the instant offences, he had a history of driving convictions, including one for driving in a manner dangerous. On the first count, the sentencing judge imposed a sentence of imprisonment for 18 months with an order that he be assessed for suitability to serve his sentence in home detention. He was also disqualified from holding a driver’s licence for one year. Sentence was deferred in respect of the other two offences, on condition that he enter into a recognisance, in the sum of $1,000, to be of good behaviour for two years. The Crown appealed on the basis that this sentence was excessively lenient. In upholding the appeal, the CCA held51 that in all the circumstances the respondent should have been ordered to serve a period of full time imprisonment. With regard to the first count, the CCA ordered that the sentence below be quashed and a term of full time imprisonment for two years, comprising a minimum term of one year and an additional term of one year, be substituted. The order of licence disqualification for one year was also quashed. In lieu, the respondent was disqualified for a period of two years. In the course of the judgment Spigelman CJ addressed the issues of inconsistency in sentencing decisions and the resulting public criticism such decisions attracted: “That there are a multiplicity of factors that need to be considered in sentencing has long been recognised. There is, however, a tension between maintaining maximum flexibility in the exercise of the discretion, on the one hand, and ensuring consistency in sentencing decisions, on the other. Inconsistency in sentencing offends the principle of equality before the law. It is itself a manifestation of injustice. It can lead to a sense of grievance amongst individuals on whom uncharacteristically severe sentences are imposed and amongst the broader community, or victims and their families, in the case of uncharacteristically light sentences.”52

48 Spigelman CJ, Wood CJ at CL, and Sully, James and Adams JJ. 49 (1998) 45 NSWLR 209; (1998) 101 A Crim R 259; (1998) 29 MVR 49. 50 At the time the maximum penalty provided under this section was seven years, with an automatic licence disqualification of three years under s 10A(2)(c) of the Traffic Act 1909 (NSW). However, a court of competent jurisdiction could reduce the period of licence disqualification. 51 Per Sully J with whom all members of the Court agreed. 52 (1998) 45 NSWLR 209 at 216. The offence 9

The Chief Justice stated that courts must show they are responsive to public criticism relating to inconsistency in sentencing decisions. The issuing of guideline judgments would assist in attaining consistency in sentencing decisions by ensuring that the legal profession and sentencing judges were aware of the CCA’s suggestions. This in turn “may assist in diverting unjustifiable criticism of the sentences imposed in particular cases, or by particular judges”.53 Importantly he stressed that guideline judgments are “not to be treated as binding precedent”, they “are intended to be indicative only. They are not intended to be applied to every case as if they were rules binding on sentencing judges.” They are intended as a “mechanism for structuring discretion, rather than restricting discretion”.54 The critical difference between guideline judgments and other sentencing systems, such as mandatory, mandatory minimum or grid sentencing schemes, is their flexibility. The broad discretionary powers of sentencing judges “are central to the ability of the criminal courts to ensure justice is done in all the extraordinary variety of circumstances of individual offences and individual offenders”.55 In relation to the offence of dangerous driving under s 52A the Chief Justice observed: “The nature of the offence is not such that the court can devise a simple table in which indicative penalties are linked to a quantitative measure of the offence …What can be done, however, in case of an offence covering a wide range of conduct which varies qualitatively rather than quantitatively, is to indicate in a general way the kind of case which would usually require a particular kind or level of sentence, whilst acknowledging that there will always be exceptional cases.” 56 During the course of the judgment Spigelman CJ listed a number of factors,57 some of which were already included under “circumstances of aggravation” under s 52A(7), that when present or absent — and their degree — will determine the appropriate penalty. These were: “(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit.” 58 The Chief Justice indicated that the first two factors related to the occurrence of the offence, while the other factors focused on the conduct of the offender. When any of the latter factors are present they may indicate that the offender has abandoned responsibility for his or her own conduct. Further, “when the presence of such a factor can be so described, then it can be said to be present to a material degree for the purposes of determining an appropriate sentence”.59

53 Ibid at 220. 54 Ibid at 220. 55 Ibid at 221. 56 Ibid at 230. 57 Ibid at 231; collected by Lord Lane CJ in R v Boswell (1984) 79 Cr App R 277. 58 Ibid at 231. 59 Ibid at 231. 10 Impact of the Jurisic guidelines on sentencing practice

The concept of abandonment of responsibility of a driver for his or her own conduct was reflected in the guidelines, which his Honour then promulgated. However, the guideline judgment clearly distinguishes between cases “involving momentary inattention or misjudgment” on the one hand, and cases of “abandonment of responsibility” on the other. The sentencing guidelines for the offences of dangerous driving under s 52A are as follows: “(1) A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. (2) With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional. … The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.”60 There has been some difference of opinion among members of the CCA as to whether the guidelines require that every case be classified as falling within one or other of the guidelines.61 However, the better view may be that there is a middle ground between momentary inattention or misjudgment and abandoning responsibility 62 because: “Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.”63 With respect to the latter part of the second guideline, it has been held that in sentencing for an offence under s 52A(2) or s 52A(4) it is an error to start consideration of the appropriate sentence at three years, and then add on aggravating factors to increase the sentence beyond that term.64

2.4 The High Court Just over three years after the Jurisic guideline judgment was promulgated, the High Court of Australia handed down its decision in an appeal relating to a later guideline judgment of the New South Wales CCA on drug importation,65 Wong v The Queen; Leung v The Queen.66

60 Ibid at 231. 61 See R v Foster [2001] NSWCCA 215 at [16] per Badgery Parker AJ, citing R v Davies [2000] NSWCCA 84 at [19] per Hulme J (with whom Sheller JA agreed) who said not. However, in Davies Hulme J at [51] cited R v Pyritz (unreported, 23 November 1998, NSWCCA) per Simpson J, with whom Kirby J agreed, who regarded the two-part classification as exhaustive. Hulme J did not agree. 62 R v Foster [2001] NSWCCA 215. 63 R v Khatter [2000] NSWCCA 32 at [31] per Simpson J. 64 R v Tadman (2001) 8 Crim LN 51. 65 R v Wong and Leung (1999) 48 NSWLR 340; the Customs Act 1901 (Cth), s 233B. 66 (2001) 76 ALJR 79. The offence 11

The appeal was upheld by majority (Gummow, Hayne, Gaudron and Kirby JJ; with Gleeson CJ and Callinan J dissenting) and the matter remitted to the CCA for reconsideration in the light of the reasons set out by the High Court. Of particular relevance was the fact that the High Court’s decision appeared to question not only the validity of the guideline under consideration, but other guidelines, particularly the Jurisic guidelines. Among other things the High Court found that in relation to the Criminal Appeal Act 1912 (NSW)67 the CCA: “…had no jurisdiction in respect of sentences passed or to be passed on others. The publication of a table of future punishments was neither to vary the sentence that was passed nor to pass a new sentence. It was not within the powers of the Court to publish such a table because, to adopt constitutional terms, that is not directed to the quelling of the only dispute which constitutes the matter before the Court.”68 The New South Wales Government acted swiftly in an attempt to remove any uncertainty in relation to the validity of the guideline judgments, introducing amending legislation, which among other things, purported to validate all guideline judgments handed down by the CCA.69 Despite the amending legislation, a number of criticisms made by members of the High Court leave open the possibility of further challenges to some aspects of guideline decisions. One criticism was that some guidelines are overly prescriptive rather than descriptive, thereby potentially intruding on the province of the legislative arm of government, or else having the effect of depriving judicial officers from exercising their full range of sentencing powers. The joint judgment of Gummow, Hayne and Gaudron JJ was particularly critical of numerical guidelines, being concerned that these hinder the proper application of sentencing principles. These issues, and the future status of guideline judgments, although important, are outside the scope of this study and will not be discussed further. Meanwhile, the Chief Justice in a speech in January 2002 reiterated what he had said in Jurisic, a proposition we respectfully suggest would find universal acceptance: “It is essential for the maintenance of public confidence in the administration of justice that the outcomes of similar cases are, within reasonable bounds, the same. Consistency in sentencing must be more than empty rhetoric. That is the primary task of the Court of Criminal Appeal.”70

67 Sections 5D and 12. 68 (2001) 76 ALJR 79 at [84] per Gaudron, Gummow and Hayne JJ. 69 Schedule 5 of the Criminal Legislation Amendment Act 2001 amended the Crimes (Sentencing Procedure) Act 1999. 70 Opening of Law Term Dinner, New South Wales Law Society, Parliament House, Sydney, 29 January 2002, available url .

3 Methodology

Thus far this study has given consideration to a number of areas related to sentencing, such as sentencing principles, aspects of public opinion, guideline judgments and specific offences.71 However, as it is beyond the scope of this paper to cover all of these areas in depth we now turn to consider what remains our main focus: the impact of the Jurisic guideline judgment. As over three years have elapsed since the CCA issued its historic judgment, there is now enough data available to determine what impact, if any, Jurisic has had in terms of consistency and severity of sentence for those prosecuted for offence(s) under s 52A of the Crimes Act.

3.1 The meaning of consistency in sentencing Although the notion of consistency was central to the judgment in Jurisic it was not defined, thus it is unclear as to the precise aspect of the sentencing process it was intended to refer. As we propose to use consistency in sentencing as a measure of the impact of Jurisic on sentencing practice in NSW, a definition of what we mean by that term is required. A general definition of the word “consistency” is “constantly adhering to the same principles of thought or action”.72 However, when the term is applied to sentencing Morgan and Murray73 suggest that consistency can be viewed from a number of different perspectives: ■ The first of these they describe as consistency of purpose or philosophy. Under this definition consistency would involve agreement on the basic purpose of sentencing, for example deterrence. ■ The second view of consistency relates to the approach taken in sentencing. In other words, taking account of the same factors and giving similar weight to those factors. ■ The third perspective of consistency focuses on the outcome or result of the sentencing exercise, that is, imposing the same type and quantum of sentence. ■ Finally they suggest that consistency may be any combination or variation of the above views. In this study consistency was measured in terms of the actual sentences handed down, that is, the sentencing outcomes for the particular category of offence under consideration. Thus both the kind of sanction imposed and the severity of sanction were the measures used in this study to determine consistency. This would fall under

71 See the selected bibliography for articles in these areas. 72 The Shorter Oxford English Dictionary, 1973, Clarendon Press, Oxford, p 405. 73 N Morgan and B Murray, “What’s in a name? Guideline judgments in Australia” (1999) 23 Criminal Law Journal 91 at 95. 14 Impact of the Jurisic guidelines on sentencing practice

the third meaning of consistency in sentencing suggested by Morgan and Murray. The focus of our attention, therefore, was not on whether there was consistency of approach, but rather whether there was consistency of result in the sentences imposed under s 52A. However, consistency of result may be a consequence of consistency of purpose and approach. For example, if courts consistently apply the matters set out under the Jurisic criteria (consistency of purpose and approach) they may be expected also to impose sentences consistent with the numerical values in the guidelines (consistency of result). When viewed in this way our definition also encapsulates the traditional understanding of consistency in sentencing, namely that like cases should be decided alike and that unlike cases should be decided differently.

3.2 Time frame and data This study examined s 52A offence sentencing data over a six-year period, from 12 October 1995 to 11 October 2001. This time frame allowed for a comparison of sentencing trends for these offences for the three-year period prior to the issuing of the Jurisic guideline judgment (12/10/1995 to 11/10/1998) with the three-year period post Jurisic (from 12/10/1998 to 11/10/2001). Thus, throughout the study references are made to pre Jurisic and post Jurisic cases to signify whether they were decided before or after the availability of the guideline. The reader should be aware of a number of factors relating to the limitations of the data when considering the findings of this study. The analysis is based on data derived from the NSW Bureau of Crime Statistics and Research (BOCSAR). Only the principal offence for each finalised matter was retained. The principal offence is the offence attracting the severest penalty in the group of offences for which an offender has been convicted.74 This means that when there was more than one offence all secondary offences were excluded. The Commission then audited the data against its own database of CCA sentencing decisions and made corrections as required. Whenever sentences are quashed or varied by the CCA, the Commission’s database is used to correct first instance penalties handed down in the District and Supreme Courts. Thus, where the outcome of an appeal to the CCA resulted in an acquittal, new trial or remit to sentencing court, then the record was deleted and excluded from the study. However, if the outcome of an appeal resulted in a new penalty, the penalty at first instance was deleted and the new penalty substituted. In addition, any matter that was heard by the CCA on or after Jurisic was published (12 October 1998) was categorised as post Jurisic even if the CCA declined to alter the original sentence handed down pre Jurisic.

3.3 Statistical tests Various statistical techniques were utilised to make meaningful comparisons of the sentences imposed in the pre Jurisic and post Jurisic periods. These were mainly descriptive in nature (frequencies and cross tabulations), however chi square tests (for categorical data) and median tests (for numerical data) were used when the analysis involved studying the relationship between certain factors and whether any statistically significant differences occurred in the pre Jurisic and post Jurisic periods. The statistical analysis was undertaken using the software application known as Statistical Package for the Social Sciences (SPSS).

74 If two or more offences attracted the same penalty then the offence with the greatest maximum penalty was selected as the principal offence. After this stage, if two or more offences still qualified as equally severe, then the first offence in the list was selected as the principal offence. Methodology 15

3.4 The research questions The analysis is divided into three main parts: ■ the first part examines the impact of the first Jurisic guideline ■ the second part examines the extent to which the second Jurisic guideline has affected sentencing practice ■ the third part analyses the types of CCA appeals and their outcomes.

3.4.1 The first guideline

A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. In this study, and unless otherwise indicated, we take the term “custodial sentence” to refer only to a sentence of full time imprisonment, and we have conducted our primary analysis based on this premise. However, the term custodial sentence is sometimes understood to include other forms of custodial sentences (such as home detention, periodic detention and s 12 suspended sentences). Where indicated in the text, an additional analysis has been undertaken on the basis of this extended meaning. The questions addressed in the analysis based on the first guideline were: 1. What was the overall range of penalty types handed down to offenders convicted of an offence under s 52A in the study period? 2. What differences, if any, were there in the percentages for full time custodial, other forms of custodial and non-custodial penalties in the pre and post Jurisic periods? 3. What differences, if any, were there in the percentages for full time custodial, other forms of custodial and non-custodial penalties for individual subsections of s 52A in the pre and post Jurisic periods?

3.4.2 The second guideline

With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional. …

The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence. In this section we answer questions of consistency, measured by quantum of penalty, analysing only sentences of full time imprisonment. This decision was taken as the second guideline was ambiguous as to the exact meaning of a custodial sentence for not less than two or three years. For example, home detention is only available for up to a maximum period of 18 months and could not have been a valid option under guideline two. Similarly, we have excluded periodic detention and s 12 suspended sentences as falling within the meaning of custodial sentence for the purposes of this guideline. 16 Impact of the Jurisic guidelines on sentencing practice

It was decided to select only s 52A(2) and s 52A(4) for analysis here as at least one of the aggravating factors referred to by the Chief Justice in the guideline judgment75 would have to be present for an offender to be charged under either of these subsections. A similar analysis was not possible for the other subsections, as the first instance data for these offences lacked the detailed information necessary for this analysis. The questions addressed in the analysis based on the second guideline were: 4. How many sentences for a conviction under s 52A(2), taking into account a guilty plea, resulted in a full time custodial sentence greater than or equal to three years? 5. How many sentences for a conviction under s 52A(4), taking into account a guilty plea, resulted in a full time custodial sentence greater than or equal to two years?

3.4.3 Court of Criminal Appeal Another way to examine the effect of Jurisic on sentencing consistency under s 52A is to analyse the type and outcome of appeals in the CCA: see Appendix B for a table of all appeal cases relating to s 52A. In the pre Jurisic period it was said that trial judges were handing down inadequate sentences, evidenced by the high number of Crown appeals against the inadequacy of sentence. In the post Jurisic period with the guidelines calling for an increase in sentence severity, one might expect to see an increase in the number of appeals against sentence severity and a corresponding decrease in the number of Crown appeals. Therefore, the question to be addressed in assessing the CCA data was: 6. What change, if any, was there in the pattern of appeals relating to sentences for s 52A cases in the pre and post Jurisic periods?

75 (1998) 45 NSWLR 209 at 231. 4 Analysis & findings

In the six-year period covered by this study there were a total of 477 cases in which an offender was sentenced for an offence(s) under s 52A of the Crimes Act 1900. There were 190 cases in the three-year pre Jurisic period and 287 in the post Jurisic period.76 Analysis of the data showed no statistically significant differences in the characteristics of offenders convicted and sentenced for an offence(s) under s 52A in the pre and post Jurisic periods: see Table 1. The majority of offenders were male (89.7%), aged 27 years (median77), with no prior convictions (62.9%) and at liberty at the time they committed the offence (94.5%). They pleaded guilty (86.6%) to one count of the principal offence under s 52A (87.2%) and had no Form 1 matters taken into account at sentencing (81.3%).

Table 1 Characteristics of offenders sentenced under s 52A of the Crimes Act 1900 (NSW) — pre and post Jurisic

Characteristic Pre Post Overall 12/10/95–11/10/98 12/10/98–11/10/01 12/10/95–11/10/01 n% n% n% No Form 1 matters 157 82.6 231 80.5 388 81.3 One count of the principal offence 165 86.8 251 87.5 416 87.2 No priors (any type) 122 64.2 178 62.0 300 62.9 Plea guilty 167 87.9 246 85.7 413 86.6 At liberty† at time of offence 180 94.7 271 94.4 451 94.5 Males 169 88.9 259 90.2 428 89.7

Median age 27 years 28 years 27 years

† Not subject to a court order.

4.1 The effect of Jurisic in terms of severity and consistency measured on severity of penalty type

Question 1 What was the overall range of penalty types handed down to offenders convicted of an offence under s 52A in the study period? While the full range of custodial and non-custodial penalties were available to sentencing judges, Table 2 shows that some penalties (non-conviction dismissals, non-conviction bonds/recognisances and fines) were not utilised by sentencing judges at all in the pre Jurisic period, and rarely used in the post Jurisic period. The most

76 It should be noted that the pre and post Jurisic numbers relate to the sentence dates of the study period, not the date of the offence. 77 The median describes the midpoint where 50% of cases fall below or above. The median was used to describe the average in preference to the mean because the mean may be distorted by extreme values at either end of the distribution. 18 Impact of the Jurisic guidelines on sentencing practice

common penalty handed down to an offender convicted under s 52A in both periods was a full time custodial sentence. The next most common penalties were periodic detention and community service orders.

Table 2 Trends in overall penalty types for offences under s 52A of the Crimes Act 1900 (NSW) — pre and post Jurisic

Penalty Pre Post % Difference n% n% Full time custodial 94 49.47 195 67.94 18.47 Other custodial 44 23.16 53 18.47 -4.69 Home detention 8 4.21 4 1.39 -2.82 Periodic detention 36 18.95 39 13.59 -5.36 s 12 suspended sentence(a) 10 3.48 3.48 Non-custodial 52 27.37 39 13.59 -13.78 Community service order 29 15.26 25 8.71 -6.55 Bonds/recognisances(b) 23 12.21 12 4.18 -7.92 Fines 0 0.00 1 0.35 0.35 Non-conviction bonds/recognisances(c) 0 0.00 1 0.35 0.35 Non-conviction dismissals(c) 0 0.00 0 0.00 0.00 Overall 190 100.00 287 100.00

(a) This penalty option became available from 3/4/2000. (b) Includes both s 558 recognisances and s 9 good behaviour bonds which replaced s 558 recognisances on 3/4/2000. (c) Includes both s 556A non-conviction orders and s 10 non-conviction orders which replaced s 556A non-conviction orders on 3/4/2000.

Question 2 What differences, if any, were there in the percentages for full time custodial, other forms of custodial and non-custodial penalties in the pre and post Jurisic periods? When individual penalty types were examined (see Table 2) a marked increase was apparent in the proportion of offenders sentenced to a term of full time imprisonment in the post Jurisic period. Overall, the rate for the penalty of full time imprisonment increased from 49.47% pre Jurisic to 67.94% post Jurisic. This represents an 18.47% difference in the use of this penalty in the pre and post Jurisic periods. The overall increase in this category of penalty resulted, as one would expect, in a reduction in other categories of penalty. The last column in Table 2 shows the percentage difference between the pre and post Jurisic periods for all penalties. The penalties that showed the greatest reductions in use were bonds/ recognisances (from 12.21% pre Jurisic to 4.18% post Jurisic) and community service orders (from 15.26% pre Jurisic to 8.71% post Jurisic).

Question 3 What differences, if any, were there in the percentages for full time custodial, other forms of custodial and non-custodial penalties for individual subsections of s 52A in the pre and post Jurisic periods? Following the judgment in Jurisic every subsection of s 52A (where cases exist) showed a greater proportion of offenders being sentenced to a term of full time imprisonment, however, some subsections showed a greater increase than others: see Table 3. The greatest increase in terms of a penalty of full time imprisonment was for the offence under s 52A(3)(a) of dangerous driving occasioning grievous bodily harm while driving under the influence of intoxicating liquor or of a drug. The proportion of offenders convicted and sentenced under this subsection to a term of full time imprisonment almost doubled in the study Analysis & findings 19 period, from 35.7% pre Jurisic to 66.7% post Jurisic. Section 52A(1)(c), dangerous driving occasioning death while driving in a manner dangerous to another person or persons, and s 52A(3)(c), dangerous driving occasioning grievous bodily harm while driving in a manner dangerous to another person or persons, also nearly doubled, from 28.6% pre Jurisic to 55.0% post Jurisic and from 28.0% pre Jurisic to 51.1% post Jurisic, respectively.

Table 3 Trends in custodial penalties for offences under s 52A of the Crimes Act 1900 (NSW) by subsection — pre and post Jurisic

Section Full time custodial Other custodial Non-custodial n% n% n% Death — non-aggravated s 52A(1)(a) — DUI pre 20 83.3 3 12.5 1 4.2 post 25 96.2 1 3.8 0 0.0 % difference 12.9 -8.7 -4.2 s 52A(1)(b) — Speed pre 1 100.0 0 0.0 0 0.0 post – – – – – – % difference – – – s 52A(1)(c) — DMD pre 22 28.6 24 31.2 31 40.3 post 61 55.0 25 22.5 25 22.5 % difference 26.4 -8.7 -17.8 Death — aggravated s 52A(2) pre 25 92.6 1 3.7 1 3.7 post 32 100.0 0 0.0 0 0.0 % difference 7.4 -3.7 -3.7 GBH — non-aggravated s 52A(3)(a) — DUI pre 5 35.7 6 42.9 3 21.4 post 24 66.7 11 30.6 1 2.8 % difference 31.0 -12.3 -18.6 s 52A(3)(b) — Speed pre –– –– –– post – – – – – – % difference – – – s 52A(3)(c) — DMD pre 7 28.0 3 12.0 15 60.0 post 23 51.1 9 20.0 13 28.9 % difference 23.1 8.0 -31.1 GBH — aggravated s 52A(4) pre 14 63.6 7 31.8 1 4.5 post 30 81.1 7 18.9 0 0.0 % difference 17.5 -12.9 -4.5

DUI — driving under the influence of intoxicating liquor or a drug DMD — driving in a manner dangerous GBH — grievous bodily harm 20 Impact of the Jurisic guidelines on sentencing practice

Question 4 How many sentences for a conviction under s 52A(2), taking into account a guilty plea, resulted in a full time custodial sentence greater than or equal to three years? Of all offenders who pleaded guilty and were convicted prior to Jurisic of an offence under s 52A(2), aggravated dangerous driving occasioning death, 69.6% received a sentence of full time custody of three or more years. However, following Jurisic all offenders (100.0%) received full time imprisonment terms of three years or more.

Question 5 How many sentences for a conviction under s 52A(4), taking into account a guilty plea, resulted in a full time custodial sentence greater than or equal to two years? Prior to Jurisic half or 50% of all offenders who pleaded guilty and were sentenced for an offence under s 52A(4), aggravated dangerous driving occasioning grievous bodily harm, received a sentence of full time custody of two years or longer. Post Jurisic this figure increased to 77.8% of all offenders.

4.2 The effect of Jurisic in terms of severity and consistency measured by length of full time imprisonment While the previous section provided details specific to the effect of the guideline judgment for aggravated offences under s 52A, this section provides information on the effect of Jurisic for all offences under s 52A, whether the offender pleaded guilty or not. It should be noted the analysis refers to the head, non-parole period and fixed term sentences. Addressing the issue of sentence severity first, the median terms of full time imprisonment were compared for the pre and post Jurisic periods. While the overall figures (see Table 4) show no increase in the median term of the full time head sentence (both 36 months) or non-parole period (both 18 months), it should be noted that there was a sharp increase in the proportion of offenders being sentenced to a term of full time imprisonment from 49.5% pre Jurisic to 67.9% post Jurisic. In addressing the issue of consistency, we decided to look at sentences clustered around the middle 50% range of imprisonment. This decision was made because of the many factors taken into account in sentencing which can result in prison terms at the extreme ends of the sentencing range. Table 4 illustrates that overall there was a slight narrowing around the middle 50% range, from 24–52 months pre Jurisic to 24–48 months post Jurisic. However, there was a slight expansion in the middle 50% range for the non-parole period from 12–28 months pre Jurisic to 12–30 months post Jurisic. Once again, it should be remembered that more offenders are being sentenced to full time imprisonment who previously may have received another more lenient type of penalty. Hence, one would expect a somewhat lower average length prison sentence in the post Jurisic period to accommodate increased numbers coming in at the bottom end of the imprisonment spectrum. The reason there was no overall change observed in the median term of the full time head sentence, non-parole period or the middle 50% range of sentences was the combined effect of the increase in the severity of penalty type, and fluctuations in the custodial sentence lengths imposed under the majority of the subsections of s 52A. Consequently, a more detailed analysis of the impact of Jurisic on each subsection under s 52A follows. The results for each subsection are presented in Table 4 and the distribution of full time prison terms (head sentence and non-parole period) is graphically presented in Figures 1–6. Analysis & findings 21

Table 4 Severity and consistency of full time custody (head sentences and non-parole periods) for offences under s 52A of the Crimes Act 1900 (NSW) by subsection — pre and post Jurisic

Section Full time custody If full time custody Head sentence(a) Non-parole period(b) median middle full median middle full term 50% range term 50% range range range n % (mths) (mths) (mths) (mths) (mths) (mths) Death — non-aggravated s 52A(1)(a) — DUI pre 20 83.3 36 30–60 24–72 18 12–30 12–48 post 25 96.2 42 36–60 18–84 24 18–36 6–54 s 52A(1)(b) — Speed pre 1 100.0 42 – 42 18 – 18 post – – – – – – – – s 52A(1)(c) — DMD pre 22 28.6 36 16–48 4–72 12 12–34 4–42 post 61 55.0 36 24–42 3–74 18 9–24 3–56 Death — aggravated s 52A(2) pre 25 92.6 48 35–60 20–72 24 12–30 8–42 post 32 100.0 60 48–72 36–96 36 30–48 12–63 GBH — non-aggravated s 52A(3)(a) — DUI pre 5 35.7 18 12–36 6–42 12 7–18 6–24 post 24 66.7 24 24–30 12–48 12 9–16 6–36 s 52A(3)(b) — Speed pre – – – – – – – – post – – – – – – – – s 52A(3)(c) — DMD pre 7 28.0 28 15–36 12–84 18 4–27 3–48 post 23 51.1 30 24–40 12–64 12 6–20 2–48 GBH — aggravated s 52A(4) pre 14 63.6 36 24–51 12–62 13.5 12–24 5–36 post 30 81.1 30 24–48 18–72 15 12–24 6–45 Overall pre 94 49.5 36 24–52 4–84 18 12–28 3–48 post 195 67.9 36 24–48 3–96 18 12–30 2–63

(a) The head sentence refers to the non-parole period (or minimum term) and additional term or fixed term. (b) The non-parole period also refers to the minimum term or fixed term. DUI — driving under the influence of intoxicating liquor or a drug DMD — driving in a manner dangerous GBH — grievous bodily harm 22 Impact of the Jurisic guidelines on sentencing practice

Section 52A(1)(a) — Dangerous driving occasioning death while driving under the influence of intoxicating liquor or of a drug

Figure 1 Length of full time custody (head sentences and non-parole periods) under s 52A(1)(a) of the Crimes Act 1900 (NSW) — pre and post Jurisic

30% pre post

25%

20%

15%

10%

5%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96 Head sentence (months)

35% pre post 30%

25%

20%

15%

10%

5%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96

Non-parole period (months)

An increase in the median term of both the head sentence and non-parole period was evident in this subsection. The median head sentence increased from 36 months pre Jurisic to 42 months post Jurisic. Similarly, the median non-parole period increased from 18 months to 24 months. Head sentences for the middle 50% range showed a slight narrowing from 30–60 months pre Jurisic to 36–60 months post Jurisic. While the middle 50% range for non-parole periods did not narrow, they clearly attracted higher average non-parole periods. As Figure 1 indicates there has been a shift to the higher end of the penalty ranges for both head sentences and non-parole periods.

Section 52A(1)(b) — Dangerous driving occasioning death while driving at a speed dangerous to another person or persons During the study period there was only one case under this subsection. The case was in the pre Jurisic period and it attracted a full time custodial sentence of 42 months, with a non- parole period of 18 months. Analysis & findings 23

Section 52A(1)(c) — Dangerous driving occasioning death while driving in a manner dangerous to another person or persons

Figure 2 Length of full time custody (head sentences and non-parole periods) under s 52A(1)(c) of the Crimes Act 1900 (NSW) — pre and post Jurisic

35% pre post 30%

25%

20%

15%

10%

5%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96 Head sentence (months)

50% pre post

40%

30%

20%

10%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96

Non-parole period (months)

While no change was noted in the median head sentence (both 36 months), the non-parole period showed an increase in the median term from 12 months pre Jurisic to 18 months post Jurisic. A distinct narrowing of the middle 50% range of both the head sentences and non-parole periods was evident in this subsection. For head sentences, the middle 50% range narrowed considerably from 16–48 months pre Jurisic to 24–42 months post Jurisic. The same pattern was repeated for non-parole periods from 12–34 months pre Jurisic to 9–24 months post Jurisic. Figure 2 shows the distribution of head sentences and non-parole periods for this subsection. 24 Impact of the Jurisic guidelines on sentencing practice

Section 52A(2) — Aggravated dangerous driving occasioning death

Figure 3 Length of full time custody (head sentences and non-parole periods) under s 52A(2) of the Crimes Act 1900 (NSW) — pre and post Jurisic

35% pre post 30%

25%

20%

15%

10%

5%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96 Head sentence (months)

35% pre post 30%

25%

20%

15%

10%

5%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96

Non-parole period (months)

This subsection witnessed the greatest increase in the median term of imprisonment for both the head sentence (from 48 months pre Jurisic to 60 months post Jurisic) and the non- parole period (24 months pre Jurisic to 36 months post Jurisic). Only a slight narrowing in the middle 50% range of head sentences (35–60 months pre Jurisic to 48–72 months post Jurisic) and a slight expansion in the same range for the non- parole period (12–30 months pre Jurisic to 30–48 months post Jurisic) were observed. However, there was a dramatic upward movement in the severity of sentence lengths for this offence: see Figure 3. Analysis & findings 25

Section 52A(3)(a) — Dangerous driving occasioning grievous bodily harm while driving under the influence of intoxicating liquor or of a drug

Figure 4 Length of full time custody (head sentences and non-parole periods) under s 52A(3)(a) of the Crimes Act 1900 (NSW) — pre and post Jurisic

50% pre post

40%

30%

20%

10%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96 Head sentence (months)

50% pre post

40%

30%

20%

10%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96

Non-parole period (months)

While this subsection had a much smaller number of cases in the pre Jurisic period (n=5) compared to the post Jurisic period (n=24), there was nevertheless an increase in the median head sentence from 18 months pre Jurisic to 24 months post Jurisic. The median non- parole period, however, remained stable at 12 months. The middle 50% range narrowed for both head sentences (from 12–36 months pre Jurisic to 24–30 months post Jurisic) and non-parole periods (from 7–18 months pre Jurisic to 9–16 months post Jurisic). Figure 4 demonstrates a clear upward movement in penalty lengths for both head sentences and non-parole periods.

Section 52A(3)(b) — Dangerous driving occasioning grievous bodily harm while driving at a speed dangerous to another person or persons No cases under this subsection were dealt with in the study period. 26 Impact of the Jurisic guidelines on sentencing practice

Section 52A(3)(c) — Dangerous driving occasioning grievous bodily harm while driving in a manner dangerous to another person or persons

Figure 5 Length of full time custody (head sentences and non-parole periods) under s 52A(3)(c) of the Crimes Act 1900 (NSW) — pre and post Jurisic

40% pre post 35%

30%

25%

20%

15%

10%

5%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96 Head sentence (months)

35% pre post 30%

25%

20%

15%

10%

5%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96

Non-parole period (months)

In this subsection a slight increase was observed in the median head sentence from 28 months pre Jurisic to 30 months post Jurisic. However, the median non-parole period fell from 18 months pre Jurisic to 12 months post Jurisic. Caution should be exercised when drawing any firm conclusions based on these figures because of the small number of cases of imprisonment in the pre Jurisic period (n=7). As already mentioned above, one explanation could be that there was a significant increase in the number of offenders sentenced to a full time custodial sentence in the post Jurisic period (28.0% pre Jurisic to 51.1% post Jurisic) and many of those would fall at the bottom end of the imprisonment range. The middle 50% range narrowed for both head sentences (from 15–36 months pre Jurisic to 24–40 months post Jurisic) and non-parole periods (from 4–27 months pre Jurisic to 6–20 months post Jurisic). Again, as Figure 5 demonstrates, there was a movement towards more severe head sentences under this subsection. Analysis & findings 27

Section 52A(4) — Aggravated dangerous driving occasioning grievous bodily harm

Figure 6 Length of full time custody (head sentences and non-parole periods) under s 52A(4) of the Crimes Act 1900 (NSW) — pre and post Jurisic

30% pre post

25%

20%

15%

10%

5%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96 Head sentence (months)

40% pre post 35%

30%

25%

20%

15%

10%

5%

0% 0–6 7–12 13–18 19–24 25–30 31–36 37–42 43–48 49–54 55–60 61–66 67–72 73–78 79–84 85–90 91–96

Non-parole period (months)

This was the only subsection that showed a decrease in the median head sentence, falling from 36 months pre Jurisic to 30 months in the post Jurisic period. It should be noted, however, that there was a substantial increase in the proportion of offenders sentenced to full time custody, increasing from 63.6% pre Jurisic to 81.1% post Jurisic. Again cases which might previously have attracted non-custodial sentences pre Jurisic might now appear at the bottom end of the imprisonment spectrum, thus accounting for a drop in the length of the median head sentence. Nevertheless, the median non-parole period rose from 13.5 months pre Jurisic to 15 months post Jurisic, indicating a slight increase in overall severity. There was no appreciable difference noted in the middle 50% range of head sentences (24–51 months pre Jurisic to 24–48 months post Jurisic). The middle 50% range for the non-parole period was the same in both periods (12–24 months). Figure 6 shows the distribution of head sentences and non-parole periods for this subsection. 28 Impact of the Jurisic guidelines on sentencing practice

4.3 Analysis of the Court of Criminal Appeal decisions In the six-year study period there was a total of 89 appeals relating to offences under s 52A. This figure translates into a first instance appeal rate for this offence of approximately one in five (18.4%). However, there was no significant difference in appeal rates between the pre (35 or 18.0%) and post (54 or 18.7%) Jurisic periods.78 These figures include all types of appeals: conviction, sentence severity and Crown appeals. The following section provides an analysis of CCA sentence appeals for the pre and post Jurisic periods. The analysis excluded conviction appeals, as the focus of the study was on the type and quantum of sentence. This eliminated eight of the original 89 cases, leaving 81 cases for analysis (31 pre Jurisic and 50 post Jurisic). The question this section seeks to answer is:

Question 6 What change, if any, was there in the pattern of appeals relating to sentences for s 52A cases in the pre and post Jurisic periods? Table 5 shows support for the statement by the Chief Justice in Jurisic that trial judges up to that time were sentencing too leniently for offences under s 52A. This can be seen by the number of Crown appeals against inadequacy of sentence in the pre Jurisic period. In that period over half (51.6%) of all sentence appeals were Crown appeals against the inadequacy of the first instance sentence, compared with 30.0% in the post Jurisic period. The majority of these Crown appeals were successful (81.3% pre Jurisic and 66.7% post Jurisic). On the other hand, the number of appeals against sentence severity showed a sharp increase, from 48.4% of sentence appeals in the pre Jurisic period to 70.0% in the post Jurisic period. While it is difficult to draw any firm conclusions from the small number of cases, it should be noted that only two cases (13.3%) were successful in the pre Jurisic period, while 13 cases (37.1%) were successful in the post Jurisic period. This would tend to indicate that pre Jurisic, offenders were not generally displeased with the severity of sentences imposed upon them. On the other hand, after Jurisic sentencing judges were handing down more severe sentences at first instance, hence the sharp rise in severity appeals.

Table 5 CCA appeals under s 52A of the Crimes Act 1900 (NSW) — pre and post Jurisic

Pre Post 12/10/95–11/10/98 12/10/98–11/10/01 N = 31 N = 50 n% n% Crown appeals 16 51.6 15 30.0 Successful outcome 13 81.3 10 66.7 Result of outcome — new sentence 13 100.0 10 100.0 Sentence severity appeals 15 48.4 35 70.0 Successful outcome 2 13.3 13 37.1 Result of outcome — new sentence 1 50.0 13 100.0 Result of outcome — remit for re-sentence 1 50.0 0 0.0

78 As mentioned earlier, successful conviction appeals were excluded from the study. However, in order to derive first instance appeal rates, these cases needed to be included. As such, these figures were calculated from a total of 483 cases (194 pre Jurisic and 289 post Jurisic). Analysis & findings 29

4.3.1 Crown appeals In the pre Jurisic period, there were 13 successful Crown appeals against sentence. Of these matters, four offenders received a penalty of full time custody at first instance;79 three were ordered to serve their term of imprisonment by way of home detention;80 two by way of periodic detention;81 and four by a community service order.82 Following the successful outcome of the Crown appeals, community service orders were eliminated as a penalty type and the number of offenders receiving a penalty of full time custody increased from four to nine. In the post Jurisic period, there were ten successful Crown appeals. Of these ten matters, only two offenders had received a penalty of full time custody at first instance.83 Three had received a term of imprisonment to be served by way of home detention84 and five were given periodic detention.85 Following the successful outcome of the Crown appeals, all but one matter86 resulted in the offender serving a sentence of full time custody. Some examples of the reasons for upholding Crown appeals included: ■ sentence length manifestly inadequate in light of the facts established by the evidence,87 or the objective seriousness of the offence warranted the imposition of a full time custodial sentence88 ■ combination of aggravating factors (high speed, heroin, behaviour after the offence and prior record) warranted an increase in sentence89 ■ need for general deterrence90 outweighing the fact the offender was youthful and of good character91 ■ objective seriousness of the offence, including the extent of the grievous bodily harm,92 multiple victims93 ■ worst case scenario94 ■ offender evidenced a continuing disregard for the law.95

79 R v Sellers (1997) 92 A Crim R 381; R v Tapfield (unreported, 30 July 1997, NSWCCA); R v Kalanj (unreported, 18 December 1997, NSWCCA); and R v Black (unreported, 23 July 1998, NSWCCA). 80 R v Smith (1997) 95 A Crim R 373; R v Thackray (unreported, 19 August 1998, NSWCCA); and R v Byrne (1998) 104 A Crim R 456. 81 R v Musumeci (unreported, 30 October 1997, NSWCCA); and R v Slattery (1996) 90 A Crim R 519. 82 R v Pellow (unreported, 1 August 1997, NSWCCA); R v Lemoto (unreported, 24 July 1998, NSWCCA); R v Savka (1996) 88 A Crim R 393; and R v Milsom (unreported, 10 December 1997, NSWCCA). 83 R v McDonald (unreported, 12 October 1998, NSWCCA); and R v McKinney [1999] NSWCCA 51. 84 R v Begbie [2001] NSWCCA 206; R v Jurisic (1998) 45 NSWLR 209; (1998) 101 A Crim R 259; (1998) 29 MVR 49; and R v Errington [1999] NSWCCA 18. 85 R v Douglas (unreported, 11 December 1998, NSWCCA); R v Howland [1999] NSWCCA 10; R v Khatter [2000] NSWCCA 32; R v Romanic [2000] NSWCCA 524; and R v King [2001] NSWCCA 18. 86 R v Begbie [2001] NSWCCA 206. This case was unusual in that at first instance the penalty handed down was 18 months imprisonment to be served by way of home detention. As a result of a successful Crown appeal the penalty was converted to one of periodic detention for a term of 2 years and 9 months. 87 R v Sellers (unreported, 4 April 1997, NSWCCA). 88 R v Slattery (1996) 90 A Crim R 519; R v Douglas (unreported, 11 December 1998, NSWCCA); R v Khatter [2000] NSWCCA 32; R v Howland [1999] NSWCCA 10. 89 R v Tapfield (unreported, 30 July 1997, NSWCCA). 90 R v Musumeci (unreported, 30 October 1997, NSWCCA); R v McKinney [1999] NSWCCA 51. 91 R v Smith (1997) 95 A Crim R 373; R v Pellow (unreported, 1 August 1997, NSWCCA). 92 R v Savka (1996) 88 A Crim R 393. 93 R v Romanic [2000] NSWCCA 524. 94 R v Black (unreported, 23 July 1998, NSWCCA). 95 R v McDonald (unreported, 12 October 1998, NSWCCA). 30 Impact of the Jurisic guidelines on sentencing practice

While the principle of double jeopardy is always a primary consideration in Crown appeals,96 some reasons for unsuccessful Crown appeals included: ■ the difference in the sentence imposed at first instance and the sentence the CCA would impose should they intervene was not great enough to warrant the intervention of the Court97 ■ error at first instance in sentencing to home detention, however, a delay occurred which resulted in the appeal coming on very shortly before the expiration of the offender’s minimum term98 ■ the absence of any aggravating features, but many mitigating factors and a momentary reckless error of judgment99 ■ sentence was within the sentencing range100 ■ sentence not so lenient as to warrant intervention by the CCA.101

4.3.2 Sentence severity appeals In the pre Jurisic period, there were two successful appeals against the severity of the sentence. In the first case, the non-parole period was reduced by half, from 24 months to 12 months, however, the head sentence remained unaltered at 60 months.102 In the second case, where the offender had received at first instance a fixed term of 15 months to be served by way of home detention, the CCA ordered the matter be remitted to the District Court for resentencing.103 Of the 13 cases that were successful in the post Jurisic period, seven resulted in a reduction in the head sentence and the non-parole period,104 three received a reduction in the non- parole period only,105 and three received another penalty type.106 In sentence severity appeals examples of factors that resulted in a reduction of first instance penalties include: ■ error at first instance in the apportionment of the minimum (non-parole period) and additional terms107 ■ bottom end of culpability108 ■ momentary inattention109

96 See Everett v The Queen (1994) 181 CLR 295. 97 R v Ngo (unreported, 15 November 1996, NSWCCA). 98 R v Menzies [1999] NSWCCA 222; leave to appeal was refused. 99 R v Tomson [1999] NSWCCA 308. 100 R v Simpson [1999] NSWCCA 367. 101 R v Dhanhoe [2000] NSWCCA 257. 102 R v Fuller (unreported, 4 March 1998, NSWCCA). 103 R v Whyte (unreported, 8 December 1997, NSWCCA). 104 R v Hill (unreported, 4 December 1998, NSWCCA); R v Mansour [1999] NSWCCA 180; R v Bailey [2001] NSWCCA 10; R v Sen [1999] NSWCCA 199; R v Tadman [2001] NSWCCA 225; R v Kilborn [2001] NSWCCA 116; and R v Vitasovic [2000] NSWCCA 232. 105 R v Frascella [2001] NSWCCA 137; R v Jaworowski [1999] NSWCCA 430; and R v Hanlon [2000] NSWCCA 55. 106 R v Katoa [2000] NSWCCA 223; R v Pyritz (unreported, 23 November 1998, NSWCCA); and R v Douglass [2001] NSWCCA 250. 107 R v Fuller (unreported, 4 March 1998, NSWCCA). 108 R v Kotoa [2000] NSWCCA 223. 109 R v Pyritz (unreported, 23 November 1998, NSWCCA). Analysis & findings 31

■ hardship on victim (wife became a quadriplegic)110 ■ special circumstances — restructure111 or reduction112 ■ strong subjective features113 ■ excessive sentencing at first instance114 ■ sentenced as if aggravating offence and abandonment of responsibility, but really mid way between that and momentary inattention.115

4.3.3 Exceptional cases The Chief Justice in Jurisic clearly stated that the guidelines for s 52A would not apply in every case. There will be exceptional cases in which the sentencing judge in weighing up the objective and subjective facts of the case will, in exercising his or her discretion, hand down a sentence that is outside the guidelines. Five Crown appeals from the pre and post Jurisic periods provide some examples of cases that could be regarded as exceptional in that the offenders received a non-custodial sentence at first instance. While two of the cases were in the pre Jurisic period, and therefore not of the exceptional type of case referred to in the first guideline, they nevertheless provide an insight into why a non-custodial sentence was imposed at first instance. Although four of the five cases involved the offence of dangerous driving occasioning death under s 52A(1)(c), none involved the aggravated offence under s 52A(2). The fifth case involved the offence of dangerous driving occasioning grievous bodily harm under s 52A(3)(a). In dismissing the Crown appeal in these cases against the inadequacy of the first instance sentence the CCA found that: ■ the facts of the case were of a kind rarely seen in the cases from which a general sentencing pattern could be discerned116 ■ on the facts presented at trial the sentence was lenient and at the bottom end of the sentencing range; while the sentence was lenient it was not outside the sentencing discretion available117 ■ although there was an error at first instance in sentencing to home detention, delay resulted in the appeal coming on very shortly before the expiration of the offender’s minimum term118 ■ the facts revealed a momentary reckless error of judgment.119

110 R v Douglass [2000] NSWCCA 250. 111 R v Jaworowski [1999] NSWCCA 430; R v Hanlon [2000] NSWCCA 55. 112 R v Bailey [2001] NSWCCA 10; R v Tadman [2001] NSWCCA 225; R v Kilborn [2001] NSWCCA 116. 113 R v Mansour [1999] NSWCCA 180; R v Katoa [2000] NSWCCA 223. 114 R v Hill (unreported, 4 December 1998, NSWCCA). 115 R v Vitasovic [2000] NSWCCA 232. 116 R v Marlin (unreported, 10 September 1997, NSWCCA). A pre Jurisic case in which the offender killed his daughter and friend. He was sentenced at first instance to 200 hours of community service. 117 R v Davies (unreported, 27 March 1998, NSWCCA). A pre Jurisic case in which the offender received a sentence of 36 months to be served by way of periodic detention. 118 R v Menzies [1999] NSWCCA 222. 119 R v Tomson [1999] NSWCCA 308. The offender, who killed his wife in the accident, received a recognisance for 36 months. Jurisic was distinguished. In R v Foster [2001] NSWCCA 215 the offender had killed his passenger and received a suspended sentence of imprisonment for 22 months. The offence was at the low end of culpability and not one which required a custodial penalty. 32 Impact of the Jurisic guidelines on sentencing practice

4.4 Changes in the prison population after Jurisic Figures from the Department of Corrective Services (see Table 6) indicate that after Jurisic there was a substantial rise in the number of inmates serving a term of full time custody for which their principal offence was related to driving causing death or bodily harm,120 or dangerous driving. Between 30 June 1998 and 30 June 1999 (covering almost nine months post Jurisic) there was a 40% increase from 73 inmates to 102 inmates. On 30 June 2000 the number of such inmates in full time custody rose to 119 and on 30 June 2001 the number reached 149. It should be noted that the figures are based on the number of inmates in full time custody at a given point in time, census night, and do not account for inmates who served a period of full time custody which falls short of the census time frame. Conversely, double counting may be a factor in the increase in the number of inmates because inmates serving a longer prison term may be counted on more than one occasion. Ultimately, however, the figures are a function of both the numbers of offenders being sentenced to imprisonment and the length of time to be served in custody, and they reveal a palpable increase in the severity of sentencing for these types of offences.

Table 6 Sentenced inmates in full time custody for driving offences on 30 June: 1997–2001

Most serious offence(a) 1997 1998 1999 2000 2001 Driving causing death 34 42 58 62 72 Driving causing bodily harm(b) 18 17 29 38 43 Other dangerous driving 14 14 15 19 34 Total dangerous driving 66 73 102 119 149

(a) Offence with the longest aggregate sentence in the imprisonment episode. (b) Bodily harm includes grievous bodily harm and actual bodily harm Source: Department of Corrective Services — April 2002 (unpublished data).

120 These figures use data from the departmental computerised inmate management system (OMS) and are based on the annual inmate census conducted on 30 June each year. They cannot be compared with the Commission figures because of the different time frames and the fact that the Department of Corrective Services combines grievous bodily harm and actual bodily harm which encompasses offences other than s 52A driving offences, for example, the Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(1)(a) and (b). 5 Conclusions

The guidelines promulgated in Jurisic were designed to provide guidance for trial judges when sentencing offenders for dangerous driving offences under s 52A of the Crimes Act 1900. It was envisaged that the direction provided by the guidelines (which retained judicial discretion in sentencing by allowing sentencing judges to depart from them in exceptional cases) would result in consistency in sentencing of offenders convicted of these offences. This was something that was not evident in sentencing patterns for offences under this section up to the time the guideline judgment was issued in October 1998. Based on the findings presented above, and bearing in mind the measures of consistency utilised in this study —severity of penalty type and quantum of penalty — only one conclusion can be reached. The guidelines have resulted in consistent results or outcomes in the sentencing of offenders convicted of dangerous driving offences under s 52A. In addition, after reading the various judgments in the course of this study it became apparent that since Jurisic consistency is also evident in the articulation of the purpose underlying the type and quantum of sentences handed down, and in the approach taken by trial judges in sentencing for these offences. The main findings of this study relating to the sentences handed down after the guideline became available can be summarised as: ■ sentences of full time custody increased for all offences committed under the various subsections of s 52A ■ in relation to the aggravated dangerous driving offences there was a significant increase in the proportion of offenders sentenced to a term of full time imprisonment for three years or longer (for s 52A(2)), or two years or longer (for s 52A(4)) ■ generally, there was a sharp upward movement in the length of full time custodial sentences, both in terms of the median head sentences and median non-parole periods ■ where this sharp upward movement did not occur, it is suggested that this may be explained by the increased use of short full time custodial sentences, where previously less severe dispositions would have been employed ■ there was a decrease in the proportion of Crown appeals against leniency of sentence and conversely an increase in the proportion of sentence severity appeals. In terms of severity and consistency of penalty type, proportionately more offenders (18.47%) were sentenced to a term of full time custody than in the period prior to the issuing of the guidelines (rising from 49.47% pre Jurisic to 67.94% post Jurisic). In line with the first guideline in Jurisic which stated that penalties other than full time custodial sentences would be exceptional, the study found that in the post Jurisic period there was a decline in the use of other forms of penalties, especially bonds/recognisances and community service orders. 34 Impact of the Jurisic guidelines on sentencing practice

In relation to the second guideline in Jurisic, where an offender pleaded guilty and was convicted of an aggravated offence under s 52A, it was found that in the post Jurisic period all offenders convicted of an offence under s 52A(2), aggravated dangerous driving causing death, received a term of full time custody for three years or longer. Prior to Jurisic 69.6% of offenders received an equivalent sentence. In the case of s 52A(4), aggravated dangerous driving causing grievous bodily harm, again there was a significant increase in the proportion of offenders being sentenced to a term of full time custody for two years or longer (from 50.0% pre Jurisic to 77.8% post Jurisic). In terms of severity and consistency measured by the length of full time imprisonment, overall there were no changes in the median term of head sentences, non-parole periods or the middle 50% range of prison sentences. This finding is understandable when one considers, first, that in the post Jurisic period proportionately more offenders were sentenced to a term of full time imprisonment, and second, the overall figures have been aggregated across all subsections of s 52A. However, while no changes in the length of full time custodial sentences were evident in the overall picture of s 52A, changes were apparent when the individual subsections were examined. The greatest increase in the median term of full time imprisonment was in relation to the aggravated offence of dangerous driving causing death under s 52A(2). A “sharp upward movement” was clearly evident in the increase of the median head sentence from four years pre Jurisic to five years post Jurisic. Similarly, the non-parole period increased from two years pre Jurisic to three years post Jurisic. For penalties imposed under all other subsections there was an upward movement in the median head term, the non-parole period or both. The impact of the Jurisic guidelines was also evident in the decisions of the CCA. While there was no difference in the proportion of first instance dangerous driving cases going to appeal, there was a dramatic change in the pattern of appeals. In the pre Jurisic period there were slightly more Crown appeals against the leniency of sentence (51.6%), compared to appeals against severity of sentence (48.4%). Conversely, in the post Jurisic period the majority of appeals were against severity of sentence (70.0%), rather than leniency of sentence (30.0%). A change was also evident in the trend of appeal outcomes in the study period. In the pre Jurisic period 81.3% of Crown appeals were successful, while in the post Jurisic period the success rate had fallen to 66.7%. On the other hand, the rate of successful sentence severity appeals increased from 13.3% pre Jurisic to 37.1% post Jurisic. In conclusion, the impact of the Jurisic guidelines is clearly demonstrated by the increased severity of sentences and also by the greater consistency of result in the penalties imposed on offenders convicted of dangerous driving and aggravated dangerous driving offences under s 52A of the Crimes Act 1900 (NSW). AppendixA Crimes Act 1900 (NSW)

52A Dangerous driving: substantive matters (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 the death of another person and the driver was, at the time of the 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. 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 driving 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: (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. 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 is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years.

(5) When vehicle is involved in impact — generally. For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: 36 Impact of the Jurisic guidelines on sentencing practice

(a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (c) an impact between the person and the vehicle, (d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vehicle, (f) an impact with anything that is in motion through falling from the vehicle.

(6) When vehicle is involved in causing other impacts. For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if: (a) the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and (b) the prosecution proves that the vehicle caused the impact.

(7) Circumstances of aggravation. In this section, “circumstances of aggravation” means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused’s blood, or (b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or (c) the accused was driving the vehicle to escape pursuit by a police officer, or (d) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination).

(8) Defences. It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vehicle was driven, or (c) to the manner in which the vehicle was driven.

(9) Definitions. In this section: “drug” has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999. “object” includes an animal, building, structure, earthwork, embankment, gutter, stormwater channel, drain, bridge, culvert, median strip, post or tree. Appendix A 37

“prescribed concentration of alcohol” means a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood. “road” means: (a) a road or road related area within the meaning of the Road Transport (General) Act 1999 (other than a road or road related area that is the subject of a declaration made under section 9 (1) (b) of that Act relating to all of the provisions of that Act), or (b) any other place. “vehicle” means: (a) any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or (b) a horse-drawn vehicle, whether or not it is adapted for road use, but does not mean a vehicle used on a railway or tramway.

52AA Dangerous driving: procedural matters (1) Presumption as to intoxication. For the purposes of section 52A, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm.

(2) Evidence of intoxication. For the purposes of section 52A, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm occurring at a place that is not a road or road related area within the meaning of the Road Transport (General) Act 1999 (other than a road or road related area that is the subject of a declaration made under section 9 (1) (b) of that Act relating to all of the provisions of that Act) as determined by a blood analysis carried out in accordance with Division 4 of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999.

(3) Time of intoxication. A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm: (a) if the blood sample that was analysed was taken within 2 hours after the impact, and (b) unless the accused proves that the concentration of alcohol in the accused’s blood at the time of the impact was less than the prescribed concentration of alcohol.

(4) Alternative verdicts. If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 53 or 54 the jury is satisfied that the person is guilty of an offence under section 52A, it may find the accused guilty of the offence under section 52A, and the accused is liable to punishment accordingly. 38 Impact of the Jurisic guidelines on sentencing practice

(5) Question of aggravation. If on the trial of a person for an offence under section 52A (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52A (1) or (3), it may find that the accused is guilty of the offence under section 52A (1) or (3), and the accused is liable to punishment accordingly.

(6) Double jeopardy. This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under section 52A cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52A on the same, or substantially the same, facts.

(7) Definitions. In this section: “prescribed concentration of alcohol” means a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood. AppendixB Table of CCA cases

Appendix B key CSO community service order HD home detention DMD driving in a manner dangerous npp non-parole period DUI driving under the influence PCA prescribed concentration of alcohol GBH grievous bodily harm PD periodic detention

Table 7 Dangerous driving causing death — Appeals against severity of sentence

Name CCA date Offence Aggravating Appeal Trial Outcome under feature type sentence of appeal Crimes Act 1900

Pre Jurisic decisions Gore 27 Nov 1996 death DUI — drugs sentence min 4 yrs dismissed s 52A(1)(a) (heroin), add 2 yrs unlicensed driver Masella 14 May 1997 death DUI — drugs sentence min 3 yr dismissed s 52A(1)(a) add 1 yr Fuller 4 Mar 1998 death DUI — alcohol sentence min 3 yrs dismissed s 52A(1)(a) add 2 yrs Romanov 26 Jun 1998 death DUI — alcohol, sentence min 18 mths dismissed s 52A(1)(a) speed add 18 mths disqual 3 yrs Meehan 8 Apr 1997 death DMD — alcohol, sentence min 3 yrs dismissed s 52A(1)(c) vehicle add 1 yr unroadworthy disqual 3 yrs Sluka 28 Jul 1997 death (x 4) DMD — drugs, sentence min 3 yrs 6 mths dismissed s 52A(1)(c) speed add 2 yrs 6 mths Pattenden 1 Oct 1997 death DMD — drugs, sentence min 2 yrs dismissed s 52A(1)(c) alcohol add 3 yrs disqual 3 yrs Williams 17 Dec 1996 aggravated PCA sentence min 2 yrs 3 mths dismissed death add 2 yrs 9 mths s 52A(2) disqual 5 yrs Ingram 26 Aug 1997 aggravated PCA sentence min 3 yrs 6 mths death add 2 yrs 6 mths dismissed s 52A(2) Winter 9 Oct 1998 aggravated PCA sentence min 3 yrs 3 mths dismissed death add 2 yrs 3 mths s 52A(2) disqual 3 yrs 3 mths

Post Jurisic decisions Comber 11 Nov 1998 death DUI — heroin sentence min 1 yr 10 mths dismissed s 52A(1)(a) add 1 yr 8 mths disqual 5 yrs Wells 4 Aug 1999 death DUI — drugs sentence min 4 yrs dismissed s 52A(1)(a) add 2 yrs 40 Impact of the Jurisic guidelines on sentencing practice

Table 7 — continued

Name CCA date Offence Aggravating Appeal Trial Outcome under feature type sentence of appeal Crimes Act 1900 Everett 21 Feb 2000 death DUI — drugs sentence min 2 yrs dismissed s 52A(1)(a) add 2 yrs Hemsworth 21 Mar 2001 death DUI — drugs sentence min 3 yrs dismissed s 52A(1)(a) add 2 yrs Hill 4 Dec 1998 death DMD — speed, sentence min 3 yrs allowed s 52A(1)(c) alcohol, disqual add 3 yrs min 2 yrs driver add 2 yrs 6 mths disqual 4 yrs Mansour 25 Jun 1999 death DMD sentence min 2 yrs allowed s 52A(1)(c) add 2 yrs min 1 yr disqual 2 yrs add 1yr Davies 4 April 2000 death DMD — fail conviction min 18 mths dismissed s 52A(1)(c) stop red light, & sentence add 18 mths speed disqual 2 yrs Katoa 2 Jun 2000 death DMD sentence min 8 mths allowed s 52A(1)(c) add 10 mths remaining 7 disqual 3 yrs mths of min term to be served in PD disqual 3 yrs Kinny 5 Jul 2000 death DMD — alcohol, sentence min 4 yrs 8 mths dismissed s 52A(1)(c) drugs, speed add 18 mths Bailey 14 Feb 2001 death DMD conviction min 3 yrs sentence s 52A(1)(c) & sentence add 1 yr allowed min 2 yrs add 1 yr Frascella 6 Apr 2001 death DMD — speed sentence head 4 yrs allowed s 52A(1)(c) npp 2 yrs head 3 yrs 6 mths disqual 2 yrs npp 18 mths disqual 2 yrs Oddie 12 Dec 2001 death DMD — speed sentence head 2 yrs allowed s 52A(1)(c) npp 12 mths min 8 mths disqual 2 yrs add 8 mths Sen 11 Jun 1999 death, PCA (high range), sentence min 6 yrs 9 mths allowed aggravated speed add 2 yrs 3 mths min 5 yrs 3 mths (x 2) s 52A(2) add 1 yr 9 mths Reeves 2 Jul 1999 death, PCA — alcohol sentence min 2 yrs 6 mths dismissed aggravated & medication add 2 yrs 6 mths s 52A(2) disqual 3 yrs Jaworowski 29 Oct 1999 death, PCA (high range), sentence min 6 yrs allowed aggravated speed, disqual add 2 yrs min 5 yrs s 52A(2) driver add 3 yrs Hanlon 16 Feb 2000 death, PCA (high range), sentence min 3 yrs 9 mths allowed aggravated speed add 15 mths min 3 yrs s 52A(2) add 2 yrs Hawkins 11 Aug 2000 death, PCA — speed sentence min 4 yrs dismissed aggravated add 12 mths s 52A(2) disqual 4 yrs Woodward 23 Mar 2001 death, PCA sentence min 4 yrs 2 mths dismissed aggravated add 2 yrs 10 mths s 52A(2) disqual 5 yrs Tadman 29 May 2001 death, drugs sentence min 4 yrs allowed aggravated add 3 yrs add 2 yr 7 mths s 52A(2) min 2 yrs 8 mths disqual 5 yrs Appendix B 41

Table 8 Dangerous driving causing death — Crown appeals

Name CCA date Offence Aggravating Appeal Trial Outcome under feature type sentence of appeal Crimes Act 1900

Pre Jurisic decisions Sellers 4 Apr 1997 death DUI — alcohol Crown min 1 yr allowed s 52A(1)(a) add 2 yrs min 3 yrs disqual 5 yrs add 2 yrs Tapfield 30 Jul 1997 death DUI — disqual Crown min 1 yr allowed s 52A(1)(a) driver, failure to add 9 mths min 1 yr 9 mths stop (hit and run) add 1 yr 3 mths disqual 3 yrs Ngo 15 Nov 1996 death DMD — speed, Crown min 1 yr dismissed s 52A(1)(c) failure to stop add 4 mths disqual 5 yrs Pellow 1 Aug 1997 death DMD — speed, Crown 500 hrs CSO allowed s 52A(1)(c) sleep disqual 5 yrs 12 mths PD Smith 27 Aug 1997 death DMD — drugs Crown min 6 mths allowed s 52A(1)(c) add 2 mths min 1 yr HD add 4mths HD Marlin 10 Sep 1997 death (x 2) DMD — alcohol Crown 200 hrs CSO dismissed s 52A(1)(c) disqual 12 mths Musumeci 30 Oct 1997 death DMD — speed, Crown 15 mths PD allowed s 52A(1)(c) disobey traffic disqual 3 yrs min 8 mths signal add 7 mths Lemoto 24 Jul 1998 death (x 2) DMD — speed, Crown 500 hrs CSO allowed s 52A(1)(c) vehicle with disqual 3 yrs 2 yrs 6 mths PD defective lights Thackray 19 Aug 1998 death DMD — alcohol Crown fixed 18 mths HD allowed s 52A(1)(c) disqual 3 yrs min 3 yrs add 1 yr Slattery 19 Dec 1996 death, PCA — speed Crown 3 yrs PD allowed aggravated disqual 5 yrs min 1 yr (x 2) s 52A(2) add 2 yrs Kalanj 18 Dec 1997 death, PCA Crown min 1 yr 6 mths allowed aggravated add 1 yr 6 mths min 2 yrs 6 mths s 52A(2) disqual 3 yrs add 2 yrs 6 mths Black 23 Jul 1998 death, PCA Crown min 2 yrs 3 mths allowed aggravated add 2 yrs 3 mths min 3 yrs s 52A(2) disqual 3 yrs add 2 yrs disqual 3 yrs Byrne 5 Aug 1998 death, PCA Crown min 12 mths allowed aggravated add 4 mths min 9 mths s 52A(2) HD add 2 yrs disqual 3 yrs McDonald 12 Oct 1998 death, PCA Crown min 2 yrs allowed aggravated add 3 yrs min 3 yrs s 52A(2) disqual 5 yrs add 3 yrs

Post Jurisic decisions Begbie 3 May 2001 death DUI Crown head 18 mths allowed s 52A(1)(a) npp 6 mths 2 yrs, 9 mths HD PD disqual 2 yrs Dunlop 16 Nov 2001 death DUI Crown head 3 yrs allowed s 52A(1)(a) npp 12 mths head 3 yrs PD npp 2 yrs disqual 3 yrs PD disqual 3 yrs Douglas 11 Dec 1998 death (x 2) DMD — drugs Crown 1 yr PD allowed s 52A(1)(c) disqual 1 yr min 18 mths add 18 mths full time custody 42 Impact of the Jurisic guidelines on sentencing practice

Table 8 — continued

Name CCA date Offence Aggravating Appeal Trial Outcome under feature type sentence of appeal Crimes Act 1900 Howland 24 Feb 1999 death DMD Crown fixed 18 mths PD allowed s 52A(1)(c) disqual 3 yrs min 9 mths add 9 mths full time custody Menzies 2 Aug 1999 death DMD Crown min 12 mths dismissed s 52A(1)(c) add 6 mths HD disqual 2 yrs Tomson 11 Aug 1999 death DMD — reckless Crown recog 3 yrs dismissed s 52A (1)(c) error of judgment disqual 6 mths Khatter 29 Feb 2000 death DMD — high Crown fixed 2 yrs PD allowed s 52A(1)(c) range PCA fixed 3 mths full time custody Dhanhoa 18 Apr 2000 death DMD — alcohol, Crown min 12 mths dismissed s 52A(1)(c) speed add 2 yrs disqual driver disqual 2 yrs Foster 28 May 2001 death DMD Crown 22 mths dismissed s 52A(1)(c) sentence suspended disqual 22 mths McKinney 10 Mar 1999 aggravated PCA Crown fixed 3 yrs PD allowed death disqual 3 yrs min 18 mths s 52A(2) add 18 mths full time custody Simpson 10 Sep 1999 aggravated PCA, speed Crown min 3 yrs 6 mths dismissed death add 18 mths s 52A(2)

Table 9 Dangerous driving occasioning GBH — Appeals against severity of sentence

Name CCA date Offence Aggravating Appeal Trial Outcome under feature type sentence of appeal Crimes Act 1900 Pre Jurisic decisions Falcone 4 Sep 1996 GBH DUI sentence min 12 mths dismissed s 52A(3)(a) add 6 mths disqual 3 yrs Masella† 14 May 1997 GBH DUI — drugs sentence fixed 2 yrs dismissed s 52A(3)(a) Pine 4 Mar 1998 GBH DUI — alcohol sentence min 2 yrs dismissed s 52A(3)(a) add 1 yr 6 mths disqual 3 yrs Pattenden† 1 Oct 1997 GBH DMD — drugs, sentence fixed 2 yrs dismissed s 52A(3)(c) alcohol disqual 3 yrs Smith 4 Mar 1998 GBH DMD sentence min 2 yrs 3 mths dismissed s 52A(3)(c) add 9 mths disqual 3 yrs Whyte 8 Dec 1997 GBH (x 3) PCA sentence min 1 yr remitted to s 52A(4) add 4 mths consider HD Debnam 2 Mar 1998 GBH PCA sentence min 3 yrs dismissed s 52A(4) add 1 yr disqual 3 yrs Appendix B 43

Table 9 — continued

Name CCA date Offence Aggravating Appeal Trial Outcome under feature type sentence of appeal Crimes Act 1900 Post Jurisic decisions Comber† 11 Nov 1998 GBH DUI — drugs sentence fixed 12 mths dismissed s 52A(3)(a) (heroin) disqual 5yrs Scott 6 Aug 1999 GBH DUI — alcohol sentence min 2 yrs dismissed s 52A(3)(a) add 2 yrs disqual 3 yrs McGuiness 17 Sep 1999 GBH DUI — alcohol sentence min 18 mths dismissed s 52A(3)(a) add 6 mths Gleeson 20 Mar 2000 GBH DUI — speed sentence min 18 mths dismissed s 52A(3)(a) add 6 mths disqual 3 yrs Ardron 11 Oct 2000 GBH DUI sentence min 16 mths dismissed s 52A(3)(a) add 16 mths disqual 2 yrs Kilborn 30 Mar 2001 GBH DUI — speed, sentence head 3 yrs allowed s 52A(3)(a) alcohol npp 2 yrs head 2 yrs 6 mths npp 15 mths Park 13 Aug 2001 GBH (x 2) DUI — alcohol sentence head 2 yrs dismissed s 52A(3)(a) npp 12 mths (ea) Pyritz 23 Nov 1998 GBH DMD — distracted sentence fixed 2 yrs PD allowed s 52A(3)(c) disqual 1 yr fine $1,000 disqual 1 yr Austin 24 May 1999 GBH (x 2) DMD — speed sentence min 3 yrs dismissed s 52A(3)(c) add 1 yr disqual 6 yrs Beckett 13 Oct 2000 GBH DMD — inattention sentence min 12 mths dismissed s 52A(3)(c) add 12 mths disqual 3 yrs Bicheno 9 Jun 1999 GBH (x 2) PCA sentence min 2 yrs dismissed s 52A(4) add 2 yrs disqual 3 yrs Reeves† 2 Jul 1999 GBH (x 2) DUI — medication sentence fixed 18 mths (ea) dismissed s 52A(4) disqual 3 yrs McAskill 9 Aug 2000 aggravated PCA sentence min 3 yrs dismissed GBH add 1 yr s 52A(4) disqual 4 yrs Quarta 4 Oct 2000 aggravated unlicensed driver, sentence min 3 yrs dismissed GBH police chase, add 2 yrs s 52A(4) speed disqual 5 yrs Khan 27 Oct 2000 aggravated PCA, speed sentence head 4 yrs dismissed GBH npp 3 yrs 4 mths, s 52A(4) 15 days Turner 27 Oct 2000 aggravated PCA, speed sentence head 3 yrs dismissed GBH npp 2 yrs, 3 mths s 52A(4) Pates 6 Apr 2001 aggravated police pursuit sentence head 4 yrs 6 mths dismissed GBH npp 18 mths s 52A(4) disqual 3 yrs Douglass 23 May 2001 aggravated PCA sentence head 2 yrs allowed GBH npp 6 mths 21 mths s 52A(4) disqual 2 yrs suspended Kaliti 29 June 2001 aggravated PCA sentence head 5 yrs dismissed GBH npp 3 yrs 9 mths s 52A(4) disqual 4 yrs † Pattenden, Masella, Comber and Reeves, sentence concurrent with sentence for causing death: see Table 7. 44 Impact of the Jurisic guidelines on sentencing practice

Table 10 Dangerous driving occasioning GBH — Crown appeals

Name CCA date Offence Aggravating Appeal Trial Outcome under feature type sentence of appeal Crimes Act 1900

Pre Jurisic decisions Davies 27 Mar 1998 GBH DUI — alcohol Crown 3 yrs PD dismissed s 52A(3)(a) Pellow* 1 Aug 1997 GBH DMD — speed, Crown 500 hrs CSO allowed s 52A(3)(c) sleep 12 mths PD disqual 5 yrs Savka 26 Aug 1996 GBH (x 2) PCA Crown 300 hrs CSO allowed s 52A(4) min 1 yr 6 mths add 1 yr 6 mths disqual 2 yrs Milsom 10 Dec 1997 GBH (x 2) PCA Crown 400 hrs CSO allowed s 52A(4) 30 mths PD disqual 3 yrs

Post Jurisic decisions Jurisic 12 Oct 1998 GBH DUI — drugs Crown 18 mths HD allowed s 52A(3)(a) disqual 12 mths min 1 yr add 1yr Romanic 28 Nov 2000 GBH DUI — alcohol Crown head 22 mths PD allowed s 52A(3)(a) npp 18 mths head 12 mths npp 9 mths full time custody disqual 18 mths Vitasovic 23 Oct 2000 GBH DMD — speed Crown min 1 yr 11 mths allowed s 52A(3)(c) add 8 mths min 12 mths add 12 mths disqual 32 yrs Errington 3 Mar 1999 GBH, PCA, speed Crown fixed 18 mths HD min 1 yr aggravated add 1 yr 6 mths s 52A(4) disqual 5 yrs King 8 Feb 2001 GBH, PCA Crown fixed 24 mths PD allowed aggravated head 2 yrs s 52A(4) npp 12 mths disqual 3 yrs * Pellow, sentence concurrent with the sentence for causing death: see Table 8. Selected bibliography

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Hansard The Hon C E Martin, Attorney General, New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 26 September 1951. The Hon C E Martin, Attorney General, New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 3 October 1951. The Hon J P Hannaford, Attorney General, Minister for Justice and Vice President of the Executive Council, Second Reading Speech, Crimes (Dangerous Driving Offences) Amendment Bill; Traffic (Negligent Driving Offences) Amendment Bill, New South Wales Parliamentary Debates (Hansard), Legislative Council, 27 October 1994. Other research publications Research monographs 1 The use of custodial sentences and alternatives to custody by NSW magistrates, 1990 2 Community service orders: Views of organisers in NSW, 1991 3 Community service orders and periodic detention as sentencing options: A survey of judicial officers in New South Wales, 1991 4 Sentencing juvenile offenders and the Sentencing Act 1989 (NSW): The impact of legislative and administrative changes in the Children’s Court 1982-1990, 1991 5 A critical review of periodic detention in New South Wales, 1992 6 Sentencing drug offenders. Analysis of sentences imposed in the higher courts of NSW: 25 September 1989 to 31 December 1991, 1992 7 “Special Circumstances” under the Sentencing Act 1989 (NSW), 1993 8 Alcohol as a sentencing factor: A survey of attitudes of judicial officers, 1994 9 Sentence indication hearings pilot scheme, 1994 10 Sentenced homicides in NSW 1990–1993, 1995 11 The evidence of children, 1995 12 Judicial views about pre-sentence reports, 1995 13 The Sentencing Act 1989 and its effect on the size of the prison population, 1996 14 Magistrates’ attitudes to drink-driving, drug-driving, and speeding, 1997 15 Child sexual assault, 1997 16 Sentencing disparity and the gender of juvenile offenders 1997 17 Sentencing disparity and the ethnicity of juvenile offenders 1998 18 Periodic detention revisited, 1998 19 Sentencing drug offenders: Analysis of sentences imposed in the higher courts of New South Wales, 1 January 1993–31 December 1997, 1999 20 Apprehended violence orders: A survey of magistrates, 1999

Sentencing Trends 1 The Children’s Court, March 1991 2 The impact of truth in sentencing: Part 1 — The higher courts, March 1992 3 The impact of truth in sentencing: Part 2 — The Local Courts, June 1992 4 Sentencing in the Court of Criminal Appeal, February 1993 5 Common offences in the Local Court, March 1994 6 Common offences in the higher courts, July 1994 48 Impact of the Jurisic guidelines on sentencing practice

7 Sentencing homicide: The effect of legislative changes on the penalty for murder, June 1994 8 From murder to manslaughter: Partial defences in New South Wales — 1900 to 1993, December 1994 9 Common offences in the Children’s Court, May 1995 10 Sentencing drink driver offenders, June 1995 11 “Sentenced to the Rising of the Court”, January 1996 12 The use of recognizances, May 1996 13 Sentencing deception offenders Part 1 — Local Court, June 1996 14 Sentencing deception offenders Part 2 — higher courts, October 1996 15 Driving causing death: Section 52A of the Crimes Act 1900, May 1997 16 An overview of sentence and conviction appeals in the NSW Court of Criminal Appeal, March 1998 17 Kidnapping, July 1998 18 Common offences in the higher courts 1990–1997, August 1998 19 Sentencing offenders in the Local Courts: Effects of the Criminal Procedure (Indictable Offences) Act 1995, February 2000 20 Sentencing female offenders in NSW, May 2000 21 Protective custody and hardship in prison, February 2001 22 Conviction and sentence appeals in the New South Wales Court of Criminal Appeal 1996–2000, February 2002