Director of Public Prosecutions v Lee
[2016] VCC 1647
•7 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00842
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN LEE |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2016 | |
DATE OF SENTENCE: | 7 November 2016 | |
CASE MAY BE CITED AS: | DPP v Lee | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1647 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr R. Martini | Rainer Martini & Associates |
HER HONOUR:
1 Benjamin Lee, you have pleaded guilty to one charge of dangerous driving causing death, and one charge of possession of a drug of dependence. The maximum penalty applicable to the charge of dangerous driving causing death is ten years' imprisonment and the maximum penalty applicable to the charge of possessing a drug of dependence is one years' imprisonment.
2 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed extensively during your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing. I turn to a brief summary of your offending.
3 The deceased, Qurban Ali, was 39 years of age at the time of his death. Approximately four years prior, he had migrated to Australia from Afghanistan and was a permanent resident. He was in the process of sponsoring his wife and four children, between the ages of 13 and 6 years to come to Australia.
4 Mr Ali, on Saturday 12 September 2015, was driving from Eumemmering to work as a tiler in Mount Eliza in his green Ford Futura station wagon.
5 At approximately 7.30 am, Mr Ali turned right from the Princes Highway onto the on-ramp to the South Gippsland Freeway to travel along the freeway to Mount Eliza. At the commencement of the on-ramp, there were two lanes for vehicles driving onto the freeway. Towards the bottom of the on-ramp, the two lanes merge into one. Photographs were produced to me of the collision scene (Exhibit B).
6 Where the ramp narrows to a single lane, there is an intermittent traffic control, allowing one vehicle at a time to pass through, merging onto the freeway, but it was not operating at the time.
7
Mr Ali followed a silver Toyota Camry sedan driven by Marzia Rahimi down the on-ramp. As the Camry approached the section of the roadway where the
on-ramp merges with the freeway, it slowed to almost stationary or stationary. There are two lanes for travelling in a southerly direction along the South Gippsland Freeway. The single lane for traffic travelling down the on-ramp continued for some distance beyond the point of impact, before traffic had to merge with traffic in the left hand lane of the freeway. It is not clear why the Camry slowed down to the extent it did.
8 Shortly after Mr Ali entered the on-ramp from the Princes Highway, you turned left onto the on-ramp from the Princes Highway travelling south along the South Gippsland Freeway.
9
On this morning you were working for Centrix Premix Concrete as a truck driver, driving a 2013 loaded freightliner cement mixer. As you drove down the
on-ramp, you accelerated to a speed of between 82 and 90 kilometres per hour. You did not see Mr Ali’s Ford Falcon station wagon or the silver Camry until it was too late to avoid crashing into the rear of Mr Ali’s vehicle.
10 The force of the impact caused the front of Mr Ali’s vehicle to collide with the rear of the Camry then rotate, so it came to rest facing north in the merging lane. The front and rear of his vehicle was extensively damaged. The force of the secondary impact between Mr Ali’s vehicle and the Camry caused the Camry to also rotate and come to rest in the left hand lane facing north and in front of the cement mixer.
11 After the collision, other motorists stopped to offer assistance and call emergency services. The force of the collision caused significant intrusion into the driver’s cabin of Mr Ali’s vehicle, to the point that it was not recognisable as a station wagon. He was trapped in his vehicle when the ambulance arrived and had to be cut free. Mr Ali was unconscious, having sustained severe chest injuries, but still alive. He was treated by ambulance officers at the scene before being taken to Dandenong District Hospital, where he was pronounced deceased at 8.57 am.
12 At the time of the collision, the weather was fine, road surface dry and in excellent condition and visibility excellent. I discussed with your counsel your differing description to Mr Cummins that the road was wet. The speed limit for that section of the freeway was 100 kilometres per hour.
13 From the data collected at the collision scene, investigator Dr Janelle Mehegan prepared a collision reconstruction report.
14 Dr Mehegan concluded that the cement mixer driven by you did not commence to skid until about 3.7 metres prior to the impact with the Ford and that it skidded for about 54.7 metres. When the cement mixer first commenced to skid, it was travelling at between 82 and 90 kilometres per hour. It was likely you braked at least .6 seconds or 15 metres prior to the commencement of the visible skid mark, and first perceived the vehicles ahead at about 2.1 seconds or 52.5 metres prior to the commencement of the visible skid marks.
15 In December 2015, investigators also performed a timed test driving a police vehicle at the scene from the top of the ramp to accelerating to a speed of approximately 90 to 100 kilometres per hour at the point of impact. The journey took about 15 seconds and the distance travelled about 280 metres.
16
Constable Williams, the first police officer at the scene, spoke to you. At the scene, you said you had entered the freeway and looked down "for one second" to tune the radio, and when you looked up you saw the traffic was stationary. You slammed on the brakes but it was too late and you collided into the rear of the vehicle in front. You returned a preliminary blood breath test reading
of .00%.
17 You were taken Narre Warren Police Station for a record of interview. Just prior to the collision, you said you had reloaded your truck with concrete and were on your second run for the morning. As you came down the ramp, you looked down, checked your speedo, did a head check and took a sip of your milk drink. When you looked up it was too late, you said, because the cars in front had stopped. You described the traffic that morning as “just ordinary Saturday morning traffic”. You said you were doing about 70 to 80 kilometres per hour travelling down the on-ramp and that was the first time you noticed the cars you had collided with were stationary in front of you.
18 Police seized your mobile phone and examination of it showed that it was not in use at the time of the collision. The police did, however, discover a small plastic bag in the rear of the phone that contained amphetamine.
19 You were re-interviewed by police on 18 January 2016 about that plastic bag and its contents and said you had been given it by someone at a hotel about a month before the collision. I discussed Mr Cummins’ reference to you stating you got it at a "party" with your counsel. You said you had no intention of using it.
20 At that interview, when asked about a conversation with Constable Williams at the scene, you said you could not recall telling that officer you had been tuning your radio before the collision and that you did not have a recollection of tuning your radio before the collision. You confirmed that just prior to the collision, you checked your speedo, did a head check, took a sip of milk, before looking up and seeing the stationary cars in front of you.
21 Mechanical examination of the three vehicles involved in the collision showed there was no mechanical fault to any vehicle which could have caused or contributed to the collision.
22 You have pleaded guilty to these two charges and you are entitled to have that taken into account in your favour and I do so. The community, by your pleas of guilty, has been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. Further, I take it into account you have pleaded guilty at the earliest opportunity to this offending and that is also relevant in mitigation of sentence. In the circumstances, I am also prepared to accept your plea of guilty indicates remorse for your offending and I accept you have also expressed remorse for it to others.
23 It was urged, and I note, there is no suggestion of alcohol or illicit drugs having been consumed by you, nor of speeding, nor having an overweight vehicle, nor mechanical fault or tiredness. And of course, whilst that is all to your credit and distinguishes your offending from many such offences before this court, there was, it seems, nothing to prevent you from concentrating on the road and observing driving conditions.
24 I accept you remained at the collision scene and were co-operative with police in their investigations.
25 Your counsel, Mr Martini, referred to his written outline of submissions prepared for your plea, dated 24 October 2016 (Exhibit 1).
26 At the time of sentence you are 35 years of age.
27 You have a prior criminal history. You have previously appeared at Ringwood Magistrates’ Court on 16 January 2003 on two charges of criminal damage and were placed on a community corrections order. It would appear you completed that order without incident.
28 In 2002, you were before the Horsham Magistrates’ Court on two charges of resisting police, for which you were placed on an undertaking, subsequently breached and on 30 October 2002, convicted for that offending and you were also fined an aggregate of $500.
29 You also admitted appearances at Horsham Magistrates’ Court on 27 February 2002 and on 5 June 2002, for the offence of making unnecessary noise or smoke. At the first appearance, you were fined $200 and your licence cancelled for six months and the second appearance, fined $100 and your licence suspended for a period of nine weeks.
30 Mr Martini referred to what he, in essence, described as a "good driving history". In response, the prosecutor, Mr Brown, referred to a number of other driving offences dealt with by infringement notices, which I have heard about this morning and to which I shall later refer.
31 I accept that your criminal record is not extensive and of course there is nothing for the offending of the seriousness of the type that is before me. I also note, your driving priors are also limited, but there is that concerning 17 December 2014 incident in the same truck.
32
You have accepted, for the purposes of your plea, that you failed to keep
a proper lookout on this day. The results, you acknowledged, were tragic and indeed they were.
33 Mr Martini acknowledged the seriousness and tragedy of your offending, in particular that a man had died and left a family greatly adversely impacted upon by his death. As is so often the case of fatalities through road collisions, the impact is upon, not only the deceased’s family, but also on the accused’s family. However, as I discussed with Mr Martini, determination of the appropriate sentence must be based upon all relevant sentencing principles, and taking into account all matters relevant to your offending, and all matters in mitigation of your sentence, not by emotion. Any sentence the court imposes will, I have no doubt for Mr Ali’s family, never be enough
34 You accept, according to Mr Martini, your inattention resulted in the collision. He urged that any differences in your account to the police for this collision, such as reference to the radio, as opposed to the reasons proffered in your record of interview, was the result of shock. You still did not recall mentioning adjusting the radio when spoken to by police at the scene.
35 Your counsel submitted you had failed to anticipate that other vehicles entering the freeway would stop and/or slow down, in particular with "Saturday morning traffic" and with the intermittent traffic lights not necessary at that stage. However, as I am sure you are aware, in a laden truck as a driver on the road, you can never anticipate the actions of others. Drivers therefore must always be alert. You, in particular, as I discussed with counsel, were driving a heavy vehicle loaded with cement.
36 Your counsel directed his submissions to classification of your moral culpability and referred me to authorities DPP v Ross[1], a decision of his Honour Judge Lacava, with reference within to R v Whyte[2] and R v Jurisic[3].
[1] (2014) VCC 1000
[2] (2002) 55 NSWLR 252
[3] (1998) 45 NSWLR 209
37 I discussed the classification of your moral culpability at great length with your counsel and the transcript will reveal that discussion.
38 Mr Martini ultimately urged your offending, whilst not at the lowest end of the spectrum for offending encompassed by this charge, fell towards the lower end, having occurred, he urged, over a matter of a few seconds. You were, however, he conceded (and as you acknowledged in your record of interview), aware of the significance of driving a heavy vehicle and the responsibility of that. You were also aware of another incident the day prior regarding a collision and another truck, also discussed with Mr Martini. Mr Martini conceded it was difficult to disagree with the proposition that on this occasion you were “somewhat complacent” with your driving.
39 I discussed with Mr Martini, having had the benefit of early filing of his written submissions and the opportunity to read a number of authorities prior to your plea hearing, the need for me to assess your moral culpability, mindful of authorities since those referred to by Mr Martini in his written submissions. In particular, I discussed at some length Stephens v R[4], and I read many parts of that decision into the transcript and discussed them with your counsel.
[4] [2016] VSCA 121
40
In my opinion, your offending is more appropriately classified as "closer to
mid-range".
41 In so concluding, I note the following, discussed at some length during your plea hearing:
(1)You were driving a truck, specifically a loaded concrete mixer. A number of authorities have referred to the responsibility upon those driving heavy trucks and of the need for extra care and the need to pay attention to the road, see DPP v Jansen[5], and reference also to "heavy vehicle" in Halket v The Queen[6]).
[5] (2011) 31 VR 222
[6] [2016] VSCA 221
(2)Your offending did not involve just a "glance" at the speedo of your truck as you progressed along the on-ramp, but also sipping milk from
a carton/bottle that you had previously managed to open whilst driving as you were about to turn onto the on-ramp, in other words, the latter just a few seconds prior to this collision occurring.
(3)You also used one hand to grab the milk carton/bottle and then to sip the drink. You did not have both hands on the wheel when driving the laden cement truck.
(4)You looked at your speedometer, also looked at traffic to your right as you were proposing to enter the freeway, but did not look at the traffic in front of you, in order to avoid the collision, or note the movements of the traffic in your direct path of travel.
(5)The reconstruction concluded it was 15 seconds approximately to the collision site from the top of the ramp. You had 15 seconds to see the cars on the on-ramp. There was a significant number of seconds when you were simply not looking where you were driving.
(6)I also accept the prosecution submission relevant to your moral culpability, you were aware of the likelihood of traffic on the on-ramp, albeit the traffic was described by many as "relatively light". You would, however, have expected the possibility of cars being present.
42 Mr Martini described your driving and offending in particular, that could be described as “momentary inattention”. I disagree that it was “momentary”, rather was a significant period of time, albeit not a great period of time and was also over a significant distance, although not as lengthy as in some other cases that have been before this court.
43 I also accept, as I have stated, that there were a number of aggravating features absent in your driving and I discussed those with your counsel. In that regard, I also referred to the decision in Stephens, see paragraph 23, in which the court cautioned that those were not a "mere checklist" citing Jurisic and revised in Whyte. Nor, the court said, was any "list" intended to be exhaustive (paragraph 25), in which the court stated, both dangerousness and moral culpability fell to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender.
44 As I say, I discussed with Mr Martini the decisions of Ross, Whyte, Jurisic and Stephens and the recent decision of Halket[7].
[7] [2016] VSCA 221
45 In Stephens the court referred to Harrison[8]
[8] [2015] VSCA 349, paragraph 40
“The court’s reasoning in Harrison in relation to negligently causing serious injury"
and I am aware that is not your charge,
"in the context of driving, has equal force with respect to the sentencing of offenders for the offence of dangerous driving causing death.”
46 And further, the court in Stephens stated:
“To the extent that there should be, (as was held in Harrison), an uplifting of current sentencing practice for negligently causing serious injury by driving"
again I note, not the charge,
"there should be a similar uplifting of current sentencing practices, but for dangerous driving causing death.” [43].
47 I also discussed with your counsel the increase in penalty for the offence of dangerous driving causing death, from five to ten years in 2008, reflecting the seriousness with which Parliament regards such offending.
48 Whilst I accept there may be cases, following the statements from the Court of Appeal in Stephens and others, where it may be appropriate to impose a community corrections order for the offence of dangerous driving causing death. It is a matter ultimately for me to determine whether or not your offending and taking into account all the other relevant considerations, reflects a level of culpability which would make such a disposition appropriate or not.
49 A number of documents were tendered on your behalf. Documentation from Gallagher Bassett Workers Compensation Victoria Pty Ltd, referrable to your claim for workers compensation as a result of this collision.
50 There was also a report from Mr Jeffrey Cummins, Clinical and Forensic Psychologist, dated 21 October 2016, who assessed you at his rooms on 22 September 2016.
51 In that report, he made reference to your current domestic situation with a partner and children living in San Remo. You have a 9 year old son and also a step-daughter.
52 Your parents separated when you were a baby. Your father lives in Queensland and works as a truck driver. You described him as "supportive", and that you remained very close to him. You have two half-sisters, however had limited contact with them. Your contact with your mother, it appears, has been minimal over the past four years.
53 You attended Horsham West Primary School and Jung Primary School, then Horsham Secondary School and Moorabbin Secondary College, completing Year 10. At age 16, you did nine months of a welding traineeship.
54 You then had work in various forms of employment, including as a brickies’ labourer in Horsham, in general maintenance also at the Horsham Hospital and as a floor hand at an aluminium wholesaling company in the concreting industry and in the past approximately one and a half years up to the collision, driving a cement mixer for Central Premix. You had not worked since this collision, stating anxiety and agitation.
55 You have been diagnosed with post-traumatic stress disorder (PTSD) following the collision and had been referred to a psychiatrist or psychologist in Traralgon. Apparently you were taking Lexapro and Seroquel. You told Mr Cummins your sleeping was "terrible" and that you dreamt most nights.
56 In brief, you said you had not been the subject of childhood abuse, nor gambling, nor chronic physical or medical surgery or condition, and nor abuse of any drugs.
57 Reference was made to your partner, Ms Larissa Shaw, with whom you had been in a relationship for about 12 years. You described it as a "close and positive" relationship.
58 I note a number of persons present at court to support you during your hearing.
59
You described yourself as only ever being a social drinker of alcohol. Between 15 and your early-20s, you were a frequent smoker of cannabis, however ceased that after meeting Ms Shaw. You said you had never experimented with any other illicit drugs. You said the amphetamines in your possession (Charge 2), were given to you at a party and you had no intention of using it.
I note, however, you said you had kept it for a month and after putting it in your pocket when given it, you at some later stage transferred it to the back of your phone.
60 You did not wish to talk about your offending with Mr Cummins, although said you believed you collided into the rear of the car because the two cars in front of you stopped and your cement mixer skidded on the wet road.
61 You expressed remorse to Mr Cummins for causing the death of Mr Ali.
62 Reference was made within the report to your personality testing (paragraphs 27 and 28). Self-reporting questionnaires indicated you were currently feeling severely depressed, anxious and stressed.
63 You presented as of average intelligence.
64 You described disturbed sleep with frequent nightmares and dreams about the collision, of having a phobia of driving cars and also of being a passenger in a vehicle.
65 In the opinion of Mr Cummins, you had developed PTSD in response to the collision and death of Mr Ali. I note, in Mr Cummins’ report, he would anticipate upon incarceration, that your mental health would deteriorate. I advised the authorities of that concern when you were remanded and have taken that also into account when sentencing you, consistent with general sentencing principles, referrable to your time in custody being more difficult for you than prisoners without such issues.
66 There was correspondence from Main Surgery, San Remo Medical Clinic, printed on 1 August 2016, listing your medication at that time of Diazepam, Lexapro and Seroquel. It seems on the day of this collision, you had also taken some of your wife’s prescribed medication. I stress, I am aware that this had no impact upon your driving at the time of the collision, merely to say it is obviously preferable you take medication only prescribed for you.
67 Also before me was a reference from your partner, Larissa Shaw, dated
23 October 2016. She described you as a hard worker, a loving father and her best friend. You enjoyed your work as a concreter. She confirmed that you had nightmares at night and that you have lost your “drive” for life.
68 Turning to your rehabilitation prospects, I accept your chances of rehabilitation are good and in fixing an appropriate sentence, I must seek to maximise your rehabilitation prospects as they may be.
69 There are victim impact statements before me and I have read those and taken their admissible contents into account. The victims of your offending have suffered considerably in the manner described in the statements, as the direct result of your offending.
70 One from Mohid Qasimi, the deceased’s brother-in-law, who was in court during your plea hearing. He described that he and the deceased’s next of kin had suffered the great loss of a young, happy, caring person and father. The death of Mr Ali had affected him deeply and he was concerned about Mr Ali’s family in Pakistan, especially his four young children. He expressed concern about the deceased family’s emotional and financial difficulties, as they lived in Pakistan and Mr Ali had been supporting his family whilst living in Australia.
71 Mr Qasimi had regular contact with Mr Ali’s family in Pakistan via phone. He described Mr Ali’s wife as in shock, disbelief, severely depressed at the death of her husband and regularly having to see a doctor as a result, that Mr Ali was the main breadwinner for his family, regularly sending money to support them. Since this collision and his death, the family in Pakistan had not had any income and Mr Ali’s wife does not have the ability to work. The children of Mr Ali have not been able to attend school, as the family had been unable to pay the fees. They were also having difficulty emotionally coming to terms with what had happened to Mr Ali and needed help.
72 Mr Qasimi also referred to being asked to identify the body and not being allowed to say goodbye. There were also issues with the burial of Mr Ali, unable to obtain a temporary visa to allow Mr Ali’s wife and children to attend their husband and father’s funeral. They were not able to bury Mr Ali for approximately nine months after this collision.
73 Attached to his victim impact statement was a photograph of Mr Ali’s wife and four children.
74 There was also a victim impact statement from Mr Ali’s wife, Saliha, who referred to her four children and their ages. She and her family live in Pakistan, she said, in a volatile political environment.
75 Her husband, Mr Ali, had come to Australia so that the family could get away from that life and to find a better future for their children. Mr Ali had been living in Australia for four years and he would call the family daily and talk to his children. At this time she has not been able to tell two of the children of their father’s death.
76 Ms Ali referred to her husband sending money home to support them and that they had been in the process of applying for a spousal visa for she and the four children. That visa application, it appears, has been withdrawn since his death.
77 She described not being able to see her husband before his burial. She did not have the financial means to support her children, including being unable to pay their school fees. She had also been affected adversely emotionally, needing sessions with a psychiatrist. She and her children had currently been give refugee status in Islamabad in Pakistan.
78 The courts have also referred to the importance of social rehabilitation when sentencing. In DPP v Toomey[9], his Honour Vincent J referred to the notion of social rehabilitation, citing DPP v DJK[10]. Whilst I note the very different charges in that case from this present matter before me, those comments nevertheless remain pertinent.
[9] [2006] VSCA 90
[10] [2003] VSCA 109 at [17] and [18]
79 The effects upon a victim are a relevant sentencing consideration, see s.5 Sentencing Act 1991. I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
80 Your counsel, as I have said, urged the appropriate disposition be a community corrections order, relying on the decision of Boulton & Ors[11] and authorities subsequent to that decision.
[11] [2014] VSCA 342
81
I discussed at some length the decision of Boulton and referred to and addressed in a number of other cases since, including DPP v Maxfield[12],
Alam v R[13], Marocchini v R[14] and Hutchinson v R[15], and relatively recently,
Gul v R[16], although of course, being mindful of the different offending and charges in those cases to yours.
[16] [2016] VSCA 82
[12] [2015] VSCA 95
[13] [2015] VSCA 48
[14] [2015] VSCA 29
[15] [2015] VSCA 115
82 As I discussed, however, with Mr Martini, I did not understand Boulton to remove the requirement that a sentencing judge must take into account all of s.5 Sentencing Act 1991, nor did I understand the decision of Boulton to mean sentencing principles stated by the Court of Appeal and other authorities relevant to this type of offending, now amounted to nought. Nor did I understand the decision of Boulton to remove the instinctive synthesis required when sentencing.
83 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalty for this type of offence, as set by Parliament.
84 I also note in the decision of Hutchinson v R, a community correction order was not to be regarded as a “get out of gaol free” card. I am of course, conscious that a community correction order has not only a punitive element, but also a rehabilitative aspect to it (see Allen v R[17]).
[17] [2015] VSCA 48 at [20]
85 In my opinion, however, to impose a community correction order for your offending would not adequately or appropriately reflect all relevant sentencing considerations in your case, including the circumstances of your offending and all matters personal to you and in mitigation of sentence.
86 Mr Martini’s secondary submission, without abandoning his primary submission, was that I could combine a term of imprisonment with a community correction order. I do not consider such to be appropriate for the same reasons.
87 Mr Martini’s third sentencing submission, without abandoning either his primary or secondary submission, was that if a term of imprisonment was required for your offending, there should be a significant gap between the head sentence and any minimum term.
88 Turning to your rehabilitation prospects, Mr Martini referred to your lack of significant criminal history, including driving history, to which I have previously referred. At that time, Mr Brown however, in response to that submission regarding your driving history, was going to provide further information in relation in particular to any traffic infringement notices and in particular I refer to the one of 17 December 2014, which was read into the transcript today. That offence is somewhat concerning.
89 The prosecutor, Mr Brown, submitted your offending was not at the lowest end, but rather fell to the mid-range of moral culpability. As I have said, I agree. A community correction order, he submitted, by itself would be outside the range of appropriate dispositions. Whether or not I considered a term of imprisonment together with a community correction order, or a term of imprisonment with a non-parole period, he urged, was a matter for me.
90 I have previously referred to my categorisation of your moral culpability for this offending.
91 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
92
Whilst there is a need for specific deterrence when sentencing you, given you do not have particularly relevant prior court appearances or driving history,
I also note that whilst you do have prior court appearances and a driving history, you do not have any court appearances for offending of this type or of this gravity.
93 Also I note, you have not previously served a sentence in custody.
94 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending.
95 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
96 In my opinion, as I have said, to impose a community correction order would not adequately or appropriately reflect all relevant sentencing considerations, including the circumstances of your offending and all matters in mitigation and personal to you, and nor would a combination disposition of a term of imprisonment together with a community correction order be appropriate.
97 I sentence you as follows.
98 On Charge 1, you are convicted and sentenced to 3 years' and 6 months’ imprisonment.
99 On Charge 2, you are convicted and sentenced to 1 month’s imprisonment.
100 I do not propose to cumulate the sentence on Charge 2 upon Charge 1. In other words, that entire one month will be concurrent with Charge 1, if that makes that clear.
101 That results in a total effective sentence of 3 years' and 6 months' imprisonment, and I direct that you serve a period of 2 years before you are eligible for parole.
102 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 12 days in custody by way of pre-sentence detention, and I direct that that be entered into the records of the court.
103
Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of those two charges following jury verdict, in other words, if you had pleaded not guilty to both those charges, but been found guilty of them, I would have imposed
a sentence of 5 years' and 6 months' imprisonment and set a non-parole period of 3 years and 6 months.
104
The prosecution made application for a disposal order in relation to the drugs relevant to Charge 2. That was consented to by counsel on your behalf and
I make the order in the terms sought.
105 The prosecution also made application for a forensic sample, pursuant to s.464ZF(2) Sentencing Act 1991. Mr Martini submitted it was a matter for the court whether or not such an order be made. In my opinion, it is appropriate the order be made. It will be for a saliva sample and I do that on the basis of the seriousness of your offending and your prior, albeit, limited driving history. I must advise you the authorities may use reasonable force in order to obtain that sample.
106 Pursuant to s.89(2)(a) Sentencing Act 1991, I am required to cancel your licence and disqualify you from obtaining a licence for not less than 18 months. I am conscious from R v Lefebure[18] of the importance of rehabilitation of an offender and their having a licence. I order your licence be cancelled and you be disqualified from obtaining a licence for a period of 3 years and 6 months from today's date of sentence, that is from 7 November 2016.
[18] 2000) 31 MVR 131
107 Now, first of all, any problems with the figures? They are pretty straightforward. No difficulties there?
108 MR BROWN: No, Your Honour, no.
109 HER HONOUR: I just want to make that clear. Charge 2 is concurrent with Charge 1.
110 MR MARTINI: Understood.
111 HER HONOUR: All right. Twelve days, is that correct?
112 MR BROWN: It is, Your Honour.
113 MR MARTINI: That is our discussion.
114 HER HONOUR: That is up to and including yesterday, which was 6 November 2016. That is correct. I think that is all I needed to check. But just, if it is not clear, I hope it is, but in relation to where I have categorised this as towards the middle, it is from the lower end towards the middle, not from the middle towards the high, if that makes sense.
115 MR BROWN: Yes, Your Honour.
116 HER HONOUR: All right, so it is to be read in that context. Just in case it was in some way confusing.
117 MR BROWN: Yes, Your Honour.
118 HIS HONOUR: That is coming at it from the low end, as opposed to going towards the high end. Does that make sense?
119 COUNSEL: Yes, Your Honour.
120 HER HONOUR: Yes, but everything else I said is what I meant to say, but that is just an additional clarification. Anything further?
121 MR BROWN: No, Your Honour.
122 MR MARTINI: I don't believe so.
123 HER HONOUR: All right then. No, thank you very much. Thank you very much, Mr Lee, you will have to go out. Thank you.
124 OFFENDER: Yes, Your Honour.
125 HER HONOUR: Thank you very much.
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