Director of Public Prosecutions v De Jong

[2016] VCC 424

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-15-02215

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL IRVINE DE JONG

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	13 April 2016
CASE MAY BE CITED AS:	DPP v De Jong
MEDIUM NEUTRAL CITATION:	[2016] VCC 424

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Offender	Mr P. Koris

HIS HONOUR: 

1Daniel Irvine De Jong, you have pleaded guilty to one charge of dangerous driving causing death, one charge of dangerous driving causing serious injury and one charge of reckless conduct endangering death.  Those crimes carry maximum penalties of ten years, five years and ten years respectively.

2You were 20 years of age at the time of the offending and you are now 22.  You are clearly still a young person and I take that into account. 

3You have pleaded guilty and you get the benefit of that, both through the expressions of remorse as exemplified by witnesses called on your behalf and by the plea itself.  You also get the utilitarian benefit of the plea.  Initially your position was, and it was only as I understand it abandoned in more recent time, that you had swerved to miss a kangaroo.  The trauma that would have been caused to the family by this matter proceeding as a trial on that basis would have been enormous.  I take that into account in terms of this sentencing disposition.

4There has now been a delay of some 22 months between the commission of the offences and this sentencing exercise.  You were not charged until a year after the events occurred.  That effectively took it outside the period upon which I could have given a sentence of Youth Justice detention.  Whether that could have been organised in that particular timeframe, I do not know, and why the delay occurred again, I do not know.  However, I do take that delay into account on your behalf as a matter of real significance for one who is younger.

5As I just indicated to counsel, there is differences between this and the matter of Borg.  I do not propose to go into those in great detail.  There has also been an additional delay because of the appeal in Borg.  This plea was originally heard some two months ago and was then adjourned until the Court of Appeal decision had been handed down.  I have no doubt that that has been a stressful time, not only for you, but also for your family and for the family of your victims.  In the circumstances with such an important matter, there was simply no way around that.

6As I said, before I start going through the material here, there had been a recent decision of Borg in which I was the sentencing judge.  That decision was one where the Court of Appeal had held that when I gave a non-custodial disposition to Mr Borg who was of a similar age to yourself, that that was manifestly inadequate.

7There are a number of differences, one particular one being that you have a significant driving history in terms of offending whereas Mr Borg did not and also Mr Borg in my view had far greater material insofar as moral culpability for the actual offending was concerned.  This is not a debate and Mr Hore-Lacy was clear and very open in pointing that out, but as I understand the Court of Appeal decision has not suggested that I got the actual law relating to such matters wrong, it is the ultimate disposition.  Essentially these matters come down to consequence versus mitigation and that what has to be balanced in this sentencing exercise.

8Before I go into the circumstances surrounding what occurred back in February 2014, I think it is important to look at your driving history.  You turned 18 on
13 November 2011.  The evidence before me was that you would have got your licence pretty shortly after that. 

9On 27 January 2012, you were intercepted and charged with exceeding the speed limit by in excess of 45 kilometres per hour.  The circumstances of that were that on that day, around 8.30 at night, you were observed by an informant driving a motor vehicle in Scoresby Road, Bayswater.  You were stationary at a red traffic control signal at the intersection of Power Road and Scoresby Road.  The lights turned green and you took off at a fast rate of speed.  You were being followed by a marked police vehicle.  You accelerated until you reached 117 kilometres an hour in a 60 kilometre zone before you were intercepted.  That was within a couple of months of even getting your driver's licence.

10As part of that probationary licence that you were on, there was a condition that you have no more than one peer passenger.  When intercepted you had three peer passengers in the vehicle, all of whom apparently were affected by alcohol.  Your vehicle, if it was your vehicle, was impounded for one month on the night of the offence.  That has to be regarded as a very serious piece of bad driving and could easily have attracted a charge of speed dangerous.  In any event it did not.  Assuming it was your vehicle, it was impounded for one month, which takes it through to 27 February 2012.

11On 8 March 2012, you were intercepted by police doing what we describe these days as a burn out in a railway station car park.  You had had your vehicle back for about seven or eight days at that point in time.  The police observed that your vehicle was facing south in the Ferntree Gully Railway Station car park.  The engine could be heard revving, prior to the rear tyres beginning to spin on the road surface while the vehicle remained stationary for approximately six to eight seconds.  Smoke could be seen billowing from the tyres and a loud screeching was being made.  As the car moved forward the rear then slid from side to side in a fishtail motion while the rear tyres continued to spin uncontrollably on the road surface for a distance of approximately
20 metres until they caught prior to exiting the car into Alpine Street, so that tyres left a long black tyre mark and you were then intercepted.  As I said, that is within a few months of you getting your licence and within eight days of getting your car back from it being impounded.

12In any event, on 31 July 2012, all those matters came to court.  On that day you pleaded guilty, I am assuming, to exceeding the speed limit, carrying more than one peer passenger, your careless driving of 8 March and other more minor matters.  On that day your licence to drive a motor vehicle was suspended for a period of 12 months, which would take you through to, as I understand it,
31 July 2013, that being a suspension.

13On 3 September 2013, your demerit point period was extended for a period of 12 months commencing on 10/09/2013 after notification from Road Traffic Authority.

14On 13 January 2014, just about a month or so before what we are here for, you were intercepted speeding again by 15 kilometres or more and attracted three demerit points.  It was quite clear that from that point your licence was going to be suspended.

15On 22 February 2014, you caused the death of Mr Pruen.  You, on that day, as was quite within your right, did a "no comment" record of interview.

16On 27 March 2014, after having revisited the scene with your phone records and other material, you did participate in a record of interview at your legal advisor's request and essentially said that you had swerved to miss a kangaroo or a wallaby, which according to witnesses was what you had claimed at the scene.  In any event, you were released at that point and had not been charged and were not charged or some time.

17On 25 April, not even a month later, you would appear to have been somewhat undeterred by what had occurred and were again intercepted exceeding the speed limit by between 15 and 25 kilometres per hour and you then received another three points.

18On 29 May 2014, your licence was taken for a period of ten months.

19On 28 March 2015, you were given another demerit points option.

20On 8 April 2015, again you extended the demerit points for a period of
12 months.

21All that offending that I have described, allowing for the fact that you did not have a licence for a significant period, happened within a relatively short time of having got your licence.  It was put that it is not an unusual sort of driving history, there is not particularly wrong with it.  I disagree with that, I think it is, in this scenario, quite extraordinary.  Be that as it may, you were and still are a young man.

22I then proceed to deal with the circumstances of the collision on 22 April 2014.  I do not propose to go through each and every detail of this as it would not be fair to anybody and I am simply going to annex the Crown opening to these, my sentencing remarks.  One aspect of that which I would point out, is that in the Crown opening the suggestion is that after the impact you obliterated phone messages and text messages from your phone.  My understanding of the record of interview is that you had only agreed to obliterating phone records not text messages.  Whether you did take text messages or not off, I have no idea and I daresay no-one else does, but that is the only change that I would make to that.

23What happened was that on 22 February 2014, at approximately 4.30 pm, a fatal motor vehicle collision occurred on the Strzelecki Highway, Kooraman, which is some three or four kilometres out of Leongatha heading towards Mirboo North.  Your vehicle was travelling north east and failed to negotiate the left-hand bend.  You drove into the path of the other traffic lane and impacted a Mazda with four occupants.  It was an offset head-on collision.  The impact was to the front and driver's side of the Mazda with the most significant damage being to the driver's door and the driver side rear passenger door.  The Toyota was then struck by a Holden Commodore sedan with one occupant in it, who was also travelling south-west.  The impact was to the passenger side of his vehicle.  The driver of the Mazda, Mr Uwe Pruin, died at the scene.  The rear seat passenger, his daughter, suffered life-threatening injuries in the collision and has, as I understand it, recovered to a degree.  Other people were injured but you have not been charged with that, you have been charged with a reckless endangerment. 

24I say from the outset, that in this situation reckless endangerment is a very difficult matter to sentence for because of the mental element involved. 
I indicated to Mr Hore-Lacy during the plea I would not be imposing any extra penalty in reality for that.

25I do not think I need to go through the mechanical examinations of the vehicles.  There is no suggestion that the vehicle that you were driving, which I understand to have been your father's, was in any way ill equipped or unroadworthy or anything along those lines.

26The victims were Mr Uwe Pruin, a man of at that time 59 years of age.  He died from extensive injuries.  The toxicology examination indicated that there is no evidence of alcohol, drugs, or poisons. 

27His 13 year old daughter was the victim of the serious injury charge.  She was trapped in the Mazda for approximately one hour before being removed from the car.  Material before me indicates that she was crying out endeavouring to get people to help her out.  She was ultimately flown to the Royal Children's Hospital where she was admitted.  Her injuries were a scalp haematoma; multiple facial fractures; right radius and ulna fracture to the forearm in which metal rods were inserted; a right distal femoral condyle fracture near her knee, screw inserted; right ankle fracture; left mid shaft femur fracture, metal rods inserted; superficial perennial laceration and mild pulmonary contusion.  In this situation I do not need to go into the injuries to the other people, the injuries to her were certainly serious on anyone's analysis of the situation.

28You suffered minor injuries, but I take no note of that.  Significantly you were given a preliminary breath test and there was no sign of alcohol or poisons.  You were interviewed on that day, as I have indicated, which is your perfect right you made "no comment."  On 27 March you, were interviewed again at your legal adviser’s request.

29The situation in brief is this, that one of the witnesses says that he saw you go straight at the corner, and that is come onto the wrong side of the road.  He said that you had been coming over the lines for some period of time.  I do not accept that he could have had an observation for that long, that does not mean you were not, but I think he has probably extrapolated it.

30The situation there is that it is a 100 kilometre speed zone.  The road ran generally in a north-east to south-west direction, undivided two lane road with one lane for travelling in either direction, bitumen surface in good condition.  Lanes of travel were separated by double white lines painted on the road surface.  On the outer edge of each lane was a solid single white fog line painted on the road surface and raised audible strips were along those fog lines.  There was a wide bitumen shoulder leading to the grass and the dirt edges, on the south side an uphill embankment, on the north side a mild downhill grass reserve. There were fenced paddocks on each side.

31Approaching the collision scene in a north-easterly direction, where you were going, the road had a moderate uphill gradient along a straight section of road.  On the north, that is the left side of the road approaching the left curve, there was a steel Armco type barrier.  This led from the straight section, which on my calculation from the map is about 300 metres, and continued through the left curve.  Advisory arrow signs warning of the left curve were located on both sides of the carriageway.  There was also a speed advisory sign of 60 kilometres underneath one of the left curve arrows.  Those photos indicate clearly that those signs were readily observable in yellow and could have been observed at any time from your coming into that 300 metre straight section.

32The collision scene was located within the south-west bound lane.  There were no visible tyre marks leading to the rear of the Toyota to indicate any significant steering input or emergency braking by you.  There were tyre marks indicating emergency steering by the other person impacted, Mr Van Swol.

33The circumstances of how you got to be there were that on the morning you had been at Wilson's Promontory and been on a long walk.  You had left Wilson's Promontory and were the sole occupant in your vehicle.  It is clear that you drove into Leongatha and drove onto the Strzelecki Highway travelling north-east.  As I indicated to Mr Hore-Lacy I find it difficult to understand how that happened. 

34As you entered the left curve south-west of the Leongatha North Road, you failed to negotiate the curve.  You drove into the south-west bound lane and impacted the Mazda sedan which, as I have said, was travelling south.  The impact was clearly severe. The vehicles came to rest.

35You, it is acknowledged, assisted the occupants of the Mazda and the Holden.  You at that point gave various explanations about you thought there was an animal, there was an animal a kangaroo or wallaby, or whatever.  As I said there was a "no comment" record of interview and in the interview on 27 March you said that a wallaby had jumped out and you had swerved to miss it. 

36When police arrived at the scene they saw you using your mobile phone and then took possession of it.  You agreed that while you had been driving prior to this, coming from Wilson's Promontory, that you had held you phone to make and read text messages.  It is clear that on the way to Wilson's Promontory you had been driving along filming and using your phone.  You told police that before they had taken the phone from you and after the collision you had deleted some phone messages, but I do not operate on that basis, at least phone call logs because you said it would look bad for your girlfriend.  You also said in the record of interview that you were doing it so that it would not look bad for you in terms of allegations that you were on the phone at the time of the collision or anything along those lines.  That phone was analysed by the police and no deleted calls or text messages were recovered.  Those phones do have the ability to make iMessages as text messages and they are not recorded on call charge records.  No such messages were able to be retrieved and I can take that no further.

37When you did the second interview, you said that you had spoken to your girlfriend on the phone as you passed the Leongatha Football Ground and you said that that call had ended before you passed the industrial area on the Strzelecki Highway.  I note that by this time you and your family, they are understandably very concerned, had attended the scene and followed the route that you took. 

38That phone call would appear to have ended, if the records are accurate and no-one is suggesting they are not, at 4:32:06 and went for about 30 seconds.  The call directed by Telstra to the ambulance operator, by a person who had come across the accident and that is had not seen it, was at 4:33:38.  That is obviously a time lapse of some 90 seconds.  Police investigated the timeframes involved and the distances involved.  If what you were saying about that phone call was correct, it would have been 2 minutes 54 seconds to arrive at the collision scene.  There is no doubt that that phone call occurred much closer to the collision scene than you are conceding.

39You have maintained, until the plea, and then maintained after the plea that you swerved to miss an animal.  As I have indicated, I do not accept that, and indeed it was not suggested on your plea that I should.  It was said that your going onto the wrong side of the road was due to a momentary loss in concentration or a distraction. That is a very difficult proposition to accept.  You were on a significant stretch of road of some 300 metres where there was ample and almost alarming warning as to what was going to occur at the end of that stretch of road.  You went straight through the corner.  When you spoke to police, and it is a little bit difficult to interpret, but it would appear that you were saying to them that you had no memory of seeing the 60 kilometre advisory sign and that you were doing around about 90 kilometres.  It is almost impossible to avoid the conclusion that your lack of care in this situation had been occurring for longer than some split second.

40I certainly do not sentence on the basis that you were on the phone at the time, I could not do so.  As Mr Hore-Lacy quite candidly, in his normal way, said during the course of the plea, you would have to not be human not to suspect that that is what has occurred.  The circumstantial matters tend to point to that as does your deletion of the records and for the reasons that you stated.  I have no doubt that the family of Mr Pruin think that is what happened, but on the material before me I cannot sentence on that basis.  Indeed it would probably be culpable driving if the Crown could prove that.  In any event, the reason for your crossing onto the wrong side of the road in those circumstances is entirely within your mind and you, on my view of all this simply are not telling anybody.

41Matters in mitigation only have to be proved on the balance of probabilities but in this situation with all the circumstances such that I think that it was longer than some momentary lack of concentration.  You were almost a metre on the incorrect side of the road at the time of impact and it would seem clear from the material that you would have kept going onto the wrong side, it was just that the vehicle was in your road, if it can be put that bluntly.

42The driving in my view, on the material before me, cannot be said to be of low moral culpability, in the sense of there being other matters impacting upon you.  I think you are not telling us what really happened and I can just sentence on the basis of the Crown opening, that for whatever reason you were not watching the road and you killed a man, basically.

43The consequences, and this is important and always very important in a matter of dangerous driving causing death, are that you have devastated a family.  The family, or a number of them, have provided victim impact statements which, with great courage I might add, were read out in court.  I do not propose to read the victim impact statements out in their entirety, but I think it is important in these sentencing remarks that I read some small portions of them just to indicate the gravity of the consequences of what you did. 

44The wife of Mr Pruin, who was clearly a hardworking man and a loving and caring father, had this to say:

"Until the day I die, I will never be able to erase the image of him laying lifeless next to our car.  Gemma and I were able to go sit with him and I gave him one last cuddle.  I didn't want to leave him, but at that stage they had Izzie in the chopper so I had to leave him to say goodbye to her.  I will never share with him the joys of seeing our girls growing up, graduations, getting married or having children.  Their children will never meet their Pop.  Izzie," that is the youngest as I understand it, "was airlifted to the Children's Hospital and spent weeks in hospital with extremely severe injuries after she had been trapped in the car for about an hour pleading for us to help her.  As soon as I saw her in intensive care the next morning she asked where her dad was and I had to tell her that he had died.  There's quite a lot of things in my head that I don't think I'll ever really get over.  Her reaction to being told that her dad had died being one of them."

45I might interpolate there that one of the aspects of this that really concerns me is that Mr Pruen, as I understand the evidence, died on the side of the road, his daughter is in the car pleading for help, clearly seriously injured, and you are deleting phone calls to get rid of potential evidence.

46

"I feel absolutely alone and no amount of great family and friends can come anywhere near close to making up for what my daughters and I have lost.  I have been told that I will get over it one day, time heals and I will be happy again eventually, but I know that Uber died and in particular the way he died, that a part of me did as well."

47The next victim impact statement that was read was from his daughter, Kristy.  She said:

"This day this fatal crash occurred it took more than my father's life.  It left me at the age of 33 without a dad.  It left my children aged 11 and seven and five without a grandfather.  The grief and shock that we all went through was traumatising, no child should have to lay a parent to rest in this way.  Not a day goes by that I don't feel the gut wrenching pain of losing my father.  Not a day goes by that I don't wish I could hear his voice, give him a hug or tell him I love him again.  Not a day goes by that I don't wish it was all just a bad nightmare that I can wake up from.  Seeing my sister, Isabelle, in a hospital bed with multiple injuries from head to toe was a horrifying sight.  I'll never forget the sound of my innocent little sister's wail each time she would wake up and ask where Dad is and we'd have to tell her he's gone.  It was a sound that rips your heart out and a sound that still haunts me today."

48The victim impact statement of Gemma, 15 year old, said:

"When the crash happened, I was the least injured out of my family.  I felt so guilty about this I became physically sick and would uncontrollably vomit.  Knowing how I was okay and thinking about the damage to their bodies that the rest of my family had endured.  Except I was the most emotionally damaged.  I wished I would have been knocked out or unconscious so I would have to watch the crash happen and witness the horrific aftermath.  My body was okay, my mind was damaged beyond repair.  No-one 15 years of age should have to tell their 13 year old little sister that their dad has died.  I had to tell her this four separate times as she was on very heavy medication and always drifting in and out of consciousness and she would forget.  I had to watch her identical reaction four different times, screaming "No" and hysterically crying.  This crash has broken me, it has broken my family.  This crash has broken everything."

49They, Mr De Jong, are the consequences of what you did on 22 February 2014. 

50The submission on your behalf was put that a community corrections order of obviously significant duration with obviously a large amount of work hours would be sufficient to cover all the sentencing aspects of this matter. 

51As I have indicated, going through the circumstances of it, there are aspects which are very concerning, not only the prior history of your driving but the physical matters surrounding what occurred and your responses to it.  The offending has got to be obviously regarded as very serious.  It calls clearly for the application of general deterrence which is common in these matters and it is quite common in these matters for the accused not to have any prior convictions.

52In your situation with the driving record and then being intercepted speeding again a couple of months later, specific deterrence has to play a part as well.  Clearly there has to be denunciation and an appropriate punishment.

53The Crown position was that a community corrections order was simply not within range and, as I understood it, it was put all that forcibly a combination sentence, that is of gaol and a CCO would not be appropriate, is I think the word that was used. 

54I am not going to in this situation quote passages from the decision of Boulton.  Clearly the imposition of the capacity to impose community corrections orders has changed the landscape of sentencing.  Looking through the analysis by the Court of Appeal in Borg of matters of a similar nature, it is clear that to not be incarcerated in a situation such this requires pretty much exceptional circumstances.  It is an unusual matter indeed.  Indeed that is what I did in Borg and was told I was wrong.

55A number of witnesses gave evidence on your behalf and I take into account the matters personal to you.

56A report from Mr Jeffrey Cummins was tendered and he in fact gave sworn evidence.  It is clear, and I thought that your mum gave very open and very honest evidence about your background and your childhood, that you have had a very difficult childhood.  You are ADHD from an early age, you had difficulty with schooling, you had difficulty fitting into schools.  You would get into situations when she said that people would be invited to birthday parties but not you.  All this would appear to have been attributed largely to the difficulties you had suffered with that condition.  You had been put on Ritalin.  You ultimately went to a school which relied more on physical aspects of education than the intellectual ones and you would appear to have done a lot better in that scenario.

57You have a good work record.  From the time of leaving school at a relatively early age, you worked.  You have been working in recent times.  Your father described how you are maturing and how you are becoming a better worker, despite there having been difficulties obviously related to your childhood conditions in the work environment.  There has been no criticism of you insofar as work is concerned and attitude towards work is concerned.

58The report of Mr Cummins confirms the report of Dr Jarman about your circumstances, and I accept that unreservedly.  Those difficulties play no part in the moral culpability for this offending, but I think clearly they would make an active custodial sentence more difficult for you than a person who did not have such disabilities.  More importantly perhaps is the diagnosis by Mr Cummins of a post-traumatic stress disorder arising from this collision.  Clearly it arises from the collision and therefore plays no part in the moral culpability for the collision, but I accept in this situation that that would make a custodial sentence more difficult for you and take that into account.  That is in the terms of attracting the last two aspects of Verdins, that is more difficult in gaol and the potentiality of your condition worsening.

59The most important things I think that could be said for you came from the evidence relating to your work with young people.  The circumstances are that despite your difficulties as a young person you have been involved in a Sommers camp on a regular basis as a volunteer. 

60Mr Stephen Eastaugh gave evidence on your behalf and also quite openly that I found Mr Eastaugh a very open, honest and impressive witness.  He told me that you were a very valuable member of staff and that you had come back as a 12 year old having been there as a small child.  It is clear that in this scenario you may have difficulties keeping working with children certificates, all sorts of complications have come from it.  I take all those matters into account on your behalf.

61The prospects of your rehabilitation are pretty much up to you.  Insofar as re-offending is concerned, one would have thought that the impact of this would have been sufficient, but as I have indicated, and I am not going to argue with your counsel about it, there was another incident of speeding within a couple of months.  There has to be an awareness of those matters in terms of this overall proposition.

62I have taken into account all that material on your behalf.  I have taken into account the delay that has occurred and it is a significant one.  I have taken into account the evidence that has been given on your behalf.  In these situations family and friends feel desperate to assist in whatever way they can.  I have discussed with your counsel this morning the evidence about you being frightened to drive, where in fact there had been an apprehension of you for speeding within that timeframe.  I do not place anything sinister on that, simply that people are afraid of you being imprisoned and that is an understandable fear.

63What I have ultimately determined is that bearing in mind all the other decisions about this, is that this is a situation of dangerous driving causing death and dangerous driving causing serious injury, where anything short of a relatively significant period of custody would be, in my view, inadequate. 

64I have discussed that aspect of it with Mr Hore-Lacy during the plea. 
I understand the Crown position.  Mr Hore-Lacy's position was that a sentence of imprisonment could be within that two year period that is allowed by law and that is what I am going to do. 

65You have asked through your counsel for a community corrections order.  You have been assessed and found to be suitable and if you agree that is what I am going to do.  Yours might well be a situation where a minimum term of the same length might have been more appropriate.  That is what I have been asked to do and that is what I will do. 

66I make it clear so that the family of the deceased man and the severely injured young girl understand that a community corrections order takes the place in effect of a parole period and had there not been a community corrections order there would have been a head sentence significantly higher than the minimum term, but what will occur here is that in such a situation the custodial sentence will be served and then if he agrees a community corrections order will commence.  Accordingly, taking into account all those matters, as best as I can:

67On the charge in this situation of dangerous driving causing death, sentenced to be imprisoned for a period of 12 months.

68Dangerous driving causing serious injury, six months.

69Reckless endangerment, six months.

70In these circumstances I think the reckless endangerment can be totally concurrent.  However, there must be acknowledgment that more than one person suffered greatly in this and accordingly three months of the sentence imposed on Charge 2 will be served cumulatively on the sentence imposed upon Charge 1. 

71That gives an effective sentence of 15 months' imprisonment.  That will be then, if you agree, if you do not I will resentence, that will be followed by a community corrections order of four years, bearing in mind the custodial aspect I do not see any point in work hours.  The conditions of that will be supervision, which can be onerous in itself and as well as the mental aspects as referred to by
Mr Cummins.  It will be obviously as I said with conviction and will be over a period of four years and that is in effect in lieu of a non-parole period which would have been smaller than that. 

72Technically in a situation such as this the provisions of s.6AAA do not apply, but I think in these circumstances it is important that it be understood what the benefit of your plea of guilty was.  But for your plea of guilty, and that is after a trial and if you put the family through a trial, I would have sentenced you to be imprisoned for a period of four years with a minimum term of two and a half years. 

73In these circumstances you are young.  Your driving record does not fill me with confidence, but I think there has to be a situation where you are not to present a danger to the public for a period of time.  The minimum term for a licence cancellation is 18 months.  Bearing in mind the sentence that I have given you, I propose to cancel any licence you have to drive a motor vehicle and that cancellation will be for a period of three years, bearing in mind there is Court of Appeal authority on that.

74If that CCO can be prepared, if Mr De Jong is prepared to sign it.

75MR KOURIS:  Your Honour, can I just qualify the three years, is that commencing upon his release?

76HIS HONOUR:  The licence?

77MR KOURIS:  Yes.

78HIS HONOUR:  No, today, that is today.

79MR KOURIS:  From today?

80HIS HONOUR:  From today.  Yes, from today.

81MR KOURIS:  If it please Your Honour.

82HIS HONOUR:  There is no other orders I have to make?

83MR DOYLE:  No, Your Honour.

84HIS HONOUR:  Gentlemen?  There is no 464 or anything like that?

85MR KOURIS:  No.

86MR DOYLE:  No.

87HIS HONOUR:  All right.  All right, the community corrections order is made and handed down.  All right, thank you, gentlemen.

88(Community corrections order signed and acknowledged.)

‑ ‑ ‑