R v Cole

Legislation Cited: Crimes Act 1900 (NSW), s 52A(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 30E
Road Transport Act 2013 (NSW), ss 111, 205

Cases Cited: Brooks v Reg [2009] NSWCCA 265
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Elphick v R [2021] NSWCCA 167
Green (a pseudonym) v R [2025] NSWCCA 16
Kerr v R [2016] NSWCCA 218
Moodie v R [2020] NSWCCA 160
R v Dale [2025] NSWDC 22
R v Eaton [2023] NSWCCA 125
R v Errington [2005] NSWCCA 348
R v Halloun [2014] NSWSC 1705
R v Whybrow [2008] NSWCCA 270
R v Whyte (2002) 55 NSWLR 252
RG v R [2025] NSWCCA 36
Rummukainen v R [2020] NSWCCA 187
Sheiles v R [2018] NSWCCA 285
Veen v The Queen (No. 2) (1988) 164 CLR 465

Texts Cited: Nil.

Category: Sentence

Parties: Rex (Crown)
Mr Mathew James Cole (Offender)

Representation: Counsel:
Mr G Porter (Crown)
Mr M Higgins (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Boyd Criminal Lawyers (Offender)

File Number(s): 2024/00086830

Publication restriction: Nil.

Sentencing remarks

Introduction

1. Mr Mathew James Cole (also known as ‘Matthew Webb’), the offender, is before the Court for sentencing following his plea of guilty to a charge (seq 5) that on 16 October 2023 at Bevendale, he drove at a dangerous speed occasioning death of another person, Lynn Keyworth, contrary to s 52A(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years’ imprisonment. There is no standard non-parole period. The offence also carries an automatic period of disqualification.

2. There are certain remarks I wish to make at the outset. First, for those not familiar with the criminal justice system, it is important to emphasise that sentencing by individual judges, although discretionary, is not at large. Sentencing judges are constrained to apply the law. Specifically, they are constrained by statute made by the New South Wales Parliament and authoritative interpretation of statute by appellate courts. Secondly, and reinforcing the first point, fundamentally there is a maximum penalty that sentencing judges can impose. This represents Parliament’s assessment of the seriousness of the offence. Thirdly, there are also a variety of sentencing considerations which can pull in different directions. They relate not only to the objective circumstances in which the offending occurred but also concern matters that are personal to the offender. Fourthly, the offence for which the offender is to be sentenced today is one that, but for the grace of God, many persons of even good character can commit, so that severe punishment may be meted out even against persons who would otherwise scarcely ever come before criminal courts. Fifthly, the nature of this offending is its ripple effects: it inevitably involves a tragedy on different levels; most obviously to the deceased, but also others. The criminal justice system can never really provide a salve to those who feel wounded by her death, since as Judge Anderson SC recently commented in R v Dale [2025] NSWDC 22 at [3]:

“A life should never be measured simply by the punishment imposed on the offender. No life or injury can ever be equated with a period of imprisonment or punishment, however that punishment takes its form.”

3. The offender had also been charged with a related offence (seq 2) on a s 166 certificate that on the same date and place, he drove the vehicle whilst there was present in his blood a prescribed illicit drug (Methylamphetamine), contrary to s 111(1)(a) of the Road Transport Act 2013 (NSW). The maximum penalty, by operation of s 205(4) of the Road Transport Act, for that offence is 30 penalty units plus disqualification.

4. A back up charge on a s 166 certificate (negligent driving occasioning death) (seq 4) was withdrawn.

5. By his plea of guilty, the facts necessary to establish the elements of the primary offence and the offender’s criminal liability for the offence have been determined. These facts are that on 16 October 2023 at Bevendale:

6. the offender was driving a vehicle: a white Isuzu D-Max Utility DB-16-BV (the ‘vehicle’);

7. the vehicle was involved in an impact occasioning the death of another person (Ms Lynn Keyworth);

8. at the time of the impact, the offender was driving at a speed dangerous to other persons.

9. The progress of this sentencing hearing has, unfortunately been chequered since the offender was committed for sentence on 4 December 2024 by the Goulburn Local Court. Part of the reason for that is that the parties were in dispute about the facts for a not insubstantial period. Another part of the reason for delay has been the unusually lengthy period of time that it took for the offender to obtain the opinion of a mental health professional.

The facts

7. Ultimately the parties reached agreement on the facts. The offender signed a statement on 24 April 2025 and the Crown prosecutor appended his signature on 5 May 2025.

8. At around 6:56am on 16 October 2023, the offender was driving the vehicle generally in a northerly direction along Rugby Road, Bevendale. He was the sole occupant of the vehicle.

9. At about this time, the victim was driving her vehicle, a Subaru Impreza Hatchback, on the same road but in a generally southerly direction. She was the sole occupant of the vehicle.

10. At a point approximately 7.6km away from the eventual collision site, there was a sign on the western side of the road stating “Unsealed road no advisory speed drive to conditions”. The default maximum speed limit that a driver could drive at in those circumstances was 100km/h.

11. The road surface in the area of the collision site was assessed as being in reasonable condition with minor rutting, no potholes or subsidence evidence. The surface was noted as being free of any surface contaminants, such as soil or petroleum-based liquids on the approach to the area of impact.

12. At a point approximately 1 kilometre south of the intersection with Bulleys Crossing, the offender’s vehicle approached a crest. The topography of the area was such that when the offender was travelling north, it was not possible to see over the crest until the vehicle was close to the top of it, due to the gradient. The position was illustrated by a diagram contained in the statement of agreed facts (Agreed Fact 11).

13. As the offender neared the top of the crest, he applied his brakes. This caused the vehicle to skid for approximately 61 metres. The offender’s vehicle crossed on to the wrong side of the road.

14. The area of impact was entirely on the southbound side of the road, which had been occupied by the deceased’s oncoming vehicle.

15. The diagram in Agreed Fact 14 depicted, in red, the tyre marks left by the offender’s vehicle as it travelled over the crest and on to the wrong side of the road where it impacted on the oncoming vehicle; and where the vehicles came to rest after the collision.

16. The impact of the collision caused the offender’s vehicle to rotate clockwise, with catastrophic damage to the deceased’s vehicle, which rolled and came to rest on its passenger side, killing the deceased instantly.

17. SC Davies arrived at the scene at 7:24am. She saw the two vehicles and when she walked around to the passenger side of the offender’s vehicle, she saw two men sitting on the ground next to the offender, who was covered in a blanket. She tried to speak to the offender but his eyes were opening and closing and he appeared to her to be going in and out of consciousness.

18. The offender was later transferred to Canberra Hospital for treatment for his injuries. At 9:30am, approximately 2 hours and 50 minutes after the collision, a blood sample was taken. Subsequent testing indicated a very low (0.007mg/l) level of methylamphetamine. The Crown does not contend that the presence of this drug at that level impaired his driving ability.

19. Data retrieved from the airbag module of the offender’s vehicle was analysed and established that 5 seconds prior to the collision, the offender’s vehicle was travelling at approximately 119.5km/h.

20. Sgt Fenton is a police officer stationed with the Forensic Evidence and Technical Support Command. His role is to be the supervisor in charge of collision analysts. The role of his section is to use the fundamentals of physics to determine certain elements relating to a collision sequence, including, but not limited to, such matters as pre-collision speed, stopping distances, reaction time and collision ‘avoidability’.

21. Sgt Fenton has been employed by the Police for over 20 years. Some of his positions in that employment have included Bankstown Highway Patrol and the Metropolitan Crash Investigation Unit.

22. Sgt Fenton noted the road in the vicinity of the collision did not maintain a constant width, nor did it have a distinct edge or centre lane markings. As such it was not possible to be entirely specific when considering what point the vehicle driven by the offender crossed to the incorrect side of the road. Notwithstanding these limitations, and drawing upon measurements of the tyre skid of the offender’s vehicle Sgt Fenton opined that:

(i) The top of the crest of the road is located at Gradient Reference Point 8.

(ii) At the commencement of the tyre marks the offender’s Isuzu vehicle was:

a. approximately 16.4 metres from the top of the crest.

b. approximately 3.1 metres from the left hand side of the road, and

c. approximately 4 metres from the right-hand side of the road.

(iii) Upon reaching the top of the crest, the Isuzu was essentially in the centre of the road:

a. approximately 3.8 metres from the left-hand side of the road, and

b. approximately 3.6 metres from the right-hand side of the road.”

23. Sgt Fenton also opined that:

(i) The tyre marks presented as straight braking marks, with only the slightest deviation toward the right, and no evidence of vehicular rotation; (ii) Given the gravel road surface, the reported speed of the Isuzu, and the straight heading it remained on once it had commenced braking, the Isuzu was travelling in an equally straight heading immediately prior to the commencement of the tyre marks.

24. On 18 November 2023, just over a month since the fatal collision, the offender agreed to participate in an ERISP interview at Goulburn Hospital. Amongst other things, he said to police:

“I remember coming up over the, like a bit of a rise corner and there was a car in the middle of the road and I remember braking and I turned a bit and then yeah, that’s all I remember.”

Objective criminality of the offending: the guideline judgment

25. Section 52A of the Crimes Act notoriously captures a range of situations in which dangerous driving can cause death or severe injury to other persons.

26. In R v Whyte (2002) 55 NSWLR 252 (“Whyte”), the Court of Criminal Appeal issued a ‘guideline judgment’ in relation to s 52A. The guideline judgment has statutory force because of Pt 3, Div 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) and must be taken into account on sentence (Whyte at [32]–[67]; Moodie v R [2020] NSWCCA 160 at [24]); albeit as a “check or sounding board” (Kerr v R [2016] NSWCCA 218 (“Kerr”) at [96]). It is to be understood that references in Whyte to the expression “moral culpability” have since been taken to mean references to the objective criminality of the offence: R v Eaton [2023] NSWCCA 125 at [56].

27. The most pertinent part of the judgment in Whyte, for present purposes, is at [204]–[205] and [214]–[242]. The first pertinent part of Whyte stipulates a guideline judgment in a ‘typical case’, whose features included:

(i) young offender (ii) of good character with no or limited prior convictions (iii) death or permanent injury to a single person (iv) the victim is a stranger (v) no or limited injury to the driver or the driver’s intimates (vi) genuine remorse (vii) plea of guilty of limited utilitarian value.

28. In a ‘typically’ recurring case, it was observed that:

29. a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment (Whyte at [214]), and

30. in the case of the death of a victim, where the objective gravity of the offending is high, a full-time custodial head sentence of less than three years (in the case of death) is not generally regarded as appropriate (Whyte at [229]).

31. Some, but not all of the matters in the ‘typical case’ arise here. The offender is not particularly young (he was 33); he is not of prior good character. On the other hand, he has apologised to the family which evinces his remorse; although this is a contested matter which I will consider later. After the collision, he was admitted to Canberra Hospital where he had injuries to his tibia, fibula and pelvis. The details are set out in a hospital discharge summary and reproduced in paragraph 21 of his Counsel’s written submissions. He was operated on for his left distal tibia and received a spinopelvic stabilisation. He was diagnosed as being traumatised. The offender reported to his forensic psychologist that he was hospitalised for three months and more recently, he endures chronic pain when walking up and down stairs. He entered a plea of guilty which, in the circumstances, was of limited value. He did not know of the deceased.

32. Relevant prior convictions are pertinent as to where, within the boundary set by the objective circumstances, a sentence should lie. That is, they cannot demonstrate an abandonment of responsibility in any particular case. They go to considerations relating to personal and general deterrence, such as manifesting an "attitude of disobedience of the law" and to the increased weight to be given to "retribution", "deterrence" (relevantly personal deterrence) and "the protection of society": R v McNaughton (2006) 66 NSWLR 566 at [26]. But although this offender's criminal history is lamentable, and will be referred to again later in these remarks, he has not previously committed any offence comparable to the seq 5 offence; although his traffic record reveals that he had committed relatively minor speeding offences in March 2014 and January 2020.

33. According to the guideline judgment, after considering the ‘typical factors’, the sentencing court should also consider the applicability of a range of ‘aggravating’ factors, being:

(i) the extent and nature of the injuries inflicted (ii) number of people put at risk (iii) degree of speed (iv) degree of intoxication or of substance abuse (v) erratic or aggressive driving (vi) competitive driving or showing off (vii) length of the journey during which others were exposed to risk (viii) ignoring of warnings (ix) escaping police pursuit (x) degree of sleep deprivation, and (xi) failing to stop.

32. As has been observed, when considering the offender’s ‘moral culpability’, subsequent authorities have tended to lead to a dichotomy between cases where an offender has exhibited ‘momentary inattention’ on the one hand and has been regarded as ‘abandoning responsibility’ on the other, as if they represented two poles of a spectrum. This has been deprecated (R v Errington [2005] NSWCCA 348 at [27]). There are different shades of moral culpability in different circumstances.

33. Wherever an offender’s conduct falls on this spectrum is fact specific. Some cases, however, are illustrative. Thus, an offender’s failure to see a vehicle because the offender did not look properly and assess oncoming traffic will not constitute “momentary inattention” (Elphick v R [2021] NSWCCA 167 at [24]–[25]). On the other hand, an offender’s moral culpability may encompass consideration of the presence and effect of any disability or impairment the offender labours under at the time (Rummukainen v R [2020] NSWCCA 187 at [26]).

34. As to the ‘aggravating’ factors identified in the guideline judgment, the Crown emphasised that death was occasioned to the single person who was put at risk. There were notices, by way of warning signs, about 7.6km before the collision site advising motorists of the nature of the road, being an unsealed road with a view to encouraging motorists to drive to the conditions. But the Crown goes further and contends that even if signs were absent, the prevailing conditions would have been obvious to drivers and that they mandated a heightened level of care and, more especially, indicated a need for a reduction in speed to take the conditions into account. That did not occur.

35. The road was relatively remote so that even if he was speeding, this was not done in a way that involved the offender showing off to others. Kerr demonstrates that an offender’s speed which is excessive in the particular circumstances (i.e. even if falls short of an excess of 45km/h from any applicable limit) may nevertheless be treated as ‘aggravating’ the offending. But this must be seen in a context where excessive speed is already an essential element of the offence so to treat it as an aggravating the offending gives rise to a risk of double counting.

36. The Crown argues that the offender’s moral culpability is not low: there was no momentary inattention or misjudgement. The approach to the collision site was a crest in the road. On the facts, either the accused was not paying proper attention for a period of time or he did notice the crest and continued on in a direction of travel that effectively was aimed at taking a line through the slight bend, over the top of the crest. The speed of his vehicle proximate to the collision was obviously excessive and therefore dangerous such that the offender’s capacity to react and enable him to diminish the danger was significantly compromised. All of this may be accepted.

37. Although it may potentially be an aggravating factor within the rubric of the Whyte judgment, the Crown did not suggest that the presence of an illicit drug elevated the offender’s moral culpability. This has, at any rate, been treated as a separate offence on the s 166 certificate

38. The offender’s Counsel argued that the offender’s moral culpability was not high. He was driving along a remote unsealed country road so it was not a situation where it was reasonable to expect other drivers would be present. He also had ‘mental health vulnerabilities’. I will address this latter matter further when I consider his subjective case.

39. His Counsel nonetheless accepted that given the speed he was travelling at, he did abandon his responsibility.

40. On the facts, it is not known what period of time (if at all) the offender had to see the oncoming vehicle as he went over the crest. But that cuts both ways: although it might be thought more culpable if a motorist has a longer period of time to observe oncoming traffic, on the other hand, if the topography is such as to limit visibility as to what is in front, there is natural uncertainty and a requirement to take greater care so as to keep a proper lookout. At any rate, since the offender braked as he approached the top of the crest and thereafter lost control of the vehicle, the extent of his visibility of the deceased’s oncoming vehicle was not especially material. The real vice, inherent in the offence, was travelling too quickly doing so contrary to a warning sign.

41. I am inclined to think that on balance, the offending within the mid-range of offending for offences of this kind.

Other aggravating circumstances

42. The offending occurred in a circumstance where the offender was at conditional liberty (CSP Act, s 21A(2)(j). Specifically, the offender was serving a term of imprisonment of 18 months by intensive correction imposed on 15 August 2023 for the offence of reckless wounding (in company). The index offending occurred barely 2 months after his release. The offending resulted in the revocation of the ICO on 26 March 2024.

Victim impact statements

43. The tragic death of the deceased has had a significant impact on the deceased’s large family. The Court received no less than nine victim impact statements from members of the deceased’s family, including the deceased’s husband, children, and foster children.

44. All the statements (which were marked MFI 1) were read out; mainly by the authors of the statements.

45. They universally painted a picture of a beloved, community-minded and family-centred deceased. The deceased’s family members who spoke struck me as decent people. There was nothing to doubt the sincerity of their grief and forms of loss of which they spoke. The Court understands the difficulty that attends giving statements of this kind in the case of the death of a loved one in the sometimes intimidating forum of a courtroom.

46. Their statements, viewed individually or in combination, reminds the Court of the ripple effects of offences of the index kind; not to mention the unfathomable randomness, or arbitrariness of events and fragility of human life.

47. Most of them spoke of personal harms and deprivations following the death of the deceased, however in the case of the deceased’s husband, some emphasis was also placed upon a form of financial loss. Whilst I would not construe the ‘impact’ of the loss upon family members of the victim narrowly, I remind myself that the offender is to be sentenced in respect only to the impact of the offence in respect to which he is to be sentenced.

48. Pursuant to s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Crown applied for the victim impact statements to be relied upon for a particular purpose. This provision is as follows:

(3) A victim impact statement of a family victim may also be taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community, but only if –

(a) the prosecutor applies for this to occur, and

(b) the court considers it to be appropriate.

49. The Crown noted that the legislative predecessor to s 30E(3) was s 28(4) of the same legislation. About that former provision, in R v Halloun [2014] NSWSC 1705 at [46] McCallum J (as the Chief Justice of the Australian Capital Territory then was) identified as the purpose of the provision to enable the evidence of family victims to be placed before the Court to give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. In so doing, it serves one of the sentencing purposes, being to recognise harm to the victim of the crime and the community.

50. As to s 30E(b), there is nothing to indicate, as sometimes occurs with offending, that the offender knows something about the deceased’s victim’s circumstances, including the victim’s family and her relations with them; and knew of the harm resulting to the family members. It is enough to engage the provision if the offender could foresee that death could result and aware of its likely effect: Sheiles v R [2018] NSWCCA 285 at [40]–[42].

51. Nor is it a case where the offending caused a slow and lingering death for the deceased. Here she died instantly. These are matters which bring to the fore questions of the offender’s culpability and, in the latter case, likely augment the natural grief of family members.

52. The evidence of the deceased’s daughter was especially moving. She spoke of the assistance the deceased rendered to her granddaughter, and indirectly her daughter, through child care; and also the evidence of the foster daughters who not only spoke of her selfless devotion to their care whilst the deceased cared for them as children but continued to provide as young adults. I take into account the numerous connections to family and also the evidence of her professional career and its effect in Canberra, where she practised.

53. In the circumstances, I accept the harms catalogued by the deceased’s family members, collectively, should be regarded as an aspect of the harm done to the community.

The s 166 offence

54. The offender told Dr Mamta Sidhu that he had achieved stability with his drug use in the sense of abstinence up to a week before the accident. But at that point, he reconnected with his former partner, with whom he said he had a history of co-dependent drug-use and lapsed. But although he had been taking ice four days prior to the incident, he felt that it was out of his system. There was no evidence – expert or otherwise – to indicate any resultant impairment in the offender’s capacity to drive. The Agreed Facts are to the contrary.

55. This is an instance where if I was dealing with each offence in isolation, I would have considered that although there would be a large measure of concurrency, there may be some (modest) notional level of accumulation to reflect the circumstance that there were two offences. However, as I propose to impose a custodial sentence, this is an instance in my view that the option of imposing a fine as an additional penalty would not be practicable or appropriate.

Other subjective features not otherwise considered

Offender’s age, background and health condition

56. It has already been noted that the offender was not young at the date of the offending.

Evidence from the Crown

57. Within the Crown’s bundle, a sentencing assessment report of 15 October 2020, relating to earlier offences, reveals glimpses of the offender’s background. The community corrections officer who authored that report characterised the offender’s antecedents (to that point) as a history of ‘anti-social behaviour’. The offender disclosed to her that such history reflected a combination of ‘bad attitude and immaturity’ but the offences giving rise to that report reflected his impulsivity that was generally preceded by drug use.

58. The offender had spoken to the corrections officer about experiences in his childhood contributing to his aggressive behaviour which had been exacerbated by drug use. As to the last aspect, he explained to the corrections officer that he used drugs to cope with periods of stress and conflict. There was no further detail about that. The offender had a relationship with a partner, through which the relationship was born a son.

59. Also located within the Crown’s sentencing bundle was a psychiatric report of Dr Gordon Elliott prepared on 9 February 2022. This had been prepared for use in the Goulburn Local Court in a previous proceeding. Dr Elliott took into account, amongst other things, the content of the offender’s electronic medical record (EMR) emerging from the Justice Health and Forensic Mental Health Network. Features of that EMR included:

60. past diagnoses of Bipolar Disorder and ADHD in the offender’s childhood;

61. it emerged in his schooling career that his intellectual function was in the ‘borderline range’, and observations of his behaviour discerned significant asocial, hyperactive and conduct problems and aggression;

62. a history of suicidality and self-harm;

63. treatment for testicular cancer in 2016.

64. Dr Elliott interviewed the offender on 2 February 2022, by AVL. Dr Elliott was informed about some aspects of his background. He grew up without the meaningful support of his biological father. He experienced child sexual abuse in years 4 and 5, in primary school (about which he was, at that point, seeking compensation). That had a profound effect on his schooling career, which ended in year 7. He began associating with older and antisocial peers. He commenced work from about the age of 16 and since then had worked in a shearing shed.

65. Dr Elliott diagnosed him with Oppositional Defiant Disorder (or conduct disorder) and identified in him long standing problems with his impulsivity, emotional dysregulation and anger management problems. Although his intellectual functioning was in the ‘borderline’ range, there was no specific intellectual disability. He stopped short of diagnosing any major mental illness (and so could not be said to be a “mentally ill person” for the purposes of the Mental Health Act 2007 (NSW)), but has a history of substance abuse disorders.

Evidence from the offender

62. The offender prepared a letter of apology dated 12 February 2025. He also relied upon the report of a forensic psychologist, Dr Mamta Sidhu, dated 4 July 2025.

63. I will refer to the offender’s letter for other reasons momentarily but for present purposes, I note the statements in the letter that the offender admitted that he was “not thinking clearly” and “made poor decisions”. He explained to Dr Sidhu that he was driving to work. He indicated that he felt familiar with the road. He told her that he was driving his car too fast for the road, and slid, causing the collision.

64. Dr Sidhu is a registered forensic psychologist. She assessed the offender, on two occasions (via an AVL facility at the correctional centre). Dr Sidhu noted that she had been provided, relevantly, not only with the 2020 pre-sentence report but also Dr Elliott’s report of February 2022.

65. Dr Sidhu comprehensively reported on the account she received of the offender’s background. This relevantly included the offender not knowing of his biological father, but having generally good relationships with his mother, step-father and many siblings and a positive rural upbringing. Much more troubling for him was his reporting to Dr Sidhu that he was subjected to childhood sexual abuse by a school principal at school when he was in year 4 (and therefore 8 or 9 years of age). Prior to that, he reported that he enjoyed school, albeit that he struggled maintaining attention: a signpost of what was later diagnosed as ADHD. His responses at school featured behavioural issues and the offender reported that the step-father used excessive physical chastisement of him. The offender explained to Dr Sidhu that although his parents recognised his behavioural changes and tried counselling for him, he was unable to disclose the abuse. Also, he took to relying on substances as a misguided coping mechanism. He took cannabis from the age of 15, which was escalated to taking ice from 16. He said he became an ice addict. He had also taken heroin although not since 2019, he said. The offender reported long-standing difficulties with depression and mentioned one suicide attempt following the breakdown of his relationship with the mother of his child. Dr Sidhu reported on being informed by the offender’s mother of another.

66. The childhood effects of being sexually abused were symptoms of anxiety, and hypervigilance. As an adult, he considers himself as struggling to appear vulnerable to others. As if to corroborate the offender’s assertion of having been sexually abused by a child, his Counsel relied upon a letter from a firm of solicitors based in Queensland, dated 14 July 2025, confirming that the firm acted for the offender in a civil claim brought against the State (although I note that there was no indication on the face of the letter of any commencement of any legal proceeding).

67. After he left primary school, he completed only a further two years at senior school. Aside from some construction courses at TAFE later in life, he has received no formal education. Instead he worked on the farm, which he enjoyed until his troubles with the law resulted in his incarceration.

68. As to the incident giving rise to the offence, he described the incident as playing out in his mind over and over again. The content and tone of his letter of apology supports that description.

69. In light of the offender’s reporting of trauma following the accident, Dr Sidhu administered a screening tool called an Impact of Event Scale. Dr Sidhu candidly indicated that this tool does not diagnose PTSD; although she thought that was likely.

70. Overall, Dr Sidhu opined that the offender presented with “traits that were akin to Borderline Personality Disorder”. He perceived himself as vulnerable to being taken advantage of and the world was hostile towards him. There was a connection between his psychological vulnerabilities and his impulsive behaviour, poor consequential thinking skills, intensity of emotion and reliance upon self-destructive coping strategies. Dr Sidhu stopped short of opining that these features were linked to the index offending.

71. The Crown, when considering Dr Sidhu’s report, noted that weight needed to be given to Dr Elliott’s report. That is true. But as Counsel for the offender pointed out, Dr Elliott’s report should be considered in the context in which it was written, with that professional identifying his purposes in the first paragraph of his report. Counsel for the offender argued that Dr Elliott would not have been expected to have considered the cluster of personality traits in this offender which may explain his repeated drug use. Nonetheless, I do not consider that what Dr Sidhu wrote was markedly inconsistent with what that psychiatrist had earlier written, in a context of a significant intervening event for the accused, involving his offending in the way that has led to the loss of a human being’s life.

72. The issue of how, if at all, an offender’s history of childhood sexual abuse reduces moral culpability was closely considered by Yehia J (Davies J and Lonergan J both agreeing) in RG v R [2025] NSWCCA 36. At [77], her Honour noted that it is unnecessary to be too technical in determining how childhood sexual abuse might reduce an offender’s culpability. At [78], her Honour went on to say:

“(i) Firstly, for a history of childhood abuse to be taken into account as reducing an offender’s moral culpability for his acts, an offender must establish on a balance of probabilities the fact of the abuse.

(ii) Secondly, an offender must establish on a balance of probabilities that the history of abuse was a contributing factor in the offender’s own offending conduct (emphasis added).

(iii) Thirdly, a history of sexual abuse will not automatically lead to reduction of sentence. The important consideration is the consequences which flow from the earlier events.

(iv) Fourthly, the weight which should be given to the history of sexual abuse will depend very much on the facts of the individual case.”

73. Considering this distillation of principle and Dr Sidhu’s opinion, I am unable to accept that the offender’s being a victim of childhood sexual abuse had any real bearing on the offending here. To the extent that this traumatic experience has created latent anxiety or hypervigilance in the offender to a level that can impair executive functioning and result in a tendency to impulsivity, I do not see how impulsivity can explain the offending in this case.

74. The offender’s Counsel invoked principles from DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177], including that the existence of a mental illness might reduce an offender’s moral culpability, mental illness may make him an inappropriate vehicle for general deterrence, that a custodial sentence may weigh more heavily upon him; may reduce the element of specific deterrence. Conversely, it may mean he presents as more of a danger to society. Specifically and of particular interest, given what Dr Sidhu said about the offender’s traits of Borderline Personality Disorder, McClellan CJ at CL specifically said that where a person was diagnosed with an Antisocial Personality Disorder, there may be particular need to consider protection of the public as a salient consideration.

75. There is however, a fundamental problem for the offender. The offender does not articulate what the mental condition is, even if there are hints of developmental disorders (ADHD) or behavioural disorders. It is not for nothing that in the written submissions, Counsel for the offender referred (at paragraph 32(e)) to the offender’s ‘mental health vulnerability’ (emphasis supplied) rather than any specified illness or impairment. The offender’s Counsel confirmed that careful submission in oral argument. Contrary to his Counsel’s submission, I do not see how any mental health vulnerability contributed to the offending; even in any non-technical sense. There was nothing to indicate that he was in any particular hurry: he said he was on his way to work. There was nothing to suggest any particular circumstance would or could trigger any anxiety in him. When I raised with Counsel the absence of impulsivity, Mr Higgins touched upon the presence of a drug in his system. But as the agreed facts indicate, that had no material effect, which is why it gave rise to a separate offence and is not treated as an aggravating circumstance in this case.

76. As to the balance of the propositions in De La Rosa*,* they are of course, discretionary. Subject to a qualification, none of them materially aid the offender. The qualification is that I find the offender’s mental condition at the time of the accident has subsequently been exacerbated by the trauma that followed it to such extent that he has certain traits associated with PTSD. I consider that this particular circumstance is likely to make the custodial sentence weigh more heavily upon him, in combination with the physical effects of the accident upon him.

77. The simplest explanation is that which the offender himself accepts: he was driving too fast in the circumstances that he faced (including having driven past a warning sign about 7km before the point of the collision on an unsealed road); although I would add that in circumstances where he had driven along the road often in the past. If he made a poor decision to speed, it had less to do with impaired executive functioning and more to do with an overestimate of his capacity to control the vehicle at the speed he was travelling in the conditions he experienced. In that he was not dissimilar to other motorists who, for whatever reason, drive too quickly, with or without underlying mental conditions, or ‘vulnerabilities’. Unfortunately, human experience is such that familiarity in driving in a certain way or along a regular route, even on unusual road conditions, can breed complacency and mistakes with tragic consequences can ensue.

Antecedents

78. I touched upon the offender’s antecedents earlier, only to the extent of indicating that he had not previously committed the sequence 5 offence. Otherwise, his criminal history is extensive in length and scope. The offender is a violent man. He has committed many personal violence offences, including domestic violence offences; as well as offences for damage to property. He has been before the Goulburn Local and District Courts on numerous occasions and has been incarcerated on many occasions in the last 15 years.

79. Pertinently, he has also committed the offence of driving a vehicle with an illicit drug in his blood on multiple occasions, before and even after the index offending, in September 2022 and December 2023, respectively. His traffic record also indicates another subsequent offence of disobeying traffic lights in May 2024, and other violent offences for common assault and stalking/intimidation. The Crown also noted that 6 weeks after the index offending, he committed a further offence of driving with an illicit substance in his blood.

80. The Crown also emphasised that his record bespeaks an inability to comply with court orders, citing contraventions of apprehended violence orders, conditional liberty and driving whilst disqualified. It also referred to certain custodial infractions.

81. He is plainly disentitled to leniency.

82. In view of his record and unsurprisingly, no suggestion was put about the offender’s being of good character.

Plea of guilty

83. The offender was committed for sentence on 4 December 2024. It is uncontroversial that he is entitled to a 25% discount on penalty.

Remorse

84. The offender handwrote a letter of apology on 12 February 2025. This was prepared before the victim impact statements were read out in Court.

85. Dr Sidhu also reported the offender’s remorse. Moreover, she indicated that the offender had referred to certain things, such as the intrusive and persistence of memories and his tearfulness in presentation which manifested remorse.

86. The Crown relied upon an earlier letter of apology by the offender for an earlier offence (Exhibit B). Mr Crown argued, in effect, that indications of regret and promises of atonement had all been heard before so that little store could be placed on the offender’s apology to the family in this case.

87. I do not accept that submission. The nature of the index offending is qualitatively different to earlier offending. By this offence, the offender has killed another human being. Moreover, it undervalues the professional assessment of Dr Sidhu. Although the Crown fairly pointed to some curious aspects of what the offender apparently told Dr Sidhu, I do not consider that a professional in her position would have been lulled into accepting the authenticity of physical manifestations of the offender’s remorse if they were fake. Further, there is force in Counsel for the offender’s submissions that there is nothing illogical in a person who commits offences being remorseful more than once and, further, that however resolute they may appear about an intention to atone after an earlier offence, if not properly treated, they may not have the wherewithal to rehabilitate themselves in a way that makes it more likely that they will not reoffend. This last submission has merit, but it also has relevance to consideration of his rehabilitation prospects.

88. I accept that he is remorseful. Contrary to the offender’s submission, there is no basis for augmenting the discount already given to the guilty plea on account of other subjective factors, such as remorse: Green (a pseudonym) v R [2025] NSWCCA 16 at [37]–[39].

Extra-curial punishment

89. The offender’s Counsel submitted that the injuries that the offender sustained in the accident engaged this mitigating factor. I have already touched upon this when applying the guideline judgment.

90. I accept that injuries suffered by the offender as a result of his dangerous driving may be regarded as extra-curial punishment, as it has adversely affected his mental and physical health and has meant that the time he has spent, and will spend, in custody is more onerous than it would otherwise have been: R v Whybrow [2008] NSWCCA 270 at [25]; Brooks v Reg [2009] NSWCCA 265 at [32].

91. The Crown argued that it was curious that, in the absence of other objective evidence, for the offender to inform Dr Sidhu, as he apparently did, that he was hospitalised for a period of a few months when the discharge summary indicated a shorter period. After a short interval to allow him to take instructions, Counsel for the offender pointed to the circumstance that the discharge summary itself indicated that after he was discharged from Canberra Hospital he went to Goulburn Base Hospital so there was no necessary inconsistency. Be that as it may, when considering the nature of the physical injuries, I accept that the offender has been left with enduring restrictions if not disability. I also accept that his already suspect mental condition has been exacerbated by the collision. In those circumstances, I place some weight upon extra-curial punishment.

Rehabilitation prospects and likelihood of reoffending

92. By October 2020, the offender had been employed within the farming and construction industries. He told the corrections officer who authored the sentencing assessment report of 15 October 2020, that he had had a period of abstinence from drugs before relapsing and resuming drugs prior to those offences. He acknowledged to her that he needed psychological counselling and prescribed medication. He said that he had expected to complete certain courses to deal with his ‘hot headed(ness)”.

93. In 2022, Dr Elliott considered the offender’s prognosis as being guarded; whilst acknowledging that there had been improvement in his general circumstances with sustained abstinence. Psychiatric medication was only likely to offer marginal benefit. He required psychological counselling.

94. The Crown argued that the offender has a poor record when responding to supervision. It cited an ICO breach report commenting on the offender displaying a ‘borderline satisfactory response’ and a comment that his engagement with community corrections in connection with drug and alcohol services was described as ‘superficial’. Concerns were expressed regarding his persistent anti-social behaviour, continued use of illicit substances and access to vehicles.

95. The Crown referred me to other aspects of a sentencing assessment report prepared on 15 October 2020. These were to the effect that the offender had demonstrated insight into the impact of his drug use as a contributing factor to his offending and his indication of a determination to change. The inference the Crown invites me to draw is that that not only has such change not occurred, but that the offender is unlikely to reform himself.

96. More recently, the offender informed Dr Sidhu that because of his being subject to apprehended violence orders, which appeared to precipitate the breakdown of the relationship with the mother of his child, his relationship with his son has been affected. Nevertheless, he sees his son regularly and his connection with him is an important motivator. This was also apparent in his letter of apology. He also says that he continues to be close to his parents and siblings. He told Dr Sidhu that he has some friends from childhood who he says support him. The offender acknowledged the uncertainty as to his earning capacity following the accident.

97. Dr Sidhu opined that the offender lacked insight into his difficulties (paragraph 40), although it appeared that this was a retrospective assessment. On the other hand, she said he had a good understanding of his criminogenic risk factors and areas of treatment that he needed (paragraph 44). He had pro-social influences in his life and had effectively engaged in mental health and substance abuse treatment.

98. Dr Sidhu did not venture a view as to the likelihood of his re-offending.

99. After its receipt of Dr Sidhu’s report, the Crown questioned the weight that could be given to the psychologist’s view as to the offender’s drug addiction. It must have been inaccurate, the Crown said, for him to tell her that he had been abstinent from drugs for years prior to the index offending: the breach of the ICO report indicated otherwise. However, Counsel for the offender made the point that time in custody did not necessarily preclude an inmate from taking drugs.

100. The reality, the Crown suggested, was that he had been given multiple opportunities to deal with his drug issues and he had not done so effectively. To this counsel for the offender emphasised Dr Sidhu’s view that his issues were of a long-standing nature and would accordingly take time to resolve.

101. Nevertheless, in view of his general record comprising personal violence offences, the circumstances attending the offence on the s 166 certificate in this case, including his admitted relapse into drug use when in contact with his former partner, and inability to effectively to rehabilitate himself to deal with his drug issues, going back to abuse perpetrated upon him in his childhood, those prospects are guarded and I cannot say that he is unlikely to reoffend.

Instinctive synthesis

102. I have already noted the maximum penalty and also the guideline judgment.

103. I must also consider all of the sentencing considerations in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). These are as follows:

“(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.”

104. It is notorious that there is no hierarchy amongst these purposes. Some of them overlap. As I remarked earlier, sometimes they point in different directions: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476.

105. But especially in cases involving death of the victim, general deterrence is usually given primacy over other considerations personal to the offender.

106. Holding a driver’s license confers a right to drive a motor vehicle on public roads. With that right comes a commensurate responsibility and when that responsibility is not exercised, it can entail tragic consequences.

107. Along with general deterrence, for offences of this kind, significant weight is also ascribed to retribution, denunciation and accountability for the harm done to the victim and, in this case, the community.

108. In its written submissions, the Crown referred to Veen for the purpose of emphasising that an offender’s antecedent history, to the extent that it manifests continuing attitude of disobedience to the law can elevate considerations of retribution (specific) deterrence and the protection of society. I accept that submission as being applicable to this offender. At the risk of repetition as indicated, this is a case where harm to the victim and harm to the community (partly gauged through the victim impact statements) has added salience.

109. There was no dispute that the offending crossed the s 5(1) threshold and I so find. The offender’s Counsel did not suggest that this sentence of imprisonment could be served by way of an order for intensive correction.

110. The offender’s Counsel supplied the Court with JIRS statistics for the index offence. Every case is factually different of course, but I have noted them. One additional difficulty is that the sample size of cases for this specific offence is very small, so as to preclude any discernible pattern. However, the offender also supplied a comparative case schedule featuring certain appellate court authorities; which I have considered.

Time in custody

111. The Crown indicated in its written submissions that the offender has been in custody since 22 May 2024, and argued that none of that period relates to the index offending.

112. By its submissions, the Crown identified what it understood to be the offender’s recent custody in the following table:

| Offence and offence date | Court date | Court | Result | | Reckless wounding in company on 25/4/20 | 15/8/23 | Goulburn DC | ICO 18 months from 15/8/23–4/2/24 ICO REVOKED balance of term 10 months and 2 days from 22/5/24–10/4/25 | | Dangerous driving causing death 16/10/23 | 18/7/25 | Goulburn DC | CURRENT MATTER | | Contravene AVO (Domestic) between 1/12/23–7/1/24 | 9/7/24 | Goulburn LC | 7 months’ imprisonment from 27/6/24–26/1/25 NPP 4 months from 27/6/24 to 26/10/24 | | Common assault on 12/4/24 | 22/10/24 | Cootamundra LC | 6 months’ imprisonment from 22/5/24–21/11/24 |

113. The Crown accepts that it would properly fall within the sentencing discretion for a limited period of back-dating to occur. The offender’s Counsel did not refer to the issue in his written submissions. Applying the totality principle, it may be noted that the index offending scarcely relates to the other offences resulting in his custody, but the terms of those other sentences have now expired. There should be some modest backdating.

Special circumstances

114. The offender urged that a finding of special circumstances be made. Prior to receiving the offender’s submissions, the Crown had resisted such a finding being made. In its written submissions in chief, the Crown contended that his poor or negligible prospects of rehabilitation, indicated by his previous failures to take advantage of indulgences granted to him, tells against such a finding being made.

115. In oral argument, by which time the Crown had had the opportunity to consider Dr Sidhu’s report, Mr Crown did not resile or modify his submission that it would be inappropriate to make such a finding.

116. The offender’s submission emphasised what Dr Sidhu said about the treatment that the offender required, not only in the custodial setting but also outside of that.

117. However, on account of the physical injury and concerns about the offender’s mental health since the accident, featuring the exacerbation of existing depression and the onset of symptoms or traits of PTSD following the collision, at least some level of insight and remorse, the nature of the treatment that would benefit the offender outside of the correctional setting, I propose to allow a reduction in the statutory ratio; albeit a relatively modest one in the circumstances.

Sentencing and orders

118. Mr Cole, please stand.

119. You are convicted of the offence of driving at a dangerous speed occasioning death and the offence of driving with an illicit drug present in your blood.

120. I sentence you to a term of imprisonment of 3 years and 4 months, commencing on 18 January 2025 and expiring on 17 May 2028. The non-parole period of 2 years and 4 months expires on 17 May 2027 after which you may be eligible for release on parole.

121. For the offence on the s 166 certificate and pursuant to 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a conviction is to be recorded, but no further penalty imposed.

122. I also order that the automatic disqualification period is to apply, to commence from today 18 July 2025.

123. I note that the sequence 4 offence is withdrawn.

124. Finally, I direct that Dr Sidhu’s report of 4 July 2025 be drawn to the attention of the authority responsible for the offender’s custodial supervision.

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