R v JOHNSON

Category: Sentence

Parties: Rex
Korey JOHNSON

Representation: Counsel:
Mr P Kerr for the Crown
Mr J Sinclair for the Offender
Solicitors:
Office of the Director of Public Prosecutions
Aboriginal Legal Service

File Number(s): 2023/00446347

Publication restriction: No

JUDGMENT

1. The finalisation of this matter has been delayed because of issues relating to the material initially tendered by both parties and me being on a period of sick leave for several weeks following surgery.

2. It was not particularly clear from the Summary on the front of the Crown sentence bundle but the offender appeared at the Local Court at Wagga Wagga 14 August 2024 and pleaded guilty to two counts of Dangerous Driving Occasioning Grievous Bodily Harm contrary to s 52A(3(c) of the Crimes Act, 1900. For some reason, which again is not obvious an indictment was presented on 13 September, 2024 and the offender pleaded guilty to two counts, namely that he:

On 7 December 2023 at North Wagga Wagga in the State of New South Wales, did drive a vehicle, namely a blue sedan with registration CSC10Q, in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact and as a result, grievous bodily harm was occasioned to Mark Crowder, contrary to s 52A(3)(c) of the Crimes Act, and further

On 7 December 2023 at North Wagga Wagga in the State of New South Wales, did drive a vehicle, namely a blue sedan with registration CSC10Q, in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact and as a result, grievous bodily harm was occasioned to Gwyneth Crowder, contrary to s 52A(3)(c) of the Crimes Act.

3. The parties agreed that the pleas of guilty were entered at an early stage and the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

4. The maximum penalty for each offence is 7 years imprisonment. Parliament has not specified a standard non-parole period in respect of the offence.

5. In addition to the two charges on the indictment pleas of guilty were entered to three matters attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986, namely Exceed Speed Limit by more than 10 km/h, Not Give Particulars to Injured Person, contrary s 287(1) of the Road Rules, 2014 and Fail to Stop and Assist after Impact Causing Injury, contrary to s 146(1) of the Road Transport Act, 2013.

6. The first two of those matters attaching to the s 166 Certificate carry a maximum fine of $2,200. The offence of Fail to Stop and Assist after Impact Causing Injury carries a maximum penalty of 18 months imprisonment and/or a fine of $3,300.

Facts

7. The facts have been reduced to a set of agreed facts. Gwyneth Crowder was aged 74 years and her husband Mark was aged 62 years at the time of the impact. The offender was driving a blue Holden Commodore sedan with a woman named Nicole Shultz in the front passenger seat.

8. At 1:10 pm on 7 December 2023 Sen Constable Van Der Meer was patrolling in a fully marked highway patrol vehicle eastbound along old Bowman Road, Cartwright’s Hill. At 1:12 pm the officer observed the offender’s vehicle travelling westbound along Old Bowman Road in excess of the signposted 80 km/h speed limit. Using the radar attached to his police vehicle he measured the speed of the offender’s vehicle at between 96 km/h and 103 km/h. This relates to the first of the three matters attaching to the s 166 Certificate.

9. After passing the offender’s vehicle, the officer activated all warning lights on the police vehicle and conducted a three-point turn. At this time the offender turned left into East Street, Cartwright’s Hill and continued to drive southbound towards Oura Road. East Street is a sealed road between old Bowman Road and Cooramin Street and unsealed between Cooramin Street and Oura Road/Mill Street. The officer did not initiate pursuit of the offender’s vehicle but instead patrolled the surrounding area ultimately making his way to Oura Road.

10. At 1:13 pm Gwyneth Crowder was driving a silver coloured Toyota Camry sedan at about 50 km/h westbound on Oura Road towards the intersection with East Street. Her husband Mark was the front passenger in the vehicle. At this time the offender was driving southbound along the unsealed dirt road section of East Street towards Oura Road at excessive speed. The offender entered Oura Road and collided with the front right hand side of the vehicle in which the Crowders were travelling as it was passing through the intersection. A map depicting the location of the impact is annexed to the facts. A photograph taken on the day of the impact also forms part of the agreed facts.

11. As a result of the impact Mark and Gwyneth Crowder were seriously injured and remained in the vehicle. Other road users lent assistance until police and ambulance arrived. I will deal with the injuries suffered by both victims shortly.

12. After the impact the offender immediately fled the scene on foot, southbound along East Street towards Mingara Street. This conduct relates to the remaining two matters attaching to the s 166 Certificate. Ms Shultz stayed at the scene and later told police at the scene that the offender was the driver of the vehicle.

13. The collision and the immediate aftermath was captured by a dash cam camera fitted in the vehicle travelling immediately behind Gwyneth and Mark Crowder’s Toyota. That footage was tendered and became exhibit B at the sentence hearing. That footage graphically shows the impact. It also establishes to my mind beyond reasonable doubt that the offender was travelling at a speed considerably in excess of what was safe for the circumstances. Further, that footage also establishes beyond reasonable doubt that the offender was travelling at a speed such that he would have been unable to avoid an impact with any other vehicle which had the misfortune of being on the intersection at the time. Further, that footage clearly shows and I am satisfied beyond reasonable doubt that the offender had lost control of the vehicle. If this decision is ever reviewed, I recommend in the strongest terms that anyone reviewing this decision look carefully at that footage within exhibit B. A photograph of the immediate aftermath of the impact is also included in the agreed facts.

14. Both victims were conveyed to the Wagga Wagga Base Hospital and later Gwyneth was airlifted to St George Hospital in Sydney. The facts recite that Mark Crowder suffered:

(a) L1 vertebral body fracture; (b) Undisplaced fractures in left ribs 10 and 11; and (c) A Webber A right ankle fracture.

15. Further, the facts recite that Gwyneth Crowder sustained:

(a) Minor grazes to her forehead and nose; (b) A bruise over her left hip; (c) A displaced comminuted C2 spinal fracture extending into foramina bilaterally; (d) A horizontal sternal fracture; (e) Left lateral 2nd to 5th rib fractures and an anterior second right rib fracture; (f) Left knee pain.

16. Comprehensive medical reports prepared by Dr Geoffrey Miler, specialist surgeon, dated 6 July 2025 in respect of Gwyneth and 29 June 2025 in respect of Mark Crowder are contained within the Crown tender bundle. While those reports are very comprehensive, they are clearly prepared for a personal injury claim. One of the several reasons the matter was adjourned beyond the initial hearing date of 30 September 2025 was for the Crown to obtain further medical material in respect of the victims. It is tolerably plain from both reports that some of the injury sustained was essentially exacerbation of pre-existing injuries.

17. Indeed, I took the view on 30 September 2025 that I was not able to make any accurate assessment of the extent of the grievous bodily harm sustained by either of the victims.

18. At the further short sentence hearing on 12 November 2025 the Crown put, and there was no apparent dispute, that all of the injuries sustained by Mr Crowder were as a result of the impact.

19. Further, on 12 November 2025 a further medical report dated 22 October 2025 was tendered (exhibit E) in respect of Ms Crowder. That report sets out:

“1) Lower back pain

it’s a pre existing condition she had for few years before the accident but since the accident her lower back got worse in intensity and became more persistent together with worsening radiculopathy pain (nerve pain) in her right leg which she used to have before the surgery but again its intensity got worse since then.

2. Cervical spine injury (neck spine injury) (cervical spine C2 injury)

She have [sic] sustained this injury in the accident, been managed for her but still having persistent neck pain, radiculopathy (nerve pain) in right shoulder, recurrent headaches, restriction of movement of neck movement mainly with extension and flexion

3. Exacerbation of pre existing left knee osteoarthritis

left knee worsening osteoarthritis and pain since the impact and bruise injury.

4. Regarding her mental health

- worsening of mental health, well being, worsening pre existing anxiety, insomnia and social anxiety.

- in addition she started to develop symptoms that suggest possible PTSD, olfactory symptoms (recurring smell related to the accident giving her flashbacks and avoidance)”

20. As I observed at the hearing on 12 November 2025, I could not be satisfied even on balance that Ms Crowder has developed PTSD. Be that as it may, it is clear that pre existing issues with her health were exacerbated. The injuries received as a result of the impact include the cervical spinal fracture.

21. If required I would assess the grievous bodily harm suffered by both victims to be at the lower end of the mid-range of what is grievous bodily harm.

Assessment

22. I apprehend there is a considerable gulf between the parties as to where this matter falls on the scale of seriousness. It was initially submitted on behalf of the offender that his moral culpability is “modest”. At the sentence hearing on 30 September 2025 I suggested to Mr Sinclair that he was in fact putting that the moral culpability of the offender was low. I understood Mr Sinclair to agree with that. However, at the sentence hearing on 12 November 2025 Mr Sinclair withdrew that submission and put (as I understood the submission) that the moral culpability was higher than what he initially put but it was still less than “high” on the continuum between momentary inattention and abandonment of responsibility. The Crown submitted that the moral culpability of the offender is high but did not advance a submission that the offender abandoned responsibility.

23. Both parties addressed on the issue of the Guideline Judgment in R v Whyte (2002) 134 A Crim R 53. Going to paragraph [205] of that decision, this offender is 35 years of age and cannot be described as a young offender. The offender has a record that does not entitle him to any particular leniency and therefore cannot be described to be of good character with limited or no prior convictions. Two persons sustained grievous bodily harm. Although the offender had served the victims at a hotel in which he had worked in Junee they were essentially strangers. The offender himself sustained no injury but there is to my mind genuine remorse.

24. Going then to the list of aggravating factors set out at [216] of the judgment I have set out the nature of the injuries above. The people immediately put at risk were the two victims of the offender. However, Oura Road is a road on which traffic could be expected at any time of the day or night. To my mind the degree of speed was substantially in excess of what was safe in the circumstances and was in excess of the speed limit. There is no suggestion of intoxication or substance use. Likewise, there is no suggestion of erratic driving, competitive driving or showing off. The length of the journey was from when the offender turned off onto East Street and the impact. I cannot be satisfied beyond reasonable doubt that the offender was ignoring warnings or escaping a police pursuit.

25. On that last matter, I note that the highway patrol vehicle was fully marked. I cannot be satisfied to the criminal standard that the offender was aware that the officer had conducted a three-point turn or for that matter he had activated the warning lights. While I might entertain a grave suspicion about these matters, I put that suspicion to one side for the purpose of proceeding to sentence.

26. The seriousness of matters contrary to s 52A are on a continuum from momentary inattention to abandonment of responsibility. In the matter presently under consideration appropriately the Crown does not press that there was an abandonment of responsibility.

27. Ms Sinclair on behalf of the offender in his submissions on 30 September 2025 put that the offender’s moral culpability was modest, but this was later reviewed. In this regard it was put that there was no expert evidence of the specific speed at which the offender was travelling and there was no suggestion of intoxication. It was accepted that the offender was travelling at a speed in excess of what was appropriate.

28. While some of those submissions are well founded, the fact remains that the offender was driving such that the vehicle was out of control at the time it entered the intersection where the impact occurred.

29. However, I return to the various factors set out above taken with the graphic footage within exhibit B. In all of the circumstances I conclude that the offender’s moral culpability was high, but falls short of abandonment of responsibility. In all of the circumstances the moral culpability is well within the range of what is considered “high” on the continuum to which I have referred. If otherwise required, in all the circumstances, noting the injuries sustained by the victims, I assess the matter as being within the mid-range of seriousness.

30. Having given the matter a great deal of consideration, I am of the view that each of the matters contrary to s 52A are essentially of the same seriousness. Any difference would be very marginal at best.

Criminal and Driving History

31. I have already observed that the offender has a criminal history that does not entitle him to any particular leniency. He was born on 25 May 1990 and accordingly was 33 years of age at the time of the offending and is 35 at the time of sentence.

32. The offender has a number of matters recorded against him, commencing with a PCA (drink driving) offence and Unlicensed Driver in 2008. In 2009 he was convicted of Larceny. In 2015 he was convicted of Drive While Disqualified and placed on a s 9 bond for 2 years. Also in 2015 he was convicted of Common Assault and placed on a further bond to be of good behaviour. In 2018 he was convicted of Contravene Apprehended Violence Order. In 2023 he was convicted with Deal with Proceeds of Crime, and a number of Possess Prohibited Drug charges. More recently he has been convicted a number of times of Drive Vehicle with Illicit Drug in Blood or Oral Sample.

33. Further, the Traffic History is at Tab 8 of the Crown tender bundle, exhibit A on sentence. That too is unenviable, noting that there are a number of infringements for regulatory traffic offences including Exceed Speed Limit and Fail to Comply with Conditions of License.

34. It is uncontroversial that these offences were committed while the offender was subject to bail. This enlivens the statutory factor of aggravation pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.

35. Given the criminal and driving history and noting that these offences were committed while the offender was subject to bail, I am unable to find on balance that the offender is unlikely to re-offend, either generally or specifically relating to traffic related matters.

Subjective Case

36. The offender gave evidence at the sentence hearing on 30 September 2025 and a volume of written material became exhibit 1 on sentence and a reference from Justine Evans became exhibit 2.

37. I will initially go to the evidence of the offender. He acknowledged that he had had the psychological report of Kris North read to him and he maintained that the history he gave to Ms North was the truth. I will deal with the report later in these reasons. The report does however deal with the offender being sexually assaulted while in care.

38. The offender said that he had been the victim of a sexual assault and that he had told his mother about that in 2024. He also told his current partner when they got together about 18 months ago. He feels much better now that he has “got it off his chest”. I understood the offender to say that he wished to engage in counselling. At the sentence hearing on 12 November 2025 a document (exhibit 4) was tendered from Victim’s Services indicating that the offender has been registered for counselling but his claim for a recognition payment has not yet been received as further information is required.

39. The evidence continued that he had worked at a hotel in Junee initially for 6 months as a bartender but became the operations manager of that venue for about 2 years. His responsibilities included supervising staff and making sure that patrons had a pleasant experience when they visited the venue. He said that he “loved” that role.

40. Further, the offender gave evidence that his mother, who lives in Matraville in Sydney, is unwell and she has been diagnosed with blood cancer. It is accepted that the condition is terminal. His mother is 54 years of age. He visits his mother a number of times per week and assists generally with all household chores including the shopping. His ex partner was assisting his mother on the day of the sentence hearing. The offender is bailed to an address at Daceyville, which is 2 to 3 kilometres away from his mother’s place. When visiting his mother he spends about 8 hours there.

41. At the sentence hearing on 12 November 2025 a further medical report by Dr Beech, Endocrinologist and Obstetric Physician in respect of the offender’s mother was received and became exhibit 3. That sets out that her bone mineral density in is the osteoporotic range and while the immediate risk of fracture is relatively low the risk of fracture is elevated. Further the decline in lumbar spine bone mineral density is consistent with age related post menopausal bone loss. Further, “if it is not known to be genetic, treatment or disease related, evaluation of secondary causes of osteoporosis may be warranted in this case”. Further bone mineral density scanning in the future is recommended.

42. The offender also gave evidence that since being admitted to bail he has looked for work and has obtained some work as a casual bar attendant and he has done some labouring shifts for a friend. He is also seeking therapy for his mental health issues, in particular the PTSD. The evidence continued that he was aware of his substance and alcohol abuse issues. However, when he was acting licensee of the hotel he did not drink at all and focused on the work.

43. When asked how he felt when he heard the Victim Impact Statements and saw the dash-cam footage he said that he “felt horrible” and he “thinks about it every day”. He said that he had served the victims at the pub a couple of times. At this point of his evidence the offender was tearful. I accept that the offender is genuinely remorseful.

44. Under cross examination the offender acknowledged that he was travelling at an excessive speed in the circumstances just prior to the impact and that the vehicle was out of control before it arrived at the intersection where the impact occurred. He maintained that he did not see the blue and red lights of the police vehicle.

45. The offender was also cross-examined about his driving history and in particular on the issue of him being detected four times with an illicit drug in his system.

46. When asked under cross examination as to why he left the scene he said he was in “full blown panic mode”. Be that as it may he made no attempt to return to the scene and he was arrested in Junee the following day.

47. I now turn to the psychological report prepared by Ms Kris North. At paragraph 3 she says:

“In summary, my assessment of Mr Johnson revealed a history of complex trauma stemming from his childhood in relation to his exposure to domestic violence, physical abuse and sexual abuse. It was my opinion that his exposure to trauma had predisposed Mr Johnson to the development of symptoms of depression and post-traumatic stress and he described having struggled with episodes of depression, heightened levels of anxiety, and intrusive memories relating to past trauma since his adolescence. It was also my opinion Mr Johnson’s past use of alcohol and drugs was directly related to his mental health issues and as such it is recommended he addressed both his mental health and substance use issues concurrently in treatment.”

48. The offender had been in foster care for some few months when he was age 7 due to his mother being in hospital breast cancer treatment. He and his sister were both sexually abused whilst in care - see paragraphs 10 and 13 of the report. He was abused not only by an adult male carer but also one of his older foster siblings. He was too scared to disclose the abuse at the time.

49. Further, the offender witnessed significant domestic violence perpetrated towards his mother including having been forced watch her being raped by her former partner on two occasions. Apart from this he also witnessed significant domestic violence, in addition to having been physically abused by his mother’s partner - see paragraphs 10 and 14 of the report. The offender gave a history of attending seven primary schools and three high schools due to his family frequently moving homes.

50. Clearly enough, the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to a meaningful extent. This has the effect of reducing the moral culpability of the offender. On this issue I note the recent decision of YZ v R [2025] NSWCCA 165 where Weinstein J (Wright & Sweeney JJ agreeing) said at [65]:

The following principles are relevant to the determination of whether an offender’s disadvantaged background affects their moral culpability for their offending:

1. An offender’s moral culpability may be reduced because there is a causal link between their background and their offending. Indeed, such a causal link “will inevitably support a finding that such an offender’s moral culpability is reduced”: DR v R (2022) 300 A Crim R 116; [2022] NSWCCA 151 at [37] (per Bellew J, Ward P and RA Hulme J agreeing); Dungay v R [2020] NSWCCA 209 (“Dungay”) at [153] (per N Adams J, Bell P and Davies J agreeing).

2. However, the authorities are now clear that a causal link between an offender’s background and the offence for which they are to be sentenced is not required for a court to make a finding of reduced moral culpability: Dungay [136]-[153] (per N Adams J); Hoskins at [57] (per Brereton JA); Nasrallah at [88] (per Hamill J); Lloyd v R [2022] NSWCCA 18 at [27] (per McCallum JA); R v MJ [2023] NSWCCA 306 (“MJ”) at [2]-[15] (per Simpson AJA). Whether or not a causal link can be established, it will often be the case that an offender from a disadvantaged background cannot be said to bear the same moral responsibility as a person whose background is advantaged. In the oft-quoted words of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69], a court may consider that “common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”

3. In MJ, Simpson AJA emphasised at [15], that the essential question is the assessment of an offender’s moral culpability. I agree with her Honour. I would add that in my view, the assessment of whether an offender’s moral culpability is reduced by reason of their disadvantaged upbringing often involves one simple consideration. That is, in all the circumstances, can it be accepted that the offender in question bears the same moral responsibility for their offending as a person who has had a privileged or conventional upbringing? If that cannot be accepted, there must inevitably be a reduction in the offender’s moral culpability. I consider that this is consistent with the plurality’s reasoning in Bugmy.

4. There is no requirement that the offending be ‘impulsive’ for a court to find that an offender’s moral culpability is reduced by reason of their disadvantaged background. Neither is evidence of planning necessarily a barrier to a finding of reduced moral culpability: see Robertson v R [2024] NSWCCA 22 (“Robertson”) at [111]-[114] (per Ierace J, Harrison CJ at CL, Wilson J agreeing) and the cases discussed therein: Chiarlini v R [2023] NSWCCA 227 at [21] and [37] (supplying a large commercial quantity of methylamphetamine); Baines v R [2023] NSWCCA 302 at [71]-[76] (a planned gangland execution) and Harris v R [2023] NSWCCA 174 at [79] and [84] (armed robbery).

5. The effects of a background of profound disadvantage “do not diminish with the passage of time”: Bugmy at [43]. A long history of offending is no barrier to a finding of reduced moral culpability because of an offender’s background: Bugmy at [43]. Similarly, the fact that an offender has lived a pro-social life in the period between their disadvantaged childhood and offending is also not a barrier to a finding of reduced moral culpability: Robertson at [114], Bugmy at [43]-[44].

51. In the matter presently under consideration I do not understand that it is put on behalf of the offender that there is a causal connection between what have become known in shorthand terms as the “Bugmy factors”. Nevertheless, in all of the circumstances those factors attain very meaningful weight in the matter.

52. Going to other aspects of Ms North’s report, it is noted at paragraph 5 that the offender expressed remorse for the offending. I have already made a finding on the offender’s favour that he is remorseful.

53. The offender gave a history of being his mother’s primary carer at the time of the assessment and noted she had been diagnosed with terminal cancer. If necessary, that is supported by medical material within Exhibit 1, the defence tender bundle on sentence.

54. At paragraph 6 of the report Ms North opines that the offender’s underlying depression may have also contributed to impaired judgment at the time of the incident consistent with research indicating impairments in attention and decision making to be associated with depressive disorders. The emphasis on the word “may” is mine. I am not persuaded that that amounts to a diagnosis that there is a causal connection between the depression and the offending. Nevertheless, the mental condition of depression is all part of subjective mix. In this regard I have had regard to the decision in Moiler v R [2021] NSWCCA 73.

55. The employment history of the offender is set out at paragraph 12 of the report. I note that for certain periods the offender has been able to maintain regular employment at both an abattoir and in the hospitality industry. The breakdown of his then relationship and his mother’s declining health led him to leave the work in hospitality.

56. At paragraph 15 of the report is set out that the offender began regularly using alcohol from 13 years of age and was consuming up to a “box” of wine (I presume this refers to a cask). He has used amphetamines and ecstasy from his teenage years but had periods of abstinence when in stable employment.

57. Consistent with the evidence the offender gave, the report sets out he has been in a new relationship since July 2024. That relationship seems to be positive and his current partner is supportive of the offender and is aware of the offender’s history of complex trauma.

58. Ms North sets out (see paragraph 18 and following) that the offender has struggled with recurrent episodes of depression since his adolescence and he described having experienced elevated symptoms of depression throughout 2023 leading up to the offences. He described the depression having escalated from April 2023 subsequent to his relationship breakdown and loss of his job. The depression is further exacerbated by stress relating to his mother’s poor health and he relapsed into methamphetamine use. The offender also described a further increase in his depressive symptoms subsequent to the impact in 2023. Ms North opines the depression has been exacerbated by feelings of guilt relating to the impact.

59. In the penultimate paragraph of her report Ms North diagnosis that the offender meets the criteria for major depressive disorder, post-dramatic stress disorder, and stimulant use disorder, moderate, in sustained remission. A little earlier in the report she recommends that the offender would benefit from engaging with a psychologist to address the symptoms of major depressive disorder with a focus on the development of strategies to manage future episodes of depression. She also recommends that the offender would benefit from engaging in counselling to reduce his risk of future relapse to substance use.

60. Given the criminal history, the offending while on bail and the absence of no real effort by the offender to address a number of issues highlighted by Ms North I am not able to make a finding on balance that the offender has good prospects of rehabilitation.

Submissions

61. Mr Sinclair put on behalf of the offender that although the threshold within s 5(1) of the Crimes (Sentencing Procedure) Act was crossed, it would be appropriate for the offender to serve his sentence by way of Intensive Correction Order. I will deal with that in detail later.

62. However, given the report of Ms North, if the court does not accede to the primary submission of Mr Sinclair; clearly there must be a reasonably generous finding of special circumstances based on the age of the offender, this is his first time in custody but moreover the need for an extended period of supervision for the offender to receive the treatment as recommended by Ms North. The offender will also need assistance in reintegration into the community.

63. The Crown did not make submissions on 30 September as the matter was part heard part way through Mr Sinclair’s submissions. Mr Sinclair put on 30 September 2025 and again on 12 November 2025 that the matter should be dealt with by the imposition of an Intensive Correction Order.

64. In this regard it was also put on 12 November 2025 that the court could make such an order “onerous and punitive” by imposing conditions such as unpaid community service work and abstinence. A Sentence Assessment Report was received (exhibit C) on 12 November 2025 which indicates that the offender is suitable for community service.

General Remarks

65. It is acknowledged on behalf of the offender that the threshold within s 5(1) of the Crimes (Sentencing Procedure) Act, 1999 is crossed. Before considering whether the sentence is to be served by way of Intensive Correction Order it will be necessary to determine the appropriate sentence.

66. In passing sentence I will need to have regard to and give proper effect to ss 3A and 5(1) of the Crimes (Sentencing Procedure) Act 1999. Section 3A sets out the purposes of punishment, namely:

(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.

67. As with any matter contrary to s 52A of the Crimes Act there is a real issue of general deterrence to be addressed. This goes back to at least the decision in R v Musumeci unrep NSWCCA 30 October 1997.

68. In all of the circumstances if separate sentences were imposed, the appropriate sentence in respect of each of the matters contrary to s 52A(3)(c) of the Crimes Act is 24 months 3 weeks indicating a starting point of 2 years 9 months. There must be some partial but relatively modest accumulation to recognise the two victims, both of whom suffered quite serious injuries.

69. I will now deal with the offences attaching to the s 166 Certificate. The speeding offence relates to the offence initially detected by the Highway Patrol officer. It carries a fine only. If a sentence of full time custody is imposed it would be appropriate to deal with the matter by way of s 10A of the Crimes (Sentencing Procedure) Act. If the matter is dealt with by Intensive Correction Order, a fine of $300 would be appropriate. I would apply the same to the second matter of Not Give Particulars to Person Injured, noting it also carries a maximum penalty of a fine.

70. However, the more serious matter related to the offender fleeing the scene of the impact. I accept that he did so out of panic but as I earlier observed he made no effort to return. Mr Sinclair put that the offender had “constructive” knowledge that the persons in the other vehicle were injured as neither the offender nor his passenger were injured. It was a significant impact. I accept that the offender had no actual knowledge of the injuries, but equally he did not stay to find out. A plea of guilty was entered to the offence. The appropriate sentence is 4 months 2 weeks which indicates a starting point of 6 months. There would also need to be some modest partial accumulation in respect of this matter.

71. I have determined that the appropriate aggregate sentence is 3 years imprisonment. Accordingly, that is a sentence that is able to be served by way of an Intensive Correction Order.

72. Section 66 of the Crimes (Sentencing Procedure) Act relevantly provides:

(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.

(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.

(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.

73. As I often observe when dealing with submissions that offenders be permitted to serve their sentence by way of ICO there has been a great deal of litigation concerning this legislation. I note that the Honourable Mark Speakman SC, the then Attorney General, in the Second Reading Speech introducing the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (the 2018 sentence reforms) said:

“These orders [a reference to Intensive Correction Orders] will be available for offenders sentenced to up to two years imprisonment, except for the following offences: murder, manslaughter, sexual assault, child sexual offences, offences involving the discharge of a firearm, terrorism offences and breaches of serious crime prevention orders and public safety orders. In addition, a court must not impose an intensive correction order for a domestic violence offence unless satisfied that it will adequately protect the victim or any likely co-resident of the offender.

Proposed section 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why proposed section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.

Proposed section 73 of the Crimes (Sentencing Procedure) Act sets out the standard conditions of the intensive correction order—namely, not to commit an offence and to submit to supervision. All offenders will be required to submit to supervision. Community corrections uses a risk framework that assigns different levels of intensiveness to each offender's supervision. Offenders who are at high risk of reoffending and have complex issues are supervised intensively. Supervision for lower risk offenders is less intensive and may be suspended in appropriate circumstances. The discretion to suspend supervision will be subject to requirements specified in the regulations to ensure that the power is properly exercised and does not go unfettered. Proposed section 73A provides for the additional conditions of the intensive correction order, which will enable courts to tailor the order to hold offenders accountable and to tackle their offending behaviour.

Courts will be required to impose at least one of the conditions in proposed subsection (2) in addition to the standard conditions in s 73, but can set a time limit on how long the order is in force.:

74. Although the Sentence Assessment Report received on 12 November 2025 indicates that the offender is suitable for community service, it does not indicate what if any level of supervision would be administered.

75. The plurality (Gordon, Edelman, Steward and Gleeson JJ) in Stanley v DPP (NSW) [2023] HCA 3; (2023) 278 CLR 1 said at [72]-[77]:

“[72] There was no dispute before this Court that s 66 imposes specific mandatory considerations upon the decision maker to make, or refuse to make, an ICO. Section 66(1) requires the court to treat community safety as the "paramount consideration". In the context of s 66(2), community safety principally concerns the possible harms to the community that might occur in the future from the risk of reoffending by the offender. The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may adversely affect community safety.

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

[74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2) gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community.

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

[76] That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending.

[77] While aspects of community safety underpin some of the general purposes of sentencing, such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment.” (Citations omitted.)

76. Since the decision in Stanley v DPP there have been a number of decisions of the Court of Criminal Appeal on the subject. Gleeson JA (Hamill J agreeing with brief additional comments, Ireace J agreeing) in Zheng v R [2023] NSWCCA 64 at [281]-[286] said (footnotes omitted):

“[281] Five points emerge from the joint judgment in Stanley.

[282] First, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender’s risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety.

[283] Second, s 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety.

[284] Third, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending.

[285] Fourth, the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender’s risk of reoffending.

[286] Fifth, while community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it will usually have a decisive effect unless the evidence is inconclusive.”

77. In Tonga, Samuel v R [2023] NSWCCA 120 Basten AJA (Walton & Hamill JJ agreeing, both with additional comments) said at [49]:

“Accepting that the judge did indeed give weight to general deterrence in declining to impose an ICO, the applicant’s submission seeks to draw a bright line between community safety and other purposes of criminal sentencing. Of the seven purposes identified in s 3A of the Sentencing Act, there may be tensions between some, or between some in some circumstances, but often they will militate in favour of the same outcome. While it is true that s 66(2) addresses that element of community safety which concerns the individual offender’s risk of reoffending (in a particular way), as Stanley recognised, that is not to exclude other aspects of sentencing which may affect community safety, nor purposes such as general deterrence which do not focus upon the individual but may tend to protect community safety. It was not an error to take general deterrence into account: s 66(3) permitted that course. The decision as to whether or not to impose an ICO is not to be determined solely by reference to an assessment of the course more likely to address the offender’s risk of reoffending; and when that course cannot be identified, other mandatory considerations will become significant and possibly decisive.”

78. Given the nature of the offending presently under consideration there is a very real issue of public safety. It must be accepted that an offender’s risk of reoffending may be different depending upon how a sentence of imprisonment is served and that the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of re-offending.

79. However, as I have observed in a number of matters when dealing with whether a sentence of imprisonment should be served by Intensive Correction Order that while the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender’s risk of re-offending that consideration must be informed at least to some extent by what has occurred in the past. Given the nature of this offending, the number of matters on his driving history of Drive with Illicit Drug in Blood or Oral Sample and his history generally the decision required by s 66(2) is determined adversely to the offender. If I am incorrect in that finding, it seems to me the finding could be no better than neutral.

80. In those circumstances the factors contained within s 66(3) of the Sentencing Act have to be considered, in particular those factors within s 3A of the Sentencing Act and the common law that has developed as to the need for general deterrence in matters of this type.

81. Accordingly, I determine that the sentence should be served by a period of full time custody rather than by Intensive Correction Order. The offender has spent 104 days (essentially 15 weeks) in custody, which will require the sentence to be backdated.

Orders

82. In respect of the matters to which he has pleaded guilty the offender is convicted.

83. In respect of the matters of Exceed Speed and Fail to Give Particulars the offender is convicted and pursuant to s 10A of the Crimes (Sentencing Procedure) Act no further penalty is imposed.

84. In respect of the two charges contrary to s 52A(3)(c) of the Crimes Act on the Indictment and the matter of Fail to Stop and Assist After Impact Causing Injury contrary to s 146(1) of the Road Transport Act, 2013 the offender is sentenced to an aggregate sentence of 3 years with a non-parole period of 1 year and 9 months.

85. The non-parole period will date from 14 August 2025 and will expire on 13 May 2027. The balance of term on parole if 1 year 3 months will commence on 14 May 2027 and expire on 13 August 2028.

86. The offender is to be released to parole at the expiration of the non-parole period. I recommend that any release to parole be conditioned that the offender be supervised by the Department of Community Corrections.

87. The sentence indicates a finding of special circumstances, given that the ration between the non-parole period and the total sentence is approximately 60%. The reasons for that finding are set out earlier in these reasons.

88. The offender is disqualified from driving for the statutory period. It is the court’s intention that all periods of disqualification be served concurrently. Any period of suspension should be taken into account pursuant to s 206B of the Road Transport Act, 2013.

89. I direct a copy of the report of Ms Kris North, Psychologist be forwarded to the Department of Corrective Services with the relevant warrant.

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