R v Wheway

[2020] NSWDC 25

District Court

New South Wales

Medium Neutral Citation:

R v Wheway [2020] NSWDC 25

Hearing dates:

28 January 2020

Date of orders:

28 January 2020

Decision date:

28 January 2020

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

Re Count 3: Term of imprisonment of 9 months

Re Count 2: Term of imprisonment of 3 years with a non-parole period of 21 months.

Catchwords:

CRIME – Sentence – Driving offences – Dangerous driving occasioning death – Causing Bodily Harm by Misconduct – s 52A(1)(c) and s 53 Crimes Act 1900 – Early pleas of guilty 25% discount – Crash on M1 Motorway Mt White – Offender’s dashcam footage showed periods of erratic driving leading up to collision including speeding, weaving between lanes to overtake, tailgating – Erratic driving not continual up to point of collision – No alcohol or drugs – No competitive driving – Whyte guideline factors considered – Genuine remorse – Traffic record but not an aggravating factor – Good prospects of rehabilitation – Special circumstances including youth, first time in custody.

Legislation Cited:

Crimes Act 1900
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Road Rules 2014
Road Transport Act 2013

Cases Cited:

R v Jurisic [1998] 45 NSWLR 209
R v Whyte [2002] 55 NSWLR 252

Category:

Sentence

Parties:

Regina (Crown)
Dane Wheway (Offender)

Representation:

Counsel:
Mr Darren Robinson (ODPP)
Mr Alex Radojev (Offender)
Solicitors:
Ms Josephine Menzies (ODPP)
Ms Trudie Cameron (Offender)

File Number(s):

2018/00078282

1. HER HONOUR:  The offender is before the Court for sentence on two substantive offences as follows:
    
   1. An offence of dangerous driving causing death which occurred on 9 March 2018 and which caused the death of Mr Jeremy Harvey. This is an offence contrary to s 52A(1)(c) of the Crimes Act 1900 which carries a maximum penalty of ten years imprisonment;
       
   2. An offence of causing bodily harm to Mr Vororath, also occurring on 9 March 2018, by misconduct, namely dangerous driving. This is an offence contrary to s 53 of the Crimes Act 1900 which carries a maximum penalty of two years imprisonment.
       
2. The offender originally pleaded guilty to these charges in the Local Court.  He was committed for trial, in addition to these charges, to one charge of manslaughter by gross criminal negligence.  That was count 1 on an indictment of which the other two offences were counts 2 and 3 respectively.  He was arraigned on all three charges before a jury on 18 November 2019 and maintained his pleas of guilty to counts 2 and 3, the two charges now before me for sentence.  The jury acquitted him of the manslaughter charge on 3 December 2019.
    
3. In addition to the two offences for sentence there are two summary offences forwarded to this Court pursuant to s 166 of the Criminal Procedure Act, 1986 for which I must sentence him in due course. They are one offence of not giving particulars to police, contrary to s 287(1) of the Road Rules 2014 and one charge of driving a vehicle with illicit drugs present in the blood, an offence contrary to s 111(1)(a) of the Road Transport Act 2013. Each of these offences carries a maximum penalty of a fine of varying amounts.
    
4. The relevant facts are to be summarised from the evidence called at trial.  The bulk of the evidence to prove the two offences before me, and which was in fact called in support of the manslaughter charge, came to the Court by way of dash cam footage from the offender’s own car which showed his driving over a distance of approximately 32 kilometres between the entrance of the M1 Motorway in Sydney at Wahroonga and the collision which occurred 1.4 kilometres south of the Mount White heavy vehicle weigh station on the M1 Motorway.  There was also some dash cam footage from a truck or heavy vehicle which was travelling behind the offender towards the end of the period of driving, in large part, and particularly so, at the time of the collision.  There was also evidence from various other road users of observations they made of the offender’s driving leading up to the collision which in large part was supportive of, although not entirely, but which in large part was supported by the dash cam footage from the offender’s own vehicle.
    
5. From this combination of evidence I accept that on 9 March 2018 the offender drove his Ford Ranger vehicle onto the M1 Motorway at Wahroonga just after or around about 4.30pm.  It was a Friday afternoon and he had finished work for the week.  He was working as a scaffolder at Wahroonga that day and drove on the M1 driving towards his home in Wyong.  His dash cam not only recorded the whole of this journey but also recorded his voice from time to time making comments in the car, but significantly during two hands-free conversations he had, one with his girlfriend and the later one with a friend.  It was clear that he was keen to get home and intended to pick up his girlfriend and then socialise with friends during the evening.
6. The collision which caused the death of Mr Harvey, and the bodily injury to Mr Vororath, occurred at 4.55 pm.  As I have said, the journey between the time at which the offender entered the M1 at Wahroonga and the collision covered about 32 kilometres and took just over 17 minutes.
    
7. The M1 is a three lane road with various posted speed limits.  For most part over this particular journey the relevant speed limit was either 100 kilometres per hour or 110 kilometres per hour.
    
8. During this period of just over 17 minutes the offender drove dangerously and erratically and this is conceded by him and on his behalf in the written submissions tendered.  This erratic and dangerous driving included his weaving across two and three lanes, overtaking and undertaking vehicles, travelling close behind other vehicles and from time to time travelling significantly faster than the regular flow of traffic.  There was at least one occasion on which he drove up close behind another vehicle which was travelling at the speed limit in lane 3 and the evidence from that driver was that she became frightened when seeing him doing that and was fearful of a collision so she flashed her lights at him.  She did not herself pull over into lane 2.
    
9. It is obvious that on this particular stretch of the M1, at least on this particular Friday afternoon, and to the knowledge of the Court, very frequently at about this time on weekday afternoons, the traffic is heavy, including a very large number of trucks which travel both in the inside lane but also frequently in the middle lane, which makes it difficult for other vehicles to cross into lane 2 and then travel at the speed limit allowing other vehicles to overtake in lane 3.
    
10. Over this 32 kilometre journey undertaken by the offender, he drove on occasions in excess of the posted speed limit and certainly from time to time faster than the regular flow of traffic.  Usually this was associated with moving between the lanes to overtake vehicles and travel ahead.  It is not possible from the evidence called at trial to determine exactly the speeds at which he travelled over this journey.  However I accept from the expert Mr Johnston, who gave evidence on behalf of the offender at trial, that there were portions of that trip where his average speed was 132 kilometres per hour.  There were other portions when he was travelling at about 128 kilometres per hour.  There were yet other portions where he was travelling at 98 kilometres per hour and other sections where he was travelling at 109 kilometres per hour.  These latter two portions involved his travelling at below the relevant speed limits.
     
11. So as an overall finding, I accept that during the journey leading up to the collision, the offender drove some of the time in excess of the speed limit, perhaps for a short portion approaching 140 kilometres per hour on his own admission, but at other times he drove below the speed limit.
     
12. Also in relation to his manner of driving otherwise, there were portions of the journey where he drove erratically and on his own admission dangerously, particularly including weaving in between lanes.  There were other occasions, however, even though it would have been possible for him to do so, that is to overtake or undertake another vehicle, where for about 5 kilometres or so he drove in lane 3 at a safe distance behind another car without an attempt to weave from that lane to other lanes to overtake that vehicle and the other traffic, even though there would appear to have been enough space between the vehicles to do so.
     
13. As I have said the collision occurred at about 4.55 pm 1.4 kilometres south of the Mount White heavy vehicle weigh station.  Some distance before that it can be seen from the dash cam footage in the offender’s vehicle that the deceased Mr Harvey himself was driving relatively fast, weaving from lane 3 to lane 1 to overtake traffic and move ahead.  At this stage he put his hand out of the window of his vehicle and made a gesture, perhaps to another driver, or perhaps not, but some gesture and then drove away quickly.  The offender did not respond to this but continued to drive below the speed limit in lane 3.
     
14. Just before the collision the offender drove his vehicle relatively quickly up behind Mr Harvey who was at that stage in the middle lane, lane 2.  The other victim Mr Vororath was driving his Volvo prime mover in lane 1, the inside lane.  The offender, I accept from the evidence, was driving at about 123 kilometres per hour just before he approached Mr Harvey from behind.  The offender then activated his right indicator and started to overtake him by moving into lane 3.  At about the same time Mr Harvey braked sharply and his vehicle dipped forward which indicated that the braking was undertaken sharply.  It is not known why Mr Harvey did so.  It was not in order to avoid anything in front because there was a gap of some 12 to 15 metres between him and the next vehicle, or boat which was being towed by a vehicle in front of him.  In any event for whatever reason, at about the same time that the offender put on his right indicator and started to move into lane 3, after having driven quite fast up behind Mr Harvey, Mr Harvey braked sharply which caused his vehicle to dip down and slow by about 10 kilometres per hour.  His average speed before this manoeuvre was about 105 kilometres per hour.
     
15. The offender then moved into lane 3 and activated his left blinker shortly afterwards to move back into lane 2 in front of Mr Harvey.  I accept more probably than not, that it was the offender’s intention to move in front of Mr Harvey and then move into lane 1 and thus undertake the traffic and move ahead, in exactly the same way he had done on more than one occasion in the 32 kilometres of driving immediately beforehand.  There was enough space at that stage, it would appear, between Mr Harvey and the vehicle in front to do so.  Mr Harvey however, again for reasons which cannot be determined, took his foot off the brake and put his foot back on the accelerator.  Mr Johnston’s evidence was that this had the effect of either maintaining his speed or accelerating it, but in any event he did not continue to slow down in the manner which might have been anticipated had he continued to brake.
     
16. Again it cannot be determined on the evidence either why Mr Harvey applied his brakes sharply or why after only one second he then put his foot on the accelerator.  However, whilst this particular sequence was viewed frequently in slow motion, frame by frame during the trial, the whole thing occurred in the space of about 1 or 2 seconds and at this time the offender was overtaking on the right and then put on his left blinker to move in front, with, as I have said, the intention of overtaking and moving into lane 1 and then ahead.
     
17. Tragically during this manoeuvre the rear of the offender’s vehicle collided with the front of Mr Harvey’s vehicle causing it to spin towards and collide with Mr Vororath’s prime mover in lane 1 and after this collision these two vehicles then veered off the roadway into the trees and bushes alongside the roadway.  Mr Harvey died almost immediately, as I understand it, and as a result of this very serious collision.  Mr Vororath’s truck continued into the bushes, shearing off a tree as it went and then came to a stop.
     
18. Whilst the consequences of this collision were tragic and catastrophic, in fact the initial collision itself was relatively minor.  I accept that the gravamen of this offence is that the offender decided to move into lane 2 in front of Mr Harvey without taking proper care that there was sufficient room to do so at the speed he was travelling and in the circumstances that in fact, albeit not on the evidence known to the offender, Mr Harvey had stopped braking and started to accelerate.  The actual damage to the offender’s vehicle was relatively minor and the actual collision itself caused only a slight bump within the offender’s vehicle as can be seen from the dash cam.
     
19. It is also clear, in my view from the dash cam audio, that the offender did not realise that the collision had been so serious until he looked in the rear vision mirror and saw the truck and Mr Harvey’s vehicle veering off the roadway into the bushes.  He drove a short distance on and pulled over to stop and then walked back to the scene.  There were several other motorists who had stopped to render assistance.  The offender could see that Mr Harvey was obviously deceased inside his vehicle and could also see that the truck driver Mr Vororath, although he suffered a brief period of unconsciousness, was apparently also out of the truck and being cared for.
     
20. The offender stayed at the scene for about 5 to 10 minutes.  He heard people talking about seeing what was in fact his vehicle as having caused of collision and heard another truck driver, whose dash cam footage formed part of the Crown case, say that he had dash cam footage.  A police officer is seen to arrive at the scene shortly afterwards, but he did not seek to take any details from anybody at the scene at that stage.
     
21. It is the case that at the time no one realised that the offender, who was standing at the scene, was the person who had driven the vehicle which was identified by others as having been the cause of the collision.  It is the case that no one asked his details at the time, including the police officer.  But as I have said it would also appear that no one knew he was the driver of the other vehicle.  In any event he did not provide his details to anybody.  He took the view that he could not provide any assistance to anyone and so he left.  He was not in fact abandoning the scene and in fact realised that his vehicle had been identified by others.  That is clear from the content of a conversation he had with his friend on the trip then between the scene of the collision and his home in Wyong.  He realised by that stage that he had not only been the cause of the collision, but in fact the cause of Mr Harvey’s death and realised that Mr Harvey was deceased.  As I understand it he drove to pick up his girlfriend and then drove to his home.  He did not try to hide nor flee.  In fact the police were waiting for him and arrested him.
     
22. He engaged in a record of interview with police in which he made some admissions, albeit some portions of his interview were not accurate.  I accept, however, that at the time he was in shock.  He realised he had caused the death of another person and to some extent he was reconstructing in his own mind how the collision had occurred, because at the time he did not either expect a collision nor for there to be one with such devastating consequences.  As I have already said, the events immediately at the time of the collision went for only 1 or 2 seconds or thereabouts.
     
23. The offender has never applied for bail following his arrest on 9 March and has remained in custody bail refused ever since.  I accept in large part this was because of a sense of guilt and shame he felt for being the cause of Mr Harvey’s death.  That is of itself quite clear evidence of genuine remorse on his part.  He has in addition expressed remorse on many occasions, but his decision not to apply for bail is, on my finding, palpable evidence of remorse.  In offences such as this he is likely to have been given bail, but he did not apply for it.  He has been in custody then, bail refused, since 9 March 2018 and therefore his terms of imprisonment will backdated to commence from then.
     
24. As is clear from the offence, Mr Harvey died.  There is no victim impact statement from his family tendered on sentence.  But even without that I accept that they have no doubt been very seriously impacted as a result of his death.  As I understand the general material that was before the Court, to one extent or another, he was married with children, was aged in his forties and he had other close family members including sisters.  Some of these family members attended the trial for the manslaughter charge throughout, viewing the same evidence that is relevant for the matters before me for sentence.  To my own observations during that trial they were frequently distressed at seeing the evidence as it unfolded, particularly as the dash cam footage of the actual collision was shown frequently to various witnesses throughout the trial.  It is almost certainly the case, I accept, that they continue to feel grief and perhaps anger at the death of their brother, husband and father.  It was a senseless death which has brought tragedy to them but also to the family of the offender and to the offender himself, who will, I accept, live for the rest of his life in the knowledge that he caused the death of another human being.
     
25. I suspect that at the end of this sentence, when the actual length of the sentence is announced, it is possible that the family members of Mr Harvey may have some negative feelings.  That is the experience of this Court in matters such as this, and it is not unusual to hear comments made by grieving families of victims of these offences to the effect that the length of such sentences does not seem to reflect the value of a human life.  These sentiments are understandable.  However this offence is unlike most other offences where death or serious injury is caused to another human being, in that the death in this case, or grievous bodily harm in other cases, is not intended, but is rather the consequence of dangerous driving.
     
26. Further, the maximum penalty for this offence is 10 years, whereas for the offence of which he was acquitted, the offence of manslaughter, the maximum penalty would have been 25 years.  The sentence for the offence for which I actually sentence the offender must reflect not only an assessment of the seriousness of the offending, but also the circumstances of the offender and also take into account whether or not there was a plea of guilty.
     
27. As I have said in this case there was a plea of guilty by the offender in relation to this offence and it was entered early.  There was a decision to pursue the offence of manslaughter, which as I have said, ended in an acquittal.  That is not a matter over which the offender however had any control.
     
28. I must sentence the offender for the offence for which he has pleaded guilty.  I have had regard to the statistics published by the Judicial Commission of New South Wales for this offence of dangerous driving causing death, which indicate that only a little more than 60% of offenders are in fact sentenced to fulltime custody and more than 50% of those receive sentences overall of 4 years or less.
     
29. The victim of the second offence, Mr Vororath, suffered bodily harm as a result of this collision.  That included a brief loss of consciousness, a 5 centimetre laceration to the right of his forehead which required six stitches and pain to his back which caused an exacerbation of a pre-existing chronic back injury.  There is no further evidence in relation to Mr Vororath’s condition and there is no victim impact statement from him.  I accept more probably than not, given the nature of the injuries he suffered, that they are likely to have resolved.  I do accept, however, that he is likely to have been left with some ongoing psychological sequelae as a result of this collision, particularly as it would appear he is a professional truck driver, probably having to drive on this stretch of road frequently.  These physical injuries clearly amount to bodily harm but they are not of significant severity, at least not on the evidence before me.
     

1. It is necessary to assess the objective criminality of both offences. I will deal first with the more serious offence, namely offence of dangerous driving causing death. In this regard the guideline decision of the R v Whyte [2002] 55 NSWLR 252 is the leading authority which itself modified the earlier guideline decision of R v Jurisic [1998] 45 NSWLR 209. Whyte’s case defined a typical case of dangerous driving causing death or grievous bodily harm and there are many similarities between that definition and the matter before me. This is a case of a relatively young offender, albeit that he was 24 at the time and is now 26. He has a limited criminal record to which I will refer shortly and whilst he has a traffic record it is not a fact which, of itself, would amount to a circumstance of aggravation. The offence involves the death of a single person who was a stranger to the offender. It is not appropriate when determining whether or not this amounts to a typical case of dangerous driving causing death to take into account the bodily harm suffered by Mr Vororath in circumstances where there will be a separate sentence for that offence which I indicate I will be dealing with by way of some partial accumulation. There was no other person involved in the offender’s vehicle.
    
2. For reasons to which I have in part referred and will refer to again later, there has been genuine remorse.  There is an early plea of guilty for this particular offence which should be accepted as having significant utilitarian value given its timing.  Therefore this is the sort of case which is referred to in Whyte’s case as typical.  As a result, and having regard to the guideline set by the Court of Criminal Appeal in Whyte’s case, I accept that a fulltime custodial sentence will usually be appropriate unless there is a low level of moral culpability.  The level of moral culpability in this case cannot possibly be seen as low.
    
3. In determining that level of moral culpability, there are a number of aggravating factors prescribed by Whyte, some of which are present in the matter before me, which are conceded by the offender.  They are:
    
   1. The number of people put at risk.  There were about ten or more other road users put at risk in the lead up to the collision as a result of the offender’s driving, in addition to Mr Harvey and Mr Vororath, who were either killed or injured as a direct result of the collision;
       
   2. The fact that he drove erratically and aggressively.  I accept that this was the case to which I have already referred.  This involved both driving at speed during some of the preceding journey and also weaving from lane to lane to overtake from time to time during the preceding journey.  This was a journey of 32 kilometres before the collision, which is not insignificant although it is not of great length.
       
4. There are however a number of other matters not present in this sentence which are referred to in the Court of Criminal Appeal in Whyte’s case as aggravating factors.  There was no intoxication nor substance abuse involved in the collision.  There was no competitive driving nor showing off.  There is no evidence that the offender ignored warnings before the collision.  He was not escaping a police pursuit.  There is no evidence that he knowingly was suffering from sleep deprivation nor that he failed to stop after the collision.
    
5. There is one aggravating factor referred to in Whyte’s case in relation to which there is some dispute between the parties, and that is the factor referred to as to the degree of speed.  As I have found there were some occasions when the offender was driving much faster than the speed limit and that would seem to have included the period leading downhill to the Hawkesbury River when he was talking to his friend on a hands free device and in which he himself more or less admitted that he was driving at something at least close to 140 kilometres per hour.  However there were other times when he was driving at below the speed limit in the period leading up to the collision.  It also included the fact that he was driving at about 123 kilometres per hour when he drove up behind Mr Harvey immediately before the collision, which is driving at speed. But this aggravating factor requires an assessment of the degree of speed.  That is only just a little more than 10 kilometres per hour above the posted speed limit.  Overall, whilst I accept that at times he was driving at excessive speed and this is part of the assessment of his erratic or aggressive driving in the lead up to the collision, the actual degree of speed overall is not a factor which I will take into account as an aggravating factor in determining his moral culpability for the offence.
    
6. Taking all those findings into account then, together with the finding that his general manner of driving was not consistently erratic in the 32 kilometres leading up to the collision, I accept the submission made on behalf of the offender that the objective seriousness of this offence is at about the middle of the range in terms of objective seriousness.
    
7. Both because of an assessment of its own facts and, taking into account the guideline judgment of Whyte, the s 5 threshold for imprisonment is clearly reached and only fulltime custody will suffice to deal with the objective criminality involved.
    
8. In addition to the factors already referred to, I accept that there must be an element of general deterrence for both of these offences.  These cases are regrettably frequent and almost always amount to completely avoidable deaths or instances of grievous bodily harm.  The consequences are tragic.  Sentences for such offences should send a clear message that drivers should recognise that the privilege of driving on the road carries responsibilities and, when they fail to honour those responsibilities and cause the death or grievous bodily harm of another person, serious sentences will be the outcome.
    
9. For much the same reasons, the objective seriousness of the second offence is at about the mid-range.  The injuries are not particularly serious.  All of the other factors it seems to me that are relevant in determining the objective seriousness are in fact identical for both offences.
    
10. The statistics for this offence, that is the s 53 offence involving Mr Vororath, as published by the Judicial Commission for sentences in this Court, give rise to only three reported cases. The maximum penalty for the offence is 2 years. This offence is at about the middle of the range and it is an early plea of guilty. The guideline judgment does not apply to this case but some similar considerations are relevant in determining the objective criminality.
     
11. In the circumstances, given the abandonment of responsibility leading up to the collision, the threshold for imprisonment has been reached.  Had it been the only offence for sentence perhaps something less than fulltime custody might be considered, but in the circumstances here only fulltime custody would be appropriate.  In my view there should be some partial accumulation of both of these sentences to take into account the fact of two victims of these two offences.
     
12. I now turn to the subjective case presented on behalf of the offender.  He has written a letter to the Court.  There is a psychiatric report from Dr Nielssen, a number of references from family members and friends and a number of certificates for courses that he has undertaken and certificates he has gained whilst being in custody.
     
13. As I have said he is now 26.  I have already to an extent covered some of the important part of his subjective case, in particular his genuine remorse and contrition for having caused this offence.  He has continued to express that to family members who have visited him, to the author of the Sentencing Assessment Report and to Dr Nielssen.  I accept from Dr Nielssen’s report that he does not have any underlying psychological or mental health conditions.  Before the offence he had been employed as a scaffolder for seven years and was regarded as a hard worker.  He expects to return to that on his release in due course.  He does not have any underlying substance abuse issues that require treatment, although I accept that on his arrest when a blood sample was taken he was found to have a level of THC in his blood.  He admitted to police that he had smoked cannabis the night before the collision and I accept that when he was in the community he engaged in cannabis use.  The THC however, on the evidence that was obtained by the Crown from Dr Perl, was not at a level which played any part in his driving at the time of the collision or immediately beforehand.  He was not under the influence of anything at the time of the collision.  This particular finding of THC in his blood is the subject matter of the second related offence for which I must sentence him in due course.
     
14. Before his arrest he was residing with his fiancée in rented accommodation and his landlord has provided a reference to the Court speaking highly of him.  His mother, her partner and his fiancée remain very supportive of him which, I accept, improves his prospects of rehabilitation on release.  His fiancée has moved in to live with his mother and her partner.  His mother’s partner has, as I understand the reference, re-mortgaged his house in order to pay for his legal fees and both he and his mother remain very supportive of him.
     
15. There are references from both his mother, her partner, his fiancée and other friends or those with whom he has been associated.  I accept that on the whole he is a good person for whom this is a tragically serious lapse of judgment.  When he is released he will return to live at his mother’s residence on the Central Coast.  His family have visited him in custody every weekend since his arrest and his mother and fiancée were present in Court every day during the trial to provide support.
     
16. His mother’s letter to the Court, in my view, provides some useful insight into the character of the offender and in particular I accept her comment that she perceives him to have learned a very significant lesson as a result of this offence, albeit she is of the view that it is a seriously tragic circumstance that it took the death of another person for him to learn this lesson.
     
17. He is prepared to undertake a safe driving course on his release from prison and he has expressed not only his genuine remorse and contrition and insight into the impact of his driving on the family of Mr Harvey, but also a desire to talk to other young drivers once he is released to try to make them understand the potential consequences of such poor driving.
     
18. It appears to me that he has grown up considerably since his imprisonment, but I can only echo his mother’s comment that it is a tragic shame that it took the death of another person for this to occur.
     
19. His mother and her partner run two businesses on the Central Coast and are able to provide the offender with employment on his release, which I accept he will likely undertake.  He will have a period of licence disqualification following his release which will probably make it difficult for him to work as a scaffolder for a period of time, but nonetheless there will be work available to him which I accept also assists his prospects of rehabilitation.
     
20. As I said previously he has some criminal record but it is not significant and not for anything as serious as the matter before me.  There is also a traffic record.  It does not operate as an aggravating factor but I take it into account.  The majority of matters have involved speeding, although most of them have been at a relatively low level. There is one PCA, a special alcohol which I accept was because he was on provisional license.  He has had points disqualification of his licence twice.  As I have said the traffic record does not assist him but does not operate as an aggravating factor.
     
21. Since being in custody he has undertaken a number of useful courses and there are certificates before the Court to that effect.  He is working within the prison system and his CSI overseer has provided a positive review to Community Corrections for the Sentencing Assessment Report.  He is found to have a strong work ethic and overall attitude.  Overall I accept that the offender’s prospects of rehabilitation are very good.  His actuarial assessment of reoffending undertaken by Community Corrections is medium low.  I assess his prospects of rehabilitation as good and his risk of actual reoffending as relatively low.
     
22. I then turn to the relevant sentences.  I have concluded that absent the plea of guilty, the relevant sentence for count 2 would be an overall sentence of 4 years.  Reducing that by 12 months gives rise to an overall sentence of 3 years.  There are some special circumstances including that this is his first time in custody and the need for him to return to the community as soon as possible to continue his rehabilitation.  On the finding of special circumstances I will set a non-parole period of 21 months for that offence.
     
23. For the second offence, in my view the relevant sentence, without taking into account the plea of guilty is 12 months which I will reduce by 3 months, therefore giving rise to a sentence of 9 months.
     
24. As I have said, there should be some partial accumulation to reflect the fact that there are two victims.  I will overlap the two sentences by 6 months.
     
25. Overall then the sentence will be one of 3 ½  years and the sentences are as follows:
     
    1. For both offences he is convicted.  For count 3 he is sentenced to a term of imprisonment of 9 months commencing 9 March 2018 expiring 8 December 2018.  I decline to fix a non-parole period because this will be part of a longer overall non-parole period.
        
    2. For count 2 he is sentenced to a non-parole period of 21 months commencing 9 September 2018 expiring 8 June 2020 with parole thereafter of 15 months commencing 9 June 2020 expiring 8 September 2021 giving rise to an overall term of imprisonment of three years commencing 9 September 2018 expiring 8 September 2021.
        
    3. Re s 166 matters, sequence 2 and 8 backup offences are withdrawn and dismissed. Sequence 4 and 10 related offences convicted but pursuant to s 10A of the Crimes (Sentencing Procedure) Act no further order is necessary. For counts 2 and 3 periods of disqualification are required. Because this is a second offence, following the special range PCA offence in 2014, the mandatory period of disqualification is 5 years with the minimum period of disqualification being 2 years. Both the nature of the offending and the fact of some previous traffic record disentitles the offender, in my view, to the fixing of the minimum period of 2 year disqualification. But disqualification periods are not meant to amount to punishment but rather to reflect the need to protect other drivers on the road for as long as is necessary in the circumstances, given the nature of the offending and the circumstances of a traffic record. In those circumstances I propose a disqualification period of 3 years which will attach to both offences and I will order them as concurrent disqualification periods.
        
    4. Therefore for counts 2 and 3, addition to the orders that I have already made, count 2 should say disqualified from driving or obtaining a vehicle for a period of 3 years.  For count 3 equally it should say disqualified from holding or obtaining a license for a period of 3 years.  I note each of the disqualifications to be concurrent with the other.
        
    5. For the 166 matters sequence 10, drive with illicit drugs, the automatic period of disqualification is 12 months.  The minimum period of disqualification is 6 months.  That is a matter which in my view is relatively minor both in its own terms and in the way in which this offence was in fact committed, given the evidence that the illicit drug did not affect his driving that day or any other time.  In those circumstances it is appropriate that the minimum disqualification of 6 months be applied.  Again I will order therefore for sequence 10 that he be disqualified from holding or obtaining license for a period of 6 months.  That disqualification to be concurrent with the other two periods of disqualification.
        

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Decision last updated: 02 March 2020