Do you have a question about criminal law offences?

IT IS FREE TO ASK
OR
SELECT Y0UR STATE
OR
SELECT Y0UR STATE

Criminal Law Blog NSW

Guideline judgments – causing death or grievous bodily harm

It is often difficult to understand how the Court will go about in deciding on an appropriate sentence in certain cases. Legislation isn’t always clear or specific in determining penalties.  The Court can sometimes deliver a guideline judgment that can be taken into account in future cases.

Sec 36 of the Crimes (Sentencing Procedure) Act 1999 defines guideline judgments as judgments setting out guidelines to be taken into account by Courts when handing down sentences. This will include general guidelines, or guidelines specific to particular courts, or classes of courts, or to particular offences or classes of offences. It may also be specific to particular penalties or classes of penalties, or to particular classes of offenders. Not to individual offenders.

Must the court follow a guideline judgment exactly in every case?

The Court has stated that a guideline judgment is not a binding precedent – the sentencing judge is not bound to follow the rules in every case. The guidelines are indicative and are useful to assist the judge as a statement of principle. It performs a limited role and ensures consistency in sentencing regarding similar offences. A guideline judgment serves as a “sounding board” or a “check”. It is not a “rule” or a “presumption”.

What are the guidelines for sentencing in dangerous driving causing death and dangerous driving causing grievous bodily harm?

Before you can decide whether your case is a typical case that deserves a typical sentence, you must be able to measure the case against certain guidelines.

What constitutes a typical case/guideline?

The Court set out the following as a typical case of dangerous driving causing death or dangerous driving causing grievous bodily harm.

  • The offender is young.
  • The offender is of good character with no, or limited prior convictions.
  • The victim is a stranger.
  • No or limited injury to the driver, or the driver’s passengers.
  • Death or permanent injury to a single person.
  • The offender has genuine remorse.
  • The offender pleads guilty.

These factors will be used in future cases to determine if the case is similar, or more, or less, serious than the typical dangerous driving causing death or grievous bodily harm case. Sentencing can be measured against these guidelines.

What are the guidelines regarding a prison sentence?

A full-time prison sentence will usually be appropriate. It might not be appropriate if it is a case where the offender just had a moment of misjudgement, or a moment of not paying attention. In such cases the offender will have a low level of moral culpability and full time imprisonment might not be appropriate.

How long should the prison sentence be?

In a typical case a term of full time imprisonment of more than 3 years (in case of death) and more than 2 years (in case of grievous bodily harm) would be appropriate if the moral culpability of the offender is high. The term of full time imprisonment includes non-parole and parole periods.

What would constitute aggravating circumstances?

When will the case be more serious than the typical case? The court listed the following as factors that could make it more serious than a typical case:

  • If the injuries are more severe or wide spread
  • The number of people put at risk.
  • The speed at which the driver was driving is excessive, compared to the typical speed.
  • The degree of intoxication or of substance abuse.
  • Aggressive or unpredictable driving.
  • Competitive driving or showing off.
  • How long was the others exposed to the risk - length of the journey
  • The driver ignored warnings.
  • Evading the police
  • Degree of sleep deprivation
  • Failing to stop.

The Court will consider all these factors and weigh them up against the guidelines for a typical case to decide whether there are aggravating circumstances present that justifies a more serious penalty.

If the court finds that aggravating circumstances are indeed present the penalty will be increased appropriately.

This summary of the guidelines relating to sentencing in a case of dangerous driving causing death, or dangerous driving causing grievous bodily harm, might assist you when faced with a conviction on either of these offences. You are at risk of a prison sentence if convicted – get legal advice as soon as possible.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

Ask a Question - It Is Free