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District Court 13 March 2026

R v Bernhard

[2026] NSWDC 47

Traffic & driving
RANGE PCA

Citation: [2026] NSWDC 47
Court: District Court of New South Wales (Criminal)
Date: 13 March 2026
Judge(s): Fitzsimmons SC DCJ

Background

The offender was originally charged with two counts of dangerous driving causing death in respect of two victims, Bobby Kelsall and Stephen Lippis. The offender, the victims, and their wider group were friends and former work colleagues. On the evening of 31 May 2023, following an afternoon of socialising that included drinking at a hotel and at the Lippis residence in the Nowra area, the offender drove his recently purchased Isuzu D-MAX utility back to the Lippis house to collect food he had left behind.

After departing the residence, the offender executed a three-point turn and drove back down Condie Crescent. Both victims were lying supine on the bitumen road — face up, with heads towards the centre and feet towards the gutter — directly in the path of the oncoming vehicle. The offender, travelling at approximately 54 km/h in a 50 km/h zone, failed to see either man and struck them both. Both victims were declared deceased at the scene. The offender's daytime running lights were activated but his low beam headlights were not on, and he had a blood alcohol concentration estimated at approximately 0.082 at the time of the collision.

A jury acquitted the offender of both counts of dangerous driving causing death on day five of the trial. The offender then pleaded guilty to two counts of negligent driving occasioning death (contrary to s 117(1)(a) of the Road Transport Act 2013) and one count of driving with mid-range prescribed concentration of alcohol (contrary to s 110(4)(a) of the same Act).

  • Assessment of objective seriousness where there are multiple distinct elements of negligence: must the Court find a causal connection between each particular element of negligence and the deaths, or is the task broader?
  • The role of causation in sentencing for negligent driving occasioning death — specifically, whether only those elements of negligence with a direct causal link to the collision should inform the assessment of seriousness.
  • The relevance of the offender's prior driving record (including a prior high-range PCA offence and driving while disqualified) to sentencing, including the weight to be given to retribution and personal deterrence.
  • Appropriate sentence having regard to the maximum penalties (18 months' imprisonment and/or fine for each negligent driving count; nine months' imprisonment for mid-range PCA), the offender's culpability, and mitigating and aggravating factors.

Decision

Objective seriousness and the role of causation

Both the offender and the Crown advanced competing positions on causation and its relevance to objective seriousness. The offender submitted that only the failure to activate headlights — which prevented him from keeping a proper lookout — had any relevant causal connection to the collision. The Crown argued that causation analysis was limited to whether the collision caused the deaths. His Honour rejected both submissions, finding that neither properly captured the Court's sentencing task. The plea of guilty admitted that the offender was driving negligently at the time of the fatal collision. While one element of negligence might have greater causal potency than others, the objective seriousness must be assessed by reference to all four accepted particulars of negligence: (1) speeding (modestly above the limit at 54 km/h in a 50 km/h zone); (2) failure to activate low beam headlights; (3) failure to keep a proper lookout (looking to his left rather than at the road ahead); and (4) driving with impaired ability due to alcohol consumption. These were distinct failings that collectively constituted the negligent driving.

Assessment of the four elements

His Honour accepted that the speed was only modestly above the limit, but found the other elements were more significant. Expert pharmacological evidence established that at a BAC of approximately 0.082, the offender's perception, judgement, information processing, divided attention, visual scanning, and complex reaction skills would all have been significantly impaired. The failure to activate low beam headlights seriously impeded the offender's ability to see hazards on the road ahead, and this was compounded by his failure to look at the road in front of him. In combination, these failings represented "a very significant abandonment of his responsibility as the driver of a vehicle on a public road." His Honour characterised both offences of negligent driving occasioning death as serious examples within the range contemplated by the offence provision.

Prior driving record and personal deterrence

Although the offender's criminal history was not sufficient to constitute a statutory aggravating factor, his Honour noted it could not be ignored. The offender had a December 2017 conviction for driving with high-range PCA, and during the unserved disqualification period in 2019 he twice drove while disqualified. His Honour found this history reflected "an attitude of disobedience towards laws regulating the behaviour of licensed drivers," warranting increased weight on retribution and personal deterrence, citing Veen v The Queen (No 2).

Victim impact

Victim impact statements from the mother and brother of Stephen Lippis described the devastating and enduring effect of his death on the family, where he served as a father figure and central support to his siblings and mother. His Honour acknowledged the extraordinarily profound impact on the family.

Orders Made

Note: The text of the judgment provided was truncated before the sentencing orders were set out. Accordingly, the specific sentences imposed cannot be confirmed from the available material. Practitioners should consult the full judgment on NSW Caselaw for the orders made.

Based on the available text, the following can be confirmed:
- The offender was to be sentenced on two counts of negligent driving occasioning death (maximum 18 months' imprisonment and/or 30 penalty units each) and one count of driving with mid-range PCA (maximum nine months' imprisonment).
- His Honour assessed the negligent driving offences as serious examples of the offence.

Key Takeaways

  • Multiple elements of negligence are assessed holistically, not in isolation: The District Court held that when sentencing for negligent driving occasioning death, it is not required to make a beyond reasonable doubt finding that any particular element of negligence caused the fatal collision. All admitted or established particulars of negligence were treated as relevant to the assessment of objective seriousness.

  • Once negligence and the resulting death are admitted, the totality of the driving conduct informs seriousness: In rejecting the offender's submission that only the element of negligence with a direct causal link to the collision should determine the assessment, the Court clarified that causation analysis for sentencing purposes differs from the analysis required to establish liability.

  • A history of serious driving offences below the threshold for statutory aggravation can still carry weight: Prior convictions for high-range PCA and driving while disqualified did not satisfy the statutory test for an aggravating factor in this case, but the District Court found they were nonetheless relevant to the weight given to personal deterrence and retribution.

  • Expert pharmacological evidence established that even a relatively modest BAC (0.082) resulted in significant impairment of complex driving skills: The specific functional impairments associated with the offender's BAC level were a material consideration in the sentencing assessment.

  • Established sentencing principles from Olbrich and Storey governed the fact-finding process: Adverse facts were required to be proved beyond reasonable doubt, while facts favourable to the offender needed to be established on the balance of probabilities. The Court applied this framework in making findings about the offender's BAC level at the time of the collision.

Legislation and Cases Referenced

Legislation:
- Road Transport Act 2013 (NSW), ss 110, 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 7, 66

Cases:
- R v Olbrich (1999) 199 CLR 270
- R v Storey [1998] 1 VR 359
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Giles-Adam v R; Preca v R [2023] NSWCCA 122
- Hall v R [2021] NSWCCA 220
- Hesketh v R [2021] NSWCCA 262
- R v Brown [2023] NSWDC 477
- R v Howcher [2004] NSWCCA