Director of Public Prosecutions v Ramirez
[2017] VCC 1898
•13 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01635
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARIANO RAMIREZ |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 12 December 2017 | |
DATE OF SENTENCE: | 13 December 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Ramirez | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1898 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:Director of Public Prosecutions v Neethling [2009] VSCA 116, Director of Public Prosecutions v Oates [2007] VSCA 59; DPP v Betts [2016] VCC 1772; DPP v Borg [2016] VSCA 53; R v Jurisic [1998] 45 NSWLR 209; R v Whyte & Ors [2002] 55 NSWLR 252; DPP v Oates [2007] 47 MVR 483; Ibbs v R (1987) 163 CLR 447; DPP v Leach [2003] VSCA 96
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms I. Moffatt | Office of Public Prosecutions |
| For the Accused | Mr R. Galbally | Galbally Rolfe |
HER HONOUR:
1 Mariano Ramirez, you have pleaded guilty to one charge of dangerous driving causing death. The maximum penalty applicable to that offence is ten years’ imprisonment.
2 Pursuant to s.89 Sentencing Act 1991, I am required to cancel your licence for a minimum of 18 months.
3 This crime arises out of events which took place on 8 July 2016. The victim of your offending is Marvin Ramirez, your younger brother.
4 It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts, as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious. The prosecution conceded, however, and I accept, this was a tragic collision, the result of momentary inattention by you.
5 I turn to a summary of your offending.
6 At approximately 2.46 pm on Friday, 8 July 2016, there was a fatal motor vehicle collision on the Princes Highway at Drumborg in Western Victoria. That collision occurred on the southeast-bound lane of the highway, in the vicinity of the rural property at 3571 Princes Highway (photographs of the collision scene were tendered (Exhibit B)).
7
That collision occurred when a Toyota HiAce commuter minibus you were driving, travelling generally northwest, crossed onto the southeast-bound lane of the highway shortly after exiting a gentle right-hand curve in the road.
I discussed the location of the collision with Mr Silbert, who appeared on behalf of the prosecution, as identified in Photograph 3.
8
The driver’s side of the minibus impacted the driver’s side of a Kenworth
B-Double tipper which was travelling in the opposite direction, in a sideswipe collision. The vehicles came to rest approximately 600 metres apart.
9 At the time of the collision, the minibus contained eight occupants.
10 An adult male passenger, your brother, was seated on the driver’s side, immediately behind you. He suffered life-threatening head injuries and was airlifted to the Alfred Hospital, where he died at 10.40 pm.
11 A teenage male passenger was seated next to your brother. He suffered injuries and was transported by road to Portland Airport, before being airlifted to the Royal Children’s Hospital. His injuries were not serious and he was discharged the next day.
12
Turning to the Kenworth truck. Photographs of this vehicle were within
Exhibit B. This vehicle was registered to Lawleg Proprietary Limited, Portland and operated under the name “Porthaul”.
13 That prime mover was towing two tipper trailers, also registered to the same company and also operated under the same name.
14 At the time of the collision, the prime mover was being driven by an employee of Porthaul, Steven Kuilboer.
15
Mr Kuilboer underwent a preliminary breath test at the scene, which returned
a negative result. He did not require any emergency treatment. He was later conveyed to Portland Hospital and at approximately 5.50 pm on 8 July 2016,
a blood sample was taken from him and analysed, which indicated no alcohol or drugs present.
16 Turning to the Toyota HiAce that you were driving, this had Queensland registration plates and was fitted with 12 seats, two in the front cabin area and ten in the rear-passenger compartment, all fitted with seatbelts.
17 At the time of the collision, there were eight occupants and their luggage in the vehicle. The vehicle was a hire car under the banner East Coast Car Rentals.
18 At the time of the collision, as I have said, that vehicle was driven by you.
19 The minibus was mechanically inspected by Sergeant Leigh Booth of the Victoria Police Mechanical Investigation Unit. His inspection did not reveal any mechanical fault with the vehicle which could have caused or contributed to the collision.
20 Your brother, Marvin Ramirez (the deceased), was 45 years of age and on holidays with his two children, sister, you, your wife and two children, travelling to Mount Gambier when the collision occurred. At the time, Marvin Ramirez was asleep with his head against the driver’s side window of the minibus, which bore the brunt of the impact.
21
Turning to the collision scene, the Princes Highway, Drumborg, was a two-way single carriageway in a general northwest to southeast orientation. The road was bitumen and in good condition. The opposing lanes were separated by
a broken white audio tactile line, approximately down the centre way of the carriageway.
22 A solid white audio tactile fog line defined the outer edges of the carriageway, the area best described as rural farming.
23 The collision occurred just after the northwest bound minibus exited a gentle right-hand curve. The photographs indicate the collision occurred on a straight piece of road, as I discussed with Mr Silbert. You crossed onto the southeast bound lane and sideswiped the oncoming B-Double. The speed zone was 100 kilometres per hour. At the time of the collision, the road was dry, weather fine, and visibility good.
24 You underwent a preliminary breath test at the scene, which returned a negative result. You did not require any emergency medical treatment. You were conveyed to Portland Hospital for a blood sample. That sample was analysed and the result indicated no alcohol or drugs present.
25 Turning to the circumstances of this offending, you, the victim and their families, were on an 11 day holiday to celebrate your upcoming 50th birthday. The group had travelled from Sydney to Uluru and had spent the few days prior flying to Melbourne. After arriving in Melbourne, you collected the hire car, intending to travel to Mount Gambier via the Great Ocean Road, before returning to Sydney.
26 After arriving in Melbourne on 5 July, the group spent a night in a motel in Fawkner, then on 6 July travelled to Werribee, then Geelong, where you spent the night. On 7 July, you travelled along the Great Ocean Road, spending the night at Port Campbell.
27 On 8 July your group left Port Campbell at around 8.00 am to travel to Mount Gambier, visiting various attractions, before arriving in Warrnambool at about 11.30 am. The group then drove to Tower Hill Road, where you stopped at about 12.00 noon for lunch.
28 Your brother, Marvin, had done the majority of driving during the trip and had driven from Port Campbell to Tower Hill, with you seated in the front passenger seat. Marvin continued to drive when your group left Tower Hill at about 1.00 pm.
29 From Tower Hill, Marvin drove to Port Fairy, where he stopped to buy fuel. Marvin then said to you, “Let’s exchange, I’m going to sleep behind. You do the driving.” You moved to the driver’s seat and Marvin moved to the seat directly behind you on the driver’s side. Your son, Carl, moved to the front passenger seat to assist with navigation.
30 When your group left Port Fairy, you were driving the minibus with your son in the front passenger seat, your brother, Marvin, in the seat directly behind you, on the driver’s side. The seating positions of the various occupants were set out within the prosecution opening (Exhibit A, paragraph 19).
31 In her statement to police, your wife, Maria, believed you and your son, Carl, were the only ones awake at the time of the collision. She said when you drove, you liked to listen to music and that she heard you singing, as you usually did. She had a nap. She said Marvin was already napping, with his head on the window. She looked around and everyone was napping, but she could hear you singing.
32 As the minibus travelled generally northwest along the Princes Highway at Drumborg, you negotiated a gentle right-hand curve in the road in the vicinity of a property at 3514 Princes Highway. After you exited the curve, the minibus crossed over the centre dividing lines, as I have said, into the side of the approaching B-Double in a sideswipe collision.
33
The collision caused extensive damage to the driver’s side of the minibus that extended approximately halfway along the side of the bus. The photographs clearly show this damage. The driver’s side door skin and side panel were torn off and all the windows along that side were smashed. The deceased, who was sleeping with his head against the window, bore the brunt of the impact. In his statement, your son, Carl, said that he was looking down at a paper map he had spread out in front of him and that you were singing to the music. All of
a sudden he felt a large jolt to the right-hand side of the car, glass smashed and the dashboard broke. He was pretty sure that you were still singing at the time of impact.
34 Members of the Victorian Police Major Collision Investigation Unit attended the collision scene at approximately 9.55 pm on 8 July 2016 and identified scrapes and gauges in the road surface, which indicated the minibus had been travelling generally northwest in the southeast-bound lane, that is, partially on the incorrect side of the road at the time of the collision.
35 Detective Acting Sergeant Dr Jenelle Mehegan, with the Major Collision Investigation Unit, attended the scene and conducted an examination of it. She concluded the Toyota you were driving was a minimum of 0.94 metres onto the incorrect side of the road, that the HiAce was not out of control and the driver of that vehicle was not braking prior to impact. The speed of the HiAce at impact could not be determined.
36 It was not known why you had crossed onto the incorrect side of the road, as there was no evidence the vehicle was out of control prior to impact. There was no evidence that the driver of the truck reacted to your vehicle, either by braking or steering.
37 You were interviewed by police on 11 July 2016 and were co-operative and forthcoming with the information you provided. You described having obtained your New South Wales driving licence in 2006 and that you did not regularly drive, as you preferred public transport. You did not have any medical conditions or illnesses, nor did you require glasses to drive.
38 You said you enjoyed singing when you were driving, “Because I know it’s going to just keep me alert”.
39 You recalled singing just prior to the collision and had slept well the night before. When asked if you were tired, you said you had rested, “Actually excited, especially after seeing those koalas. I wasn’t sleepy”. You said you knew the sound and feel of driving on an audio tactile line marking, but you could not recall hearing or feeling the sensation of driving over such prior to the collision. You did not recall seeing the B-Double prior to the collision.
40 During the investigation, a number of factors were considered by investigators, in an effort to explain the circumstances of the collision. Your mobile phone was analysed and it had not been used at the time of the collision. A blood sample from you was negative for the presence of alcohol and drugs. You also appeared to be well rested and fatigue did not appear to be an issue. You could be heard singing when your wife dozed off. The weather did not appear to have contributed to the collision, nor the road or environment. Further, there were no identified mechanical issues with the minibus.
41 Based on all the elements of the collision and subsequent to investigation, it was believed inattention appeared to be the most likely cause of the collision.
42 Mr Silbert QC, for the prosecution, conceded, as I have previously stated, momentary inattention.
43 You do not have any prior court appearances, nor subsequent or pending matters.
44 Mr Galbally, who appeared on your behalf, prepared a brief outline of written submissions and addressed them during the course of your plea hearing (Exhibit 1). As I indicated to both counsel, I had read all relevant material, including a number of authorities, prior to your plea hearing commencing.
45 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so.
46
I note you also indicated your intention to plead guilty at an early stage,
16 August 2017. You are entitled to the benefit also of your early plea of guilty. I note you were also co-operative and forthcoming in the record of interview.
47 Your plea of guilty has spared the time and cost of a trial. Witnesses have not been required to give evidence upon your trial and in particular, your brother’s family have not been required to "live through" a trial.
48 I accept your plea of guilty indicates remorse by you. I also accept you are also more generally remorseful for your offending, as noted in a number of references that have been tendered, to which I shall shortly refer.
49 Details of your history were provided. You were born in Manila, in the Philippines, on 16 July 1966, completing a Bachelor of Science and Industrial Design in 1986. You then completed a Master’s in Industrial Design at the University of New South Wales.
50 In 1994, you were married and your son, Carl, was born in 1996. In 1997 you obtained a Graduate Certificate in Sustainable Technology and Product Development (from The Netherlands).
51 In 1998, you became an Australian permanent resident and in that same year, your second son, Matthew, was born. Your children are currently 21 and 19 years of age.
52 In 2001, you completed a Doctor of Philosophy at the Technological University of the Philippines and in that same year, were employed as a lecturer in industrial design at the University of New South Wales. In 2001, you migrated to Sydney with your family.
53 In 2004, you obtained a Graduate Certificate in University Learning and Teaching from the University of New South Wales. Your brother, Marvin, and his family migrated to Australia in 2004.
54 In 2010, you were promoted to senior lecturer at the University of New South Wales. That remains your employment. Details were also provided regarding your employment, as contained within your curriculum vitae (Exhibit 2).
55 In mitigation, counsel who appeared on your behalf, relied on your lack of previous convictions. Mr Galbally submitted your academic achievements, publications and university history had been exceptional, that you have also pleaded guilty to this charge at an early stage, that this offending did not incorporate excessive speed, alcohol or drugs, or prolonged erratic behaviour.
56 Your driving, Mr Galbally submitted, involved momentary inattention.
57 He submitted your moral culpability was low and that your offending fell at the lower range of dangerous driving causing death. There will, he urged, be little risk that you would re-offend.
58 I discussed that submission with Mr Silbert. In particular, I discussed the "obvious" nature of the truck, ie: its size, that you moved into the oncoming truck lane 0.94cm (nearly one metre), that you apparently did not hear the audible road markings, that your van contained eight passengers, the good weather at the time and the straight road at the point in the collision.
59 The prosecution, he said, had carefully considered all those matters and ultimately accepted the submission by Mr Galbally, that your moral culpability for this offending was low and that your offending fell at the lower end of this offence.
60 I also accept those submissions by Mr Galbally, assessment of your culpability being necessary when determining the appropriate disposition.
61 Turning to sentence, the primary submission of Mr Galbally was that you should not be imprisoned for your offending, that you should be either fined or released on an undertaking. It was acknowledged, however, that I would need to cancel your licence and disqualify you for a minimum period of 18 months.
62 In support of his submission on sentence, Mr Galbally submitted you would forever carry the blame for the death of your brother, Marvin. That your remorse was profound and there were no aggravating circumstances of this offending, other than the number of people put at risk (see DPP v Neethling[1]). He submitted there were significant factors in mitigation of sentence; that you enjoyed previous good character, with a previous excellent driving record.
[1] [2009] VSCA 116 [31]
63 I accept your prospects of rehabilitation are excellent and that you are a person of good character.
64 I was also referred to a number of decisions, including, as I have said, Neethling, also DPP v Oates[2], DPP v Betts[3] and DPP v Borg[4].
[2] [2007] VSCA 59
[3] [2016] VCC 1772
[4] [2016[ VSCA 53
65 A number of documents were tendered before me. As I have said, your CV (Exhibit 2), which contained details of your background and history relevant to your education and work experience, including publications written by you.
66 There were also a number of references placed before me as part of Exhibit 2.
67 A reference from Marvin Ramirez Junior and Mariza Ramirez, dated 13 July 2017. You are their uncle. Both are the children of Marvin Ramirez (the deceased). They referred to you assisting their father with the paperwork for family-sponsored skilled migration and as a result, they came to Australia. You had always been an integral part of their lives and had assisted them throughout their school and careers.
68 Despite living far apart from you, they said you visited each other’s houses once a month, or up to twice a month. You had always organised family road trips, so you could all enjoy the sights around Australia. Immediately following the collision, you apologised to them, saying “sorry” repeatedly, also trying your best to comfort them. They had forgiven you. Over the years, they had seen you as a caring, loving uncle, with a kind demeanour and an approachable personality. You are a decent man who would never have any intentions of harming or killing your own brother, or negatively affect anyone.
69 I was told you continued to support the family in many ways, as you always had, assisting their mother with funeral preparations and the funeral service. You had also assisted their mother to receive financial assistance from the Transport Accident Commission. You and your wife had also established a trust fund for their educational needs and I discussed that with Mr Galbally.
70 As briefly discussed with Mr Galbally, the sentiments and forgiveness by the victims of your offending must be viewed against a likely lack of appreciation by them of all relevant sentencing considerations. That having been said, they have forgiven you and that is a matter I take into account.
71 I was also told that Marvin’s wife was present in court for your plea hearing and did not wish to make a victim impact statement or address the court.
72 There was a reference from Stephen Ward, Director, Industrial Design, dated 13 July 2017. He described you as being a friend and valued member of the academic staff team in the Bachelor of Industrial Design Program. He had known you as a colleague for the last 16 years, having both started at the University of New South Wales in 2001. He had many opportunities to see the diligence and energy you applied to the preparation and delivery of your teaching. You had an international reputation for your work in promoting design for sustainability and higher education and had presented at numerous international conferences. You had also contributed time as a scientific committee member for many academic journals and conferences. In his experience, you had shown yourself to be honest and diligent in relation to your duties at the University of New South Wales and generous of your time with dealings with students and colleagues. You were a person of good character. He had seen you, since the collision, continue to fulfil your responsibilities to students and colleagues at the University of New South Wales.
73 A reference from Dr Liam Fennessy, dated 12 July 2017, a Lecturer in Industrial Design at RMIT, Melbourne. He had known you in a professional and personal capacity since 2007. He also described you as having regular engagement in academic activities of benefit to RMIT University and its students. He described you as a decent family and community-focused person.
74
A reference from Professor Cameron Tonkinwise, dated 12 July 2017. He is
a Professor of Design at the University of New South Wales Faculty of Art and Design. He had known you for approximately 20 years. He collaborated with you on research projects, including co-authoring papers. He had also travelled internationally with you to conferences and had been a guest lecturer in your courses on many occasions. He described you as a careful teacher and
a thorough researcher and that you had an international reputation for your research. He described you as a very kind and generous person, with a strong sense of probity.
75 There was also a reference from Susana Cabillon, dated 12 July 2017, who had known you for 26 years, since you were an international student at the University of New South Wales. She described you as a loving family man and loyal husband to your wife, Charissa. She said you cared for and loved your brother and helped him to migrate to Australia with his family. She has witnessed your family and the deceased’s family at family gatherings and celebrations and said the love and closeness between you was apparent.
76 There was a reference from Anthony Honeyfield, dated 14 July 2017. He had known you for 24 years, having met you at the University of New South Wales in 1993, when you were both students. Over the years, he had seen you grow as a teacher and mentor to your students. He described you as kind, compassionate and an engaged teacher.
77 There was a reference from Marion Ramirez-Dacanay, dated 14 July 2017, your sister and also sister of the deceased. She described you as deeply sorry for the great loss you had caused to the whole family. She and you both worked for several years at a design centre in the Philippines, which cultivated your interest in design research, design education and ecological design. She described you as well regarded amongst the fellow design professors and well respected by design students you had taught. She described your support of the deceased’s application for family-sponsored skilled migration and in 2004, of the deceased and his family coming to Australia. At the time of this collision, she was in Manila with your mother. You told them of the death of her brother. You said you were the driver. She said you are concerned about the wellbeing of your nephew and niece, that is, Marvin’s children and that you organised the funeral service.
78 There was a reference from Professor Carlo Vezzoli, dated 12 July 2017, who has known you since 2006, when you both presented at a conference in Germany. He had spoken to you about this offending. He had the utmost respect for you and your dedication as a teacher and researcher and that you actively contributed to the international design education sustainable design community in many ways.
79 Also a reference from Praveen Nahar, dated 12 July 2017, who had known you and your wife since 1997, as fellow classmates at the Technical University in Delft, The Netherlands. He had followed your career in all those years and had seen you grow in academic and professional fronts. Your work in design and sustainable product service systems and optimal product lifetimes, was very well known. You had contributed significantly in the area of sustainable design and you regularly presented at international conferences. He described you as a person of good character, with generous amounts of time to serve your community.
80 A reference from Dr J C Diehl, dated 4 July 2017, an assistant professor at Delft University of Technology in The Netherlands. He had known you over 20 years as colleagues in the academic world of design for sustainability. He described you as very ethical, honest and hardworking and a trustworthy person.
81 A reference from Cristy Corteza-Alexander, dated 14 July 2017. She had known you for over 40 years, since childhood. She described you as assisting in the migration of your brother and his family to Sydney and that at family functions, she saw a closely-tied relationship between you and the deceased. You phoned her on the night of the collision. You assisted Marvin’s widow with the funeral arrangements and settlement of your brother’s financial affairs. You had spoken of your commitment to the upbringing of both your brother’s children. She described you as a dedicated, caring and hardworking family man.
82 A reference from Ryan Lawson, dated 13 July 2017, who has known you since 2004. You were his mentor for his final year research paper on sustainable design. In 2012, you engaged Mr Lawson as a tutor for your design studio and sustainability course. He described you as deeply passionate about the courses you teach and about your students. Your main focus as senior lecturer in industrial design had been to excite and engage your students in sustainable design.
83
A reference from Era Camilet, dated 2 July 2017, who had known you for
a period of four years. You were one of the author’s senior lecturers from 2013 to 2016, who described you as a person who would go above and beyond to help your students to become responsible practitioners and responsible members of society in general. I am not sure if Era is a he or a she, but she described you as meticulous to attention to detail and courses undertaken under you were well structured. She also took part in one of your elective courses that took a group of 16 students to China for two weeks. My apologies if that is a he.
84 There was a reference from William Reynolds, dated 12 July 2017, your brother-in-law. He had known you since 2009. He and his wife live in the United States, but you remain in touch. He described you as a hardworking, helpful, caring, decent and intelligent person, an organised person and a responsible family man.
85 A reference from Maria Junifer Maliglig, dated 12 July 2017, your sister-in-law, who described you as a good father, husband and provider for your family and a hardworking man. You were also a religious person, regularly attending church.
86 A reference from Maria Chantelle Maliglig-Reynolds, the wife of William Reynolds. She is your sister-in-law. She had known you since the early 1990s. She had witnessed you grow over the years professionally and mature personally. You worked hard to support and provide a better life for your family. She described you as a supportive father, accomplished colleague and professional and a good man.
87
There was a reference from Jonathan Talbot, dated 13 July 2017, a former colleague of yours at the University of New South Wales. He had known you since 1992 when you were studying for your Masters in Industrial Design at the University of New South Wales. Mr Talbot was then a lecturer and had frequent contact with you regarding your design project work. This offending was out of step with his understanding of your character. He described you as
a thoughtful, diligent person, who actively demonstrated concern for the welfare of others. He described you, in matters of personal safety, to be thoughtful and disciplined. You had also established a positive life for your family in Australia, but maintained strong ties to your family in the Philippines.
88 Turning to the authorities. In Neethling, the court referred to a guideline judgment in R v Jurisic[5], which was reviewed and revised in R v Whyte & Ors[6], then followed in the Victorian Court of Appeal in Oates. In that case, Neave JA set out a number of principles from those authorities, relevant to sentencing for offences of this type (See paragraphs [30] to [31]).
[5] [1998] 45 NSWLR 209
[6] [2002] 55 NSWLR 252
89 As noted in Oates, the New South Wales Court of Criminal Appeal in Whyte said that:
“In determining the appropriateness of full-time custody and the
length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence.”
90
As previously stated, taking into account all the circumstances of your driving on this day, I find that your culpability is low and I therefore accept the submissions by your counsel in that regard, which I note were confirmed by
Mr Silbert on behalf of the prosecution.
91
I also note in Betts, the sentencing judge’s reference to the issue of mercy
(See paragraph 52).
92 I also refer to the statement by Neave J in Borg:
"A non-custodial sentence can only be justified in a case [of this type] where the offender’s level of moral culpability is low.”
93
I am very conscious of the seriousness with which Parliament regards the offence of dangerous driving causing death. There are, however, a number of significant matters referrable to this case that warrant me acceding to
a non-immediate custodial disposition.
94 This is one of those arguably very rare occasions where the facts in this case, upon careful analysis, warrant such a non-custodial disposition that I have imposed.
95 It is most unlikely this decision would provide a precedent for future sentencing for the offence of dangerous driving causing death.
96 I discussed with Mr Silbert the prosecution's submission regarding disposition and he stated that it would not be outside the appropriate range of dispositions to record a conviction and place you on an undertaking to be of good behaviour, in all the circumstances of this case. Mr Silbert said he had made those submissions, being aware of the relevant authorities and the pronouncements regarding appropriate sentence stated for this type of offending.
97
As well as matters personal to you, including your prospects of rehabilitation,
I must take into account such matters as general deterrence, which is of considerable importance in a case such as this.
98 I do not consider there is a need for specific deterrence when sentencing you.
99 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. In my opinion, it is unlikely you will re-offend.
100 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
101 In this case, on Charge 1, I propose to record a conviction and order that you be released and that the further hearing of this matter be adjourned for four years from today’s date, upon you giving an undertaking to the court that has the following conditions attached to it:
(i) That you appear before the court, if called upon to do so, during the period of the adjournment (and upon the date of the adjourned hearing); and
(ii) That you be of good behaviour during the period of the adjournment.
102 Now what that means, in plain language, not meaning to offend you, what that means is, that you will not have to attend again, assuming everything - you are of good behaviour, you will not have to come back, but if something goes wrong, if you do commit another offence - I doubt you will, I do not expect to see you again, but if you do commit another offence, then you will have to come back to court and I will need to re-sentence you on this offence and the penalty will go up, get worse. Makes sense? I have to tell you that.
103 Also the other condition is, that you must be of good behaviour during the period of the adjournment. That means no committing any further offences at all, even driving whilst disqualified or if your licence is suspended, you could find yourself back before me for re-sentencing on this charge.
104
Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to this charge and if you had been found guilty of it by jury verdict, in other words, if
a jury had found you guilty of it, I would have sentenced you to 4 years’ gaol, with a non-parole period of 3 years.
105 I note you have not spent any days in custody, by way of pre-sentence detention, should I need to revisit this sentence, which I hope I do not. So that is more for completeness than anything else.
106 Pursuant to s89(1) Sentencing Act 1991, I cancel any licences, that is, driver's licences, motorcycle licences, anything like that held by you and disqualify you from obtaining another licence for 2 years from today’s date. In ordering that period of time, I am conscious of the relevance of rehabilitation (see R v Lefebure[7]). I did not think there were any other orders sought, is that right?
[7] (2000) 31 MVR 131
107 MS MOFFATT: That is correct, Your Honour.
108 HER HONOUR: All right, you can have a seat. Now you need to sign this document. Do you want to go back and explain it to him? I think he has to sign it. Let me have a little look.
109 MR GALBALLY: I am sure he understands it.
110 HER HONOUR: I have no doubt, but you know, I have to make sure. I will just double-check it. I think I have made it fairly clear that this a very rare case, Mr Galbally. Trust that has come through loud and clear.
111 MR GALBALLY: It certainly has.
112 HER HONOUR: Well, not the offence, I meant by that. Yes, you can go back and explain it if you would not mind.
113 MR GALBALLY: Thank you, Your Honour.
114 HER HONOUR: A copy will be provided. If you could just wait a few minutes, Mr Galbally, all right?
115 MR GALBALLY: Thank you, Your Honour. Thank you.
116 HER HONOUR: Is there anything further in this matter? No, nothing further? No? Nothing further?
117 MS MOFFATT: No, Your Honour.
118 HER HONOUR: No, excellent. Thanks very much for your assistance.
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