R v Jojkic, Dragan - [2010] NSWDC 155

No judgment structure available for this case.

CITATION: R v Jojkic, Dragan [2010] NSWDC 155
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20/11/2009 and 19/02/2010

JUDGMENT DATE:
26 March 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: MANSLAUGHTER:
Sentence to a non-parole period of 4 years and 9 months. Balance of term of 3 years and 6 months.
Disqualified for 8 years to date from the 26th March 2010.
AGGRAVATED DANGEROUS DRIVING:
Sentence to a non-parole period of 3 years. Balance of term of 1 year and 6 months.
Disqualified for 8 years to date from the 26th March 2010.
Sentences partly cumulative to each other. Overall sentence 9years 6 months with non parole period of 6 years.

CATCHWORDS: Criminal Law - Sentencing - Manslaughter (gross criminal negligence) - Aggravated Driving occasioning grievous bodily harm - High performance vehicle - suspended driver - impact speed 120kph - speed limit 60 kph - vehicle negotiating curve loses tyre traction as result of excessive speed - main road - vehicle crosses median strip into path of on-coming vehicle - impact caused death to driver, GBH to passenger of on-coming vehicle - blood/alcohol reading 0.117 - prohibited drugs also present in blood - 17 or so persons put at actual risk - subjective circumstances reviewed - offender seriously injured in collision - custodial health care of offender criticised - prior speeding and PCA offending - 25% discount for plea and remorse - limit of contents of victim impact statement - responsibility of prosecution to tender v.i.s. - implies responsibility of prosecution to assist victims prepare v.i.s. in admissible form

LEGISLATION CITED: Criminal Procedure Act 1986
Road Transport (Vehicle Registration) Act 2007
Road Transport (Driver Licensing) Act 1998
Crimes Act 1900
Crimes (Sentencing Procedure) Regulations 2005

CASES CITED: Gladue v The Queen [1999] 1SCR 688 [80]
R v Cuthbert (1967) 2 NSWR 329
R v Rushby [1977] NSWLR 597
R v Hayes [1984] 1 NSWLR 740
Salvatore Previtera (1997) 94 A.Crim.R.76
R v Sellers (1997) 92 A. Crim. R 381 observed
R v Whyte (2002) 55 NSWLR 252

PARTIES: Regina
Dragan Jojkic

FILE NUMBER(S): 2009/00144605

COUNSEL: Crown: S Dowling
Defence: G Bellew SC

JUDGMENT

1. Disaster, destruction and death can be cruelly random. Destruction through serious injury will be grim enough, but unlike the other two, death has a terrible finality about it. All are difficult to accept at any time but when fault, and in particular when criminal fault, has played a causative part, accepting the calamitous consequences of both death and truly serious injury can cause grief, pain, longing and emptiness to compete with bitterness, resentment and anger. All these reactions are natural and understandable among the mourners and the downcast as they approach the court’s doors looking for justice from the law.

2. In our system of justice, or in our system of law, personal justice is administered by the civil courts. The criminal court sits with a different perspective. It is not the family, or partner, but the wider community of New South Wales who prosecutes in this Court through the Crown. In our system of law, the other party, the offender, has equal right of voice and appearance, even though there be some compulsion in his appearance before the court.

3. The outcome of these proceedings must be one that is fair to both participants, that is, both participants or litigants before the court, even though it may not address the grief, pain, longing and emptiness and, if there be any, the bitterness, resentment and anger arising from the death and injury and criminal conduct I am dealing with today.

4. Death or injury that serves no aim or purpose, that is inconsistent with any pattern or method, that pays no regard to the particular intrinsic value of the selected deceased, which has an explanation so totally disproportionate to its consequence, makes final closure seem remote and perhaps unachievable. The temptation to a court such as mine is to seek to advance that closure or at very least not to aggravate the weeping wounds. Yet it is not to the family of the deceased or the injured partner that these remarks are addressed, although I am well aware they are being heard and will be felt by them in one way or another. But these remarks are being addressed to both parties to this litigation and in the case of the Crown that includes the wider community it represents. These remarks are an explanation of my reasons, based in law and fact, for setting the sentence I am setting. These remarks were also written for an appeal court so that if errors be identified they may also be rectified.

5. Dragan Jojkic pleaded guilty before the Local Court to causing the death of Benjamin Rudzyn in circumstances amounting to manslaughter on 20 December 2008. He also pleaded guilty that at the same time and place, as a consequence of his aggravated dangerous driving his vehicle, was involved in an impact occasioning grievous bodily harm to Olivia Stennett.

6. There are four summary charges before the Local Court that I have been requested by the Crown to finalise pursuant to s 166 of the Criminal Procedure Act 1986. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this Court committed by this offender harming these victims in this community; Gladue v The Queen [1999] 1SCR 688 [80].

7. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to the offender, known as subjective matters. The starting point for these assessments requires me to make findings of fact from the evidence before the Court relating to the offence and the offender. My fact finding task has been circumscribed to some extent, in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the Court a judge is not a party to the agreed set of facts. The tender of agreed facts does not relieve (in my case) him from the fact finding responsibility, it simply limits the material from which facts may be found. To the extent, if it be the case, that the facts as agreed do not reflect actual events that occurred, it must be remembered the Court can only find facts from the evidence placed before it.

8. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, rehabilitation prospects, whether special circumstances are to be found, the totality of the criminality and, finally, of course, the ultimate length of term of imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined; see R v Cuthbert (1967) 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

The Agreed Facts

9. Eleven days before the collision with which I am dealing, Dragan Jojkic the offender, was stopped driving his black XR8 Ford Falcon utility, AW86YB, by police from the St George Local Area Command for the purpose of a random breath test. It was observed that the car had green P plates on it. The offender was asked to produce his licence for checking by police. The breath test was negative. However, the police check revealed that the offender’s licence was suspended due to a loss of demerit points for speeding offences that occurred on 19 March and 12 September 2008. The suspension had started on 20 November 2008 for a period of six months. When informed of the suspension by police the offender said, “I did not get anything from the RTA about this.” The police officer said, “Well, I am telling you now that your driver’s licence is suspended and that you cannot drive your car.”

10. The offender contacted a friend to come and collect him and drive the car away. Before the police officer left the offender, he, the police officer, reiterated to the offender that he was not able to drive the car and if he did he may be arrested and charged.

11. Eleven days later on Saturday 20 December 2008 at about quarter to seven, the offender drove his black XR8 Ford Falcon utility in a northerly direction along Linden Street, Sutherland. It is an eight cylinder, high performance vehicle. Linden Street joins with River Road and the turn off to Linden Street is known as the Bonnet Bay turnoff. River Road at Sutherland runs in a generally north/south direction. There are two lanes northbound and two lanes southbound with a left turn lane southbound for vehicles turning at Bonnet Bay. The road was dry bitumen and appeared in good condition. There were no visible contaminants on the road. The signposted speed limit for that particular section of road was sixty kilometres per hour. It was still light at 6.45pm. My understanding is that at that section of the road or shortly before it the speed limit had been eighty kilometres per hour.

12. River Road is one of Sydney’s busiest roads linking the southern suburbs with the western suburbs of Sydney. The offender stopped his vehicle at a red light at the intersection of Leonay Street and Linden Street. When the light changed to green witnesses observed the offender’s vehicle accelerate harshly away from the intersection in the right-hand lane, i.e., the lane closest to the median strip. Having accelerated in that manner the offender’s vehicle veered into the left-hand, i.e., kerbside, lane before returning to the right-hand lane and travelling again harshly and at a speed along Linden Street before coming to a left-hand bend. Witnesses observed the offender’s vehicle fishtail as he attempted to negotiate the bend before becoming momentarily airborne. The offender’s vehicle was observed to cross the median strip at high speed onto the wrong side of the road and collide head on with a Ford Focus motor vehicle which was travelling in the opposite direction and driven by Benjamin Rudzyn, hereinafter the deceased.

13. The deceased’s girlfriend, Olivia Stennett, was travelling as a passenger in that vehicle at the time. Witnesses described hearing engine noise consistent with harsh acceleration and observed an “explosion” on impact, with the offender’s vehicle lifting momentarily and smoke and dust immediately emanating from the impact. The Ford Focus vehicle lifted up in the air and rotated ninety degrees before being forced back twenty metres.

14. Upon arrival at the scene police observed the speedometer of the offender’s vehicle locked at 120 km/hr. This speed is consistent with the observations of a number of witnesses. The speedometer of the Ford Focus driven by the deceased was locked at approximately seventy-eight km/hr, which correlates with the eighty kilometre speed zone on which he had just driven, which suggests I may have been mistaken about where the sixty kilometre area started.

15. Crash investigation police attended the scene and performed some tests to determine the cause of the collision and determine the speed of the offender’s vehicle. Below follows an extract from the expert statement of Senior Constable Grant Holman, the informant. He is associated with the crash investigation unit.

“ (i) Whilst at the collision scene and with the road sealed off to traffic, I conducted tests to establish the drag factor. After conducting a risk assessment of the roadway and confirming the weather and road conditions were similar to the time of impact, I set the Autostop Mini Declerometer.

(ii) Evidence suggested that the XR8 has exceeded the maximum speed and friction between the road and tyres of the XR8 for the corner that he came around at high speed being the Linden Street, (Bonnet Bay turnoff). The critical curve speed is ‘the speed above which a vehicle slides out of its lane of travel in going around a curve.’

(iii) The minimum required for a vehicle travelling around the curve at the Linden Street, (Bonnet Bay turnoff) in a normal manner to lose traction in lanes two and slide out of its lane is approximately 121 km/hr. It must be noted that I have not taken into consideration the super elevation of the roadway. If I was to include this, the minimum speed of the Ford XR8 would be higher, so I am being conservative and this favours the offender.

iv)

16. As a result of the collision, the deceased died instantaneously. Ms Stennett was flown by an emergency vehicle services helicopter to the St George Hospital. She received serious injuries, including a fractured right shaft of femur, a fractured right patella, metatarsal fractures in the left foot and spinal fracture at the level of L5. She also suffered a perforation of the ileus necessitating a laparotomy and a small bowel resection. Ms Stennett underwent internal fixation of the right femur at which time the right patella was removed as it was considered beyond repair. The wound on the left foot was washed, cleansed and dressed and then a backslab splint was applied. A small wound near her right eye required sutures and these were placed in the operation theatre.

17. Ms Stennett was in intensive care for four days and then transferred to the high dependency unit. She required bed rest as a result of the vertebral fracture and was subsequently fitted with a brace. She was transferred to the rehabilitation team within the hospital on 3 February 2009 and on 2 March 2009 was transferred to Lady Davidson Hospital for further rehabilitation. She was discharged from the rehabilitation facility on 7 April 2009. She then attended an outpatient rehabilitation twice a week from 20 April 2009 to 22 June 2009, then once a week from 29 June 2009 to 17 August 2009. She still attends physiotherapy once a week.

18. On 23 January 2009 the offender provided a signed statement prepared by his solicitors to the police. In summary it stated:

19. The offender was released from hospital on 10 March 2009 and was arrested and charged by police on the same day. He has been in custody, bail refused since that day.

20. As result of the collision the offender sustained a perforation of the small bowel requiring laparotomy surgery, a fracture of the left tibia requiring open reduction and internal fixation, a fracture of the left radius requiring open reduction and internal fixation, a fracture of the body of the S2 producing canal, stenosis and nerve root compression, a bi lateral fracture of the mandibula condyle requiring the insertion of mandibula wires, a pulmonary contusion.

21. The offender pleaded guilty on 3 September 2009 in the Local Court. It was a plea entered at the first available opportunity.

Charges on Section 166 Certificate to be dealt with as “Related Matters”

22. The offender was subjected to a compulsory blood test, certificate number 600375, whilst at St George Hospital. The result of that blood test returned a positive reading of 0.117 grams of alcohol per 100 millilitres of blood. That is a mid range PCA reading within the 0.08 to 0.15 range. The blood was also tested for the presence of drugs. A positive result came back for illicit drugs, being methylamphetamine and delta-9-THC-acid (cannabis). That constitutes the drive motor vehicle with proscribed illicit drug charge. Enquiries in relation to the offender’s vehicle showed it was unregistered. The registration having expired six days before the accident on 14 December 2008. The offender’s driving of the vehicle in those circumstances constituted an offence pursuant to s 18(1) of the Road Transport (Vehicle Registration) Act 2007. Further, as previously noted, the offender was driving a vehicle whilst his licence was suspended, thereby committing an offence under s 25A Road Transport (Driver Licensing) Act1998.

23. There were at least fifteen witnesses in other motor vehicles who were in the immediate vicinity of the offender in the moments leading up to or at the time of his collision. As a result of his consumption of alcohol, Jojkic's driving ability would have been impaired. Skills impeded would have included cognitive, motor and visual functions, such as reaction skills, motor coordination, perception, judgment and decision making. Two aspects of visual skills become impoverished including the ability of the eyes to adapt to the changing light conditions and the contraction of peripheral vision. Whether these visual compromises played any part in the collision would be open to debate given the time of the collision and the forward focus needed for the particular manner of driving being engaged in. But other impairments, reaction time, perception, driving, judgment and decision making, all needed for that manner of driving, were impaired.

24. It comes as no surprise that racing drivers who choose to travel at these speeds and in that manner modify their cars, wear special equipment, erect safety barriers, and all travel in the same direction to reduce the risk of mayhem and injury and make sure that only those who want to compete and are qualified so to do, drive on the race track. Although Jojkic was driving with illicit drugs in his bloodstream, the expert evidence appears to be that it played no part in the diminution of his driving ability.

Objective Criminality

25. From the facts, as he finds them to be, a sentencing judge is required to assess the objective criminality of the offences before the Court as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in this case with criminality of offences of a similar kind. It is in this way that the objective seriousness of the offence of the criminality of these offences can be evaluated. Objective criminality has an important, indeed the most important, impact upon the overall sentencing outcome.

26. So far as these two major offences are concerned, it should be remembered that the roads of the State are, for the most part, owned by one of the three levels of government, that is, the Federal Government, the State Government or the Municipal Government. There is no inherent right to drive on the roads. They are not the private property of any individual of the State or of any individual driver. Only those accorded the privilege of a licence are entitled to drive on the roads. Licences are only issued to those who, by submitting themselves to tests on their driving skills, and their knowledge of the road rules, agree to be bound by the rules of the road so that the safety of other users of the road is ensured. This is an offence against public safety. Passengers in motor vehicles are properly described as other users of the road. In addition to the road rules, the criminal law has also been harnessed to punish those who, as a consequence of their dangerous driving, cause a vehicle collision which has as its result death and really serious injury caused to another person. The criminality of these offences is to be evaluated against that background. Many offenders have difficulty understanding that these offences are criminal offences as distinct from driving offences because they did not intend any harm to the victim.

27. From the victim’s point of view, of course, he or she did nothing towards this offender that caused this injury or death to them. It is true that the criminal law does have a role to play where offenders with malice do violence to others, but it is also true that the criminal law has a role to play where drivers, through their unlawful conduct, do violence and death to others, and that is this case.

28. I will deal firstly with the manslaughter case. The Crown relies on a concept of gross criminal negligence of sufficient culpability as to lift this offence into a category that constitutes the felonious slaying. Manslaughter by criminal negligence involves the commission of a criminal act and death, where the act of the offender was conscious and voluntary without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised and which involves such a high risk of death or grievous bodily harm that would follow, that doing the act merits criminal punishment.

29. The driving that I am concerned with here qualifies as driving involving grave risk of death or truly serious injury to others, and in fact resulted in the death of one and the serious injury of another user of the road. Properly analysed in this case the overall conduct of the offender amounts to a recklessness well qualifying as gross criminal negligence. He drove at a speed I am satisfied was at least 121 kilometres per hour in a sixty kilometres per hour zone. That is, a speed sixty kilometres per hour in excess of the posted speed limit.

30. He did that driving in circumstances where his driving abilities had been compromised by the mid range concentration of alcohol he had consumed. His manner of driving included numerous risk-taking manoeuvres, including the final fatal one of seeking to negotiate a curve at a speed where maintaining tyre traction was risked. Other risks included overtaking on the left hand side a little beforehand, taking off his shirt while driving at speed earlier, fishtailing on a public road with other vehicles around him.

31. Not only was he driving unlawfully on at least four bases; speed, alcohol, drugs and manner, but it was unlawful for him to be driving at all (suspended licence). To his knowledge it was also unlawful to drive the vehicle he was in (unregistered vehicle). His driving whilst his licence was suspended, together with driving an unregistered vehicle constituted a contumelious disregard of the motor traffic laws.

32. That contumelious disregard was also reflected in the other driving decisions he made to which I have earlier referred. I note, as is almost invariable in these cases, this is not a planned offence, neither was there any malice associated with his driving, nor is there any association with other criminals in its commission.

33. The moral culpability of Dragan Jojkic is high. His driving has caused the death of Benjamin Rudzyn and the truly serious injury of Olivia Stennett. During the course of his driving, a substantial number of other persons were put at risk, fifteen of whom have been identified, but there were, no doubt, more. His speed and manner of driving involved unacceptable risk-taking. They were done in breach of the law and at a time when his driving was compromised by alcohol, all of which aggravates the level of moral culpability. In respect of the manslaughter charge, a substantial sentence of full-time incarceration is called for.

The Aggravated Driving Offence

34. The circumstances of aggravation relied on by the Crown in this charge appear to be limited, at least by the information laid in the Local Court to driving at a speed that exceeded the signed speed limit by more than forty-five kilometres per hour. There is a second circumstance of aggravation, namely, the mid range PCA reading available in s 52A(4); see also s 52A(7) Crimes Act1900.

35. At common law the offence is aggravated by his manner of driving. To the manner of driving I referred to when dealing with the manslaughter case. The speedometer reading, froze at a point of impact, was 120 kph. The point at which tyre traction would be lost would have been 121 kph. The expert speculated the speed could have been higher but such speculation could not be proved beyond a reasonable doubt as a circumstance of aggravation. The speed, as I said, was double the posted speed of sixty kilometres per hour.

36. I have also referred to the second circumstance of aggravation contained in s 52A(7) of the Crimes Act 1900, namely, driving with a mid range level of 0.117 grams alcohol to 100 millilitres of blood. While his driving skills at this level would have been affected, he was not so impaired to qualify as substantially affected, which would have been another point of aggravation. Thus, while two features of aggravation have been triggered, they are not, in my view, severe examples of each trigger of aggravation, and the PCA may not reach a heightened level of aggravation in this case.

37. When considering this offence, I repeat what I earlier said about unlawful conduct and drive whilst suspended in an unregistered vehicle. I also repeat my observations as to the number of people put at risk of injury. It is worth noting, both in respect of this offence and the manslaughter offence, that the accused himself was not only put at risk of injury but was severely injured.

38. It is sufficient at this stage that I confine my illustration of this point to note that he was released from hospital on 10 March, almost three months after the collision. Substantial resources of the hospital system were allocated to his treatment and, I daresay, his physical rehabilitation. Hence, the State and the community do care about what happened to him.

39. The basis for assessing moral culpability for the offence is much the same as required for assessing it in relation to manslaughter. Contumelious disregard for his disentitlement to drive and to drive that particular high powered vehicle, the speed at which he drove, the manner of his driving, and doing that speed and manner in disregard of public safety and the real potential of risk of injury bordering on the extreme.

Victim Impact Statements

40. What I am about to say should not be taken as any criticism of the victims, each of whom wrote an articulate and moving statement and with courage read them in court. I am also very conscious that this sentence hearing is traumatic enough without appearing to be critical of the role of victims in these proceedings. While a victim impact statement may be read by the victim, it is the sole responsibility of the Crown to tender statements in the proceedings; see Crimes (Sentencing Procedure) Regulations 2005 Reg. 11(1).

41. I take that responsibility to require the Crown to assist victims in preparing their statements so they comply with the definition of a victim impact statement. In this case some parts of the statements tendered did not comply with the requirement that the family victims confine their statements to the impact the primary victim’s death had on them. That difficulty could have been avoided had there been some sensitive oversighting or guidance from the Crown. In particular, it appears that each statement, in parts, sought to give a detailed insight into the life achievements, personality and potential of Benjamin Rudzyn. From the victim’s point of view it may be cruel and difficult to comprehend, but in the criminal law, when neither death nor GBH was intended by an offender, there is usually an equality of victims, even in death.

42. To the criminal law, all human life is valuable. That value, as we have heard in this hearing, is reflected in many aspects of the living life. One of the many sources of values, as instanced in this case, lies in the unbounded potential open to youth. Another lies in the exciting beauty of youth, qualities some may have in abundance, others possess more modestly. But any untimely death, in its own unique way, proves the value of human life, albeit some more emphatically than others.

43. Guidance or assistance in cases such as these is vital. To write of the impact of losing one - who is recognised by his family as a rare genius, who has lived but a quarter of his life, who was entering the most productive years of his life, who had such mountains to climb, who promised a journey so exciting and rich in potential accomplishments, and when suddenness of death was faster than the unchoreographed entanglement of the vehicles - needed a sensitive hand to assist them in their grief to tabulate the impact as eloquently as each has sought to do, but only what the law permitted.

44. Where the family victims are permitted by the Crown, as occurred in parts of these victim impact statements, to focus on the life, personality and potential of the lost one, there is a danger that an expectation may be raised among them that the court will formulate a sentence based on these qualities, that is, set a sentence giving undue weight to the remarkable qualities of the deceased as perceived by the family and the natural desires of the family to influence, usually upwards, the sentencing outcome.

45. Victim impact statements are important for four purposes, to which I will shortly come, influencing sentencing outcomes is not one of them; see Salvatore Previtera (1997) 94 A.Crim.R.76. When my remarks are published I will annexe to them the detailed explanation to be found from Justice David Hunt, then Chief Judge at Common Law, on why it is that in the case of death, the victim impact statement provided by family victims, it could never be appropriate to take such a statement into account when sentencing an offender.

46. I have received a victim impact statement from Olivia Stennett, a primary victim as a result of injury, and a family victim as a result of the death of her partner, Benjamin Rudzyn. I have also received victim impact statements as family victims from Joe Rudzyn father, Sue Rudzyn mother and Kate Rudzyn sister. The material contained in these victim impact statements is not sworn evidence and has not been subject to cross-examination. To the extent that opinions may be expressed in the statements I recognise they are not the opinions of qualified experts.

47. A victim impact statement, coming as it does from the primary victim, may, if I accept it as reliable, provide unsworn evidence as to facts of the offences and their effect upon them. The function of all victim impact statements, such as the ones I have received, is firstly to give victims an opportunity of being heard in sentencing proceedings by publicly identifying the impact of the trauma visited upon them by the actions of an offender. Secondly, it enables the sentencing proceedings to assist, in some way hopefully, victims as they move towards some closure of grief, resentment and brooding arising from that criminal conduct of an offender. Thirdly, a victim impact statement contributes to an offender at least hearing first hand and perhaps gaining some insight into the impact his offending conduct had on those who were traumatised. Finally, it reminds judges such as myself of the terrible harm that can come as a result of criminal offending to the ordinary men and women who are its victims.

48. I propose to take some time to read portions of these victim impact statements onto the record. I start with Olivia Stennett’s victim impact statement. I am not reading the whole of the statement which means that I am selective. My editing necessarily omits portions I regard as not complying but there will also be other admissible portions omitted. I can only hope such omissions as I have made does not suggest any lack of sympathy by the Court to the victims.

“It has been almost a year since my life was turned upside down yet I am still so far away from knowing just how much it has impacted on me.

I have found it incredibly hard to find people that are even in the smallest way able to comfort me or to try and understand what I have been through, what I am going through right now and what I will undoubtedly have to go through in future. I feel so alone in all of this. Compared with this time last year my life is unrecognisable. I am not in my second year of Bachelor of Nursing as I should be. I no longer work the job I love that pays me well. I no longer work at all. I have not been able to find something I can do with my limited function that I might be able to deal with. I cannot go for my evening run. I cannot even run. I am not physically able to run anymore.

I miss my old life, I miss playing basketball every week, I miss having direction in life and knowing where I stood in the world. I miss the money I was earning, the nights out in the city with friends. I miss having the ease and freedom I will be able to do practically anything without having to stop and assess whether I would be in pain doing it or whether I could afford it financially. I studied classical ballet for four years. I was a natural, I loved it, I can no longer dance in that fashion. I no longer have the flexibility that I had naturally. I am no longer the girl who can do the splits anyway you fancy. I hate everything. Everything I used to define who I am as a person is no longer a part of my life.

Hospital was a terrible time. My first month was spent lying down. I was not allowed to have my bed adjusted any higher than a 45 degree angle so as not to further damage the fracture in my spine. That was such a boring month.

After six weeks and being on four different wards in the hospital I began the process of learning how to walk again. I had a back brace, my left foot was in a cam boot and my right leg was in a brace that prevented me from bending my knee. I truly felt as though I was old before I got to be young.

I have always been a fiercely independent person. Having to allow someone to bathe me, help me dress, eat or go to the bathroom was so foreign to me.

As a result of an incorrect placement of a tube I lost my voice. It was frustrating not to be able to communicate with anyone.

When it was finally time for my leg brace to come off I had about 5 degrees of movement in my knee. It took a lot of hard work, patience and physical pain to teach my knee how to bend again. I could not believe how much muscle mass I lost. I have always been a proud owner of an athletic body. I have worked all my life to be fit and muscular, I could not believe all my years of hard work and maintenance had been so quickly lost.

I was released from hospital five days before my nineteenth birthday, though after spending over a quarter of my eighteenth year of life in a world totally removed from my normality I was not ready to be nineteen. I had missed Christmas, New Year’s, Easter and the birthday of my youngest brother. I felt like my adolescence was stolen from me.

...at this point I am wondering if my first year of nursing was a waste of my time as it is looking like it will be a career I cannot pursue. This year has definitely been a waste of my time which means I may have wasted two years going in the wrong direction. To think that I may have lost more time is soul destroying.

Two broken metatarsals in my left foot, a sprained ankle, dislocated toe and a ‘Y’ shaped scar on the top of my foot. To this day I cannot walk without pain from those metatarsals. I was forced to say goodbye to what was left of my kneecap, apparently it was like sand, no piece big enough to salvage. I was given a titanium rod in my right femur, a surgical scar on my right hip and a few screws near my knee and hip to hold it in place.

I cannot forget my perforated small bowel for which I had my first ever surgery in order to repair some of the damaged parts and remove a piece that was beyond repair.

The subarachnoid haemorrhage in my cranium was a likely contributor to my inability to keep food down. Contusions on my lungs, cuts and bruises that covered my body, I still suffer from numbness on my knee and foot. I must farewell my ability to finish a Cradle Mountain walk again. My toenails falling off really gave me a fright for the first time it happened.

Every time I look at myself I see a new scar and I want to cry. I have had plastic surgery, it was to fix my eyelid. The scar down the side of my face that I still see every time I smile. Then there is Ben, my best friend, lover and partner in life if only for a short while. He was my greatest support. I miss spending time with him, falling asleep under his desk at work, being a test subject for a work project and completely altering his results. I miss going to costume parties with Ben and watching him be the most innovatively dressed person there. I miss all the little things we did together for each other. I talk to him at night, I constantly compare him to other people. I am still in love with a dead man. I was shadowed by the thought that whomever I confided in might think I was weird then I opened up and realised that it was perfectly logical, I never got closure with Ben. I will never know what our life together would have looked like or whether we would have made it as a couple. The unknown is crippling. How can I say goodbye or see you later to someone who was such a fundamental part of my life. There was no end for me, just emptiness.

In hospital there was not really anything that reminded me of Ben, I could just imagine he was in another ward, so my grieving process was on hold for four months. Now I am out it is mostly about me and what I have lost. Since I do not know where I stand it is hard for me to grieve about Ben. I fear the day when I can grieve fully, it will be big and powerful, totally consuming and something that right now is beyond me.

I dream too, I dream our last day together, it is quite vivid in my mind. I remember our last conversation, I remember impact, not only do I relive it every day but also at night. I dream the day of the crash over and over again. I have woken up screaming on more than one occasion. This is something I really want to move past but I am still being held captive.

I am a different person now, I am cynical and depressed.
The loss of Ben is the loss of a colleague, brother, son and friend.”

I come now to the victim impact statement of Joe Rudzyn, father:

“Ben was my best friend. I came home every day from work and looked forward to hearing all the stories about Ben’s activities and new achievements that day. This was my life. They say you can choose your friends but you cannot choose your relatives. To have your son as a good and close friend is the best of both worlds. We were so rich to have this, Ben was my soul mate.

I constantly relive the last few seconds of Ben’s life over and over in my mind. I see the crash and watch his life slip away from him. I am left with a knot in my stomach and a sense of panic all the time. I keep thinking I need to do something to bring him back but the reality is that he is dead.

There is nothing I can do for him except this victim impact statement

I will never share a breakfast meal with him on a Sunday morning, nor chat about his escapades on Saturday nights. I will never talk to him about the stock market, economic rise and fall. I will never be able to discuss the political environment with him again. My entire life was and is devoted only to the next generation. I never cared for myself I only cared for my kids. I consider myself a link in a long chain and Ben was the next link. Each link is cemented by family values and the love shared. This devastating act has ended his lineage forever. I wanted the best for my kids but I couldn’t stop Ben being killed.

They say that time heals all wounds, time does not heal all wounds, time deepens and cements the hollowness of life that Ben’s sudden absence created.

I shouldn’t be here, I should be speaking at Ben’s wedding, or I should be sitting around the kitchen table with my wife, my daughter and my son discussing our futures, sharing the day’s events and enjoying stories about the past.

The worst aspect of Ben’s death is what it has done to me. I cannot help but feel constant anger, rage and hatred towards the person who took my son’s life and the system that allowed him free access to the road and his car. I cannot help but feel that he has wiped out the family line. I cannot help but feel that no one can adequately punish the person for what he has done to me by taking my son’s life and yet I know that this was not what I was like before my son’s death. I enjoyed life. Anger, hatred and general numbness. I don’t want to feel this way but no one can bring Ben back and I feel that the guilty person must be held to account and yet I know that this is not my job and so I feel impotent to resolve these issues, lashing out is all I know.

We had two kids, a boy to replace me when I die and a girl to replace Sue when she dies. I have been robbed of my replacement, my lineage is dead, my entire life appears to have been for nothing.
I never really understood the meaning of death until I looked into Ben's eyes in the morgue, my beautiful boy was a frozen, lifeless shell, watching Ben on the slab waiting for an autopsy at the morgue taught me what death truly was. I feel like Pinocchio, I can walk, I can talk, I can eat and yet I no longer feel that I have a soul, my son’s death has taken that from me.”

I come to the statement of Sue Rudzyn, Benjamin’s mother:

“My twenty-six year old son Ben was killed on 20 December 2008 in a motor vehicle incident at Sutherland, his death has a devastating impact on my life. Every night at 2am I wake up re-enacting the scene when the policeman came to our door to tell us the tragic news. I keep hearing their words. I feel like I’m in a nightmare and I keep hoping that I will wake up and that it will all have been a huge mistake. Every minute of every day is a struggle for me, Ben is on my mind 24/7. Most of the time I feel like someone has taken a huge knife, sliced me open and ripped out my heart. There is an ache so physically strong that I can’t describe it. I feel like part of my whole being has been suddenly and violently taken away, leaving a huge, gaping hole. When Ben was killed part of me died too.

I feel so cheated and betrayed, my son was meant to outlive me. I believe his death was senseless and avoidable and I am bitter because I was robbed of so many opportunities, including that of saying goodbye and telling my son how much I loved him and how much he meant to me.

For the rest of my life I have to go on struggling constantly being taunted that I will never see, hear or hold my son again. I will never attend his wedding, never have a daughter-in-law, never hold his children or get to know them, never to have any of the joys that a parent gets as their children start their own lives and a new generation of children begins. I will never witness what a wonderful father he would have been, I have been robbed of my dreams and my investment in the future has been taken away. My future has been denied.

I am constantly reminded of my loss by looking at the pain and anguish that my husband and daughter are suffering and I feel helpless and torn that I can’t support them. I often feel guilty that I couldn’t in some way protect my family from this tragedy and I still feel tormented that I can’t fix the situation, that I can’t make it better, that I can’t bring Ben back. The reality is that I am so immersed in trying to keep my own head above water that I am incapable of helping anyone else. I feel like I’m trying to tread water in a rough ocean where the waves keep crashing down on me, pushing me under. Each time I come up for air another wave pushes me down again. I am stuck in the same spot, not able to move forward, just trying to survive. I look at Ben’s beautiful girlfriend Olivia, my heart bleeds for her, for her emotional and physical injuries and for the fact I can’t help her anymore. I try my best but I know it isn’t nearly enough and I can hear Ben’s voice somewhere in the recess of my mind saying, ‘What about Lil, mum, she is all alone.’.

Birthdays, Mother’s Day and special religious holidays are particularly painful, the customs and family rituals associated with such events are just too difficult for me to bear. I recently turned fifty, I couldn’t acknowledge that I was a year older, knowing that Ben would never reach his twenty-seventh birthday. Without him, any thought of celebration seemed empty, insignificant and self indulgent.

I have problems focusing and concentrating, doing my job and performing the simplest tasks. I can’t think clearly, I can’t make decisions. My head is in a constant state of confusion and chaos, my stomach is always in a knot, my neck and shoulders are so stiff and sore that I often have to take painkillers just to get through the day.

Sometimes I feel so paralysed by the enormity of what has occurred that even the thought of getting out of bed is enough to immobilise me. The energy I had, which sustained me to date, has just about dried up and I am so tired of being strong.

My memory which was always incredibly sharp, is now almost non-existent. I have trouble finding words when I am speaking.

This whole event has caused me to now question my beliefs. I have always believed good would prevail over evil, and yet it just is not true, how could this terrible tragedy happen to us.

Now my house is both my refuge and my tormentor, there is not a room or place on this property that doesn’t remind me of Ben, he was here for twenty-six years.

One of the biggest impacts of losing Ben is the broken Friday night tradition, every Friday from virtually the day he was born we had a Sabbath meal as a family, either at my parent’s place or at our house. Even if he had other arrangements and went out later, he was always present to eat the meal with us and, when they were alive, in the company of my parents. There is no special Friday night dinner anymore.

I find myself having panic attacks and being both scared to drive and being a passenger. I am petrified of being killed in a car crash. I find myself being over protective of my daughter Kate, I am anxious if she is a few minutes late. I am paranoid that something bad is going to happen to Joe, I am fearful that the two closest people to me will be taken from me by misfortune.

There has been the added stress of the financial drain that Ben’s sudden death has caused. We have had to employ a solicitor to obtain letters of administration. There has been the cost of doctors, counsellors, psychologists, psychotherapists and a variety of other allied health staff required to help me cope and readjust. There was the cost of the funeral, the burial plot and the tombstone.

The extent of my grief is exacerbated because of his outstanding character and calibre.

One of the most difficult things I have had to do recently is to choose a monument and tombstone and to compose the words to go on it.
This was such a personal thing, no one else could help me with it, no one could do it for me and once again I felt unbelievably alone. I was reminded again of the enormity of my loss and how no one should have to bury their son in the circumstances that I did. Eventually after weeks and weeks, the words slowly crystallised in my mind and I was able to put them on paper.”

I come now to the victim impact statement of Kate Rudzyn, the sister of Benjamin:

“I no longer have my loving and brilliant brother to help me through any of life’s challenges with his generosity and kindness.

The last night I saw my brother was Friday 19 December at 8.30. This was the first time he’d asked me on a double date with our respective partners, I was flattered and thought to myself that this would be the start of many outings that I would have with my brother and our partners. I assumed that I would speak at his wedding and he would speak at mine and once we were both married we would have had each other over for dinner parties and the like, sharing celebrations together and even taking out families on holidays together, of course this will never happen now. In my dreams for the future I always assumed that my brother would be there to share that future. I feel like these dreams have been killed just as my brother was.

I am angry that I will never be able to travel with him again.

He was such a great role model for me, I have not only lost a brother but a role model and a mentor.

Everything Ben had helped me with I have grown from and it hurts me more than I can say to think that I will never have a chance to learn from him, to lean on him, to be grateful for his support.

Now that Ben is no longer with us I feel a certain responsibility to my family, his university and society to continue down the path of his brilliance, even though Ben and I were very different people, I feel the pressure to achieve double the amount of awards and conquer double the amount of milestones to compensate for his death.

The hardest thing is that now I have to go through every big milestone in my life without my brother there to share it with. I have lost my travel companion, I have lost my guidance counsellor, I have lost my Saturday night DVD buddy, I have lost my fashion consultant, I have lost a shoulder to cry on. I have lost my editor. I have lost my computer technician, I have lost my technological advisor, I have lost a comedian. I have lost a Ceroc dance partner, I have lost a guest to my dinner parties, I have lost a groomsman at my wedding. Every milestone that I accomplish in life I will feel this loss. Every happiness will be bittersweet because he cannot be there to share it with me.

I will never have a sister-in-law. What tears me apart is that I have been robbed of the chance to be an auntie to my brother’s children, I will never get to see his beautiful children, my nieces or nephews .

There is no doubt that my brother’s death has directly affected my grades at Uni and my career development at work. I am unable to concentrate or focus in the same way as I used to. My memory has deteriorated and this has affected my studies and my work. I am still only working part time because I find everything more stressful to manage and constantly feel like I am about to explode. Extreme exhaustion has also prevented me from reaching my potential. Grief is predominantly responsible for my exhaustion but the recurring nightmares that I have recently been experiencing, only make things worse. I struggle every time I get behind the wheel of my car or become a passenger in someone else’s car. Whenever I look at the oncoming traffic, I see an enormous bullet shooting my way and I think of the horror my brother must have felt right before he was hit.

Socially I have retreated from most of my friends this year. I don’t want to spend time with crowds of people but I am now paranoid about being on my own in case something happens to me. Ben’s death makes me feel far less invincible. It seems that the bad things are attracted to good people, not the same ethical value system I was raised up upon. I feel there is not justice here. Even if, as I passionately wish, it were possible to take an eye for an eye, I feel that no eye can ever compare to my brother’s.
I am only eleven months into my grief journey and I haven’t even begun to accept my brother’s death.”

That completes the reading of the victim impact statements. I want to turn now to the subjective matters.

Subjective Matters

49. I am both entitled and required to do that, not only in my sentencing for the criminal offence, but in sentencing this offender for it. Each offender coming before a court varies from others who stand or who have stood for sentence. Circumstances personal to an offender may offer to the court some explanation and insight into the commission of these offences by him, or some reason why a greater or lesser sentencing outcome is appropriate.

Background, Family, Relationships

50. Dragan Jojkic was twenty-six at the time of offending and is twenty-seven at the time of sentence. His partner and nine-month old daughter live in Adelaide where they have moved to be with her for family support whilst Jojkic remains incarcerated. His partner came from Adelaide to support the offender during the sentencing proceedings and to give evidence in his cause. They have been together for three years and five months. Most of their contact now is by phone and letter.

51. Jojkic is one of two children; his sister is aged twenty-three. His parents are divorced but his father and stepmother and sister were present in court. His mother was an active alcoholic. She would abuse the children which increased until Jojkic turned eight or nine. When he was eight years old his parents separated but the offender remained in his mother’s custody for some time after that. She would beat the children with rose bushes, cricket bats, and anything she could get her hands on. He would intervene frequently in order to see if he could spare his sister the beating by taking it himself.

52. In the family law proceedings he gave evidence to the Family Court, I assume on those matters. Ultimately custody was given to the father. The family moved to Menai where his father worked long hours.

Education, Employment and Skills

53. By the end of Year 7, Jojkic was at Menai High School living with his father and stepmother. He had, during his high school years, part time employment at KFC. He continued on at high school but was, as I understand it, expelled, or at least asked to leave in Year 12. Nonetheless, his trial HSC marks were submitted to the Board of Education and he was awarded his HSC. His first full-time position was tree lopping; that was followed by a salesman position at a home security systems company, then a position as a trainee chef for five or so months. His next position was as a painter’s hand where he learnt to be a commercial and a domestic painter. He appears to have committed to and connected with this job. He did a four year apprenticeship; he was given responsibility over other apprentice painters employed by his boss. He worked in this position until 2007 when he registered a business name and subcontracted, initially with his old boss and later with other painters as well. He played soccer for sport at school and some social and competitive soccer post school.

General Health

54. Before the collision, as best I can tell, Jojkic enjoyed good health. There is material before me that suggests he was going to a gymnasium at that time. As a consequence of the vehicle impact, he spent eighty or so days in hospital. Upon discharge, as I earlier said, he was arrested and has been in custody since then. His counsel has listed the following injuries sustained in the collision: perforation of the small bowel, fracture of the left tibia, fracture of the left radius, fracture of the body of the sacrum which, as best I can tell, produced a narrowing of the spinal canal resulting in nerve root compression, disease of the nerves and wasting of the lower left leg. He suffered bi-lateral fracture of the lower jaw bone, pulmonary contusion, i.e., bruising, severely bruised lungs and post-traumatic amnesia. There is ongoing sequelae to these injuries; he has difficulty walking, has constant back pain, he has difficulty standing for long periods and cannot run, he has problems with his left ankle, he still needs work done on his teeth.

Mental Health Issues

55. Sam Borenstein, a consultant clinical psychologist, diagnoses complex post-traumatic stress disorder, consequent upon his childhood experiences of being beaten and seeking to protect his younger sister from beatings. There are also sequelae arising from the vehicle impact he caused and the resulting death and grievous bodily harm caused to the occupants of that other vehicle. Mr Borenstein opines that his own injuries remind him of the collision, “However, his immediate reference point is to the other families as well as the impact upon his own partner and his daughter.” He is suffering a depression which appears in part to be longstanding but may well be exacerbated by his current condition. Borenstein speaks of his sense of guilt, remorse and contrition. Although Borenstein does not say so, my sense is that his longstanding depression is reactive to the abuse that he and his sister received as children, and to that has been added further reactions, including his present and anticipated incarceration, his separation from his partner and child, and the substantial feelings of guilt arising from his direct connection with, and causing the death of, Benjamin Rudzyn and truly serious injury to Olivia Stennett.

56. The physical and substantial part of the mental health issues are self-inflicted injuries as a consequence of Jojkic’s own unlawful conduct. In these circumstances their existence can hardly count as matters that mitigate his sentence. In fairness, his counsel, Mr Bellew SC, does not seek that, but he does argue that these injuries impact upon the quality of his custody, a fact beyond Jojkic’s control. There is evidence that the only dental treatment the offender has received thus far is for a filling and nothing else, that he has had many difficulties accessing needed medical treatment whilst in custody. He has put in a lot of referrals, i.e., requests, but nothing seems to happen. While he has been to the Prince of Wales for X-rays on his back and seen a neurosurgeon to tell him of his problems, as I understand it, there has been no treatment. He tries to see a counsellor weekly but she has not been in for two months. He has had four or five sessions with the physiotherapist for the twelve months he has been in custody.

57. In early November 2009, Dr Steven Buckley, a well-reputed consultant physician in rehabilitation medicine, saw Jojkic at Long Bay Correctional Centre. Assessing the injuries that I just detailed, Dr Buckley says the following are requirements needed for his appropriate medical care:

“So far as the active management of the left leg nerve injury,
(1) nerve conduct on- studies,
(2) repeat fine-cut CT scanning of the sacrum to determine the condition of the nerve roots and the healing bone,
(3) neurosurgical review with a view to decompressing the sacral nerve roots,
(4) bladder urodynamics study,
(5) active three-times weekly physiotherapy for strengthening exercises for the left leg,
(6) review by consultant physician in rehabilitation medicine with consideration of fitting an ankle-high boot to provide some stability of the ankle joint in gait and providing some resistance to roll over and toe off movement moment of force.

58. Against that background, Mr Bellew chronicled in his submission a synopsis of treatments offered or recommended referrals, or more simply put, requests of treatments made by the offender since his incarceration began. This information, that was put into some sort of chart, is to be found in the subpoenaed clinical notes provided by Justice Health. It is submitted the level of treatment provided to the offender whilst in custody has been sadly lacking and falls well short of even remotely approaching an acceptable standard. Even if I took the view that Dr Buckley’s recommendations would be great in an ideal world or best practice, the care and treatment thus far tendered to the offender from Justice Health, falls so far short of an appropriate standard of institutional care as to border on the scandalous.

59. It is the responsibility of the Corrective Service authorities, or now of Justice Health, to provide appropriate care and treatment for sick prisoners. One of the things lost when liberty is lost, is access to independent medical care. This is yet another case where it has failed to provide adequate care. No doubt at some future time when some enterprising lawyer finds a way to take a class action comprised of former prisoners against Justice Health and/or the Corrective Services, the government will realise the cheaper option may have been to provide better health care when it was needed.

60. The defence seeks mitigation of the punishment because it says imprisonment would be a greater burden on the offender by reason of his health and that imprisonment with health needs untreated will have an adverse effect upon the residual strength and health he currently has. The difficulty with the submission is the absence of proof that the impoverished level of health care will remain. Nor is there any evidence pointing towards deterioration of health in the absence of care. For all I know his condition may have stabilised.

61. I am prepared to allow some mitigation limited in relation to the time already served since arrest and for the following eighteen months because I think it unlikely there will be any change of government policy in the short term. But, for example, there is no evidence as to what, if any, change would come about if the Federal government increases its input into the financial cost borne by State health instrumentalities.

Drugs and Alcohol

62. Jojkic is a poly drug abuser. He began with daily use of cannabis in Year 8 until, he says, he was twenty-two. I am satisfied he was still using cannabis at the time of this collision. He has used ecstasy and ice, and I will come back to that in a minute. He told Mr Borenstein he was smoking between one and half to one gram of marijuana two times weekly, claiming it was recreational. He denies smoking marijuana on the day of the collision. In Year 11 he was using LSD. In Year 12 he was using ecstasy and amphetamines. I am satisfied he was probably still using at some level one or other or both of those drugs, although not in any heavy or committed way.

63. Whilst in custody he has done an “Enough is Enough” drink/driving course. He goes to NA meetings. He has started the SMART course. Attending courses such as these is a positive rehabilitation indicator, but the real question is whether it will be carried on in the community.

Character and Reputation

64. He holds strong ideals about his family and how he intends to make the future of his young family better than the past life he has had. If he is fair dinkum about it, it is something he will have to work at particularly hard in the next few years as his young daughter and partner survive without his presence.

65. He comes to sentence with a good work ethic and a good reputation in the field of painting. He has accepted responsibility for his criminal conduct and to date been properly focused on the enormity of the death and injury he has caused.

66. He also comes as a serial traffic offender, particularly in respect of speed. As I earlier said the offences I am dealing with move well beyond traffic offences but they have their origin it might seem in these earlier ones. His traffic offending is important because it displays a flaw in his character, namely, a determined defiance of the traffic rules.

67. Between 6 September 2001 and 12 September 2008 he had exceeded the posted speed limit on eight occasions. On two occasion, the last being on 12 September 2008, by more than thirty kilometres per hour. On three occasions in 2007 he exceeded the speed by more than fifteen kilometres per hour, and on three occasions before that by less than fifteen kilometres per hour. His licence has been suspended on five occasions. In March of 2006 there was an earlier mid range PCA.

68. For reasons which have not been explained he did not regard himself as bound by the rules of the road. All of his offending conduct constitute offences against public safety, although not of course to the degree to the one I am dealing with. He has other convictions, all in the Local Court. A number relate to property damage and one assault police. All of those are likely to be either related to drug or alcohol consumption. There are three drug related convictions. He has not been to prison before. All his criminality to date, putting to one side the traffic offences, was covered by $1,500 in fines. These two offences are far and away his most serious encounter with the criminal law.

Attitude to the Offence

69. I am satisfied he is genuinely sorry with compelling feelings of guilt arising from his causing the death of Benjamin Rudzyn and truly serious injury to Olivia Stennett. His reaction during the reading of the victim impact statements in court by the victims, as best I could tell, the effect upon him appeared to me profound. His plea of guilty was entered early. So far as I am aware no detail of fact was contested by him.

70. For those who are genuinely contrite and accept full responsibility for their offending conduct and save the State the cost of a trial, a discount of sentence is allowed of up to twenty-five per cent. This offender by his cooperation based upon genuine remorse is entitled to the twenty-five per cent discount on the sentences I would have otherwise set. The Crown Prosecutor concedes a twenty-five per cent discount is appropriate.

Rehabilitation Prospects

71. The greatest indicator of rehabilitation prospects is immediate past conduct. In this offender’s case his traffic offending record must be reviewed as a significant negative indicator. His long entrenched abuse of drugs and alcohol are two further negative indicators. Even though his partner does not use he was unable to stop even though he said he wanted to. So that his inability to stop was against a background where he felt motivated to stop to please his partner.

72. His physical injuries may impact upon his capacity to work in his chosen field of painting, for example, climbing ladders. But I do note his former employer would be willing to employ him to assist in his rehabilitation. His mental health issues, particularly his ongoing depression, may also impact upon his capacity to hold down a job. His love of speed and the thrill of fast driving is another factor that is a worry.

73. On the other hand, there are several strong support indicators. Strong support of father, stepmother and sister, strong support of a partner in Adelaide, good work ethic, a minimal criminal record (as distinct from traffic offences). His underlying sense of himself seems sound. He told Mr Borenstein when asked to describe his personality:

“I am a good bloke, I am a hard worker, I want to do everything I can for my family. I’ve been through a lot. My family is what is most important. I don’t want to put them through what I have been through. I feel so sorry for the families I have affected through my actions.”

Contrition and growing insight into his offending conduct. I would assess his rehabilitation prospects as reasonable.

Special Circumstances

74. I find special circumstances for the following reasons. He is relatively young. This is his first time in custody. He is more likely to secure injury and mental health rehabilitation in the community than in custody. If he is to rehabilitate his behaviour then it should be done in the community rather than in the single sex, decision deprived environment of a gaol. If he is not to rehabilitate his behaviour then that demonstrated absence of rehabilitation should occur in circumstances where the cost to him will be loss of parole and return to custody. In other words, personal deterrence.

Setting the Sentence

75. Parliament has set a maximum sentence for manslaughter of twenty-five years and for aggravated driving causing grievous bodily harm of eleven years. These sentences carry those maximums because parliament seeks to deter would-be offenders. While the maximum sentence is reserved for worst cases nonetheless sentencing judges are required to keep in mind the availability of imprisonment and the maximum penalty in deterring others. Imprisonment is a sentence of last resort when no other sentencing option is available. It is the severest form of punishment currently known to the law in New South Wales. I am satisfied the criminal conduct I am dealing with here leaves no option other than full-time incarceration. Sully J in R v Sellers (1997) 92 A. Crim. R 381 observed:

76. I interpolate there, the same also applies for driving at a speed dangerous and in circumstances where the manner of driving is also dangerous. Continuing on with Sully J:

“...it seems to me worthwhile to say in a case such as the present one, tragic as it is from the point of view of everybody involved in it, that driving a motor vehicle whilst stupefied with drink is simply gross social irresponsibility.”

The same observation can be made of the driving that led to this collision and the consequences. I should also note that I have had regard to the guideline judgment in R vWhyte (2002) 55 NSWLR 252.

Applying the Discount

77. But for the plea of guilty I would have set an overall sentence of eleven years imprisonment for the manslaughter. That sentence will be reduced by twenty-five per cent, namely, two years and nine months, to make a sentence of eight years and three months. But for the plea of guilty I would have set a sentence for the aggravated driving causing grievous bodily harm a sentence of six years. Discounted by twenty-five per cent that becomes an overall sentence of four years six months. I intend, firstly, to set a sentence for the summary offences and then to accumulate to that sentence, at least to one of them anyway, the aggravated driving offence and then partially accumulate the manslaughter offence. So I will be sentencing in that order.

78. Would you stand up please, Mr Jojkic. Dragan Jojkic, for driving at a time when your licence was suspended, you are convicted and I sentence you to a term of three months fixed term to commence on 10 March 2009 and to expire on 9 June 2009. That sentence has already been served.

79. You are convicted of driving with a midrange prescribed concentration of alcohol on 20 December 2008. For that sentence you are convicted. You are sentenced to a sentence of six months fixed term to commence on 10 March 2009 and to expire on 9 September 2009. That sentence is already served.

80. You are convicted that you did drive a motor vehicle on 20 December 2008 at Sutherland, namely, a black Ford utility, when it was involved in an impact occasioning grievous bodily harm to Oliva Stennett and at the time of the impact when you were driving at a speed dangerous to another person or other persons in circumstances of aggravation, namely that the speed that you were travelling at exceeded by more than forty-five kilometres an hour the speed limit applicable to that length of road. For that offence, I set a non-parole period of three years to commence on 10 March 2009 and to expire on 9 March 2012. The balance of term will expire on 9 September 2013.

81. For the manslaughter, Mr Jojkic, you are also convicted that you on 20 December 2008 at Sutherland in the State of New South Wales caused the death of Benjamin Carl Rudzyn in circumstances amounting to manslaughter, namely, driving a motor vehicle whilst suspended from driving, intoxicated, your vehicle being unregistered, and at forty-five kilometres over the applicable speed limit. In respect of that offence, I sentence you to a non-parole period of four years nine months to commence on 10 June 2010 and to expire on 9 March 2015. I set a balance of term of three years six months to expire on 9 September 2018.

82. You are disqualified in respect of driving while suspended. You are disqualified for a period of two years to date from today.

83. For the midrange PCA you are disqualified from driving for a period of two years to date from today.

84. In respect of the aggravated driving and the manslaughter charges you are disqualified from driving for a period of eight years from today.

85. The overall sentence that I have set, if my maths is correct, and I stand to be corrected, is nine and a half years and the effective non-parole six years three months (as said).

86. Let me say this to you, when I set a sentence of three years or less I can order people to go to parole. In your case, I cannot order you to go to parole. The Parole Board must oversight the granting of parole to you. The two criteria are these, are you a danger to yourself, or are you a danger to other people. Clearly, while your driving habits remain as they are you would not satisfy the second criteria. They will not give you parole unless you convince them that your driving habits have changed. If they do not give you parole on the first occasion that you go before them you will have to wait twelve months before you can go before them again, and if you do not get them the second time you will have to wait twelve months before you can go for a third time. Do you understand? It is important from your point of view that you do the best you can to get yourself together whilst in custody.

[Discussion between His Honour and legal representatives]

87. In respect of the matters where it is use unregistered vehicle, you are fined $200, twenty-eight days to pay, and drive motor vehicle with prescribed illicit drugs, you are fined $250.

HIS HONOUR: You may be returned to custody.

oOo

ANNEXURE “A”

Portion of Judgment of Hunt CJ at CL

R v Salvatore Previtera

(1997) 94 A.Crim.R.76.

A victim impact statement was provided by the deceased's son. I acknowledge its receipt, and I sympathise with him (and with his sister) for their tragic and senseless loss. He describes his own and his sister's reactions to the murder in moderate and compassionate terms, and I note what he has to say. Section 23C(3) of the Criminal Procedure Act 1986 (NSW) provides, however, that I must not consider that statement in connection with the punishment to be imposed upon the prisoner unless I consider that it is appropriate to do so. The legislation -- which is poorly drafted -- is nevertheless clearly wide enough to apply to the present case, where the offence involves the death of the victim but where the impact statement deals only with the effect of the death upon the victim's family. In my opinion, however, it could never be appropriate to take a statement of that nature into account in sentencing the offender in such a case. I must explain why.

There is a fundamental difference -- both in law and in common sense -- between punishing the offender for his crime and compensating the victim and the others affected by that crime for their loss or injury suffered as a result of that crime. The task of the criminal court in imposing a sentence is to punish; it is not to compensate. It is, in general terms, the task of the Victim Compensation Tribunal to award compensation to the victim and to others affected by the crime for their loss or injury.

The sentence imposed as punishment in any case must take into account the objective circumstances of the crime, the matters which aggravate those circumstances (or make them worse) and the matters which mitigate their seriousness. That is the framework adopted for these present remarks on sentence. The consequences of any crime upon the victim who is directly injured by it are always relevant to sentencing the offender as part of the objective circumstances of the crime, and sometimes they are relevant also in aggravation of those circumstances.

A simple example will show how the maximum sentence prescribed -- and thus the yardstick by which the actual sentence must be measured -- increases according to the degree of injury inflicted upon the victim. An assault, when prosecuted by indictment, carries a maximum sentence of two years. If the assault causes actual bodily harm, the maximum is five years. If the assault causes grievous bodily harm (that is, really serious physical injury), the maximum is seven years. Within those categories, the criminal court sentencing the offender would also be entitled to take into account other effects of the assault upon the victim in aggravation of the objective circumstances of the crime -- such as the fact that the offender failed to seek medical attention for the victim's injuries, or the fact that the victim had a long and painful recovery from those injuries. There are other matters which would be relevant, and I do not intend by those examples to cover the field. However, it is impossible to see how any loss or injury suffered by persons other than the victim directly injured by the crime could ever be relevant to sentencing in that way, however relevant they may be to the issue of compensation.

It is of course, important that the sentences imposed by the criminal courts are acceptable to the community (including the victim and others affected by the crime), important that those sentences are such as to demonstrate to the community that the offender has been given his just desserts -- in other words, that justice has been done. But it is unfortunately inescapable that those sentences sometimes do not satisfy the victim and the others affected by the crime. There are at least two reasons why that is so.

The first is that the attitude of the victim and the others affected by the crime is, basically, that no amount of punishment will ever compensate them for their loss or injury. That is a very understandable human attitude. It is one well based in the Old Testament. But, as I have endeavoured to demonstrate, the issues of punishment and compensation are fundamentally distinct.

The second reason why the victim and the others affected by the crime are sometimes not satisfied by the sentences imposed by the criminal courts is that they do not always realise -- or, perhaps, do not accept -- that sentences are expected to serve many different purposes, some of them inconsistent with the others. Those purposes are the protection of society, personal and public deterrence, denunciation of the crime, retribution for the injury caused and the reform of the offender. Retribution (or the taking of vengeance for the injury done) is but one of those purposes, and care must be taken that vengeance alone is never equated to justice. Again, it is understandable that the view of the victim and the others affected by the crime as to which purpose should predominate in the particular case will sometimes differ from that of the courts, whose duty it is to attempt to satisfy all of those purposes.

In cases where the victim is still alive -- that is, the victim directly injured by the offender's criminal act -- victim impact statements will no doubt serve the useful purpose in the criminal courts of establishing the consequences of the crime upon that victim. A problem arises, however, in those cases -- such as the present -- where the crime involves the death of the victim. The consequences of the crime upon the victim (death) has already been proved (or admitted) by the time the offender comes to be sentenced. It may be that, in the case of a slow lingering and painful death, information from the family would be relevant, but that would be a very rare case. The present case is certainly not such a case.

The law already recognises, without specific evidence, the value which the community places upon human life; that is why unlawful homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar. It is regarded by all thinking persons as offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another. It would therefore be wholly inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in the one case than it is in the other.

Even in the rare case where the family of the victim in a death case will be able to provide material which is relevant to sentencing the offender, the form in which the statute requires the victim impact statement to be presented means that it is both unsworn and unable to be tested. This presents a particular difficulty for the Crown if that information is to be put forward as a matter of aggravation.

It is a fundamental principle of the criminal law that the onus of establishing disputed matters put forward in aggravation -- that is, matters which are to be taken into account against the prisoner on sentence -- lies on the Crown, and it must be shown beyond reasonable doubt that they are true. If that information put forward in the impact statement were to be disputed by the prisoner, it would therefore appear to remain inappropriate to take into account unless its author were called as a witness in the sentencing proceedings.

The victim impact statement in the present case, as I have said, speaks of the reactions of the deceased's son and daughter to the murder. That material is relevant to any compensation which they may seek from the Victim Compensation Tribunal, but it is irrelevant to the task which I have to perform here in sentencing the prisoner. It is therefore inappropriate to consider it in determining the sentence to be imposed upon the prisoner in this case.

I regret that it is necessary for me to have to point this out to the family of the deceased in the present case. It is no doubt disappointing and unsatisfactory to them, and the more so if the legislation raised their expectations that that material would be taken into account by me. It is unfortunate that the Legislature chose to pass s 23C(3) in a form which includes a statement from members of the victim's family in a death case which deals only with the effect of the death upon them, and which could never be appropriate to be taken into account on sentencing. The Legislature is therefore responsible for having raised the expectations of the families of such victims and for the disappointment and dissatisfaction resulting from the non-fulfilment of those expectations.

29/11/2010 - Typing error - Paragraph(s) Field coversheet

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Citations

R v Jojkic, Dragan [2010] NSWDC 155

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R v Vincent, Jamieson [2010] NSWDC 302

Cases Citing This Decision

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R v Vincent, Jamieson [2010] NSWDC 302

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2

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R v Cuthbert [2023] NSWDC 594

R v Whyte [2002] NSWCCA 343

R v Cuthbert [2023] NSWDC 594

CITATION:	R v Jojkic, Dragan [2010] NSWDC 155 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20/11/2009 and 19/02/2010
JUDGMENT DATE:	26 March 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	MANSLAUGHTER: Sentence to a non-parole period of 4 years and 9 months. Balance of term of 3 years and 6 months. Disqualified for 8 years to date from the 26th March 2010. AGGRAVATED DANGEROUS DRIVING: Sentence to a non-parole period of 3 years. Balance of term of 1 year and 6 months. Disqualified for 8 years to date from the 26th March 2010. Sentences partly cumulative to each other. Overall sentence 9years 6 months with non parole period of 6 years.
CATCHWORDS:	Criminal Law - Sentencing - Manslaughter (gross criminal negligence) - Aggravated Driving occasioning grievous bodily harm - High performance vehicle - suspended driver - impact speed 120kph - speed limit 60 kph - vehicle negotiating curve loses tyre traction as result of excessive speed - main road - vehicle crosses median strip into path of on-coming vehicle - impact caused death to driver, GBH to passenger of on-coming vehicle - blood/alcohol reading 0.117 - prohibited drugs also present in blood - 17 or so persons put at actual risk - subjective circumstances reviewed - offender seriously injured in collision - custodial health care of offender criticised - prior speeding and PCA offending - 25% discount for plea and remorse - limit of contents of victim impact statement - responsibility of prosecution to tender v.i.s. - implies responsibility of prosecution to assist victims prepare v.i.s. in admissible form
LEGISLATION CITED:	Criminal Procedure Act 1986 Road Transport (Vehicle Registration) Act 2007 Road Transport (Driver Licensing) Act 1998 Crimes Act 1900 Crimes (Sentencing Procedure) Regulations 2005
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 Salvatore Previtera (1997) 94 A.Crim.R.76 R v Sellers (1997) 92 A. Crim. R 381 observed R v Whyte (2002) 55 NSWLR 252
PARTIES:	Regina Dragan Jojkic
FILE NUMBER(S):	2009/00144605
COUNSEL:	Crown: S Dowling Defence: G Bellew SC