Director of Public Prosecutions v Swan

[2013] VCC 2107

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02150

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARRATT SWAN

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2013
DATE OF SENTENCE:	20 December 2013
CASE MAY BE CITED AS:	DPP v Swan
MEDIUM NEUTRAL CITATION:	[2013] VCC 2107

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For Director of Public Prosecutions	Mr A. Tinney	Office of Public Prosecutions
For the Accused	Mr J. McLoughlin	Victoria Legal Aid

HER HONOUR: 

1Jarratt Keith Swan, you have pleaded guilty before me to one charge of dangerous driving causing death.  The maximum penalty for that offence is ten years' imprisonment.

2The facts were opened by counsel for the Director of Public Prosecutions and a summary of that opening was tendered as Exhibit A on the plea.

3In essence, on the morning of 14 January 2009 you were travelling north on Stud Road in Dandenong at about 8.30 am.  You clearly did not have your attention on the road as you failed to see that the traffic lights at a pedestrian crossing turned from amber and then to red as you approached.  A number of vehicles were slowing to stop or had stopped at the crossing as you, without even touching your brakes or making any attempt to change your course, passed a vehicle which had stopped and proceeded through the red traffic signal, striking a pedestrian, Thiruvadivel Sriskantharajah.

4He had commenced to cross the road and was, according to the scientific reconstruction, somewhere near the centre of the road, crossing from west to east. 

5You struck Mr Sriskantharajah with the front, left corner of your vehicle, throwing him approximately 27.5 metres, where he landed on the left side of the roadway to the left of your vehicle.  He died soon after from multiple injuries.  His brother, Inthiravel Sriskantharajah, was walking just behind him and witnessed the collision and his brother's subsequent death.

6You made no attempt to stop and proceeded north in Stud Road.  A witness heading south did a U-turn and followed you into a side street.  Her evidence was that she was behind you, contradicted your version of events in which you had said that you stopped the car in that roadway, returned to the scene and were so shocked by the sight of the ambulance that you again left.  I accept that you knew you had hit the pedestrian and you continued to evade police for several hours until you were finally intercepted.

7There was considerable argument about the facts during the course of the plea before me.  However, I accept that you were travelling in the right-hand lane, travelling north and that you had ample time from when the lights controlling your route turned orange, to slow and stop.  I accept that you clearly paid no attention to the road for approximately nine to eleven seconds, during which time you travelled over 100 metres, oblivious to what was happening in front of you.  I also accept that you had had very little sleep the night before and were sufficiently sleep deprived over the preceding weeks to cause concern to your family and perhaps to affect your attention span.

8This matter has a long history.  You were taken into custody on that day, 14 January 2009, and following a trial on 4 March 2011, you were sentenced by Her Honour Judge Cannon of this court, in relation to one charge of failing to stop after an accident resulting in death, failing to render assistance after an accident resulting in death, and having pleaded guilty to those two offences at the time of the trial, you then proceeded with the trial in relation to the culpable driving.  You also pleaded guilty to the charge which I am to sentence you today.

9A further summary charge of unlicensed driving was uplifted and dealt with by Her Honour Judge Cannon when she sentenced you.  Your conviction in relation to culpable driving was successfully appealed and on 30 August 2013 your conviction for that charge was set aside, sentence on that count quashed and a re-trial on the culpable driving charge was ordered.

10The Director of Public Prosecutions elected not to conduct a further trial but to accept your plea of guilty to the one charge of dangerous driving causing death, and that is how the matter comes before me.

11You have now served the sentences of three years each, served concurrently, on the two charges which were not appealed.  The end result is that you have now spent four years and eleven months approximately in custody.  You have also served a sentence of some eight months for other unrelated matters and you have served some 463 days of pre-sentence detention in relation to the matter for which I sentence you today.

12Tendered as Exhibit E on the plea was a copy of the victim impact statement declared by Mr Inthiravel Sriskantharajah, which illustrates the consequences of your moments of inattention while driving at approximately 68 kilometres per hour on a straight road on a sunny January morning, having had little sleep.

13Mr Sriskantharajah saw his brother die in front of him and that occurred about six months after the family had arrived in this country, seeking a better life.  He had obtained permanent residency in Australia and sent for the rest of the family, his parents, a sister and the brother who made the victim impact statement.  His death has obviously had a devastating effect on the family, which I know you appreciate and you have written about in your letter to the court.

14In submissions made on your behalf in mitigation, your counsel described your background and your childhood, your early experimentation with marijuana and heroin, starting at the age of 13 or 14 following your parents' separation.  You continued to use heroin up to your imprisonment for armed robbery in 2000 and I am unsure of what drugs you used after that point.

15You have a number of prior convictions, many of which related to motor vehicle offences, including speeding, driving in a manner dangerous, driving whilst disqualified, driving whilst suspended, stating a false name, altering number plates, some other property offences and, of course, armed robbery.  I take those matters into account, particularly the traffic matters, in that you have been a habitual offender in relation to driving a motor vehicle and have not heeded any of the warnings which were undoubtedly given to you by various courts. You also failed to comply with orders that were made against you, such as disqualification from driving and you also breached suspended sentences.

16You became a father at 16 and have a daughter, now 17, and a son aged 13.  That earlier relationship broke up and the second child was born during a brief reconciliation.  You have been in close contact with those children and I understand that you are a very devoted father and you also write about that in the letter that you handed to the court.

17You were a difficult and headstrong teenager.  However, you did an electricians apprenticeship with your father, who was present in court on the day of the plea to support you, and you were a successful electrical subcontractor.  In fact you worked solidly between the end of the sentence you served for armed robbery in 2002 up to 2008.

18While Judge Cannon initially sentenced you for the culpable driving offence, she had the benefit of a report from Jeffrey Cummins which gave a detailed account of your early history and I annexe the sentencing reasons of Her Honour to this sentence in reference to your personal background.

19It was clear from the material tendered to this court that you were deeply affected by the death of Mr Sriskantharajah and it appears you remain so.  Tendered in Exhibit 1 on the plea was the letter that I have referred to, which reflects the impact on both his family and on your own family, especially on your two children.  You write that as long as you live you do not believe the remorse will ever fully leave you and you have difficulty in accepting that Mr Sriskantharajah is removed from his family's lives as a result of your actions.

20You also write of your father who, as I say, was present in court, in that you wanted to show him that your mistakes were not his mistakes, that he had taught you a great deal in life and had been a positive influence.  You wrote that your ambition is now to make both your father and your children proud of you.

21I accept that your remorse is genuine.  It is also illustrated by the fact that you pleaded guilty to this offence before your initial trial in relation to culpable driving.  I take all those factors, including your very early plea of guilty into account in sentencing you.

22I also take into account the delay caused by the initial conviction and the appeal process.  These events occurred, as I said, almost five years ago and you have served some almost five years in prison.

23Other matters I need to take into consideration are the requirement for general deterrence, that is, others who drive dangerously and do not have appropriate control and awareness when they are in charge of a motor vehicle, must understand that serious consequences will follow if they cause injury or death to other road users, including pedestrians.

24I am also required to take into account specific deterrence, and I do so.  Certainly, as far as your driving is concerned, you need to be deterred from offending again, and the term of imprisonment that you have already served, and the one which I am about to impose today, will hopefully have completely altered your attitude to your use of a motor vehicle and your compliance with the road rules when you are released.

25However, your experience in relation to the events that bring you before me would indicate that you have already been significantly deterred from driving in a way to endanger others, and if you have not been deterred then there is very little else that can be done.

26I am further required to denounce your conduct on behalf of the community and I do so.  It is unthinkable that a pedestrian crossing a major road with the protection of pedestrian crossing and lights should be killed due to the inattention of another road user.  The community expects to be protected when they navigate already dangerous roads when they act within the rules of the law, and it is totally unacceptable that those rules are not respected of complied with.

27Having considered these matters I am then required to impose just punishment in all of the circumstances.  In doing that I take into account the principle of totality, given that you have already served three years in relation to the two charges of failing to stop and failing to render assistance, and eight months in relation to separate matters.  I have also considered current sentencing practices in determining the appropriate sentence.

28It was submitted by both counsel that I should consider an appropriate sentence for the present offence for which I am to sentence you, then consider what would have been an appropriate total sentence for this offence, together with the matters for which you were sentenced on 4 March 2011, excluding the culpable driving, obviously.

29I have adopted that process and balanced the matters in mitigation and the time you have already served, and also taken into account the fact that you served the three years with no opportunity to have the benefit of any concurrency that in fact had been ordered by Her Honour Judge Cannon.

30The sentence that I impose today will therefore be considerably less than what I would have ordered if I were dealing with the matters immediately following a plea hearing, because I have had to re-balance and recalibrate everything.

31I have concluded that had I sentenced you for the offence of dangerous driving causing death, together with the other charges to which you pleaded guilty on 4 March 2011, I would have sentenced you to six years with a minimum non-parole period of four years.  I therefore intend to sentence you today to a period of three years' imprisonment with a minimum non-parole period of 16 months, and that means that you will be eligible for parole almost immediately.

32I am further required to order a disqualification period in relation to your licence.  You have already been disqualified from obtaining a licence for seven years from 4 March 2011 by Her Honour Judge Cannon.  Any order I make would not affect that disqualification and you would have to appeal against that if you wish to change it.

33Having considered all of the matters before me, and in light of your need to reconstruct your life and be able to drive in order to carry out your trade as an electrical contractor, I order that you be disqualified from obtaining a driving licence for the minimum period of 18 months, which commences today.

34I am going to ask you to stand if you would.

35On the charge of dangerous driving causing death you are convicted and sentenced to three years' imprisonment with a minimum non-parole period of 16 months.  I order that the 463 days of pre-sentence detention be deemed time served and that that be reflected in the records of the court, and as I understand it, you should be eligible for parole almost immediately, and it is hopeful that you will be able to go and live a useful life from this point.

36The s.6AAA is totally artificial.

37MR McLOUGHLIN:  Meaningless, it is.

38HER HONOUR:  And I just refuse to make it.  So I have indicated more or less what I would have done had he pleaded - but for - well, he never did not plead guilty.  There was never any question of him not pleading guilty.

39MR McLOUGHLIN:  No, it is a pointless exercise, we agree, Your Honour.

40HER HONOUR:  It is a pointless exercise so I am not going to do that.  So those are the orders that I am going to make and it is now up to the Parole Board, I think, to deal with the matters.  Were there any difficulties with any of that?

41MR McLOUGHLIN:  Not that I am aware of, Your Honour.

42MR TINNEY:  No, Your Honour.  I was trying to work out whether Your Honour had power to backdate the disqualification order but I ‑ ‑ ‑

43HER HONOUR:  I do not think I do.

44MR TINNEY:  I do not think you do.

45HER HONOUR:  The only time that it has been done, and I found it frequently, is when there is a s.52 notice served - which I think is s.52 - which immediately takes ‑ ‑ ‑

46MR TINNEY:  Takes the licence away.

47HER HONOUR:  Confiscates the licence but I do not believe I am able to do that at this stage.

48MR TINNEY:  As Your Honour pleases.

49HER HONOUR:  So that is one more thing I want to say to Mr Swan.  Please do not be tempted to drive whilst disqualified, because with your record you would be fairly sure to be given a term of imprisonment.  Thank you. 

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