The King v Danby [2026] NTCCA 2

Appellant: Office of the Director of Public Prosecutions

The King v Danby [2026] NTCCA 2

[1] This is a Crown appeal against sentence for the offence colloquially known as 'hit and run'. The Crown's central contention is that the sentence imposed for the offence was required to include a component of actual imprisonment in a correctional facility, rather than being served on an intensive community correction order subject to a home detention condition. I have had the benefit of reading the reasons for decision prepared by Blokland and Huntingford JJ, and I concur with the orders they propose. I wish only to add several additional remarks.

[2] First, the sentence imposed was a matter of public controversy. That was largely because the two victims of this offence were Aboriginal men, one of whom tragically died because of the collision, and the respondent sent a series of text messages which incorporated racist content to friends or associates in the aftermath of the incident. However, much of the public reporting and other commentary following sentence proceeded on the misapprehensions that the respondent either intentionally struck the victims with his vehicle, or that he otherwise bore criminal liability for the death of the deceased, and that his conduct in doing so was racially motivated.

[3] The respondent was charged under s 174FA of the Criminal Code 1983 (NT) with being the driver of a vehicle involved in an incident that resulted in the death of a person, who failed to stop the vehicle at the scene of the incident and failed to notify police of the incident as soon as reasonably practicable. That offence does not involve criminal liability for causing the death of the person. Criminal liability of that nature is covered by s 174F of the Criminal Code, which creates the offence of driving a motor vehicle dangerously thereby causing the death of any person. The respondent was not charged with causing the death of the deceased, no doubt because a determination was made by police and prosecuting authorities that the evidence did not sustain such a finding. Any public reporting or other commentary which ignores or misrepresents that distinction is wrong and misleading.

[4] Second, although those two offences carry the same maximum penalty of imprisonment for 10 years, there can be no doubt, as the appellant concedes, that the offence of causing the death of a person by driving a motor vehicle dangerously is a more objectively serious offence which carries a higher degree of moral culpability. That is because of the sanctity which the community rightly attaches to human life. The taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of great seriousness, and the real substance of the offence is not just the dangerous driving but the dangerous driving in association with the taking of human life.[1] In such cases, a sentence to actual imprisonment in a correctional facility will usually be required, except in cases where the cause of the death is momentary inattention rather than callous disregard on the part of the offender and the offender's level of moral culpability is very low in relative terms.[2] That same principle does not have necessary application to the offence of 'hit and run'.

[5] Third, the text messages containing racist content sent by the respondent in the aftermath of the incident have only a very specific part to play in the sentencing exercise. The sentencing Judge expressly acknowledged the vile and abhorrent nature of the respondent's communications, but he did not stand to be sentenced on the basis that the collision with the victims was racially motivated. As already described, the respondent was not charged with dangerous driving causing death. Again, that is no doubt because an assessment was made by police and prosecuting authorities that on the available evidence the collision with the victims was unavoidable. It follows that there was no opportunity for the formation of a racist motive for the collision. That being so, the only significance of the respondent's subsequent expression of racist sentiments for sentencing purposes was that it aggravated the level of callousness involved in his rejection of the moral obligation to render assistance and went generally to his character and prospects of rehabilitation. The appellant also concedes that to be so.

[6] Fourth, by legislation which commenced on 22 March 2024, the Northern Territory Legislative Assembly amended the Sentencing Act 1995 (NT) to provide for a regime of intensive community correction orders. Section 44 of the Sentencing Act now provides that 'an intensive community correction order may be made to provide for an offender to serve a term of imprisonment in the community'. That legislative statement means that serving a term of imprisonment is no longer restricted to actual imprisonment in a correctional facility. An intensive community correction order stands distinct from an order suspending sentence, which involves the suspension rather than the service of a term of imprisonment. Similarly, the imposition of a condition for home detention under an intensive community correction order does not involve a suspension of imprisonment.

[7] Those distinctions were also drawn in the explanatory materials for the amending legislation, which expressly characterised suspended sentences and the old form of home detention as partial imprisonment, whereas an intensive community correction order was expressly characterised as full-time imprisonment. That legislative statement notwithstanding, there is no doubt a qualitative difference between imprisonment under an intensive community correction order with a home detention condition, on the one hand, and imprisonment in a correctional facility, on the other hand. The former is less onerous and punitive than the latter, and therefore more lenient. The overarching requirement is that any alternative to actual imprisonment in a correctional facility must be proportionate to the criminality of the conduct involved and must still achieve the objectives of punishment and general deterrence.[3] In that legislative context, there are three steps to be taken by the sentencing court.[4]

[8] The first determination to be made in sentencing is whether no penalty other than imprisonment is warranted. In the present case that question must be answered in the affirmative, as it was by the sentencing Judge in fixing a term of imprisonment.

[9] The second determination is the appropriate term of that sentence of imprisonment without regard to how it is to be served. That is of particular significance in this case because an intensive community correction order is unavailable in circumstances where the duration of the head sentence required is greater than two years' imprisonment. When an appropriate reduction is made for the respondent's plea of guilty, an intensive community correction order is not precluded in this case by operation of the maximum two-year duration fixed by the legislation. That term of imprisonment is within range.

[10] The third determination involves a consideration of whether to make an intensive community correction order in the circumstances. There are certain categories of offence for which the making of an intensive community correction order would be inappropriate. Without purporting to be exhaustive in that respect, certain offences of violence, certain sexual offences and certain offences involving a firearm or other offensive weapon are not properly amenable to that form of disposition. There are also cases in which an offender's subjective circumstances, and particularly his or her criminal history, will make that form of disposition inappropriate. In the present case, neither the objective seriousness of the offending nor the respondent's subjective circumstances preclude the making of an intensive community correction order subject to a home detention condition.

[11] This is a Crown appeal against sentence which was passed on 15 September 2025 in the Supreme Court. The single ground of appeal filed on 19 September 2025 is that the sentence imposed on the respondent was manifestly inadequate.

[12] The Crown may bring an appeal against sentence as of right. Leave is not required.[5] The purpose of Crown appeals is to enable the courts to establish and maintain adequate standards of punishment for crime and to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[6]

[13] Where a sentence is imposed which is so inadequate as to indicate error or departure from principle, or which departs from accepted sentencing standards, the Crown is entitled to have the sentence corrected by an appellate court.[7]

[14] For such an appeal to be successful, error must be shown in accordance with the principles relevant to discretionary judgments established in House v The King.[8] It is not enough that an appeal court considers it would have taken a different course. If upon the facts established the sentence is unreasonable or plainly wrong or unjust, the appellate court may infer that in some way there has been a failure to properly exercise the sentencing discretion at first instance.

[15] The respondent pleaded guilty to one count against s 174FA(1) of the Criminal Code. The offence is commonly known as 'hit and run'. The particulars are that on 13 June 2024 he drove a vehicle involved in an incident that resulted in the death of EW ('the deceased') and failed to stop his vehicle at the scene, failed to give any assistance to the deceased and failed to notify a member of the police force of the incident as soon as was reasonably practicable.

[16] In brief, the circumstances of the offending were as follows. At shortly after 4:00 pm the respondent drove inbound along Vanderlin Drive towards the Casuarina Shopping Centre. The weather was clear and the traffic was moderate. At about 450 metres from the traffic lights at the Hibiscus Shopping Centre, the speed limit changes from 80 to 60 kilometres per hour. The respondent did not reduce his speed as he approached the traffic lights. About 40 metres from the traffic lights, the deceased and another male person were crossing Vanderlin Drive together. They were walking side by side. They stopped on the median strip to wait for an inbound car to pass. They began to cross the inbound lanes and hesitated while crossing. The deceased saw the respondent and tried to run the rest of the way across the road. He ran into the respondent's path in the outside lane, while the respondent was travelling at about 79 kilometres per hour. The respondent did not slow down or deviate course and collided with the deceased. The deceased was thrown onto the other male person, knocking him to the ground and causing him to lose consciousness briefly. The deceased landed about seven metres from where he had been struck. The respondent did not slow down or stop near the scene. He did not apply his brakes before or after the collision. He did not render assistance or contact police as soon as reasonably practicable.

[17] Bystanders who witnessed the collision called an ambulance. The deceased was unresponsive, and was taken to hospital and intubated. Surgery was performed and he was admitted to intensive care. He suffered a severe traumatic brain injury, comminuted fractures to his pelvis and hip, and extensive rib and nasal bone fractures. On 16 June 2024, his family decided to withdraw life-support and he passed away at 9:27 that evening. The other male person involved in the collision was treated for a head injury and shoulder pain. He was distressed and required precautionary x-rays and a C-spine collar. He left the hospital prior to formal discharge.

[18] Police obtained sufficient evidence from bystanders and from the scene to suspect the respondent's car was involved in the incident.

[19] Through a text message sent to his father at 5:53 pm on the evening of the incident the respondent demonstrated he knew he had struck the deceased at speed and knew police may be looking for him. The text reads:

Driving home from work and two black fellas jump out onto the road, tried to slow down but I still hit them at 80kms I just kept driving and my rego is still at your address so if cops swing past looking for me just give them my number. [Thumbs up emoji]

[20] After receiving the text message the respondent's father tried to call him but the respondent did not answer. Through later police contact with the respondent's stepmother, the text message from the respondent to his father was disclosed to police.

[21] Later the same evening, the respondent sent the following text messages to unspecified persons:

At 6:59pm: Two for one combo, they learned their lesson now maybe next time they will use the crossing instead of walking out in front of cars expecting me to stop like they own the place nah Cunt, I am on a comedown from work I ain't stopping for no one.

At 7:00pm: I couldn't stop... I'd rather get done for hit n run then stay and get tested.

At 7:01pm: It was an easy choice Buddha, I need me license.

At 7:02pm: nah they were rolling all over the road like bitches when I looked in my rear view mirrors.

At 7:10pm: the world needs cunts like me to take a hit to teach these cunts a life long lesson.

At 7:12pm: I hit the cunts at like 80kms, one of the blokes elbow went through my windscreen so I recon one of them has gotten at least a fucked elbow... I tried to slow down so maybe hit them at like 60-70.

At 7:15pm: Maybe if I'm lucky, I'll be able to claim his Centrelink for taking out another oxygen thief.

[22] When the respondent learned police had gone to his father's house looking for him, he sent the following text messages to unspecified persons:

At 7:19pm: Cops looking for me... They rocked up at my old man's.

At 7:21pm: They wanna drug test me and I smashed a P after work.

At 7:27pm: My life fucked again all cause some niggas can't use a crossing at the lights THAT WAS LITERALLY 10 METRES from where I hit the dogs.

At 7:42pm: 2 niggas jumped out onto the road and I hit 'em.

At 7:43pm: tried to slow down but the dumb cunts were jaywalking.

At 8:04pm: Some cunt tried to rob me so I ran over him and his mates, now they are calling it a hit and run.

At 8:22pm: they funny cunts tho, tried buying gear off me with a stolen gold watch and when I told them to get fucked and that I wanted coin. They pull out a machete and block the road acting like they superman and my car won't go straight through them.

At 8:24pm: it was pretty funny watching job then roll around on the road after going over my bonnet and through my windscreen... them mob**... play stupid games win stupid prices... tried robbing me then called the cops when they had to go to hospital... dumb junkies man.

At 9:13pm: I do have to hand myself in but I ain't getting jail time, I'm a Danby, we don't go to jail. It's amazing how much lawyers fight for you like it's life and death when you know you can pay whatever fee they pull out their ass...I'm not even a fugitive because I haven't ran from court. They just after me for a statement, inspect the vehicle and to breath test me because these Cunts reported me as a hit n run so it's just standard procedure.

[23] At 8:30 pm on that same evening, the respondent used his mobile phone to take a screenshot of an NT News Facebook post with the headline, "Two pedestrians struck near Darwin shopping centre".

[24] On the following day, police continued their efforts to locate the respondent. At 12:34 pm that day, the respondent called police, disclosed his location, and said that he wanted to hand himself in. Police attended the nominated location and arrested him. His car was also located at the scene. The respondent declined to participate in an interview with police. He was granted bail that day. He was not required to submit to a breath test, and nor was he tested for illicit substances, as the four-hour statutory period within which police may require a driver to undergo such tests had well expired.

[25] Aside from the agreed facts, the sentencing material before the Supreme Court included two CCTV videos of the offending, photographs of the respondent's damaged vehicle, character references tendered on behalf of the respondent, a pre-sentence report, a summary of the respondent's subjective circumstances and written and oral submissions made by both parties.

[26] After considering all the material before the Court and reviewing comparative sentencing cases referred to in Mason v The King[9] the sentencing Judge convicted the respondent and sentenced him to imprisonment for 12 months. Pursuant to s 45 of the Sentencing Act the Judge ordered the term of imprisonment be served by way of an intensive community correction order ('ICCO') which included a period of home detention. The Court ordered the ICCO be subject to the following conditions:

1. Not to commit another offence punishable on conviction by imprisonment.
2. Must be of good behaviour.
3. Be under the ongoing supervision of a probation and parole officer, and must obey all reasonable directions from a probation and parole officer.
4. Must immediately return to [ADDRESS REDACTED], unless directed otherwise, and, for the period of five months from the date of sentence, must not leave that address without the permission of a probation and parole officer.
5. For (a) the period of home detention; and (b) any further period as directed by a probation and parole officer, must have attached an approved monitoring device and must comply with any directions given in relation to it.
6. After the period of home detention, if directed by a probation and parole officer, submit to a curfew.
7. Will not purchase or consume alcohol, and will submit to testing as directed by a probation parole officer or a police officer.
8. Will not possess or consume a dangerous drug, and will submit to testing as directed by a probation and parole officer or a police officer.
9. Will participate in assessment, counselling and/or treatment as directed by a probation and parole officer.
10. Will not frequent or visit any place or district, as directed by a probation and parole officer.

[27] It is clear the sentencing Judge had regard to the seriousness of the offence, noting the maximum penalty under the Criminal Code was imprisonment for 10 years; that significant injury was caused which led to the death of the deceased; that there was injury caused to the other person who was struck by the vehicle; and that the respondent did not stop the car, did not render assistance to the victims, and did not report the incident to police.[10] The sentencing Judge found the respondent's text messages demonstrated he knew he had struck a person, as he acknowledged in those messages that the collision caused the deceased to fly up in the air and hit his windscreen.[11]

[28] The sentencing Judge also found the text messages demonstrated a degree of callousness and disdain which was "difficult to fathom" given the respondent was referring to two people he had obviously harmed, most likely seriously. Further, the sentencing Judge found the respondent was aware of the possibility of death. The respondent's failure to stop was to be considered in light of his state of mind.[12]

[29] The Supreme Court considered the offending to be around the mid-range of seriousness for offences of this kind. The sentencing remarks acknowledged the need for deterrence, even in cases where the driver was not at fault. The Judge stated that it is:

... not uncommon for people to cross the road at random places, exposing themselves to the danger of being struck by cars. Drivers need to know that they are required to stop after an incident involving harm to another person, even if it is not their fault. Drivers must not be led by sentences imposed for this offence to think that it is better to keep driving than stop and face the consequences of the intoxication.[13]

[30] Clearly the respondent's subjective circumstances, including his relatively young age of 23 at the time of offending, lack of any criminal history, sound employment history, positive response to bail conditions for over one year and the receipt of a largely positive report from correctional services as to his suitability for an ICCO incorporating strict conditions were influential in the decision to order the term of imprisonment be served in the community rather than in a custodial institution.

[31] The respondent's relatively positive subjective case was of some significance against a background of difficult family circumstances in his early life which are summarised in the sentencing remarks.[14]

[32] The early plea was acknowledged as was the fact it was entered in the face of a strong Crown case. Despite the "shockingly callous" disregard for the welfare of the victims evident in the text messages, the sentencing Judge was prepared to accept, through what was conveyed in the pre-sentence report and submissions, that the respondent had reflected on his conduct considerably and was remorseful for his offending. The sentence was reduced by 25 per cent on account of the early plea and related factors.

[33] In this Court, the appellant maintained the position the Crown had put before the Supreme Court that only a sentence of imprisonment to be actually served would be sufficient to punish and denounce the respondent's conduct and properly serve the principles of general and specific deterrence. Specifically, as was submitted in the Supreme Court, the appellant submitted that an ICCO was not appropriate in these circumstances and in any event the head sentence which would be required to properly reflect the gravity of the offending would exceed two years and therefore an ICCO would unreasonably and unnecessarily constrain the sentencing disposition.[15] On the appellant's case, this Court should intervene to ensure that public confidence in the due administration of justice is maintained as the sentence was manifestly inadequate, even if on its face it was justified by reference to a range of sentences previously imposed in other somewhat similar cases.

[34] The appellant submitted that rather than the offending falling in the mid-range of objective seriousness as was held in the Supreme Court, the offending fell within the upper range of offending of this kind.

[35] While there are features of the offending which increase the gravity of the offending beyond some of the comparative cases put before both the Supreme Court and this Court, this case possesses features which are similar to many 'hit and run' cases for which a range of sentences have been imposed. Not all sentences imposed for relatively serious examples of 'hit and run' cases result in sentences of actual imprisonment.[16] From the range of sentences available, it is clear that sentences for offences against s 174FA of the Criminal Code inevitably attract substantial terms of imprisonment. Whether the sentence of imprisonment will be served in a custodial institution or by way of an alternative disposition rests in part on elements of the subjective features, such as previous offending, particularly the commission of previous driving offences, which may inform both the length of the sentence and the appropriateness or otherwise of any community-based orders. The offender must also fulfil any legislative requirements for suitability under the Sentencing Act.

[36] While there are relevant comparable cases for offending of this kind which resulted in sentences in the order of 12 months' imprisonment, our assessment is that the offending here is objectively more serious and should have attracted a term of more than 12 months' imprisonment. Even if it is accepted that the offending here is properly regarded as 'mid-range' in the scale of offending of this kind, we have concluded the sentence of 12 months' imprisonment is manifestly inadequate.

[37] When assessing the gravity of the offending under s 174FA of the Criminal Code, it is important to emphasize that the offence is complete when the offender has left the scene of the accident without giving assistance or failing to notify police. Post-offending conduct may have some bearing on the assessment of the offending but will rarely be determinative of the outcome as the offence is committed upon leaving the scene without fulfilling the obligation to give assistance and notify police. That is not to say that post-offending conduct will be entirely irrelevant to the assessment of the gravity of the offending. An offender who leaves the scene but calls an ambulance or notifies police at a time shortly after the incident may well have a case for mitigation. This may be contrasted with those offenders who take steps to cover up a traffic incident where a person has been killed or seriously injured. Such an offender may be dealt with for additional offences[17] or in some circumstances such conduct may elevate the gravity of the offending. Nevertheless, it must be recognised that the offence is complete upon the offender leaving the scene without assisting an injured person or notifying police.

[38] In this matter, plainly the text messages reveal, as submitted by the appellant, a reprehensible, callous and racist disregard for the human life and dignity of two Aboriginal persons. While the reprehensible attitude revealed in the text messages may have potentially contributed to the extended time the respondent took to contact police after he left the scene and once he knew the police were looking for him, the abhorrent parts of the text messages do not allow an inference to be drawn that at the time the respondent left the scene he was motivated by racism. The texts were sent around three hours after the offence was committed. The texts contained a number of incorrect statements, provided a different motivation for leaving the scene and were also referred to in the pre-sentence report as 'act[ing] tough in front of the boys'. That the commission of the offence, which is failing to stop and render assistance, was motivated by racism is not an inference that could be drawn beyond reasonable doubt given the alternative inferences which could be drawn and were largely accepted by the sentencing Judge.

[39] The motivation for the respondent leaving the scene and failing to do what was both legally and morally required, was more likely to have been in order to avoid being tested for drugs and consequently avoid licence disqualification. That inference was clearly open, although the respondent told the author of the pre-sentence report he had not taken drugs for some three weeks before the incident.[18] A further explanation the respondent gave to the author of the pre-sentence report was that he "panicked" and was worried the police would confiscate his car, which contained all of his possessions. He also told the author of the pre-sentence report he was worried about retaliation as a large crowd had gathered. There was no evidence that a large crowd gathered at the scene of the incident.[19] That explanation can readily be rejected.

[40] A further matter relevant to assessing the respondent's motivation from the content of the text messages is that his facility with language and expression is unsophisticated. Some caution is required before attributing an objectively assessed meaning to the texts given what is known of the respondent and his circumstances. Apart from possible bravado and trying to be tough, a number of statements in the texts are not correct. As shocking as the texts are, the texts are not what the respondent was sentenced for.

[41] While we agree with the appellant's characterisation of the abhorrent nature of the text messages, those messages were sent well after the offending was complete and their contribution to the assessment of the gravity of the offending is to be seen in that light. The other stated motivations of the respondent are also relevant, particularly the potential for licence disqualification or vehicle confiscation. Plainly the text messages were relevant for other purposes such as the assessment of any remorse or lack of it and the prospects of rehabilitation.

[42] When assessing the gravity of the offending, the fact that a traffic incident or collision involved no or minimal fault on the part of the driver may in some instances reduce the gravity of the offending, although errant driving would ordinarily be the subject of other charges. In Mason v The King[20] the Court assessed the offending under s 174FA of the Criminal Code as falling "towards the lower end of the range of seriousness of incidents involving the death of a person" where there was positive evidence that the collision was unavoidable. The offender in Mason stopped at the scene, determined that he could not assist the deceased, panicked and contacted his mother who, rather than contacting police, facilitated a cover-up. The offender later moved the body of the deceased on two occasions as part of the cover-up. A sentence of three years' imprisonment for the 'hit and run' count which had been imposed by the Supreme Court was considered to be within range, although the contribution of that sentence to the total effective sentence led to the Court of Criminal Appeal setting aside the sentence and imposing a sentence of 12 months' imprisonment for that count.

[43] It follows that Mason v The King may be regarded as novel, and the gravamen of the overall offending was reflected in the Court of Criminal Appeal fixing a total effective term of three years imprisonment, suspended after the offender had served just over 18 months. Of that total sentence, two years and six months' imprisonment was attributable to the offence of attempting to pervert or defeat the course of justice by moving and concealing the body of the deceased.

[44] The respondent in this matter was speeding, although it was not alleged that made any contribution to the collision. In any event, he was not charged with or dealt with for an offence of driving a motor vehicle causing death under s 174F of the Criminal Code. He was not to be sentenced for causing the death of the deceased. Such a constraint on sentencing operated on the Supreme Court at first instance as it does on the considerations on appeal.

[45] We accept the submissions made on behalf of the appellant as to the purpose of the introduction of the 'hit and run' offence which commenced operation in 2008. The approach to be taken in sentencing is to emphasise deterrence.

[46] In the second reading speech of 10 September 2008, the Attorney-General said:[21]

The purpose of this bill is to amend the Criminal Code in two key areas. First it creates a specific 'hit and run' offence, providing substantial penalties for drivers who leave the scene of an accident in which a person has been killed or seriously injured.

Recent incidents in both the Northern Territory and other states have highlighted the desirability of enacting a specific offence targeting drivers who leave the scene of an accident when someone has been killed or seriously injured and do not render assistance. Failing to stop in these circumstances is cowardly and falls too far short of what a humane society requires of its citizens.

The Bill creates s 174FA of the Criminal Code which makes it an offence for a driver of a vehicle that is involved in an incident causing death or serious harm to another person, to fail to stop and give assistance in circumstances in which he or she knows or is reckless as to whether or not the vehicle has been involved in an incident and knows or is reckless as to whether or not the person has been killed or seriously harmed.

Where the incident results in death, the maximum penalty for failure to stop and render assistance is 10 years imprisonment. Where the incident results in serious harm, the maximum penalty is seven years imprisonment.

The penalties mirror those for dangerous driving causing death and dangerous driving causing serious harm. This is deliberate. It not only reflects that the abandonment of a person who is dead, dying or seriously injured deserves serious punishment, regardless of who is to blame for the accident, but also it importantly removes the incentive for those persons who think they might be charged with dangerous driving causing death or dangerous driving causing serious harm to escape from the scene. Specifically, it provides a strong deterrent against people who may choose to flee an accident scene to avoid a breath test.

[47] In response to a ruling in R v Yusoff,[22] s 174FA of the Criminal Code was amended in 2014 to include a positive requirement for a driver to contact a representative of the Police Force, provide relevant information, and to follow any reasonable direction. In the second reading speech on 17 October 2013 the Attorney-General said:

Without there being a requirement to notify police of the incident in the offence of the hit and run, a driver will not have committed the offence if they are involved in an incident where the person dies. They stop, check and decide that no assistance is reasonably necessary and then drive off and leave the deceased. In this situation, the driver can evade breath testing or identifying themselves as the other driver in the incident. If the incident was on a quiet street in a remote area, then the incident could go undetected by authorities for some time.

This falls short of what is expected by the community. The bill is intended to remedy this shortfall by making it explicit that a driver must notify police of the incident, regardless of whether rendering assistance is futile.

[48] We accept the correctness of the statements of principle with regard to sentencing for offences against s 174FA of the Criminal Code to which the appellant has referred the Court. In R v Brook,[23] Mildren ACJ observed of s 174FA:

The purpose of this offence is to achieve a number of objects. First, it is to ensure that the driver remains at the scene so that when the police arrive he is able to be identified and an assessment made as to his culpability for causing the accident. An assessment may also be made as to whether or not the driver concerned had consumed alcohol or is under the influence of drugs or had otherwise committed some other offence.

The second object of the section is to ensure that the driver does all that is reasonable in the circumstances to give assistance to those who may be injured as a result of the accident. The assistance which can be given will vary according to the circumstances. At the very least, one would expect the driver in these circumstances to be able to contact police and emergency services, to arrange for an ambulance either by making a telephone call or by stopping a passing motorist or bystander and asking that person to make the call on his or her behalf. The second kind of assistance which would normally be expected is to ensure that those injured at the scene are protected from further injury by passing traffic. Whether more than that could be done will depend upon the nature of the injuries to the victims, the circumstances of the offender, the skills which the offender may or may not have in being able to render first aid to the victims as well as the extent to which the offender was himself or herself injured as a result of the accident. At the very least, in normal situations one would expect the driver to be able to give some comfort and aid to the victims even if it is no more than assurance that help is on the way.

[49] Although the offender in Brook had a reasonably strong subjective case, Mildren ACJ went on to conclude that ordinarily, a heavy prison sentence is likely to be imposed:

Nevertheless, I accept that this is a relatively serious offence normally calling for condign punishment. There is a need for general deterrence to ensure that those who might be minded to commit this kind of offence are made aware of their responsibilities, the failure to perform which are likely to result in a heavy prison sentence.

[50] Similarly, in R v Deutscher,[24] Martin (BR) CJ said:

One of the important factors in sentencing you is the question of general deterrence, that is, deterring others who are minded to commit this type of offence by failing to stop at the scene of an accident. The community through Parliament has expressed its strong disapproval of this type of conduct by making it a criminal offence with a significant or large maximum penalty. So the sentence I impose upon you must serve to mark the disapproval of the community and, hopefully, act as deterrent to others who are minded not to stop at the scene of road accidents.

[51] In R v Mu,[25] Southwood J observed:

The main sentencing objectives are to encourage the offender and others to ensure they stop and render assistance and report such matters to the police, denunciation, and punishment. The community strongly disapproves of conduct such as this, and the offender must be punished for his wrongdoing. Panic is not a satisfactory explanation for the offender's conduct.

[52] In R v West,[26] Grant CJ said:

[T]he gravamen of this offence is failing to stop in circumstances where you knew that you had hit another person and killed or gravely injured them. That conduct involves a degree of callousness which the community finds abhorrent and which must be subject to condign and proportionate punishment. The seriousness of the offence is reflected in the fact that it carries a maximum penalty of imprisonment for 10 years.

The offence is often accompanied by the offence of driving a motor vehicle dangerously so as to cause death or serious harm. In those circumstances, the sentence of imprisonment imposed will be far longer. However, even by itself hit and run offending is considered very serious and requires a substantial sentence to imprisonment to serve the purposes of punishment and deterrence. One of the principal sentencing objectives for this offence is to discourage you specifically, and others generally, from leaving the scene and failing to render assistance in circumstances such as these.

[53] In assessing the gravity of the offending we have had regard to the material before the Supreme Court, and in particular to the following matters. The maximum penalty is 10 years' imprisonment. The respondent knew he had struck two people. He knew at least one was injured. He was aware of the possibility of death. He was speeding but he was not criminally responsible for the collision. His motivation was to avoid being tested by police or to avoid an interaction with police which would involve a penalty such as forfeiture or loss of licence. While his motivation to avoid police at the time of committing the offence was not based on racism, his later delay in advising police of his whereabouts involved mixed motivations, including to some degree, the racist sentiments contained in the text messages. While such a feature is aggravating[27] it did not form part of the offending conduct but rather was post-offence conduct of some, but limited relevance to sentencing.

[54] The respondent avoided making contact with police until 12:35 pm the next day. Although the respondent did not flee the Darwin area, this meant he could not be tested for drugs or alcohol at that time. As appreciated by the sentencing Judge, this meant the family of the deceased will never know whether intoxication was a relevant factor in the collision. There was no victim impact statement before the Supreme Court from the deceased's family. However, the lack of information available to the family of a deceased in the circumstances of such a tragic death may be assumed to have a profound impact on them. As a moderating factor, the respondent handed himself into police after making contact with them.

[55] In terms of the subjective features, the respondent was 23 years old at the time of the offending. Although well and truly an adult, he was still young for sentencing purposes and had no previous convictions, including traffic offences.

[56] The respondent experienced difficulties in his early life which the author of the pre-sentence report characterised as childhood trauma.

[57] The respondent was born in Alice Springs and has two siblings. As a young child he lived with both parents, although his father worked away from home frequently, his mother remained at home. His mother was an alcoholic and became mentally and physically abusive towards the children. There were displays of physical aggression in the home when the respondent was young. His parents divorced in 2010 when he was nine years old. His mother moved to Queensland. He and his siblings relocated to Darwin with their father in 2013. The respondent spent some time living with his mother in Queensland, and completed year 10 before returning to Darwin. He travelled only once or twice after that time to visit his mother. His mother had a liver transplant but continued to consume alcohol. Their relationship deteriorated. She passed away from throat cancer in the weeks leading up to the commission of this offence. The respondent has a history of clashing with his father. The material about his early life set out in the pre-sentence report was confirmed by the author of the report with the respondent's stepmother. Before the offending, the respondent resided in a caravan at his father's and stepmother's residence at [ADDRESS REDACTED].

[58] The respondent attended primary school in Alice Springs and most of his secondary education was undertaken at Nightcliff Middle school. He faced challenges with schoolwork but, as described above, completed year 10 in Queensland.

[59] Despite the difficulties in his early life, the respondent has a sound employment history. He has been employed from the age of 16, initially as a labourer working for various construction companies. His more recent employment was confirmed by the author of the pre-sentence report and in references tendered to the Supreme Court.

[60] The respondent reported some use of methamphetamine commencing from the age of 15 and told the author of the pre-sentence report he was a regular user by the age of 22. He informed the author that he stopped using methamphetamine following his mother's death and claimed to be abstinent for three weeks prior to the offending. He had previously sought medical treatment for insomnia. He had a prescription for medicinal cannabis which he used to assist with sleep.[28]

[61] The author of the pre-sentence report assessed him as having a low to moderate criminogenic risk stemming from financial stress, substance use history, childhood trauma, limited support systems and emotional distress following the recent death of his mother.[29] It was suggested he would benefit from ongoing psychosocial support, including trauma-informed therapy to address unresolved trauma, support emotional regulation, and reduce the likelihood of re-offending.

[62] On the basis of the assessment, Correctional Services assessed the respondent as suitable for an ICCO with home detention.

[63] It was reasonable for the sentencing Judge to have regard to the difficult upbringing the respondent experienced, as well as his young age and the more positive features of his character which included his work history and the material in the character references.

[64] While the text messages point firmly to lack of remorse shortly after the offending, the respondent's insight and acceptance of responsibility has to some extent been demonstrated through the cooperation with the Court process including his plea of guilty and its early indication. The pre-sentence report refers to the respondent having 'some insight'. The respondent's description of the facts of offending given to the author of the pre-sentence report differ in some respects from the agreed facts before the Court, but not in material ways.

[65] In our view, the objective features of the offending place the offending in a serious category of offending of this kind. Even given a reasonable subjective case, particularly the respondent's age and lack of previous convictions, sound work record and a somewhat traumatic background, a head sentence of 12 months' imprisonment with five months' home detention does not in our view properly reflect the appropriate penalty.

[67] We have set out what we consider to be the salient features of the case and proceed to vary the sentence on that basis. Additionally, we received by consent a document at the end of the appeal hearing titled 'Jake Danby - Current Situation and Rehabilitation'. Relevantly, that document provides:

1. Has been meeting with corrections once a week since sentence. Has been completely compliant [in all] aspects (e.g. reporting/testing). Has created strong relationships with corrections officers.

a) Has been tested for drugs and alcohol a minimum of 2 times a week every week. > > b) All tests random/no notice. > > c) No positive tests. Completely compliant.

a) At his induction, corrections informed him he could not continue in that role as it involved remote work in the Tennant Creek and Alice Springs area. He was confined to the Darwin area for work purposes. > > b) As such, he subsequently quit that job which is effectively what corrections advised.

3. He was unemployed for an extremely short period and immediately found work as a labourer/trades assistant.

a) Currently working full time for [COMPANY NAME REDACTED]. > > b) Working at a big job at the [LOCATION REDACTED].

1. Has been attending counselling at Strong Steps once a week since sentence. Has made inroads into his rehabilitation.

a) He has instructed that in counselling he has discussed his own feelings about what happened and his offending. > > b) Talked about his childhood and looking at finding deeper insight into what happened. > > c) He states it has helped him open up to himself and to articulate his feelings to others. > > d) This has to show insight and remorse.

[68] Although this is serious offending, there is also a reasonable subjective case, some of which has been summarised above. Although we have found the ground of appeal made out, in our view, once applying an adjustment in the order of 25% to take account of the guilty plea and the genuine remorse found by the sentencing Judge, the appropriate sentence is imprisonment for two years to be served under an ICCO.

[69] While it may be accepted that an ICCO incorporating home detention is a more lenient sentence than serving a sentence in a correctional institution, given the subjective features in this case, particularly youth and lack of prior convictions, and given the five months during which the respondent has been fully compliant, we have concluded that a lengthier period of imprisonment is appropriate, however it should be served as an ICCO which incorporates a longer period of home detention. The respondent is now on a positive path of rehabilitation. Although the imposition of a term of imprisonment in a custodial institution would no doubt be within range, this is a case in which when all factors are considered s 44 of the Sentencing Act is appropriately engaged.

[70] Section 44 of the Sentencing Act describes the purpose of an ICCO:

Subdivision 2 Intensive community correction orders

44 Purpose of intensive community correction orders

An intensive community correction order may be made under this Subdivision to provide for an offender to serve a term of imprisonment in the community and, in doing so:

(a) ensure that a person who commits an offence is held accountable; and

(b) address the personal factors that contribute to the offender's criminal behaviour.

[71] General deterrence is served by such an order by imposing significant restrictions and monitoring on an offender, even accepting that such an order is not as restrictive as an order for imprisonment in a correctional institution.

[72] Before making such an order the Court must have regard to a pre-sentence report pursuant to s 45(2) of the Sentencing Act. We have had regard to the pre-sentence report which was before the Supreme Court.

[73] Although the commencement of an ICCO cannot be backdated and commences on the date of the order, there is already an ICCO in place which was fixed by the sentencing Judge on 15 September 2025. The dispositive powers on appeal allow that sentence to be varied from a term of 12 months to a term of two years from 15 September 2025, and for the home detention condition to be varied from a term of five months to run for the duration of the ICCO.

[74] The conditions of the ICCO will remain as imposed by the sentencing Judge, except for those variations necessary to reflect the fact that the home detention condition will run for the duration of the ICCO rather than for five months. That will also require consequential variations of the electronic monitoring and curfew conditions, both of which contemplated the end of the home detention condition after five months.

[75] Accordingly, we would make the following orders.

1. The appeal is allowed.
2. The intensive community correction order imposed by the Supreme Court on 15 September 2025 is varied from a term of 12 months to a term of two years from 15 September 2025.
3. The home detention condition imposed on the intensive community correction order made by the Supreme Court on 15 September 2025 is varied from a term of five months to run for the duration of the intensive community correction order.
4. Condition 4 of the intensive community correction order is varied to read:

"On his discharge from Court, the offender must immediately return to [ADDRESS REDACTED], unless directed otherwise, and, for the duration of this intensive community correction order, he must not leave that address without the permission of a probation and parole officer."

1. Condition 5 of the intensive community correction order is varied to read:

"For the period of home detention the offender must have attached an approved monitoring device and must comply with any directions given in relation to it."

1. Condition 6 of the intensive community correction order is revoked.

_____________________________

[1] R v Musumeci (unreported, NSWCCA, 30 October 1997, Hunt CJ at CL).

[2] Demur v The Queen [2014] NTCCA 15; DPP v Oates [2007] VSCA 59; (2007) 47 MVR 483 at [22].

[3] Parente v The Queen [2017] NSWCCA 284; (2017) 96 NSWLR 633 at [115].

[4] Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 278 CLR 1 at [59].

[6] R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ.

[7] R v BJW [2000] NSWCCA 60 at [29].

[8] House v The King [1936] HCA 40; 55 CLR 499 at 503-504.

[9] Mason v The King [2024] NTCCA 13.

[16] R v Yusoff, 14 August 2013; R v Christodoulou, 11 November 2014; R v Richards, 5 January 2016; R v Maxwell, 28 July 2022; R v Rodwell, 8 July 2024; R v Spittles, 16 July 2024.

[17] For example, as occurred in Mason v The King [2024] NTCCA 13.

[20] Mason v The King [2024] NTCCA 13 at [70]- [71].

[21] Criminal Code Amendment (Hit and Run and Other Endangerment Offences) Act 2008 (NT).

[22] R v Yusoff (2013) 33 NTLR 113.

[23] R v Brook (unreported, NTSC, 12 January 2010).

[24] R v Deutscher (unreported, NTSC, 30 April 2010).

[25] R v Mu (unreported, NTSC, 5 November 2018).

[26] R v West (unreported, NTSC, 15 December 2020).

[27] Sentencing Act s 6A(i)(e).