Director of Public Prosecutions v Hendy
[2022] VCC 963
•30 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-20-01344
Indictment No. L11448343.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMBERLY JANE HENDY |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 16 June 2022 | |
DATE OF SENTENCE: | 30 June 2022 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Hendy | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 963 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Esposito [2009] VSCA 277
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Erin Ramsay | |
| For the Offender | John Kelly SC |
HER HONOUR:
1Amberly Jane Hendy, you have pleaded guilty before me to two charges of dangerous driving causing death and one charge of dangerous driving causing serious injury. The facts underlying this offending are as follows. The charges arose from a collision between two cars, one driven by you, on the Goulburn Valley Highway at about 2.44pm on 6 September 2019. As a result of injuries sustained in the collision, your sister Eloise Rigby and her partner, Adam Boland, died at the scene. Your then four-year-old daughter survived, but with very serious injuries, including a traumatic brain injury.
2The car, a 2003 Holden Calais sedan, was owned by Mr Boland. Mr Boland, who was then thirty-nine, lived in Shepparton, while you lived in the township of Katunga, about a fifteen-minute drive away, with your husband and daughter. Your sister, Eloise, then aged twenty-three, also lived in Katunga with your parents but often stayed at Mr Boland’s home. On the evening of 5 September 2019, you, your daughter and Eloise arrived in Shepparton and spent the night at Mr Boland’s home. After attending to your daughter, you smoked cannabis with Mr Boland and your sister, and went to bed at about 2.00am. You got up at about 9.30am on 6 September and attended to your daughter. Throughout the morning and early afternoon, you smoked four bongs containing a mixture of cannabis and tobacco. As I understand it, you did not expect to drive that day, the plan being that after lunch, you, your daughter, and Eloise, would be driven home to Katunga by Mr Boland. He, however, had recently undergone a carpal tunnel operation, and decided his arm was too sore to drive, asking you to drive instead. Unfortunately, you agreed to do so. In the car, your sister was beside you in the front passenger seat, Mr Boland in the rear driver’s side passenger seat, and your daughter strapped into a child seat on the rear passenger side. You were all wearing seatbelts and you are the holder of a full Victorian driver’s licence.
3As you began driving in Shepparton, rain was falling, and the roads were wet. You drove north along the Goulburn Valley Highway towards Katunga, but the rain started getting heavier. At this stage, you were driving at 100 kilometres per hour, which was within the speed limit, with the cruise control activated. You tapped on the brakes to disengage the cruise control, but soon after this, a sudden intense hailstorm began. You tried to brake harder, but the rear of the car rotated in an anticlockwise direction and you over corrected and lost control, sliding into the southbound lane. There, you collided with a Kia Sorrento wagon being driven in the southbound lane of the Goulburn Valley Highway by Jane Borg. Ms Borg told police that the weather conditions changed, so that it began to rain very heavily very quickly, and that within seconds the rain changed to hail. She said she first saw the car driven by you about 50 metres away and saw that the car then appeared to rotate around, so that the driver’s side slid across the lane into her lane over the course of a few seconds. Despite taking evasive action, Ms Borg was unable to avoid a collision, and the front of her car collided with the passenger side of your car.
4Andrew Salau and his wife, Terri-Lee, driving behind Ms Borg’s vehicle, told police that the car driven by you looked like it had aquaplaned across the road in front of Ms Borg’s car, and noted that hail was still coming down at the time of the collision. Another witness, Rochelle Barbaro, who had been driving south on the Goulburn Valley Highway, stopped at the scene of the accident and approached you, at which time you were on a call to 000. You told Ms Barbaro that you did not know what had happened, that you had been smoking marijuana, but not that much, that you had killed them all, and that it was your brother-in-law’s car, and it had bald tyres.
5Another witness, Maureen Brown, who came across the accident about seven minutes after the collision, told police she saw thick, small ball-bearing-sized hail on the road, making it very difficult to stand and walk, and she nearly fell over. Other drivers stopped at the scene and multiple people, including yourself, called 000 and ultimately police, paramedics and fire-brigade members attended the scene.
6Mr Boland and Ms Rigby suffered multiple injuries and died at the scene.
7Your daughter suffered multiple life-threatening injuries and was flown by air ambulance to the Royal Children’s Hospital, undergoing surgery, and then being placed in intensive care for eight days, before being transferred to the general ward. She underwent a number of surgeries, ultimately spending about three months in both hospital and inpatient rehabilitation. The injuries she suffered included unconsciousness at the scene requiring resuscitation and a blood transfusion, skull and facial fractures, pelvic fractures, fractures of both lower legs, fractures of her left shin bone, liver lacerations, spleen laceration, muscle injury and a traumatic brain injury, leading to post-traumatic amnesia. Dr John Gall of the Victorian Forensic Paediatric Medical Service at The Royal Children’s hospital, gave his opinion that, without resuscitation at the scene, your daughter would have died, that she required several months of inpatient hospital care, and outpatient care some nine months post the accident.
8Ms Borg suffered pain to her chest, shoulders and neck, a blood nose and soreness through her pelvis and down her legs.
9Expert police examination of the collision scene found that, at the time of the collision, your vehicle was travelling between 39 and 53 kilometres per hour, and that your speed before losing control of the car may have been higher, but was still well under the speed limit. It was noted there was no evidence to suggest that speed was a factor in the collision. Due to a lack of tyre marks at the scene, experts were unable to explain why or how the collision occurred. Examination of the Calais Holden driven by you revealed that a back rear tyre of the car was worn down past the steel belts on the inner edges of the tread, exposing the nylon plies, and that about approximately half the tread face was missing. No mechanical faults, failures or conditions with the steering or suspension or brakes, which would have caused or contributed to the collision were detected.
10Officers from the Mechanical Investigation Unit determined that the suspect tyre was in extremely poor condition, required replacing, but had not suffered a catastrophic failure, although due to the lack of tread, the tyre would have been likely to contribute to a loss of control in wet-road conditions.
11Both Mr Boland and Ms Rigby were found to have high levels of THC, an active form of cannabis in their blood. A blood sample was also taken from you and found to contain a high level of THC. It is the prosecution’s position that, at the time of the collision, it was overcast, the road was wet and there was a significant localised hailstorm.
12You told police at the scene, in a conversation that was recorded, that as the rain started to get heavier, you touched the brakes to take the cruise off “because my dad always told me that”. You said:
“… and then it got heavier and bigger puddles, Adam’s car has bald tyres, so I braked more and then all of a sudden, we just started slipping and we started to move over the lane, the car was coming, I put my foot on the brake, I don’t know if your [sic] supposed to do that or not but I did and then we hit that car.”
13You told Leading Senior Constable David Cowley that you had last used cannabis two hours before.
14In a record of interview with police in December 2019, you said you were familiar with the Holden Calais, which you had driven five to six times previously, in the period your sister had been in a relationship with Mr Boland. You said you travelled along the Goulbourn Valley Highway between Shepparton and Katunga at least four out of every seven days. However, you did deny using the cruise control, smoking cannabis on the day of the collision, and denied there were any issues with the car.
15Originally, this matter was set down for a trial involving a charge of culpable driving, but ultimately, as a result of negotiations, a plea to the lesser charges of dangerous driving causing death and dangerous driving causing injury were negotiated and a plea entered on 18 March 2022, just prior to the commencement of the trial.
16The maximum penalty for dangerous driving causing death is ten years’ imprisonment. The maximum penalty for dangerous driving causing serious injury is five years’ imprisonment. The charge of dangerous driving causing death is a Category 2 offence, which means a court must impose a sentence of imprisonment unless an exception outlined in s5(2H) of the Sentencing Act 1991 applies
Personal Background
17I now turn to your personal circumstances. You are thirty-one years of age, you were twenty-eight at the time of this offending. You have no previous criminal history, nor do you have any history involving driving offences. You are the elder of two children born to your parents – your sister Eloise was five years younger than you. Your father is a retired truck driver and your mother works in aged care. You have a half-sister, Jess, aged thirty-nine, who is your father’s daughter, and you are close to her. You grew up in the Seymour, Nathalia and Katunga areas, your family moving to Katunga when you were in around Grade 3. You completed Year 11 at Nathalia High School, at which time you had formed a relationship with your first boyfriend. You were sixteen and he was thirty-two, and your parents did not agree. Eventually, you left home in order to live with him, but the relationship was not a happy one, involving escalating coercive physical, sexual and psychological abuse. In about 2010, you moved to Melbourne with your boyfriend and enrolled in a Certificate II in Business Management, in which you achieved High Distinction grades. You never revealed the abuse to your parents and moved to Queensland with your boyfriend when he obtained a job there but fortunately it would seem you decided to leave the relationship realising how isolated you had become from family and friends. On return to Victoria you worked in marketing, which you did not enjoy, then worked largely in hospitality. I accept you went on to compile a good work history.
18You began your relationship with your husband, Daniel, when you were twenty-three. He, too, lived in Katunga, across the road from your family home, and you had known him since your childhood, and were good friends with his sister. He was aged thirty-six when you developed a relationship. He conducts his own business, Dan Hendy Land Forming, and has sole custody of two sons, aged eleven and fourteen. Your daughter was born to you and Dan when you were twenty-four, and the two of you married in 2016. Your told psychologist Gina Cidoni whose report was tendered on the plea, that this had been a good relationship. However since the accident you have focussed solely on your daughter, living in hospital with her for three months, then attending on a daily basis to her ongoing mental and physical injuries. This placed a strain on your relationship and you are currently separated, although living near each other at Katunga, he in his house around the corner from your parents’ home where you live with your daughter. You remain on good terms, see each other frequently and it is hoped you may re-unite.
19You and your sister, Eloise, were extremely close. Eloise and your daughter also enjoyed a very close relationship. In a letter to the Court, your mother, Tracey, wrote:
“Even though there was five years difference in age you would have sworn they were twins ….. usually where one was the other two were.”
20You, yourself, in a letter to the Court, described Eloise as your soulmate and best friend. You wrote:
“We had a close bond from the start, there’s not a memory that I have that doesn’t include her. Although we were 5 years apart, it felt like we were closer in age than that, almost twins.”
21In that letter, you also described how, after he became involved with your sister, Mr Boland also became a “best friend” and you also described how you, your husband, Eloise, Adam and your daughter “did everything together”. You described how the five of you went camping together, went shopping together, had family teas, and also described the close relationship between your daughter and Mr Boland. You wrote:
“… they mucked around all the time, they played games outside, they rode motorbikes together, they did everything together.”
22When she was twenty-two, your sister had two seizures in twelve hours and was ultimately diagnosed with epilepsy and multiple sclerosis. Your mother, in her letter to the Court, described the family’s devastation at the diagnosis and how protective you then became of your sister. Apparently Eloise increasingly turned to cannabis use to deal with the symptoms of her MS and seizures and in that context you began smoking it with her. Since the collision you have entirely ceased any cannabis use. Until then you had had no issues with either drugs or alcohol.
23According to Ms Cidoni, you now experience “ongoing shame and intractable guilt about what had happened” and are “struggling to cope with the loss of lives, including her sister. She reported her life will never be the same again”.
24In relation to the events of that day, your counsel, Mr Kelly SC, told the Court that Mr Boland asked you to drive about twenty minutes before you left, and that you drove because you just wanted to get home, the road was extremely familiar to you and it involved about a fifteen-minute journey. The collision occurred in the context of the sudden extreme hailstorm.
25I received Victim Impact Statements from Mr Boland’s mother, Anita Boland, and his daughter, Jenna Boland. In her generous and moving Victim Impact Statement, Mrs Boland said:
“…Only two people died that day but the four of them were always together and were often at my home. Eloise and Amberley [sic] were very close and spoke on video calls every day … .”
26She stated:
“The weather was hideous that day and I live with guilt and wonder how things might have been different if I suggested they delay their trip.”
27She wrote:
“I am a mother, grandmother and great grandmother.... I truly believe that Amberley would be feeling punished everyday with her own loss of her sister and her mate Adam, as well as the harm she caused to her daughter that day. But I also know my son well, it was his car that she was driving and it just as well could have been him driving that day. I hope that the trauma Amberley would be going through each day is taken into account with her sentence.”
28Jenna Boland wrote of her great sadness at the loss of her father, and the fact that he would not be there to give she or her sisters away when they marry, that her father will never know his grandchildren, that her younger brother will miss out on what his father could have taught him, stating, “there are so many little things and moments in my and my children's lives that I think about in the future that my dad now won't be a part of”.
29You, yourself, in your letter to the Court wrote:
“My life without Eloise & Adam is a constant heartache, my hand reaches for them during hard times, but I know they are not here, my heart longs for them and aches, my ears listen for Eloise's voice & Adam's advice, for just one more laugh, for just one more joke, for just one more conversation with them both, this life is almost impossible living without them … .”
30You continue to enjoy a close relationship with Mrs Boland, although in her Victim Impact Statement she mourned the fact she sees much less of you – and this has much to do with your ongoing care of your daughter, which I will refer to shortly – and you continue to enjoy a close relationship with Mr Boland’s sisters. You concluded your letter stating:
“I regret the day of accident beyond words, beyond measure, I've wished upon everything that I could go back to that day and change everything, to rethink every decision made that day, to change the outcome. … .”
31You also stated:
“I live every day with sorrow, I live everyday begging for forgiveness, I live everyday praying that [my daughter][1] will know how sorry I am that her aunty & her uncle are gone, how sorry I am for the injuries she received & how sorry I am that I ever put her in danger.”
[1]Name omitted.
32Following psychological testing, Ms Cidoni diagnosed you as now suffering a Major Depressive Disorder and a Post-Traumatic Stress Disorder, presenting with symptoms of low mood, feelings of worthlessness, helplessness, fear, worry, anxiety and, at times, panic. She said you suffered impacted sleep and appetite, and continue to suffer frequent nightmares and flashbacks, which are triggered by reminders such as rain and riding in cars, stating, “she reported hearing her sister screaming and this haunts her many times a week”. Ms Cidoni assessed your risk of re-offending as low, based on your absence of any prior criminal history, positive family support, and she described you as appearing sincere and genuine, in your expression of “remorse for the victims and affected family members and remains unable to come to terms with the deaths and serious injury sustained by her daughter”.
Effect on Your Daughter
33The effects of the accident on your daughter continue to remain serious and constant. I received a number of reports from professionals still involved in her treatment. Clinical psychologist, Genevieve McMahon, in her report dated 19 April 2022, wrote that she has sustained a severe traumatic brain injury which has:
“… resulted in cognitive changes which in turn impact her psychological well-being through her reduced capacity to understand and respond to information, which in turn impacts how well she regulates her behaviour and emotions. Her brain injury and the physical injuries also result in greater vulnerability to cognitive and physical fatigue which further compromise her capacity to tolerate stress and manage her behaviour at any particular time.”
34This is a situation which continues, notwithstanding that the accident occurred around two-and-a-half years ago. Essentially, Ms McMahon wrote that your daughter suffers from acute and chronic stress, grief and loss relating to Eloise, to whom she was very close, and has developed a Separation Anxiety Disorder. Ms McMahon stated that her relationship with you is:
“… characterised by high levels of anxiety for her mother’s well-being and difficulty being apart from her mother for any length of time, as reflected in highly dysregulated emotions and behaviour”.
35She has also diagnosed your daughter as suffering from a Post-Traumatic Stress Disorder, symptoms of which are “concentration difficulties, sleep disturbance and tantrums, although these overlap with symptoms of brain injury and separation anxiety”. She has hypervigilance around car travel, particularly in the rain, and has extreme anxiety about you or other family members being injured or killed in a car accident. She described your daughter’s behaviour as controlling and obsessive, they being related to these fears, “such as repeatedly checking what time family members are expected home, and phoning repeatedly if her mother is later than expected returning home”.
36During the plea, Mr Kelly noted that you and your parents had travelled from Shepparton to Melbourne for the plea, during which time your daughter rang you fifteen times. Other manifestations of this psychological condition noted by Ms McMahon were frequent tantrums, crying and screaming and clinging to you, her mother, which can be evoked if she is aware you are going somewhere without her, needing to know where you are at all times, wanting you in view whenever possible, calling frequently on the mobile phone if you are later than expected, repeated questions and the need for repeated reassurance about any changes or events that might be coming up, difficulty managing anticipated changes, such as having a new class teacher at the start of the year, frequent concern about injury or death of family members, sleeping difficulties, including difficulty settling to sleep unless you are in her sight or hearing and reluctance to stay overnight at her father’s home, due to wanting to be with you. Ms McMahon noted that your daughter demonstrated a pattern frequently seen in children with brain injury “in which she works hard to hold her in emotions while at school but decompensates behaviourally and emotionally when at home.” She described you as an attentive and caring mother, who is very concerned about her daughter’s well-being. Ms McMahon stated in her report that while she had made a good recovery from the brain injury she sustained in the accident, and does not have a seizure disorder, your daughter’s progress will:
“… need to be monitored closely over time given the young age at which her injury occurred. Although she is mostly functioning within the expected range for her age at present on cognitive and academic measures, there is a risk that she may fall relatively further behind her peers as [ sic] moves towards adolescence and adulthood. This is due to the cumulative impact of brain injury related factors on her capacity to learn and engage in formal education.”
37Ms McMahon described having “consistent and easily accessible emotional support from her mother” as essential for your daughter] to perform at her best academically and socially”.
38Your daughter will have to undergo to surgical interventions for the foreseeable future. She faces operations for removal of a bone spur and insertion of a growth plate, as well as plastic surgery. She is currently supported by an occupational therapist and has recently received approval for an integration aide to provide additional support every morning at school. Her father, Daniel Hendy wrote:
“… If Amberly were to not be in [my daughter’s][2] life for any length of time it would take profound negative effect on my daughter’s life, mental health and all-round wellbeing and understanding of life.”
[2]Name omitted.
39He wrote that if you are gone for a period of six hours while he is caring for her, she needs to Facetime you three times in that period “with tears and anxiety asking when are you coming back mum?” He wrote that at times you have had to come and get your daughter, as he has not been able to settle her, stating:
“I have no idea how I would manage [her][3] separation anxiety from Amberly if she were not around and not contactable at any stage of the day/night. I don't manage [her][4] behaviour most times, I almost always need Amberly to help.”
[3]Name omitted.
[4]Name omitted.
40Ms McMahon also noted that you are primarily responsible for enforcing boundaries and managing the controlling behaviour and frequent tantrums which your daughter has developed since the accident. It was Ms McMahon’s view that she would be at high risk of deterioration if you were incarcerated.
Submissions
41The prosecutor, Ms Ramsay, told the Court the dangerous driving in your case comprised three elements. Firstly, driving with a level of THC in your bloodstream capable of causing impairment where you would lack control. Secondly, driving with three passengers in wet and icy conditions on a highway and, thirdly knowingly driving a car which was an unroadworthy vehicle, in wet and icy conditions.
42Ms Ramsay conceded that the prosecution could not say that you were impaired by the cannabis you had ingested, but that it was simply dangerous for you to get into a car and drive in that condition, and in those conditions that existed on 6 September. She said there was no evidence of you driving erratically or dangerously prior to the time of the collision, a feature often seen in cases of this kind. She conceded the Crown could not contend the aggravating feature that your driving demonstrated that the cannabis, as she put it “was at work”.
43Mr Kelly also pointed out that in cross-examination at the committal hearing, MICU accident reconstructionist, Dr Detective Sergeant Hay, was unable to explain how or why the collision occurred, or exclude hail as a possible cause, or to say what contribution the partially-bald driver’s side rear tyre may have had on the collision. Police mechanic, Senior Constable Gardiner, also gave evidence at the committal he was unable to find any mechanical faults which would have contributed to the collision, and noted that while the driver’s side rear tyre was in extremely poor condition and required replacing, it had not suffered a catastrophic failure, but due to the lack of tread, would have been likely to have contributed to the loss of traction in wet road conditions.
44As I have said, ordinarily in cases of this kind, as the legislation makes clear, persons facing the charge of dangerous driving causing death can only be expected to be dealt with by a term of imprisonment to be immediately served. Section 5(2H) of the Sentencing Act, as I have said, states that a term of imprisonment must be imposed for the charge of dangerous driving causing death unless:
“(e)there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).”
In other words, a court must order a term of imprisonment unless there are “substantial and compelling circumstances that are exceptional and rare”.
45Those circumstances can be established where it is demonstrated to a court that the imprisonment of an offender will result in exceptional hardship to an affected family member. This standard of exceptional hardship is at law is extremely high and rarely reached. As Ms Ramsay stated, “It is only in the exceptional case where the plea for mercy is seen as irresistible, that family hardship can be taken into account.” She referred to the words of his Honour, Mr Justice Nettle JA (as he then was) in R v Esposito [2009] VSCA 277, that the situation must be so highly exceptional that it would be, in effect, inhuman not to apply the principle. In this case, in what I regard as an extremely fair response by the prosecution, Ms Ramsay submitted your daughter’s extreme reliance on you due to the ongoing severe physical and mental injuries caused by the collision, do reach this standard. In other words, the prosecution accepts that if you were gaoled and unable to care for her, the effect on your daughter would be so calamitous that her that the legal threshold of exceptional hardship is reached.
Conclusions
46I agree that this is one of those rare cases. Ordinarily, in cases of this kind, courts must regard general deterrence and denunciation as the primary sentencing purposes and give less weight to an offender’s personal circumstances. Sometimes even when exceptional hardship is established a court may still decide gaol is warranted but impose a lesser sentence. Here however it is agreed that in the circumstances of this case, this is not necessary and a non-custodial disposition such as a Community Corrections Order would be appropriate. In making this decision I am comforted by the fact that this is the only time you have ever offended so that protection of the community is not an issue I must deal with.
47It is also clear, although this is often the case in driving offending that causes death or injury to family or friends, by your own offending you have suffered considerable extra-curial punishment. By this I mean the punishment you have already received before being punished by a court - the loss of a beloved sister and her partner, the grief and distress caused to your parents, the serious injuries to the daughter you clearly love, and their effects which you now deal with on a daily basis, and which are likely to continue into the foreseeable future.
48As has been said by courts many times, there must always be a place in sentencing, for the exercise of mercy where a judge’s principles are reasonably excited by the circumstances of a case, and I emphasise “reasonably. I am satisfied that your daughter’s situation means this is one of those cases.
49In all the circumstances, I am satisfied that dealing with you by way of a non-custodial disposition is appropriate in this case. I have, therefore, had you assessed for suitability for placement on a Community Correction Order. Corrections assessed you as a low risk of re-offending and found you suitable for the order. The Community Correction Order will be a long order to mark the seriousness of the offending and will contain a heavy load of unpaid community work. It will also contain a condition that you undergo treatment for mental health difficulties. Unsurprisingly the trauma of the collision has led you to develop serious mental health difficulties including major depression and ongoing grief and mental anguish which need attention. Your GP has placed you on an anti- depressant but you have not yet received any counselling. In my view appropriate mental health treatment is especially important if you are to continue to effectively care for your daughter’s many needs in the years to come. Although you report ceasing cannabis use, for the sake of completeness I will also order drug treatment which can be ceased should there ultimately prove not to be a need for it. The order will be imposed on an aggregate basis for all three charges.
50The Community Correction Order will last for four years. While on the order you must not commit an offence punishable by imprisonment. You must report to the office of Corrections within two working days of the making of this order. You must report to and receive visits from the Community Corrections Office. You must report any change of address or employment within 48 hours of making that change. You may not leave Victoria without the permission of the Community Corrections Office. You must obey all lawful directions of the Community Corrections Office.
51I will also order the following special conditions. You must complete 400 hours of Unpaid community Work. You must undergo assessment and treatment for mental difficulties. You must undergo assessment and treatment for drug use difficulties.
52Your licence is cancelled and you will be disqualified from obtaining a licence for 18 months. This loss of licence for a minimum is of 18 months is legislatively required. I am ordering the minimum disqualification because of your previous unblemished driving record and because of the significant difficulty it will I am satisfied it will cause in the care of your daughter.
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