On 18 September 2026, the New South Wales Court of Criminal Appeal revoked the guideline judgment in R v Whyte (2002) 55 NSWLR 252, which had governed sentencing for dangerous driving offences under section 52A of the Crimes Act 1900 (NSW) for the last 24 years. The Court replaced it with a non-numerical statement of sentencing principles: Cripps v R (s 52A guideline judgment) [2026] NSWCCA 144.
What Cripps v R Decided
Cripps v R was heard by a five-justice bench of Bell CJ, Payne JA, N Adams CJ, at CL, Hamill J and Roberts J. The applicant had been convicted of two counts of dangerous driving occasioning grievous bodily harm under section 52A(3) of the Crimes Act 1900 (NSW), and appealed against sentence on the basis that the sentencing judge had conflated matters going to objective seriousness with matters going to his subjective case.
When the Court listed the appeal, it identified the case as an appropriate vehicle to review the Whyte guideline. The Attorney General, the Director of Public Prosecutions and the Senior Public Defender all intervened and jointly submitted that Whyte should be revoked. The Court agreed.
Why the Whyte Guideline Was Revoked
The Court identified three principal reasons for revoking Whyte.
The first is that Whyte used the language of moral culpability as if it were part of the objective assessment of the offence. That framing no longer reflects the settled understanding of the concept following the High Court decisions in Muldrock, Bugmy and related cases.
The second is that the Whyte typical case included a guilty plea of limited utilitarian value. The statutory guilty plea discount scheme under Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) has since displaced that description of the typical case.
The third is that the statistical profile of offenders sentenced under section 52A no longer matches the typical case Whyte described. The Court treated this as a contributing basis rather than a standalone one.
The Court did not decide whether Whyte had artificially flattened the sentencing range.
What Replaces the Whyte Guideline
The Court held that the definition of guideline judgment in section 36 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is broad enough to allow a guideline judgment to contain no numerical component. It then issued a non-numerical statement of principles which sentencing judges are required to take into account under section 42A of that Act.
The replacement guideline confirms the following on a section 52A sentence:
- Courts must attend carefully to the purposes of sentencing in section 3A.
- Custody is not to be imposed unless no other penalty is appropriate under section 5(1), although crossing that threshold will rarely be a live question for a section 52A offence.
- The maximum penalty for the offence must be kept firmly in mind.
- Relevant factors from section 21A apply but must not be double-counted against the circumstances of aggravation in section 52A(7).
- A custodial sentence will usually be appropriate unless objective seriousness is low, as in the case of momentary inattention or misjudgment.
- An intensive correction order may be appropriate in cases of low objective seriousness, provided the length of the sentence makes that option available.
What This Means if You Are Facing a Section 52A Charge
The custodial outcome remains the usual outcome for a dangerous driving occasioning death or grievous bodily harm charge. That much has not changed. What has changed is how the sentencing court must reason its way to that outcome.
Three consequences follow. The first is that objective seriousness and moral culpability are now to be assessed as distinct steps. Personal factors that go to blameworthiness belong in the subjective case, not the objective assessment of the offence. A sentencing judge who conflates the two will make a reviewable error.
The second is that JIRS sentencing statistics remain relevant as a guidepost, but they do not define the permissible range. Historical averages are not a ceiling or an anchor. Each case turns on its own circumstances against the maximum penalty.
The third is that the carve-out for momentary inattention or misjudgment is preserved. Where objective seriousness is low, an intensive correction order remains available if the length of the sentence makes it so. The three-year and two-year reference points that Whyte set for the typical case have gone with the guideline they belonged to.
Speak with Experienced Traffic Lawyers About Your Section 52A Charge
If you have been charged with dangerous driving occasioning death, dangerous driving occasioning grievous bodily harm, or the aggravated form of either offence, sentencing under section 52A has just moved. We are running these matters under the new guideline, so speak with our experienced traffic lawyers today.
