R v Whyte

Case [2002] NSWCCA 343


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:     REGINA v WHYTE [2002]  NSWCCA 343

FILE NUMBER(S):
60056/02

HEARING DATE(S):    15 April  2002

JUDGMENT DATE:      20/08/2002

PARTIES:
Regina  (Appellant)
Dale Shane Whyte  (Respondent)

JUDGMENT OF:        Spigelman CJ Mason P Barr J Bell J McClellan J 

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     01/31/0157

LOWER COURT JUDICIAL OFFICER:   Price DCJ

COUNSEL:
Crown:  G E Smith / E Wilkins
Attorney General:  R Cogswell SC /
  M Buscombe / B Baker
Senior Public Defender:  A Haesler
Respondent:  F P Thraves

SOLICITORS:
Crown: S E O'Connor
Respondent:  Halliday, Hook, Noonan & Co

CATCHWORDS:
CRIMINAL LAW - Sentencing - Guideline judgments - Dangerous driving occasioning death or grievous bodily harm - Crimes Act 1900, s52A.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002
Crimes Act 1900
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Legislation Amendment Act 2001
Criminal Procedure Act 1986
Criminal Procedure Amendment (Sentencing Guidelines) Act 1998
Customs Act 1901 (Cth)

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60056/02

SPIGELMAN CJ
MASON P
BARR J
BELL J
McCLELLAN J

Tuesday 20 August 2002

REGINA  v  Dale Shane WHYTE

FACTS

Following his plea of guilty to one charge of aggravated dangerous driving occasioning grievous bodily harm Dale Shane Whyte was sentenced to imprisonment for two years and three months with a non-parole period of twelve months.  The Crown appealed against the sentence imposed.

HELD

Per Spigelman CJ, Mason P, Barr, Bell and McClellan JJ agreeing (with additional observations by Mason P and McClellan J):

AWong v The Queen (2001) 76 ALJR 79 does not require this Court to overrule the guideline judgments in R v Jurisic (1998) 45 NSWLR 209 and R v Henry (1999) 46 NSWLR 346.

BSince the High Court judgment in Wong, a new statutory power has been conferred on the Court.

CBy force of ss21A(4), 42A and 37A of the Crimes (Sentencing Procedure) Act 1999, sentencing judges are obliged to “take into account” a guideline judgment given by this Court.

DGuideline judgments should be expressed so as not to impermissibly confine the exercise of the sentencing discretion.  Guideline judgments are to be taken into account as a “check” or “sounding board” or “guide”, but not as a “rule” or “presumption”.

EThere is no incompatibility between the Court issuing guideline judgments and its role as a repository of Commonwealth judicial power.  Kable v Director of Public Prosecutions (1996) 189 CLR 51 discussed.

FNumerical guidelines have a role to play in achieving equality of justice where, as a matter of practical reality, there is tension between the principle of individualised justice and the principle of consistency.

GIt is appropriate to exercise the power under s37A and reformulate the Jurisic guideline.  The numerical guideline has been significant in ensuring the adequacy and consistency of sentences.

A Typical Case

A frequently recurring case of an offence under s52A has the following characteristics.

(i)…

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AGLC
R v Whyte [2002] NSWCCA 343
Case
[2002] NSWCCA 343
Decision Date

CaseChat Overview and Summary

The case of R v Whyte involved the defendant, Whyte, who was convicted of dangerous driving occasioning death. The matter was brought before the court for sentencing, and the key issue at hand was the interpretation and application of guideline judgments as provided for in the Crimes Act 1900, particularly section 52A. The court was required to determine whether the guideline judgments issued by the court under the 1998 Act, and subsequently amended by the 1999 and 2001 Acts, were mandatory or discretionary, and whether they contained quantitative elements.

The court examined the legislative history and the language used in the Acts to ascertain the legislative intent. The court found that the Parliament's intention was to refer to the kind of guideline judgment issued by the court in Jurisic, which included both qualitative and quantitative guidelines. The court also noted that the 2001 Act was enacted to clarify the court's jurisdiction and power to issue guideline judgments, following the High Court's decision in Wong. The court concluded that the guideline judgments should be interpreted to include both qualitative and quantitative elements and that the court had the discretion to issue such judgments, even on its own motion.

The court issued a guideline judgment, taking into account the principles set out in the Acts, and considered the appropriate sentence for the defendant. The court found that the defendant's actions were particularly egregious, and imposed a sentence that reflected the seriousness of the offence. The court emphasised the importance of sentencing guidelines in ensuring consistency and fairness in the criminal justice system.

In conclusion, the court held that guideline judgments issued by the court under the Crimes Act 1900, including those amended by the 1999 and 2001 Acts, are not limited to qualitative guidelines and may include quantitative elements. The court has the discretion to issue such judgments, even on its own motion, and the guidelines should be taken into account when sentencing offenders. The court imposed a sentence on the defendant that reflected the seriousness of the offence and the principles set out in the Acts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPIGELMAN CJ (dissent)
The definition of a “guideline judgment” in the 1998 Act was:“Guideline judgment means a judgment containing guidelines to be taken into account by courts sentencing offenders.” The 1998 Act did not, however, expressly incorporate an obligation upon any court to take into account a guideline judgment. That, it appears, was presumed to flow from the terms of any such a judgment given by the court in the exercise of an inherent, implied or other statutory power. As Gleeson CJ observed in Wong at [5]:“The expressions ‘guidelines’ and ‘guideline judgments’ have no precise connotation.”However, the sense in which the Parliament used these words in the 1998 Act is apparent from the circumstances in which it was enacted. The timing of the 1998 Act, and the Second Reading Speech (see New South Wales, Parliamentary Debates, Legislative Assembly, 28 October 1998, 9190-9191) make it clear that the Parliament intended to refer to the kind of guideline judgment issued by this Court in Jurisic. There is, in my opinion, no proper basis on which the word “guideline” or “guidelines” in this statutory scheme can be read down to exclude guidelines which contain a quantitative element. The 1999 Act was still directed to applications by the Attorney General (s37). The Act manifested no intention to alter the concept of ”guideline” from the 1998 Act. Section 36 of the 1999 Act amended the definition of guideline judgment to read:“Guideline judgment means a judgment containing guidelines to be taken into account by courts sentencing offenders, being:(a) guidelines that apply generally, or(b) guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders).” A definition of guideline proceeding was introduced:“Guideline proceedings mean proceedings under s37 on an application for a guideline judgment referred to in that section.” More detailed provision was made in the 1999 Act for participation in guideline proceedings by the Senior Public Defender and the Director of Public Prosecutions. After the judgment of the High Court in Wong, the New South Wales Parliament passed the 2001 Act. The timing and content of the Act suggests that its purpose was to remove the doubt about this Court’s jurisdiction and power identified in the joint judgment. This is confirmed by the Second Reading Speech (see New South Wales, Parliamentary Debates, Legislative Assembly, 30 November 2001, 19300). The 1999 Act was amended in a number of pertinent respects. The s36 definition of a guideline judgment was amended by deleting the words “containing guidelines” and inserting in lieu thereof “that is expressed to contain guidelines”. Furthermore, the following additional sections were inserted into the 1999 Act:“37A(1) The court may give a guideline judgment on its own motion in any proceedings considered appropriate by the Court, and whether or not it is necessary for the purpose of determining the proceedings.(2) The Court is to give the Senior Public Defender, Director of Public Prosecutions and Attorney General an opportunity to appear as referred to in sections 38, 39 and 39A before giving a guideline judgment.37B A guideline judgment given in proceedings under section 37 or 37A may be reviewed, varied, or revoked in a subsequent guideline judgment of the Court, whether or not given under the same section.”

Ratio Decidendi

Legal Principle Established

Established by:

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