Warning: The following article contains the name of an Indigenous person who has died, with the permission of family, as well as content and language some readers may find distressing

The sister of an Aboriginal man who died after being struck by a car in 2024 says her "heart is just broken" following an appeal that increased the offender's sentence but kept him out of prison.

In June 2024, Jake Danby struck two Aboriginal men near a shopping centre in Darwin before fleeing the scene. One victim, a 39-year-old Elijah Whitehurst, was thrown seven metres and suffered a traumatic brain injury. He later died in Royal Darwin Hospital. The second man, aged 37, survived with non-life-threatening injuries.

Last year, Sonia Brownhill sentenced Danby to a 12-month community corrections order, including five months of home detention, after he pleaded guilty to hit-and-run driving causing death under section 174FA — rather than section 174F — of the Criminal Code 1983 (NT), the main difference being in the latter, the person driving the vehicle is deemed to have been doing so "dangerously".

The sentence drew widespread anger and was appealed by the Northern Territory's Director of Public Prosecutions, who described it as "manifestly inadequate".

On Friday, the Northern Territory Court of Criminal Appeal extended Danby's intensive corrections order to two years, with the entire term to be served in home detention. He must also wear an electronic monitoring bracelet.

"In our view, the objective features of the offending place the offending in a serious category of offending of this kind," the three appeals judges wrote.

"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."

On Friday, Mr Whitehurst's sister, Toni Whitehurst, said that while she still has "a lot of questions", right now her "heart is just broken". Informed of the sentencing change that failed to see Danby go to jail, she said both she and her sister Stella are angry and sad.

"He was a happy, smiley fella. We miss him and the kids always say, we don't know where uncle is," she said.

"They miss him. They remember him at the shopping centre, coming to our gate, getting them to do jobs around the house."

Much of the criticism surrounding the sentence followed the revelation that Danby sent a series of "vile" and "repugnant" text messages in the hours after he fled the scene.

Court documents showed him bragging that he would not go to jail, describing the incident as a "two for one combo" and saying it was "pretty funny watching them roll around on the road after going over my bonnet".

Of the two men, he wrote: "They learnt 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."

"They were rolling all over the road like bitches when I looked in my rear-view mirrors," he said, claiming the world needs "c**s like me to take a hit to teach these c**s a lifelong lesson".

"Maybe if I'm lucky, I'll be able to claim his Centrelink for taking out another oxygen thief."

In response, Ms Whitehurst said: "Those words he [Danby] said still hurt us, this punishment is rubbish and doesn't feel good."

She said at the time of his death, her brother was sleeping around the Yarrawonga suburb, having struggled with mental health and social problems that de-railed his once-promising career.

"I'm strong but I got upset when I was told the new sentence," Ms Whitehurst said. "It's not fair, he [Danby] is still out there, there is no justice. I'm the person who needs to keep fighting for my brother."

Chief Justice Michael Grant (Image: NT News)

In December, Prosecutor Pat Williams told the appeals court the messages elevated the crime to an aggravated level and warranted a prison term of more than two years, arguing the accused had fled the scene and used dehumanising language that made clear "the basis for his rejection was a racist one".

Danby, who was unlicensed and driving an unregistered vehicle, later told a friend: "I do have to hand myself in, but I ain't getting jail time. I'm a Danby, we don't go to jail."

The offence Danby was charged with does not involve criminal liability for causing the death of Mr Whitehurst, a point noted by Chief Justice Michael Grant in his findings, where he also criticised some aspects of media coverage of Judge Brownhill's decision.

He said Danby "did not stand to be sentenced on the basis that the collision with the victims was racially motivated" and said whilst both 17F and 17FA carried the same maximum penalty, "there can be no doubt 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".

"As already described, the respondent was not charged with dangerous driving causing death," he said. "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."

In his findings, Justice Grant said, as per the charge, "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."

In their ruling, the appeals judges noted Danby has been fully compliant with his drug and alcohol testing and therapy, observing he is "now on a positive path of rehabilitation".

"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."

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