Director of Public Prosecutions v Lumanovski
[2013] VCC 1481
•8 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-12-01505
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AGIM LUMANOVSKI |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 June 2013 (Plea); 31 July, 28 August, 27 September 2013 (Further Pleas); | |
DATE OF SENTENCE: | 8 October 2013 | |
CASE MAY BE CITED AS: | DPP v Lumanovski | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1481 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence - Dangerous driving causing serious injury - Exceed blood alcohol concentration - Unlicensed Driving - Two victims - Significant relevant criminal history - Factual dispute on plea - Whether R v Verdins applies
Cases Cited: R v Verdins (2007) 16 VR 269
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Taylor | Mr C. Hyland, Solicitor for Pubic Prosecutions |
| For the Accused | Mr C. Kilias | Mr George Vassis |
HER HONOUR:
1 Agim Lumanovski, you have pleaded guilty to two charges of dangerous driving causing serious injury. This offence has a maximum penalty of five years' imprisonment and in respect of each of these charges I am required to disqualify you from driving for a period of 18 months. Further, you have pleaded guilty to the summary offences of exceeding the prescribed concentration of alcohol and unlicensed driving. The maximum penalty for exceeding prescribed concentration of alcohol is 18 months imprisonment or a fine of 180 penalty unites and you must be disqualified from obtaining a licence for at least 40 months. The maximum penalty for unlicensed driving is 25 penalty units or 3 months imprisonment and I have a discretion to disqualify you from obtaining a licence for such period as I deem fit.
2 Your offending was opened as follows.
3 At about 11.45 pm on Saturday 2 April 2011, you were driving a Ford Territory station wagon outbound on the Monash Freeway. At the time, the prescribed speed limit was 80 kilometres per hour. You have never held a driver’s licence in Victoria or elsewhere in Australia.
4 Other motorists travelling eastbound on the freeway observed that you were:
(a)ducking and weaving in traffic;
(b)lane hopping;
(c)tail-gating another vehicle to get around it;
(d)flying past;
(e)travelling between 95 and 100 kilometres per hour.
5 As you approached the Warragul Road exit, your vehicle moved from the second left lane to the left lane and then into the emergency lane.
6 Stationary in the emergency lane with hazard lights on was a Holden Commodore station wagon. Robert and Jacqueline Hower were sitting in the car, waiting for RACV assistance. Fortunately, for them and for you, they had their seatbelts on.
7 As you came closer to their car, you swerved to the right, but collided with the back of their vehicle.
8 The victims’ car was jolted forward into the side concrete wall of the freeway before coming to rest almost 11 metres from where it had been stationary. The back driver’s side of the car was crushed forward by 55 centimetres. Both of the victims were trapped in the car. Emergency service personnel attended and both were taken to The Alfred Hospital.
9 The force of impact caused your car to become airborne and rotate anticlockwise. It came to rest in the second left lane of the freeway. You were able to walk away from your car, which did not contain any passengers.
10 Your car smelt strongly of alcohol and the driver’s seat was wet with a large amount of liquid on it. Liquid had splashed up onto the inside of the driver’s side of the windscreen. There was an open can of Johnny Walker and Cola in the driver’s side footwell. In the passenger footwell, there was an open Corona bottle and an open Heineken bottle with beer still in it.
11 As a result of the collision, Jacqueline Hower suffered an occipital scalp haematoma and an inter-spinous ligament sprain. She was discharged from hospital on 6 April 2011. She had to wear a neck brace for two months as a result of her injuries. For seven weeks after the collision, she was unable to drive or work and took painkillers in order to manage neck and shoulder pain. Mr Hower suffered a laceration to the forehead, moderate joint effusion to his left knee, neck pain and cuts and bruises. He was discharged from hospital on 5 April 2011. He continued to suffer pain for weeks after the collision.
12 At the scene of the collision, another motorist approached you to check if you were all right. You said, “I'm screwed … this is what I was doing when I crashed.” As you said this, you made a scrolling motion on the mobile phone in your hand. You smelt strongly of alcohol and your speech was slurred. You said, “I know I shouldn’t have been driving. I've had too much to drink.” Police spoke to you at the scene and cautioned you. When asked if you had been drinking, you said, “Look, I'm drunk.” When asked whether you were on the phone, you said, “Yeah, I was driving and I was sending the missus a text message.”
13 At the scene, you complained of chest pains. You were taken to St Vincent’s Hospital. At 1.30am the following morning, which was about 1 ¾ hours after the collision, a sample of your blood was taken and analysed. It was found to contain 0.201 grams of alcohol per 100 millilitres of blood.
14 Reconstruction of the collision was undertaken and revealed the following matters.
15 The impact speed of your car was in the range of 79 to 92 kilometres per hour. If there was a braking by your car before collision, its travel speed would have been higher than its impact speed.
16 The speed change experienced by the other car during impact would have been between 42 and 49 kilometres per hour.
17 The Commodore was parked as close as it could have been to the left side of the concrete wall when it was struck. There was almost a metre between the Commodore and the solid white line marking the division of the left hand traffic lane and the emergency lane.
18 You were interviewed by police at the Malvern Police Station on 28 June 2011 – that is, nearly three months after the collision. You admitted being the driver of the vehicle and said:
“After a local soccer game I went to the Casino with a friend. He drove my wife’s car. I got a phone call from my wife saying that our daughter was ill. My friend refused to leave. I had no money to ring a taxi. I wasn’t thinking straight, my wife was panicky over the phone so I said, ‘Okay, I'll be there in half an hour’.
I should not be driving, but as I said my daughter was ill, I had to go home in an emergency situation, I took a risk. I think many people would do the same.”
19 You denied telling police at the scene that you were sending a text message at the time of the collision and said that the phone went off and you jumped – then you went to get it. You further said that your wife had text messaged you and that was how the phone went off. You then grabbed the phone. You said that when you put your hand to get back, that is when you hit the car. On impact, the phone was still in your pocket.
20 You said that you did not see the Commodore in the emergency lane and said that there was a lot of road works and you were driving at about fifty. You said that the Commodore did not have its hazard lights on and “they were sleeping in the car”. You said you did not see anything in front of you when the phone rang, because your mind was on the phone. You lost concentration for a second and then said “What was the car doing there anyway?”
21 When asked if you thought you might have been over the legal limit, you said “Well, absolutely … because I'm meant to be zero.” You told police:
“I had no more than five drinks that night.
I had my first drink at 7 pm and last about 11 pm.
I do not believe that I was, at that time, over the limit. I thought I was okay. I didn’t think I was intoxicated, no.”
22 You said that you did not believe that you were reckless and also said “Everyone gets distracted.” You also said that if you could do anything to change that night, you really would and that you really felt for “those two people”. You said that it had been with you ever since that day and you had been thinking of those two people feeling “like shit”.
23 Although Victim Impact Statements were not provided, it is not difficult to imagine that over and above the physical injuries, the impact to each of the victims would have been significant in terms of their experience of the collision and its aftermath. They were sitting in their car in an emergency lane waiting for help one minute - the next minute, your vehicle had ploughed into theirs, and whilst you walked away, although you did have some injuries which were treated later it would seem, they were trapped in their car and in need of hospitalisation.
24 Mr Lumanovski, these are most serious examples of this offence which call for strong punishment and your conduct must be denounced in all of the circumstances. The dangerousness of your driving comprised a number of factors including intoxication, inadvertence to the roadway, and travelling in a most erratic manner, including driving into an emergency lane when you had no entitlement to do so.
25 Further, there are aspects of your record of interview which, in my view, are disingenuous to say the least. These are as follows:
26 That you were driving at about 50 kilometres per hour.
27 That the Commodore did not have its hazard lights on and that the occupants were sleeping in the car, and also that you did not think you were drunk. One of the lay witnesses attested to the fact that you knew very well you were drunk. Further, you were asking the police what the car was doing there anyway. The assertion that the hazard lights of the car were not on smacks of seeking to blame the victims to a degree for your dangerous driving. Although you expressed concern for the victims at some stage in that record of interview, there is certainly an intermingling of this with blame upon the very people whom you had seriously injured.
28 Fortunately for the victims and for you, the injuries were not worse than they turned out to be – although, they were serious enough. Indeed, as your counsel correctly acknowledged on the plea, you could have killed the victims. However, I take into account the injuries which have been sustained rather than what might have been, although I must also take into account the high degree of dangerousness involved in your driving which gives rise to the offences.
29 You have a relevant and most concerning criminal history, as follows:
30 On 8 November 1996, at the Prahran Magistrates Court, you were dealt with for exceeding prescribed concentration of alcohol where your blood alcohol content was 0.065 per cent. You were disqualified from driving for 12 months. You were also dealt with for unlicensed driving and your licence was cancelled for three months with exceeding the speed limit of 60 kilometres per hour and you were disqualified from driving for six months. On all charges, you received an aggregate fine of $1,000.
31 On 11 August 1997, you were again dealt with for exceeding prescribed concentration of alcohol – the blood alcohol content was not known, and you were disqualified from driving for 12 months. You were also dealt with for careless driving, unlicensed driving and driving an unregistered motor vehicle – on all charges you were fined $1,250.
32 On 19 September 2003, you were again convicted of exceeding prescribed concentration of alcohol, where your blood alcohol content was 0.083 per cent and you were also dealt with for unlicensed driving and driving in excess of the speed limit. You were fined an aggregate of $2,000 and disqualified from obtaining a licence for two years.
33 On 24 March 2004, you were again convicted of exceeding prescribed concentration of alcohol where your blood alcohol content was 0.065 per cent and again convicted of unlicensed driving. You were sentenced to a term of imprisonment of two months and fined an aggregate of $750 and you were disqualified from driving for 12 months.
34 On 4 December 2006, you were convicted of exceeding prescribed concentration of alcohol once again. This time your blood alcohol content was 0.122 per cent. You were sentenced to six months' imprisonment which was wholly suspended for 12 months. You were disqualified from driving for four years.
35 You have also been found guilty of behaving in an offensive manner in a public place in 1996, wilful trespass, drunk in a public place and fail to answer bail in 2001, having failed to appear in relation to the other two charges in March 1999.
36 It is a apparent, therefore, from your criminal history that on five occasions before the offending for which I now sentence you, you have been before the Courts for driving whilst unlicensed and whilst in excess of the prescribed concentration of alcohol. Moreover, on 21 December 2011, about eight months after the offences were committed for which I now sentence you, you were again caught behind the wheel with alcohol in your system. On that occasion, you had a reading of 0.101 per cent. You were dealt with for this matter on 8 February this year and sentenced to two months imprisonment wholly suspended for 12 months and received the benefit of an adjourned undertaking for yet another charge of unlicensed driving. This subsequent matter has a tendency to undermine your expressions of remorse to the police in June 2011 in respect of the offences for which I now sentence you.
37 Your driving on the occasion for which I now sentence you was disgraceful, especially in light of your criminal history. Notwithstanding that you caused serious injury to two people whom you failed to observe on the night in question, you apparently saw fit to get back into a motor vehicle, again unlicensed, eight months later, with yet another high blood alcohol reading. These are matters which are relevant to the weight I need to attach to the protection of the community and specific deterrence and are also relevant to my assessment to your prospects of rehabilitation.
38 In your record of interview which was conducted some time after the collision, as well as in your report to Mr Lamberti and Mr Watson-Monroe, and at the plea hearings, your position was that you drove on the occasion for which I now sentence you because your wife had phoned you to tell you that one of your children was ill and that she wanted you to come home. This was put forward as a matter in mitigation. Before I was prepared to accept such an explanation as well as the explanation that you gave to the police that you did not have enough money to pay for a taxi home, I required evidence to be provided which satisfactorily supported these matters. I allowed your counsel more time in order to gather such evidence as well as to explore the possibility of obtaining a psychological report. I have now heard evidence from your wife and from you in relation to the circumstances giving rise to your driving on the occasion for which I sentence you. Your wife said that she had called you to come home because your daughter, an asthma sufferer, was having an asthma attack and she wanted to take her to the hospital. She agreed with Mr Kilias that she also wanted you home as your daughter was ill. She said that she did not call an ambulance as the asthma attack was not that severe, that it fluctuated in intensity, but that she eventually walked to your parents’ house, which is where she had been when your daughter apparently first became ill, and obtained some Ventolin, as your father had this for his asthma. She said that the Ventolin fixed the problem. Mrs Lumanovski said that she did not take your daughter to the hospital but that she did take her to the doctors the following week where she was prescribed Ventolin.
39 Following the further plea I made it clear in an email sent through my associate to Defence in which the Crown was copied in, that it was open to you to provide me with evidence of this visit to the doctor that your daughter apparently made the following week. Mr Kilias told me this morning that the difficulty had been that Dr Baldwyn had retired from the practice two years ago and the family now sees another doctor at a different practice. It would appear that no attempt had been made to obtain a letter from the practice where Dr Baldwyn had worked to verify the child's attendance, although it appears that the email which I had arranged to be sent was only sighted by legal representatives fairly late in the piece prior to today's hearing.
40 In your evidence, Mr Lumanovski, you said that you wanted to get home as you were concerned for your daughter. The explanation which you gave in your record of interview or subsequently is not an explanation you gave to any witness at the scene on the night in question. Further, in your interview with police, you said you did not have any money to ring a taxi and that your friend refused to leave the casino. However, when giving evidence before me, you said you did have money for a taxi, but that there was too long a queue of people waiting to take a taxi at the cab rank which led you to your decision to drive home. The friend to whom you referred was not called to give evidence. When asked to give the name of this friend by the learned prosecutor at the further hearing you gave the name Roger Lumanovski who you said was a relative of yours. According to you, he told you not to drive on that night. I was told by your counsel that no phone records were available any longer to substantiate the purported phone calls between you and your wife on this occasion of the offending.
41 In all the circumstances, notwithstanding the Crown submission which seems to accept your explanation for driving on the night of the offending, I am not satisfied on the balance of probabilities that this was the reason you drove home on this occasion. The evidence presented in support of this explanation is so lacking in quality and substance, with all due respect to your wife, that I cannot find that this is a genuine explanation for you taking the decision to drive home on this occasion. Further, your change of explanation for not taking a taxi home significantly undermines your credibility in a material way. However, even if I were satisfied that the reason that you drove on this occasion was out of concern for your sick daughter, you knew very well that in no circumstances were you permitted to drive, much less whilst being affected by alcohol, and such an explanation as you have proffered for this would have been of little mitigatory weight in any event.
42 You have never obtained a driver’s licence whilst in Australia, although you have held a driver’s licence overseas. This has not been a question of you never being able to obtain a licence – you have simply chosen not to obtain one, as I understand it, and it appears you are prone to flout the law by getting into a car at your disposal whilst in excess of the blood alcohol limit.
43 There was an issue raised by the prosecution at your further plea hearing as to the duration of your abstinence from alcohol consumption and evidence was called in relation to this. Having heard the evidence, I am not satisfied beyond reasonable doubt that you had consumed alcohol on the occasion in question, being a number of days before the first plea hearing. At the further plea hearing you gave evidence that you had had your last drink on Australia Day 2012 and from this, your counsel made submissions on the basis that you had abstained from alcohol for 18 months. This was not consistent with Mr Lamberti's evidence. In his report Mr Watson-Munro refers to you having advised him that you had abstained from alcohol for the past seven months, which would have taken you to approximately January 2013 or perhaps December 2012. I sought clarification as to the defence position in respect of this matter, having ordered transcript of the first and second hearing plea hearings of the proceedings. I understand that the position is as follows:
44 I was told that when you said you had had your last drink on Australia Day 2012, this was a reference to a drinking session but that you had completely abstained from alcohol since the beginning of this year.
45 While I am not satisfied beyond reasonable doubt that you had consumed alcohol on the day that Constable Marino spoke with you in St. Kilda, I suspect that you had and I also suspect that you were the one who had been driving your wife’s car on that occasion. However, I shall put those suspicions to one side and sentence you on the basis that you were not driving on that occasion and you had not consumed alcohol. Therefore, I sentence you on the basis that you have abstained from consuming alcohol completely for about nine months, which is a matter in your favour.
46 You are now 40 years old and your wife attended Court at the plea hearings in support of you.
47 I take into account your background:
48 Both you and your wife are of Macedonian background, although as I understand it you were born in Australia. You met your wife in Macedonia when you were nineteen years old. You married when you were twenty and lived in Macedonia until you were twenty-three years old. You were required to do military service in Macedonia which Mr Killias posited in the initial plea hearing as being perhaps the period during which you developed a problem with alcohol. I was told that each morning during your military service, you and other soldiers started the day with a couple of shots of raki in order to warm up. However, in Mr Watson-Monroe’s report it appears that you told him that your problems with alcohol commenced when you became caught up in the nightclub scene after this period. In any event, it appears that you have had a long standing problem with alcohol and have tended to engage in binge drinking in the past.
49 After military training you returned to Australia. You and your wife have had three children, one of whom is twenty years old and the other two, who are twins, are seventeen. Your wife works full time at a factory and earns $500 per week whilst you work as a furnace operator with a company where you have worked your way through the ranks over the past twelve or thirteen years. I take into account in your favour, the references provided by Mr Gallacio and Mr Chaudry, both of whom speak highly of you in respect of your work and character. You are now in a reasonably senior position at the company and also a union delegate. I was told that you earn between $1,300 and $1,500 per week and receive a loading with respect to various shifts. I was told that you have a mortgage to the extent of $370,000 with the Bank of Queensland and are liable for repayments of $2,200 per month.
50 I take into account as a hardship to you that it is unlikely that you will be able to resume employment with your former employer upon release from prison. I also take into account the letter I received today from your daughter, Albiona, who speaks so highly of you as a father and the distress she and the rest of her family is suffering in your absence. Unfortunately, these are the very sad consequences of your offending. However, it was not put and in any event, I could not find, that the hardship to your family is exceptional, which is what I would have to find in order to make a further allowance in your favour.
51 At the initial plea hearing, I was told by Mr Kilias that you had not been functioning normally until up to the last few months, but since undergoing treatment with Mr Lamberti, you have changed course. Mr Lamberti, of Lamberti & Associates, gave evidence that on 15 September 2012 you attended his offices and he conducted an assessment of you. He said that treatment with him had continued since then with the last session being on 20 June 2013. He said that when he first saw you, you did not think you had a problem with alcohol. Alcohol was not permitted in your home in keeping with your Muslim faith. Although not a devout Muslim, your household observed this custom, and your wife does not tolerate alcohol in the house. However, you have consumed alcohol over the years with your workmates and at sporting events. I was told that you have a low threshold of intoxication and engage in binge drinking. I was told by Mr Lamberti that once you have one or two drinks, you lose your ability to maintain rationality and to control your alcohol consumption from there.
52 According to Mr Lamberti, you admitted that when you are affected by alcohol, your judgment is skewed and you make ill-informed decisions, such as the decision to drive on the night for which I sentence you. He was of the view that you had a tendency to transform situations into emergencies and take risks, which is evidence he gave in the context of your explanation for driving on the night of the collision.
53 He said that you now accept that abstinence is the only answer and you appreciate that your driving on the occasion for which I sentence you could have proven fatal for the victims, and no doubt, for you. Mr Lamberti said that you have made significant lifestyle changes in terms of your outlook and now family and work take up most of your time. Your sessions with Mr Lamberti are fairly random because of his commitments, he said. On the occasions that he has conducted urine analyses he has found you to be alcohol free.
54 Mr Kilias told me that last year you acquired a good deal of annual leave and worked on an oil and gas rig in order to make as much money as possible in preparation for you perhaps being incarcerated for the offences for which I now sentence you. You were trying to do what you could in order to ensure that the family unit survived financially whilst you were in gaol.
55 You were seen by Mr Tim Watson-Munro, who is a consultant forensic psychologist, on 21 July 2013. Mr Watson-Munro had been provided with the Summary of Prosecution Opening, your criminal history, your driving record and a reference from your employer.
56 Despite having the Summary of Prosecution Opening, Mr Watson-Munro only refers to injuries suffered by one of the victims in your offending. When Mr Watson-Munro was called to give evidence, he was not taken to this omission but one can only hope he was aware of the full contents of the prosecution opening when providing an opinion. He makes the finding in his report that you have suffered a severe alcohol dependence disorder for many years, against the backdrop of you self-medicating against long standing symptoms of depression, anxiety and low self esteem, which were noted at a clinical level and confirmed through appropriate psychometric testing. Further into his report, he indicates that you have had a longstanding involvement with alcohol which was used as a means of self-medication for relaxation purposes. He noted that your consumption of alcohol commenced when you became involved in a nightclub and continued thereafter.
57 Mr Watson-Munro administered the Beck Depression Inventory which covers psychological and physiological symptoms of depression and anxiety experienced by you over the past fortnight. The testing confirmed that you were suffering from major depression with features of an anxiety disorder. He remarked that at present you were understandably anxious because of the prospect of incarceration. However, the view Mr Watson-Munro took was that as at the time of your offending, you were also suffering from this disorder.
58 In his report, Mr Watson-Munro says that you acknowledged long standing symptoms of depression and anxiety “which have been compounded by (your) ongoing history of offending.” He went on to say that you were also very concerned for your parents in the setting of their health issues and he confirmed this aspect of his evidence in Court, having read medical reports pertaining to each of your parents. He said that your depression and anxiety had escalated since being charged with these matters. When one looks closely at Mr Watson-Munro’s report which he adopted as being true and correct in court, it appears that your resort to alcohol occurred in the context of becoming involved in the night club scene and your criminal history seems to have come about because of ongoing problems with alcohol.
59 Although the Crown was prepared to concede that you were suffering symptoms of anxiety and depression at the time of the collision so as to warrant the application of Verdins principles, I have a good deal of difficulty with accepting this. The fact of it is that on the day of the collision, you had a very high blood alcohol reading and it seems to me that it was this that was fuelling your decision to drive home and the manner of your driving. I accept that you are suffering from depression and anxiety now and following the collision. However, the evidence put forward in support of your depression and anxiety at the time of the collision is not such as to warrant any reduction of your moral culpability, especially in circumstances where I do not accept your explanation for driving home on the occasion in question. As I do not accept that your decision to drive was triggered by an emergency call from your wife, I am unable to see how such impairment of mental function impacted on your decision to drive or to drive in the manner that you did. Further, even accepting that you were suffering symptoms of anxiety and depression at that time for which you were self medicating on alcohol, I do not regard these matters as warranting a reduction in the weight which I would otherwise give to specific and general deterrence.
60 I must place significant weight on specific deterrence in a bid to deter you from further offending and I must place significant weight on general deterrence so as to send a strong message to others not to be tempted to behave as you have.
61 In your favour, I take into account your plea of guilty and the stage at which you entered this. I have viewed the transcript of the Magistrates Court proceedings where you entered the pleas at a committal mention where you were unrepresented, and they do bespeak remorse and a preparedness to take responsibility for your actions at that time. By pleading guilty at this early stage, you have saved the witnesses, especially the victims, the time and trauma of giving evidence and you have saved the community the time and expense of running a contested committal hearing and trial. Therefore, you are entitled to a significant discount in the sentence which you would otherwise receive.
62 I take into account that time in jail will be harder for you than for others in that you will be separated from your family whom you support financially and emotionally and that you have the extra anxiety of being concerned for your parents, both of whom are in ill-health. As to the nature of their ill-health, although Mr Watson-Munro records that you said your father suffers from emphysema, this is not seen to be verified by the medical report which indicates that he suffers from a number of conditions including asthma and heart disease with cardiac failure, which led to a stent being inserted on 20 August this year. Your mother suffers pain and swelling of her right forearm and hand following an accident at work. She also suffers from anxiety and depression. She is taking a number of medications to deal with these difficulties. I understand that your parents live at your home from time to time and your wife said that they were presently living there. On any view of it your parents are in ill-health and as I have said, this will weigh more heavily on you than others who are also serving time in jail and who are not so concerned with this extra responsibility and family members.
63 I have considered the opinion of Mr Watson-Munro as to your prospects in the future and his assessment of your mental health when he examined you. In terms of your current mental health, I allow for the fact that time in jail will be harder for you than for someone without these difficulties and that incarceration is likely to lead to a deterioration in your mental health. However, the weight which I must give to relevant sentencing considerations demands that you undergo a term of imprisonment immediately.
64 I accept that you are remorseful for your conduct and appear to be developing appropriate insight into your offending and its connection with alcohol abuse. As I have rejected your explanation for driving as you did on the night in question, this complicates the question of remorse. Whilst it appears to me that some of your remorse is tied up with self pity and concern for your family, I do accept that you have some concern for the victims and that you are developing insight into this which will assist. Of course, that insight has been able to develop because you are abstaining from alcohol which has, no doubt, clouded your judgement in the past.
65 I allow that there has been some delay involved in finalising this matter, some of which was not due to matters raised by defence but because the Crown sought to lead evidence concerning Mr Marino’s observations of you on a subsequent occasion. I take into account that this has added to your anxiety.
66 You are now 40 years old. I was told that you celebrated your 40th birthday at your home recently and prohibited the consumption of alcohol to ensure that you were not tempted to consume any. Also, your wife does not tolerate alcohol in the home in keeping with your Muslim faith, as I have already indicated.
67 In circumstances where you have a relevant criminal history, a relevant subsequent matter and a long term difficulty with alcohol, I must be concerned with the protection of the community and place considerable weight upon this factor. Even though you have been abstinent from alcohol for a fairly substantial period for you, and have taken responsibility for these offences, these are still early days, especially when I am told that you have used alcohol in the past to self-medicate. Of course, you have now had the benefit of counselling with Mr Lamberti and it appears that you have spoken with Mr Watson-Munro on at least one occasion. It is to be hoped that the strategies you have learned from both of these people assist you to maintain your resolve to stay away from alcohol and also to stay away from driving a car when you are not entitled to do so. I will make the prison authorities aware of your anxiety and depression in a bid to have you appropriately monitored and treated whilst incarcerated.
68 In favour of your prospects of rehabilitation, you have your family who are solidly behind you, even though they have been there for you in the past, no doubt, when you have committed offences. Notwithstanding this, you do have your family to look to when you are released from jail and your developing insight and abstinence from alcohol are also matters which I factor in when assessing your prospects of rehabilitation. As against these, there are significant prior convictions, the circumstances of the offending for which I sentence you and the subsequent matter which gives me cause for great concern. In the circumstances, I am afraid that I rate your prospects of rehabilitation as being only fair at best.
69 The great challenge for you when you are released from jail is to stay away from alcohol and any other addictive substances. If you fail to do this, then you can expect to spend ever increasing portions of your life in jail. As to whether all of the good work which you have achieved in the recent past will be undone, this is largely a matter for you, Mr Lumanovski.
70 Your counsel submitted that a wholly suspended sentence was appropriate in your case but failing this that a sentence of imprisonment which involved a head sentence of between 12 and 18 months with a minimal non-parole period was warranted so as to ensure that you had the supervision of parole for a lengthy period. I had taken the view at the further plea hearing that the non-parole periods mentioned by your Counsel could not be imposed but having looked at the relevant provisions of the Sentencing Act 1991, that is not the case as a matter of law. However, in any event, I am afraid that I do not regard the sentencing range submitted by your Counsel as appropriate. The Crown submitted a sentencing range of between 2 ½ years to 3 ½ years head sentence with a non-parole period of between 18 months and 2 ½ years was warranted in your case. The Crown submitted that there ought be some cumulation as between the various offences you have committed including the two charges of dangerous driving causing serious injury, in circumstances where there were two victims whose suffering ought be recognised in the sentence which is imposed. Neither counsel sought to address me in respect of current sentencing practice. It wasn’t until today that Mr Kilias made submissions this morning in respect of a sentencing snapshot for an offence which he submitted was analogous to yours. I am afraid I do not agree with his submission. He also submitted that you and the community would be best served by a shorter than usual non-parole period. In all the circumstances of your case, I am afraid I am not prepared to accede to this submission as I cannot do justice to all sentencing considerations, if I were to take that course.
71 In the end I have come to the conclusion that a sentence toward the middle of the Crown range is warranted in your case.
72 Could you please stand up, Mr Lumanovski?
Ancillary orders
73 In relation to Charges 1 and 2 on the indictment, you are disqualified from obtaining a driver’s licence for a period of 2 ½ years. In relation to the summary offence of driving whilst in excess of the prescribed concentration of alcohol, you are disqualified from driving for a period of 40 months. These periods of disqualification will run concurrently with each other.
74 In relation to all charges, both on the indictment and summary, you are convicted and sentenced as follows:
75 Charge 1 – 2 years, 3 months' imprisonment.
76 Charge 2 – 2 years' imprisonment.
77 The summary offence of exceeding prescribed concentration of alcohol, 12 months' imprisonment.
78 Unlicensed driving – 3 months' imprisonment.
79 The sentence on Charge 1 will be the base sentence. I direct that 6 months of the sentence on Charge 2 and 2 months of the sentence on the summary offence of exceeding prescribed concentration of alcohol and 1 month of the charge of unlicensed driving be served cumulatively with each other and with the base sentence, producing a total effective sentence of 3 years' imprisonment. I direct that you serve 2 years of the this sentence before becoming eligible for parole.
80 If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 4 years' imprisonment with a non-parole period of 3 years.
81 I declare that you have already served 11 days by way of pre-sentence detention.
Note:
I have read the transcript of your appearance before Mr Lethbridge where you insisted on pleading guilty to the charges notwithstanding that you were not legally represented on that day, which I take into account in your favour as an expression of remorse and of taking responsibility for your actions – 16 August 2012 (Plea of Guilty.)
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