Director of Public Prosecutions v Stephens

[2015] VCC 1847

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01979

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY OLIVER STEPHENS

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 October 2015
CASE MAY BE CITED AS:	DPP v STEPHENS
MEDIUM NEUTRAL CITATION:	[2015] VCC 1847

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Tinney SC	Office of Public Prosecutions
For the Offender	Mr P. Smallwood

HIS HONOUR: 

1Ricky Oliver Stephens, you have pleaded guilty to an indictment charging you with dangerous driving causing the death of your daughter, Sophie Rose Stephens, and in Charge 2, with recklessly engaging in conduct, namely the driving of a motor vehicle erratically and at excessive speed in circumstances that placed or may have placed Cameron Humphrey in danger of death.  He was, in effect, your stepson at the time.

2As at Friday 6 September 2013, you were 38 years of age.  Your daughter, Sophie Rose Stephens, was nine years of age and your stepson was 11 years of age.

3You have no prior convictions.  You face the prospect of being sentenced for two offences that carry a maximum term of imprisonment of ten years each. The circumstances are a tragedy for all family members and friends and a tragedy for you.

4The prosecution has tendered and relied upon a written prosecution plea opening, that is Exhibit A.  It was presented in full on the last occasion, I am not going to read it all again, but I think it is necessary for me to go through the details to put in context the sentencing remarks that I am about to embark upon.

5You were living with your fiancée, Theresa, at a property at 5 Gibbs Road in Yarra Glen.  It is a farmlet, along with a number of other similar properties in a cul-de-sac.  The arrangement with your ex-wife, the mother of Sophie, was that you would share custody, and this was an occasion on the afternoon of Friday 6 September when she was to be with you for the afternoon and into the early evening.  A similar arrangement had been made between your fiancée and Cameron's father and he too was with you on that afternoon. 

6You had determined that you were going to buy an ATV, an All-Terrain Vehicle, an Arctic Cat Wildcat 4WD.  It has been referred to in the prosecution opening as a buggy. I will call it a buggy.  It was of a kind which was built, for conversion into a racing machine.  You apparently had had the experience of acting as a navigator in a desert race, using a vehicle of that kind, in the year previously and you were apparently intending that the buggy would be converted into a similar racing machine. 

7This particular day, 6 September, was the day that you picked the vehicle up from the dealer.  When you attended the dealership you received a handover from the gentleman whose task it was to hand the vehicle over to you.  He provided you with an owner's manual and told you to read it.  He also gave you a DVD concerning certain safety features with the buggy and he told you on a number of occasions that what you were buying was not a toy, but was a high performance off-road racing buggy. 

8When he took you to the buggy, along with your fiancée and the two children, he took you through the operation of the vehicle and he reiterated that it was not a toy.  He went through a number of safety features with you, including one related to the danger of a rollover. 

9There were a number of safety warning labels displayed prominently in and on the vehicle.  Many of those warned of the risk of death or serious injury occurring as a result of misuse of the vehicle and in particular in event of a rollover.  Prominently displayed, for example, was a warning label which was in writing that was easily observable and easily read with a picture of the buggy in the process of rolling over.  It reads, "Rollovers have caused severe injuries and death, even on flat, open areas.  Make sure all doors are fully latched, locate and read operators manual, follow all instructions and warnings." 

10Another, prominently displayed right beside the driver's wheel on the dashboard reads, "Warning:  Improper use of off-highway vehicles can cause severe injury or death.  Driver responsibility:  Avoid loss of control and rollovers, avoid abrupt manoeuvres, sideways sliding, skidding or fishtailing and never do donuts.  Slow down before entering a turn.  Avoid hard acceleration when turning, even from a stop.  Plan for hills and rough terrain, ruts and other changes in the traction and terrain.  Avoid paved surfaces, avoid side hilling, that is riding across slopes." 

11Under the heading "Require proper use of your vehicle" it reads "Do your part to prevent injuries.  Do not allow careless or reckless driving.  Make sure the operators are 16 or older with a valid driver's licence.  Do not let people drive or ride after using alcohol or drugs.  Do not allow operation on public roads unless designated for off-highway vehicle access.  Collision with cars and trucks can occur.  Do not exceed seating capacity, that is, one passenger."

12Another label reads "Warning:  Vehicle rollovers could cause serious injury or death.  You must keep all parts of your body inside the vehicle.  Do not remove the rollover protection system."  There was, of course, a rollover protection system. 

13You then loaded the buggy onto a tray truck that you had brought to the dealership.  As you were leaving you told the gentleman who handed the vehicle over to you that you were going home to go and "tear up the paddocks". 

14You then drove home, unloaded the buggy.  You got into the driver's seat.  Cameron, your stepson, sat in the passenger seat and you had Sophie sitting between Cameron's legs.  Both you and Cameron had seatbelts on which had been, of course, provided.  Sophie had no restraint other than perhaps Cameron to support her.  None of you were wearing protective headgear, crash helmets or anything of that nature.

15You then embarked on your first drive of the buggy.  You later admitted to

police during an interview that you had never driven a buggy or anything resembling one before.  You first drove the buggy down the driveway and turned into Gibbs Road.  You drove along Gibbs Road for about
700 metres before reaching a dead end.  You then performed a U-turn to the left under acceleration, leaving a spray of loose gravel and tyre yaw marks in the gravel surface where the buggy had slipped to the side.

16You then drove back to your property, into the driveway and straight into the paddock that you had prepared yourself, it seems, to allow the children to use motorbikes, amongst other things, over a pile of dirt that you had positioned for that purpose. 

17Nobody witnessed the driving that occurred in the paddock.  The prosecution has relied, amongst other things, on what you told the police about what occurred in the lead-up to the fatal incident.  Of course, and I will come to it in a few minutes, there were observations by the police experts as to marks on the paddock from which calculations were done and some ability was gleaned to reconstruct what must have occurred.

18On your account, you drove around the paddock, going over the large mound of dirt before doing a second lap of the paddock and going over the mound of dirt a second time.  As you left the mound, you accelerated whilst steering first to the left and then to the right, and this again is in your account, in an attempt to do a "burnout."

19While the buggy yawed to the right, it rolled over.  Evidence indicates that it rolled to the driver's side first.  As a result, Sophie was thrown from the open roll cage onto the grass.  The buggy continued to roll over, struck Sophie and came partially to rest on her.  Again, on your account, Sophie's leg was trapped under the buggy after it came to rest and you and Cameron had to free her by lifting the buggy and pulling her clear.

20To your observation, Sophie was lifeless.  You apparently screamed to your fiancée for help and police and ambulance were promptly notified.

21Theresa Stephens, your fiancée, came quickly to the scene.  CPR was provided to Sophie until the arrival of a MICA ambulance.  It seems that the rollover occurred at 5.52 pm and the ambulance arrived at about 6.19 pm.

22Upon examination by the ambulance officer, Sophie was found to be unconscious, pulseless and not breathing.  She had no obvious signs of injury.  The ambulance officers took all possible steps to revive and save her, but at 6.53 pm, after 31 minutes of CPR and other measures by the ambulance officers, during which time Sophie at no stage regained consciousness or a pulse, it was determined that further efforts would be futile.  She was declared deceased at that time and you were informed of that fact.

23Police were called at five past six.  They attended at about 6.15 and described you as being obviously distressed, pacing up and down and repeatedly making comments such as, "What have I done?  What have I done?"  You were also heard to say, "It's all my fault."  You admitted being the driver when it rolled and you said, "I had Sophie sitting between Cameron's legs in the passenger seat, I was driving around the paddock, I accelerated a bit, lost control and it flipped over.  I only picked it up today."

24You were breathalysed at 6.30 and there was a positive preliminary breath test.  Later you were breathalysed back at the police station and the reading was well below the legal limit.  It was 0.015 per cent.  It is not suggested by the prosecution that alcohol played any part.  Indeed, the medical opinion was that alcohol at that level would not have played any part in affecting your capacity to control the vehicle.

25The examination by the police expert showed a number of things, that the buggy had travelled only 4.1 kilometres.  At least that was all that was on the odometer.  The vehicle was examined and found to operate satisfactorily. 

26There was a mechanical inspection, including a road test.  It was found to be safe and in good mechanical condition.  There was no mechanical fault revealed which could have caused or contributed to the collision.

27The tyre marks that you left behind when you drove along that part of Gibbs Road and did your U-turn under power revealed that there were tyre marks consistent with the buggy having performed a U-turn under acceleration and then further steering input having been made which caused the vehicle to yaw, leading to the vehicle sliding sideways and the rear right wheel of the vehicle lifting off the road surface.  The expert considered the marking indicated that the buggy had been driven in a deliberate manner at that location in order to induce side slip.

28I note in passing that that event must have and did indicate to you the fact that you were inexperienced in handling that vehicle and that the manoeuvre which you had performed there caused one of the wheels of the vehicle to lift off the ground and should have warned you of the serious risk, if you needed further warning, of the vehicle rolling over, particularly in a paddock. 

29The observations within the paddock supported the account that you gave to the police.  The view of the expert was that the vehicle had been deliberately driven in a manner as to lose traction or control, leading to the eventual fatal rollover.  The reconstruction indicated that the minimum speed of the buggy at the point where it commenced to roll was 34 km/h. 

30There was no autopsy performed on Sophie but the medical opinion indicated that the cause of death was chest injuries sustained in off-road vehicle collision.  The absence of crash helmets, head protection, it seems would have made no difference to the fatality of the injury suffered by Sophie.  However, it is not irrelevant to note that you omitted that safety precaution, which had been one of the matters referred to in the warning labels within the vehicle. 

31When interviewed by the police in the early hours of the following morning, you said, amongst other things, about the events leading up to Sophie's death, "We met down at Peter Stephens' to pick up the new buggy, come home and I was pretty eager to get it out and have a go.  I've never driven one and the kids were pretty eager with me, so we got it out to have a go.  It probably didn't handle like I probably should think they did.  I went over the mound of dirt that I've got there and it's a pretty quick sort of buggy and then we came back over it again and once we got out the other side we were on the grass.  So I went just to give it a big bucketful to make it spin out a little bit and as it done that, it just bit into the grass and just went into like a slow motion flip over." 

32You described having driven the buggy down Gibbs Road first and saying to yourself, "Don't be silly, it's not a toy, I'm going to stay in the paddock".  You said of your entry into the paddock, "Like, we done a bit of a burnout coming in." 

33You said that no one was wearing a helmet in spite of the fact that you were usually very strict about that and you said, "I just let me guard down tonight."  You said that no one was wearing seatbelts.  That seems not to have been the case; you and Cameron were apparently wearing seatbelts.  You said you were, "Fucking eager to get into it.  It's gonna cost me for the rest of me fucking life."  You were asked if there were any stickers on the buggy with safety warnings and you said, "I don't know, as I said, I was too fucking eager like the kids to have a fucking have a go too." 

34You were asked about the speed when you came off the mound the second time just before the vehicle rolled and you said, "I don't know, probably 60, s'pose I - like I - I couldn't exactly tell because as I say, it's the first time I'm driving it and not really having any feel of it to tell you the truth." 

35You told the police how the kids were, "Laughing and just having a wow of a

36time."  You were asked why you had performed the multiple burnouts and you said, "Just because the kids were excited." 

37You were asked why you thought the crash had happened and you said, "Inexperience on my behalf, too many in the buggy, no one had seatbelts on" - I have already pointed out that was not in fact the case. 

38The way the prosecution puts its case in relation to the dangerous driving causing death is that your conduct was dangerous in that it involved a serious breach of proper management or control of the vehicle, which created a real risk that someone would be killed or seriously injured.  The prosecution relied upon the fact that the vehicle and its handling were entirely unfamiliar to you.  Next, that the vehicle by its appearance and its handling when you first drove it was obviously unstable and prone to the risk of rollover, as had been pointed out to you during the handover process.

39Next, that you drove the vehicle whilst it exceeded the maximum permitted number of passengers and had one unrestrained passenger who did not even occupy her own seat.  Also, the prosecution rely upon the fact that you deliberately drove the vehicle in such a manner as to repeatedly cause the vehicle to lose traction and control, increasing the risk of rollover and other collision when you knew your daughter was unrestrained in the vehicle.

40As to Charge 2, that of reckless conduct endangering life, that is the life of Cameron Humphrey, the prosecution points to a number of the relevant circumstances involving your driving and alleges that the deliberate actions of you in driving in that manner created a real risk of rollover or some other event which would endanger the life of Cameron, and that any reasonable person would have realised that.

41The prosecution point out that your plea of guilty to this charge is an acknowledgment of the existence of all of the elements of the offence, including that at the time of your conduct, that is, the manner in which you were driving, your foresaw that an appreciable risk of death of Cameron was a probable consequence of your conduct.  It was conceded by your counsel during the plea hearing that that same state of mind must necessarily also have applied in respect of Sophie and that that state of mind was present in respect of each of the two offences to which you have pleaded guilty.

42The prosecution also tendered and relied upon victim impact statements from Sophie's mother, Tanya Michelle Exton, her maternal grandmother, Jennifer Gayle Exton, and Tanya's partner and the stepfather of Sophie, Danny McKinnon.  I am bound to take into account the impact upon the victims.  Naturally enough the victim impact statements express the high degree of distress, ongoing grief that is inevitable from an incident such as this.  That is not to say that you, yourself, are not grieving in a very significant way.  Nevertheless, as part of the sentencing process I am required to take into account the effect on the victims to whom I have referred.

43Fortunately, Cameron was not seriously injured, although the offence to which you pleaded guilty affecting him is a serious offence as is reflected in the maximum term of imprisonment of ten years which applies to each of the two offences.

44Turning to matters personal to you, your counsel provided me with a folder of material which contained an outline of plea submissions on your behalf, a psychological report of Mr Patrick Newton dated 19 October 2015, therefore very recent, and character references from a total of 12 witnesses.  They, of course, include your fiancée and family and friends and persons who know you as part of the community in which you live. 

45I am not going to go through those references in any detail.  They do show another side to you.  They show a strongly committed family man who has shown commitment as a loving father and partner and friend who has engaged in community pursuits to the benefit of others and who is in very

many respects a model citizen. 

46The outline of plea submissions and indeed the psychological report of
Mr Newton tells me a good deal about your background.  You have had a very solid upbringing and have had a very good working record.  You have two businesses which both you and your fiancée are engaged in and it seems that you have a successful working life as well as a life as a contributing member of the community.  You are well supported by family and friends, including your parents, who live not far away from you.

47You have pleaded guilty to each of these offences.  That is very much to your credit, and as your counsel pointed out, your pleas do have a significant utilitarian benefit of bringing these proceedings to a conclusion and not putting witnesses through the trauma of having to give evidence in a trial.  It does show a willingness to facilitate the course of justice.  It shows an acceptance of responsibility on your part and is consistent with remorse, which has undoubtedly been expressed by you right from the word go.  Nobody has suggested that you are anything other than deeply remorseful for what occurred and are grieving in a very significant way.

48The report of Mr Newton is a characteristically thorough examination of your mental health.  Again, not surprisingly, he identifies considerable anxiety and remorse and he notes that there are a number of symptoms which are consistent with Post-Traumatic Stress Disorder attributable to the incident, but considers that the symptoms are not currently sufficient to meet the diagnostic criteria for that particular condition.

49He does opine that you remain at risk of developing Post-Traumatic Stress Disorder, particularly in the absence of suitable treatment.  He also expresses the opinion that there is a significant risk that your mental state could deteriorate during a period after sentencing, and obviously would be exacerbated in his opinion by any term of imprisonment which the court might impose.  He also notes that these symptoms and your anxiety generally would be likely to make serving your term of imprisonment more onerous than if you did not have those symptoms.

50Dealing with those points, it was submitted on your behalf that those facts engage what are known as Verdins principles and therefore should operate to reduce the sentence that might otherwise be imposed upon you.  The prosecution submitted that the evidence in support of that contention was insufficient to meet the criteria for the application of those Verdins principles.  I am inclined to agree with the prosecution.  It does seem to me that it is probably right that the Verdins principles are not strictly engaged. 

51However, it does seem to me that it is something that I must take into account in the instinctive synthesis which I am required to perform in determine what is an appropriate sentence and that these are matters, along with the grief that you undoubtedly suffer, which will make your time in prison harder than for somebody who did not have those issues to contend with.

52The submissions on your behalf quite appropriately drew my attention to and emphasised your good character.  The fact that you have no prior convictions, that you have not had any criminal convictions of any kind since these offences is something that I must and should take into account in your favour.  You have been driving vehicles of many different kinds for a considerable number of years and I understand that the only accident that you have had is where somebody ran into the back of you.  Therefore there is no suggestion that you have been engaged in conduct of the kind that led to the death of your daughter.

53You are also entitled and I give you full credit for the character as evidenced from the various character references and clearly your reputation within the community in which you operate.  I am entitled to take into account your work history and all of your personal circumstances at this time

54in your favour.  I do take into account the obvious distress which you have felt. 

55It was urged upon me that I should regard this offending conduct as not at the high end of the scale, rather towards the lower end of the scale because there were absent a number of factors which are often regarded at aggravating features.  I cannot accede to that submission.  The prosecution, on the other hand, have submitted that these are serious examples of serious offences and I am of the same view.

56Clearly, it is important for me to take into account your prospects of rehabilitation.  I regard your prospects of rehabilitation as good.  Of course you are going to have to bear the burden of this for the rest of your life and these symptoms described by Mr Newton will no doubt affect you for some considerable period of time.  But you do have the support of your family and your friends and the community in which you live. 

57I would regard, I think, your prospects of rehabilitation as excellent, and for that reason it seems to me that the sentencing principle of individual or specific deterrence, that is, deterring you, does not play a significant role in my sentencing considerations.  That is not to say that it is to be ignored, but other sentencing considerations, it seemed to me, are more significant. 

58I note that Mr Newton's opinion was that you required some treatment and that it was important that you get that treatment soon.  I pointed out during the course of the plea hearing that in Mr Newton's report he had identified that you were grief-stricken by your daughter's loss and you described a wide range of symptoms of anxiety and depression and that those symptoms had lasted at a severe level for several months before reaching a plateau, which has persisted, according to Mr Newton, at a chronic level until the present time. 

59He noted that you had, according to what you told him, consulted your GP for assistance and that your GP had suggested medication to alleviate your symptoms.  But that you were reluctant apparently, according to what you told Mr Newton, to take that medication for fear of side effects.  Your GP also referred you to a psychologist for counselling, but you told Mr Newton that you found that unhelpful. 

60You reported that you derived some benefit from speaking to a "spiritual reader", who you apparently believed assisted you to communicate with the spirit of your deceased daughter.  You were apparently reluctant to discuss that in detail, but indicated that that did give you considerable comfort. 

61So although in mid-October 2015 Mr Newton was of the opinion that you required counselling and psychological treatment, you did not avail yourself of the opportunity of that treatment, despite the recommendation from your GP.  As your counsel put it during the course of argument, that very often people are their own worst enemy and that it seems that you may not have been the best judge during that period of what was required to deal with the symptoms from which you were suffering. 

62Another matter which seems to me to be of relevance is that this all occurred more than two years ago now, almost 26 months ago.  These matters have been hanging over your head for a considerable period of time.  Delay is always a factor to be considered and obviously the degree of delay and circumstance of the delay can affect the extent to which it mitigates sentence.  But it is a relevant factor. 

63I think it is particularly noteworthy in a case where, as in this case, you have been suffering considerable distress, grief, albeit as a result of your own actions.  Nevertheless those emotions and knowing that you run the real risk of a term of imprisonment and being deprived of the ability to continue to act as a father to your two young children, the youngest of whom is only a matter of months old, as I understand it, the older with Theresa is about four. 

64All of these are matters which would have been playing on your mind during that time and I take those facts into account in assessing an appropriate sentence. 

65I was of course properly urged to consider the principle of totality and concurrency.  These are separate offences with separate victims and it is conceded on your behalf that some degree of cumulation as between the sentences appropriate for each would be appropriate.  But that I need to moderate that degree of cumulation in the appropriate application of what is known as the totality principle and reach thereby a just sentence for the totality of your conduct encompassing both charges.

66Your counsel also relied up on a number of cases of a broadly similar nature involving offences of a broadly similar nature that have come before the courts in the relatively recent past, some of those before the Court of Appeal, some in this court.  The submission was that those cases indicated that within the range of sentences open to me was a Community Correction Order.  I was urged to sentence you to a Community Correction Order, albeit with some significant punitive elements attached to it.

67The prosecution also drew my attention to a number of cases, and in particular the case of the Director of Public Prosecutions v Neethling (2009) 22 VR 466, where the principles that are to be applied in sentencing for offences of causing death by dangerous driving and similar offences were canvassed. That authority has been referred to in a number of cases, including Court of Appeal cases. Those principles have been developed and applied in this state since 2009. Those principles are consistent with and to some extent derived from similar principles that are applied in New South Wales.

68All of those references to authority by both prosecution and defence were designed to enable me to have an appreciation of current sentencing practice and, where appropriate, to compare the sentences imposed for similar types of offending.  There is always caution, of course, in performing such an exercise, in that every case has to be determined on its own particular facts.

69One of the principles that does emerge from the case of Neethling and other cases where those principles have been applied is that the degree of moral culpability for offending of this nature is not only a relevant but a significant consideration in determining an appropriate sentence. 

70Whilst it is clearly not the case, and it is underscored by authority that a term of imprisonment is inevitable in every case of causing death by dangerous driving, it seems that the authorities are to the effect, or the principles point in the direction of that being the appropriate sentence except in what might be regarded as the more exceptional case where the moral culpability is particularly low or where other circumstances attending the offending are such as would justify a non-custodial sentence.

71I have given a good deal of thought to the balancing exercise here.  The prosecution submitted that no sentence other than a term of immediate imprisonment, and indeed a substantial term of imprisonment, is appropriate for offending conduct of this kind.  They pointed out the features which suggested that your moral culpability is at what Mr Tinney described as a very high level.  I think I have already referred in summarising parts of the prosecution opening to a number of those factors which seem to me to establish the correctness of that contention.

72This was not a case of bad luck.  This was a case where the injury to Cameron and the death of your daughter was brought about by your deliberate actions, obviously not with any intent on your part to cause injury, much less death, but nevertheless attended by a very high level of moral culpability. 

73It is necessary therefore, in conformity with the law in this state and current

74sentencing practice, for me to impose a term of immediate imprisonment.  As the authorities point out, the fact of your conduct leading to death of a person is a significant consideration to be taken into account.

75I am required to punish you adequately for your offending conduct and to denounce your conduct.  That seems to me to be a very significant sentencing consideration.  It leads to the other particularly important consideration, and that is general deterrence.  That is, deterring other people who might behave in a similar manner from doing so.  Unless the court is willing to and able to send out a clear message that conduct of this kind, particular when it leads to death or serious injury, is almost inevitably going to result in a substantial term of immediate imprisonment, then the courts will not have adequately met the sentencing criteria of general deterrence or denunciation or just punishment.

76I take into account the excellent prospects of rehabilitation and the sentence that I intend to impose is designed to facilitate to the extent possible consistent with the other sentencing considerations, the need to promote your rehabilitation.  For that reason, I have endeavoured to moderate the non-parole period that I have selected as that component of the sentence.

77I have considered the degree to which cumulation as between the sentences for the two offences should occur and the extent to which the totality principle should moderate that degree of cumulation.  I have endeavoured to arrive at a sentence that balances appropriately all of the sentencing considerations that I have referred to.  I regard the appropriate sentence as being outside the range of sentences that could be accommodated with a community corrections order.

78Would you now please stand, I am ready to pass sentence upon you.

79On Charge 1, causing death by dangerous driving, I convict you and sentence you to imprisonment for a period of three years and three months.  On
Charge 2 of reckless conduct endangering life, I convict you and sentence you to imprisonment for a period of 18 months.  I order that six months of the sentence on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, making a total effective sentence of three years and nine months' imprisonment.  I order that you serve a period of two years and three months before becoming eligible for parole.

80I think it is four days' PSD.

81MR TINNEY:  Yes, Your Honour.

82MR SMALLWOOD:  Yes, Your Honour.

83HIS HONOUR:  I declare that four days of pre-sentence detention that has occurred between Monday of this week and yesterday, not including today, is to be reckoned as time served on the sentence that I have imposed and deducted administratively from the time that you will actually have to serve.  That will be noted in the records of the court.

84But for your pleas of guilty, I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years and four months.

85In respect of the offence of causing death by dangerous driving, I cancel all your driving licences and order that you be disqualified from holding or obtaining a licence for a period of two years from today.  That may seem somewhat lenient, but that will enable you to get back on your feet when and if you are granted parole in a manner that is more conducive to your rehabilitation than depriving you of your licence as a further punishment, effectively.  Had you had a bad driving record, then I would have been more inclined to impose a more significant period of disqualification.

86I have said that, but I have not checked with the prosecutor and I do not think that I did on the last occasion whether there was a mandatory period of disqualification or cancellation.

87MR TINNEY:  There is, Your Honour.  It is 18 months.

88HIS HONOUR:  It is 18 months, is it?

89MR TINNEY: Yes, it is in the opening, Your Honour. It is s.89(1) and (2) of the Sentencing Act.

90HIS HONOUR:  Thank you, I overlooked that.

91MR TINNEY:  That is for that that charge.

92HIS HONOUR:  So two years obviously encompasses that.

93MR TINNEY:  It does.

94HIS HONOUR:  Are there any other orders that I need make?

95MR TINNEY:  No, Your Honour.  Could I just raise one matter related to the victim impact statement of Jennifer Exton, you will recall on the previous occasion I was not in a position to file the original of that statement.

96HIS HONOUR:  Yes.

97MR TINNEY:  The enquiries that we have made have not been able to locate the original of that statement.  What was filed in its place was a photocopy of the signed original and I do not understand there to be any objection to that remaining the victim impact statement relied on in the court.

98HIS HONOUR:  All right.

99MR TINNEY:  I think it has gone missing somewhere in the postal system or DX system.

100HIS HONOUR:  Yes.  Mr Smallwood, I take it you have no objection to that being treated as the original essentially.

101MR SMALLWOOD:  No, not at all.

102HIS HONOUR:  There was no objection raised on the last occasion to it being treated as something that I could take into account.

103MR SMALLWOOD:  That is so, Your Honour.

104HIS HONOUR:  Yes.  All right.

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