R v Taylor

[2023] NSWDC 433

District Court

New South Wales

Medium Neutral Citation:

R v Taylor [2023] NSWDC 433

Hearing dates:

11 October 2023

Decision date:

17 October 2023

Jurisdiction:

Criminal

Before:

Coleman SC DCJ

Decision:

(1) For the offence of dangerous driving occasioning death to which he pleaded guilty, the offender is convicted.

(2) The offender is sentenced to a term of imprisonment of 12 months.

(3) Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that term of imprisonment is to be served by way of an Intensive Corrections Order.

(4) The standard conditions of that order apply. They are that:

1. The offender must not commit any offences; and

2. The offender must submit to supervision by a Community Corrections officer.

(5) The offender is disqualified from holding a driver’s licence for 18 months. s 206B of the Road Transport Act 2013 (NSW) applies.

Catchwords:

SENTENCING – Driving offences – Dangerous driving occasioning death – Application of Whyte guideline judgment – Low moral culpability - Mitigating factors – Prospects of rehabilitation – Remorse – Unlikely to re-offend – Imposition of ICO – Consideration of community safety as paramount consideration

Legislation Cited:

Crimes Act 1900 (NSW), s 52A

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 21A, 25D, 66, 73A

Road Transport Act 2013 (NSW), s 206B

Cases Cited:

R v Tomson [1999] NSWCCA 369

R v Whyte (2002) 55 NSWLR 252

Category:

Sentence

Parties:

Director for Public Prosecutions (NSW) (Crown)
Jayden Taylor (Offender)

Representation:

Counsel:
Mr G Kidd (Crown)
Mr S Bouveng (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Michel & White Lawyers (Offender)

File Number(s):

2022/279408

JUDGMENT

1. The offender, Jayden Taylor, is to be sentenced today for an offence of dangerous driving occasioning death. This is an offence under s 52A(1)(c) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 10 years imprisonment. There is also an automatic period of disqualification from holding a driver’s licence of 3 years and a minimum period of 12 months. There is no standard non-parole period.

2. The offender pleaded guilty to this offence at the earliest opportunity and is thus entitled to a 25% discount on sentence to reflect the utilitarian value of the plea: s 25D(2), Crimes (Sentencing Procedure) Act 1999 (NSW).

Facts

3. There are agreed facts for this sentence. It is not an overstatement to say that they are tragic.

4. The offender in this matter is Jayden Luke Taylor, born 28 August 1995. The deceased is Jordan Tailby, born 1 October 1997. The offender and the deceased were longstanding friends. Also in the vehicle was Braydon Talbott-Hatch, who is the second cousin of the deceased and friend of the offender. At the relevant time, the offender was a holder of a Class CP2 driver’s licence.

Dangerous driving occasioning death

5. On Sunday 5 June 2022, the offender, the deceased and Talbott-Hatch decided to go pig hunting with their dogs. The trio left Gunnedah in the offender’s ute, a dual-cab 2001 Toyota Hilux, at around 2 to 3pm, heading north. The offender was driving, Talbott-Hatch was in the front passenger seat and the deceased was in the back on the passenger’s side. The dogs were tied up in the back tray.

6. At 6:23pm, the group was travelling along Longarm Road, Borah Creek when they spotted a group of pigs in the paddock to their right. The offender slowed down and turned off the road, following the fence line on the outside of the paddock where the pigs were seen. The offender had never driven along this stretch of ground before and was driving somewhere around 45-50km/hr.

7. As the offender was driving along the fence, the offender stopped the vehicle. The deceased opened the back door of the ute and climbed onto the sidestep and then onto the tray of the ute. Talbott-Hatch opened the front passenger door and also went from the sidestep to the tray of the ute.

8. The three had a discussion about whether they would continue into the paddock to chase the pigs. The deceased was holding the spotlight which he was shining on the pigs in the paddock, while Talbott-Hatch was attempting to unclip the dogs. The offender said he “wasn’t really watching” where he was going, being more focussed on the pigs. The offender heard the deceased say “Whoa” and looked ahead where he saw a gully in front of the vehicle on the right-hand side.

9. The offender applied the brakes but skidded on the grass until the driver’s side tyres hit a small depression, causing the right side of the vehicle to drop. The ute continued to skid before the driver’s side tyres entered the gully, causing the vehicle to roll before coming to a rest on all four tyres at the bottom of the gully. As the ute rolled, Talbott-Hatch was thrown clear and was not hurt. Talbott-Hatch looked around and saw the deceased sitting to the left of the vehicle, up against the gully wall.

10. When the vehicle came to a rest, the offender (who was also unhurt) got out and saw Jordan and Talbott-Hatch on the edge of the gully. At that time, Jordan was conscious and talking with some visible bruising to his face. Talbott-Hatch asked the deceased if he was okay, to which he said, “Yeah”.

11. The three got back into the ute and the offender drove out of the gully and back to the road. The offender said in evidence, and I accept, that they put Jordan on the back seat. When he was there, he told his friends he had just found out he was going to be a father. Jordan told the others he thought he needed an ambulance, so the offender pulled over and Talbott-Hatch called 000 on the offender’s phone. The 000 call was received at 7:34pm, with an ambulance dispatched at 7:39pm.

12. The first ambulance arrived at the scene at 8:01pm and found Jordan in the back seat of the ute where they commenced treatment. He was unable to provide a description of what had happened as he was severely distressed and in a lot of pain. The offender and Talbott-Hatch were both also agitated and unable to provide the paramedics with much information.

13. Jordan had sustained traumatic injuries, including bruising and haematoma around the jaw, severe cervical pain, severe bilateral chest pain and severe thoracic back pain, but the main reason for his decline that they were aware of was tension pneumothorax. He was declared dead at 9:07pm.

Investigation

14. After the death of Jordan, the offender was breath tested at the scene for alcohol and returned a negative result.

15. An inspection of the vehicle was also undertaken. It was noted that the tyres were in good condition, no airbags were deployed, and the seatbelts had not locked in place.

16. Police attended the scene of the accident and noted the surface of the track taken by the ute consisted of short grass, dirt and some longer dry grass.

17. Police observed the ute’s path was a straight line adjacent to the fence line, indicated by skid marks on the level ground before the gully. The ute crossed a small depression before regaining level ground. It entered the gully and rolled once. It came to a stop in the gully 16.5 metres from the commencement of the skid marks.

18. On 10 June 2022, the offender took part in a recorded interview with police, in which he was cooperative and made a number of admissions. These included that he “wasn’t really watching” where he was going as he took his “eyes off the road for 2 seconds”, that he was “more focussed on the pig”, that he had “never been down that track before”; and was driving at around 40-50 km/hr.

Objective Seriousness

19. As I describe below, there is a guideline judgment applicable to such offences. That judgment considers factors and characteristics which assist courts in reaching an appropriate sentence for these offences. It deals with several matters relevant to sentence including objective seriousness and an offender’s moral culpability.

20. Of course, moral culpability is separate to, but sometimes significantly interrelated, with objective seriousness.

21. In offences such as this, the significant maximum penalty stands as a statutory guidepost to the seriousness with which such offences are viewed. Any dangerous act which results in the loss of life is objectively serious. Too often, lives are lost through dangerous acts where persons are behind the wheel of a motor vehicle. Often times, offences such as these involve significant speeds, long distances travelled or drivers acting in a significantly dangerous manner.

22. In other cases, the offence can involve a momentary reckless error of judgment or a decision that should not have been made and that has terrible consequences.

23. This case is in the latter category. The facts I have mentioned above, as well as the matters I discuss below, indicate to me that the offending here is not a serious example of this type of offending.

The R v Whyte Guideline Judgment

24. R v Whyte (2002) 55 NSWLR 252 is a guideline judgment for offences of dangerous driving under s 52A of the Crimes Act. There is no dispute as to its application in this case. In the judgment, the Court said (at [204]):

“A frequently recurring case of an offence under s 52A has the following characteristics:

(i) Young offender.

(ii) Of good character with no or limited prior convictions.

(iii) Death or permanent injury to a single person.

(iv) The victim is a stranger.

(v) No or limited injury to the driver or the driver’s intimates.

(vi) Genuine remorse.

(vii) Plea of guilty of limited utilitarian value.”

25. Mr Bouveng, counsel for the offender, submitted that the above characteristics are present in this matter, with the exceptions that the victim was not a stranger (iv) and there was an early guilty plea (vii). This was not disputed by the Crown.

26. Where the offence has the characteristics described above, Spigelman CJ (with whom the other members of the Court agreed) said (at [214]):

“A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.”

27. A number of factors were identified by the Chief Justice which aggravate the objective seriousness of an offence under s 52A (at [216]-[217]), being,

(i) The nature and extent of the injuries inflicted.

(ii) The number of people put at risk.

(iii) The degree of speed.

(iv) The degree of intoxication or of substance abuse.

(v) Erratic or aggressive driving.

(vi) Competitive driving or showing off.

(vii) Length of the journey during which others were exposed to risk.

(viii) Ignoring of warnings.

(ix) Escaping police pursuit.

(x) Degree of sleep deprivation.

(xi) Failing to stop.

28. Items (iii) to (xi) relate to the moral culpability of an offender. The Chief Justice further stated that in relation to offences against s 52A(1), in the “typical case” (at [229]):

“Where the offender’s moral culpability is high, a full time custodial head sentence of less than three years (in the case of death)…would not generally be appropriate.”

29. I should note that the factors in the guideline judgment are not a checklist, but merely are to describe a typical case. They do not circumscribe my sentencing discretion. Further, the sentence noted in the guideline judgment is not a starting point or prescriptive, but merely a guidepost or reference for me as the sentencing judge.

Application of Guideline Judgment

30. Counsel for the offender submitted that the factors identified by Spigelman CJ apply as follows:

1. The extent and nature of injuries inflicted was death to a single person;

2. The number of persons put at risk was 2, being the two passengers who were permitted to ride on the tray of the ute;

3. The length of the journey was only a few hundred metres; and

4. None of the remaining aggravating factors were present in the offending.

31. The Crown did not cavil with the factors identified by the offender, save for the degree of speed, which the Crown submitted is present in this case. I will return to this.

Assessing Moral Culpability

32. Counsel for the offender submitted that the moral culpability of the offender is appropriately characterised as being low. None of the aggravating features of the Whyte judgment, it was submitted, were present. The offender was not speeding. There was no other concurrent offending, as the driving was not on a road or road-related area. The offender has no relevant driving or criminal history and is of excellent character. No passenger had issued any warning to him, and the offender was not affected by any intoxicating substance, nor was he suffering from any fatigue. The offender made admissions which, it was submitted, encapsulate the gravamen of the offending, being that he was more focussed on the pigs, had never driven down the track before, and continued to drive after both passengers had left the safety of the cabin of the ute.

33. The Crown submitted that in assessing the moral culpability of the offender, the Court is to have regard to the speed the offender was travelling, relative to the circumstances and prevailing conditions.

34. The circumstances relevant to the determination as to whether the offender’s speed was excessive, it was submitted, include that he was driving on a track he was unfamiliar with, in a paddock at night and in circumstances where he knew that both of his passengers were not only not wearing seatbelts, but were on the rear tray of the vehicle; he was travelling at approximately 40-50km/hr; and he admitted he “wasn’t really watching” where he was going and had taken his “eyes off the road for 2 seconds”.

35. The Crown submitted that in all of the circumstances, the speed at which the offender was driving was excessive and when coupled with the fact his attention was on the pig and not the unfamiliar road, the actions of the offender amounted to more than momentary inattention.

36. As the agreed facts state, the vehicle was travelling at about 40-50km/hr at the time of the crash. The vehicle was not travelling on a road so that any particular or designated speed limit applied. In that sense, it cannot be said that the vehicle was “speeding” in the sense that term is commonly used to mean it was exceeding the speed limit.

37. Rather, the Crown submission is that the car was speeding, in the sense that it was driving too fast for the conditions. I think that the factors identified by the Crown do mean that the vehicle was speeding, in the sense that it was being driven too fast for the conditions at the time. It was not being driven on a prepared road. It was night-time with no street lighting and what hazards that may have laid ahead could not be seen. It was an unfamiliar location to the driver and there were two unrestrained passengers in the ute tray at the back of the vehicle. I do consider this factor as identified in the guideline judgment does apply to aggravate the matter.

38. However, I consider that having regard to all of the matters identified in the guideline judgment as applicable to the facts of this case, the offender’s moral culpability is low. I reach that conclusion despite my determination that the speed the offender was driving was excessive for the conditions. The most significant factor in that conclusion, and as Mr Bouveng of counsel for the offender conceded, is that the gravamen of the dangerous element of his driving was driving with two unrestrained passengers in the back tray of the ute.

39. Despite it being said by the offender in evidence that “this is the way it is done” by persons who engage in this activity - with passengers having a spotlight to track the pig and release the dogs at the appropriate time (or I assume take a shot if using a rifle) - it still is, in effect, the causa sine qua non of this offence. It might be different in the daytime when the driver of the car can see what is ahead and more readily avoid hazards, but in deciding to keep driving with the passengers in the back of the ute in the manner the offender did, at night when hazards could not be seen in a timely way so as to maximise the chances of avoiding them, is what was dangerous about the exercise.

40. Even saying that, I accept that this was only for a short period of time and over a short distance that the offender drove like this. I do not accept his conduct was an abandonment of responsibility, rather, as I have said, a reckless error of judgment (see R v Tomson [1999] NSWCCA 369). All of the other factors I have identified show that his moral culpability is low.

41. Accordingly, I do not consider the “guideline” sentence in Whyte is applicable here.

Aggravating/Mitigating Factors

42. As to aggravating and mitigating factors of the offending as found in s 21A of the Crimes (Sentencing Procedure) Act 1999, the Crown did not rely on any of the aggravating factors in s 21A(2).

43. In terms of mitigating factors under s 21A(3), counsel for the offender submitted (and the Crown conceded) that the offending was mitigated by virtue of the fact that the offender does not have any record of previous convictions (s 21A(3)(e)); the offender was a person of good character (s 21A(3)(f)); the offender is unlikely to re-offend (s 21A(3)(g)); he has good prospects of rehabilitation (s 21A(3)(h)); there was remorse shown by the offender (s 21A(3)(i)), relying on the report of Dr Thomas Dornan in this regard and the offender’s evidence before me; and the plea of guilty entered by him (s 21A(3)(k)).

44. The Crown did not cavil with the mitigating factors identified by counsel for the offender, having regard to the evidence given by him before me.

Subjective Circumstances

45. In terms of the subjective circumstances of the offender, I have been provided with the psychological report of Dr Thomas Dornan dated 26 September 2023. I will not detail all of the matters in the report but list the salient subjective matters relevant to my considerations.

46. The offender reported that his childhood was happy and largely unremarkable. He is one of 10 siblings born to the union of his natural parents. His siblings range in age from 23 to 44 years old and he advised that he maintains positive relationships with each of them. He similarly reported that he maintains strong, supportive relationships with both of his parents.

47. The offender’s parents’ relationship ended when he was approximately 11 years old. He denied the presence of any domestic violence between them prior to their separation. He is unaware of the details as to why they separated, but believed they simply “grew apart” and described their separation as amicable. His mother re-partnered during his teenage years and, whilst initially struggling to accept the relationship, he now has a strong relationship with his mother’s partner.

48. Following his parents’ separation, he moved to Coffs Harbour with his mother. However, after falling into an anti-social peer group and engaging in truancy from school, he was sent back to Gunnedah to live with his father after 3 years. He reported that he was happy living with his father in the bush, preferring to be outdoors engaging in activities such as pig hunting, fishing and camping with his friends.

49. He reported that he generally enjoyed attending school, however he did not believe he was academically inclined and made the decision to leave in Year 10. He then found work “pushing trolleys” at the local supermarket, at McDonalds and in farming. Around the age of 20, the offender was employed at an air conditioning company, installing and fitting air conditioning systems, where he has remained since. He advised that he enjoys being engaged in manual labour and is happy and stable working there. His employer is aware of the proceedings brought against him and have remained supportive and confirmed there is no danger in him losing his job.

50. The offender has a strong network of pro-social peers, most of whom he met in his childhood and whose friendship has been maintained into adulthood. They are also aware of the criminal proceedings brought against him but have remained supportive. He has been in a relationship with his current partner for approximately 4 years and he described the relationship as positive and provided that they are currently working hard to raise the deposit for a house.

45. In respect to alcohol and drug use, he stated that he is a social drinker only and that he had occasionally used cannabis during his adolescence, but has not regularly used cannabis in his adult years (see [29]-[30] of the report). However, in the Sentencing Assessment Report, the author reported (and the offender confirmed in his evidence) that he is a long-term user of cannabis, consuming “up to 3 cones a day”. There is no suggestion he was affected by cannabis at the time of the accident.

46. In regard to the offending conduct before the Court, the offender reported that he was remorseful for his actions and stated that he had to live with the death of his friend and the guilt of losing someone he was close to. Despite denying any intent to cause the accident, the offender reported that he continued to blame himself, stating that he was aware of the long-term consequences of his actions. Dr Dornan considered the offender seemed genuine in his remorse and regret for his actions. He noted that the offender expressed responsibility for his offending and did not seek to justify his behaviour.

47. The offender gave evidence before me to this effect. I accept he is genuinely remorseful for what happened. After all, he has to accept that his actions have cost the life of a long-time mate.

48. The offender denied any pre-existing mental health conditions, however reported experiencing a number of psychological symptoms in the wake of the accident and the death of his friend. These included intrusive thoughts, flashbacks, nightmares, emotional distress, avoidance of reminders of the trauma, hypervigilance and difficulties concentrating and sleeping.

49. Dr Dornan opined the offender was describing struggling with symptoms of Acute Stress Disorder, characterised by the development of severe stress reactions following exposure to a traumatic event. These symptoms have reduced over time, and Dr Dornan therefore considers the offender would no longer meet the criteria for this disorder, although he still presents with ongoing subclinical symptoms of Acute Stress Disorder.

50. Dr Dornan opined that the offender presents with limited needs, intervention or support in order to improve his functioning and reduce his criminogenic risk. However, he considered the primary need in this case is for psychological treatment to address trauma, grief and loss, emotional coping and mood management.

Prospects of Rehabilitation

57. I have had placed before me several references which speak to the good character and standing of the offender. The referees include one from the offender’s employer. He is described as a hardworking and well-regarded contributor to the business and he will continue to have employment despite the fact that he will be convicted for this offence.

58. There were submissions made about the need for the offender to have a licence for his work. This was in the context of the length of any disqualification period of his licence on conviction. There was evidence that he has been getting lifts for work-related journeys and the offender accepted this would continue and he would not lose his job if he did not have a licence to drive.

59. Also included was a reference from Jo-Anne Tailby, the mother of the deceased, Jordan. Ms Tailby also came to court on the day of the sentence hearing and was in court when these remarks were given. She speaks of the friendship her son shared with the offender. Pig hunting was something they regularly did together. She says that she and her family have visited the site and firmly believe the event was just a terrible accident. She says they do not hold the offender responsible. She says the offender has been supportive of their family. The offender confirmed he maintains contact with them. Ms Tailby said she did not want the offender’s life shattered because of the accident.

60. It is a moving testament to the friendship between the offender and Jordan that she wrote this reference and continues to support the offender. Insofar as I can, I will take what she says into account. I express the Court’s sympathy to her and her family over their loss.

61. I have also received a Sentencing Assessment Report dated 28 September 2023. Insofar as that report opines that the offender minimised his role in the accident because he expressed to the author that the deceased was talking and appeared okay after the fall, I do not think such a conclusion is justified, either on the basis expressed, or at all. The offender certainly did not attempt to minimise his role when he gave evidence. He appeared to me to fully accept responsibility and it is apparent he will bear this responsibility for his lifetime.

62. Additionally, the author of the Sentencing Assessment Report stated that the offender mentioned several times his concern for the damage to his new car and this thus slowed his response to helping the victim. Again, I do not accept this conclusion on the evidence before me. He said, and I accept, that he had to check the car for damage to ensure he could get to an area where there was suitable mobile coverage to get assistance for his friend. I do not accept that any of the actions of the offender or his companion delayed assistance being given to Jordan.

63. I have mentioned above that the offender says that the practice of passengers travelling in the back of the ute is just the way pig hunting in that manner is done. He said he has, since the accident, engaged in the pastime in a similar way (albeit not as the driver). As I have observed, in daylight hours, or with other precautions taken to minimise any danger, pig hunting in this way may be less dangerous. I think that the experience the offender has been through means that he will take necessary precautions to minimise danger. I consider he will do so whilst he is disqualified and when he gets his licence back if he engages in this activity again.

64. I do not think his continued engagement in the pastime means that he is at risk of re-offending. I certainly consider he is at a very low risk of reoffending in other ways. I consider he has excellent prospects of rehabilitation.

65. I note that the report of Dr Dornan considers that he requires the assistance of a psychologist to assist him in dealing with the guilt and issues arising from his involvement in the death of his friend. This is understandable and to be encouraged. I do not consider this treatment is part of the sentencing process however, nor required to fulfill any purposes of the sentencing process. It is a matter that I hope the offender undertakes to assist him in his recovery and better his own mental health.

Sentencing Principles

66. Sentencing an offender for any criminal offence is often a complex, some would argue too complex, matter. There is no bright line to guide judges as to what is the correct sentence in each case. The sentence is to be the result of an instinctive synthesis by the sentencing judge of all of the matters that must be taken into account.

67. The legislature sets a statutory guidepost of the maximum penalty. That is but one matter to take into account. The Court must have, as I have, regard to the objective seriousness of the offending, any aggravating and mitigating factors, the subjective case of the offender and his or her moral culpability. Sometimes, as here, there are guideline judgments which may be applicable. It is from these considerations, among others, that the sentence is arrived at.

68. Often times a sentence will be pronounced by a judge, having followed the relevant principles, which to some is not harsh enough. That may be because those persons do not have a full understanding of the facts, or the principles, or because they view stern punishment as a priority.

69. Other times, a sentence must be imposed for what ostensibly is a horrible accident. That sentence may seem disproportionate to the tragedy of the circumstances giving rise to the offence. Nevertheless, the law properly applied may mean that the offender in such a case, who will carry a terrible burden with them for their life, must be dealt with by a term of imprisonment.

70. This case can be regarded as one of the latter types of cases. I understand that the circumstances of this crash can be regarded as a terrible accident - a tragedy in which three mates went on a routine pig hunting trip which went horribly wrong. But the offender has accepted by his plea of guilty that he has committed a criminally dangerous act which occasioned a death. He thus must be dealt with according to the law.

71. Sentencing an offender has to be in accordance with the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act.

72. The Crown submitted, and I accept, that the facts of this case mean that deterrence may not play as significant a role in the sentencing exercise as it otherwise would. However, I also accept that there is a need to deter others from engaging in dangerous acts whilst behind the wheel.

73. Ordinarily, recognition of harm to the victim is a relevant purpose of sentencing. In cases like this, it is the family and friends of the deceased who have to live with the loss of their loved one. Here, this includes the offender himself.

74. Mr Bouveng, counsel for the accused, conceded that the s 5 threshold has been crossed and that no other sentence other than one of imprisonment is warranted. I find that this is so, although the threshold has, in my opinion, only just been crossed.

75. I will impose a sentence of imprisonment on the offender.

76. The penalty prescribed for this offence also includes a minimum period of disqualification of 12 months and an automatic disqualification period of 3 years. The Crown submitted that the automatic period should be imposed to reflect the seriousness of the offending and as part of the principles of deterrence. The offender submitted the minimum period should be imposed, having regard to the level of objective seriousness, moral culpability and sentencing principles.

77. I consider the position is in between the two. In my opinion, the proper application of the purposes of sentencing mean that there should be a period of disqualification of more than the minimum but less than the automatic period. The period of disqualification I impose is intended to deter the offender, and others who may be minded to undertake similar acts, from doing so. I consider 18 months as the appropriate period.

78. I note that the offender has pleaded guilty at the first opportunity and is entitled to a 25% discount on his sentence. In my opinion, the appropriate sentence, taking into account the discount, is one of 12 months.

79. The question then arises as to where that sentence should be served.

80. I have had regard to s 66 of the Crimes (Sentencing Procedure) Act. I must consider community safety as the paramount consideration as to whether the sentence should be served in full-time custody or in the community.

81. In assessing community safety, I must also consider whether serving the sentence in the community would better deal with the offender’s risk of re-offending. Here, I do not consider the offender has any significant risk of re-offending, so I do not consider this of much importance, although I do consider that serving the sentence in the community will be best for the offender’s general rehabilitation.

82. There is nothing in the Sentencing Assessment Report I have received which would indicate that there is any risk to the community if the offender served his sentence under supervision in the community.

83. The Crown originally in its written submissions made submissions that an ICO should not be made. In its oral submissions, it withdrew those submissions and submitted that an ICO was within the appropriate sentencing range.

84. In determining whether an ICO is the appropriate way for this offender to serve his sentence of imprisonment, I have taken into account the matters in s 3A of the Crimes (Sentencing Procedure) Act, including punishment for the offence.

85. I consider an ICO is the appropriate way this sentence of imprisonment should be served.

86. If an ICO is ordered, there must be the standard conditions and one additional condition unless there are exceptional circumstances: s 73A(1A), Crimes (Sentencing Procedure) Act. Here, I consider there are exceptional circumstances. There is no suggestion that there should be abstinence conditions, curfews or place restrictions. No party made submissions that any specific additional condition is required. I do not consider the facts warrant community service. As for treatment, as I have said, whilst the offender should get treatment, that is for his mental health issues arising because of the offending, not antecedent to it. Further, there is in a sense an element of extra-curial punishment in the offender having to live with his actions causing the death of a close friend. I do not consider that any additional conditions other than the standard conditions are required for this ICO.

Sentence

87. Mr Taylor:

1. For the offence of dangerous driving occasioning death to which you have pleaded guilty, you are convicted.

2. I sentence you to a term of imprisonment of 12 months.

3. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I order that the term of imprisonment be served by way of an Intensive Corrections Order.

4. The standard conditions of that order apply. They are that:

1. The offender must not commit any offences; and

2. The offender must submit to supervision by a Community Corrections officer.

5. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in fulltime custody.

6. I disqualify you from holding a driver’s licence for 18 months. I note that s 206B of the Road Transport Act 2013 (NSW) applies to the period of suspension.

7. I direct that the offender report to the Community Corrections office in Gunnedah by 4pm this Friday.

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Decision last updated: 18 October 2023