As part of our work in serious traffic matters, ED Legal closely follows developments in sentencing law that may affect people charged with dangerous driving offences.
The NSW Court of Criminal Appeal has significantly changed the approach to sentencing dangerous driving offences under section 52A of the Crimes Act 1900 (NSW).
In Cripps v R (s 52A guideline judgment) [2026] NSWCCA 144, a five-judge bench revoked the longstanding guideline in R v Whyte [2002] NSWCCA 343 and replaced it with a non-numerical approach.
For more than 20 years, Whyte provided a framework for sentencing offences including dangerous driving occasioning death and grievous bodily harm.
Under Whyte, a custodial sentence would usually be appropriate unless the seriousness of the offending was low, such as where the conduct involved momentary inattention or misjudgment.
Importantly, Whyte also contained numerical guidance. Where what the Court then described as the offender's “moral culpability” was high, a full-time custodial head sentence of less than three years for dangerous driving occasioning death, and less than two years for dangerous driving occasioning grievous bodily harm, would not generally be appropriate.
Those figures were not mandatory minimum sentences. However, they operated as an important reference point when sentencing courts considered serious dangerous driving offences.
In Cripps, the Court held that the terminology used in Whyte had become problematic. In particular, Whyte had blurred the distinction between the objective seriousness of the offending and the separate concept of an offender's moral culpability.
The Court ultimately revoked the Whyte guideline.
It deliberately declined to replace Whyte with another numerical guideline. There is therefore no longer a numerical point at which a particular sentencing outcome should ordinarily follow.
Instead, courts must apply ordinary sentencing principles and assess the objective seriousness of the individual offence by considering matters such as speed, intoxication, injuries, the number of people placed at risk, erratic driving, the duration of the dangerous driving and whether warnings were ignored.
One of the important aspects of Cripps is the Court's treatment of imprisonment and Intensive Correction Orders (ICOs).
The Court said it would be a “very rare case” in which the threshold for imprisonment under section 5 of the Crimes (Sentencing Procedure) Act 1999 was not crossed for a section 52A offence.
However, that does not mean that full-time imprisonment will necessarily follow.
An ICO is itself a sentence of imprisonment, served in the community rather than by full-time detention.
The correct process is firstly to determine whether imprisonment is required, secondly to determine the appropriate length of imprisonment, and only then to consider whether that sentence should be served by way of an ICO.
Section 52A offences are not excluded from the ICO regime. An ICO may therefore be available where the appropriate sentence is two years or less for a single offence, or three years or less for an aggregate sentence, and the Court considers an ICO appropriate.
The Court referred to a brief lapse of attention as one example where an ICO may be appropriate, but did not confine ICOs to those circumstances.
Cripps does not reduce the seriousness of dangerous driving offences. Imprisonment will still ordinarily be required.
The significant change is that the numerical guideline in Whyte, expressed in terms of full-time custody, no longer applies.
Courts must now determine the appropriate sentence in the individual case and, where the resulting term falls within the ICO limits, separately consider whether that imprisonment should be served in the community or by full-time detention.
ED Legal represents clients charged with dangerous driving occasioning death, dangerous driving occasioning grievous bodily harm and other serious traffic offences throughout NSW. Contact ED Legal on 0416 849 997 to discuss your matter.
This article contains general information only and does not constitute legal advice.
