R v Bernhard

Catchwords: CRIME — Driving offences — Negligent driving occasioning death — Assessment of objective seriousness — Multiple elements of negligence — Causation — Intoxication — Speed — No low beam headlights activated — Failure to keep a proper lookout
CRIME — Sentencing
CRIME — Driving offences — Driving with Mid-range PCA

Legislation Cited: Road Transport Act 2013 ss 110, 117
Crimes (Sentencing Procedure) Act 1999 ss 3, 7, 66

Cases Cited: Giles-Adam v R; Preca v R [2023] NSWCCA 122
Hall v R [2021] NSWCCA 220
Hesketh v R [2021] NSWCCA 262
R v Brown [2023] NSWDC 477
R v Howcher [2004] NSWCCA 179
R v Koosman [2004] NSWCCA 359
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v McKeown [2013] NSWDC 22
R v Olbrich (1999) 199 CLR 270
R v Pullen [2018] NSWCCA 264
R v Smith [2016] NSWCCA 75
R v Storey [1998] 1 VR 359
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
Veen v The Queen (no 2) (1988) 164 CLR 465

Category: Sentence

Parties: Crown: Rex
Offender: Nathan Peter Bernhard

Representation: Counsel:
C Triscari (Crown)
B Ford (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Douglass & Ford Criminal Law (Offender)

File Number(s): 2023/00175021

JUDGMENT

1. On 1 December 2025 the accused was arraigned and entered pleas of not guilty to two offences of dangerous driving causing death with respect to two victims, Bobby Kelsall and Stephen Lippis.

2. On day five of the trial, 5 December 2025, a jury of eleven returned verdicts of not guilty to both counts. The offender thereafter entered pleas of guilty to two charges of negligent driving causing death and drive with mid-range prescribed concentration of alcohol.

3. The offender is therefore to be sentenced with respect to two counts of negligent driving occasioning death contrary to section 117 (1)(a) of the Road T**ransport A**ct 2013 and one offence of drive with midrange prescribed concentration of alcohol contrary to section 110(4)(a).

4. Negligent driving occasioning death carries a maximum penalty of 18 months imprisonment and/or a fine of 30 penalty units. Drive with mid-range prescribed concentration of alcohol carries a maximum penalty of nine months imprisonment.

5. The maximum penalties act as a sentencing guidepost or reference point.

Findings of fact

6. In making relevant findings of fact for the purposes of sentencing, I must not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, to the extent that facts in favour of the offender are to be taken into account on sentencing, it is sufficient if those circumstances are proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at 281 at [27]; R v Storey [1998] 1 VR 359 at 369.

7. The offender and the two victims Stephen Lippis and Bobby Kelsall were all friends who had previously worked together. The incident occurred at the home of Stephen Lippis where he lived with his wife. Bobby Kelsall lived in country New South Wales and happened to be visiting the Lippis family at the time. The offender resided at an address in North Nowra which was approximately 1.2 kilometres or a two-minute drive from Stephen Lippis’ residence. The offender had recently purchased a dual-cab Isuzu D-MAX utility.

8. On 31 May 2023 Lippis and the offender attended work together before going to the Bomaderry Hotel where they met Kelsall. Thereafter the group went to the Lippis house. At approximately 5:30 p.m. Lippis then drove the offender home. At about 6:14 p.m. the offender returned to the Lippis house in his own vehicle to pick up food which he had left there. At 6:41 p.m. the offender left the Lippis house to return home. CCTV depicted the two victims, and the offender walking out the front together. The offender was holding a container of food and each of the victims were holding a bottle. Each of the victims were wearing a dark coloured woollen jumper, dark coloured pants, matching light-coloured baseball caps and tan work boots.

9. There is no issue that at the time the offender arrived at the Lippis house he parked his vehicle in front of the house. The CCTV footage depicts the vehicle arriving with its low beam headlights illuminated. When the offender left in the vehicle his LED daytime running lights were turned on but the offender failed to turn on his low beam headlights.

10. The offender pulled out onto Condie Crescent, driving north towards the cul-de-sac end of the street before completing a three-point turn manoeuvre. CCTV from another residence then shows the two victims lying on the bitumen road about one metre apart directly in the path of the offender’s oncoming vehicle. They both laid face up with their heads towards the centre of the road and their feet towards the gutter with arms and legs splayed out.

11. The offender drove back down Condie Crescent in a southerly direction in about the centre of the road to avoid a large water cart parked on the left side of the street. Consistent with the expert evidence led at trial, I find that by the time the offender passed the deceased’s residence, he was travelling at approximately 54 km/h in circumstances where the regulated speed limit was 50 km/h.

12. The offender failed to see either victim lying on the roadway, resulting in his vehicle, at a speed of approximately 54 km/h, striking both men lying in a supine position. The offender immediately applied his brakes and brought his vehicle to a stop. He could see something on the road in his rear vision mirror. He reversed his vehicle to the side of the road before alighting. The offender was heard to say shortly after the accident “Oh no, I didn’t see them” and “I’m so sorry”. Attempts to resuscitate both victims were unsuccessful and both were declared deceased at the scene.

13. At 8:08 p.m. that evening a breath alcohol concentration test of the offender returned a reading 0.09 g per 210 L of breath. At 9:30 p.m. the offender was subject to a blood test at Shoalhaven Hospital which, following analysis, returned a blood alcohol concentration of not less than 0.071 g of alcohol per 100 ml of blood.

14. The various blood alcohol concentrations were the subject of expert evidence at trial. Dr Judith Pearl considered the most conservative estimate of the offender’s blood alcohol concentration at the time of the accident to be at least 0.082. Professor Christie considered that estimate to be “reasonable”, although he did not accept Dr Pearl’s opinion that it was the most conservative. Professor Christie considered the likely range to be lower. He accepted that the average or midpoint would only have been slightly below 0.080 although he accepted it could have been higher. I find that at the time of the accident the offender’s blood alcohol reading would have been approximately 0.082.

15. Post-mortem reports for each of the victims confirmed that the time of the accident Lippis had a blood alcohol reading of 0.153 g per 100 ml. Kelsall had a blood alcohol reading of 0.153 g per 100ml. Blood analysis also returned positive screening for cocaine and Kelsall’s blood showed the presence of cannabis.

16. There were no conditions with the roadway or weather that would have adversely affected the offender’s ability to manage the vehicle or impact his vision.

Assessment of objective seriousness

17. The offender accepted that it was open to the Court to find that he was negligent in four distinct respects being speeding (54 km/h in a 50 km/h zone), failure to activate the vehicles low beam headlights, failing to keep a proper lookout (not looking down the middle of the road) and driving ability impaired by reason of the consumption of alcohol. However, the offender contends that in assessing objective seriousness and culpability, the Court would find that the only element of negligence having any relevant causal connection with the accident was a failure to activate the headlights on the vehicle which directly led to the offender being unable to keep a proper lookout.

18. The Crown contends that this submission misapprehends the nature of the offence in that the offence has only one causative element, being whether the collision or impact caused the deaths.

19. In my view, both submissions misconceive the Court’s task in the assessment of objective seriousness.

20. By virtue of the offender’s plea, he has admitted that at the time of the accident resulting in the two deaths, he was driving his vehicle negligently. In order to assess the objective seriousness, it is unnecessary to make a finding beyond reasonable doubt as to whether the accident, and consequential deaths, were caused by any one or more of the particulars of negligence or a combination of all of them. Whilst one element of negligence may well have more causal potency, the fact is that the offender’s driving was negligent in four distinct respects, all of which must be taken into account in assessing the objective seriousness.

21. I accept that the offender’s speed was only modestly in excess of the regulated speed limit. With respect to the offender’s blood alcohol level and consequential impairment, the pharmacological experts agreed that at a blood alcohol level of 0.082 there would be impairment of the vast majority of the offender’s driving skills, but particularly, the more complex skills required for the driving task. Things such as the offender’s perceptions, judgement, information processing, divided attention, some visual functions such as the ability to scan his visual field, and complex reaction skills (the process of perceiving something, processing the information and reacting to it) would all have been significantly impaired. The offender’s failure to activate his low beam headlights prevented any real illumination of the road ahead, thereby seriously impeding his ability to see any potential hazards on the road. This was further aggravated by the offender’s failure to be watching the road ahead, instead choosing to look to his left where he expected his friends to be.

22. The concept of negligent driving contemplates a wide range of offending. I find that the two offences of negligent driving occasioning death both reflect serious examples of the range of offending contemplated by the offence provision.

23. I do not accept the offender’s submission that the negligence did not constitute an abandonment of responsibility but rather can be simply attributed to his lack of judgement. Whilst I accept the length of the journey was relatively short, there were multiple failings by the offender in the management of his vehicle which I find constituted a very significant abandonment of his responsibility as the driver of a vehicle on a public road.

Victim impact statement – Patricia Dixon

24. Patricia Dixon spoke of the impact arising from the death of her oldest son of four boys, Stephen Lippis. She has been a single mother since Stephen was 10. She spoke warmly of Stephen’s role as essentially a father figure to his brothers and the man of the family. She spoke of her life being “absolutely shattered” with his passing and that she is reminded of her family’s loss every day. This loss was all was all the more profound by the very fact that Stephen played such a pivotal role in the immediate family, demonstrated by his close and supportive relationship with his three siblings. Ms Dixon also spoke of the loss she has observed in her sons and daughter-in-law all who are attempting to work through life without Stephen being around.

Victim impact statement – Andrew Lippis

25. Andrew similarly spoke of the pivotal role that Stephen played in the family as the man of the house who was fundamentally “the glue to the family”. He reinforced the close connection that Stephen had with his immediate family and the profound impact his passing has had upon all of them. Personally, for Andrew this loss included his own children being denied the opportunity to share their life with their uncle.

26. It is clear from both victim impact statements that Stephen’s death has had an extraordinarily profound impact on all of them.

The offender’s criminal history

27. The offender’s criminal record is relatively limited with historical drug related offending. However, the Court cannot ignore that these offences were not the first serious driving offences committed by the offender. In December 2017 offender committed the offence of driving with high range PCA. The unserved full disqualification period for this offence was reimposed from 27 July 2019 until 27 October 2019. During this period the offender twice, within a matter of weeks of each other, drove whilst disqualified. With respect to both matters the offender was given the benefit of conditional release orders without conviction.

28. Whilst the offender’s criminal history is not such as to constitute a statutory aggravating factor, I find that it does, to an extent, reflect an attitude of disobedience towards laws regulating the behaviour of licensed drivers of a motor vehicle, giving increased weight to retribution and personal deterrence: Veen v The Queen (no 2) (1988) 164 CLR 465.

Sentencing assessment report

29. The report was prepared following the interview with the offender and contact with the offender’s family, treating psychologist and general practitioner. The offender was able to link his prior offending to association with negative peer and substance abuse issues. He acknowledged that these had been problematic, particularly alcohol, in the time leading to the offences. However, he had since worked with a psychologist to make positive changes in relation to his alcohol intake. The offender expressed genuine remorse for his actions and was able to identify with the long-term impacts of the family of the victims. He also acknowledged the ongoing impacts the offence had caused his partner and family. He also referred to the personal trauma and mental health issues that he suffered since the offence. In this respect the offender has been diagnosed with depression and anxiety and had engaged with a general practitioner and clinical psychologist to deal with these issues.

30. The offender was willing to engage in community-based interventions as well as performing community service.

The offender’s evidence

31. The offender, in an affidavit sworn 18 February 2026, stated that he has two sons aged four and three. He had been employed as a boilermaker in a local business for over four years. He adopted the statements he made in the police interview.

32. Whilst he previously consulted a psychologist, he ceased treatment due to financial constraints in the context of an accident where he broke both arms and was not working. He was also required to pay significant legal fees. However, he has indicated that he intends to obtain a further mental health care plan from his general practitioner and has already had preliminary discussions with a psychologist to return to treatment.

33. The offender also indicated that he reduced his alcohol consumption significantly. He had spoken to Amy Lippis, Stephen Lippis’ mother and brothers, apologising to them and offering his condolences. Since being suspended from driving he has been relying upon family and friends to get to and from work and for the previous 12 months had been paying a friend from work fuel money to transport him to work.

Other subjective material

34. The report from the offender’s treating general practitioner Dr Hawkyard confirmed that the offender had consulted him in the months following the accident and had since been referred to a psychologist for treatment. It was noted that the offender had been significantly impacted by the accident and made substantial changes to his lifestyle in response. He had expressed remorse for his actions and was diligent in the management of his rehabilitation. He was considered to have a good prognosis with stable mental and physical health going forward.

35. A report was also prepared by the offender’s psychologist Ashley Skinner who confirmed that the offender presented with symptoms of extreme severe anxiety with panic attacks, stress and depression. He reported significant feelings of distress, anxiety, being on edge, upset, sadness, grief and guilt. He had been diagnosed with acute post-traumatic stress disorder. The offender also reported significant grief with the loss of his two close friends and was deeply saddened for their families. He felt distress that he had been unable to attend the funerals and honour their lives. He reported ongoing guilt and remorse at his actions, the consequences and impact upon his friends’ families. The offender had actively engaged in psychological treatment and demonstrated a strong effort and commitment to implement strategies discussed in the various sessions.

36. The offender had made significant efforts to improve his mental state and overall well-being while continuing to report ongoing feelings of guilt, remorse and sadness relating to the death of his friends.

Consideration

37. I have had regard to the numerous written testimonials tendered on behalf of the offender. The common theme through the references is that the offender is generally well respected by his friends, family and work colleagues. He is a devoted and caring father to his immediate and extended family. Further, there is a consistent theme of the offender having genuine remorse for what occurred on this tragic night. I accept that the offender’s expressions of remorse to his family and friends, and those closest to him, are consistent with his remorse, evident in the hours and days after the accident. It is also consistent with seeking professional support and assistance from his general practitioner and psychologist.

38. His remorse is further reflected in his willingness to enter pleas of guilty to the offences for which he is to be sentenced prior to being committed for trial on the more serious offences for which he was found not guilty.

39. Not only is the offender entitled to a 25 % discount reflecting the utilitarian value of the plea of guilty, I am also satisfied that the guilty plea further reflects the offender’s willingness to facilitate the course of justice which mitigates the sentence that would otherwise be imposed: Giles-Adam v R; Preca v R [2023] NSWCCA 122. I accept the offender’s plea is also consistent with his expressions of remorse.

40. I accept there remains an element of extra-curial punishment in that the offender has clearly suffered from post-traumatic stress disorder, with significant and overwhelming feelings of guilt and remorse given he was the cause of the death of two of his closest friends: R v Howcher [2004] NSWCCA 179. Such was clearly evident in the police recorded interview conducted within hours of the accident. The various testimonials are replete with references to these same feelings of guilt and remorse. It was also evident throughout the trial.

41. Whilst this form of extra curial punishment will be taken into account in determining the appropriate sentence, the Court cannot lose sight of the serious nature of the offending (R v Koosman [2004] NSWCCA 359) and the purposes of sentencing provided in s 3A of the Crimes (S**entencing Procedure) A**ct, some of which loom large in determining the appropriate sentence.

42. The sentence must ensure the offender is adequately punished for the offence and he is made accountable for his actions. Both general and specific deterrence remain significant factors. As already noted, the offender has previously been convicted of serious driving offences including a previous offence of high range prescribed concentration of alcohol. The sentence imposed must send a clear message not only to the offender, but to the community at large, that offending involving negligent driving of a motor vehicle resulting in the death of others will have serious consequences and result in condign punishment.

43. It is an indictment on our society that the Courts continue to deal with significant numbers of people who choose to drive a motor vehicle following the consumption of alcohol. Whilst fortuitously, more often than not, such behaviour does not result in any significant harm, this case is a sobering reminder of the unintended but catastrophic consequences of drink-driving. This case should send a clear message to the drivers of motor vehicles that they must think twice before getting behind the wheel of the vehicle having consumed alcohol.

44. In a similar vein, the sentence must recognise the significant harm to those left behind grieving and suffering the emotional and other direct consequences of the untimely death of these two young men. The absence of other victim impact statements does not lessen the profound impact their passing will continue to have on their close family and friends. The Court must not forget that the two victims had their lives prematurely cut short by reason of the offender’s conduct on the night in question.

45. The offender’s clear expressions of remorse, his previous efforts in seeking treatment from a psychologist, and his further intentions to do so, support a finding that the offender has good prospects of rehabilitation. Further, the death of his two closest friends has clearly been a significant wake-up call as to the consequences of negligent driving, not the least of which involved driving after consuming alcohol, such that I am satisfied the offender’s risk of reoffending is low.

46. As a fellow Judge so eloquently and poignantly observed in R v McKeown [2013] NSWDC 22, since cited by the Court of Criminal Appeal in R v Smith [2016] NSWCCA 75:

“In matters such as this Judges are asked to perform an impossible equation; No life can ever be equated with a period of imprisonment; No gaol term can return a loved one, and; a life should never be measured simply by the punishment meted out to the offender.” At [5]

47. Given the serious nature of the offending and the multiple elements of negligence resulting in the death of two people, I am satisfied that the section 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. I find this is an appropriate matter for the Court to invoke s 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.

48. With respect to sequence H93398214/3 negligent driving occasioning death, an appropriate indicative sentence is 16 months imprisonment from which 25% is to be deducted for the utilitarian value of a plea of guilty, resulting in a sentence of 12 months imprisonment. With respect to sequence H93398214/5 negligent driving occasioning death, an appropriate indicative sentence is 16 months imprisonment from which 25% is to be deducted for the utilitarian value of the plea of guilty, resulting in a sentence of 12 months imprisonment.

49. With respect to H93398214/4 drive with middle range PCA an appropriate indicative sentence is two months imprisonment from which 25% is to be deducted for utilitarian value of the plea of guilty, resulting in a sentence of imprisonment of one month and 15 days.

50. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the “crushing” effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ.

51. It is also necessary, when determining the aggregate sentence, particularly where the offences for which the offender is to be sentenced occurred over a relatively short period of time, and involved similar criminal conduct, that there is not double punishment. As Bell P observed in Hesketh v R [2021] NSWCCA 262 at [54] where there is underlying factual commonality across the offences for which the offender is to be sentenced it is important not to impose punishment that is disproportionate to the overall criminality involved in the offences.

52. Whilst the sentence must reflect a degree of concurrency given the offences occurred over a very short period and involve similar criminal conduct, there must also be a not insignificant element of accumulation given the two negligent driving occasioning death offences involve the death of two victims.

53. In all the circumstances I have determined an appropriate aggregate sentence is 20 months imprisonment.

54. In circumstances where the aggregate sentence is less than three years it is necessary for the Court to determine whether the sentence be served by way of full-time custody or in the community by way of an Intensive Correction Order.

55. Section 66 of the CSPA provides community safety must be the paramount consideration when the sentencing Court is deciding whether to make an intensive correction order in relation to an offender. Section 66(2) further provides when considering community safety as required by section 66(1), the sentencing Court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending. Further, when deciding whether to make an intensive correction order (ICO), the Court is required to consider the purposes of sentencing provided in s 3A of the CSPA as well as any relevant common law sentencing principles.

56. In Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, Gordon, Edelman, Steward and Gleeson JJ observed: --

“[73] The identification of community safety in s 66(1) as the “paramount” consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing Court to have a particular and different focus at the third stage of the three-step process described earlier. When the Court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3).

…

[75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending.”

57. As observed in R v Pullen [2018] NSWCCA 264 by Harrison J (with whom Johnson and Schmidt JJ agreed):

“[84] In determining whether an ICO should be imposed, s 66(1) makes “community safety” the paramount consideration. The concept of “community safety” as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires the Court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender’s risk of re-offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change, and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community.”

58. I am overwhelmingly satisfied that the offender’s risk of reoffending is best met with the offender serving the term of imprisonment in the community. This will enable the offender to continue his positive steps towards his own rehabilitation and accessing appropriate treatment and psychological support in the community that would otherwise be unavailable to him in the custodial setting.

59. The conditions which I intend to impose as part of the ICO will still involve a form of punishment. In respect to the other s 3A considerations, such an order is likely to promote the rehabilitation of the offender and minimise the risk of reoffending, thereby protecting the community. The imposition of various conditions will also make the offender accountable for his actions and denounce his conduct.

60. The Parliament has seen fit to mandate that an aggregate sentence of less than three years requires the Court to consider how the sentence is to be served. The Court is required to consider community safety as the paramount consideration with the risk of reoffending being of considerable importance. Whilst the offender will be in the community, for 20 months he will be effectively serving a term of imprisonment. He should be left in no doubt that in the event he fails to comply with the conditions of the intensive correction order, including a lengthy period of community service, he is at risk of serving the balance of his sentence in full time custody.

Orders

1. The offender is convicted of the offences.
2. The indicative sentences are set out above. I impose a total aggregate sentence of 20 months imprisonment commencing today 13 March 2026.
3. Pursuant to s 7(1) of the Crime**s Sentencing Procedure Act 1999 (NSW), the sentence is to be served by way of an intensive correction order in the community. The standard conditions apply as follows:

(a) The offender must not commit any offence. (b) The offender must submit to supervision by a community corrections officer.

4. The following additional conditions apply:

(a) The offender is to continue treatment with Ashley Skinner for as long as the psychologist deems necessary. (b) The offender is to perform 400 hours of community service.

5. The offender is to report to Nowra Community Corrections within 7 days.
6. The offender is disqualified from holding or obtaining a drivers license for a period of three years from 31 May 2023.
7. The offender to be subject to interlock program for a period of 12 months.

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Amendments

17 March 2026

Commencement date ammended

18 March 2026

Case name amendment