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District Court 18 July 2025

R v Cole

[2025] NSWDC 270

Traffic & driving
CRIME SENTENCING VICTIM IMPACT STATEMENTS CURIAL PUNISHMENT

Citation: R v Cole [2025] NSWDC 270
Court: District Court of New South Wales
Date: 18 July 2025
Judge: Abadee DCJ

Background

The offender pleaded guilty to driving at a dangerous speed occasioning death, contrary to s 52A(1)(b) of the Crimes Act 1900 (NSW), following a collision on a gravel road near Bevendale on 16 October 2023. The offender was travelling at approximately 119.5 km/h in his Isuzu D-Max when he crested a blind rise, crossed to the wrong side of the road, and struck an oncoming vehicle driven by the deceased, Lynn Keyworth. The impact was fatal to her instantly.

Blood taken from the offender approximately two hours and fifty minutes after the collision detected a very low level of methylamphetamine. The Crown did not contend that this level impaired his driving, and the related drug driving offence was dealt with separately on a s 166 certificate.

The sentencing process was delayed by a prolonged factual dispute between the parties and by significant delays in obtaining a psychiatric report on the offender's mental health. The parties ultimately agreed on the facts in April and May 2025.

  • Whether harm suffered by the deceased's family members could properly be treated as an aspect of harm to the community for sentencing purposes
  • What weight, if any, should be given to the offender's asserted history of childhood sexual abuse as a mitigating factor
  • Whether traits of PTSD arising after the offending, rather than pre-existing, carried mitigating significance
  • Whether serious physical injuries the offender suffered in the collision constituted extra-curial punishment warranting a reduction in sentence
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio

Decision

Harm to the deceased's family. Abadee DCJ addressed the appropriate use of victim impact statements in sentencing. The court considered the grief and suffering of the deceased's family and treated the impact on them as an aspect of harm to the community, consistent with the approach taken under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The judge was careful not to overstate the legal weight of this factor while acknowledging its real significance.

Childhood sexual abuse. The offender relied on a history of childhood sexual abuse as a mitigating factor. The court acknowledged this background and its potential nexus to subsequent difficulties in the offender's life. However, the judgment treated its mitigating weight cautiously, given the need to maintain proportionality and the nature of the offending.

PTSD traits arising after the offending. The court received psychiatric evidence from Dr Sidhu. Abadee DCJ accepted that the offender had experienced an exacerbation of pre-existing depression and the onset of PTSD traits following the collision. The court considered these features as relevant to the offender's mental health needs going forward, but approached their mitigating weight carefully, noting that they arose after rather than before the offending.

Extra-curial punishment. The offender suffered serious physical injuries in the collision. The court accepted that those injuries constituted extra-curial punishment (that is, punishment imposed outside the formal criminal justice system by the consequences of the offence itself) and factored this into the overall sentence. The court also took into account that the offender displayed at least some level of insight and remorse. A finding of special circumstances was made, resulting in a modest reduction in the statutory non-parole period ratio, principally on account of the offender's physical injuries, mental health concerns, and the treatment he would require outside a custodial setting.

Orders Made

  • Convicted of driving at a dangerous speed occasioning death, sentenced to imprisonment for 3 years and 4 months commencing 18 January 2025 and expiring 17 May 2028
  • Non-parole period of 2 years and 4 months, expiring 17 May 2027
  • Convicted of driving with an illicit drug present in blood (s 166 certificate offence): conviction recorded, no further penalty imposed
  • Automatic licence disqualification period to apply, commencing 18 July 2025
  • Sequence 4 offence (negligent driving occasioning death) withdrawn
  • Dr Sidhu's report of 4 July 2025 directed to be brought to the attention of the authority responsible for the offender's custodial supervision

Key Takeaways

  • The District Court confirmed that harm suffered by a deceased's family members can properly be treated as an aspect of harm to the community when sentencing for dangerous driving occasioning death, consistent with s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • A history of childhood sexual abuse may carry some mitigating weight in sentencing, but its significance is subject to proportionality considerations and the court's assessment of the nexus between that history and the offending conduct.
  • Where PTSD traits or symptoms emerge after the offending rather than pre-dating it, courts will treat this as a factor relevant to rehabilitation and ongoing treatment needs, but its weight as a mitigating factor is more limited than where a pre-existing condition directly bears on the commission of the offence.
  • Serious physical injuries suffered by an offender in the very collision that caused the death can constitute extra-curial punishment, capable of reducing the sentence that would otherwise be imposed.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of special circumstances permits a court to reduce the proportion of a sentence served before parole eligibility; here the District Court made such a finding, but characterised the resulting adjustment as modest given the offender's prior poor compliance with court indulgences.

Legislation and Cases Referenced

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

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