Regina v Murray Douglas Dale

[2008] NSWDC 343

CITATION:	Regina v Murray Douglas DALE [2008] NSWDC 343
HEARING DATE(S):	25/06/08, 12/09/08
JUDGMENT DATE:	9 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Dangerous driving occasioning death - Convicted, sentence NPP 18 months to be served by way of periodic detention. Sentence and NPP to commence 25/04/09, NPP expires on 24/10/10, sentence expires on 24/10/11. Do act etc with intent to pervert the course of justice. Convicted, sentence to imprisonment of 15 months to be serve by way of periodic deterntion. To commence 25/10/08 and expire on 24/01/10. Driving in a manner dangerous. Disqualified from using driver's licence for 2 years commencing 09/10/08. S166 Offices - drive with 3 unrestrained passengers - fined $100. Use unregisteed registrable Class A motor vehicle - fined $500. Other offences - seq 4, 5, 8, 9 and 10 are dismissed.
CATCHWORDS:	CRIMINAL LAW - sentencing - dangerous driving causing death
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Jurisic (1998) 45 NSWLR 209 R v Henry (1999) 47 NSWLR 346 R v Wong (1999) 48 NSWLR 340 R v Whyte (2002) 55 NSWLR 252 Markarian v R [2005] HCA 25 R v Errington [1999] NSWCCA 18 R v Errington (2005) 157 A Crim R 553 R v Berg (2004) 41 MVR 399 R v Tzanis (2005) 44 MVR 160 R v Takoai (2004) 149 ACR 593 R v Gardiner [2004] NSWCCA 365 R v Khatter [2000] NSWCCA 32 Thomson and Houlton (2000) 49 NSWLR 383 R v Sharma[2002] NSWCCA 142 R v Pisciuneri [2007] NSWCCA 265 R v Giang [2005] NSWCCA 387 R v Bloomfield (1998) 44 NSWLR 734 Pearce v The Queen (1998) 194 CLR 610 Veen (No 2) v The Queen (1988) 164 CLR 365 R v Elyard [2006] NSWCCA 43 R v Zamagias [2002] NSWCCA 17 Douar v The Queen (2005) 159 A Crim R 154 R v Hallocoglu (1992) 29 NSWLR 67 R v Rivkin (2004) 59 NSWLR 284
PARTIES:	Regina Murray Douglas Dale
FILE NUMBER(S):	2008/00005810
COUNSEL:	Mr Bailey - Crown Mr Dalton - Mr Dale
SOLICITORS:

SENTENCE

1 HIS HONOUR: Murray Douglas Dale appears today for sentence in relation to two offences to which he pleaded guilty at the Local Court and was committed for sentence to this court. He is also to be dealt with in relation to two related offences that are set out on a s 166 Criminal Procedure Act Certificate in accordance with the provisions of s 167 of that Act.

2 The offences to which he pleaded guilty are, firstly in time, that he on 6 October 2006 at Gulgong in the State of New South Wales did drive a vehicle, to wit an unregistered Toyota Hilux utility XOF 063, when it was involved in an impact occasioning the death of Gerard Haswell, and at the time of the impact the said Murray Douglas Dale was driving the vehicle in a manner dangerous to other persons. This is an offence brought pursuant to s 52(A)(1)(c) Crimes Act 1900 and carries a maximum penalty of ten years imprisonment. There is no applicable standard non-parole period for that offence.

3 The second offence to which the offender pleaded guilty is an offence alleging that he between 6 October 2006 and 25 October 2006 in the State of New South Wales did an act, to wit provide false information to police and other persons and conceal evidence, and did otherwise approach Justin Turner, Luke Turner and Jimmy Dean endeavouring to get them to provide a false account to police with intent to pervert the course of justice. This is an offence contrary to s 319 Crimes Act 1900 and carries a maximum penalty of fourteen years imprisonment. Again, there is no standard non-parole period for this offence.

4 Although the second offence in time has a greater maximum penalty, it is clear that the more serious of the two offences is the first offence of dangerous driving causing death to Mr Haswell. The two matters on the s 166 certificate, which are integral in reality to the facts with which I am concerned are an offence of - as it is expressed in the certificate - driving with three unrestrained passengers, for which the maximum penalty is one penalty unit, and an offence of “use unregistered registrable class A motor vehicle” (sic) for which there is a maximum penalty of twenty penalty units. I note in passing that all the other offences on the certificate one related, the others - back up offences - are, in due course, to be dismissed.

5 In this matter the proceedings commenced before me at the Orange sittings of the Dubbo list of the District Court. I was provided with what was literally a box of documents comprising two versions of the Crown brief and some other material, and ultimately a statement of facts was tendered. However, an understanding of that statement of facts, which appears to me to have been prepared on the committal of the offender, needed examination closely of the voluminous other material which was provided to the court. From the totality of the material tendered in court, including other exhibits that have been provided by the parties, and of course having regard to the submissions of the parties in respect of the objective facts, I conclude the facts in relation to the two principal charges are as follows.

6 Firstly, in relation to the offence of dangerous driving causing death, the offender on 6 October 2006 lived at a property called, Westwood, which is described in the facts available to me as being approximately six kilometres west of Gulgong. Mr Dale at the time of these relevant events, as I understand the matter, was thirty-two years of age, he was a married man with children and was a farmer, as were his parents and, as I understand it, other generations beforehand of his family in this district.

7 On 6 October 2006 during the day he was working at another property described as “Kenobies”, which was located approximately two and half kilometres east of Gulgong, approximately eight and a half kilometres from his own property. After work at about 5.30 pm, in company with some men by the names of Chris Jackson, Jimmy Dean, Anthony Westerway and two juveniles, LT and JT, he drank some alcohol at a shearing shed until about 8pm.

8 At some time during this period the offender received a telephone call from a friend of his called Nicholas Wright enquiring as to whether or not he and the deceased Gerard Haswell could go shooting at the offender’s farm, which I take to be Westwood, although the Dale family apparently own at least two properties in the district. The offender returned to his own property, and eventually Mr Wright, Mr Haswell, a man called Peter Curran, Ian Vale and a woman named Justine Ford came to the property to go on what was described in the statement of facts as a “hunting party”. The offender’s family owned another property called “Suitors” located about one and a half kilometres south of Gulgong.

9 Whilst the offender was at home at Westwood a neighbour of that property had rung the offender’s wife to tell him that there was a dog amongst the sheep on his property. The offender was initially proposing to go over to that property but ultimately decided not to go. The circumstances of a dog being on the property became quite relevant to matters more pertinent in most respects to the second charge in the indictment.

10 The offender apparently, apart from a registrable vehicle, owned an unregistered motor vehicle described as a Toyota Hilux tabletop utility. It had numberplates fitted but was effectively a farm vehicle used as a shooting vehicle. It had a number of large spotlights fitted on the roof. I have seen a photograph of the vehicle. It appears to have some type of roll bar or protective bar across the roof and around the side and front of the vehicle. When interviewed on 10 October 2006 the offender admitted that the back brakes did not work and that the front brakes were inadequate. In fact, when the front brakes were eventually inspected by relevantly qualified police, it was found the foot pedal did not operate the front brake. It is clear that this vehicle had been in this condition for at least some weeks, as was admitted by the offender, and it was in no state to have been driven at all, let alone on a public road.

11 The offender went shooting with Justine Ford and Mr Wright in the front passenger seat. Mr Wright was in possession of a rifle. The three other men, Mr Curran, Mr Dale and Mr Haswell were on the tabletop at the back of the truck. I understand these men, or at least some of them, had firearms. None of the passengers on the real tabletop were either restrained or could be restrained and clearly the tabletop was not designed for, or capable of, safely conveying passengers. The party shot some deer and a kangaroo and a rabbit.

12 There was asserted in the facts that the offender’s driving was criticised to some extent by at least one of the passengers whilst driving, as I understood it, on the Westwood property. Ultimately I have come to the conclusion that this criticism, or the observations of his driving at that time, is not of relevance to the assessment of the objective seriousness of the offence with which the offender is concerned. This aspect of the matter, in my view, is disconnected in time and circumstances to the circumstances surrounding the death of the deceased, although it is true to say that at the relevant period of time the offender was driving the same unregistered vehicle with unrestrained passengers as he was later on when the deceased was killed.

13 I note in relation to his driving, as I understood it on the Westwood property, that some passengers saw no problems with his driving, and such criticisms that were made on close examination of their versions were ultimately of relatively minor character.

14 Eventually, after the initial shooting exercise, it was decided to drive on a public road to another property approximately twelve kilometres from Westwood. The offender drove the motor vehicle along what was called the Spring Bridge Road, as I understood it. On this occasion Nicholas Wright sat in the cabin with Peter Curran. Ms Ford moved to the back with Mr Vale and Mr Haswell. My understanding is Mr Curran was sitting on the near side of the tray, Ms Ford was sitting in the middle between the two men, and Mr Haswell, who was carrying a firearm in one hand, was travelling behind the driver standing up. I understand that he travelled with a hand on, or gripping, the roll bar.

15 There are various estimates of speed of the offender immediately before the deceased fell from the vehicle. One could not conclude beyond reasonable doubt that the vehicle was travelling greater than fifty kilometres per hour. There are a range of estimates as low as thirty up to sixty kilometres per hour, but the general consensus was that the speed was no greater than fifty kilometres per hour, probably somewhere between forty and fifty kilometres per hour. I would have understood that the vehicle was driving within the applicable speed limit.

16 At approximately 9.30pm, about four kilometres from Westwood, an animal described as a possum appeared across the road. The offender either swerved or moved to avoid the animal, although there is some confusion amongst those present as to whether the vehicle moved to the left or the right in their various versions of events. In fact, Justine Ford, admittedly sitting at the back of the vehicle, did not believe the vehicle swerved at all, but understood or thought the vehicle was negotiating a slight bend and she felt hardly any deviation. The vehicle, at least in part, left the roadway briefly and then returned to the roadway. I would have understood this to suggest the vehicle moved primarily to the left. However, a combination of circumstances, including the unrestrained position of the passengers and the action of the vehicle, caused Mr Haswell to lose his grip, if in fact he had a grip at that point, and to fall to the roadway. Someone yelled out, “Ged’s off”, which was obviously a reference to the deceased. The vehicle stopped.

17 Some comment was made by Mr Wright to the offender, although in the circumstances one could not conclude with confidence that it was necessarily a reference to the manner of driving rather than the general circumstances. I must say on several occasions the Crown particularly focussed on what Mr Wright had to say about relevant matters. This matter was not addressed in the submissions made to me, but I have some reservations about the reliability of Mr Wright’s account in some respects, particularly when one has regard to the circumstances in which he came to give a truthful version in relation to relevant events, which is reflected upon by Charteris DCJ, and to which I will refer later. It must be pointed out that some of the observations made by Mr Wright are not confirmed by other persons. Ultimately it should be pointed out it is difficult to come to particular conclusions on some of these aspects because of the conflicts between various witnesses.

18 In any event, Mr Haswell was lying on the ground unconscious and he was bleeding very heavily from the head and had a faint pulse. It is clear everyone appreciated that he was seriously injured, but the facts are that no immediate aid was provided to him at that point. There was some debate and discussion as to how the matter should be handled. There were concerns expressed not just by the offender but by other people present about the state of the vehicle, the possession of firearms or the possession of a particular firearm that may not have been registered. There was some dispute about whether emergency services should be contacted or the victim should be taken immediately to hospital. And there was concern amongst those present about the unregistered state of the vehicle, as I have said.

19 The evidence available does not establish in my view that this delay was solely the fault of the offender. As I have said, there appears from the versions I have read some degree of panic amongst the group, and certainly an element of group mentality went into the relevant decision making.

20 There was a delay in leaving the scene. Some local witnesses heard some of the discussion, including raised voices, and estimated that this took place for up to ten to fifteen minutes. Certainly it would seem that approximately ten minutes after Mr Haswell fell to the ground passed before the offender in company with Mr Wright drove back to the offender’s property at Westwood, transferred the victim into a registered motor vehicle, a Nissan utility, and then drove to the Gulgong Hospital. Medical records suggest that they arrived at the Gulgong Hospital at 10.07pm.

21 Before I go on to subsequent events, there are some important matters that need to be analysed from the objective facts. The manner of driving dangerous, as established from the evidence, was driving a vehicle with brakes that did not work on a public road and in those circumstances manoeuvring to avoid an obstacle that ought have been foreseen to be on the road, although I am not satisfied the avoidance involved any violent movement of the motor vehicle, and driving with unrestrained passengers on the back tray at the time. There is no suggestion of excessive speed. In fact, although the vehicle clearly was in a dangerous condition, the speed was objectively modest.

22 Although there is some reference in the statement of facts to prior consumption of alcohol, it is not part of the Crown case that the offender was affected by alcohol at the time of this incident and this is not relied upon as a relevant factor.

23 In assessing the objective facts for the purposes of sentencing, one is required to have very close regard to several decisions of the Court of Criminal Appeal, principally Regina v Whyte & Others (2002) 55 NSWLR 252 and Regina v Jurisic (1998) 45 NSWLR 209. Jurisic, of course, was the very first guideline judgment in New South Wales and set a guideline for sentencing for offences of dangerous driving causing death and grievous bodily harm, absent statutory aggravating factors. As was said in a range of decisions, including Jurisic, Regina v Henry (1999) 47 NSWLR 346 at 357, Regina v Wong (1999) 48 NSWLR 340 (at 349, 363 and 369) and in the decision of Whyte (at 264-270), the guideline judgments were intended to be indicative only, they were not intended to be applied to every case as if they were rules binding on sentencing judges but represented a relevant indicator in sentencing for offences of this type. The general purpose of guideline judgments, as I said, is set out in those various judgments. Particularly in the decision of Whyte, the Court of Criminal Appeal reconsidered the guideline judgment in Jurisic in light of the High Court’s judgment in Wong v Regina, where the fixing of a guideline for Commonwealth sentencing was overturned by the High Court and because of recent decisions to that time concerned with what could be called the ‘black and white’ character of the concept of abandonment of responsibility. The deep gap that existed between a state of abandonment of responsibility and momentary inattention and/or misjudgement, was discussed, for example, in the case of Foster to which I was referred, from 2001 in the judgment of Badgery-Parker J.

24 The Jurisic guideline was altered in two significant respects. In relation to the first leg, as it has been called, of the guideline judgment, the Court of Criminal Appeal in Whyte held that 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 misjudgement. The second limb in forming the guideline to be applied varied what was held in Jurisic by holding that where the offender’s moral culpability is high, a full-time custodial head sentence of less than three years imprisonment in the case of death and two years in the case of grievous bodily harm would not generally be appropriate [229].

25 The learned Chief Justice said in the case of a low level of moral culpability: “A lower sentence will of course be appropriate.” He went on to say:

“The guideline is to reiterate a ‘guide’ or a ‘check’. The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all the factors required to be taken into account by s 21A of the Crimes (Sentencing Procedure) Act [232].”

Spigelman CJ said:

“This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration for reasons I have given above when discussing the proportionality cases, particularly R v Todd, this approach reflects the principle of proportionality as discussed in those cases [223].”

His Honour went on to say:

“Insofar as this guideline involves a two step approach to sentencing, it is, in my opinion, as a ‘check’ for the reasons given, consistent with an ultimate discretion that involves the exercise of a broad discretion sometimes referred to as instinctive synthesis [234].”

26 Of course since that judgment the instinctive synthesis approach has been amplified and confirmed in the High Court judgment of Markarian [2005] HCA 25. The guideline of course was concerned with a typical case, as it has sometimes been described. The characteristics of a typical case being set out, for example, at [204] of the decision in the guideline. This matter in many respects fits within the rubric of a “typical case” if such a typical case is even capable of definition. I appreciate there is a dispute in this case as to the extent of any weight to be given to any remorse expressed by the offender, but on the other hand a plea of guilty in this matter is not one of “limited utilitarian value”, and I further point out that the victim in this matter was not a stranger to the offender. In relation to the matters identified in Whyte and Jurisic as aggravating factors, these aggravating factors of course have been set out again in Whyte at para 216.

27 The particular aggravating factors arising here are that at least three people were put at risk by driving a dangerous motor vehicle on a public road where those people were not restrained. The length of the journey contemplated was, as I understand it, the twelve kilometres to the other property and back again, although the impact occurred after four kilometres. I note the nature of the injuries suffered by the deceased is of course part of the elements of the offence, in that the deceased unfortunately died as a result of his injuries. The relevant maximum penalty with which I am concerned here, which is always an important matter in any sentencing exercise, is in fact as a result of the death of the deceased.

28 Although I have referred to the fact that there was some warning given by at least one person to the offender about driving on his own property, it could not be said that the particular driving giving rise to the charge involves any ignorance of warnings on his part. I have read the accounts of those present when driving on the property, as I have said, and I have noted the conflict between the versions. Some people, including the woman who was sitting in the passenger seat, were comfortable with the driving. Such criticisms, as were made of his conduct on the property, to my mind were, in the scheme of things, not of a serious character. Be that as it may, the driving prior to the falling off of Mr Haswell, including the movement of the car to avoid the possum, arose out of the circumstances then confronting the offender, not as a result of any prior course of conduct other than that identified in the particulars of dangerous driving to which I have referred earlier.

29 Allowing for these aggravating factors, but noting the absence of speed and alcohol as contributing factors, it could not be said, in my view, that the conduct involved amounted to a high level of moral culpability. The victim fell from the vehicle because he was unrestrained and because it would seem the car shifted direction to avoid collision with an animal. Whilst there was a potential risk at all relevant times because of the absence of brakes and the unrestrained situation with the passengers, and of course bearing in mind that s 52A Crimes Act is concerned with objective risk which may be potential and actual, the conduct of the offender that caused the death of the deceased was primarily limited to a very short period of time, even allowing for the distance contemplated to be travelled with unrestrained passengers in the absence of a proper braking mechanism.

30 I note at the time the deceased was a friend of the offender, and Mr Wright had sought the offender’s permission to come to his property to shoot on his property. Although this is not a mitigating factor, it is, as I said, a feature different from the typical case. I should point out of course, in the context of what the High Court has said subsequently in Markarian, an assessment of the varying aggravating factors and their significance in the sentencing exercise will vary depending upon the facts of the case. The circumstance of intoxication or substance abuse might, in a particular case, be seen as an aggravating factor far more serious than the number of people put at risk by particular driving which is absent features such as excessive speed and intoxication.

31 I accept, as the Crown has put to me, that the section is designed to protect road users, not just the victim. The Crown took me to the decision of R v Errington [1999] NSWCCA 18 at [27-28], and of course I accept and acknowledge the force and wisdom of the observations of Dunford J in that case. No issue as to contributory negligence arises in this matter, nor is it relevant, as was held in Errington.

32 Assumption of some of the risk involved is itself part of the factual matrix, but of course there is no evidence that the victim knew that the car was going to change direction. Of course I bear in mind that the offender must have foreseen that people would have been standing on the back of the tray. It would appear that they had done so earlier in the evening, and it must have been reasonably foreseen, given the fact that they were out there shooting animals, that an animal may come onto the road and that he may in some way have to avoid it. In relation to matters concerning the application of the guideline judgment that has been discussed in other cases, I note what has been said in another decision referred to: Regina v Errington (2005) 157 A Crim R 553, at [40] (involving a different appellant than the 1999 case):

“It is erroneous to treat the Whyte guideline as a starting point rather than a reference point. The reference point is not the same thing as a starting point so long as appropriate adjustments are made in accordance with the guideline.”

33 In Regina v Berg (2004) 41 MVR 399 Howie JA, with whom the learned Chief Justice and the learned Chief Judge at Common Law agreed, said at para 21:

“The factors in the list set out in Whyte as indicative of a typical case to not operate as a check list for the presence or absence of characteristics having some mathematical relationship with sentence to be imposed, they merely describe the typical case and were not intended to circumscribe the sentencing judge’s discretion.”

34 Of course these observations are entirely consistent with the observations made in Markarian reflecting upon earlier High Court dicta about lack of mathematical precision required in sentencing (R v Wong). In fact there is a lack of mathematical precision that it is possible to undertake in sentencing when weighing competing considerations. While the guideline focuses on the objective circumstances of the offence, the subjective circumstances of the offender may require consideration and may be deserving of considerable weight: Regina v Tzanis (2005) 44 MVR 160, of course referred to in a different language by Spigelman CJ in Whyte. Furthermore, the aggravating factors listed in Whyte remain “illustrative” not definitive of what is capable of representing either abandonment of responsibility - to use the words in Jurisic - or a high level of moral culpability - to use the words in Whyte (see Regina v Errington (No 2) [36]).

35 With regard to the length of the journey, it is the intended journey not the journey attenuated by the collision that is to be considered. But in Regina v Takoai (2004) 149 ACR 593 her Honour has pointed out that the danger created by the length of the journey will vary according to other circumstances, such as the time at which the journey is undertaken, the amount of traffic and the locale. I bear in mind that this was in the evening and I would assume, and I read no evidence to the contrary, that traffic was extremely light. There appears to be nothing in the conditions that might have suggested danger in driving, putting aside of course the dangerous aspect of driving a motor vehicle with no brakes. There is no reference to any other traffic at relevant times.

36 With regard to the issue of what is moral culpability and how it can be measured, in Regina v Gardiner [2004] NSWCCA 365 Smart AJ, with whom the Chief Justice and Grove J agreed, said at para 41:

“In determining the degree of moral culpability regard is had to all the circumstances. On occasions it is the combination of a number of circumstances which leads to the conclusion that there is a high degree of culpability. It is erroneous to take a restrictive view of the circumstances that can lead to the conclusion that there is a high degree of moral culpability.”

37 And of course there are the observations in the decision of Errington (No 2), where Mason P, with whom Grove and Buddin JA agreed, set out the various matters at paras [26-27]. The learned President said that there was a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing levels of abandonment. It is not required that cases be assigned to one or the other two pigeon holes marked respectively momentary inattention or misjudgement and abandonment of responsibility. His Honour was referring to what Simpson JA said in Regina v Khatter (2000) NSWCCA 32, in keeping with the observations of Badgery-Parker J in Foster.

38 It was submitted on behalf of the offender that the driving offence was a case of misjudgement. It was submitted that this was an exceptional case which calls for consideration of a non-custodial sentence. I do not believe that this is an exceptional case that calls, in effect, for no penalty, so to speak, in the sense of a non-custodial penalty. But there are objective factors in the context of the Whyte criteria that make this offence short of a case of high moral culpability, as discussed in the authorities to which I have referred.

39 Of course, then there are, in fixing the appropriate sentence, the relevant mitigating factors arising from favourable subjective circumstances. The Crown submits that this is not a case of misjudgement, not of misjudgement in the momentary sense certainly. His submissions are centred on, quite properly, a period over time where any alleged misjudgement had occurred. If the conduct of the offender could be categorised by the word “misjudgement”, it was misjudgement over a period of time not concerned with a momentary lapse on the part of the offender, having regard to all the particulars of the dangerous driving.

40 There is a degree of moral culpability to be identified. Whilst it is not high, it is not at the lowest level. It is extremely difficult for a human such as myself to quantify such matters. The concept involves the consideration of many matters, some of which were debated, in the most amiable of senses of course, with the learned Crown prosecutor at one point. Ultimately I would categorise the moral culpability of the offender on a synthesis of all the objective circumstances as at the lower end of the mid level, if that expression can be seen to have any proper meaning. The offence itself focuses on the objective factors, which of course go to the issue of assessing the moral culpability.

41 The events upon the offender’s arrival at the hospital and subsequent events give rise to the second charge. The offender before arriving at the hospital had taken the victim in the unregistered motor vehicle back to Westwood and then on to the hospital in a registered vehicle. There was a diversion which would appear to be of at least, on my calculation, one kilometre, although it is difficult to measure, and there was a loss of time. It is argued that changing vehicles enabled the offender to take the victim in a car that was capable of being driven at a higher speed than the unregistered vehicle. Even allowing for this it seems again that ultimately there was lost time. There may have been some element of self interest in this, but I am satisfied ultimately that the self interest that has been identified at various points in the Crown’s submissions arose out of a confusion of considerations, including the reaction engendered by panic.

42 Without any medical evidence to the contrary, I am unable to conclude that this delay contributed to the victim’s death. Whilst I have no doubt that the medical staff at Gulgong Hospital are highly professional and took heroic efforts to save the deceased, the victim suffered catastrophic life threatening injuries, and the capacity of the local hospital to prevent death or even sustain life without dramatic neurosurgical intervention, which was not available, must have been very limited indeed.

43 However, the delay in getting the victim to hospital and the subsequent false story told to police does reflect adversely on the offender and others involved in this, and it does reflect a greater degree of interest in themselves and their own circumstances than care of the victim, or the truth of the situation at that particular time. I believe in the context of the wider facts, that is the friendly relationship, as I understood it, between the victim and the offender, the good character of the offender, and the fact that the death of the deceased was an unintended consequence of what was meant to be an enjoyable leisure activity, indicates clearly that was done was done out of a degree of panic.

44 The offender gave a false story on arrival at the hospital to the doctor, critically to the victim’s father and the police. One of the features of the facts available to me is that it would seem, bearing in mind it must have appeared that the offender was at least in some way responsible for the victim’s death, that the victim’s family offered compassion to the offender and the opportunity of, as I understood it, staying at their house, or staying with them, to be comforted. The offender gave a false version to the police, and it is what is provided to the police in part that forms the particulars of the second charge. Both Mr Wright and the offender maintained a story throughout that night, that the victim had fallen from the utility while they were at the property, Suitors, that there were only three people in the vehicle and they were looking for a dog amongst sheep.

45 The victim had passed away within an hour of his arrival at the hospital. In relation to this matter the offender provided a false statement to police on 9 October. He went through a false reconstruction of what had happened to the victim, and identified the wrong location consistent with this false statement. This statement and the offender’s demonstration led the police to conclude that it was a farming accident, bearing in mind that the physical injuries to the deceased were consistent with the version given by the offender, which was itself consistent, in a very general sense, with the way in which the victim had in fact been injured but in a different location. The injuries to the deceased were consistent with the victim falling from a moving vehicle.

46 On 10 October 2006 however, Justine Ford attended upon the medical practitioner who treated the deceased on 6 October and gave a true account of events. Mr Wright was being interviewed on 10 October 2006 when the offender attended the Gulgong Police Station with his wife. It is clear on this evidence, and this is a relevant matter to some of the matters advanced unfavourably to the offender by the Crown, that the offender’s conscience had got the better of him, and his family, bearing in mind he must have revealed the truth to his family, persuaded him to go to the authorities. He, on that date, participated in a short interview and acknowledged that the incident had in fact occurred on a public road in the general circumstances to which I have referred.

47 He told police that he could not lie any further, and he admitted to lying as to how many people were in the car and as to which vehicle he had been driving. He admitted that it was dangerous to have so many on the back of the utility, and he said that he had panicked. Of this I have no doubt, and this caused he and others to abandon their common sense. Of course the offender’s involvement with the second offence did not end with these false versions to police. Inquiries of course began to focus on the extent to which alcohol was a contributing factor, and other persons who may have shed light on this matter were spoken to.

48 The offender again spoke to police on 25 October 2006 in company with the two juveniles, LT and JT. The police made an arrangement for these young males to speak to police later in the company of their parents. They were brothers. Before they gave their statements however, the offender said to them, “Just tell them that I had two beers, one when we finished work and one when I went back to take you home. Just remember that.” He also said that he would write out a letter for them to remember what to say, and LT was provided with a handwritten piece of paper which contained a version the offender wished to relate to police. The offender also told Jimmy Dean to tell the police that he only had two beers, and told him to tell the police a story concerning how they came to buy a carton of beer. The versions of the brothers, Jimmy Dean and Chris Jackson, as to approaches made by the offender to some or all of them, corroborate one another.

49 I note in relation to the initial lie told by the offender as to the circumstances of the offence, that it did involve by definition an admission of some responsibility for the death of the deceased. But the concern was directed on his part at other aspects of the matter, including the fact that he knew that he was driving on a public road with an unroadworthy vehicle and he had unrestrained passengers, which clearly contributed to the victim’s death, and clearly these matters were matters of self interest, whether engendered by panic or not. It is to be borne in mind that three to four days later he went back and sought to correct the story. He could have held out for much longer against the inevitable, which would of course have aggravated the circumstances of the second offence.

50 Then fifteen to sixteen days later he showed glimpses of further self interest. To my mind these matters reflect human failings. They can occur with people even of good character. Ultimately the conduct of the offender over this period of time, reflected in count 2, is to be considered as lessening the weight to be given to claims of contrition. Some suggestion was made, as I understood the submissions, that it reflected upon the moral culpability of the first offence. In my view this cannot be so. Conduct and the character of consciousness of guilt in this case is not part of the moral culpability for the offence of driving in a manner dangerous. I would have thought what the learned Chief Justice said in Whyte makes that clear.

51 I bear in mind the offender confessed ultimately on the urging of his family, and the responses to his family’s urging are themselves a reflection of what one would expect of a person of good character to do, even if his good sense had been abandoned for some period of time, having made a series of mistakes. His continued attempt afterwards to cover his tracks was, on one view of it, limited. It was ultimately unnecessary because the issue of alcohol has faded away.

52 In the Crown’s submissions the Crown reflected upon the conduct after the incident as suggesting that the offender thought it more important to protect himself than to give aid to Mr Haswell. If the offender’s conduct be characterised as that in the context of what I said earlier, there are elements of a joint decision being made in relation to this matter, as the various versions of those present make clear. The offender is said not to have any genuine remorse in this matter reflecting upon what occurred, particularly immediately after, and relying upon what was said by Mr Wright, I believe to some extent out of self interest. It does reflect, as I say, adversely upon the weight to be given to any expressions of remorse, but I do not believe ultimately that the remorse that has been expressed by the offender could be said not to be genuine.

53 Mr Wright was convicted of hindering a police investigation, and on 31 March 2008 at the Dubbo District Court he was dealt with pursuant to s 10A Crimes (Sentencing Procedure) Act. I have Charteris DCJ’s remarks on sentence. It is clear from his Honour’s remarks of the facts presented to him that Mr Wright admitted his wrong doing in this purported cover up because of the offender’s sudden appearance at the police station with his wife. I note Mr Wright pleaded to a lesser offence than that originally levelled against him and the offender. Of course the offender had more to gain than Mr Wright from this cover up, if we can call it that, but it seems to me that the offender’s conscience came a little earlier than that of Mr Wright, although Mr Wright of course bore no ultimate responsibility for Mr Haswell’s tragic death. No parity issue arises out of Mr Wright’s sentence for quite obvious reasons. But it is a matter to be taken into account.

54 In relation to the pleas of guilty the matter was listed as a committal for trial, and a number of witnesses were to be called to give evidence. As I understood it, this was to occur in April this year. Before the evidence was called, the offender indicated an intention to enter pleas of guilty at the Local Court and he was committed to the District Court for sentence on the principal charges.

55 It must be said there is substantial utilitarian value in the pleas of guilty. Thomson and Houlton sets out a range of discounts that may apply to recognise the utilitarian value of the plea of guilty in a particular case. The offender cannot receive the highest discount usually allowed despite pleading guilty at the Local Court, bearing in mind that the proceedings at the Local Court had involved arrangements being made for witnesses to attend. However, I am of the view, in accordance with the guideline judgment and in accordance with subsequent decisions, including Sharma, that the discount on the otherwise appropriate sentences for each matter ought to be twenty per cent, having regard to the timing of the plea and the substantial savings in time and cost to the community in the pleas of guilty. This is generally in accord with the submissions of the prosecution.

56 The offender has no criminal convictions. He does have a conviction at the Gulgong Local Court a few years ago for carrying an unrestrained dog on the back of a moving vehicle on a street, for which he was fined a hundred dollars and ordered to pay court costs of fifty-two dollars. I do not relate that offence to the circumstances of this matter. As for his traffic record, or other traffic record, he has traffic infringement notices issued to him for exceeding the speed limit by not more than fifteen kilometres per hour on 4 October 2005, not wearing a seatbelt on 16 January 2002 and 6 November 1999, and exceeding the speed limit by more than thirty kilometres per hour on 3 April 1998. He was issued with a learner’s licence in October 1990 and an unrestricted licence in June 1991. Although there appears to be some error in the traffic record because the provisional licence appears to have been issued on the same day. Be that as it may, noting the matters on the record, it could not be said that his traffic record shows the offender has a consistent disregard for road safety. Whilst his traffic record is not exceptional, it does not give any indication of an attitude of lack of responsibility as might be reflected in the case of prior convictions for drinking driving, driving in a manner dangerous or driving in a speed dangerous to the public, or other traffic offences of a more serious nature than those for which he received infringement notices.

57 I have a Probation and Parole Service report dated 16 June 2008 in relation to his social conduct. It notes the offender is a social drinker and a family man. It notes the background of the offender, to which I will come to in a moment, his father’s age and the fact that the offender bears the responsibility for managing the family properties. It notes the financial circumstances are difficult at the moment with the drought. The property apparently managed by the offender has been receiving two years of drought assistance, at least up until the time of the report. The report notes that the offender comes from a very close and supportive family and he has successfully conducted the family’s affairs as an adult, and he has a close and supportive relationship with his wife and children. He does not take any prohibited drugs. He was born in April 1974 and is now thirty-four years of age.

58 He did not give evidence before me, but I am prepared to accept on the totality of the material from various histories given to a psychologist and the Probation and Parole Service report, and from the character evidence that he has adduced, that he was educated to Year 10, he has undertaken a series of courses of an agricultural and related character, and, as I said, he has worked all his life on family properties. He has two small daughters aged four and two and he has been married for seven years. He has qualifications as a wool classer and a welder, amongst other matters. There are a large number of referees from different aspects of the Gulgong community and beyond who have provided references attesting to the good character of his family, who are respected farmers within the Gulgong district for a number of generations, and the offender is described as a family orientated man, who is generous, usually cheerful and helpful to neighbours and other persons within the community. The local stock and station agent describes him as “Compassionate, thoughtful and caring” with “an extraordinary work ethic.

59 His family are regarded as “quite decent law abiding people.” A local retired solicitor has described the offender’s conduct as “totally out of character”. This gentleman found the offender to be “quite conscientious, hard working, generous and caring.” He finds it difficult to reconcile the offender’s actions, both in relation to his driving and his subsequent conduct with the person with whom he is acquainted. The offender has expressed his remorse to that person and others. Business people with whom he has dealt speak of his honesty and responsibility and his personal affairs and his business affairs. A former local policeman described him as “honest, trustworthy and a man of integrity”, and he regarded the offender during his time in Gulgong as a “law abiding and an all round good decent person.” Several of the referees speak of the offender’s expressions of regret for his conduct and that his conduct was uncharacteristic.

60 A medical practitioner at Mudgee treated the offender since 2007 for symptoms of depression, obviously reactive to his current circumstances. The offender has presented as anxious and suffering a difficulty in sleeping and enjoyment of life. The doctor felt that he was suffering from anxiety, with some features of what the doctor described as post traumatic stress disorder. He referred the offender to a psychologist. I have no doubt of course that the offender is reflecting symptoms reactive to the circumstances in which he now finds himself.

61 Today I was given a report from Dr Glenys Caterson, who is a medical practitioner, it would appear now practising in Dubbo. She was present at the time that Mr Dale drove the deceased to Gulgong District Hospital the night he died. She said she was in charge of resuscitation procedures. She said at the time Murray was very helpful and assisted with CPR and lifting him into the hospital. She said that Murray was “quite genuinely distressed at the time and immediately after while he was at the hospital.” She understood what she calls the “subsequent problems” that have resulted from this court case.

62 She saw the offender recently in September 2008 and she noted he was distressed, some suicidal ideation and was concerned for the impact of his current predicament upon his wife, his children and his parents. He stated that he had lost a friend, a true friend through a terrible accident and was terribly sorry for his actions. He said never a day passed that he does not think about that night, and she believed that his condition - depressive symptoms and the like - was reactive to this situation. He was placed on Zoloft. She said he needs counselling. I have taken her report into account, both as to relevant subjective matters to the sentencing process and reflecting upon circumstances pertinent to particularly count 2.

63 The psychologist, having undertaken a Personal Assessment Inventory (PAI) noted an elevation on the depression scale and noted symptoms consistent with a significant depressive experience. The offender had feelings of sadness, loss of interest in normal activities and other enjoyment of life. He complained of anxiety and feelings of stress. There was no history of antisocial behaviour, problems with empathy, moodiness, impulsivities, suspiciousness or hostility. There was no significant alcohol and no drug dependence problems. On assessment, through the inventory, he was described as being self critical and pessimistic, dwelling on past failures and lost opportunities, blaming himself for setbacks in life. He had transient thoughts of self harm, but there are no other abnormalities. Certainly there are no psychological conditions which could contribute to the assessment of his criminality.

64 The psychologist was not, in my view, qualified to express any medical opinions, but he did say the offender presented with symptoms consistent with a person suffering a major depressive illness and a post traumatic stress disorder. He undertook two counselling sessions and requires further counselling. I do not believe the psychologist’s opinions are compromised by some self serving statements made by the offender in relation to the second offence, and I believe that there are some limitations to the opinions by reasons of the qualifications of the reporter.

65 The offender has written a document addressed to the court, as I understand it, reflecting upon the impact of what has happened. He makes the point that the words, “if only” had been played over and over again, and constantly driving past the scene of the incident is a constant reminder of what happened, and the event has had a significant effect on the offender’s life as it will do into the future.

66 I have a statement of the offender’s monthly duties on the property over the period from the beginning of the year to the end of the year, and it sets out a large number of seasonal activities which I have taken into account in considering the ultimate disposal of this matter. There are not exceptional circumstances of hardship I would have thought arising out of that material, nor are they urged to be considered that way. But the matters within that report and in the character evidence reveal that the offender is an industrious person within the community. He has a contribution to make to the community and in my view this is a relevant factor to the orders that I have foreshadowed.

67 The father of the deceased read a victim impact statement concerning the effect of the deceased’s death upon himself and his wife. The deceased was, as I understood it, unmarried without children, but he was a young man with his life ahead of him. He was a valued member of the local community. He was productive and industrious and properly well loved by his family. The family feels a great sadness at the fact that their son’s life has been cruelly and prematurely brought to an end without the deceased having the opportunity to achieve his potential and to achieve his aspirations in his life, and particularly in business and his sporting interests, having his own family and the like.

68 I accept that the deceased’s death occurring suddenly was a very cruel blow, and the effect on the family has been made much greater by reason of the events immediately after his death when the father of the deceased was given a false story as to his son’s death. I note that a previous impact statement which tended to concentrate more on criticising the offender was withdrawn by the Crown. I read that document of course. I had to first of all read it to assess it but it is no longer relied upon.

69 I note however, as it might fairly be understood, that the parents of the deceased are very bitter towards the offender, not only because of his actions causing the death of the deceased. In fact, as I said, there was an offer of compassion from them to the offender, notwithstanding the fact there may have been some suggestion the offender was ultimately responsible. The bitterness stems from the way the offender handled the situation. The bitterness, anger and of course distress is very much to be expected. I am required to take into account the material within the victim impact statement pursuant to the relevant provisions of the Crimes (Sentencing Procedure) Act.

70 In fairness to Mr Haswell (Snr) what I have said is no criticism of him. The reactions of the parents of the deceased are very natural reactions to be expected from most, if not all people, and I note that he read his statement with dignity and I would expect, great courage.

71 It should be understood however that the sentencing of offenders for crimes is not to be undertaken in a context of emotion, vengeance, bitterness and the like. It is to be undertaken in accordance with the law and in the context of recognising the various purposes of sentencing that are to be considered pursuant to s 3A and all other relevant matters. Retribution, as it is expressed as a purpose of sentencing, is not about revenge. This court and other courts regularly are required, very unfortunately and in very difficult circumstances for the judge, to sentence offenders responsible for the deaths of others. The conduct in question converge from the very deliberate to the very malicious to the negligent and the inadvertent. The sanctions of the law and the objective seriousness of the offending are not measured solely by the consequences of the actions of the offender, or even the views of individual judges, but are to be assessed in the context of the character of the offence charged, the relevant objective circumstances, but knowing always that relevant objective circumstances need to be considered in the light of matters of mitigation that may arise from subjective circumstances. The sentence imposed is not an expression of value for a lost life.

72 In respect of the sentencing of the offender in regard to the dangerous driving case, I have had regard to several authorities to which I have been referred: Regina v Vitasovic (2000), Regina v Pisciuneri [2007] NSWCCA 265, particularly between [53] through to [77], Regina v Katoa [2000] NSWCCA 223, and of course Errington. I have also, in the context of dealing with the second charge, had regard to Regina v Giang.

73 I have been helped very much, as I said, by the submissions of the parties. Mr Dalton SC provided very helpful written submissions. I have taken into account the statistics provided in relation to the two offences with which I am concerned. They, of course, cover a range of conduct and I appreciate the limitations of statistics discussed most pointedly by the Chief Justice in the 1998 case of Regina v Bloomfield, discussed again in fact recently by the learned Chief Justice in an article for the Judicial Review. The factual circumstances of particular offences will vary markedly, as will the subjective circumstances of offenders. Of course, one needs to consider whether sentences have been imposed having regard to periods of time in custody previously served and whether sentences are imposed by relationship to other sentences and the like. But the statistics provide a general outline of the range of sentences that might be applicable under particular statutory provisions.

74 I am required to sentence the offender in accordance with the decision of Pearce v Regina (1998) 194 CLR 610, particularly the observations of the majority at para [45]. Here, in my view, apart from fixing an appropriate sentence for each offence, I am required to partially accumulate one sentence upon another to reflect the totality of the criminality. It should be fairly said the two offences have a relationship to one another, one arises solely in reality out of the circumstances of the other. In my view, it could not be fairly said that the second offence provides an aggravating feature of the first offence, the criminality of each matter must be considered separately.

75 I am required to have regard to s 3A Crimes (Sentencing Procedure) Act, which I do. The various purposes of sentencing were said, in another sentencing era in the decision of Veen (No 2) v Regina, to sometimes point in different directions. Of course then the majority of the High Court could only identify four purposes of sentencing and now there are at least seven to be identified from the section. In some respects it should be fairly said that aspects of the purposes of sentencing are somewhat incorporated into the reasoning behind the sentencing guideline set out in Whyte and Jurisic, matters of general deterrence reflected in the need for a guideline and the like. There is a need to ensure that the offender is adequately punished to deter him and others, although personal deterrence, in my view, is not a significant matter in this case, because I do not believe that the offender is at risk of re-offending. I do not believe that the community needs protection from the offender. I believe I should promote his rehabilitation in the orders that I make and promote his opportunity to make a contribution to the community perhaps, make a contribution that might, to some extent, supplement the contribution too that could have been made by Mr Haswell had he survived. However he must be made accountable for his actions and his conduct should be denounced and the harm to the victim should be recognised.

76 Turning to s 21A Crimes (Sentencing Procedure) Act, I note in relation to s 21A that the relevant aggravating and mitigating factors therein contained, although they are not exclusive aggravating and mitigating factors that may be taken into account, are matters which, if relevant and known to the court, do not require the court to increase or reduce the sentence for the offence. In relation to the dangerous driving offence under s 21A (2) of the Act, there are ultimately to be identified no “aggravating factors”. The aggravating factors in the offence are to be found in the facts as I found them by reference to other matters. This offence was not planned in any way. Clearly it was an offence that arose out of the circumstances of seeking to undertake a pleasurable activity, and the planning suggested in sub para (n) is of a different character than that contemplated in this particular offence. Ultimately, having regard to what was said in Regina v Elyard [2006] NSWCCA 43, I have come to the conclusion, for the reasons therein discussed, that this was not an offence committed without regard to public safety.

77 In relation to the second offence however, it seems to me there are two aggravating factors, or certainly one which is clearly established. The first aggravating factor is the offence involves a series of criminal acts, because the conduct involved the conduct of the offender between 6 October and 10 October, to which I have referred, and also involved the conduct on or about 25 October. I have considered the issue of whether the offence was “planned”. There was a limited amount of planning, at least to the second aspect of it, the writing out of some instructions, if I can call them that, or some notes for the juveniles has an element of planning. The early part of it seems to me to be more a reaction to the crisis, so to speak, even allowing for the fact that the offender carried on with the subterfuge, that I have referred to, for a few days until the 10th.

78 The mitigating factors arising are common to both offences. First of all, the first offence was not planned, as I have said. That is probably, limited to that first matter given what I have said about the second offence just a moment ago. More importantly, the offender does not have any record of previous convictions.

79 I am satisfied the offender was a person of good character. In that regard I just wish to deal with one aspect of the submissions of the learned Crown, who very fairly and ably represented the Crown’s interest. The Crown sought to assert that character in this case was “neutral”, and the Crown sought to assert that character was neutralised by the offender’s conduct in the second offence. In my view, firstly the character of the offender at the time of sentence must consider the good character of the good person at the time of the offence. Many a time one is sentencing an offender for an offence committed in the past when there have been subsequent offences, and usually the subsequent offences will be irrelevant to consideration of the character of the offender at the time of the commission of the offence, but not always.

80 The offender’s subsequent conduct to the accident and the conduct reflected in count 2, whilst it does not reflect well upon the offender, cannot neutralise a lifetime of good character. Bearing in mind that the respective conduct reflected in the offences is said by many of the character witnesses to be “uncharacteristic”, and it seems to me, with respect, without having the opportunity to over analyse it, the suggestion that the conduct of the offender in relation to the second offence abrogates his good character in some way involves some element of double dipping. It seems to me, to some extent, to confuse the objective circumstances of the offence with the character and extent of the evidence of a subjective nature, which is relevant to the assessment of the good character of the offender.

81 There is, I suppose, one matter of fine distinction to be pointed out. That is the good character of the offender available in relation to the first offence in time, may not be as strong in relation to the second offence because the offender had, by the time of the second offence, committed the first offence, and because the conduct involved in relation to the second offence showed an element of self interest, which is an aspect of bad character that might otherwise diminish good character reflected in suggestions of altruism in the past. But, ultimately, I am persuaded by the totality of the evidence, given my assessment of all matters, that the offender can rely upon good character in relation to both offences, perhaps to a lesser degree in respect of the second.

82 I am quite satisfied that the offender is unlikely to re-offend and I am quite satisfied that he has good prospects of rehabilitation by reason of the support network he has and his prospects of employment and industry.

83 With regard to remorse, I can note that the offender has expressed remorse. However, it would be fair to say as a mitigating factor under s 21A(3), the offender has not satisfied what is now required to establish remorse as a relevant “mitigating factor” under that particular provision, and in any event such remorse has been expressed, even though I believe he has expressed genuine remorse since late October, is diminished by the conduct set out in charge two.

84 I note the plea of guilty as a mitigating factor, as provided for in s 22 Crimes (Sentencing Procedure) Act, and I also note the offender gets the benefit of a discrete discount.

85 Ultimately I have concluded that the extent of accumulation should be six months. I have concluded that the discounts upon the otherwise appropriate sentences should be twenty per cent. Thus, the starting point for the second offence in time is eighteen months reduced to fifteen months imprisonment, and the starting point for the first offence in time is forty months - three years and four months imprisonment reduced to two years and six months, as I foreshadowed earlier.

86 I have determined that the term of imprisonment imposed should be by way of periodic detention. I am mindful of the fact that periodic detention carries within it inherent leniency. I am approaching this matter in the way that was discussed by Howie JA in Regina v Zamagias (2002) NSWCCA 17, that is by taking the several steps approach that is required before one arrives at an appropriate method of serving a term of imprisonment. It will be seen of course, as an act of leniency, to have imposed a term of imprisonment to be served by periodic detention but there are some features of this case that need to be noted. The offender is not a man who lays around his house watching television all day and will jump on a bus and go off to the Corrective Services institution and to come back to a week of rest.

87 The offender is a hard working man, I accept, and he will have to serve his periodic detention between the many tasks required of him for performance on the farm. He will be required to travel from Gulgong to Bathurst to complete the periodic detention in circumstances where he will not have a driver’s licence. Of course, in relation to the ultimate determination of the matter, giving due regard to the objective facts, I have concluded that in the scheme of things, both for the interests of the offender and the community, ultimately the opportunity for the offender to continue the family business by having the opportunity to work five days a week will be more productive for the wider community than the alternative of the offender serving a term of imprisonment where the opportunity for him to support his family and to maintain a business, which is in some difficulty at the present time, will be denied.

88 I am very very conscious about what has been said about the element of leniency. It has been discussed in a range of cases; Regina v Douar (2005) 159 A Crim R 154 and of course Hunt J in a decision of some years ago of Regina v Hallocoglu (1992) 29 NSWLR 67. It was also discussed in Regina v Rivkin (2004) 59 NSWLR 284.

89 Thus, in relation to this matter I will make the formal orders, noting the Probation and Parole Service report, which was provided to me, as I said, earlier, in relation to the offence of attempting to pervert the course of justice, that is the second offence in time, you are convicted. I am satisfied of the matters mentioned in s 66(1) Crimes (Sentencing Procedure) Act 1999. I have had regard to the matters mentioned in s 66(2). In respect of that offence you are sentenced to a term of imprisonment without non-parole period of one year and three months. That sentence will commence on 25 October 2008 and expire on 24 January 2010.

90 The sentence is to be served by way of periodic detention. In respect of this sentence you are to report to the officer-in-charge at Bathurst Periodic Detention Centre on Saturday, 25 October 2008 at 8.30 am to commence the sentence. Thereinafter you will be required to report every Friday evening at 7pm and perform the period detention ordered by this court.

91 In relation to the first offence in time, that is the offence of dangerous driving causing death, I am satisfied of the matters mentioned in s 66(1) Crimes (Sentencing Procedure) Act 1999. I have had regard to the matters mentioned in s 66(2). You are sentenced to imprisonment by way of a non-parole period of two years. I order that that sentence be served by way of periodic detention. In relation to that sentence I fix a parole period of eighteen months. That will commence on 4 April 2009 and will expire on 24 October 2010. The balance of the sentence will be one year and it will expire on 24 October 2011.

92 At the conclusion of the non-parole period I direct that you be released to parole. In respect of that order I do not require you to report to the officer in charge at a particular date because that sentence will be partially accumulative upon the periodic detention order that I have ordered, so it will involve an extension of the original order, such as to require you to continue to attend for periodic detention.

93 In fixing the non-parole period, I have made a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. The special circumstances are firstly that there is a partial accumulation of sentence requiring some adjustment of the non-parole period in relation to the balance of sentence. Furthermore, in my view, although the offender is not being released from full time custody, he will require professional assistance to adjust to community living. As will often happen for a person serving their first term of imprisonment, the offender, having served a first term of imprisonment by way of periodic detention, in my view will require an extensive period of counselling, as the medical evidence reveals. In that regard, although the Probation and Parole Service says there are no, if I can call them, crimogenic issues to be addressed, I believe the offender ought to have the benefit of the supervision of the Parole Service for the balance of the sentence for one year to enable those matters to be put in place. Thus, the non-parole period for the total sentence of two and half years is eighteen months with a balance of sentence of one year.

94 In relation to the various matters on the s 166 certificate, all the back up charges are dismissed, and the related charge described as ‘Related charge G’, “failure to stop and assist after impact causing injury” is dismissed as well, at the request of the Crown.

95 In relation to the offence of driving with three unrestrained passenger, the offender is fined the sum of one hundred dollars. The maximum penalty I hasten to say is one hundred and ten dollars. In relation to the offence of using unregistrable class A motor vehicle, bearing in mind of course that matter is one of the circumstances taken into account in relation to the principal offence, the offender is fined the sum of five hundred dollars. The maximum penalty is twenty penalty units.

96 In relation to the fines, the offender is granted twenty-eight days to pay those fines. If he needs an extension of time an application can to be made at the Local Court. In respect of the offence of driving in a manner dangerous to the public causing death, noting the entire criminality involved, in my view the offender should be disqualified from holding a motor vehicle driver’s licence of any type for two years from today. That two year period will commence today, which is 9 October 2008 and expire on 8 October 2010.

97 That means, Mr Dale, over the two year period you will not be permitted to drive a motor vehicle of any type on a public road. If you are detected driving whilst disqualified you may expect a magistrate to gaol you in light of the orders that are currently outstanding. You will need to surrender your driver’s licence today. Have you got your driver’s licence?

98 OFFENDER: Yes, I do.

99 HIS HONOUR: Would you surrender it to the court officer and she will give it to my Associate. Now, Mr Crown, any technical matters or other matters?

100 BAILEY: Would your Honour make an order that the offender’s fingerprints be taken?

101 HIS HONOUR: Today?

102 BAILEY: Thank you.

103 HIS HONOUR: Mr Dale, you will temporarily go into the custody of the Corrective Services people in order for your fingerprints to be taken, but you be released and you will be given the relevant paperwork in relation to the orders I have made within the next half hour or hour. Anything else, Mr Crown?

104 BAILEY: Other than that, your Honour, no.

105 HIS HONOUR: Anything else from you Mr Dalton?

106 DALTON: No, thank you, your Honour.

107 HIS HONOUR: I may have said the sentence for the dangerous driving matter commence on 24 April, I meant to say 25 April 2009 expiring on 24 October 2011 for the non-parole period, and for the total sentence and non-parole period expiring on 24 October 2010.