Director of Public Prosecutions v Welsh

[2013] VCC 1612

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

AT MELBOURNE

CRIMINAL DIVISION

Case Nos. CR-13-01258
CR-13-01992

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON WELSH

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JUDGE:	His Honour Judge Maidment
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2013
DATE OF SENTENCE:	22 October 2013
CASE MAY BE CITED AS:	DPP v Welsh
MEDIUM NEUTRAL CITATION:	[2013] VCC 1612

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E Ruddle
For the Accused	Ms S Lacy

HIS HONOUR:

1       Jason John Welsh, you pleaded guilty to two indictments.  The first charges you with culpable driving on 11 December 2012, whereby you caused the death of Haydn Price-Davies.   The offence is particularised by the fact that you drove your vehicle negligently and whilst under the influence of alcohol, to an extent that you were incapable of having proper control of the motor vehicle. 

2       The second charge on that indictment, to which you pleaded guilty, is an offence of reckless conduct endangering life, in that you were driving at an excessive speed, in close proximity to other road users and whilst intoxicated by alcohol, you placed Adam Shugg in danger of death.  In connection with that incident, you also pleaded guilty to a related summary offence of unlicensed driving.

3       The second indictment concerns events which took place on 4 August of this year.   Those offences were all committed whilst you were on bail for the offences concerned with the first indictment.   You pleaded guilty to armed robbery of Celebrations Liquor and at the time you were aware that one of your co-offenders had with him and offensive weapon, namely a knife. 

4       The second offence to which you pleaded guilty is causing injury intentionally to Svran Srepathi, who was the unfortunate employee who was on the counter of the liquor store when you arrived.   That offence involved you hitting him over the head with a bottle full of liquor. 

5       The third charge on that second indictment to which you have pleaded guilty involved another incident later that night when you were drinking some of the stolen liquor from the armed robbery with some friends, including your victim of that offence, Matthew Jones and you caused injury intentionally to Matthew Jones during that incident. 

6       That incident ended with you damaging property belonging to the householder of the premises at which the assault upon Mr Jones occurred, by breaking a window.   You have also pleaded guilty to a related summary offence involving you trespassing upon that property, after you gained entry through the broken window that you had broken pursuant to the fourth charge on that second indictment.

7       You have also admitted a number of court appearances and prior convictions and they involve offences which include armed robbery, recklessly causing serious injury, offences of unlicensed and unregistered driving, use and possession cannabis, other offence of intentionally cause injury and offences of dishonesty, and making a threat to kill. 

8       The last of those court appearances involved you appearing at the Magistrates' Court on 28 February of last year and you received a total effective sentence of three months imprisonment, suspended for a period of 12 months.   By your pleas of guilty to the offence of culpable driving and reckless conduct endangering life, you are in breach of that suspended sentence order.  One of the offences to which you pleaded guilty on that occasion was intentionally causing injury and another was robbery. 

9       The prosecution has tendered and relied upon a prosecution opening on the plea, for which is Exhibit A.  That was read in open court this morning, I am not going to read it again.   I note that although I incorporate that document into these reasons for sentence in its entirety, paragraphs 3 to 8 inclusive were not read and do not form part of the prosecution case because the paragraphs contained material which was in dispute and the prosecution elected not to seek to resolve that dispute by calling admissible evidence.   It seemed to me in any event that they were not matters which were critical to a proper finding of fact for the purposes of imposing just sentences in this case.   The plea proceeded on the basis that each of the other paragraphs contained in that document were agreed facts upon which I could proceed confidently to sentence. 

10      The first of the offences to which I have referred and to which you pleaded guilty involves your culpable driving, to which I have already referred.   The court does not have before it any agreed factual basis which allows me to find the immediate history prior to your driving on that night, so one relies upon what actually occurred in the short period when you were driving the motor vehicle, a Holden Commodore sedan, belonging to an acquaintance of yours, Ms Cassidy-Fitzpatrick.  She was the owner of the vehicle.  You were driving the vehicle.  She was a passenger in the vehicle and shortly after midnight on 11 December 2012, you were driving the vehicle along Wellington Road, which is a three lane highway in each direction and is clearly signposted with a speed limit of 80 kilometres per hour. 

11      You drove at speed and zigzagged in and out of the traffic.  Ms Cassidy-Fitzpatrick saw at one point that your speedometer read 165 kilometres per hour.  She told you to slow down but you ignored her.  Indeed she noticed that the car felt as though it was going faster, after she had asked you to slow down.  Other drivers in the vicinity also noticed you speeding and they estimated your speed at between 140 and 150 kilometres per hour, passing other vehicles on Wellington Road and causing those vehicles to shake from the speed that your car was doing. 

12      At about 12.20 am, Mr Shugg, who was the victim of the second charge on the indictment, was riding his bicycle along Wellington Road, over the freeway overpass, in the left lane.  There is no bike path or bike lane at that point.  You passed Mr Shugg with what he estimated to be a gap of approximately 2 feet between your vehicle and himself and you were speeding at a speed which he estimated to be more than 120 kilometres per hour. 

13      You continued on at high speed, changing lanes erratically and you came up to a car in the middle lane, swerved around it and apparently Ms Cassidy-Fitzpatrick at that stage yelled out, "Bike, bike, bike", having seen a red taillight in the left-hand lane.  You swerved into the left-hand lane, attempted to swerve back but then hit the motorcycle, which she had seen, with the left, front of the car that you were driving, causing the motorcyclist to come off his motorcycle and hit the windscreen of your car.  That motorcyclist is Mr Haydn Price-Davies.   You have seen, something over 30, I think, of his friends and family here today and have seen the devastation that you have caused in their lives.  I will say a little bit more about that in a minute.

14      Mr Price-Davies was thrown 91.5 metres and was killed.  I think Mr Shugg, according to his victim impact statement, was one of the first, if not the first on the scene and witnessed the injuries that you caused Mr Price-Davies.   He had to go home after that and cope with the impact that your driving had had upon him emotionally that night, thanking whoever he felt that he should thank for his life, because he came very close, he thought, to being the person that was killed in those few moments after you passed him at speed. 

15      Mr Davies was then 54 years of age and obviously a very respected member of the community and an SES volunteer.  He died from multiple injuries and one hopes that he died immediately.   One suspects that the injuries were such that he would have felt little or nothing in the way of pain. 

16      

Your car then spun and veered off the road and hit a tree.  Fortunately

Ms Cassidy-Fitzpatrick suffered minor injuries.  You were trapped in the car and had to be removed by the jaws of life.   There is no doubt that you received serious injuries and you were in hospital for 11 days and you continued to suffer the after effects of those injuries.  Later I will say a little bit more about that, but that is a matter that I have to take into account in assessing appropriate sentence.  You have, by your own hand, albeit also suffered both physically and emotionally from the trauma of that particular collision. 

17      

When you were taken to hospital, a blood sample was taken and it was found that your blood-alcohol level, at the time the blood sample was taken at

2.10 am

was .15 per cent.  That is of course three times above the legal limit.  There was also a quantity of tetrahydrocannabinol found in your bloodstream, although it is accepted by the prosecution that it was not of a level that would have affected your driving.   But clearly a blood/alcohol reading of .15 would have rendered you incapable of properly controlling the vehicle that you were driving. 

18      The crash scene was examined carefully by police and all of the various road markings and so on analysed to determine the likely speed that you were travelling at at the point of impact and shortly prior to the impact.   The evidence reveals that about two seconds prior to impact with Mr Davies' motorcycle, you were travelling at about 208 kilometres per hour.  The signs suggest the car was slowing down, consistent with braking, immediately prior to the impact with the motorcycle, but was travelling at about 164 kilometres per hour at the time of the impact. 

19      At the point that the car you were driving started to skid off the road, after the impact with the motorcycle, your car was travelling at between 142.5 kilometres per hour and 152.8 kilometres per hour.  There were no mechanical faults that could have contributed to the collision, although the tyres on the passenger side did not have sufficient tread depth.  The expert opinion is that fact would not have contributed to the collision because it was not wet at the time of the collision. 

20      You were an unlicensed driver  and had never held a licence to drive or a learner's permit.  You were not interviewed at that time because of your injuries and were not interviewed until 4 April of this year, by police that is.  You admitted that you had never had a licence and apparently did not recall how you came to be driving Ms Cassidy-Fitzpatrick's car.  You did not recall speeding and you had no recollection of the evening.  You had no recollection of the collision with Mr Davies' motorbike. 

21      One can be cynical in certain circumstances about people who claim not to have any memory of those sorts of events.   However it seems entirely consistent with the sort of injuries that you received, that you may well not have any memory at all of that particular night.  It is common for people to have a post-traumatic amnesia, and I would imagine that is what had occurred to you. 

22      You were charged and bailed at that time.   The second series of offences occurred on 4 August of this year, when after you had been dining and drinking with friends at the place where you were living with your girlfriend, you and your male friends determined that you were going to rob a Celebrations liquor store on Police Road, Mulgrave.  One of your co-offenders had a knife.   You knew that.  The unfortunate Mr Svran Srepathi was working behind the counter of those premises when sometime between 7 and 8 pm, you and your colleagues entered.  Mr Srepathi was threatened with a knife to his neck.  He was then punched by one of your other co-offenders a number of times and asked where was the money.   You at that stage were removing bottles of spirits from the shelf.  You then yelled at Mr Srepathi to answer the question, "Where is the money?", before smashing a full bottle of Southern Comfort over Mr Srepathi's head.

23      It is submitted by the prosecution that that was a gratuitous act of violence on your behalf.  I think that it was, although it is bound up, at least to some extent, in the actual robbery.   I will come to cumulation of sentence in due course, but it does seem to me to be an act which goes beyond the mere act of robbery and justifies some degree of cumulation of sentence as between the armed robbery and the intentionally causing injury to Mr Srepathi. 

24      You and your colleagues then stole $408, which was the money on the counter and a number of bottles of liquor, which you took with you and at least some of which ended up at the home of Ms Barfoot, whose window you later broke.  Mr Jones was one of the people at Ms Barfoot's home and you sat with them for a while, that is Mr Jones and Ms Barfoot and others, drinking some of the stolen liquor until, it seems, you reacted to Mr Jones getting up at one stage and thought that he was intending to "start something".  You then attacked him by putting his head in a headlock and punching and kneeing him to the head and swiping at him with a pair of scissors that you had in your hand.

25      Those present were most concerned that you were going to stab Mr Jones and they sought to persuade you to leave the premises.  You apparently broke down crying and apologised to Mr Jones.   You then left and they locked the door behind you.  You then became agitated and threw a ladder through the front window of Ms Barfoot's house and climbed into the window, cutting yourself in the process.   Police were called and you were arrested and you have been in custody ever since that time.  When you were interviewed the following day, after you had sobered up, you claimed that you had no recollection of the events of the previous day.  You suffered some minor injuries as a result of the incident.

26      The maximum penalty for culpable driving is 20 years imprisonment.  For reckless conduct endangering life, ten years imprisonment.  For armed robbery, 25 years imprisonment.  For causing injury intentionally, ten years imprisonment.  For criminal damage, ten years imprisonment.  For the offence of trespass, to which you have pleaded guilty, a maximum term of imprisonment of six moths.  And for unlicensed driving, a maximum term of imprisonment of three months. 

27      As the prosecution have pointed out, culpable driving is a serious motor vehicle offence and I am required to disqualify you from obtaining a licence for a period of time that I think is appropriate.   But it must be not less than 24 months. 

28      The prosecution also tendered and relied upon a number of victim impact statements.  They were provided, as I say, by Mr Shugg, who was the cyclist that you passed within two feet of, shortly before your collision with Mr Davies' motorcycle.  Ms Coral Farmer, the mother-in-law of the deceased, who has clearly been emotionally very seriously affected by these events and did not feel that she wanted her victim impact statement read to the court and I shall not summarise it now.  It is plain that she has suffered significantly emotionally from these events. 

29      The victim impact statements of Julie Davies, Kelsey Davies, and Sharon Davies, respectively sister-in-law, daughter and wife of the deceased, were read by them personally and Mr Waring finally, a very good friend and colleague of the deceased in the SES, also read his own victim impact statement.  You could not have listened to that without yourself being moved by those statements, I see you nodding and I am glad to see you are. 

30      They are not the only victims in this case.  You have seen the devastation on the faces of so many of the others who have come here today and been able to come here today, from amongst the family and friends of the deceased.  These cases are always incredibly tragic, because the consequences spread so far and wide and so deep.  Of course the consequences for you are great too and I suspect that there is good in you to a point where you will be affected by this for the rest of your life too.  And I dare say one can imagine that each of those from amongst his friends and family would hope that you would carry it with you for the rest of your life, and I am sure you will.

31      I think it is probably an appropriate time for me to say that the offence of culpable driving and indeed the offence of endangering Mr Shugg's life, are very serious examples of those offences.  It is one thing to drive at a speed of 208 kilometres per hour in a 80 kilometre limit, but to do so with considerable quantity of alcohol in you blood was a very serious criminal act on your part.  It does fall, it seems to me, into the upper end of offences of culpable driving and indeed I think the offence of endangering life is also a serious offence of its kind, although it pales into insignificance to an extent when compared with the event of culpable driving. 

32      Regrettably, one sees very bad driving and people driving at speed, weaving in and out of traffic on a daily basis.   Most of those instances do not result in people killing other members of the community.   But most of them do not involve acts which involve such high speeds as those that you obtained on that night.   Your conduct would have seemed to anybody that observed them as a serious accident waiting to happen and of course it inevitably did. 

33      It does seem to me that it is aggravated by the fact that you were not a licensed driver.  You should never have been behind the wheel of that vehicle, you knew that.   You had been convicted of unlicensed driving or at least had findings of guilt, unlicensed driving in the past and been warned and warned,  given chance after chance, and offered assistance by the court to set you on the right road.  Your culpability is therefore of a very high order indeed.  That is not to diminish the seriousness of armed robbery.   I note that the armed robbery and the other offences that occurred shortly after were committed whilst you were on bail for the various serious offences that I have just spoken of.

34      Turning to matters personal to you.  Ms Lacy helpfully provided me with a chronology and outline of submissions and you may recall that she began her plea on your behalf by acknowledging the seriousness of your offending conduct and the tragedy which you had caused.   I think very sensibly on her part, she started from that standpoint and acknowledged in terms that she had a difficult job to do in identifying matters which were properly to be taken into account in your favour, in reduction of what might otherwise have been appropriate sentence.   If I may say so, I think she did her job with great skill and dignity in the circumstances and she has, I think, identified all of the matters that really can properly be taken into account in your favour.

35      

She emphasised at the outset that you are still a young man, 22 years of age.  You were 21 at the time that you committed the offence of culpable driving.  And that you had suffered physical and psychological injuries as a result of the collision that your car had on that night.  She provided me with a copy of a psychological report or a report from a forensic psychologist, dated

17 October of this year, which is Exhibit 2, Exhibit 1 being the outline of submissions and chronology, along with a letter from the Alfred Hospital, concerning your father's HIV status and his current condition, which includes not only HIV aids but terminal throat cancer and states that the prognosis for your father is that he only has approximately six months to live.  I note that he is due to be discharged home from hospital today, within the outpatients support of the Eastern Palliative Care.

36      I was also provided with a letter from the Waverley Medical Centre, indicating that you had been a patient of the clinic since you were six years of age and that you provide, at the time the letter was written, it says "Jason lives with his father and provides care for him, manages his medications and cooks and cleans for his father.  He is currently his carer." 

37      The report of Pamela Matthews, the psychologist, is helpful in a number of respects and it conveniently sets out a deal about your background history and the fact that you grew up in Mount Waverley and your parents separated when you were aged eight and you lived with your mother until you were 16, as I understand it, when you then went to live with your father and essentially have been the primary care of your father for the last several years until quite recently when his sister took over the primary care role and she maintains that role now. 

38      It is to your credit, I think, that you do have that humanity about you and you clearly are devoted to your father and have, I think to some extent, sacrificed your own interests to looking after him.   That is a balancing factor which I am obliged, I think, and should take into account in your favour. 

39      You had clearly a somewhat disrupted and difficult childhood and teenage years.  You did not do particularly well at school and have started one or more apprenticeships since and not continued with them.   But nevertheless have generally maintained a fairly regular work record.  At the time of your incarceration, you were working as an apprentice chef and apparently doing well and enjoying that. 

40      You have been in a relationship with a young lady for some time.   I think it is plain that for one reason or another, and I suspect that shame and remorse would have played their part, you fell apart somewhat after the culpable driving and the death of Mr Davies. 

41      

You were suffering from the physical and emotional effects of the injuries themselves.   But according to the evidence of Ms Angel Lillee, it was after you had been interviewed by the police and questions were put to you which clearly identified the enormity of the criminal conduct in which you engaged, leading up to the death of Mr Davies, that you withdrew into yourself and gravitated back towards substance abuse, which according to

Ms Matthews, really began at age 13 with cannabis and then went on to alcohol and it seems you tried just about every other drug and that during the period, even up to your arrest, you were using, amongst other things, methamphetamine, otherwise known as "ice", at least intermittently and you had returned to your binge drinking and other substance abuse habits. 

42      Ms Lillee, who gave evidence on your behalf, did enable one to have at least some insight into your feelings after the accident and although Ms Ruddle for the prosecution took some issue with the proposition that you had expressed genuine remorse or that I should accept the evidence of Ms Lillee as supporting the submission that you were genuinely remorseful, it seemed to me that the nett effect of her evidence did support that conclusion.   I do accept that you have remorse for what you have done and you are shamed of your conduct.

43      It may well be that it was because of the downward spiral and because of the fact that you went back to your substance abuse habits that you committed the second lot of offences or at least got yourself into company which led you into committing that second lot of offences.  I said "led", I do not mean that you were anything other than an enthusiastic participant, but nevertheless, it had drawn you  back to a level where conduct of that kind was acceptable to you and of course it is serious when you commit offences whilst on bail.  It is particularly serious when you commit offences of armed robbery, which involve, as the prosecution say, "soft targets" and you indulged yourself in some gratuitous violence by hitting the unfortunate victim over the head with a full bottle, smashing it. 

44      I think that it was unfortunate that you did not take the opportunities that were encouraged at least, if not offered by Ms Lillee in the form of Alcoholics Anonymous or Narcotics Anonymous.  It may be that you had reached such a low that you were not in the right frame of mind to make the best of those rehabilitative opportunities.  You got to a point where you used the word "monster" in describing yourself, according to Ms Lillee and I accept her evidence.  And I suspect that you got to a point where you had a pretty strong self-loathing at that particular time. 

45      She says that you are generally a happy and polite individual, a perfect gentleman.  It is hard to believe, I have to say when one looks at the conduct that is involved in this offending conduct.   But again I accept Ms Lillee's evidence that you do have those qualities about you. 

46      Ms Lacy, I think, really put the submission this way, that I should take into account your difficult background.  It does not, I think, significantly reduce your moral culpability, but what I think it does is that it enables one to understand how it is that growing up in the way that you did, you did not have the same support structures, role models, and guidance that people with a more fortunate upbringing have, to give them a moral compass.   I think I understand Ms Lacy's submission to be essentially that and that it is in that sense that it is relevant to assess the moral culpability. 

47      If somebody does not have a moral compass then the starting point for them is different from that of a person who does.   Where it is no fault of their own, in the sense of not having those structures in childhood and early adolescence, then it is something that is proper to be taken into account in your favour when assessing sentence.  There comes a time when I think that is not so, but for somebody who is 22 years of age, I think it is a matter that is relevant and I do take it into account. 

48       It was also submitted on your behalf that I should take into account the physical injuries from which you still suffer and indeed the emotional psychological injury, which you have suffered as a result of the accident leading to Mr Davies' death.  That in a sense is a self-inflicted punishment and is to be taken into account relevantly.  It also, I think, needs to be taken into account, in that it will make during your time in prison harder.  You will not have perhaps the same degree of pain control as you might have had if you had been able to access medical care of your choice, outside the prison system.  That is not to denigrate the care that is provided by the prison system but I think that it is a sound submission that that is something that I should take into account in assessing the appropriate sentence in your favour and it is to that extent that some of the Verdins principles are engaged.

49      Ms Matthews expressed the opinion that you suffered from substance use disorder and that that was something that had been present for some time, prior to your offending conduct.  I not suggesting that that reduces your moral culpability.   It does not seem to me that this is a case where I should regard that as reducing your moral culpability for your offending.  You also have since the culpable driving conduct, developed post-traumatic stress disorder and you also meet diagnostic criteria for major depressive disorder.   I accept that those are two mental impairments which themselves will make your period of incarceration more difficult to bear than had you been a person without those mental impairments.  The law requires me, I think, to take those into account in that particular way.

50      It is true that you have pleaded guilty at the earliest reasonable opportunity and that has saved the state the cost of a trial and the witnesses the inconvenience and in some cases the trauma of having to give evidence in a trial.   You deserve full credit for what it can be referred to as the utilitarian benefits of that.  It is also, I think, consistent with your counsel's submission that I should give you credit for remorse and shame for your conduct.  It is consistent with the presence of remorse that you have pleaded guilty and accepted the prosecution case against you. 

51      You are a youthful offender and ordinarily the courts are required to give particular consideration to rehabilitation.   Generally dealing with young offenders, youthful offenders, it is very much in the interests of the community that rehabilitation is given significance.   Because the community is better protected if it can rehabilitate young offenders and youthful offenders and to lead them into a productive life, rather than a life of committing offences. 

52      But as both counsel acknowledged, this offending conduct is particularly serious and my attention was drawn to, amongst other cases, the case of Director of Public Prosecutions v Hill, 2012 VSCA 144 and in particular to paragraphs 50 and 51 of the judgment in that case, which acknowledges that rehabilitation of the young offender is a very important consideration in sentencing.  But that must give way to other sentencing considerations in cases where the offending conduct is such that general deterrence becomes of particular importance.  Paragraph 51 reads, "Unfortunately the offence of culpable driving is one which is frequently committed by young drivers.  If general deterrence is to be meaningful, it must be directed towards this class of offenders and cannot be regarded as irrelevant because of their youth."

53      That is not to say that your youth is irrelevant, it is not and I do not disregard it.  It is, I think relevant in particular to the submission that I should not pass a sentence that is crushing and should impose a sentence which leaves you room for hope and some prospects of a meaningful adult life to adopt the submission of your counsel.

54      Your counsel acknowledged that I am required to punish you appropriately, to express the denunciation of this court of offending conduct of this kind, to pay proper regard to individual deterrence and I think that given your past record, it is necessary to give that some weight.   Although one hopes that by the time you have completed the sentence that I am bound to impose upon you, that the penny will have dropped and that you will have been able to avail yourself of rehabilitative programs that are available to you in the prison system and that you will come out a person who is capable of and willing to lead an honest and decent life.

55      Most particularly I have to give proper effect to general deterrence and that is deterring others from conduct of this kind.  As the courts have noted, offences of this kind are so often committed by young offenders and that is a very significant sentencing consideration.  But I do have to and I hope that I will be able to balance all that appropriately against the need to facilitate your rehabilitation to the extent that I reasonably can and to impose a sentence that does give you that hope that your counsel has spoken of. 

56      

The prosecution submitted that the culpable driving was at the very high order, in terms of seriousness and submitted that I should impose a sentence for the reckless conduct endangering life, which created a very real risk to

Mr Shugg, which involved cumulation of at least a year of the sentence for that offence over the sentence for the culpable driving.  It seemed to me that the prosecution was partly right in the sense that it does require, I think, a separate sentence and some degree of cumulation, but the driving at that point was so very close to the point of impact with Mr Davies, that I have to be careful to avoid any notion of double punishment here and I hope the sentence and the order of cumulation that I intend to impose achieves that object. 

57      As the prosecution also emphasised, the armed robbery was committed and the other offences were committed on bail, on a soft target.  Soft targets are very vulnerable.  Those people who man bottle shops, very often late into the evening, are amongst the soft targets who are often picked by persons such as yourself and are very vulnerable and they deserve the protection of the courts by imposing sentences that are meaningful in terms of deterring others from committing offences of that kind also, and also that you had engaged in gratuitous violence that was unnecessary to complete the offence of the robbery and went beyond the ambit of the armed robbery itself.  And they submitted that those facts called for significant sentence and particularly having regard to your prior court appearances involving offences of robbery and I think armed robbery also in the past.  They pointed out that you had had several opportunities, given to you by the courts and had essentially  spurned those opportunities. 

58      I note of course that the offences that occurred in August of this year, committed as they were whilst you were on bail for the earlier offences, require me prima facie to impose sentences which would run cumulatively upon the sentences for the offence of culpable driving and conduct endangering life, that is unless I order otherwise.  I think it is appropriate that there be a degree of cumulation, but it is also necessary for me to pay attention to and give proper weight to the principle known as the "totality principle", which requires me to look at the overall sentence that such a degree of cumulation would involve and then to determine whether the sentence overall was an appropriate one for the total criminality that is involved in your conduct.   I think that properly applying that principle requires me to make order for partial cumulation of sentence only and not total cumulation of sentence. 

59      The sentence which I am about to pass will be a substantial sentence, but it will be one which I hope pays proper regard to all of the matter that I have referred to.  I will now proceed to pass sentence upon you, so if you would please stand. 

60      Jason John Welsh, dealing first with the first indictment, on Charge 1 of culpable driving, I convict you and sentence you to imprisonment for a period of eight years.  On Charge 2 or reckless conduct endangering life - I am sorry, I should have said that also in respect of that offence, I am required to impose a period of disqualification from holding a licence to drive a motor vehicle and I impose that period of disqualification for a period of eight and a half years.  For the offence of reckless conduct endangering life on the first indictment, I convict you and sentence you to imprisonment for a period of two years.  And for the related summary offence of unlicensed driving, I sentence you to imprisonment for a period of two months.  I convict you on both of those offences.

61      On the second indictment for the offence of armed robbery, the subject of Charge 1, I convict you and sentence you to imprisonment for a period of four years.  On Charge 2 of intentionally causing injury, I convict you and sentence you to a imprisonment for a period of 12 months.  On Charge 3 of intentionally causing injury I convict you and sentence you to imprisonment for a period of nine months.  On Charge 4 of criminal damage, I convict you and sentence you to imprisonment for two months.  And for the related summary offence of trespass, I convict you and sentence you to imprisonment for a period of one month. 

62      The sentence of eight years imprisonment for the offence of culpable driving, Charge 1 on the first indictment, is the base sentence and I order that six months of the sentence on Charge 2 of the first indictment, two years of the sentence on Charge 1 of the second indictment, two months of the sentence on Charge 2 of the second indictment, and one month of the sentence on Charge 3 of the second indictment, be served cumulatively with one another and with the sentence of eight years that I have imposed for the culpable driving offence.  That, according to my calculations, makes a total effective sentence of ten years and nine months, and I order that you serve a period of seven years and six months before you become eligible for parole. 

63      But for your pleas of guilty to these offences, I would have sentenced you to a total effective sentence of 14 years imprisonment, with a non-parole period of nine years and six months. 

64      I declare 79 days of pre-sentence detention, not including today, as time served on the sentences that I have just imposed and I order that that 79 days be deducted administratively from the time that you will actually have to serve and that the fact be noted in the records of the court. 

65      I also make the order for compensation, in accordance with the draft that I have been provided with. 

66      Are there any other orders that I need make, counsel? 

67      MS RUDDLE:  No, Your Honour, nothing further.

68      HIS HONOUR:  Yes, all right, thank you.  All right, thank you, you may take him down. 

69 MS RUDDLE: Sorry, you may need to make a formal order that the criminal damage and the trespass be served concurrently, to get around s.16(3)(c) of the Sentencing Act, Your Honour, because unless I'm otherwise ordered - - -

70      HIS HONOUR:  All right, yes, well I will make that order.

71      MS RUDDLE:  I presume that was your intention that they - - -

72      HIS HONOUR:  It certainly was.  I thought that flowed automatically, but if you're concerned that it might not, then I - - -

73      MS RUDDLE:  No, because it's unless the court otherwise orders, they are served cumulatively.

74      HIS HONOUR:  That is right.  That is true, isn't it?  Yes, so I do so order. 

75      MS RUDDLE:  Thank you, Your Honour.

76      HIS HONOUR:  They are otherwise to be served cumulatively, yes.  Yes. 

77      MS RUDDLE:  Sorry, otherwise to be served - - -

78      HIS HONOUR:  They are to be served cumulatively - sorry.

79      MS RUDDLE:  Concurrently.

80      HIS HONOUR:  Concurrently.

81      MS RUDDLE:  Thank you.

82      HIS HONOUR:  I do apologise.  Thank you very much for that.  That could easily have caused a technical error. 

83      MS RUDDLE:  May it please the court. 

84      HIS HONOUR:  Thank you.  And I thank both counsel for help in a difficult and I think rather harrowing case.  I also acknowledge the dignity with which members of the family of the deceased and their close friends and family members have handled what for all of you must have been a very harrowing experience.   

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