A sentencing judge's failure to exercise the discretion under s 205(3)(d)(ii) of the Road Transport Act 2013 (NSW) to vary the automatic licence disqualification period constitutes an erroneous failure to exercise jurisdiction, but is discrete from the sentencing process and does not require the entire sentencing determination to be undertaken anew. Where brain injury results from dangerous driving, the Crown should provide current medical evidence and specialist prognosis at sentencing, though failure to do so does not necessarily preclude findings on severity where other materials support them.
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