Director of Public Prosecutions v Arpaci
[2018] VCC 285
•16 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02232
CR-17-02193
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADEM ARPACI |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2018 | |
DATE OF SENTENCE: | 16 March 2018 | |
CASE MAY BE CITED AS: | DPP v Arpaci | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 285 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Two charges of culpable driving causing death and one charge of perjury
Legislation Cited:
Cases Cited:George v R [2017] VSCA 152; Nei Lima Da Costa Junior v R [2016] VSCA 49; R v Towle [2009] 54 MVR 543
Sentence: Total effective sentence of 14 years imprisonment with a non-parole period of 9 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K Doyle | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr R Hammill | Giorgianni & Liang Lawyers |
HER HONOUR:
1 Adem Arpaci, following a trial, you have been found guilty of two charges of culpable driving causing death, each of which carries a maximum penalty of 20 years’ imprisonment. You have also pleaded guilty to one charge of perjury, which carries a maximum penalty of 15 years’ imprisonment.
2 At approximately 1.30am on 27 January 2016, a Holden utility driven by Mr Harley Churchill, in which Ms Ivana Clonaridis was a passenger, struck a steel barrier on the approach to the E J Whitten Bridge on the Western Ring Road in Keilor East or Sunshine North. The utility was driving at very high speed and crashed through the barrier, became airborne and, as it descended into the Maribyrnong Valley below, it burst into flames. Both Mr Churchill and Ms Clonaridis died during this collision process.
3 Consistent with the prosecution case and the jury verdict on the two charges of culpable driving, I am satisfied beyond reasonable doubt of the following matters: In a period of some minutes preceding the collision, you were driving your Ford XR6 sedan whilst engaged in competitive driving or a race with Mr Churchill’s utility. This competitive driving began shortly after the last speed camera on the Western Ring Road which was located 2.78 kilometres before the E J Whitten Bridge.[1] The camera was underneath the Fullerton Road overpass close to where the Calder Freeway intersects with the Western Ring Road. Earlier that evening, both you and Mr Churchill had attended some illegal car events, known as “The Northern Skids”, at various locations in the northern suburbs around Tullamarine, Laverton, Derimut and Campbellfield. These are events where drivers perform donuts or burnouts while a crowd watches. Mr Churchill and yourself, independently and unknown to each other, had apparently attended these events for the first time that night. Earlier in the evening, Mr Churchill had changed the rear tyres on his utility by taking off 20 inch Simmons tyres and replacing them with 16 inch stock Holden tyres. This was because the Simmons were more expensive and he wanted to save those, as he planned to do a couple of burnouts at the Skids.[2]
[1]Exhibit L in the trial
[2]Evidence of Mr Garcia at the trial, Transcript (“T”) 750 & 752 and Evidence of Mr Szadurski, T176
4 There was evidence from Ms Darcy England that Mr Churchill had endeavoured to perform a donut unsuccessfully at the first Northern Skids venue after she arrived there at about 11:15pm on 26 January 2016.[3] Ms England also gave evidence that Mr Churchill’s utility had tailgated her vehicle at a distance of less than an arm’s length for approximately 500 metres leading up to the Sydney Road entrance to the Western Ring Road. Apparently, due to road works, there was only one service lane at that point. Shortly after she entered the Western Ring Road, she said he overtook her vehicle in a violent swerving manoeuvre going from the left lane in which he was travelling behind her, straight into the right lane and then swung back into the left lane. She said he swerved as though he were trying to avoid an animal on the road, but “(she) was the animal”. Various other witnesses describe Mr Churchill’s utility speeding or “flying” past them on the Western Ring Road. There was also evidence that it looked like his utility had to slow down as it seemed like it was going to “run up the arse of a car” and that car had to move out of its way.[4]
[3]T285-286
[4]Evidence of Mr Vatansever, T631 & 644;
5 You entered the Western Ring Road from Pascoe Vale Road. There was evidence that, once on the Ring Road, you baited or challenged two vehicles to race you. One was a Ford Laser, and this occurred soon after you entered the Western Ring Road . The other was a purple Commodore, a short time later. Occupants of these vehicles described you revving beside their car and going backwards and forwards, as though challenging them to race. In particular, the driver of the purple commodore, Mr Cameron-Smith, stated that you went back and forth about five times and he strongly believed you were trying to race him. This was around the Airport Drive area on the Western Ring Road.[5] Shortly after you baited the purple Commodore, Mr Churchill’s utility drove past you at high speed. You told police in your Record of Interview that you decided to “join in”.
[5]T197-198
6 One witness, Ms Claudia Strinavic, gave evidence that she saw Mr Churchill’s utility next to your vehicle and the two cars were revving at each other and your heads sort of looked at each other and then you both sped off.[6] Another witness, Mr Brandon Arnott gave evidence that it looked like the utility pulled up next to your car and you both took off. He said it it seemed like the two cars paused side by side and they both accelerated in their different lanes.[7]
[6]T74-75
[7]T497
7 There were multiple witnesses who variously described your vehicles as being side by side, driving at high speed, quickly putting distance on their vehicle, weaving in and out between cars and overtaking at high speed, as though you were in a race. Mr Cameron-Smith gave evidence that it was around the Calder Freeway that you both accelerated off. He stated that, to start with, there wasn’t much traffic, but around Keilor Park Drive there were cars coming onto the highway and it was more congested. He described seeing the tail lights of the vehicle of Mr Churchill and yourself going around a car, braking a bit, maybe going too fast, and then doing it again. He estimated you went around about 10 cars in this fashion.[8]
[8]T201
8 I am satisfied beyond reasonable doubt that the race between Mr Churchill and you was well and truly in progress by the time you got to the Keilor Park Drive overpass, which was only 1.04 kilometres from where the collision occurred.
9 Ms Lianos, who was travelling in the left hand lane of the Western Ring Road in the front passenger seat of a vehicle driven by Ms Hunter, described the utility and your car flying past the car she was in. She said the two of you were like “tail to tail” and, when you manoeuvred between other cars in front, you were very close to each other. Ms Lianos (somewhat prophetically) said she commented to Ms Hunter that “they’re not long of this planet” and gave evidence that, as you both passed, there was like a “whoosh” and the car she was in rocked with the movement and it was a bit scary.[9] Ms Hunter stated that the blue ute passed her car and then your car followed immediately and both cars were travelling very, very fast. She described the distance between Mr Churchill’s vehicle and yours as being very, very close and that you followed each other, one cutting in front of a car in front and the other following immediately. She observed that the brake lights of other vehicles travelling at normal speeds would come on after the two of you cut in. She said this happened at least twice and it was a quick succession, “like split second timing”.[10]
[9]T301-302
[10]T312-313
10 Mr Moss, a company director aged in his fifties, was travelling to work in the early hours of the morning. He was an experienced driver who had regularly driven on the autobahns in Europe, where there are unlimited speeds. He stated he was travelling at the speed limit, 100 kilometres per hour, and, as he was heading towards the Keilor Park Drive underpass, he noticed two vehicles coming behind him “at a decent rate”. Just before the underpass, the utility passed quickly beside him on the inside lane and you went straight past him in the right hand lane. He said the two cars passed him simultaneously and gave him a bit of a fright because the three lanes reduce to two as one goes under the underpass.[11] He estimated that both of you were travelling at least 160 kilometres per hour when you passed him, although he could not be precise. He observed the two vehicles quickly put distance on him and stated, “They were going fairly hard”.[12] He said he had a clear view of both vehicles right up until the collision occurred. He stated, “They looked like they were neck to neck”.[13] In his view, they were next to each other, but, as he was behind them he couldn’t say if one was going faster or in front.[14] He stated that, as the two vehicles cut back in front of him, they were in the middle and right hand lane and he thought to himself “this is crazy”. He could see the truck in the distance and the utility veered to go around it and fishtailed.[15] He then described the utility sliding to the left after approaching the truck on the E J Whitten Bridge and, then, seeing the collision occur. He stated that it would not have been possible for the utility to overtake the truck on the right hand side, because it might have run into your vehicle in the right hand lane.[16]
[11]T144 -145
[12]T160-161
[13]T147
[14]T150
[15]T145
[16][16] T151
11 On all of the evidence, I am satisfied beyond reasonable doubt that you were right there in the right hand lane beside Mr Churchill on the approach to the E J Whitten Bridge, with the race still in progress, when Mr Churchill’s vehicle veered to the left of the truck and, as its rear driver’s tyre blew, it went into a yaw and spinning skid out of control into the barrier. I am satisfied beyond reasonable doubt, in accordance with the evidence given by the expert accident reconstructionist, Dr Mehegan, that Mr Churchill’s vehicle was travelling at a minimum of 182 kilometres per hour when its driver’s side rear tyre blew,[17] resulting in him losing control and colliding with the steel safety barrier on the approach to the Bridge. I accept her evidence that, at that speed, it would have been very difficult for anyone to recover the vehicle from the yaw in the very short distance before it hit the guardrail and to stop it ending up over the side.[18]
[17]T172
[18]T175
12 In my view, the only reasonable inference from the evidence is that your vehicle was travelling at a similar speed to Mr Churchill, that is, exceeding the 100 kilometre speed limit by approximately 80 kilometres, as you approached the bridge in the right hand lane and were clearly able to see that there was a truck ahead of Mr Churchill in the lane in which he was travelling. I am satisfied beyond reasonable doubt that you did not slow down to any appreciable degree in the immediate lead up to the collision. The only evidence of braking, at this time, came from Mr Cameron-Smith who stated he’d “seen one set of brake lights come on pretty hard and then…the next set of lights come on and then, it sort of just, yeah, boom. It was just really quick, you know.”[19] He stated that he couldn’t say which car braked first, it was pretty much one after the next, and then his concentration followed the car that went off the road.[20]
[19]T202
[20]T213
13 In the week following the collision, police investigators launched a significant media campaign to try to locate the driver of the silver XR6 vehicle which witnesses had observed on the Western Ring Road engaged in competitive driving with Mr Churchill’s utility. You did not come forward to assist police.
14 On 3 February 2016, as part of a routine investigation of all silver Ford XR6 sedans registered in Victoria, the police attended your home. In the presence of your parents, you made a statement to police. You stated that “I recall driving over the E J Whitten Bridge but don’t know what time it was. I didn’t see anything untoward and definitely didn’t see the crash that was reported.” You went on to state “I have heard about the crash on the Bridge but did not know who was involved or anything about the crash.”[21] You signed that statement, acknowledging that it was true and correct and made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury. The making of this statement comprises the charge of perjury to which you have pleaded guilty.
[21]See page 73 and 75 of the Record of Interview
15 After making the false statement, you endeavoured to contact police to correct the record. The informant, Detective Kelly Carvill gave evidence that she had seen your mobile telephone which showed that, on 3 February 2016, after you had made your false statement, you made calls to the Brunswick Police Station telephone number at 10.30pm and 11.44pm and, again, at 8.20am and 11.40am on the following morning, 4 February 2016. Ultimately, at 3.05pm on 4 February 2016, you spoke to Detective Clanchy and identified yourself by name and told Detective Clanchy that you were the driver of the silver Ford that police were looking for on the Western Ring Road the previous week. You gave the registration number of your vehicle and stated the names of the police officers to whom you had spoken the previous day. You told Detective Clanchy that you had spoken to them yesterday but “gave a bullshit story as I couldn’t say what happened as my mum and dad were present.” Shortly afterwards, you were arrested and interviewed by police.
16 In your Record of Interview, you admitted having made a false statement to police the previous day. You stated that you could not say anything in front of your parents because your father has a heart condition and made reference to the battery (presumably in his pacemaker) being flat. You stated that you were concerned that, if you had said something about the events of the night in front of your parents, your father would have panicked and you knew something would have happened. You stated that you did try to signal to the officer as to whether the statement could be taken somewhere else away from your parents.
17 You are presently aged 23 years, having been born on 2 November 1994. You were aged 21 years and 2 months at the time of committing these offences. You come before the Court with no prior convictions.
18 In a plea on your behalf, Mr Hammill stated that, as you had said in your Record of Interview, if you could wind back the clock you would do so. He urged the Court to note that the Crown case against you had been a nuanced one with different potential findings of liability (that is direct and derivative) on Charge 1 relating to the death of Ms Clonaridis. He submitted that, in these circumstances, running a trial was not necessarily inconsistent with remorse and, although it may sound hollow to the family of the two victims, he was instructed to offer your sincere condolences for their loss.
19 Tendered on your behalf was a report from Christine Ellingworth, psychologist, dated 14 February 2018 (Exhibit “2”). Ms Ellingworth noted that your general practitioner, Dr Colin French, had referred you to her under a mental health care plan on 18 November 2016 and you attended seven sessions until discontinuing contact on 11 January 2017. She diagnosed Post-Traumatic Stress Disorder and a Major Depressive Disorder following the collision and your subsequent legal predicament. She recorded that the events of the early morning of 27 February 2016 have clearly had an impact on you in terms of recurrent involuntary and distressing memories and dreams associated with the trauma of witnessing the death of Mr Churchill and Ms Clonaridis, avoidance of any associated trauma, strong negative cognitions in terms of fear, horror, anger, guilt or shame and arousal and reactivity associated with the traumatic event in terms of such things as hyper vigilance, difficulties with concentration and sleep disturbance. Also, Ms Ellingworth had noted the distress of your parents’ response to what had occurred, that you had put on weight, and had lost your position for which you had worked hard as a warehouse manager as a result of police coming to arrest you at your workplace and the subsequent media coverage. She noted that you had been very engaged in counselling and came from a very hardworking, concerned family with traditional Turkish/Australian family beliefs. She stated that she had observed that you were very respectful to your family, who have provided you with a solid background and good work ethic. She noted that you had cancelled your last appointment with her on 25 January 2017 and she had had no further contact with you.
20 I accept that at a relatively young age witnessing Mr Churchill’s utility crash through the barrier and become a fireball would have been very confronting and, as you told police in your Record of Interview, you were in a panicky state and you felt scared to drive again. It is not clear whether you actually asked police if the statement could be made in the absence of your parents or whether some offer to that effect was made by Detective Hunt (who took the statement) and not acted upon. In either event, you were a 21 year old, in the presence of your parents and you knew that your father suffered a heart condition.
21 Mr Hamill told the court that, when you were 12 years of age, you were at home alone with your father when he suffered a heart attack. You phoned emergency services and followed their instructions and supported your father until the ambulance arrived. This is referred to in many of the references from your family and others, tendered on the plea. Indeed, you apparently required psychological counselling following your father’s cardiac event and your counsel stated that this event had had a lasting impact on you. He urged the Court to find that you were acutely aware of your father’s vulnerable heart condition when you made the false statement to police, as he has suffered a number of subsequent heart attacks and had had a pacemaker inserted. In all of these circumstances it is plausible that you would make a panicked judgment to tell a lie. Apparently, you were due to start a shift at work soon after the police left. It is to your credit that, when you finished your shift, you endeavoured to contact Detective Hunt to tell him the truth. You made four calls for this purpose, however, he was off duty, and it was not until 3.05pm the following day that you managed to get put through to Detective Clanchy to set the record straight.
22 In relation to the perjury charge, I accept that your concern about the welfare of your father probably played a part in making the false statement to police which was taken in front of your parents although, the context of you having failed to come forward to police in the previous week when you were well aware that they were looking for the driver the of the silver XR6 vehicle, leads me to the conclusion that it was not the only reason for the false statement. Nevertheless, I take into account that you were only 21 years of age and probably were in a very stressed condition following the events of 27 January 2016.
23 In the circumstances, given that I accept that misleading the police was not the only reason for your lie, this is far from the worst example of an offence of perjury. The prosecution have conceded that your false statement did not alter the course of the investigation in any way. Indeed, on the day of your false statement you had told police the name of your passenger and had given them his mobile telephone number, so it was only a question of time before your involvement would have become known, in any event. However, I do also note that you stated in your Record of Interview that your main concern for coming in and telling police what happened was that you had heard that a number of witnesses stated that you and the other vehicle were effectively side by side and splitting traffic and you wanted to deny that.[22] Also, you said that you had read an article that your silver car was baiting other drivers and you claimed that wasn’t the case.[23] Hence, it is a reasonable inference that, at least part of your reason for coming forward after lying to police, was to put a version which was contrary to that of multiple witnesses.
[22]Answers to Q250 – 253 in the Record of Interview
[23]Answer to Q239 of the Record of Interview
24 As previously mentioned, at the plea hearing, references were tendered from each member of your family: your mother, your father, your 20 year old sister, Aysel, and your 16 year sister, Selin. It is apparent that you are a much loved member of a close family and that you are devoted to them. All members of your family refer to you having effectively saved your father’s life when you were only 12 years of age and how the trauma of that experience necessitated you undergoing psychological treatment. It is clear from a medical report from Dr A Sheriff dated 12 February 2018 that your father continues to experience severe cardio-respiratory symptoms, even though he had a pacemaker inserted following his cardiac arrest. He suffers ongoing atrial fibrillation, in addition to osteoporosis, diabetes and neuropathy and kidney problems. He has been unable to work for a number of years and your mother has had to be his carer. It seems that your family were significantly reliant upon you financially contributing to and supporting the household, as well as being a role model, who kept a lookout for your two younger sisters and carried out many of the tasks that a father would normally have carried out, including driving your sisters to school. You also used to drive your father to medical appointments. Your father and mother both have mental health issues by way of anxiety and depression, which has required treatment over the years, and has been exacerbated by the stress and grief of your legal predicament.
25 All members of your family state that the collision and deaths of Mr Churchill and Ms Clonaridis have had a profound effect upon you. You are extremely remorseful for what has happened and have allegedly apologised to the families of the two victims, as well as your own family (I here interpolate that no evidence of any apologies to the families of Ms Clonaridis and Mr Churchill has been put before the Court, save for the oral expression of condolence which was made through your counsel at the plea hearing). All members of your family describe a marked change in you after the collision, in that you withdrew from the family and spent a great deal of time alone in your room and bottled up your emotions, whereas, previously, you had been a vibrant, hardworking, supportive and caring person, upon whom the family relied emotionally, practically and financially. Seeing the impact upon you has heightened the distress of your family, as has the media coverage surrounding the Court case.
26 Tendered as Exhibit 5 at the plea hearing were nine references from family and friends. All of them describe you as a gentle, helpful, honest and respectful young man. The picture emerges of a hardworking and generous person prepared to give generously to others in need and perform tirelessly as a volunteer within the Turkish community doing charitable works. They state that you have an excellent reputation within the Turkish community but they have seen a great change in you since the events of 27 January 2016. They state that you seem lost, but still endeavour to involve yourself in community activities and pray at your local mosque.
27 In addition, Ms Sade Tali, who has been your partner for two years, and her mother, Guinaz Tali, have each provided references which comprise Exhibit “6”. Ms Tali has known you for four years. In her reference she stated that you told her about the tragedy before the two of you began dating. She describes how you are not the same happy, energetic and lively person you once were but are always respectful, loving and kind hearted and put others’ needs and happiness before your own. She says you have shed many tears and relived the tragedy of the collision, wishing you could change things. She described you as never having smoked, drank alcohol, gambled or used drugs and as being a very pure person, with an amazing heart. She stated that the two of you had planned to get engaged this year, but your lives are now on hold and you have lost your reputation, your job, your car, your freedom. She expresses the fear that you are going to lose hope and she fears for your mental wellbeing, as well as for herself.
28 Ms Tali’s mother states that she has a high opinion of you as a good, loving and caring human being, who has always been willing to lend a hand to herself and family and friends. She states that you are devastated that two young lives have been lost and have become more and more reserved and endeavour to hide your hurt. She finds it difficult to watch this, as well as her own daughter suffering.
29 It is plain from the material before the Court that, prior to 27 January 2016, you were a decent, hardworking and caring person who was very well respected by family, friends, work colleagues and the Turkish community for whom you did many good works. You were a very dutiful son, who had achieved well in your work as a manager and very substantially supported your family financially. Evidence was also tendered on the plea that you had supported overseas aid projects and had financed a well named after you.
30 You obviously liked cars and described to police in your Record of Interview how you had put a loud exhaust and 16 inch rims with fatter tyres on the rear of your silver XR6, as some young men may do. However, I accept that you were not, by nature, an irresponsible person or a hoon.
31 Somehow you found yourself at the Northern Skids on the night of 26 January 2016. This would appear to have been as a consequence of a text message received by your passenger, Sinan Yelman, whilst you were both at a car show at Bunnings in Caroline Springs. You then followed a number of nice looking cars to a BP petrol station, where there was a carwash, and from there went to the Skids. In your Record of Interview you described the excitement of cars doing illegal burnouts and skids and police arriving and, later, on the Western Ring Road, you described the adrenaline rush as you engaged with the driver of the utility and how “Just something happened to me mentally …”[24] I accept that your driving on this night was out of character for you. However, I am not sure if, even now, you have grasped your legal responsibility. Just because you kept control of your vehicle and did not crash into anyone does not mean that you are not liable for the deaths that occurred. This is because the jury have found that you and Mr Churchill mutually encouraged each other to drive in a grossly negligent manner and the high speed of Mr Churchill at the time he lost control was all part of the race in which the two of you engaged.
[24]Answer to Question 652 and 653 of the Record of Interview.
32 Tendered as Exhibit “F” in the trial was CCTV footage taken from outside premises which were about 1 kilometre from the side of the E J Whitten Bridge over which Mr Churchill’s vehicle descended to the valley below. This shows two sets of headlights of vehicles travelling along the Western Ring Road faster than other vehicles and ultimately one of them drops below the level of the Bridge and explodes into a fireball. The other set of lights continues straight ahead past the truck which had been in the lane on the Bridge in front of Mr Churchill’s vehicle. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the two sets of headlights travelling next to each other were those of Mr Churchill’s vehicle and your vehicle, and that your vehicle was the one that continued on past the truck on the right hand side, after Mr Churchill’s vehicle had crashed through the barrier on the approach to the Bridge and descended to the valley below. In my view, the totality of the evidence presented before the jury from 17 people who were travelling on the Western Ring Road and who made observations of your vehicle and Mr Churchill’s vehicle at various stages on the Western Ring Road leading up to the collision, was very powerful evidence, indeed, that you and Mr Churchill were involved in a high speed race from shortly after the last speed camera near the Calder Freeway and that that race involving competitive driving, weaving in and out of traffic, overtaking traffic and travelling at grossly irresponsible high speeds in the circumstances continued for slightly less than 2.7 kilometres right up until the time that Mr Churchill lost control. It seems to me to be no coincidence that the competition between the two of you started after the last speed camera before the E J Whitten bridge. It is clear from your answers in your Record of Interview that you knew exactly where that speed camera was located.[25]
[25]Answers to Questions 72 and 95 in the Record of Interview
33 The prosecution case, which the jury accepted, was that yourself and Mr Churchill were mutually competing in competitive driving and spurring each other on in a grossly negligent fashion. Without you, there would not have been a race and yourself and Mr Churchill were effectively like a unit, pushing each other on and exposing yourselves and anyone else in the vicinity to the risk of a serious collision by reason of your insane speed, weaving in and out of traffic, changing lanes and cutting in front of cars, interfering with their safe progress on the road. The circumstances of your driving over that stretch of the Western Ring Road in only a matter of minutes involved innumerable serious breaches of fundamental road rules and the obligation that every driver has to take reasonable care for his own safety and the safety of other road users. You and Mr Churchill were both probationary licence drivers. You were two years more experienced than he. The circumstances in which you drove on this night posed such a very substantial risk of a serious collision as to make a tragedy almost inevitable and, of course, it did ultimately occur.
34 Where a person like you has been found guilty of criminally negligent driving causing death, the starting point is that you are to be regarded as solely responsible for the manner of your driving and that the manner of your driving was the sole cause of the deaths. However, if you are able to establish that some other person or external circumstance was partly responsible for the manner of the driving and/or that there was an additional factor outside your control which was also a material cause of the deaths, then there may be some form of reduction in penalty within the sound limits of a sentencing Judge’s discretion.[26]
[26]Spanjol v The Queen [2016] VSCA 317, especially paragraphs [5] and [47]
35 On behalf of the prosecution, Mr Doyle conceded that Mr Churchill’s conduct did influence the manner in which you drove. In addition, the prosecution has conceded that there is evidence that Mr Churchill’s driver’s side rear tyre was underinflated and that factor played a causal role in the blow out of the tyre and was an additional factor outside your control which was causally linked with the deaths. However, the prosecution made it clear that any mitigation referrable to the tyre was not very significant in the light of the evidence of Mr Ellis, expert mechanical investigator with Victoria Police, that, if a tyre is underinflated, he would expect it to blow very quickly if the vehicle is travelling at a speed in the order of 180 kilometres per hour.[27]
[27]T594
36 As the prosecution case accepted by the jury was that Mr Churchill and yourself were travelling at the speed you were doing because of mutual encouragement, it would thus seem that your participation in the race at high speed is linked to the speed at which Mr Churchill was doing and hence the blow out of the tyre. Although Mr Ellis conceded that there could be other causes of under-inflation, such as the tyre being punctured by screws, stones or pieces of metal, he stated that attributing any significance to Mr Churchill having changed the rear tyres on his vehicle earlier in the evening would be speculation.[28]
[28]T594
37 Mr Ellis also stated that, if a burnout had been done immediately before the driving of the car at speed, that may have contributed to the heat of the tyre,[29] however, tyres do cool down once such an activity is ceased and, whether the burnout could have had an impact on the blowout by creating heat, depended upon the time between the burnout occurring and when the blowout occurred.[30] In this case, it would seem that the burnout attempted by Mr Churchill at the first venue of the Northern Skids was about two hours prior to the collision and, in between that earlier time and the blowout, the race between the two of you involved high speed and multiple lane changes and overtaking and braking, from shortly after the last speed camera near the Calder Freeway and then, even more intensive competitive behaviour after the Keillor Park Drive overpass. Certainly there is evidence of speed by Mr Churchill before the two of you linked up, which may have contributed to the under-inflated tyre, but I consider that little mitigation of your moral culpability should be attributable to the fact of Mr Churchill having an underinflated driver’s side rear tyre, as the most overwhelmingly likely reason for that, is the build-up of heat in that tyre due to the speed that he was travelling in competition with you.
[29]T606
[30]T608
38 There is evidence that, on a post mortem examination conducted one week after Mr Churchill’s death, an analysis of his blood was taken on 5 February 2016. This detected methylamphetamine at a reading of 1.7 milligrams per litre of blood and amphetamine at a level of 0.4 milligrams per litre of blood. Dr Bauer, forensic pathologist, gave evidence that the level of amphetamine was most likely a breakdown of methylamphetamine.
39 Dr Gerostamoulos, chief toxicologist at the Victorian Institute of Forensic Medicine, gave evidence that levels of methylamphetamine and amphetamine can be changed after death, so that the post mortem drug concentrations will often not accurately reflect those at the time of death, and the longer the time that has passed between death and the analysis of a sample after death, the more prominent the change in drug concentration is likely to be, typically an increase. Moreover, there was evidence in this case of Mr Churchill’s body having suffered multiple injuries and also being subjected to the effects of fire and both of these factors can change the concentrations of drugs in the blood so that they are most usually higher in concentration. Dr Gerostamoulos stated that the post mortem concentrations may be two-fold or even four-fold higher than prior to death and it is not possible to predict with any accuracy what the concentration of amphetamine or methylamphetamine in Mr Churchill’s blood would have been at the time he was driving immediately prior to the collision.
40 All Dr Gerostamoulos was able to say was that there was methylamphetamine and amphetamine in the deceased’s blood. He was not able to say to what extent the levels of those drugs had changed between 27 January and the date of analysis, 5 February, and stated that it would be speculation to try to state what the level had been just prior to death. Nor was he able to say whether the drug had been taken recently or whether the user was a chronic user and this was made even more difficult by the less than ideal sample collected following the influences of trauma and fire. He stated that once methylamphetamine is ingested, the time it takes to have an effect on the body depends upon how the drug is consumed, whether it is snorted, smoked, injected or taken orally. He was not able to provide an opinion on any specific effects of methylamphetamine on Mr Churchill or his driving prior to the collision.
41 Dr Gerostamoulos stated that, generally, drivers who have methylamphetamine in their system are more likely to be involved in an accident than those who are drug-free. It was known to be a stimulant and could cause euphoria, restlessness, agitation, rapid and confused speech, paranoia and violent or aggressive behaviour, and drivers who are intoxicated with methylamphetamine are more likely to drive dangerously, speed and take risks, compared to non-drug-affected drivers. Some typical effects of methylamphetamine may include speeding, inappropriate lane changes, erratic driving, rapid and non-stop speech, disorientation, agitation, irrational and violent behaviour and cognitive impairment. He stated that, statistically, because he had methylamphetamine in his blood, Mr Churchill was at least two times more likely to have an accident but some methylamphetamine studies showed up to nine times more likelihood of the chance of an accident, although this was generally associated with such cases as truck drivers who enter the fatigue stage after having been stimulated by the drug. He stated that such things as tailgating, swerving out aggressively, risk taking and not obeying road rules, may be the sorts of driving that can show that a driver was affected by methylamphetamine, and if a driver was in the stimulatory phase of the effect of methylamphetamine, it could affect his decision making in that he would be more inclined to engage in a high speed drag race. He agreed that, although he was not able to be specific about the effect of methylamphetamine upon Mr Churchill, for a driver it is always a negative having amphetamines in the blood whilst driving.[31]
[31]T264 – 284
42 It is conceded by the prosecution that the presence of methylamphetamine in Mr Churchill’s blood is something of which you could not have been aware. I note that the evidence of Ms Osborne, who had known Mr Churchill for many years, was that his manner seemed “just normal” when she and Mr Szadurski spoke to him after the final skids event. This seems to have been about 1am, half an hour before the collision. Mr Szadurski had spoken to Mr Churchill at each of the five skids events. He said that when he and Mr Churchill discussed possibly meeting up on the following weekend there was nothing that made him think or suspect that he was under the influence of drugs at that point.[32] The prosecution further submitted that, if Mr Churchill’s driving was influenced by the presence of methylamphetamine in his blood, then that is part and parcel of his driving and this is a factor which is subsumed by the prosecution’s concession that Mr Churchill’s driving did have an influence upon the way you drove. I accept that that is an appropriate analysis to make, particularly in circumstances where you were clearly aware of the speed at which Mr Churchill was travelling, along with cutting in front of other traffic, changing lanes and risky overtaking manoeuvres.
[32]Ms Osborne T122, Mr Szadurski T184-185
43 Having carefully examined all of the evidence and the surrounding circumstances of your offending, although I accept that there is some reduction of your moral culpability because Mr Churchill’s driving was partly responsible for the manner of your driving, I do not consider that that reduction should be very considerable. The reason for that conclusion is that, on the evidence, it is apparent that you were in a hyped up state after having been to four of the five Northern Skids events and there is evidence from witnesses in two vehicles on the Western Ring Road that you challenged them to race prior to engaging in competitive driving with Mr Churchill.
44 In your Record of Interview, you described seeing and hearing burnouts and skids and getting an adrenaline rush and that was something that you had never seen before. You said it was like something on TV and then “A couple of minutes later, all you hear is people yelling, ‘Cops, cops, cops, cops,’ and all at rush, ran back to the car, left and jumped on the freeway.”[33] You went on to describe how you were just following cars from one venue to another and at the fourth Skids event, you ended up on a T-road where, after a few seconds, again, people were yelling, “’Cops, cops, cops’ and there were cars everywhere and a lot of speeding and a lot of the cars looked ‘modded up’” and you followed the cars to see where they were going. You stated that somewhere around Thomastown, when you arrived there was smoke everywhere and “We knew that it was going on again.”[34]
[33]Record of Interview page 41.
[34]Record of Interview pages 47-48.
45 In your Record of Interview police asked you what effect you thought your driving had had on the other driver and you answered, “I guess it could have been adrenaline for the both of us …”[35] You mentioned having an adrenaline rush on a number of occasions throughout your Record of Interview. You had indicated that you had probably got up to about 160 kilometres per hour whilst engaging in what you described as “drafting” with Mr Churchill, where “The aim is to see if the two can keep up, either slowing down, speeding up, doesn’t matter. It wasn’t a race where who’s going to pass first.”[36] However, you maintained that you had always been three or four car lengths behind Mr Churchill. You stated that you probably got up to 160 kilometres per hour but, when it became apparent to you that the other car was “not driving properly and they could have endangered our lives as well as theirs and anyone else on the road”, you stated, “At that point of time we were slowing down gradually.” You went on to state, “So I just calmly slowed it down, maybe slightly tapped the brakes, not to get too serious on the brakes.”[37] You claimed that, after you slowed down, you were probably at least six or eight car lengths behind Mr Churchill’s utility when you saw it go out of control.[38] You denied that you had ever been side by side with or that you had baited any other drivers. When asked by police “Why do 160 kilometres per hour to start with rather than worry about how you’re going to slow the car down?” you responded, “Well honestly, with the adrenaline rush I didn’t feel that it was 160. It just happened. Like I said, it just happened so quick. You get to that so quick that’s what it feels like. That’s all in the moment. … “ You went on to state, “It just happened like so quick that night. I guess maybe because I panicked it felt like that. I don’t know. Just something happened to me mentally.”[39]
[35]Answer to Question 239 in the Record of Interview.
[36]Answer to Question 666 in the Record of Interview.
[37]Answer to Question 651 in the Record of Interview.
[38]Answer to Question 217 in the Record of Interview.
[39]Answer to Question 652 and 653 in the Record of Interview.
46 Mr Arpaci, I am satisfied beyond reasonable doubt that you minimised the extent of your inappropriate driving to a very large extent when you gave your version of events in the Record of Interview. It simply does not correlate with the many witnesses who saw you and Mr Churchill driving competitively, being side by side and following each other, changing lanes and overtaking traffic at very high speed. No one describes you slowing down gradually such that you were six to eight car-lengths behind Mr Churchill when his vehicle went out of control.
47 I am satisfied beyond reasonable doubt that the evidence establishes that you were in a hyped-up state after having been, for the first time, to the Northern Skids events, and that you were looking for a race. You put out a challenge to the driver of the Ford Laser, which he regarded as a joke, given the disparity in your vehicles, and then made a more serious challenge to the driver of the purple Commodore. It was shortly after that that Mr Churchill’s vehicle came along, driving at high speed, and what you did was to voluntarily engage in a race involving such an extreme risk to yourself and other users of the road that a catastrophic collision was almost inevitable and, unhappily, did come to fruition.
48 Whilst there is no doubt that Mr Churchill’s driving was partly responsible for the manner of your driving, so, too, was your driving partly responsible for Mr Churchill’s driving, which led to the tragic death of himself and Ms Clonaridis. Where there has been a situation of mutual encouragement as here, I consider that any reduction in sentence for Mr Churchill’s behaviour and its impact on you should be very moderate.
49 You were not someone who was coerced or pressured, in any way, into engaging in this highly dangerous driving competition. There is no indication that you were reluctant, and both you and Mr Churchill appear to have enthusiastically embraced this criminally-negligent conduct involving ridiculous speed and dangerous manoeuvres, cutting in on other traffic, changing lanes, and overtaking. It is miraculous that more people were not killed or seriously injured on the Western Ring Road by the extraordinary negligent competitive driving behaviour of Mr Churchill and yourself. There is evidence that the cutting in front of other drivers caused them to brake to accommodate the unnecessary aggressive intrusion into their space. Even very experienced drivers, like Mr Moss and older passengers like Ms Lianos in Ms Hunter’s car, found the impact of your overtaking frightening.
50 When people like you and Mr Churchill embark on such extremely risky behaviour, driving at 180 kilometres per hour, you leave no margin for error, and such things as a tyre blowout are all part and parcel of the foreseeable risks that you create. You did not pull back from this full-on race, even though there is evidence in the first statement made to police by your passenger, Sinan Yelman, that he twice asked you to “let it go”.
51 Mr Yelman’s evidence at the trial was inherently unreliable for a variety of reasons, and he stated that he could not be sure whether you had heard him. What was plain, though, is that Mr Yelman was having a severe panic attack by the time you stopped on the other side of the E J Whitten Bridge after the collision. He was in such a state from either panic and/or asthma that you deemed it appropriate to get him home to get some medication. It is completely unsurprising that a person like Mr Yelman, who has some history of anxiety, would suffer very heightened anxiety as a passenger in a car driven by you at such high speeds, undertaking very dangerous manoeuvres, in the course of a race with Mr Churchill which ended so tragically.
52 It is also not surprising that, as Mr Yelman stated in his first statement to police in a portion which he did adopt at the trial, while standing on the E J Whitten Bridge, having seen that Mr Churchill’s car was on fire in the valley below, you discussed whether it had been your fault, and you stated that you and he must go to the funerals of the people in the ute. You, then, apparently went to pray for them.
53 Mr Arpaci, although it is clear that Mr Churchill’s own appalling driving caused his death and that of Ms Clonaridis, the jury have effectively accepted that his driving was inextricably linked with your appalling driving, and that you were mutually encouraging each other in this ridiculously unsafe competition, where many members of the public and yourselves were placed in very grave danger. Thus, even allowing for some very moderate mitigation by reason of the influence of Mr Churchill’s driving on you, and some minor mitigation referable to Mr Churchill having been driving on an under-inflated tyre, your moral culpability for the deaths of Ms Clonaridis and Mr Churchill remains high.
54 In your Record of Interview you told police that you did not honestly believe that it was your fault that these deaths happened. You stated “I was there at a bad time and I had an adrenaline rush too, just like he did,” although you did acknowledge “It could have easily been myself in that accident ...”.[40] Your belief that it was not your fault stemmed from your stated belief that “Everyone is responsible for themselves in the car, and I was responsible for the people in my car, and he was responsible for the people in his car.”[41]
[40]Answers to Question 578 and 579
[41]Answer to Question 576, page 67 of the Record of Interview
55 Your summary of your responsibility as a driver could not have been more erroneous. Every driver of a car has a responsibility to take reasonable care for the safety of himself and all other road users. This means obeying road rules and not engaging in such a flagrant breach of the speed limit and the rules relating to keeping a safe distance behind other vehicles, and indicating and overtaking safely, and not using a public road as though it were a place for some private sporting competition between yourself and another driver.
56 We have so many unnecessary deaths on our roads. Yours is a case where the court must denounce your offending conduct and emphasise general deterrence. This means that, in sentencing you, a strong message must be sent out to all drivers that, if they engage in drag racing or other competitive behaviour, particularly at high speeds and interfering with other traffic on a public roadway like you did, then they need to be aware that they will be appropriately punished for it. It is imperative that courts do all that they can, when sentencing for conduct like this, to ensure that the community is protected, by trying to deter others from repeating such criminality-negligent behaviour.
57 I have referred at length to the impact upon you and your family of the collision and deaths on 27 January 2016. Now it is important that I acknowledge the suffering of those who mourn the loss of Ivana Clonaridis and Harley Churchill.
58 Ivana’s father, Mr Ignatius Clonaridis, made a Victim Impact Statement on 16 February 2018 (Exhibit A), which was read to the court by the prosecutor. Mr Clonaridis had been present in court for every single day of the pre-trial argument and the first trial before the jury held late last year, in which the jury were unable to agree upon a verdict. He was also present for many days of the retrial this year which resulted in the verdicts of guilty. He was not present at the plea hearing and had asked that his Victim Impact Statement be read to the Court.
59 His Victim Impact Statement is heart-wrenching. He describes being away on his honeymoon with his new wife when he learned of the death of his precious child, Ivana. He describes flying back to Melbourne and going to the site of the crash and crying till the sun came up. He has suffered deep psychological distress, including disturbing flashbacks of seeing the charred remains of Ivana at the mortuary. This affects his sleep, and he needs psychological assistance and has not been able to work because of his mental state.
60 He describes feeling anti-social and isolated and depressed, such that his relationship with his new wife broke down, and he has not been permitted access to his new baby boy born of that relationship, due to his unstable mental state following the death of Ivana. He says his pain is unbearable and he often has suicidal thoughts, and is now struggling emotionally and financially.
61 Ms Mary Doungas, the mother of Ivana Clonaridis, has also provided a Victim Impact Statement dated 17 February 2018 (Exhibit B). Ivana died at the age of 18 years. Her mother describes how Ivana had just finished her first year at university, studying to be a lawyer. Ms Doungas, too, suffers the trauma of images and nightmares about seeing her daughter’s burnt body in her coffin. She suffers panic attacks, depression and anxiety, loss of concentration, and is full of grief as she misses her daughter and all the special milestones that will never be.
62 Mr Jake Cachia, who is married to Ivana Clonaridis’ sister, Cassandra, provided a Victim Impact Statement on behalf of himself and Cassandra dated 17 February 2018 (Exhibit C). Mr Cachia describes how he and Cassandra were to have been married one month after Ivana died. Instead of celebrating that event, with Ivana as a bridesmaid, they ended up having to identify Ivana using dental records, and view her remains in the most horrific way, which has emotionally scarred both of them. They suffered financial loss through cancelling their wedding and also through funding Ivana’s funeral. Mr Cachia states that, apart from missing Ivana, he suffers deep sadness seeing his wife’s distress going through life without her only sister. He states that the hurt is like having the air taken out of their lungs.
63 Ms Jan Woodham, mother of Harley Churchill, provided a Victim Impact Statement dated 17 February 2018 (Exhibit D). She states that she was the single mother of four children. Although Harley had two older sisters, he was the oldest son, and took it upon himself to be the man of the house, and was always there to support her. She and Harley worked for the same employer, and travelled to and from work together every day for four years. She found it too painful to return to that workplace because of the constant reminders of Harley. She describes her life as having spiralled downwards as she suffers deep depression, suicidal ideation, panic attacks, and nightmares with horrific imagery, and now requires medication for these psychological problems and sleep disturbance.
64 Ms Woodham states that Harley and his brother Harrison were to have walked their sister down the aisle for her wedding, and what should have been a joyous occasion was another sad reminder of Harley’s absence. She states that it is as though someone has blown out the bright candle that lit her life.
65 Ashleigh Churchill, the sister of Harley Churchill, provided a Victim Impact Statement dated 17 February 2018 (Exhibit E). She describes how close she was to her brother and how they would talk on the phone almost every day, and spend Friday nights catching up for dinner and movies and confiding in each other. Harley was her “go to” person who was always ready to listen to her, and help her with anything practical, such as a flat battery on her car.
66 She describes a deep sense of loss and loneliness that no words can describe, together with disturbed sleep. She states that she wakes up to the crushing knowledge that she will not ever see or talk to Harley again, which, at times, becomes so acute that she suffers panic attacks for hours on end.
67 The adverse effects described in the Victim Impact Statements are all foreseeable and understandable consequences of the unnecessary deaths caused by grossly negligent driving.
68 It was submitted by Mr Hamill on your behalf that the head sentence of 8 years’ imprisonment imposed for each charge of culpable driving in the decision of George v R,[42] is “the high-water mark” for sentences in culpable driving. I do not agree that this is so. In Nei Lima Da Costa Juniorv R,[43] the Court of Appeal adopted what had been said in R v Towle,[44] where it was held that the sentencing court’s assessment of the dangerousness of a person’s driving is informed by the extent of the risk which it created. The extent of the risk includes both the likelihood that something will go wrong and the extent of the harm which will result if it does.
[42][2017] VSCA 152
[43][2016] VSCA 49
[44][2009] 54 MVR 543 at [563]-[566]
69 In your case, where you and Mr Churchill were competing at speeds which reached approximately 182 kilometres per hour in a 100-kilometre speed zone, where there had been just under 2.7 kilometres of weaving in-between traffic and changing lanes, and interference with the progress of other cars driving normally on the road, before embarking, in earnest, on the final stretch of the race in the 1 kilometre after the Keilor Park Drive overpass, the likelihood that something would go wrong, and the extent of the harm that would result at those speeds, was very high indeed. The barrier on the approach to the E J Whitten bridge, which was struck by Mr Churchill’s vehicle, was designed to prevent vehicles travelling at the speed limit from going through that barrier. People are expected to obey the speed limit and consider the welfare of others on the road.
70 As I have said, I find the grossly negligent driving in which you and Mr Churchill engaged made the risk of a collision very high and the risk of catastrophic consequences almost inevitable. As I have also said, in these circumstances, even allowing for some very moderate reduction of responsibility for the influence of Mr Churchill’s vehicle and minimal reduction referable to the under-inflation of his rear driver’s side tyre, your culpable driving on this night was towards the high end of serious. The distance over which you travelled was not as long as the 14 kilometres in the case of Da Costa, but your speed was much higher and, as I have said, there were countless breaches of road rules during the course of the competitive driving over approximately 2.7 kilometres, and many instances of interference with other vehicles and risk of harm to their occupants. Although you had not planned to hurt or cause the death of anyone, as I have said, I am satisfied beyond reasonable doubt that you were looking for a race and your engagement in this grossly negligent driving was deliberate.
71 You were only 21 years of age at the time, and your counsel submitted that your prospects of rehabilitation should be front and centre in the sentencing process. You had completed year 12, done a course in accounting and worked hard to obtain a managerial position at a warehouse and contributed to the community in a variety of ways. While, certainly, I do have regard to your prospects of rehabilitation, in my view, the gravity of your offending is such that denunciation of your conduct and general deterrence and just punishment must be the predominant sentencing principles. As was stated by the Court of Appeal in Lennon v R “For offences of this kind, a sentence involving immediate custody is generally to be expected. The judge was also right to emphasise the need for general deterrence in sentencing for this kind of offence. Offences of this kind are frequently committed by young offenders, with otherwise good character, who have no criminal history and good prospects for rehabilitation. The applicant meets that description. It is because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight.”[45]
[45][2017] VSCA 85 at para [49]
72 Members of the public using the roads must be protected from drivers who use those roads like some sort of playground for crazy, irresponsible competitions as you and Mr Churchill did. The community cannot and will not tolerate needless deaths on our roads caused by people grossly abusing the privileges of holding a licence to drive a car. There can be no doubt that the only appropriate sentence for the culpable driving charges is an immediate custodial sentence, and a stern one at that.
73 I am mindful of the principle of totality, but also of the fact that there have been two precious lives lost. Although both deaths arose out of the same course of grossly negligent driving, it is important to acknowledge the second death, so that it does not become treated as a mere statistic. However, in the interests of totality, the cumulation should be moderate. Further, I consider that in the interests of totality, the sentence on the perjury charge should be made totally concurrent with the sentences for culpable driving.
74 I acknowledge that prior to the events in the early hours of 27 January 2016 you appear to have lead a blameless life and were a decent family-oriented person and a contributing member of society in many ways. The material tendered on the plea does indicate that you were a person of very good character; gentle, kind, religious, a significant contributor to charitable works and a hard worker, who was responsibly making his way in the world. There is no evidence that you were affected by drugs or alcohol on the night of your offending. Unhappily, like so many other people guilty of culpable driving, you have made a gross error of judgment on this night, and abandoned your commonsense and sense of decency and responsibility towards others on the road. The fallout from that gross error of judgment is immense in terms of the human tragedy for the victims and their family and friends, and your own young life and that of your family and friends. Culpable-driving cases like these give rise to tragedy and its adverse consequences on so many different levels.
75 I accept that, since committing these offences, you have been in no further trouble with the law and have abided by onerous bail conditions which included a prohibition upon you driving a car. This, along with your psychological symptoms reactive to the events of 27 January 2016 and the legal aftermath that it has had for you, mean that you have been unable to work and your young life has been an anxious and fraught one. Indeed, the arrival of this day of judgment has been a protracted and painful one, with a hung jury in the first trial and you having to endure a second trial. To my observation, you have endeavoured to put on a brave face and be courageous for your family and other people who are close to you, but I am in no doubt about your psychological suffering, even though as I have said, I have doubt about whether you have grasped your legal responsibility. Even since being remanded in custody following the jury verdict, your counsel stated that you have applied yourself in custody by enrolling in a Certificate II in Business. I accept that it is highly unlikely that you will offend again in this manner and that your prospects of rehabilitation are very good. For this reason, I propose to assign a non-parole period in recognition of those prospects of rehabilitation, but I am mindful that it should be not so low that it erodes the application of general deterrence in your case.
76 There has been an application by the prosecution for a forfeiture order in relation to your silver Falcon XR6 vehicle which was involved in the offending. I have been told that this was purchased for approximately $6,500 on 15 October 2015 and approximately one-third of this amount was borrowed from your father. It is apparent from the references tendered from parents that the family’s financial situation is a parlous one. Your father has not worked for some time due to his serious respiratory and cardiac problems and nor has your mother, as she is his carer. The family enjoyed the benefit of significant financial support from you while you were working, although clearly this has not been the case for the last two years. The references and accompanying material refer to the financial distress of the family. In all of the circumstances, I consider that I should exercise my discretion to show some mercy to your family on the issue of the forfeiture of the vehicle, so that your father can endeavour to recoup the money that he advanced to you to help purchase it. Accordingly, I do not propose to accede to the application of the prosecution for an order pursuant to s33(1) of the Confiscation Act 1997.
77 Would you stand up please.
78 On Indictment No. G10381638.A you are to be sentenced as follows:
79 On Charge 1, culpable driving causing the death of Ivana Clonaridis, you are convicted and sentenced to be imprisoned for a period of 10 years.
80 On Charge 2, culpable driving causing the death of Harley Churchill, you are convicted and sentenced to be imprisoned for a period 10 years.
81 The sentence imposed on Charge 1 is the base sentence and I direct that 4 years’ of the sentence imposed on Charge 2 be served cumulatively upon the sentence in imposed on Charge 1.
82 The total effective sentence is thus 14 years’ imprisonment. I direct that you serve a period of 9½ years’ imprisonment before becoming eligible for parole. I declare a period of 35 days’ pre-sentence detention to be reckoned as time served under the sentences imposed this day.
83 On Indictment No G10381638.B, you are sentenced as follows:
84 On Charge 1, perjury, you are convicted and sentenced to be imprisoned for a period of 6 months. I direct that the whole of this sentence be served concurrently with the sentences imposed on Indictment G10381638.A.
85 Section 89(1) of the Sentencing Act 1991 requires me to cancel all licences to drive or learner’s permits, and disqualify you from obtaining a licence to drive or learner’s permit for at least 24 months. I take into account that, as a condition of your bail after you were charged with these offences in February 2016, you have not been permitted to drive a vehicle. Taking that factor into account, together with the gravity of the offending on the culpable driving charges, I order that all driver’s licences or learner’s permits be cancelled and you be disqualified from obtaining a driver’s licence or permit for a period of four years from today.
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