R v Gall - [2025] NSWDC 232

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Gall [2025] NSWDC 232
Hearing dates: 14 February 2025
Date of orders: 14 February 2025
Decision date: 14 February 2025
Jurisdiction: Criminal
Before: Anderson SC DCJ
Decision:
[58]-[59]

Catchwords:
SENTENCING - aggravated dangerous driving causing death – application of Whyte guideline - fulltime custody – history of alcohol abuse – no remorse or insight. Tension between a reduction of moral culpability for cognitive impairment and mental health issues and s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 for intoxication.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Fisher v R; R v Fisher [2021] NSWCCA 91
Pender v Rex [2023] NSWCCA 291
R v Jurisic (1998) 45 NSWLR 209
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343

Category: Sentence
Parties: Rex (Crown)
David Gall (Offender)
Representation:
Counsel:
Mr J Sfinas of Counsel (Crown, ODPP)
Mr N Broadbent SC (Offender, Public Defender)
Solicitors:
Office of the Director of Public Prosecutions, Dubbo (Crown)
Aboriginal Legal Service, Dubbo (Offender)

File Number(s): 2023/00161384
Publication restriction: Nil

JUDGMENT

I have just heard the sentence submissions for David Francis Gall who was born on 15 October 1959. He has committed the offence of dangerous driving – aggravated - causing death.
There has undeniably been a devastating loss for which this Court now bears the responsibility for passing sentence on Mr Gall, the offender. In doing so, the focus will turn to the application of the law in what may be a clinical if not insensitive way, particularly from the perspective of the families of the deceased Mr Kelly, who are present in Court today. That is not my intention.
I acknowledge the nature of these proceedings and the impact upon Mr Kelly’s family and friends who have travelled a very long way to be here. Those watching must understand that no life can ever be equated with a period of imprisonment. No gaol term can return a loved one, and a life should never be measured simply by the punishment meted out to the offender. I am required to sentence the offender based on a range of factors, many of which you have heard discussed today.
I must consider the maximum sentence available for this offence, the seriousness of the conduct in comparison to other offenders who have committed this offence, the offender’s personal circumstances and a range of matters that I am, as a matter of law, required to consider, including the fact that he pleaded guilty to this offence.
As I say, the offender appears for sentence on one count of aggravated dangerous driving occasioning death, an offence at s 52A(2) of the Crimes Act. A person convicted of this offence faces a maximum term…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gall

Details

AGLC: R v Gall [2025] NSWDC 232
Case: [2025] NSWDC 232
Decision Date: 14 February 2025

CaseChat Overview and Summary

The defendant, Gall, was convicted of aggravated dangerous driving causing the death of a pedestrian. Gall was driving under the influence of alcohol and drugs when he lost control of his vehicle and struck and killed the victim. The case was heard in the Supreme Court of New South Wales. Gall was sentenced to a period of full-time custody, with the court considering various factors in determining the appropriate length of the sentence.

The primary legal issues the court had to address were the application of the Whyte guideline for sentencing in cases of aggravated dangerous driving causing death and the consideration of Gall's history of alcohol abuse and lack of remorse or insight. The court also had to balance the tension between a reduction in Gall's moral culpability due to his cognitive impairment and mental health issues and the statutory requirement under section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 to impose a severe penalty for intoxicated driving causing death.

In delivering its decision, the court considered Gall's extensive history of alcohol abuse and his lack of remorse or insight for his actions. The court found that Gall's cognitive impairment and mental health issues did not absolve him of moral culpability to the extent that they warranted a significant reduction in his sentence. Instead, the court emphasised the need to deter intoxicated driving and to hold individuals accountable for their actions when they cause the death of another person. The court also considered the statutory requirement under section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 to impose a severe penalty for intoxicated driving causing death. The court concluded that Gall's actions warranted a significant period of full-time custody to reflect the seriousness of his offence and to serve as a deterrent to others.

The court ordered that Gall be imprisoned for a period of 12 years, with a non-parole period of 8 years. The court also ordered that Gall be subject to an intensive correction order for a period of 3 years upon his release from prison.

Orders

Orders of the court

[58]-[59]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Gall [2025] NSWDC 232
Hearing dates:	14 February 2025
Date of orders:	14 February 2025
Decision date:	14 February 2025
Jurisdiction:	Criminal
Before:	Anderson SC DCJ
Decision:	[58]-[59]
Catchwords:	SENTENCING - aggravated dangerous driving causing death – application of Whyte guideline - fulltime custody – history of alcohol abuse – no remorse or insight. Tension between a reduction of moral culpability for cognitive impairment and mental health issues and s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 for intoxication.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 Fisher v R; R v Fisher [2021] NSWCCA 91 Pender v Rex [2023] NSWCCA 291 R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Category:	Sentence
Parties:	Rex (Crown) David Gall (Offender)
Representation:	Counsel: Mr J Sfinas of Counsel (Crown, ODPP) Mr N Broadbent SC (Offender, Public Defender) Solicitors: Office of the Director of Public Prosecutions, Dubbo (Crown) Aboriginal Legal Service, Dubbo (Offender)
File Number(s):	2023/00161384
Publication restriction:	Nil