Director of Public Prosecutions v Luca

[2016] VCC 165

Pages 52 - 68   IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01925

DIRECTOR OF PUBLIC PROSECUTIONS

v

JONATHON LUCA

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2016
DATE OF SENTENCE:	17 February 2016
CASE MAY BE CITED AS:	DPP v Luca
MEDIUM NEUTRAL CITATION:	[2016] VCC 165

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Offender	Mr S. Lindner	Tait Lawyers

HIS HONOUR: 

1Mr Luca, you have pleaded guilty to one count of recklessly causing injury, one count of criminal damage and two counts of negligently causing serious injury. Further, pursuant to s.145 of the Criminal Procedure Act, and you have consented, to three summary offences being dealt with by this court.  Those offences being drive while disqualified, wilful and obscene exposure and unlawful assault.

2The maximum sentences for each of these offences are as follows.  For recklessly causing injury the maximum sentence is that of five years' imprisonment.  The maximum sentence for criminal damage is ten years' imprisonment and the maximum sentence for negligently causing serious injury is ten years' imprisonment.  I pause there for a moment.  It was, until recent times, half that.  So the politicians in the houses of parliament have increased it by doubling it to reflect the community attitude through the parliament of that particular offence.  So it has now been doubled in recent times.

3For driving whilst disqualified, this summary offence, the maximum sentence is two years' imprisonment.  For wilful and obscene exposure, another summary offence, the maximum sentence is two years' imprisonment and the unlawful assault count the maximum sentence is three month's imprisonment.

4For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed.  In other words you receive a discounted sentence for having pleaded guilty.

5Mr Luca, it was on Thursday, 16 April 2015, at 5.30 am that Linda Addamo, finished work in Brooklyn.  The victim, Elysa Rainer, collected Ms Addamo by driving to her workplace in a motor car, a white Mitsubishi and collected
Ms Addamo.  I assume, of course, they are friends.  These ladies, as they drove along, observed Eric Chou and Aiden Luca, your brother of course, were seen to be standing on the nature strip next to a service station nearby to where they were driving.

6Ms Rainer pulled her car over and Chou and Aiden Luca asked for a lift.
 Mr Chou sat in the front passenger seat and Aiden, your brother, and
Ms Addamo were in the rear of the car.  Mr Chou and Aiden Luca gave Ms Rainer the appropriate directions and the address for her to travel to.  That, of course, was to your home at 9 Conifer Avenue in Brooklyn. 

7On the way to that address Aiden Luca said that his brother and his father lived at that address that they were travelling to.  Aiden said he did not want to go there saying he was not allowed.  Chou was saying "I need my car, I need my car".  Two or three minutes later they arrived at 9 Conifer Avenue in Brooklyn.  Mr Chou identified his brother's car, a silver Honda Accord, was parked in the driveway at 9 Conifer.  Chou said he would get the keys and approached the house and was knocking or tapping on the front window of that property asking to be let in.  I am conscious of the fact that it is in the early hours of the morning. 

8Linda Addamo asked Aiden Luca why he was not accompanying Chou.  Aiden said "I'm not getting out of this car, no way".  Whilst in the car he also remarked "Get the keys.  Just get the keys and let's go".  Mr Luca, you came out of the house at 9 Conifer Avenue and then you repeatedly told Chou to "Fuck off".  You, Mr Luca, at that time were holding what is said to be a pole in both hands.  Mr Chou refused to leave and asked for his keys back.  You then said to Chou "You're not getting your keys back.  You owe me money.  Just fuck off".

9Linda Addamo got out of Ms Rainer's vehicle and told you to give Chou his keys back.  You then charged at Ms Addamo with the pole and yelled "Who the fuck are you?  What's this got to do with you?"  You then hit Ms Addamo with the pole to the face and right ear area causing her head to bleed. 
Ms Rainer screamed at you and Ms Addamo got back into the Mitsubishi in the back seat.  Chou did a runner.  He went over the fence and ran off.  These circumstances constitute Count 1, that is the recklessly causing injury to
Ms Addamo.

10As to the count of causing criminal damage to Elysa Rainer's motor car that offence occurred in the following circumstance.  Ms Rainer was somewhat panicked and trying to reverse from your driveway, I assume.  You then struck the Mitsubishi with a pole smashing the front windscreen.  You continued to hit the car, damaging the side mirrors as Rainer attempted to drive away. 
Ms Rainer then drove to the end of a dead end street.  Ms Rainer turned to escape, you had sped toward them and their vehicle, you then driving the Honda previously mentioned as being parked in the driveway.  You rammed that vehicle into the back of Rainer's Mitsubishi without warning.

11Aiden Luca told the two women to get out of the area and go to the police station.  It is said that all of the three occupants in the car were panicking and trying to get away from you.  Rainer turned into a driveway to perform a
U-turn.  You then accelerated towards the rear of Rainer's Mitsubishi and struck it, spinning it around.  The force of the contact caused the Mitsubishi rear windshield or windscreen to break and a piece of luggage fell out and went to the ground.

12The impact caused the front passenger door to swing open and the front passenger seat to unlock and slide back and forth from its mountings. 
Ms Addamo held onto the seat from her position and was scared that the further impact might kill her.  Your brother, Aiden Luca, was providing directions to the driver to attend at the police station.

13You followed them closely as they straightened out of a corner, south onto Grieve Parade.  You were closing in on them as they approached a set of traffic lights that were turning red at that time.  Your brother, Aiden Luca, told Rainer "Floor it.  Don't stop".  Ms Rainer's Mitsubishi went through a set of red traffic lights at the intersection of Grieve Parade and the West Gate Freeway.  As a result that vehicle collided with a Ford Territory station wagon and a post office truck which where both about to turn from - or turning right from the West Gate Freeway onto Grieve Parade.

14Ms Rainer's Mitsubishi ricocheted off the first vehicle collided with and headed onto, and crashed into, a light pole in the centre median strip.  On this collision occurring, Ms Rainer's head impacted the windscreen and Ms Addamo was ejected from the car with her feet trapped under the passenger seat.  Your brother, Aiden Luca, was thrown from the rear seat to the front of the car over the dashboard.  One of the female victims was screaming.

15You also drove through the red light and braked next to the accident scene.  You were yelling and screaming and you frantically ran around throwing your arms about and bashing on the window of a nearby VicRoads car.  You were yelling for an ambulance to be called and you were abusive.  You then pulled your brother out of the Mitsubishi and kept circling the scene.  You approached Ms Rainer and spat on her saying "See what you have done.  See what you have done".  You, again, walked around before returning to Rainer and trying to shake her head.

16The VicRoads officer, Peter Mentipaly and John Kolonis were patrolling the area.  They observed Ms Addamo was on the ground with her legs hooked underneath the car seat.  She was not able to feel or move her arm. 
Aiden Luca, your brother, was observed with a laceration to his head.  His alertness and breathing was volatile.  Ms Addamo was moaning and groaning with blood on her head.

17You then left the scene in your car, that is the Honda, moving it about 80 metres down the road.  Shortly thereafter you returned on foot.  You approached your brother and pushed away a person who was performing first aid, rolling your brother onto his back.  That is you did that.

18Mr Mentipaly approached you and said "Leave him alone, he'll be okay".  You replied "Fuck off" and punched Mentipaly to the left shoulder.  The force caused Mr Mentipaly to step backwards.  You then said "That's my brother.  That's my brother.  Look after him.  The other two are whores".  Obviously you were referring to Ms Rainer and Ms Addamo.  Mr Mentipaly did not receive any injuries as a result of being punched.

19You then repeated your demand that paramedics help your brother and not the female victims.  Police observed that you appeared to be drug affected with erratic behaviour and dilated pupils being evident. 

20You were told to leave the scene and you became abusive.  You aggressively approached the police officer who pushed you away to create a safe distance.  You were again told to leave and in response you pulled down your trousers and exposed your penis.  You spat on the ground in front of the police officers and left. 

21The driver of the Ford Territory suffered from shock and a bruise to his leg.  The driver of the truck was left shaken and suffers flashbacks when he is near the intersection. 

22As to the third and fourth counts on the indictment, as distinct from the summary offences, the ambulance officers assessed Ms Addamo as suffering major life threatening injuries requiring surgery.  Ms Rainer suffered head and knee injuries that required surgery.  They were not life threatening.  Aiden, your brother, suffered minor injuries and was transported by ambulance to the hospital for attention.

23Ms Addamo was initially treated in the Emergency Department of the hospital before being admitted to the Intensive Care Unit.  Briefly she underwent spinal surgery the following day.  Addamo suffered severe spinal cord injuries including central cord syndrome from spinal cord haemorrhage with associated ligament and muscular injuries.  She also suffered a skull fracture, nasal bone fracture, rib fracture and lacerations to the left eyelid and right hand.  She also suffered two fractured teeth.  Ms Addamo remained in intensive care for 13 days and experienced ongoing profound weakness of her arms with some weakness to her legs.  Ultimately Addamo was transferred to the Austin Spinal Unit, that is the Austin Hospital out in Heidelberg.  She was transferred there on 30 April 2015.

24According to her statement on the police brief Ms Addamo says she has been advised by the doctors that she will be disabled in some way for the rest of her life.  Ms Rainer underwent surgery on her knee and was to remain in hospital for five weeks.  As I understand the material in addition to the bruising and expected type of injury to her head, having impacted the windscreen, she suffered a fracture of the knee in that collision.

25Mr Luca, before commenting upon your outrageous behaviour on this day I infer from the behaviour of your brother and his express fear of visiting or entering the premises at 9 Conifer Avenue, Brooklyn, that he, Aiden, anticipated some sort of extreme or bad behaviour.  He obviously did not want to go in.  That is the inference that I draw from the statement that he made.  I, again, quote what he said, "I'm not getting out of this car, no way".

26You, Mr Luca, when spoken to by the investigating police officers made admissions that indicate that you were drug affected or, indeed, under the influence of drugs whilst committing these very serious offences.

27Mr Luca, you have seen the very well-known clinical psychologist and highly respected clinical psychologist, Mr Bernard Healy.  This gentleman has provided an excellent report on your behalf.  Now there is some repetitive material but that is deliberate.  I quote directly from Mr Healy's report; he is speaking of you, so I am not going to transpose what he said.  But all of the "he" are you of course.  Mr Healy said this,

He attended primary school in Altona and Hoppers Crossing and proceeded to St Paul's College, Altona North, for Year 7 and part of Year 8 until he was asked to leave because of his disruptive behaviour.  He attended Laverton Secondary College for six months before being sent to an alternative school called Spirit West". 

28Which I am informed, and I will speak of again in a moment, which is run by the Western Bulldogs.  That obviously used to be Footscray Football Club in the AFL.  Where you remained for 12 months completing the equivalent, as I understand it, of Year 12.  You attended apprenticeship training in electrical mechanics at Victoria University at the age of 18 but left, unfortunately, after conflict with a teacher.

29Mr Healy says,

"He completed Certificate III in Food Preparation and Handling, through an agency to which he had been assigned by Centrelink but no opportunity for work emerged. 

He completed Certificate III in Warehouse Operations, which he enjoyed a great deal.  In prison he has undergone courses in OHS, Occupational Health and Safety, anger management and dealing with gambling problems.  His work experience has been negligible, essentially with his father in brief phases of withdrawal.  He spent a month in the warehouse until the effects of drugs prevented him from continuing".

30Whilst in custody you have undertaken numerous course such as, already mentioned by Mr Healy, such as Occupational Health and Safety, food handling, barista, English courses, basic mathematics courses and gambling addiction courses.  Further to these programs the YSAS report says that you have completed the following courses, and again it is somewhat repetitive because I am sure Mr Healy has referred to the same but I am going to articulate them all so there is no mistake.

31YSAS says that you have completed Certificate II in Community Services through the Footscray Lions Club, Certificate III Warehouse Logistics with set solutions, Responsible Service of Alcohol at the Douttagalla Hotel in Ascot Vale, Certificate III in Food Preparation, set solutions, Certificate II Retail at Spirit West.  Obviously they are referring to where you have done the courses.  Certificate II Vocational Preparation Spirit West again and Level III First Aid under Youth Order.

32Your counsel, Mr Lindner, in his eloquent plea further indicates that in addition to the various primary school and secondary schools that you attended he then explains to me and the court what Spirit West is all about and also the various things that you have done with YSAS.  As I said before, Spirit West is an alternative education school run by the Western Bulldogs Football Club where you have, as I have already said, completed the equivalent of Year 12.

33Mr Luca, you are the youngest of five boys.  You were of preschool age, as I understand it, that is somewhere between four and five when your parents separated.  You and your brothers were raised by your father when your mother left home.  Your father conducts his own business as a cabinet maker and your father, with the exception of Aiden and your other brothers, have never had any involvement in the criminal justice system.  They are good, hardworking people.  Aiden apparently has a few problems of his own.

34Mr Healy reports, and I again quote from Healy "After leaving the family - " he is speaking now of your mum.

"After leaving the family his mother lived in various locations.  When Jonathon was 11 she moved to China and from his perspective - "

35That is you, of course.

"She had no interest in the children.  At the age of 14 you spent three months with your mum in China but following your return home you lost contact with her for 12 months.  When you were 16 she called you from Adelaide and at age 17 you went to live with her but after a month or so you realised this wasn't a workable situation".

36As I understand the material your mother currently resides in Adelaide and as you well know, she attended court to demonstrate her continuing support of you on Monday.  Your father - well your father is here today.  So mum was here one day and your father is here the next.  Your father and brothers, with the exception of Aiden, have maintained contact with you whilst you have been in custody.  Visiting and maintaining phone contact during that period.

37Mr Luca, as is reported by YSAS and Mr Healy, you have a long and unhappy history of drug abuse.  Alcohol is not an issue in your life.  I again quote from Mr Healy because he traces the sadness of what you have battled with as a young man right up until now.  Again, I am speaking in the first person directly from Healy's report.  Mr Healy says this:

"He began smoking cannabis at age 14 and quickly developed a daily habit of up to two grams.  At age 19 he abstained for six months but resumed its use in order to ease the excitatory effects of the potent stimulant, ice.  Around the age of 16 he inhaled amphetamines socially then LSD for six months every two weeks resulting in some frightening imagery, ushering in psychosis and not long afterwards, abstinence from the substance.  He commenced using ice at 16 and by 17 or 18 had developed a daily habit of up to one gram which continued apart from one month - "

38Which you spent in custody of January 2015.

"At age 18 he had also used GHB to ease social anxiety but couldn't tolerate the side effects.  He has taken the anti-depressant Avanza, for the last three months.  At age 16 he took Valium to try and cease cannabis smoking, which he felt he needed to ease the effects of ice.  At age 17 he took unprescribed Xanax for a fairly regular basis to ward off panic attacks associated with family and social events.

Further details of his drug use were noted from the YSAS report dated 8 February 2016 where you engaged from December 2013 to the time of your remand".

39So for three years you were doing, or attempting, to attend to your substantial drug problem.

40In May 2014 a note of residential periods where you have been in residence attempting to extract yourself from the scene.  In May you were in residential programs for seven days.  In August 2014, 14 days.  In February 2015 again 14 days.  On the later occasion, the waiting admission to residential centre, The Bridge Program in Bendigo run by the Salvation Army.  Significantly a bed was available to you by 19 April but three days earlier, you committed these offences and that opportunity, of course, was then lost.

41There are also medical records from the Altona Superclinic.  I have read those in depth.  They are extensive. 

42I return to the report of Mr Healy where he said, "He has taken the anti-depressant, Avanza, for the last three months".  That is obviously a recognition by either psychiatrist or straight doctor, I do not know, or psychologist within the prison system who have recognised that you have got anxiety and depression to be attended to.  Of course, that is what Mr Lindner was speaking about as later in the report of Healy, the anxiety and depression may well have some contribution to your offending and the way you should be dealt with.  I can assure you I have spent many anxious, well not minutes, probably hours, agonising on how best to deal with you because in my view your offending is very serious indeed.

43Mr Healy reports that on your arrest and then going into custody, that you went "cold turkey" to rid yourself of your drug scourge.  I have heard that term "cold turkey" many times as a judge, as my staff have and some of these barristers, not all of them.  It must be tough and you have done it on your own.  I am sure that was a difficult period for you to manage.  You seem to be all right by my observation now but I am sure you have a long way to go yet.

44Mr Healy further reports on other personal health issues that you are dealing with.  I assure you I have read all of those.  I do not wish to embarrass you by talking about them publicly.  Mr Lindner touched upon them, you know what I am speaking about, I will say no more.  Mr Healy also speaks of your depression, as I have just said and the fact that you are in receipt of medication to manage that health issue now. 

45As I said before, your behaviour on this day was just absolutely outrageous.  In the Victoria Court of Appeal in the case of Harrison which was mentioned and I believe I should mention it and Rigogiannis, the Victorian Court of Appeal has examined similar offending.  When I say similar offending, young men charged with the same offence with which you have been charged but of course the circumstances are not identical.  Rarely are they identical.  They involve young men intoxicated by whatever cause, I understand you are not using alcohol, and then driving or getting into very, very difficult situations.

46In this instance, by your own admission, as I mentioned earlier, you were drug affected during the commission of the offence.  Your conduct involved a grave departure from an acceptable standard of care in responding to these victims.  When they visited your home and when, after the driving events, you again attended upon them.

47To pursue Ms Rainer in your vehicle, to impact with her car, as you did, was no doubt terrifying to the three occupants of the car.  I am sure that Chou was not there, that is why I say three.  He galloped off and has gone over fences and disappeared.

48Ultimately after the final impact out at Grieve Parade, for you to then interfere with those providing first aid, indeed to your brother and the two ladies, was again disgraceful.  You have undergone basic first aid training.  The inference that is drawn there by the prosecutor, Mr Manny, even commented upon it.  Whilst, that if you have undergone basic first aid training, you should have known better than to interfere with those that were providing assistance.  To interfere with the head of Rainer, which apparently you did and to interfere with your brother with moving him as you did, just indicates that you were completely out of control in terms of your own thought process.  To interfere with people who are, potentially, very seriously injured in terms of neck injury was deplorable.

49You were not content to behave in this manner towards the victims because you also punched Mentipaly, the road traffic officer, who was endeavouring to assist and you were full on, if I may use those words, there are more colourful words but I have got to keep it tidy.  You were absolutely full on and objectionable to the police officers.  That is, what you did when you dropped your trousers and exposed your private parts.

50Fortunately your brother Aiden, he did not suffer any significant injuries, but
Ms Rainer certainly fractured her knee and had bruises to her head and body as is the usual result of motor vehicle impacts.  As I understand it, Rainer spent five weeks in hospital recovering specifically in relation to the fractured knee.  Of course there were many and various very serious injuries suffered by Ms Addamo that I mentioned earlier.  All of those injuries indirectly imposed by you are appalling.  As I understand it, Ms Addamo's injuries will cause her to be disabled in some way for the rest of her life.  I mentioned that earlier.  The barrister prosecuting on Monday further indicated that apparently this lady has personal relationship issues with her own family arising out of this event.

51As in Harrison's case the victims, Ms Rainer and Ms Addamo, have suffered extensive and profound serious injury, particularly Addamo.  I have no difficulty categorising the degree of negligence in this instance as being very high indeed. 

52Further to your gross offending there are surrounding aggravating circumstances.  On this day you were driving whilst disqualified.  Secondly, you were at that date and time undergoing two separate good behaviour bonds, each of which was imposed on separate days.  These current offences, obviously, breach both of those good behaviour bonds.  Not to be content with those aggravating circumstances you were further on bail for other unrelated offences to this matter when you committed these offences.  Mr Luca, your behaviour demonstrates, certainly at that time, no respect whatsoever for the law or any legal sanction that was imposed upon you. 

53You have been before - now this is - the next comment I make is not directly your fault but I find it quite amazing.  You have been before the courts on eight separate occasions.  That is not unusual, I have seen that frequently.  Incredibly for the many and various counts you have been before the courts on, on those eight occasions, you have never been convicted.  I find that astounding. 

54You have got at least 34 separate counts coming from those eight separate appearances and not one conviction.  I just do not believe that such things happen but it is a reflection, I suspect, on the judiciary.  Thirty four offences, yes 34 offences, eight appearances in the court and not one conviction.  That is not your fault, you do not make those decisions, the judiciary do.  I have never seen it before and I have been on the Bench in excess of 30 years.  I, also in fairness to the judiciary and yourself, make the comment that non-conviction results are relatively recent in the Magistrates' Court, leaving aside good behaviour bonds.

55You have many major driving counts, drive whilst suspended, drive at speed dangerous and other things such as registration of motor car, false plates and things of that nature.  You also have many indictable offences on your history sheet.  You have previous counts of assault and damage to property similar to the offences you are now before this court upon.

56Your record, for such a young man, is appalling.  As I said before, it indicates total lack of respect by you to the various orders made by the court.  Would you stand up please.

57Mr Luca, I assure you that I have taken into account all that has been said on your behalf by Mr Lindner. 

58I have taken into account the medical reports produced from the Altona Superclinic and the reports from YASA, the report from Mr Healy.  I further take into account your early plea of guilty.  This plea is an indication of your remorse.  Mr Lindner, again on your behalf, expresses your remorse to this court.  Mr Healy, in his report said, and I again quote so that it is accurate.  This is what he said, "Discussion was held with him - " that is of course you.

"In relation to the matter for which he was remanded on 16 April 2015.  He believes that at the relevant time he had managed to achieve a balance between ice and Xanax, falling asleep in the early hours of the morning but then being awakened by sustained tapping on his window.  He said he feels 'terrible' about his conduct.  He's totally responsible for the injuries sustained by others".

59You have had the courage to say it and you have said it to him.

"He said he wasn't acquainted with the young women involved".

60Obviously by that statement you are feeling remorseful.  He then makes the classic understatement if I may say so and that is not critical of Mr Healy, "Because of his serious drug addiction he accepts he will need to undergo rehabilitation".

61You have heard Mr Lindner quote the case of R v Mills.  He was a young man up in Mildura way back in 1998 and a young offender.  Among other things in that case it was emphasised that the youth of an offender should be a primary consideration and also the rehabilitation of a young offender is usually far more important than general deterrence.  I assure you I have taken into account all the principles discussed by Mr Justice Batt and other Appeal Court judges in that case. 

62Rehabilitation is of the utmost importance for young offenders.  You are still a very young man with an appalling track record.  You have prospects for rehabilitation, as I observe because you have undergone numerous courses, particularly whilst in custody.  You have the support of your mother, your father and three of your brothers.  You must actively pursue drug rehabilitation programs if you are to rehabilitate.  If you do not you will revisit this place many times.

63I also assure you that I have agonised over the principles of Verdins and that your sentence should be moderated in some form.  It sort of competes with what is said by the prosecution and what is said in many cases.  Taking into account that provisions of the Sentencing Act, s.5, where it is set out that the purpose of sentencing is for just punishment. The words used, I will quote them, "The purpose of sentencing is to punish the offender to an extent and in a manner that is just in all the circumstances".

64The next sub-section directs the court to general and specific deterrence.  That is, to deter you and others from committing the same or similar offences.  General deterrence, as I understand it, is very important in this instance.

65Taking those things into account at the same time the next sub-sections speaks of establishing a proper rehabilitation program or scenario.  Further, to manifest the denunciation by the court on behalf of the community of the type of conduct that you engaged in.  So I have said before and I do not want to harp on it, very, very serious and unpleasant behaviour indeed and if necessary the court is to protect the community from your continuing offending in such a way.

66I have got no doubt you are standing where you stand because you have battled with the separation of your parents and then self-medicating from a very young age, from at least 14 until now, that is seven years and I suspect you have grossly abused yourself in the various illicit drugs that you have used. Rarely does a judge say alcohol is not an issue.  Apparently it is not an issue with you.

67On Count 1, which is the recklessly cause - I beg your pardon, I will start with Count 3.

68Count 3 is the negligently cause injury, the victim being Addamo.  On that count the prisoner will be convicted and sentenced to 30 months imprisonment.

69On Count 1, which is the recklessly causing injury, so there is no mistake, that is where Addamo was struck with the pole at the house, convicted and sentenced to six months imprisonment.  That sentence to be served totally concurrently with the sentence imposed on Count 3. 

70Count 2, which is of criminal damage, using the pole to smash up Rainer's vehicle, convicted and sentenced to 12 months imprisonment.  Eight months of that to be served concurrently with the sentence imposed on Count 3.

71Count 4, that is again negligently causing serious injury, the victim there being Rainer, convicted and sentenced to 24 months' imprisonment, 18 months of that sentence to served concurrently with the sentence imposed on Count 3.

72On the summary offences, I will call them 1, 2 and 3 for your purposes, they have got other numbers in the documentation, but the first count is a driving while disqualified, convicted and sentenced to four months imprisonment.  Three months of that sentence to be served concurrently with the sentence imposed on Count 3. 

73On Count 2, the extremely obscene act of dropping your trousers and exposing your person to people who were trying to help the victims, convicted and sentenced to three months' imprisonment.  Two months of that sentence to be served concurrently with the sentence imposed on Count 3. 

74I also, just in passing, there is no offence being charged but the spitting and things that occurred were appalling.  There is no offence there and you are not being loaded up because of it and I am sure it only occurred because of your intoxication.

75The third summary offence, that is the unlawful assault, that is the punch to Mentipaly, convicted and sentence to one month imprisonment.  That sentence to be served totally concurrently with the sentence imposed on Count 3.

76The total imposition of imprisonment today is that of 42 months' imprisonment.  In respect of that sentence I direct that the prisoner serve a minimum term of two years before being considered to be eligible for parole, or of course,
24 months.

77Pursuant to s.18 of the Sentencing Act Mr Luca is to be given credit for having served 307 days of imprisonment and pursuant to s.464ZF of the Crimes Act Mr Luca consents to a forensic sample being taken.  I pause there for a moment.  This seems to be nonsensical.  You have consented to it being done and I am bound by the Act to explain to you that reasonable force can be used to take it if you resist.  Well it seems silly to say that when you are consenting to it but I am bound to tell you.

78Last but not least, and I find this a difficult exercise, I am happy to observe that Mr Justice Kaye many times has said that he finds it very difficult. Under s.6AAA of the Sentencing Act I believe, looking into a crystal ball, I would impose a sentence that is highly probably five years with a minimum of three had it been a trial.

79I do not believe there is any other orders to be made is there?

80MS MALOBABIC:  Your Honour, the licence disqualification.  There has to be a minimum.

81HIS HONOUR:  I beg your pardon.  It is mandatory.

82MS MALOBABIC:  Yes, Your Honour.

83HIS HONOUR:  Sorry, it is mandatory for the two negligently - take a seat.   For the two negligently causing serious injury matters on each count you will be disqualified from obtaining any licence to drive a motor vehicle dating from 16 April 2015 for a period of three years.

84MS MALOBABIC:  As Your Honour pleases.

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