AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 5 May 2025

R v Dale

[2025] NSWDC 222

Traffic & driving
SENTENCING DRIVE MANNER DANGEROUS CAUSING DEATH APPLICATION OF WHYTE GUIDELINE

Citation: R v Dale [2025] NSWDC 222
Court: District Court of New South Wales
Date: 5 May 2025
Judge: Anderson SC DCJ

Background

The offender, Jake Dale, was sentenced for two offences arising from a single incident on the Lue Road at Mount Knowles on 16 October 2023. He and two workmates, Kane Fisher and Rhys Dale (the offender's younger brother), were driving from Mudgee to Charbon after finishing work. The offender was following the other two in a separate vehicle.

While attempting to overtake the vehicle ahead at between 105 and 110 kilometres per hour, the offender lost control when his rear tyre contacted uneven road edging and gravel on the far side of the road. His vehicle re-entered the adjacent lane and collided with the car carrying Kane and Rhys. That vehicle subsequently rolled multiple times before coming to rest in a creek bed.

Kane Fisher, aged 19, died from multiple traumatic injuries. Rhys Dale, then 25, survived but suffered catastrophic injuries including bilateral above-knee amputations and extensive internal trauma requiring numerous surgeries. The offender rendered immediate assistance at the scene. He pleaded guilty to both charges at Mudgee Local Court on 17 December 2024.

  • Whether the circumstances of the dangerous driving offences warranted full-time custody under the principles in R v Whyte and R v Jurisic.
  • What discount applied to the sentence by reason of the timing of the guilty plea.
  • Whether an Intensive Correction Order (ICO) was available and appropriate given that the offender was already in custody on unrelated matters for which bail had been refused.

Decision

The offender faced two charges under the Crimes Act 1900 (NSW): dangerous driving occasioning death under s 52A(1)(c), which carries a maximum of ten years, and dangerous driving occasioning grievous bodily harm under s 52A(3)(c), which carries a maximum of seven years. Neither offence carries a standard non-parole period. The court applied the sentencing guideline from R v Whyte, which generally requires full-time custody for dangerous driving offences causing death or serious injury, and considered R v Jurisic on the general sentencing framework for these matters.

The offender entered his guilty plea at the first practicable opportunity after committal, which entitled him to a 25 per cent discount on the sentences that would otherwise have been imposed. The indicative pre-discount sentence for Sequence 1 (death) was three years and eight months, reduced to two years and nine months. The indicative pre-discount sentence for Sequence 2 (grievous bodily harm) was two years and eight months, reduced to two years.

A key procedural question was whether an ICO could be imposed when the offender was already in custody on unrelated, bail-refused matters. The court determined that an ICO remained available on the facts of this case, treating the sentence as commencing from the date of the sentencing hearing. The court referenced R v Mulholland [2023] NSWLC 10 in the course of its analysis, though the full reasoning on this point was not reproduced in the available text.

Taking all sentencing considerations into account, the court imposed an aggregate sentence of three years to be served by way of an ICO, rather than full-time custody.

Orders Made

  • The offender was convicted of both offences.
  • An aggregate sentence of three years' imprisonment was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), to be served by way of an Intensive Correction Order under s 7(1) of that Act.
  • The sentence commenced 5 May 2025 and expires 4 May 2028.
  • The offender must contact Community Corrections within three days of the order.
  • Conditions attached to the ICO include: no further offending; supervision by Community Corrections; completion of any recommended rehabilitation courses; 250 hours of community service work; abstinence from prohibited or restricted drugs and substances (other than lawfully prescribed medication).
  • The court warned that non-compliance could result in revocation of the ICO and the balance of the sentence being served by way of full-time custody.
  • Automatic licence disqualification periods for both offences apply.

Key Takeaways

  • The District Court confirmed that the R v Whyte guideline, which ordinarily requires full-time custody for dangerous driving causing death or serious injury, remains the framework for sentencing these offences, but does not automatically preclude an ICO in every case.
  • A 25 per cent discount on sentence was applied where the offender entered a guilty plea at the first practicable opportunity following committal to the District Court.
  • An ICO was held to be available even where the offender was already in custody on separate, bail-refused matters at the time of sentencing, though practitioners should note the limited text available from this portion of the judgment.
  • The overtaking manoeuvre was conducted at 105 to 110 km/h in conditions where overtaking was otherwise legally permitted, yet the court treated the manner of driving as sufficiently dangerous to constitute the offence, given the road edge conditions and resulting loss of control.
  • Sentencing courts retain a broad discretion to weigh competing considerations, including the offender's immediate assistance to victims, personal circumstances, and the gravity of the consequences, when determining the appropriate form of custodial sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(1), 53A

Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343
- R v Mulholland [2023] NSWLC 10
- Mustafa v R [2021] NSWCCA 164