R v Dale

[2025] NSWDC 222

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Dale [2025] NSWDC 222

Hearing dates:

21 March 2025

Date of orders:

05 May 2025

Decision date:

05 May 2025

Jurisdiction:

Criminal

Before:

Anderson SC DCJ

Decision:

See [104] - [111]

Catchwords:

SENTENCING - drive manner dangerous causing death – drive manner dangerous causing grievous bodily harm - application of Whyte guideline - fulltime custody required for a drive manner dangerous - availability of ICO when Offender in custody on other matters bail refused

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v Jurisic (1998) 45 NSWLR 209

R v Mulholland [2023] NSWLC 10

R v Whyte [2002] NSWCCA 343

Category:

Sentence

Parties:

Rex (Crown)
Jake Dale (Offender)

Representation:

Counsel:
Mr D Noll of counsel (Crown, ODPP Dubbo)
Mr M Davies of counsel (Offender, Public Defender)

Solicitors:
Office of the Director of Public Prosecutions, Dubbo
Legal Aid Commission, Dubbo

File Number(s):

2023/00335243

JUDGMENT

1. The offender, Jake Dale, appears for sentence in relation to two offences, both arising from the same tragic incident that occurred on the Lue Road at Mount Knowles on 16 October 2023.  As is often the case in matters such as these before the Court, the impact of the offending is both profound on the victim's families and the offender, and his own family in this case.

2. Non‑lawyers are often critical of judges for being what they perceive to be too lenient.  It is worth pointing out that as a judge in this Court, I am required to sentence the offender based on a range of factors, looking at the nature of the offence, its consequences, and matters personal to the offender, but at all times constrained by the laws made by the parliament of this state, as interpreted by the New South Wales's Court of Criminal Appeal.

3. As I hope these remarks can explain, there are a lot of competing factors, many of which pull in different directions, but at the centre is the loss to the Fisher family of their son and brother, Kane.  The offender's family also suffers a significant loss with the permanent injuries suffered by the offender's younger brother, Rhys.  Those watching must understand this.  A life should never be measured simply by the punishment imposed on the offender.  No life or injury can ever be equated with a period of imprisonment or punishment, however that punishment takes its form.

4. Sequence 1 before the Court is an offence of dangerous driving, occasioning death, in this case of Mr Kane Fisher, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). It carries a maximum penalty of ten years. Sequence 2 is an offence of dangerous driving occasioning grievous bodily harm, the victim in this matter being Mr Rhys Dale, contrary to s 52A(3)(c) of the Crimes Act.  It carries a maximum penalty of seven years' imprisonment.  There is no standard non‑parole period for either offence.  The maximum penalties operate as a legislative guidepost, representing the Parliament's assessment of the seriousness of these offences.

5. The offender entered a plea of guilty in relation to both of these matters at the Mudgee Local Court on 17 December 2024.  The timing of that plea entitles him to a 25% discount on the sentence I would otherwise have imposed.  The offender's bail for these offences was revoked when he entered his plea of guilty, although I note he has been in custody since 5 August 2024 for other unrelated matters where he is bail refused.

Facts

6. Kane Fisher, Rhys Dale and Jake Dale were all workmates at a plastering company in Mudgee.  The offender was also Rhys Dale's brother.  At the time of the incident, Kane was 19 years old and Rhys was 25.  The offender was 29.  One afternoon, the three of them left work and after dropping off some gear at a premises on the Sydney Road, Mudgee, the trio began driving from Mudgee back to Charbon.  Rhys and Kane were driving in one car, with Rhys driving a Mitsubishi triton and the offender was driving behind them in a Ford falcon.  Kane was in the passenger seat of Rhys's car.

7. They left work at about 4pm and began driving to Charbon after making that stop on the Sydney Road.  Charbon is 64 kilometres from Mudgee.  The road was familiar to the offender, having driven it approximately 60 times.  After about ten minutes driving along the Lue Road from the intersection with Rocky Waterhole Road on the big left‑hand bend where the train tracks are on the right‑hand side and the river is on the left‑hand side, Rhys saw in his triton's right hand mirror the offender's silver falcon initiate a manoeuvre to overtake his car, entering the westbound lane to do so.

8. Rhys saw the silver falcon hit the gravel edge on the far right, that is the westbound side of the road, following which it turned sharply to the left and started rotating in an anti‑clockwise direction.  Rhys looked out his window instead of at the mirror and saw the offender's vehicle hit his own car on the driver's side.  After contacting the gravel on the far side of the road, the front left bull bar area of the offender's vehicle struck the blue triton in the vicinity of the driver's door, which caused the offender's vehicle to spin around and for Rhys to lose control of the triton.

9. The offender told a witness later that as the two vehicles proceeded through a paddock, the offender looked out the left side of his vehicle and saw Rhys's car starting to roll.  The offender said it started to roll a few times before coming to rest in a creek.  The offender's own car did not roll, but rather skidded to a stop in the nearby paddock.

10. Expert crash investigation evidence demonstrates that the offender attempted to overtake Rhys's vehicle at a speed of between 105 kilometres and 110 kilometres per hour.  During this manoeuvre, the driver's side rear tyre left the sealed portion of the road contacting the uneven edge and gravel which caused the offender to lose control of his vehicle as it began to yaw anti‑clockwise.

11. The falcon re‑entered the triton's lane where the passenger side of the falcon collided with the driver's side of the triton.  As a result, the offender's falcon began to yaw clockwise and the triton began to yaw anti‑clockwise.  Both vehicles left the roadway, with the falcon continuing to yaw clockwise until it came to rest.  The triton's front driver's side collided with a wooden strainer post, causing it to roll several times where it passed through a second fence before coming to rest in a creek bed.

12. The offender had veered too wide for the roadway in performing the overtaking manoeuvre.  In view of the uneven edge of the far right, that is the westbound side of the road and gravel present, the overtaking manoeuvre was dangerous.  The manoeuvre caused the offender's rear driver's side tyre to contact with the uneven edge of the westbound side of the road and the gravel, and for him to lose control of his vehicle.  The manoeuvre and resulting collision caused the death of the deceased and the injuries to Rhys.

13. At the time of the collision, it was sunny and the road surface was dry.  Police and expert analysis demonstrated that the area was one where an overtaking manoeuvre was legal and would generally be considered safe.  Other than the uneven edge of the road and the gravel, there was nothing on the road which contributed to the collision.  A mechanical examination was carried out on the silver falcon, which indicated no mechanical defect or component failure which could have contributed to the collision.

14. The offender immediately rendered as much assistance as possible to the victims and some passers‑by called an ambulance.  Tragically, Kane passed away and Rhys has suffered horrific injuries. 

15. In relation to the deceased’s injuries, on 23 October 2023 a post-mortem examination was completed on the deceased, with an interim cause of death given as multiple injuries externally and on CT including:

• Subarachnoid haemorrhage

• C7 vertebral body fracture with displacement involving spinal cord

• C6 and T1 vertebral fractures

• R pneumothorax

• Left scapula and right femur fractures

16. In relation to Rhys’ medical treatment, Rhys was intubated at the scene and had bilateral finger thoracostomies. His blood pressure was initially unrecordable. He was transfused at the scene and bilateral tourniquets were applied to his thighs. Rhys arrived at St George Hospital at 8:38pm on 16 October 2023.

17. The following medical imaging was conducted: CT brain, face, neck, chest, abdomen, pelvis and legs. Xray chest, right shoulder, left forearm and elbow. Ultrasound upper limbs, lower limbs and abdomen. The injuries identified from his imaging are as follows:

• Bilateral open proximal tibia and fibula fractures and below knee amputations:

• Required multiple debridements in theatre, external fixation and temporary open reduction internal fixation of fractures, formalization of bilateral below knee amputations by orthopaedics team and Plastics team. Vascular team was also consulted.

• Ongoing sepsis and noviable tissue, culminating in bilateral above knee amputations and stump formations

• Right trochanteric collection - drained by interventional radiology

• Chest Injuries

• Right 10th and 11th rib fractures

• Pulmonary contusion

• Diffuse pulmonary haemorrhage bilaterally

• Bilateral pneumothoraces - Managed with bilateral intercostal chest drains

• Abdominal Injuries

• Haemoperitoneum secondary to small bowel mesenteric injury - required trauma laparotomy and repair of mesenteric defect

• Subcapsular hepatic haematoma

• Traumatic lumbar hernia - managed nonoperatively

• Relook laparotomy for ongoing sepsis

• Right maxilla fracture (Le Fort type II) - managed nonoperatively

• Bilateral subconjunctival haemorrhagic chemosis - reviewed by Opthalmology

• Traumatic optic neuropathy - reviewed by Opthalmology

18. Rhys was admitted to intensive care unit for ongoing management of his injuries.

19. He developed bilateral pneumonia, treated with antibiotics.

20. He developed subsegmental pulmonary embolus which was treated with anticoagulation. He developed upper limb deep vein thrombosis which was treated by Interventional Radiology and with anticoagulation. Haematology was consulted.

21. He developed sepsis and fungaemia from the lower limb injuries and he was on a long course of antibiotics and antifungal guided by the Infectious Diseases Physicians. A transoesophageal echocardiogram and transthoracic echocardiogram did not show infective endocarditis.

22. Mr Dale had rhabdomyolysis and anuric acute kidney injury requiring temporary dialysis. Renal team was involved in his care.

23. He developed critical illness gastropathy which was diagnosed on gastroscopy and subsequently treated with medications. Gastroenterology was involved in his care.

24. His pseudo-obstruction was also treated with medications. Colorectal team was involved in his care.

25. Rhys also experienced right-side visual field deficit and relative afferent pupillary defect.

26. On 8 December 2023, Rhys was discharged from St George Hospital after making an "excellent recovery" and was transferred to Bathurst Base Hospital with a view to transitioning to home living.

Objective seriousness

27. Grievous bodily harm encapsulates a wide range of injuries based on both seriousness and permanency.  The injuries suffered by Rhys are significant and life changing.

28. An essential part of the sentencing process is the assessment of the objective gravity of the offence for which the offender is to be sentenced.  The objective seriousness of the conduct sets the parameters of the appropriate sentence and ensures the sentence imposed is proportionate to the offence committed.  It is to be assessed without reference to matters personal to a particular offender or class of offenders.  It is to be determined wholly by reference to the nature of the offending itself.  I have considered the facts informing the offending.

29. Most adults, particularly in the regions, drive a motor vehicle every day, and the fact that they are potentially lethal weapons is often forgotten.  The holding of a driver's licence confers the right to drive a motor vehicle.  It is a privilege which carries heavy responsibilities.  When that responsibility is not exercised, terrible consequences can result.

30. The law requires the imposition of significant punishment, which can include lengthy periods of imprisonment, both as a way of denouncing the conduct and to act as a warning to others who may be tempted to drive dangerously.  General deterrence and denunciation will often significantly outweigh the subjective case of the offender.

31. Not everyone who is driving and causes death is necessarily guilty of an offence.  It takes something more.  A dangerous driving offence is committed where there is, objectively, a quality in the manner of driving, which either intrinsically or because of the circumstances surrounding the driving, is, in a real sense, potentially dangerous.  The test is objective and requires proof that the accused driving subjected another person or persons to a level of risk greater than that ordinarily associated with the driving of a motor vehicle.  The manner of driving must be a serious breach of the proper conduct of the vehicle, such as to be, in a real sense, potentially dangerous to others.

32. The Crown must prove this conduct in driving was a substantial or significant cause, or a sufficiently substantial cause, of the outcome, but it need not be the only cause.  The offence is one of strict liability.  The prosecution is not required to prove any mens rea.

33. Where the driver is overtaking, as Mr Dale was in this case, the driver is obliged to assure himself before overtaking that such steps, as are objectively reasonable in the circumstances, are safe.  That is, that he will be able to complete that manoeuvre with safety.  The obligation is a continuing one, so that if the conditions change, the manoeuvre must be abandoned if he is no longer reasonably assured of completing it with safety.

34. In sentencing the offender, I must have regard to the 2002 guideline judgment of R v Whyte [2002] NSWCCA 343, and the earlier decision of R v Jurisic (1998) 45 NSWLR 209. In Whyte, the Court identified what it described as a typical case involving an offence of dangerous driving occasioning death or grievous bodily harm contrary to s 52A(1)(c) and (3)(c) of the Crimes Act, along with frequently recurring aggravating factors, and a general range of sentencing for such offences.

35. Although they are different to these particular two offences, the principles apply.  The guideline judgment is neither a starting point, nor prescriptive.  There may be matters of aggravation not specifically referred to in the guideline, and in that event it is appropriate for such matters to still be considered.

36. The factors identified in Whyte, as both frequently occurring and aggravating, are not exhaustive. Each case will depend on its own facts, and individual justice requires that the penalty imposed reflects the objective seriousness of the offending, the subjective circumstances of the offender, and the need to recognise the purposes of sentencing, as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

37. The guideline judgment provides that a frequently recurring case of an offence under s 52A has the following characteristics: a young offender of good character with limited or no prior convictions; there is death or permanent injury to a single person; the victim is a stranger; no or limited injury to the driver or the driver's intimates; genuine remorse, and a plea of guilty of limited utilitarian value.  Some but not all of these matters apply here.

38. In this case, the offender was reasonably young.  He had no prior criminal history and he had a very good driving history.  Mr Fisher was a friend and a work colleague of the offender, and obviously, the second victim is the offender's younger brother.  The offender was uninjured, except for some minor lacerations from his seatbelt.  There is genuine remorse.  There is a plea of guilty, although in this case, unlike in Whyte, there is significant utilitarian value.

39. The presence of these characteristics impacts on the final sentence and assists in determining the application of the guideline judgment itself.  I note that in Whyte the offender in that case received a 10% discount for the plea of guilty, whereas the offender in this case is entitled to a 25% discount.

40. The guideline judgment identified a series of potentially aggravating factors for this type of offence.  In this case, firstly, the extent and nature of the injuries inflicted are severe, with the death of Mr Fisher being catastrophic, and the grievous bodily harm suffered by Rhys Dale being life changing, and at the top end of what I consider grievous bodily harm to be.

41. The number of people put at risk is unknown.  The speed the offender's vehicle was travelling at was between 105 and 110 kilometres an hour, which was only marginally above the speed limit.  There was no intoxication.  There was no evidence that the driving was erratic or aggressive, or that he was showing off.

42. The length of the journey from Mudgee to Charbon was 64 kilometres, but the incident occurred about a third of the way.  This consideration is really irrelevant because the risk that was exposed to other people on the road was only for a matter of seconds.  I note the offender stopped and provided every assistance he could to both victims while he waited for an ambulance to arrive.  Other considerations referred to in the judgment of Whyte do not arise. 

43. The case of Whyte speaks of moral culpability, but that term really had a different meaning in 2002 to what it does in 2025.  Now that concept would be recognised as objective seriousness, or the objective criminality of the offence.

44. The prosecution submits that this is a case where there was both a poor decision to overtake and poor execution.  I accept that submission in part.  There is no doubt the overtaking was poorly executed, but I do not accept that it was a poor decision to overtake.  The road was single lane in either direction.  The offender was driving only marginally above the speed limit, in an area where drivers were allowed to overtake.  It was a straight section of the road.  The road was dry.  The weather was sunny.  There is nothing inherently wrong with overtaking in that place.  There were no defects in his car.

45. As I have noted, he was neither intoxicated nor under the influence of any drugs.  There is no evidence he was driving dangerously for any period of time. The difficulty in this case is that the manoeuvre the offender undertook, which was neither illegal nor inherently dangerous, but it simply was poorly executed. As I infer from the Agreed Statement of Facts, the uneven edge of the road and the gravel played a part in this event because it was the offender's veering too wide on the roadway and the meeting of that edge with his tyre, which caused the danger.

46. To the extent that the offender was engaged in dangerous driving, it was for a matter of seconds.  It was because he simply veered too far to the right for the purpose of an overtaking and his tyre went over the edge of the uneven road.  Any miscalculation in driving at high speed can clearly lead to horrific consequences.

47. The Court does not need to make a binary choice between momentary inattention and abandonment of responsibility, but in the circumstances of this tragic case, I find that it is a matter of momentary inattention by the offender.  I determine that the objective seriousness of the offences falls at the lowest end of the range for offences of this particular type.

48. I do find, as I have already indicated, that the injury suffered by Rhys Dale for Sequence 2 is at the top end of the range for what can be considered GBH. 

Moral culpability

49. I have considered the offender's moral culpability, as that term is now understood in the circumstances of this case, but I have not found that it is reduced because of any mental health issues or because of a dysfunctional childhood.  Those issues are important in setting the sentence, but they do not reduce his moral culpability for this action.

Subjective circumstances

50. The offender is now 30 years of age.  He was 29 at the time of the offending.  He has a four year old son.  He is supported in Court by several family members and friends.  They were also present not only today, but at the day sentence submissions were made.

51. He comes before the Court without a criminal record, and he is entitled to leniency for that reason.  He has written a letter of apology to Kane Fisher's family.  Should they wish to receive it, I would encourage the Crown to provide it to them.  The letter sets out the offender's genuine remorse into what he has done.  He has taken full responsibility for his conduct, and he explains his feelings about this tragic incident, aware that nothing he can say or do will repay the damage done to Kane's family.  I accept he is remorseful.

52. When this matter was last before the Court, I directed that a Sentencing Assessment Report be prepared.  That report was received on 16 April 2024 and is now Exhibit 2.  The parties have made brief further written submissions about it, largely concerning the availability or appropriateness of an intensive corrections order, which I will address shortly.

53. The Sentencing Assessment Report is a very favourable one.  It highlights the offender's strong prosocial supports from family members and his current partner.  It talks of his consistent work history as a construction labourer and various other employment that he has held.

54. At the time of the offending, he reported feeling fatigued and noted he was not paying attention due to focusing on issues relating to his relationship breakdown and child custody matters.  He reported symptoms of depression and has since been prescribed antidepressants while in custody.

55. In relation to the offence, the offender demonstrated what was described by the author of the report as an “in‑depth understanding” of his criminality.  He tried to minimise his own negative flashbacks and nightmares, and instead continued to emphasise the harm he recognised had been caused to the victims and their families.

56. He understood the lifelong complications that would be suffered by his brother and the enormous and ongoing grief to the deceased family at the loss of their young son.  He acknowledged the seriousness of the offending and expressed overwhelming feelings of shame and guilt.  He expressed a willingness and ability to engage in intervention programs and community service work and has been deemed suitable to undertake community service work up to 21 hours per month.  He was regarded as being at a low risk to medium risk of reoffending.

57. In addition to the Sentencing Assessment Report, the Court has also taken into account the nine references which were tendered on his behalf.  They are from his mother, his girlfriend, long‑term family friends, his aunt and uncle, a long‑term family friend from Kandos and another from Rylstone.  They all speak of the hardworking man that they know, a person willing to help people.  They all speak of how devastated he has been since the accident has occurred.

58. Oral evidence was given before me from the offender's girlfriend, Shara Towers.  That evidence went to the fact that they have been in a relationship for about a year and that the offender takes responsibilities at home, including helping her with her children.  She believes that he would have no difficulty finding work on his release and I accept that evidence given his hardworking nature to date.

59. There is also a psychological report that was tendered by Dr Mamta Sidhu, who was a forensic psychologist.  Dr Sidhu's report is dated 14 February 2025.  The report states that the offender was born in Penrith and has four siblings.  During his childhood, the offender's father was employed as a farmhand and his mother worked as a caregiver.

60. The offender reported that his family experienced financial strain and relied on charitable organisations for essential items.  He grew up in a disadvantaged neighbourhood where he was exposed to drug use, violence and criminal activity within the community.  At the age of six, his family relocated from the city to regional New South Wales, which he felt was a safer environment, but family violence followed him, with the offender being exposed to significant domestic violence between his parents.

61. According to Dr Sidhu, his father consumed alcohol and cannabis, and at some point was incarcerated for domestic violence offences against his mother, and at one point threatened her with a knife and on another occasion a gun.  The offender confirmed that his father subjected him to physical violence as well from time to time.  He reported feeling isolated and lacking emotional support during his upbringing, but otherwise described having a relatively positive relationship with his mother and siblings.

62. His education extended to Year 12 where he got a very good ATAR result.  He moved around from several different schools.  During Year 10, he lost his best friend to suicide, which negatively affected his motivation and behaviour at school.  Following school, he commenced employment in the gyprocking area and has maintained employment ever since.

63. He first consumed alcohol at 17 years of age, but reported having a low interest in it due to his father's use when he was a child.  He used cannabis in a social context and increased consumption.  By the age of 18, he was using it as a means of coping with emotional distress, particularly in response to his friend's suicide.

64. His cannabis use further escalated following the death of his father and the breakdown of a long‑term relationship that he was in.  He had used MDMA and cocaine in social situations, but denied any illicit drug use and drug use does not appear to be a problem for him.  He has not used cannabis for two years.

65. He has denied having any physical health concerns.  He has reported experiencing anxiety during childhood, which he attributed to the volatility of his home environment.  He disclosed a history of self‑harming behaviours and ongoing struggles with depression, low mood and self‑worth.  At the age of 27, he attempted suicide.  He continues to experience suicidal thoughts.  However, Dr Sidhu reports that his son serves as a protective factor for him upon the suicidal thoughts.  At the time of the report being written, the offender was placed in the high‑risk intervention team and housed in a safe cell.

66. The offender reported significant emotional distress in relation to Kane Fisher's death and his brother's life‑changing injuries.  Dr Sidhu observed that he experiences guilt and shame and has been prescribed antidepressant medication.  While there is no evidence of any psychosis, bipolar disorder, mania or schizophrenia, there is clearly, it would seem, a need for ongoing counselling.

67. Dr Sidhu administered some psychometric testing, which found results to show the offender was in the mid‑range for depression and the normal range for anxiety and stress.  Dr Sidhu suggested that these results probably understate the offender's actual psychological and emotional distress.  The impact of the offender's first period of incarceration, combined with the psychological burden of his offending, continues to significantly affect his mental health.

68. I note he has been in a stable relationship for some time now.  Prior to his incarceration, he was living with his partner, Ms Towers.  He has some contact with his mother and siblings, and noted that he wants to be in touch with his brother, who is the victim in Sequence 2, but he said to Dr Sidhu that he finds it very hard to do so.

69. He is generally a prosocial and positive person with good peer connections.  Not surprisingly, perhaps, he feels very isolated and lonely in gaol.  According to Dr Sidhu, he has indicated a strong motivation to secure employment and access mental health support upon his release into the community.  He benefits from the support of his family and does not display antisocial attitudes or criminogenic lifestyle considerations.

70. Given the offender's history of substance use, it was recommended that he be referred to the EQUIPS addiction program and undergo mental health review by a psychiatrist and receive ongoing psychological support.  Dr Sidhu was told by the offender that he recognized his split‑second actions have destroyed many lives and he is struggling with the realisation that he has taken a life.

71. He stated to her that he thinks about it all the time and constantly thinks to himself that he should not have tried to overtake his brother's vehicle and he cannot get rid of the blame, shame and guilt.  He stated to Dr Sidhu that he finds the thought of driving terrifying.  She noted that he was visibly distressed and tearful when discussing the offences and continues to struggle with the impact of his actions.

s21A Crimes (Sentencing Procedure) Act 1999

72. I will deal now with the factors at s 21A of the Crimes (Sentencing Procedure) Act.  I note that none of the statutory aggravating factors apply, but several of the mitigating factors do.  I have already referred to the fact that he has pleaded guilty.  I note this demonstrates a willingness to facilitate the course of justice.

73. I accept he is remorseful.  I accept he has very good prospects of rehabilitation.  I accept he is someone with community support and that this is an incident which is an aberration.  Clearly the offence was not organised, and he is a person of good character with no criminal history, all of which serves to strongly mitigate his actions.

Mental Health

74. In this instance, the offender did not give evidence on sentence, but relied upon material contained in the report that I have just referred to in some detail.  No issue was taken with the matters raised in that report and no submission advanced that it should be rejected.  Accordingly, I accept it.

75. Where a person's state of mental health contributes to the commission of an offence in a material way, the offender's moral culpability may be reduced.  Consequently, the need to denounce the crime may be reduced with a reduction in the sentence.  It may also have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence, which would otherwise have been imposed.

76. It may mean that a custodial sentence weighs more heavily on the person.  It may reduce or eliminate the significance of specific deterrence.  Conversely, it may mean that the person has a mental illness and may present more of a danger to the community.  In those circumstances, specific deterrence may result in an increased sentence.

77. It will be observed that none of these principles is stated as an absolute.  What is recognised is the potential effect, in any given case, of a mental health disability.  Too often the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence.  There is, however, no such presumption.  It remains necessary for the Court to examine the relevant factors to determine whether, in the specific case, the mental condition has the consequence contended for.

78. In this case, the offender was not suffering from any mental illness or cognitive impairment at the time of the incident, which would justify a reduction in his moral culpability.  There was some anxiety and perhaps depression.  The report states that he is in the mild range for depression and normal range for anxiety, but this may underestimate the true position.  I accept those conclusions and I accept that he is not a proper vehicle for general deterrence and that less weight should be placed on specific deterrence.  I accept that he would have found his time in custody more onerous because of these issues.

79. Dealing with issues of childhood deprivation, whether profound childhood deprivation, in whatever form it occurs, is considered by way of a reduction in moral culpability or, more broadly, as part of an offender's subjective case, is a matter for the sentencing judge.

80. In my view, issues of childhood deprivation do not lower the offender's moral culpability, but it does form an important part of his general subjective case.  I accept that there has been relevant disadvantage and I have taken that into account in assessing the appropriate sentence.

Victim Impact Statements

81. Victim impact statements are relevant via s 3A(3)(g) of the Crimes (Sentencing Procedure) Act and elsewhere in the Act.  In this case there were four very, very powerful victim impact statements.  Each has been considered by me.  Without exception, these statements powerfully express the grief and torment members of Mr Fisher's family have felt.

82. I express my gratitude to each of them for writing and being prepared to have those statements presented to the Court.  They provided me with a clear impression of the victim and the enormity of the pain your family has suffered and continues to suffer.  I have had regard to all the victim impact statements and to the wide ranging effect the offender's crime has had upon both the deceased family and his own family.

Totality

83. As there is more than one offence before the Court for sentence, I must consider the principle of totality.  The totality principle is a recognised principle of sentencing that requires the aggregation of multiple sentences to reflect a just and appropriate measure of the total criminality involved.

84. Although there are two offences before the Court, one causing death and one causing grievous bodily harm, there are consequently two different victims.  A totally concurrent sentence would fail to recognise the separate harm that has been caused, but importantly, there is only one dangerous act that was committed by the offender so there will be a very large degree of concurrency.

Statistics

85. Both parties provided me with JIRS statistics and some comparative cases.  They are a very blunt tool, particularly when it comes to the offence of dangerous driving causing GBH and death because offences of this nature are so varied.  I note that the Judicial Commission statistics reveal in relation to dangerous driving causing death cases that for drivers with no prior convictions and who have entered a guilty plea, 55.7% of people receive an intensive corrections order and 40% are custodial sentence to be served in gaol.

86. The statistics reveal in relation to drivers dangerous driving causing grievous bodily harm that 57.1% of people receive intensive corrections orders and 38% are custodial sentence served in custody.  As I say, these are a blunt tool and limited to some degree by the relatively small data pool that it is drawn upon.  In any event, I note those outcomes because they were the subject of some sentencing submissions.

Intensive Correction Orders

87. Having considered all the possible alternatives, I am satisfied that the threshold at s 5 of the Crimes (Sentencing Procedure) Act has been crossed and that no penalty other than imprisonment is appropriate.  Mr Davies, who appeared as counsel for the offender, accepted this.  It was submitted by Mr Davies that an aggregate sentence of three years or less is open to the Court and that an ICO would be appropriate.  I accept that a sentence of three years or less would be appropriate.

88. The next consideration is whether the sentence should be served by way of an intensive corrections order.  It is well established that the term of imprisonment to be served by way of an ICO is a substantial punishment, but as with all sentencing options which do not involve immediate incarceration, it may also reflect a significant degree of leniency.

89. After receiving the favourable Sentencing Assessment Report, the Crown, perhaps anticipating that the Court would order an Intensive Correction Order, sought to pre‑empt this discussion by submitting that such an option may not be available given the offender is bail refused and in custody for another unrelated matter.

90. In support of this position, the Crown provided the Court with a decision from the Local Court of R v Mulholland [2023] NSWLC 10, which I must say I found fairly unpersuasive. As counsel for the offender submitted in his own submissions in reply, if it had been the Parliament's intention to prevent a sentencing Court from imposing a CCO or an ICO because someone was bail refused for an unrelated offence, the Parliament certainly could have made that clear.

91. The Second Reading Speech referred to me by the Crown does not change my conclusion.  In my view, the Crown submission cannot be right.  It would make no sense for a Court to deny an offender an Intensive Correction Order where it was appropriate just because on the day the sentence is passed the offender happens to be in custody, bail refused, for an unrelated offence.

92. The person could, of course, receive bail tomorrow for that unrelated matter, but simply because of the timing of the sentence being imposed by the Crown's logic would have been denied receiving an ICO and must instead serve custody.  In my view, that cannot be right.

93. Secondly, the Court needs to assess what the appropriate sentence is for the offence before it, not second guess what may happen with another matter.  In short, I do not regard the fact that the offender is in custody, bail refused for another offence, and I should note I do not even know what those offences are, that is not a reason not to impose an Intensive Corrections Order.

94. Mr Davies submitted that in circumstances where the paramount consideration of community safety is better enhanced by the offender's rehabilitation in the community, this is something the Court should take into account. It was stressed that in the community he can work and receive counselling and that the forward focused approach required under s 66 of the Crimes (Sentencing Procedure) Act better recognises this.

95. Obviously, the paramount consideration under s 66 is community safety. It has long been recognised that rehabilitation is better facilitated in the community and that is an important consideration for the Court, for the long term benefit not only of the offender, but the community itself.

96. In addition to the rehabilitation of the offender, most of the other purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act have a role to play here.  There is a need to ensure there is adequate punishment to make the offender accountable for his actions, to denounce his conduct and to recognise the extreme harm that has been caused.  General deterrence is of undoubted and particular importance.  All of these matters are in the public interest.

97. Notwithstanding the combined force of those factors and the tragic circumstances of this case, I do not see how the offender or the community benefits from him serving time in custody.  He is someone who has an otherwise unblemished criminal history, who was gainfully employed and who for just a matter of moments miscalculated an overtaking manoeuvre.  No sentence other than imprisonment is appropriate to address the serious offending.  But taking into account all the sentencing considerations, I determine that an intensive corrections order is appropriate.

98. The indicative sentences I would impose are as follows.

99. With respect to Sequence 1, I nominate a sentence of three years and eight months. After the discount of 25%, that becomes an indicative sentence of two years and nine months ^[1] .

    1. Mustafa v R [2021] NSWCCA 164 at [102]

100. With respect to Sequence 2, the indicative sentence is a period of two years and eight months. After the 25% discount for the plea of guilty, that becomes an indicative term of two years.

87. I intend to impose an aggregate sentence of three years.

88. I will order that that sentence be served by way of an Intensive Correction Order.

89. Mr Dale, I now make the following orders.

Orders

104. You are convicted for each of the two offences before the Court.

105. There being no other appropriate penalty, you are sentenced to an aggregate term of imprisonment for a period of three years, pursuant to s 53A of the Crimes (Sentencing Procedure) Act.

106. Pursuant to s 7(1) of that Act, the sentence imposed upon you is to be served by way of an Intensive Correction Order.

107. The sentence will commence today, 5 May 2025 and end 4 May 2028.

108. You must make contact with Community Corrections as soon as practicable, but no later than three days from today.

109. The following conditions are to attach to this order:

1. You must not commit any offence.

2. You must submit to supervision by Community Corrections.

3. You must undertake any rehabilitation course recommended by Community Corrections while this order is in place, or for as long as that service deems it necessary.

4. You must complete 250 hours of Community Service Work.

5. You are to abstain from any prohibited or restricted drugs or substances, except for medication lawfully prescribed to you by a medical practitioner.

110. Mr Dale, note this: if you fail to comply with the conditions of this order, further sanctions may be imposed upon you.  They may include a formal warning, imposing more stringent conditions, or it may include the revocation of this order, in which case you will go to custody.  If the order is revoked that could mean, as I say, your sentence is served by way of full‑time custody.

111. With respect to the disqualification period, the automatic disqualification periods for both offences will apply.

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Endnote

Amendments

23 June 2025 - Minor amendments

Decision last updated: 23 June 2025