R v Fitton

Cases Cited: Aryal v R [2021] NSWCCA 2
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Frlanov v R [2018] NSWCCA 267
La v R [2021] NSWCCA 136
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mattiussi v R [2023] NSWCCA 289
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Grant [2012] NSWSC 1491
R v King [2018] NSWSC 643
R v Mobbs [2005] NSWCCA 371
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Quinlin [2021] NSWCCA 284; 293 A Crim R 253
R v Weston [2012] NSWSC 1498
Rokovada v The King [2025] NSWCCA 64
Salafia v R [2015] NSWCCA 141
Sampson v The King [2025] NSWCCA 25
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
Vaughan v R [2020] NSWCCA 3
Wiggins v R [2010] NSWCCA 30
XY (A Pseudonym) v R [2023] NSWCCA 50
YA v The King [2026] NSWCCA 38

Category: Sentence

Parties: Rex (Crown)
Daniel Fitton (Offender)

Representation: Counsel:
M Hay (Crown)
I Nash (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid (Offender)

File Number(s): 2023/00329403

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: By joint indictment dated 27 May 2025 containing four counts, Daniel Fitton (‘the offender’) and Mark Peckham were charged with a series of offences arising out of the (then) alleged murder of George Kirk in the early hours of 15/16 August 2023 at Dubbo, NSW.

2. Mark Peckham was charged with the murder of George Kirk. The offender was charged with three offences that relate to him hindering the apprehension and subsequent investigation of Mr Peckham – namely:

3. first, on or about 16 August 2023, hindering the apprehension of Mr Peckham, being a person who had committed a serious indictable offence, contrary to s 315(1)(c) of the Crimes Act 1900 (NSW) (‘Crimes Act’) (count 2);

4. secondly, on or about 16 August 2023, hindering the investigation of Mr Peckham, being a person who had committed a serious indictable offence, by taking possession of a knife alleged to be the weapon used to kill Mr Kirk, contrary to s 315(1)(a) of the Crimes Act (count 3); and

5. thirdly, on or about 17 August 2023, hindering the investigation of Mr Peckham, being a person who had committed a serious indictable offence, by directing Uneta White to clean a white Hyundai Tucson that the offender allegedly used to drive Mr Peckham away from the crime scene, contrary to s 315(1)(a) of the Crimes Act (count 4).

6. Whilst the offender initially entered pleas of not guilty to all counts, when re-arraigned on 23 February 2026, the offender pleaded guilty to counts 2 and 4, and not guilty to count 3. The Crown accepted those pleas in full satisfaction of the indictment.

7. The offender is now to be sentenced for committing those crimes.

8. The trial of Mark Peckham on count 1 – being the charge of murder – proceeded before a jury. On 23 March 2026, the jury found Mr Peckham guilty of the murder of Mr Kirk. He is yet to be sentenced.

Background

6. The facts giving rise to the offending are set out in the Statement of Agreed Facts for Sentence dated 23 February 2026 and are as follows.

7. By way of overview, Mr Peckham fatally stabbed Mr Kirk at around midnight on 15/16 August 2023, thereby “precipitating a murder investigation”: by count 2, “the offender hindered the apprehension of [Mr] Peckham by encouraging him to leave the crime scene and by driving him away from it in a white Hyundai”, and, by count 4, “the offender subsequently hindered the police investigation by asking another person to clean the white Hyundai” (agreed facts at [1]-[3]).

8. At this time, the offender was in a relationship with Stevie-Lee Jordan, and they lived together at [REDACTED], Dubbo. The white Hyundai was loaned by Ms Jordan’s mother to Ms Jordan. It was commonplace for the offender to drive that vehicle (agreed facts at [4]-[5]).

Count 2

9. In relation to count 2, on 15 August 2023 (a Tuesday), the offender and Mr Peckham were socialising at homes in Dubbo, and they travelled around together in the white Hyundai driven by the offender.

10. During the course of that evening, the offender and Mr Peckham were at a home in [REDACTED], Dubbo. Before midnight, Mr Peckham left there and walked to [REDACTED], Dubbo – the home of Tammy Antaw. Mr Kirk was in a relationship with Ms Antaw, and was at her home.

11. Mr Peckham went there “to confront George Kirk about an issue concerning prohibited drugs” (agreed facts at [9]). About four minutes after Mr Peckham left the home in [REDACTED], Dubbo, the offender drove the white Hyundai to Ms Antaw’s home (agreed facts at [10]).

12. Mr Peckham went inside Ms Antaw’s home, “argued with George Kirk and stabbed him, causing heavy bleeding” (agreed facts at [11]). The offender, who had by then arrived at Ms Antaw’s, “heard the altercation from outside”. Then, from a position at or near the kitchen window, he “heard a number of panicked utterances by different voices coming from inside the house”, including words to the effect of: “I’m dying, ring an ambulance” and “put pressure on it” (agreed facts at [11]). The offender “inferred that [Mr] Peckham had seriously injured someone inside the house and that emergency services would be coming” (agreed facts at [11]).

13. The offender yelled to Mr Peckham: “come on!”. Mr Peckham then left the house through the back door, and the offender drove Mr Peckham away from the crime scene in the white Hyundai (agreed facts at [12]).

14. An occupant of [REDACTED] called 000 at 12:05am. Police attended promptly. Mr Kirk passed away there a short time later. A murder investigation commenced (agreed facts at [13]).

15. The offender drove Mr Peckham to [REDACTED] – a journey of about 10 minutes. Both men went inside, but Mr Peckham left within a few minutes of their arrival, driving away in an Audi leased by the offender (agreed facts at [14]).

16. The two occupants who were at [REDACTED] at the time of the stabbing gave accounts to police on 16 and 17 August 2023. Mr Peckham was identified as one of the two men involved, and as the person who delivered the fatal injuries to Mr Kirk. The offender, referred to by a nickname, was identified as the other person involved. Police were also given information about his use of a white SUV (agreed facts at [15]).

17. On 17 August 2023 (a Thursday), Mr Peckham was arrested in Newcastle for unrelated offences (agreed facts at [16]).

Count 3

18. The offender learnt of the arrest of Mr Peckham and “became panicked”. He told Uneta White, a friend of Ms Jordan’s who was staying at [REDACTED], that the white Hyundai “needed to be cleaned so that [Ms] Jordan would not get into trouble” (agreed facts at [17]).

19. Ms White used “a cloth and a bleach-like liquid cleaning product” to wipe the exterior of the front passenger door and handle, the interior of the door, and the front passenger seat (agreed facts at [18]).

20. Police executed a crime scene warrant at [REDACTED] on 17 August 2023 and seized the white Hyundai (agreed facts at [19]). The vehicle was forensically examined and, by 24 August 2023, fingerprints from Mr Peckham and the offender, amongst others, were identified in, or on, the vehicle (agreed facts at [20]).

21. Mr Peckham was charged with the murder of Mr Kirk on 19 September 2023 (agreed facts at [21]).

22. On 17 October 2023, police arrested the offender (agreed facts at [22]-[23]).

The offences under s 315(1) of the Crimes Act

23. The offender entered guilty pleas to two offences under s 315(1) of the Crimes Act. Section 315 relevantly provides:

“315 Hindering investigation etc

(1) A person who does anything intending in any way to hinder—

(a) the investigation of a serious indictable offence committed by another person, or

(b) the discovery of evidence concerning a serious indictable offence committed by another person, or

(c) the apprehension of another person who has committed a serious indictable offence,

is liable to imprisonment for 7 years.

(2) For the purposes of subsection (1), a person is to be considered to have committed a serious indictable offence if a public officer engaged in the detection or investigation of offenders suspects on reasonable grounds that a person has committed the offence.

(3) … .”

24. There is no standard non-parole period for the purpose of s 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’).

The sentence: introduction

25. In sentencing the offender, I am required to use the maximum sentence as a legislative guidepost and also identify all factors relevant to the sentencing task, consider their significance, and then assess the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27].

26. In arriving at the appropriate sentence, I have also had regard to the purposes of sentencing as expressed in s 3A of the CSP Act:

“3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender 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.”

27. It is convenient, at the present time, to note the following two matters that inform the sentence that is to be imposed.

28. First, the offences involve the interference with the administration of justice. In R v Weston [2012] NSWSC 1498 at [30] (‘Weston’), the following was said about such offences:

“Offences of that nature are, of themselves, necessarily serious. They have been created for the purpose of ensuring, amongst other things, that the integrity of, and confidence in, the administration of justice is maintained.”

29. Secondly, when sentencing for offences of this kind, general deterrence is an important sentencing consideration, as was explained in R v King [2018] NSWSC 643 at [85] (‘King’):

“It is of vital importance that police are able to carry out investigations with the full co-operation of the public. This is particularly so when the investigation is one of murder. There is a need to protect, and maintain, the integrity of the criminal justice process. This means that general deterrence is an important factor to take into account in determining an appropriate sentence for public justice offences such as hindering an investigation.”

See also R v Grant [2012] NSWSC 1491 at [31] (‘Grant’); Weston at [58].

The objective seriousness

30. It is necessary to assess, and make findings about, the objective seriousness or criminality of each offence.

31. The parties accepted that the matters that bear upon the assessment of the objective criminality of the offence under s 315(1)(a) were those identified in R v Mobbs [2005] NSWCCA 371 at [49]-[50] (‘Mobbs’) and in King at [44] as follows: the seriousness of the serious indictable offence, the investigation of which was hindered by the offender; the degree of planning and premeditation; the length of time during which the hindering was maintained; and the motive of the offender. Additionally, although it is “not an element of the offence that… the investigation is in fact hindered, this factor is nonetheless relevant to the assessment of objective seriousness”: King at [44], citing Grant at [26].

32. Although the decisions in Mobbs and King concerned the offence under s 315(1)(a) of the Crimes Act, their identification of the matters that inform the objective seriousness of the offending for that offence have been held to apply equally to the other offences under s 315(1): see Grant at [21] (in relation to s 315(1)(b)) and Weston at [20] (in relation to s 315(1)(c)).

33. Before addressing the competing positions and the findings sought relating to the objective gravity of the offending, it is to be noted that, in relation to any finding of fact that is adverse to the offender, this must be established beyond reasonable doubt, whereas the offender bears the burden of proving matters that are submitted to be in his favour on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64].

34. The parties adopted, at least initially, different positions in relation to the “serious indictable offence” that was hindered. In short, the Crown submitted that it was the offence of murder, whereas the offender submitted that it was the unlawful killing of Mr Kirk (Crown submissions at [13] and [16]; offender’s submissions at [15]-[16]). In aid of this last submission, Mr Nash, who appeared for the offender, pointed out that the indictment identified the serious indictable offence as either “the stabbing of George Kirk” (count 2) or “the unlawful killing of George Kirk” (counts 3 and 4), with the result that the matter should be approached on that footing.

35. In the end, neither party submitted that anything material turned upon whether the serious indictable offence was the unlawful killing of Mr Kirk, or his murder: each offence is extremely serious.

36. In relation to count 2, I am satisfied that what the offender did was a spur-of-the-moment decision, and not the product of planning and/or premeditation. As the agreed facts establish, the offender did not see anything – he only heard various things which led him to tell Mr Peckham to: “come on!”. On the other hand, I am satisfied that, in relation to count 4, whilst the offender may have been “panicked” by the knowledge that Mr Peckham had been arrested, his acts were calculated, deliberate and involved a degree of planning designed to effect the removal of all forensic traces of, at least, Mr Peckham from the white Hyundai.

37. In terms of the duration of the hindering, it was relatively brief for count 2: it involved the offender driving Mr Peckham from [REDACTED] to [REDACTED] – a journey of about 10 minutes. For count 4, it is not possible to make any finding about the precise duration of the hindering, but it was also likely to be reasonably brief, given what was involved.

38. The motivation for the offender to act in the way he did in relation to count 2 derived, I am satisfied, from his association with Mr Peckham. In relation to count 4, the offender was motivated to act in this way “so that [Ms] Jordan would not get into trouble”.

39. Although, as noted above, whether the investigation was in fact hindered is not an element of the offence, the issue remains presently relevant to an assessment of the objective seriousness of the offending.

40. In this respect, the Crown submitted that the offender “by design made the apprehension and prosecution of Mr Peckham more difficult” (Crown submissions at [14]). I accept, in a broad and general sense, this to be so.

41. My assessment, however, is that the offender’s hindering for each offence was limited and, practically, ineffectual:

42. In relation to count 2, that is because the two occupants inside [REDACTED] gave accounts to police on 16 and 17 August 2023 which identified Mr Peckham as having attended the house and “[delivering] the fatal injuries to Mr Kirk”; at that time, police were given information about the offender’s use “of a white SUV”; and, on 17 August 2023, Mr Peckham was arrested in Newcastle for unrelated offences. In short, the police all but immediately knew who they were looking for, and within approximately a day of the killing of Mr Kirk, Mr Peckham was arrested.

43. In relation to count 4, that is because the offender was identified to police on 16 and 17 August 2023 – albeit by a nickname – as one of the persons who attended [REDACTED]; police were also given information about the offender’s use of the vehicle; and the efforts made to clean the passenger-side of the white Hyundai (the interior and exterior of the door and the front passenger seat) so as to remove any forensic traces of, at least, Mr Peckham from the vehicle failed to achieve this: the car was seized on 17 August 2023, forensically examined, and by 24 August 2023, “fingerprints from [Mr] Peckham… were identified in/on the vehicle”.

44. Acting with intent to hinder an investigation can encompass “a wide range of conduct by reference to objective criminality”: Mobbs at [48]. The same can be said about acting with intent to hinder the apprehension of another person who has committed a serious indictable offence. The Crown submitted that the offending was “a very serious example” of s 315(1) offences – assessments that were strongly contested by the offender (Crown submissions at [20]; offender’s submissions at [25]). Neither party, it should be noted, suggested that the objective seriousness of the offending materially differed between the offences.

45. Given the findings I have made, my assessment is that the objective seriousness of the offending for each offence is at the lower end of the spectrum.

Aggravating factors

44. It is accepted that the offender was on bail at the time of the offending, having been charged with a range of offences including common assault; stalk/intimidate; contravene a prohibition/restriction in an ADVO; and possess or use a prohibited weapon without permit (H91711058, H92047976, H92416372, H94200832: Exhibit 3, page 2).

45. The fact that the offender was on conditional liberty at the time of the offending, whilst not an aggravating factor to its objective seriousness, nevertheless is an aggravating matter – as the Crown submitted, and the offender accepted (Crown submissions at [21]-[23]; offender’s submissions at [26]). I have taken this into account in determining the appropriate sentence: s 21A(2)(j) of the CSP Act.

46. No other aggravating factors were identified as relevant to the determination of the appropriate sentence.

Parity

47. Stevie-Lee Jordan entered a guilty plea to a single count of hindering the investigation of a serious indictable offence, contrary to s 315(1)(a) of the Crimes Act. As she is to be sentenced on 24 June 2026, no parity considerations arise in sentencing the offender.

Subjective considerations

48. The offender did not give evidence at the sentence hearing. A bundle of material including a report from a forensic psychologist, Kris North, was tendered on his behalf (Exhibit 1).

49. The offender was born on [REDACTED]. He is currently 32 years of age and was 29 years of age at the time of the offending. Mr Nash submitted that, despite the offender being raised in a pro-social and supportive family environment, the overall explanation for his descent into criminality stemmed from his drug use – most likely precipitated by an abrupt end (due to injury) to his ability to play high-level junior cricket. With the illicit drug use, the offender came into repeated contact with the criminal justice system.

50. Mr Nash submitted, and I accept, based upon the evidence of the offender’s mother and partner, that he has demonstrated significant – albeit contextually recent – positive behavioural changes: the offender moved to Tuncurry, NSW, where he resides with his partner; the offender and his partner are in a settled relationship and are expecting their first child in July; and the offender has been working as a fencing contractor. In relation to that work, the offender has ambitions to run his own business as a fencing contractor and has taken steps to fulfil that objective.

51. I also accept, as was essentially put on behalf of the offender, that the offender’s parents have rallied around him, and their strong pro-social support provides a solid foundation for his rehabilitation, particularly as they have purchased a house in Tuncurry and expect to move there imminently.

52. The offender’s move to the Mid North Coast has also meant that he has distanced himself from the adverse influences that no doubt contributed to his negative trajectory.

53. The offender also appears to have remained abstinent from illicit substance abuse, at least since around the middle of last year. Given his overall history of drug use, and the relatively recent cessation of it, I am unable to make any finding about the prospect of him continuing to remain abstinent from drugs. The signs seem promising, having regard to the matters referred to above, but, plainly, he will require further assistance to ensure he remains drug free.

54. In this last respect, I note that the psychologist qualified by the offender to prepare a report for the sentence hearing recommended that he engage in treatment for his illicit substance abuse, but this is yet to be acted upon. Nevertheless, according to that report, the offender is reportedly “motivated to address his history of substance abuse, and recognised his mental health and drug use issues were interrelated” (Kris North report, par 39: Exhibit 1, page 11). Acting upon this recommendation impresses me as critical to ensuring that the offender consolidates the gains he has made and maximises the opportunities he has to engage, moving forward, in a pro-social lifestyle.

55. It was common ground, and I accept, that the offender’s criminal history does not entitle him to any leniency. The Crown did not, however, submit (and I do not find) that his record is an aggravating factor on sentence: s 21A(2)(d).

56. In addition to the above matters, the offender raised the following matters to be taken into account in determining the appropriate sentence.

The early guilty plea: s 21A(3)(k) of the CSP Act

57. It is accepted that, given the guilty plea, the offender is entitled to a 5% discount on sentence: s 25D(2)(c) of the CSP Act.

58. In this respect, the offender emphasised that when the matter was in the Local Court and prior to his committal for trial, he had offered to plead guilty to the two offences for which he is now to be sentenced – importantly, it was submitted, on what was accepted by the Crown to be substantially the same factual basis.

59. The offender, whilst accepting that this did not give rise to any further entitlement to a sentencing discount under s 25D(2), nevertheless argued that it was demonstrative of his willingness to facilitate the course of justice, and should therefore be factored into any sentence imposed. In aid of this submission, the offender submitted that, in Rokovada v The King [2025] NSWCCA 64, the Court did not disapprove of the sentencing judge in that case adopting such approach. The Crown, it should be noted, did not suggest that the approach argued by the offender was not open: as to which, see Sampson v The King [2025] NSWCCA 25 at [37], [120] and [121]-[122] (‘Sampson’).

60. Given the stance of the parties, I am prepared to accept that, by the earlier offer to plead, the offender has facilitated the administration of justice – which I have taken into account when arriving at the appropriate sentence: ss 22A(1) and (2) of the CSP Act. I have approached the matter on the footing that, particularly as neither party made a submission about the extent to which any discount should be articulated, it is merely a mitigating factor to be taken into account when fixing the sentence as the offender argued.

61. Further, in approaching the matter in this way, I note that it is not mandatory to specify the penalty which would be imposed but for the facilitation of the administration of justice, notwithstanding that in particular cases – such as those where the discount is significant – it might be desirable to do so: Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [104]-[105]. In this case, however, I remain unpersuaded that the discount makes a significant difference to the penalty imposed.

Remorse: s 21A(3)(i) of the CSP Act

62. Remorse, as a mitigating factor, may only be taken into account if “the offender has provided evidence that he… has accepted responsibility for his… actions” and “the offender has acknowledged any injury, loss or damage caused by his… actions”: ss 21A(3)(i)(i) and 21A(3)(i)(ii) of the CSP Act.

63. The offender submitted that his remorse has been demonstrated by two matters: first, by his guilty plea (which I accept is some evidence of remorse: Siganto v T**he Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]), including the timing of when the offer to plead guilty was made; and, secondly, the statement in the report from Kris North that the offender “has accepted responsibility for his involvement in the offences…” (Kris North report, par 5: Exhibit 1, page 3).

64. Although there is some evidence of remorse, I am only prepared to make a qualified finding about this.

65. The offender did not give evidence, nor was other material provided upon which to base a finding – such as a statement or a letter to the Court from the offender addressing this matter. The evidence on this topic was limited to the guilty plea and what was contained in the report from the forensic psychologist, Kris North (see [63], above).

66. Whilst I accept that the plea is some evidence of remorse, I am not prepared to act upon the statement in the report from Kris North, simply because it is by no means clear that it is a statement made by the offender rather than, in effect, a conclusion made by the author given the offender had pleaded guilty to the offences and, separately, even if that were not so, it does not, in my assessment, amount to anything more than a statement about the effect of the guilty pleas.

Unlikely to re-offend and rehabilitation prospects: ss 21A(3)(g) and (h) of the CSP Act

67. Mitigating factors to be taken into account in determining the appropriate sentence include that “the offender is unlikely to re-offend” (s 21A(3)(g) of the CSP Act) and the fact an “offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise” (s 21A(3)(h) of the CSP Act).

68. Given there was considerable factual overlap with the matters relied upon for each of these matters, they were dealt with together in submissions: the essential argument put was that, although “the Court would be hesitant in making positive findings as to [the offender’s] prospects of rehabilitation or likelihood of reoffending”, recent developments in the offender’s life provide a basis to make measured findings about each of these matters (offender’s submissions at [31]).

69. The offender’s criminal history, his illicit drug use and the recency of the apparent alteration in his lifestyle (including his abstinence from drugs) preclude me from making positive findings about his prospects of rehabilitation, or that he would be unlikely to reoffend.

70. My assessment is that, for each of them, he has guarded prospects. Nevertheless, as I have earlier noted, the involvement of the offender’s parents and their pro-social support provide a strong foundation for his rehabilitation, as should impending fatherhood.

Conditional bail

71. Following his arrest on 17 October 2023, the offender was in custody until he was granted conditional bail (on 16 July 2024) and ultimately released on 30 July 2024. Relevantly here, the conditions included: daily reporting; a residency condition; and a home detention condition with limited exceptions (being to obtain emergency medical treatment, or when in the company of nominated individuals).

72. On 11 February 2025, the home detention condition was varied: relevantly, rather than being on home detention, the offender was subject to a curfew. The offender was, therefore, on home detention for around 6.5 months.

73. On 28 March 2025, the offender was charged with a further offence (hinder or resist a police officer in the execution of duty – H100260962: Exhibit A, page 21) and refused bail. He remained in custody until that charge was dealt with on 11 June 2025. It was accepted that, thereafter, the offender was only released on bail on 21 July 2025 (Exhibit A, page 2; Exhibit 2, pages 3-6). The bail granted required daily reporting and included a curfew (Exhibit 2, pages 3-4). The offender has been subject to a curfew, therefore, for around 9 months.

74. Since that time, the offender’s bail conditions remained – and he has continued to reside in Tuncurry, NSW in accordance with the residency condition.

75. The offender submitted that, whilst on conditional bail, he was subject to a suite of conditions that imposed considerable restrictions upon him – notably the (daily) reporting condition, the home detention condition and the curfew condition – and that the Court should find that the imposition of those conditions amounted to quasi-custody to be taken into account by way of a reduction in the sentence fixed. The Crown accepted the approach argued by the offender, and did not argue that no reduction should be made.

76. In Frlanov v R [2018] NSWCCA 267 at [24], R A Hulme J expressed the relevant principle as follows:

“A judge may, but is not obliged to, take into account that an offender has been the subject of onerous bail conditions prior to sentencing: Hoskins v R [2016] NSWCCA 157 at [36]. It is a discretionary matter that depends very much upon the facts of the case at hand. A particular circumstance that would favour taking such a matter into account would be if the conditions amount to "the notional equivalent of custody" for which an offender should be given credit in the assessment of sentence: R v Webb [2004] NSWCCA 330; 149 A Crim R 167 at [18].”

See also La v R [2021] NSWCCA 136 at [43] (‘La’) and YA v The King [2026] NSWCCA 38 [106]-[119].

77. The enquiry thus involves: first, a consideration of whether the bail conditions were harsh or restrictive such that the Court should conclude that their effect approached being in custody and, secondly, upon satisfaction of that matter, to give allowance for that fact when imposing the sentence: R v Quinlin [2021] NSWCCA 284; 293 A Crim R 253 at [89]. This allowance can be made by way of backdating the commencement of the sentence or by way of “a reduction in sentence”: La at [64].

78. The offender submitted that the Court should find that the offender’s bail conditions have been harsh and restrictive and should operate to reduce “the notional starting point of any sentence” (T22.45). The Crown did not, as I have noted, submit to the contrary.

79. I am satisfied, in the particular circumstances, that the bail conditions – notably, the daily reporting condition, the home detention condition (which was in place for around 6.5 months) and, less so, the curfew condition (which was in place for around 9 months) – were restrictive in the required sense, particularly given the offender’s age and the issues with his mental health referred to in the report from Kris North. The evidence on this topic, I emphasise, lacked some detail – hence I am only prepared to infer, favourably to the offender, that the period of home detention (with the other conditions at that time) warrants a reduction in the sentence.

80. I propose to take this matter into account and adjust the commencement date of the sentence by a further 60 days – which is around one-third of the time the offender was on home detention and subject to the other conditions of bail granted on 16 July 2024.

Special circumstances

81. The offender submitted that a finding of special circumstances should be made because he would benefit from a longer period of supervision (offender’s submissions at [35]).

82. The Crown’s submission, which I accept, was that it was not an appropriate case for a finding of special circumstances and, at least practically, given the range of sentencing options reasonably open, any adjustment to the statutory ratio is not only unwarranted, but would not meaningfully add to the period of supervision he will receive.

Other relevant sentencing matters

83. The Crown submitted – and the offender accepted – “that the s 5 threshold has been crossed and no penalty other than imprisonment is appropriate… in the circumstances” (Crown submissions at [28]; offender’s submissions at [36]).

84. I am satisfied that no penalty other than imprisonment is appropriate.

85. The offender’s ultimate submission was, however, that the time already served in custody – solely and partly referable to the present offences – since his arrest on 17 October 2023 “represents a sufficiently lengthy aggregate non-parole period for the offences” (offender’s submissions at [36]). The Crown, very fairly, accepted as much, submitting that a non-parole period that included the time already served (solely referable to the present offences, and some partly referable to the present offences) would be a permissible and available sentencing outcome, given all the circumstances.

86. The Crown and offender accepted that the time the offender has spent in custody which is solely referable to the present offences amounts to 236 days (offender’s note on credit for custody, par 5; Exhibit 3, page 3).

87. When sentencing an offender, “any time for which the offender has been held in custody in relation to the offence” must be taken into account by the sentencing court (s 24(a) of the CSP Act) and, when determining when that sentence is to commence, the sentencing court “must take into account any time for which the offender has been held in custody in relation to the offence” (s 47(3) of the CSP Act). In this respect, “whilst there is no absolute rule as to how such pre-sentence custody is to be taken into account by a sentencing court”, it has been acknowledged that “backdating the commencement of a sentence to directly reflect the period of pre-sentence custody is the usual course adopted”: Salafia v R [2015] NSWCCA 141 at [65]-[66]; Wiggins v R [2010] NSWCCA 30 at [3]. The sentence to be imposed will fully account for the time the offender spent in custody which is solely referable to the present offences.

88. Further, in situations where the offender’s time spent in custody is not solely or exclusively attributable to the offences for which the sentence is being passed, then it is a matter of discretion for the sentencing judge to determine whether – and, if so, to what extent – there should be backdating of the sentence: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 at [21]-[24]; Mattiussi v R [2023] NSWCCA 289 at [49].

89. The offender submitted (and it was an agreed fact) that, since his arrest on 17 October 2023, he has been in custody for 403 days (offender’s note on credit for custody, par 3; Exhibit 3, page 3). There are two periods where the offender’s custody was attributable to other offending:

90. 17 October 2023-16 January 2024: the offender was sentenced to 92 days imprisonment for the offending H91711058, H92047976 and H92416372 (earlier described: see [44], above; offender’s note on credit for custody, par 4(a); Exhibit 3, page 2).

91. 28 March 2025-11 June 2025: the offender, although convicted with no penalty imposed for the offending H100260962 (s 10A of the CSP Act), nevertheless served 76 days in custody (offender’s note on credit for custody, par 4(b); Exhibit 3, page 3). The Crown accepted that the offending was “relatively benign” (T33.20) – involving a breach of bail and the offender resisting police when they sought to arrest him – and accepted that it was “unlikely” that the offender would have remained in custody for the period of time he did based solely on the resist arrest charge.

92. In relation to the first period, given the nature of the offending and the dearth of material that would enable a meaningful understanding of the sentence imposed, I am not persuaded to make an allowance, when fixing the appropriate sentence for the current charges, for any time that the offender spent in custody for that other offending.

93. The position in relation to the second period is different, given the stance of the parties and the acceptance by the Crown that some portion of this period should be taken into account when fixing the appropriate sentence for the current charges. I propose to do so, and will adjust the commencement date for the sentence by a further 60 days.

94. The offender is entitled to a sentencing discount for his early guilty pleas – 5% in relation to each count: s 25D(2)(c) of the CSP Act. Given the decision in Sampson, it is necessary to discount the notional starting point without any “round[ing] … either up or down”: at [43], [49].

95. In fixing the sentence, in addition to the matters already addressed, I have had regard to, and considered, the maximum penalties for each offence and the purposes of sentencing as expressed in s 3A of the CSP Act – in particular, specific and general deterrence. The offences are serious, and there is a need to protect, and maintain, the integrity of the criminal justice system. The sentence to be imposed recognises the seriousness of the offending, the time already served and the various sentencing purposes in s 3A of the CSP Act.

96. For completeness, it should be noted that the offender identified a number of cases involving sentences for offending under s 315(1) of the Crimes Act and made available statistics from the Judicial Information Research System. I have considered this material. In the end, given the different factual circumstances with which they were concerned, I have not found the cases or statistics to be of particular assistance.

97. The indicative sentences, with the relevant sentencing discount applied to each (s 53A(2) of the CSP Act), are as follows:

98. Count 2: 1 year, less 5% = 11 months and 11 days.

99. Count 4: 1 year, less 5% = 11 months and 11 days.

100. I propose an aggregate sentence which requires an assessment of totality: Vaughan v R [2020] NSWCCA 3 at [91], [117]; Aryal v R [2021] NSWCCA 2 at [46]; XY (A Pseudonym) v R [2023] NSWCCA 50 at [50].

101. The offender’s short submission was that, given each offence arose out of Mr Kirk’s death, there was considerable “crossover” such that there should be substantial concurrence. Applying the totality principle, whilst it may be said that the offending could, generally, be considered to arise out of the death of George Kirk, the offending involves discrete and distinct acts and the sentence must “reflect the total criminality of the two offences”: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27].

102. In my view, an aggregate sentence of 1 year and 3 months is appropriate in the circumstances. The sentence will be backdated to commence on 16 May 2025. The effect of this sentence is that the offender has served, with the time he has already spent in custody, the non-parole period, and he will be on parole for the balance of the term.

Sentence and orders

99. I make the following orders:

100. The offender, Daniel Fitton, is convicted of the offences of hindering the apprehension of a person who has committed a serious indictable offence, contrary to s 315(1)(c) of the Crimes Act (count 2) and hindering the investigation of a serious indictable offence committed by another person, contrary to s 315(1)(a) of the Crimes Act (count 4).

101. For those offences, I impose a sentence of imprisonment consisting of a non-parole period of 11 months and 7 days, commencing from 16 May 2025, and a head sentence of 1 year and 3 months. The offender was entitled to be released on parole on 22 April 2026. The head sentence will expire on 15 August 2026.

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