Director of Public Prosecutions v Lucky

[2012] VCC 939

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-00854

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARLOS LUCKY

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July 2012
DATE OF SENTENCE:	12 July 2012
CASE MAY BE CITED AS:	DPP v Lucky
MEDIUM NEUTRAL CITATION:	[2012] VCC 939

REASONS FOR SENTENCE

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Catchwords: Sentence – culpable driving - theft of motor vehicle – exceeding prescribed concentration of alcohol – unlicensed driving – failing drug blood test – police pursuit at high speed – effect of alcohol and cannabis – did not seriously impair driving ability – disinhibiting effect – decision to drive – decision to try to avoid apprehension - mild intellectual disability and acquired brain injury – reduced moral culpability – reduced weight to deterrence - remorse – Total Effective Sentence six years – non-parole period 3 years 6 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Grant with Mr P. O’Halloran	Office of Public Prosecutions
For the Accused	Mr D. Gibson	VLA

HER HONOUR:

1       Luka Deng’s family left Sudan for Egypt and eventually arrived in Australia to make a life for themselves here.  His parents separated and his mother brought him and his brothers and sisters up on her own.  The family settled in Mildura. On 8 January 2012, Luka Deng made his way to Melbourne.  Two days later, in the early hours of the morning of 10 January, he was a passenger in a stolen car driven by you, Carlos Lucky. He was killed when you lost control of the car, while trying to avoid a police pursuit.  Luka Deng was only 19 years old.

2       You have pleaded guilty to one charge of theft of a motor vehicle and one of culpable driving, negligently causing the death of Luka Deng.

3       You have also pleaded guilty to three related summary offences, exceed prescribed content of alcohol, with a blood alcohol reading of .048, failing a drug test administered within three hours of driving and unlicensed driving. It is unclear whether you have ever held a driver's licence. You had previously been dealt with for exceeding the prescribed content of alcohol, and the period of disqualification imposed on you for that had expired, but you had not applied to a court for an order permitting you to obtain a licence.

4       Shortly after 3:30 in the morning of 10 January 2012, your driving attracted the attention of an off-duty police officer, Constable Lavery-Stephens.  He was sufficiently concerned about your conduct to make contact with police on duty.  A registration check revealed the car was stolen.  Constable Lavery-Stephens attempted to follow you until a police vehicle could intercept you.  In the 10 minutes before a divisional van located you, you were driving very slowly. You covered only 4.3 kilometres. You were seen to drift across lanes, to do what low speed fish-tails, and to stop for an extended period in a roundabout, before taking off again.

5       You were driving, still slowly, in Stud Road, Dandenong North, when a divisional van took up a position about two to three car lengths behind you.  It tried to pull you over, by activating the emergency lights and sirens.  Instead of stopping, you accelerated rapidly away.  Within one minute, you travelled just over 1.5 kilometres.  In that minute, your speed was estimated to be as high as 140 kph.  You drove through two red lights.  A camera recorded your speed at 99.4 kph through the first of those.  As you sped through the red light at the second intersection, the Monash Freeway off ramp, a large truck was turning, with the lights, into Stud Road. You swerved to avoid it, striking the kerb on the far left of the road.  You were travelling at a speed of at least 128.2 kph when you struck the kerb.

6       The car spun out of control.  It struck the guard rail on the left of the roadway with such force that the guard rail buckled and penetrated the car, arresting its clockwise rotation and swinging it in the opposite direction.  When the car came to rest, a large portion of the guardrail was embedded in the passenger side of the car, where Luka Deng had been sitting.  Luka Deng suffered catastrophic injuries and died at the scene. 

7       You suffered minor injuries.  While being assessed at the scene, you were told that Deng had died.  You said “I’ve killed my friend.”  That demonstrates you clearly appreciated at that stage that you had been driving, that he had been in the car with you, and you had been in a collision which had caused his fatal injuries.

8       A breath test administered at the scene and a blood test taken at hospital soon after confirmed that you had alcohol and cannabis in your system. Analysis of your drug and alcohol levels indicates that at the time of driving, you would have had a blood alcohol concentration in the vicinity of .06 per cent and a THC or cannabis concentration at a level of 4 nanograms per millilitre.  In the opinion of Dr Odell, a forensic physician with the Victorian Institute of Forensic Medicine, the blood levels of those substances would not imply serious impairment of your driving ability.

9       You were taken to Dandenong Hospital and spent two days there.  It was noted at the hospital that there was evidence of retrograde amnesia, that is an inability to recall the events leading up to the collision or at the collision itself.

10      On your release from hospital, on 12 January 2012, two days after the collision, you were interviewed at Springvale police station.  You told police you knew Luka Deng, that you had met him a few times previously from the streets, and that the last time you had seen him was probably at the park in Noble Park where you had been drinking that day.  You said you could not recall driving the car or being spoken to by police after the collision.  You could recall drinking at Noble Park, that you had blacked out and ended up in hospital.  You said you had started drinking about midday on the day of the collision, drinking cask wine and sherry in a park near your house, with other people who you described as Africans, buddies from the street.  You denied using cannabis on the day of the collision.  You said you drank a cask of wine every day and smoked three grams of cannabis over every couple of days.  You told police that you used to have an acquired brain injury but that that was now better.  At the conclusion of the interview, you were charged and remanded in custody.  You have remained in custody ever since.

11      Luka Deng’s mother, Isshan Mursal, and his uncle, Gah Paul Gak Deng, provided Victim Impact Statements.  They were read aloud in Court during the plea.  His mother said:

“I feel like my heart has been ripped out.  I wish it was me that was killed in the accident.  He was so young.  He has not had the chance to marry and have children, to have a family of his own”. 

She spoke of being unable to sleep, lying awake thinking about him and of the grief of her other children who cannot understand that Luka is dead.  She cannot bring herself to go into her son’s bedroom.  She did so once and the memory of seeing his photograph in his room haunts her.  She said she looks at the park where he sat, and cries.  She said everything is a memory of him.  And she lamented, that after all she went through in Sudan she lost her son in Australia.

12      Luka’s uncle spoke of his grief at the loss of his nephew and of the sadness he feels as he witnesses the grief the rest of the family suffers.

13      The owner of the car that you stole and that you were driving also provided a Victim Impact Statement.  It is worth thinking about what she said about the effect on her of discovering that somebody had died whilst in her car.  She said:

“When I learned of this, I was extremely saddened and upset to know that a human life had been taken.  Although the dead man was not known to me personally, it still felt hard because it was my car he was killed in and it felt too close to home”. 

She spoke of the distress she had experienced when asked, some time after the collision, to inspect the car as part of the police investigation and identify any items in it that did not belong to her.  She was unprepared for what she was then confronted with.  The force of impact was clear, and the extensive bloodstains still apparent.  She was greatly distressed by that.  She spoke with some surprise about how even now, six months later, as she wrote her Victim Impact Statement, that she still harboured strong emotions and still cries when she thinks about it.

14      It is not only the family of the person who was killed who suffer as a result of avoidable road deaths such as Luka Deng’s.  Other road users, eyewitnesses, owners of stolen, crashed cars, and police and emergency workers who must attend crash scenes and tell families someone has been killed in a collision are also directly affected.   

15      As Mr Gibson acknowledged from the start, this is a serious example of a serious offence.  Although Dr Odell rules out alcohol and cannabis as being major contributing factors to your driving ability, it is clear your decision to drive, and to speed away when the divisional van tried to pull you over, were influenced by the disinhibition caused by the alcohol and cannabis you had consumed in the hours before the collision.

16      This then is a death by culpable driving, caused by a person disinhibited by drugs and alcohol who drove at excessive speed, over 120 kilometres an hour at the point of impact, in an 80 kilometre per hour zone, in a car whose handling and potential defects he were unfamiliar with, who went through two red lights, in an effort to avoid the consequences of driving without a licence, in a stolen car, and with alcohol and cannabis in their system. It is this combination of factors which makes it a serious example of this serious offence.  

17      The futility of the loss of Mr Deng’s life is all the more apparent when one considers how minor the likely consequences of your breaches of the law (car theft, unlicensed driving, exceed the prescribed content of alcohol) were, compared to the consequences of the risks you took in driving as you did, imperilling other road users, and causing the death of Mr Deng.  Having regard to your previous court appearances, you would have known that fines, and further period of licence disqualification were the likely result of such apprehension.

18      The need to denounce such conduct, to punish you, and to impose a sentence that stands as a deterrent is clear.  There is no excuse for driving at highly dangerous speeds.  There is no excuse for not pulling over when required by police.  There is no excuse for speeding off in a futile and dangerous attempt to avoid facing the consequences of your own misconduct – driving a stolen car and driving without a licence, or driving with alcohol and drugs in your system.  There is no excuse for putting other road users at risk of death or serious injury.  There is a particular need to impose a sentence that marks the seriousness of refusing to pull over when directed by police and speeding off so imperilling others in the course of a police pursuit.

19      The death of Mr Deng – a passenger in your car should also serve as a warning to people not to get into cars with people who are, or may be affected by alcohol or drugs.  His choice to accompany you does not absolve you of responsibility for causing his death by your driving, but it should make people stop and think about the risk they may be killed or seriously injured if they entrust their safety to a driver who is substance impaired.

20      You are 23 years of age, and come from a large Maori family who moved to Australia from New Zealand when you were very young.  You struggled at school and by 2001 had been diagnosed with a mild intellectual disability.  It would appear that you always needed the assistance of a teacher’s aide at school.  You left school at the end of Year 8 or in Year 9.  As a child, you displayed much anger and at times violence.  Shortly after leaving school, your mother was forced to ask you to leave home because of the risks your anger and violence posed towards your younger siblings.

21      You spent the next two years living an aimless and rootless existence.  You lived in various boarding houses or other unsatisfactory short-term accommodation arrangements.  Your cannabis and alcohol abuse escalated. You mixed with other young people living similar alcohol and drug addled lives in unstable accommodation in the Dandenong area. 

22      At about the same time as you were asked to leave home, your parents separated.  You then spent a considerable amount of time with your father to whom you had always been very close.  He was a heroin addict and an abuser of alcohol and other substances.  I was told he exercised no effective supervision over you and did nothing to control your lifestyle.  When you were 18 he took his own life.  He had apparently threatened to do so some months earlier and nobody, including you, had taken his threats seriously.  The effect on you of that compounded your already erratic and dangerous lifestyle and you continued to abuse alcohol and cannabis.  Your mother eventually allowed you to return home and for most of the time since then you have lived with her.

23      You have not worked since 2008 and your employment before then can best be described as desultory.  Since 2008 you have been in receipt of a Disability Support Pension, and your mother has managed your income.  A combination of attitude and impairment has rendered you unemployable.  You have no hobbies or interests. Since your mid teens it would appear you have done nothing other than “hang out”, drinking and smoking cannabis.

24      Not surprisingly, given this history, you have been charged and appeared before courts on a number of occasions:  twice before the Children’s Court in October 2006 and January 2007, and on four occasions before the Magistrates’ Court between July 2008 and September 2011.  The offences for which you were dealt with are reflective of the history I have recounted.  Some relate directly to abuse of cannabis or alcohol.  The other offending covers a range of low level offences: violence, dishonesty, weapons possession and property damage.  You have one previous conviction, in September 2011, for exceeding the prescribed content of alcohol (with a reading of .075) and driving in breach of the terms of a Learner’s Permit, namely without a licensed driver and without displaying your L plates.  You were disqualified from obtaining a licence for six months.  That period of disqualification had expired by the time of the commission of these offences, but you had not applied for or obtained a Driver’s Licence.

25      The penalties imposed upon you all had a strong rehabilitative focus.  You were variously placed on bonds, Children’s Court probation and community based Orders with special conditions that you participate in anger management or drug and alcohol courses.  On one occasion you were sentenced to a period of detention in what was then called a Youth Training Centre, but that was varied on appeal to a community based Order.  Although your record shows no breaches of any of the Orders, it is clear that the rehabilitative Orders have not been of any success in curbing your drinking or cannabis use.  In addition, I am told that you have been arrested for drunkenness on numerous occasions and held until you had sobered up.  You have apparently participated in detoxification programs on a number of occasions but have not followed up with any longer term treatment.

26      I was provided with a comprehensive report from Mr Martin Jackson, a clinical neuropsychologist.  He conducted his own testing of you in May this year, and had access to three earlier neuropsychological assessments conducted in 2001, 2008 and 2010.  There were discrepancies between the results in the previous assessments, which made it difficult to determine your true premorbid ability. He considered that the results he obtained were likely to be valid and reliable. 

27      Mr Jackson’s report satisfies me that you were diagnosed in childhood with borderline abilities or a mild intellectual disability, and that there has been a deterioration in your cognitive functioning in recent years.  You now have a severe impairment of immediate memory span, working memory, higher level attention skills and new learning memory, and a mild impairment of your executive skills.  I accept Mr Jackson’s opinion that substance abuse is the main cause of that deterioration.  I also accept his opinion that there is a clear connection between your premorbid cognitive difficulties, your ongoing substance abuse and acquired brain injury and the offences.

28      I accept that you are genuinely remorseful.  From the moment you were told that Mr Deng had died, you acknowledged responsibility, saying to the police at the scene, “I’ve killed my friend”.  When interviewed, consistently with the hospital diagnosis of retrograde amnesia, you said you had no memory of the events.  But you did not challenge the police account of what had happened, or seek to justify or minimise your behaviour.  And, consistently with your accepting the truth of what you were told of the circumstances in which Mr Deng met his death, you indicated at the earliest opportunity your intention to plead guilty to these charges.

29      You have written a letter of apology to Mr Deng’s family, part of which, at your request, your counsel read aloud in Court.  In it you said this:

“I am sincerely sorry for taking your son’s life before his time.  I know that nothing I say or do will bring Luka back or take the pain I have caused to the Deng family away.  What I have done is something that I must live with for the rest of my life and for taking Luka’s life I am forever so sorry.  I understand that you may not even want to read this letter but I hope in the future the Deng family can find it in their hearts to forgive me.”

30      I accept this is a genuine expression of remorse.  By that, I mean it is an acceptance of responsibility for what you have done and an expression of consideration and concern for Mr Deng’s family.  It is clear that this is not simply a reflection of being sorry for yourself and the situation you find yourself in.  I was told you received some assistance from an education aide in writing the letter, but the sentiments, and manner of expression are your own.  When considering what insight that gives into your overall functioning, I am conscious of Mr Jackson’s assessment that your verbal fluency skills are higher than your other cognitive skills, which means you will present as verbally much better than you are.

31      I was struck, during the hearing of the plea, by the responses of your family, to the reading aloud of the Victim Impact Statements of Luka Deng’s mother and uncle.  It was clear that they were genuinely moved and distressed by the suffering of the Deng family.  A letter written by your mother was tendered during the hearing. She began, and concluded it, with an apology to the Deng family, and with expressions of sympathy for the Deng family, and acknowledgement of their loss.  She said:

“First and foremost, I want to express my sympathy and apologies to the Deng family for their loss.  My family and I have carried this burden for six months but we will carry this for many years to come.  Our deepest apologies to all the Deng family”

She concluded by saying

“As a mother this has taken its toll on me.  I love my son.  I will always be there for him.  I also know that I can visit my son and talk to him.  For the parents of Luka Deng, they can’t.  Once again, we are so sorry for their loss.  There are no words we can say to take away their pain.”

This speaks well of the values you were exposed to when growing up. 

32      Although you came to Australia at the age of three, you have not taken out Australian citizenship.  You now face a risk of deportation, as conviction for these offences will trigger the character test under the Migration Act 1958 (Cth). As Mr Gibson pointed out, the outcome of that is uncertain. I take into account the fact that during your term of imprisonment you will have hanging over your head the unresolved prospect of deportation, to a country you have not lived in since you were three, and where you have no immediate family or friends. I accept that that will make imprisonment more burdensome for you.

33      Other factors making imprisonment more burdensome for you are your intellectual and cognitive impairment, your relative youth, the fact that this is your first time in prison, and your vulnerability to developing depression or anxiety.  I take all of these matters into account.

34      I accept that your pleas of guilty, and the stage at which they were entered entitle you to a reduction in the sentence otherwise to be imposed.  I accept that they carry more than utilitarian benefit, something which in itself is significant.  For the reasons I have outlined I accept that they evidence genuine remorse, and acceptance of moral culpability. 

35      Culpable driving is one of those offences where considerations of denunciation, just punishment and deterrence are generally significant sentencing considerations.  I was referred to the recent decision of DPP v Hill [2012] VSCA 144. There the Court referred to a number of statements about the seriousness of the offending including the following:

Vincent JA in R v Withers [2003] VSCA 176:

“There is no need to recite yet again the many expressions of the seriousness with which the crime of culpable driving is viewed by this Court. They can be found in such cases as Wareham, Solomon, O'Connor and Scott.  The offence is now regarded as a species of involuntary manslaughter and in this context it must be borne in mind that the legislature has fixed a maximum penalty of imprisonment for 20 years, the same as that available for manslaughter.”

36      And Warren CJ, in R v Franklin [2009] VSCA 77 at [12]:

“Cases of culpable driving continue to come too frequently before the courts.  What is so striking about these cases is that one moment in time can have such devastating consequences. As already observed, culpable driving is punishable by 20 years’ imprisonment.  Such a severe maximum penalty reflects the gravity of the offence and the culpability of the perpetrator.”

37      In your case, those considerations must be tempered because of the combined effect of your mild intellectual disability and the acquired brain injury caused by your excessive consumption of alcohol and cannabis since your mid teenage years.  The prosecution accepted that the evidence relied on by you, in particular what is contained in the report of Mr Jackson, establishes that there is a causal connection between these impairments and the offending.  Thus, the weight to be given to your moral culpability must be evaluated by reference to the causal connection between those impairments and the offending. The weight to be given to deterrence, both general and specific, must be also moderated. 

38      It is important to analyse the causal connection between your mild intellectual impairment, and the deficits in cognitive functioning caused by the abuse of alcohol and cannabis, and the offending.

39      The causal connection has two aspects which require consideration.  First, the effect of your impairments on your conduct, in particular, in making the choice to drive in the first place, and then to drive away at high speed in an attempt to avoid apprehension.  The second aspect is concerned with the effect of your impairments on your ability to drive safely.  Both of these must be considered in the context of the alcohol and cannabis in your system at the time of the driving. It must be borne in mind that this is not a case where alcohol and cannabis so impaired your driving as to make your manner of driving fall so far below the standard of care expected of drivers as to make you criminally responsible, this is a case where alcohol and cannabis impaired your already compromised cognitive functioning.

40      So far as the first of those is concerned, the effect of your intellectual and cognitive impairments on your choices to act as you did, Mr Jackson made it clear first, you know right from wrong, and secondly, that it is the effect of alcohol on you, which caused a loss of inhibitory control.  In dealing with your account to the police that you “blacked out”, he said:

“When a person is in an alcoholic black-out they are still conscious, talking and doing actions.  However their cognitive function is acutely affected to the point where they have no memory of events or actions later and they lose inhibitory control.  In other words, they become impulsive and react to triggers without any consideration of what they are doing or its consequences.  It should be noted that there is no impact on moral function in a black-out (knowing the difference between right or wrong), but the person just cannot control what they are doing.”

41      This reference to a person’s  inability to control what they are doing must be understood in the context of your guilty pleas. Taken out of context, the reference to inability to control actions would suggest you were not guilty of these offences, because your actions were involuntary, by reason of intoxication.  In context, it must be taken to refer to the disinhibiting effect of the alcohol you consumed that night which led to your acting impulsively, without consideration of the consequences.  Your already compromised ability to anticipate the consequences of your behaviour was further compromised by your consumption of alcohol.  You were well aware of the effect of alcohol and cannabis on you.  Although the weight to be given to your moral culpability is reduced by your intellectual and cognitive impairment, you cannot absolve yourself of all moral responsibility for the disinhibiting effect of the alcohol you consumed.

42      So far as the second aspect is concerned, it would appear your acquired brain injury, the alcohol and cannabis related cognitive impairment is now so severe that you are unfit to hold a driver's licence. As you had apparently held a learners permit, but had not obtained a driver's licence, there had been no opportunity for the RTA to assess the impact of the impairments to your immediate memory span, working memory, higher level attention skills, new learning memory and executive skills on your ability to safely drive a car. It was not suggested your intellectual impairment or your later acquired cognitive impairment  were responsible for your failing to apply for a licence and submit to licence testing. The evidence does not indicate you were aware of the effect of your impairments on your ability to drive safely, or to pass a licence test, and made a conscious choice not to apply for a licence to avoid being found unfit to hold a licence.  However, the failure to submit to the application and testing process for a licence means the RTA was not given the opportunity to assess your ability to drive.  I do not consider these matters justify any reduction to the weight to be given to your moral culpability.

43      The consequences of the combination of the intellectual impairment and the impairment to your cognitive functioning caused by your abuse of alcohol and cannabis are such that the weight to be given to both general and specific deterrence must be moderated.  You have limited insight and a very limited capacity to change your behaviour. 

44      Mr Jackson’s report makes it clear the risk of further offending is substantial, and compounded by your substance abuse.  The very factors that operate to moderate general and specific deterrence also point to your high risk of re-offending and to the need to consider how best, within the proper bounds of sentencing, to protect against further offending by you. Your prospects for rehabilitation can only be described as bleak.   

45      In considering your prognosis, Mr Jackson said that it is unlikely that you will experience a significant recovery of function.  Your current level of functioning, after five months of enforced abstinence form alcohol, is the best it is going to be.  Although imprisonment has meant enforced abstinence from cannabis and alcohol, there is no confidence that you have the will or capacity to remain substance free upon release.

46      Mr Jackson said:

“The severity of Mr Lucky’s cognitive problems, especially his memory, means that he has practically no capacity to learn new information and will resort to well learned behaviours.  He does not have the ability to anticipate the consequences of his behaviour.  His ongoing use of substances will make this even worse, especially when he is in a black-out, as was the case with the current offences.”

47      Mr Jackson stressed the importance of your remaining abstinent from substances in the future if you are not to sustain additional cognitive impairment.  Having regard to your history, he noted that if you resumed substance use again, you are highly likely to return to heavy use. 

48      In his opinion, any change in your behaviour will come about from a change in your environment.  Substance use is likely to decrease only if there is reduced access; that is, if you do not have money to buy substances and do not mix with other people who abuse substances.

49      He considered talking therapy such as counselling to assist you to change your substance use and lifestyle will be a “complete waste of time”, given your poor cognitive skills, especially your poor memory and Grade 4 level language skills.  He says you do not have the capacity to understand abstract concepts, to remember what is discussed from week to week or to put learned new responses to situations into effect.  Written information is of no use given your poor literacy skills. 

50      You are fortunate in that you have family support.  Your mother and many family members were present at Court on the hearing of the plea.  They have maintained contact with you while you have been on remand.  Your mother has  promised to provide you with accommodation and support upon your release.  Whilst family support is a factor which can support rehabilitation, and reduce the need to give weight to specific deterrence, I note you were living with your mother, and that she was managing your finances at the time of the offending.  That clearly was not effective in limiting your access to alcohol and cannabis.

51      In my view, this demonstrates the need for strict supervision of you on your release into the community, in order to provide you with the supports which will maximise your prospects of remaining substance free, and so, offence free. This can be best achieved by allowing a considerable gap between the head sentence and the non-parole period.

52      Mr Grant submitted that the range for the total effective sentence was between five and six years.  Mr Gibson did not demur from that.  It was common ground that there should be some but not total cumulation between the charge of theft of a car and culpable driving, and that the penalties for the related summary offences should be concurrent with the penalty for culpable driving.  I agree.

53      In discussions with counsel, it was acknowledged that this was an appropriate case for a considerable gap between the head sentence and the non-parole period, having regard to the opinions of Mr Jackson, and his recommendations as to the steps that would need to be taken in order to assist you to remain offence free upon release.

54      I must disqualify you from driving, or obtaining a licence for a minimum of two years.  Having regard to the evidence of Dr Odell and Mr Jackson as to your unfitness to hold a licence, I invited submissions from counsel as to whether I should disqualify you from ever obtaining a licence.  The Sentencing Act 1991 and Road Safety Act 1986 are silent on whether licence disqualification can be for life or must be for a term of years. There is some support for the view that disqualification must be defined by years, not life. There is no authority of which I am aware or which counsel have been able to identify, which would support life disqualification.

55 Once I disqualify you from obtaining any licence for any time limited period, you cannot, pursuant to s.89(2) of the Sentencing Act 1991, obtain a Driver’s Licence except on order of the Magistrates’ Court. Section 89(3) requires written notice to be given to the Chief Commissioner of Police and the Registrar of the Magistrates’ Court where application for re-licensing is made. By s.89(3)(e) the Magistrates’ Court must hear any evidence tendered by an applicant or the Chief Commissioner of Police, or any evidence of a registered medical practitioner required by the Court, in deciding whether to make or refuse an order that a person be re-licensed. The informant has undertaken to provide to the Chief Commissioner of Police the reports of Dr Odell and Mr Jackson.

56      In those circumstances, I am satisfied that the need to protect the community, from your obtaining a Driver’s Licence will be appropriately protected, by the provision of these reports to the Chief Commissioner for the purpose of use inf any application under s.89 is made by you.

57      That then brings me to the sentences.  Could you stand please Mr Lucky.

Sentences

58      On the two charges, and the three related summary charges to which you have pleaded guilty you are convicted. 

On charge 1, theft of a motor vehicle, you are sentenced to be imprisoned for a period of 12 months.  I direct that six months of that be served cumulatively upon the sentence on charge 2, which will be the base sentence. 

On charge 2, culpable driving, you are sentenced to be imprisoned for a period of five years and 6 months. 

On the first related summary charge of exceeding the prescribed concentration of alcohol, you are sentenced to be imprisoned for a period of one month. 

On the charge of unlicensed driving, you are sentenced to be imprisoned for a period of one month; and

On the charge of failing a drug blood test, you are fined an amount of $500.00. 

That makes a total effective sentence of six years and I fix a period of three years and six months as the minimum time you must serve before being eligible for parole.

59      I declare that you have spent 184 days in pre-sentence detention and direct that be counted and reckoned as part of the sentence already served.

60 Pursuant to s.89(1)(c), s.89(4)(b) of the Sentencing Act and s.28 Road Safety Act all licences held by you are cancelled and you are disqualified from holding a Driver’s Licence for a period of five years.  I direct that the reports of Dr Odell and Mr Jackson be retained by the Chief Commissioner of Police and provided to the Magistrates’ Court in the event that you ever apply for a licence. 

61 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty I would have sentenced you to a term of imprisonment of 18 months on Charge 1, eight years on Charge 2, and two months on each of the first and second related summary Charges.  With partial cumulation I would have fixed a total effective sentence of nine years, with a non-parole period of six years and six months.

62      I also make the Disposal Order sought.

63      Do the sentences that I have pronounced reflect what I said I intended to do and is the arithmetic and the calculations correct?

64      MR GIBSON:  Yes, Your Honour, I think we agree.

65      HER HONOUR:  Yes.  And I understand from the prosecution summary that the third related summary charge of failing a drug test is punishable by fine and not by a term of imprisonment.

66      MR O'HALLORAN:  Yes, Your Honour.

67      HER HONOUR:  Right.  Any further orders required to be made?

68      MR O'HALLORAN:  Nothing arising.

69      MR GIBSON:  No, Your Honour.

70      HER HONOUR:  Thank you, could you remove Mr Lucky please.  Adjourn.

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