Director of Public Prosecutions v Spark
[2022] VCC 1906
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00604
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY SPARK |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 September 2022 |
| DATE OF SENTENCE: | 4 November 2022 |
| CASE MAY BE CITED AS: | DPP v Spark |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1906 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of dangerous driving causing death – one charge of failing to stop after an accident – one charge of failing to render assistance – cyclist struck by offender’s car and died at the scene – no assistance rendered at scene – steps taken to conceal vehicle – offender disqualified from driving at the time of the accident – significant impact upon victims – all sentencing purposes engaged – high objective gravity of all offences – plea of guilty at the earliest reasonable opportunity – poor prospects of rehabilitation – minimum period of disqualification from driving considered
Legislation Cited: Sentencing Act 1991; Road Safety Act 1986
Cases Cited:DPP v Neethling (2009) 22 VR 466; DPP v Oates (2007) 47 MVR 483; Worboyes v R [2021] VSCA 169; Gray v R [2021] VSCA 322, DPP v Weybury [2018] VSCA 120 and Bankal v R [2019] VSCA 17; Stewart v R [2018] VSCA 55; R v Novakovic [2007] VSCA 145; Bugmy v R 47 A Crim R 433; Deakin v R (1999) 169 CLR 525
Sentence:Total effective sentence of 7 and a half years imprisonment t with a non-parole period of five years imprisonment and licence cancellation/disqualification for eight years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Hayward | Office of Public Prosecutions |
| For the Accused | Mr C. Carr (Plea) Mr R. Jakobson (Sentence) | Sarah Pratt & Associates |
HIS HONOUR:
1Bradley Spark, you have pleaded guilty to charges of dangerous driving causing death, failing to stop after a motor vehicle accident and failing to render assistance after a motor vehicle accident.
2The maximum penalty for each of these offences is 10 years' imprisonment.
3The circumstances of these offences are set out in the document entitled. 'Prosecution Plea Opening', which is Exhibit A. Your counsel agreed with its factual content.
Circumstances
4At about 5.41 am, on 21 October 2021, you drove a motor vehicle west along La Trobe Street, Delacombe, towards its intersection with Brazenor Street. Delacombe is a suburb of Ballarat. Brazenor Street forms a T-intersection with La Trobe Street. At the same time, Mr Thomson was riding a bicycle south along
Brazenor Street in a marked right-hand turning lane. He intended to turn right into La Trobe Street and travel to his place of employment.5You turned north into Brazenor Street. You cut the corner in doing so. Worse still, as your vehicle entered the intersection it slid sideways while on the incorrect side of Brazenor Street for vehicles travelling north. Your vehicle struck the front of Mr Thomson's bicycle. As shown in an image contained in
Exhibit A, to the point of collision, the path taken by your vehicle was entirely on the wrong side of the road. The impact threw Mr Thomson into the air and he landed about 21 metres from the point of collision. He was severely injured and died at the scene. These circumstances constitute Charge 1, dangerous driving causing death.6You did not stop your vehicle after the collision. You drove away without rendering any assistance to Mr Thomson. You drove fast into the bend into
Winter Street, such that your wheels slid on the road.7You travelled from the collision scene to your home, a distance of about
1.7 kilometres, in about three minutes. Based on the evidence of witnesses and CCTV footage, the police traced the route you took driving to your home.
Two witnesses saw you drive through the bend into Winter Street and said you were travelling very fast, at about 100 kilometres per hour or more.8At the time of the collision the road surfaces of La Trobe and Brazenor Streets were dry and in good condition. Both were 60 kilometres per hour zones. Both were essentially straight.
9Your vehicle left about a 13 metre long, single tyre mark, starting in the southbound lane of Brazenor Street, curving right, into the right-hand turning lane for southbound traffic on that road.
10From that mark, a police member of the Major Collision Investigation Unit concluded:
(a) your vehicle yawed when it was on the incorrect side of the road;
(b) the front of the vehicle went left while the rear went right;
(c) the vehicle was out of control;
(d) the collision occurred at a point on the right-hand turning sign, painted on the road;
(e) at the start of the tyre mark, your vehicle was travelling at about 55 kilometres per hour and at the point of collision, between
52 and 55 kilometres per hour.11It was submitted the forward facing lamp of the bicycle was not operating at the time of the collision. The lamp had separated from the rest of the bicycle and was found a few metres away. The red light attached to the rear pillar was found flashing. The separation of the front light from the bicycle suggests it had become disconnected from the electrical system. Coupled with the state of the natural light, the fact that the rear light was operating and the picture built up of
Mr Thomson as a careful and law-abiding person, satisfies me that the front light was operating at the time of the collision. There is no blame attributable to Mr Thomson for this collision.12After receiving information, on 27 October 2021, police members went to a property on Lacy’s Road, Ross Creek. They found your vehicle among trees in a paddock and under a tarpaulin. The bonnet and the spoiler were missing and the roof was damaged.
13After the collision, you agreed with other persons that the vehicle would be taken to the Ross Creek property and hidden there and modified. It was modified with the removal of the registration plates, windscreen, bonnet and spoiler. You did not make any of these modifications yourself. You were not in the vehicle when it was taken to the Ross Creek property.
14On 28 October 2021 you were arrested and interviewed. Initially you declined to answer questions. You were shown CCTV footage. You then explained you drove the vehicle to a Shell Service Station, filled it with petrol and then drove to Sebastopol to speak to someone. After trying to ring the person, you found the vehicle would not start, believing there was a problem with the battery. You walked to a service station to buy one but could not. You arranged for a friend to bring a battery but it was the wrong type. When you returned to the vehicle you found it had been stolen. The first you knew of the collision was when you heard about it on the radio.
15Plainly, this version was nonsense. It cannot be said you cooperated with the police with their investigations; you did the opposite.
16On 3 November 2021, the vehicle was examined mechanically. The examination did not reveal any faults, failures or conditions which could have caused or contributed to the collision.
17While in custody your phone calls were recorded. Mostly, you denied involvement in the collision. In one call to your girlfriend, you made the extraordinary comments set out in paragraph 37 of Exhibit A. The paragraph was not read out in court and I will not set out what you said in these sentencing remarks.
18A little over two months earlier, on 14 August 2021, your licence to drive a motor vehicle was suspended for three months for speeding. On the day of the collision, the vehicle you drove was unregistered. You had affixed the number plates, XF 747, to your vehicle. They belonged to another motor vehicle, registered to you.
Criminal History
19Excluding appeals to this Court, between 9 November 2000 and
27 March 2019, you have appeared in a criminal court on 15 occasions and have been found guilty or convicted of 79 charges.20You have been sentenced to terms of imprisonment on eight occasions. Your longest sentence was imposed on 7 December 2017, when you were sentenced to a total effective sentence of four years and nine months' imprisonment with a non-parole period of two years and 11 months' imprisonment. This sentence concerned 23 charges, including making a threat to kill and reckless conduct endangering serious injury.
21There is a supplementary list of traffic infringements dealt with by notice and some traffic charges dealt with in the Magistrates' Court but not recorded in the
Victoria Police system.22In the context of the present charges you have been convicted of careless driving, failing to stop after an accident, failing to render assistance, reckless conduct endangering life and reckless conduct endangering serious injury.
23Plainly, specific deterrence and protecting the community from you are important sentencing considerations. These offences occurred about a month after the end of the sentence imposed in December 2017. The length of that sentence had little or no effect upon you in terms of re-offending.
Victim Impact Statements
24Mr Thomson was a much loved and admired person. He is greatly missed. The impact of his death upon the victims is profound and enduring.
25Ann Bridgewater is his widow. The distress caused to her by the death is severe:[1]
‘Do you have any idea what it is like to tragically lose the love of your life, the man that brought so much love and happiness to your life? The man you adored, the man you were so proud of, the man that everyone respected, the man that tried so hard to make the Ballarat Cricket Association a better and stronger association. The man who loved going to work because of the people he worked with and the man who loved his family , Dylan & Mel, Soph & Pat and adored his grandchildren Poppy & Slater. This was the essence of who David was.’
[1]Victim Impact Statement of Ann Bridgewater declared 5 August 2022
26His death has left her facing a bleak future emotionally and financially.
27Sophie Thomson is the daughter of Mr Thomson. She is also a member of the Victorian police force. As part of her duties, she went to the accident scene only to discover the victim was her father:[2]
‘This tragic incident has affected every aspect of my life. My Dad was my world, we were incredibly close. I attended the scene of my own fathers death, how are you able to put into words how that effects someone? I am unable to forget my dad laying in the middle of the road covered in a white sheet. I was standing on La Trobe Street as my world shattered into pieces.’
[2]Victim Impact Statement of Sophie Thompson declared 5 August 2022
28Not unnaturally those circumstances have had profound consequences for her:
‘For months I suffered crippling panic attacks and was unable to go to leave the house alone. I still struggle to concentrate and keep on task. I struggled to sleep for months. I am now medicated for depression. I see a councillor every fortnight and working though my grief. This is time out of my life that I previously wouldn't have require(d). A crime of this nature has affected me in so many ways.’
29Dylan Thomson is the son of Mr Thomson. His father was grandfather to his children. Understandably, he is angry with you, Mr Spark, but the effect of his father's death appears in the first paragraph of his statement:[3]
‘On October 21st 2021, I lost one of the most important, influential people in my life (My Father). No words can begin to describe what effect his death has had on me. The damage caused on that day is simply immeasurable and every day I struggle to gather the strength to go on another day because, at the end of each day, there is no remaining strength left.’
[3]Victim Impact Statement of Dylan James Thompson declared 7 July 2022
30Ryan Waight was a friend and fellow employee of Mr Thomson. He wrote on behalf of their employer, management and staff. When the fact of
Mr Thomson's death was finally conveyed to him:[4]‘From that exact moment our workplace was changed forever, not only had we lost such an incredible and irreplaceable worker, but we also lost an incredible friend to us all.’
[4]Victim Impact Statement of Ryan Waight declared 12 July 2022
31Brett Severino was a friend of Mr Thomson. They became close through their association with the North Ballarat Cricket Club over the past 10 years. He has an overwhelming feeling of sadness through the loss of his friend and for the loss suffered by Mr Thomson's family. Mr Severino finishes his statement with these sentences:[5]
‘My life will never be quite the same, I am glad that I was a small part of his life, because it certainly made a large difference to mine.’
[5]Victim Impact Statement of Brett Severino declared 4 August 2022
32Adam Eddy was a friend of Mr Thomson. News of his death was one of the greatest emotional shocks he has ever suffered. Mr Thomson's death has left a great void in Mr Eddy's life. He struggles daily. Although he tries to avoid the accident scene because otherwise it triggers a lot of emotion which is quite confronting. Mr Thomson was widely loved because he was a, 'great human being'.
Personal
33You, Mr Spark, are now 40. You have lived in Ballarat most of your life. Although money was not plentiful in your family, you had a happy and stable childhood. Unlike many cases I see, your parents are still living happily together. Both your parents are still working in long term employments.
34You are one of three children. Their circumstances contrast markedly with your circumstances. Your older sister is employed and cares for her three children. Your younger brother is also employed and is the father of two children. None of your immediate family have been in trouble with the law.
35You left your secondary school at 15 to start an apprenticeship as a fitter and turner. You prospered in the apprenticeship, completing it early. At 19, you went to Kalgoorlie as a fitter and turner, working in the gold mines. You worked hard and saved. By 21, you returned with savings of about $100,000. You started working in the same local manufacturer as your father.
36Soon after your return from Western Australia you married a woman you had known since your childhood. You and she bought a home.
37During your early 20s you followed a reasonable path. You worked in a skilled trade. You worked hard and over long hours. You played competitive football. You tinkered with cars. Your parents-in-law ran a wrecking yard. However, you started clubbing with your friends and this led to using party drugs. As your counsel put it in his written outline: 'Later in his twenties, ‘clubbing’ became a larger and larger part of his life; and he became enmeshed in the criminal justice system'.
38Your marriage broke down. From the age of 27 your offending started in earnest.
39In late 2020, you were released on parole. Your parole finished at the end of September 2021. During your parole, you worked as a concreter and were dealing with your drug problems. However, these efforts were derailed by the suicide of a close friend. The present offences occurred in October 2021.
Discussion
Purposes
40Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
41Each of the offences to which you have pleaded guilty are commonplace. General deterrence must be given considerable weight in sentencing on each of the offences. Just punishment and denunciation are important sentencing considerations. As I said earlier, deterring you from re-offending is an important sentencing consideration. You have a dreadful criminal history. Protecting the community from you is also important for your actions have caused so much harm. I will shortly discuss your prospects of rehabilitation.
42Section 5(2) of the Sentencing Act sets out matters, where relevant, which should be taken into account in sentencing you.
Nature and Gravity of the Offences
43The offence of dangerous driving causing death was completed when
Mr Thomson died as a result of the collision. He died shortly after the collision. The blame for the collision rests entirely with you. There is no blame attributable to Mr Thomson. You turned the corner at too great a speed in the circumstances. This caused you to lose control of the vehicle. You travelled to the point of collision on the wrong side of the road. This was not a case of inattentiveness. You deliberately chose to perform a dangerous manoeuvre in the circumstances, preventing you from avoiding Mr Thomson where any reasonable driver would have done so.44In DPP v Neethling[6], the Court adopted a list of eleven features which aggravate the offence of dangerous driving causing death. Some of those features are present here. The injuries suffered by Mr Thomson were so severe as to cause his death at the scene. Your driving was aggressive in the manner and speed at which you turned. You failed to stop after the collision but that is the subject of a separate charge.
[6] (2009) 22 VR 466
45Judging from the case of DPP v Oates[7], moral culpability is a critical component of the objective circumstances of the offence of dangerous driving causing death. Your moral culpability for the offences is high. You should not have been driving at all for your licence to do so was suspended. You should not have been driving that motor vehicle for it was unregistered and you knew that was so, for you had placed false number plates on it. Overall, the objective gravity of that offence and for the other offences are, as I say, high.
[7] (2007) 47 MVR 483
46As to the other offences, in 2005, Parliament increased their maximum penalties from two years' imprisonment to 10 years' imprisonment. In his
Second Reading Speech, the Minister for Transport said:‘The Victorian community has been rightfully concerned about recent cases where drivers have left the scene of an accident in which a person has been killed or seriously injured without rendering assistance. Failing to stop in these circumstances is a despicable and cowardly act. The Bracks government has listened to community concerns about this very serious issue, and as a result the penalties for drivers involved in an accident in which a person is killed or seriously injured who fail to stop and render assistance will be substantially increased.
The maximum penalty of 10 years' gaol is between the maximum penalties that apply to the offences of dangerous driving causing death or serious injury (which was then five years) and culpable driving causing death
(20 years' imprisonment).This will help to ensure that a person who suspects that he or she may be charged with one or other of these offences (for example because he or she is affected by alcohol or illegal drugs when the accident occurs) will no longer have an incentive to escape from the scene.’
47There is no direct evidence as to why you did not stop your vehicle after the collision or render assistance. However, the circumstances of the collision and its aftermath permit the inferences that you did not do so because of your awareness of the manner of your driving and the collision either killed or seriously injured someone. Beyond that, a legitimate inference cannot be made.
48I cannot say whether if you had stopped and sought to render assistance to
Mr Thomson, it would have made any difference to his survival. Your vehicle had struck him a fearful blow. But attempting to do so would have been the humane response. That you did not do so was, as the Minister put it, a despicable and cowardly act. Leaving Mr Thomson on the roadway unattended caused so much anguish to his family and friends. His widow's comment reflects the effect of your actions:[8]‘To the person who killed my husband, if you had stopped to try and help David, I think one day I could maybe forgive you .· But you didn't stop, you left him on the road like he was a nothing that had been hit -nothing to you - the world to me.’
[8]Victim Impact Statement of Ann Bridgewater declared 5 August 2022
49Moreover, if you had stopped and called Emergency Services, then, at least, you would have performed an available function in relation to the charge of rendering assistance. The objective gravity of Charges 2 and 3 is high.
Guilty plea
50Your preparedness to plead guilty to these charges existed before the
hand-up brief was served upon your solicitors. That is, before your lawyers could assess the strength of the prosecution case and advise you. In terms of the timing, these pleas were indicated and subsequently entered at the earliest reasonable opportunity of a criminal justice process starting with the laying of the charges and ending, theoretically, in a trial.51The pleas of guilty are evidence of your remorse for the offending.
52By pleading guilty to the charges, you have avoided a trial. You have saved the time and expense of a trial. You have allowed other trials to be listed earlier than would otherwise be the case. You have spared witnesses the burden of giving evidence in a trial. You have spared Mr Thomson's family the ordeal of witnessing a trial with persistent reminders of the way he died. These considerations have what is described as a utilitarian benefit to the criminal justice system. The value of that benefit has been enhanced in the time of pandemic.
53At the present time pleas of guilty deserve a greater discount on sentence. Why this is so was explained in the case of Worboyes v R[9], where the Court said:
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
[9] [2021] VSCA 169 at [35]
54Accordingly, your pleas of guilty require a significant discount on the sentence.
Remorse
55Your counsel submits the timing of your guilty pleas, together with your instructions to your lawyers, mean I should find you are remorseful for your offending. On the other hand, there are your actions in being involved in the modification and hiding of the vehicle, lying to the police when interviewed, your continual denial of involvement while in custody and your remarkable comments set out in paragraph 37 of Exhibit A. Those comments were made in the aftermath of your offending. You have had time to reflect upon what you had done. Remorse is useful if it points to a determination not to re-offend. I doubt your remorse evinces such a determination or, more pointedly, to rid yourself of your drug addiction.
Prospects of Rehabilitation
56Your counsel submitted an examination of your criminal history, together with the other details of your personal history show:
(a) there is no innate personality defect which drives you to antisocial or criminal behaviour;
(b) you have the capacity to live a law abiding and productive life, as demonstrated in your earlier years; and
(c) your descent into drug use presaged your descent into criminality.
57Accordingly, your counsel submitted your prospects of rehabilitation depend on the successful addressing of your drug addiction. He submitted a lengthy period of eligibility for parole should be imposed.
58One might think my sentences should have an effect on you. They will be the longest sentences ever imposed on you. They should have some effect on you, by forcing you to address your drug addiction in the realisation that not doing so will lead to further offending. Failing that, they may act to deter you from
re-offending. But the lack of effect of the December 2017 sentences does not give any confidence.59Overall, at this stage, your prospects of rehabilitation are poor.
Time in Custody
60During the restrictions imposed in custodial facilities during the pandemic, your time in custody has been more onerous than was the case before the pandemic. This remains the case. This is seen in more time spent in cells than moving around the facility. Less access to visits from family or friends and less or no access to educational and other programmes.
Section 5(2H)
61Although s5(2H) of the Sentencing Act applies to the charge of dangerous driving causing death, no one submitted any sentence other than one of immediate imprisonment was appropriate, and rightly so.
Current Sentencing Practices
62Counsel for the Director drew my attention to several judgments of the Court of Appeal[10] and, in particular, Stewart v R[11].
[10] Gray v R [2021] VSCA 322, DPP v Weybury [2018] VSCA 120 and Bankal v R [2019] VSCA 171
[11] [2018] VSCA 55
Licence Disqualification
63The nature of the charges require me to consider the cancellation of any licence or permit you hold to drive a motor vehicle and the period of disqualification from holding a licence or permit to drive a motor vehicle. As I said earlier, at the time of these offences your licence to drive a motor vehicle was suspended and that period of suspension has now ended.
64To an extent, s61 of the Road Safety Act 1986 provides for the period of disqualification. Relevantly, it provides:
‘(1) If owing to the presence of a motor vehicle an accident occurs whereby any person is injured or any property (including any animal) is damaged or destroyed, the driver of the motor vehicle—
(a) must immediately stop the motor vehicle; and
(b) must immediately render such assistance as he or she can;…’
65And then moving to sub-s(6):
‘(6) On conviction of a person for, or finding a person guilty of, an offence against this section, if a person is killed or suffers serious injury as a result of the accident, the court must cancel all driver licences and learner permits held by the convicted person and, whether or not that person holds a driver licence or learner permit, disqualify that person from obtaining a driver licence or learner permit for—
(a) in the case of a first offence, at least 4 years if a conviction is recorded and at least 2 years in any other case; and
(b) in the case of a subsequent offence, at least 8 years if a conviction is recorded and at least 4 years in any other case.’
66On 23 September 2004, in the Magistrates' Court at Ballarat, you were convicted of two offences under s61 of the Road Safety Act. Consequently,
Charges 2 and 3 are subsequent offences. With the recording of convictions, s61(6) requires a minimum period of disqualification of eight years.
Section 61(7) explains what constitutes a subsequent offence.67Section 61(6) prescribes a minimum period of disqualification. In determining the period of disqualification, I should pay regard to, at least, these factors[12]:
‘First, since the disqualification falling to be imposed contains a punitive element, it is necessary to evaluate the extent to which disqualification is required in the total punishment in order to mark the dissatisfaction of the community with the offence. In making that evaluation, aggravating or mitigating factors are to be considered, and also is to be weighed the length of the disqualification compared with any period of custody which is ordered. It is not necessary that the two should be equated in length. Sometimes it is desirable, balancing all the facts, that a period of disqualification will exceed the length of the period of any custody.
…
Next, it is usually appropriate that, in assessing the necessary length of any disqualification period, the convicted person's dependency on a driving licence should be taken into account. To do so it is usually necessary to ensure that the prospects of rehabilitation of the convicted person will not be unduly hampered. Such considerations as the necessity or convenience of a motor vehicle when looking for, obtaining and maintaining employment are to be considered.’
[12] R v Novakovic [2007] VSCA 145 at [63]
68Before the start of your present period in custody, you worked as a concreter and you wish to return to that occupation after your release. No doubt, such work requires travelling from worksite to worksite and to areas which are not easily reached by public transport. On the other hand, your offending deserves significant punishment, reflected in the sentences of imprisonment and in the period of disqualification.
69The minimum period of disqualification for Charges 2 and 3 exceed the sentence I will impose and far exceeds the non-parole period. It contains a large element of punishment. In the circumstances, I will disqualify you for the minimum period of eight years.
70Accordingly, the minimum period of disqualification for Charges 2 and 3 is, as I say, eight years, and I will impose that period for both charges. I will also impose the same period of disqualification on Charge 1. Since these periods run together, the overall period is eight years.
Cumulation and Concurrency
71Your counsel submitted I should order the sentences on Charges 2 and 3 to be served concurrently because the failure to stop prevented you from rendering assistance. I agree.
72Your counsel concedes the need for some cumulation of the sentences on Charges 2 and 3 with the sentence on Charge 1. To reflect properly the degree of criminality on Charge 3, I will order a substantial part of the sentence be served cumulatively on the sentence on Charge 1.
Non-Parole Period
73Your counsel submits eligibility for parole is intended to operate as motivation for someone in your position to rehabilitate yourself. In Bugmy v R[13], the majority cited from the Court's earlier judgment in Deakin v R[14]:
‘The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence’
[13]47 A Crim R 433
[14] (1999) 169 CLR 525 at p766
74A little later in the majority judgment[15]:
‘The scheme of the legislation is plain enough. The intention of the legislature is that a minimum term is a benefit to the prisoner…That benefit lies in providing the prisoner a basis for hope of earlier release and in turn an incentive for rehabilitation.’
[15] At p 536.
75These passages require a consideration of your rehabilitation in the context of the minimum time you must serve demanded by justice in the circumstances of your offending. Those circumstances include the consideration of the other purposes of sentencing.
Sentence
76On Charge 1, the charge of dangerous driving causing death, I sentence you to five and a half years' imprisonment.
77On Charge 2, the charge of failing to stop after a motor vehicle accident, I sentence you to three years' imprisonment.
78On Charge 3, the charge of failing to render assistance after a motor vehicle accident, I sentence you to three years' imprisonment.
79The sentence on Charge 1 is the base sentence. Two years of the sentence on Charge 3 will be served cumulatively on the base sentence. The sentence on Charge 2 will be served concurrently with the other sentences. The total effective sentence is seven and a half years' imprisonment. I will set a
non-parole period of five years' imprisonment.80You have remained in custody since your arrest on 27 October 2021. Excluding today, you have spent 373 days in custody. I declare the 373 days as time served under my sentences today.
81On Charges 1, 2 and 3, any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit to drive a motor vehicle for eight years.
Section 6AAA
82If you had not pleaded guilty to these charges but were found guilty after a trial, I would have sentenced you to 10 years' imprisonment and set a non-parole period of seven years' imprisonment.
Forfeiture Orders
83I will make the forfeiture order in the terms sought.
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