R v Marc Leopold Streel

The sentence hearing

1. The sentence hearing took place on 7 February 2018. The Crown Sentence Summary became Ex A, and included a Statement of Agreed Facts as summarised above, together with the traffic record report of the offender. He was first licensed in 1980. He was born on 12 March 1961 and is now aged 56 years. He has had 11 low to medium speeding offences, one negligent driving and one not wear seatbelt offence over a period of 37 years, all of which were dealt with by traffic infringement notices. He has no prior criminal history.
2. Exhibit B was a Pre-Sentence Report under the hand of Michael Ovey dated 6 December 2017. That report noted the family/social circumstances of the offender. He moved to the Rainbow Flat area after his de-facto partner of 20 years passed away in 2011. He had been in continuous employment since completing year 10 at high school and was currently semi-retired. Under the heading "Factors related to offending", the offender reported that he was a social drinker and it was his normal practice to have three schooners of beer over several hours when he regularly attended Hallidays Point Tavern. The author stated that the offender's friends verified that and considered him to be a responsible social drinker, not known for drinking excessively. The offender reported that on the day of the collision he neglected to account for alcohol purchased for him by others, as thanks for assisting with a handyman job, and he had in fact consumed five schooners of beer.
3. Under the heading "Attitude to offending", the offender expressed contrition for his offending. He was under the care of a psychologist for counselling to assist him to deal with the trauma of the incident and his feelings of responsibility. He stated that he would like to offer the family of the deceased victim apologies, but he was unsure if it was appropriate at the time of his assessment.
4. The offender was assessed as a low risk of re-offending and he had no criminogenic needs identified. He was described by his friends and work associates as a quiet, community minded person, who was willing to assist others through his fund-raising charity work and in practical ways, through his handyman skills. He had expressed empathy for the family of the deceased and accepted responsibility for his actions. It was stated that he was unlikely to benefit from a period of supervision by Community Corrections, and was assessed as suitable for a Community Service Order.
5. Exhibits C to F were Victim Impact Statements. They were read to the court by Tania Maree Finn, a sister of the deceased, Betty Harrison (also read by Tania Finn), Gary Harrison, the deceased's brother, and David Harrison, the son of the deceased. Those statements will be referred to below, however, they were poignant statements of the grief and loss occasioned to the family of the deceased arising from the tragic circumstances of yet another preventable motor vehicle accident on our roads.

The evidence of the offender

1. The offender gave evidence that on 17 January 2017 he had left his home early to drive for one hour to Port Macquarie, where he commenced building work. He finished that work at 2pm, because it was so hot, and then drove to Hallidays Point where he did some grocery shopping and then went to the Hallidays Point Tavern. The offender gave evidence that he regularly consumed beer there between 3 and 5pm, and regularly consumed three or four schooners of beer during that time. On this occasion, when he finished his last drink, the barman had handed him another schooner of beer and told him that someone had bought it for him because of handyman work he had done in the prior week. He sat down and consumed that beer and described it as "not a quick drink".
2. The offender was asked about his disclosure to the police that he had consumed three beers. He said he was not deliberately deceiving police, but that when he was speaking to the police in the aftermath of the accident, he was not in the right frame of mind.
3. The offender was asked about the circumstances of him lighting a cigarette and his evidence was consistent with the Agreed Facts. When the cigarette fell onto his shorts, he had glanced down and he had then heard the passenger side wheels of the vehicle in the gravel. When asked how long he looked down for, he said it was for less than one second. When he looked up, he saw a white guide post in front of the vehicle and he was heading towards it. He pulled the steering wheel of the vehicle to the right and oversteered, causing the back tyre to slide, forcing the vehicle onto the incorrect side of the road.
4. When questioned by police about how many times he had dropped cigarettes whilst driving, he said it had not occurred over a period of five and half years during his ownership of three successive vehicles. When it had occurred previously, the cigarette had never landed on the driver's seat.
5. The offender gave evidence that he was very distraught as a result of these tragic circumstances. He had assisted the investigation and had done everything he possibly could to assist police. The following day he had been referred to a psychologist, who he was still seeing, and intended to continue treatment with.
6. The offender gave evidence that he had been a project manager for 30 years and for the last 20 years had been employed by Coles Supermarkets. Over a 15 year period he had been a project manager building supermarkets all over New South Wales and had habitually travelled between 90,000 and 100,000 kilometres per annum over that time.
7. Following this incident, when his licence was suspended, he retired from work. He still remained active within the community helping pensioners with building work, which friends transported him to.
8. The offender gave evidence that he had wanted to contact the family of the deceased. He was so sorry for what he had done and expressed a wish that it was him who had died rather than the victim, Mr Harrison. He said he grieved for him often, and every day he went past the site of the collision. He said he wished he had met him, as they seemed to have quite a lot in common.
9. In cross-examination, the offender acknowledged that he had heard all of the Victim Impact Statements read to the court, and appreciated the impact caused on the family. He acknowledged a theme of those statements was that people have to be responsible for the choices they make in life.
10. It was put to the offender that he had left the hotel, having consumed five schooners of beer in two hours. In those circumstances, he must have known that that would put him over the drink driving limit. He gave evidence that at the time he did not feel the effect of the alcohol. It was put to him that he must have known the possibility of being over the limit and he said that he should have, but he did not notice at the time.

Other evidence relied on by the offender

1. The offender relied on a report of Duffy Robilliard dated 15 August 2017 (Ex 1). The author of the report, Ms Anita Duffy, took a background history that the offender was born in Belgium, and emigrated with his family to Australia when he was two years of age. He had one younger brother who had pre‑deceased him. He had been exposed to domestic violence between his parents, who had separated when he was 18 or 19 years of age, and his father died soon afterwards. He was close to his mother, who had also passed away.
2. The offender had two children after marrying in 1984. He and his wife separated in 1991, and he met his partner shortly thereafter. They resided in Katoomba and had bought the house at Rainbow Flat as a holiday home. His partner died in 2011 after suffering a terminal illness. Following her death, the offender moved to Rainbow Flat to start a new life. He had renovated the holiday house and settled into the local Taree community, making new friends and participating in community activities.
3. The offender had an excellent work history and had commenced work with Coles in Katoomba as a night packer. He eventually became a project manager, responsible for the refurbishment or construction of new store sites for Coles and Liquorland, a job that took him around New South Wales.
4. Under the heading "Health and Habits", the offender told the author that he had suffered three heart attacks over a four year period, during his employment at Coles. It was stressful and he was overweight. Since moving to Rainbow Flat his health had improved. Following his partner's death he had suffered depression and grief and had seen a psychologist for bereavement counselling in 2012. Following the motor vehicle accident in January 2017, he had resumed therapy with the same psychologist. He had described to the author symptoms associated with Post Traumatic Stress Disorder, including nightmares and flashbacks of the accident, anxiety, paranoia and being hyper-vigilant to threat. The offender had experienced immense benefits from his therapy sessions and intended to continue them for as long as necessary.
5. Under the heading "Drugs and Alcohol", the author was told that the offender's consumption of alcohol was moderate and well controlled. He would generally drink at the tavern on weekends and often caught the courtesy bus rather than drive. Following the accident, he had reduced his visits to the tavern, however he did attend fundraisers there.
6. The offender told the author of the report that he had consumed about four schooners between about 3pm and 5.30pm. He was shouted an extra beer before leaving the hotel. When he left the hotel he felt quite sober and okay. He gave a history consistent with the summary outlined above. The author stated: "He was filled with regret over the behaviour of looking down for the cigarette, which temporarily diverted his attention, with such dire consequences. He has sought counselling and although has felt less depressed, remains very distressed over the accident and its aftermath."
7. Testing and assessment by the psychologist demonstrated a need for treatment, showing elevated results for anxiety and major depression. His score on the Post Traumatic Stress Disorder scale was elevated, but not over the threshold of significance. The author of the report concluded that he remains anxious and depressed in mood as he faces the consequences of his actions. His risk of re-offending was low and he would be best assisted by further counselling sessions with the psychologist who has been treating him.
8. Mr Malcom McEnery, psychologist, provided a report dated 1 February 2018 (Ex 2). His report noted that the offender initially attended his practice on 18 January 2017 and that he has been seen on 10 occasions to date. He first presented as distressed and shocked, and wept regularly through the first and subsequent sessions. He was assessed as suffering extremely severe clinical levels of depression and anxiety and a very high level of psychological distress. His psychologist noted a high level of grief, guilt and remorse about the victim and his family. The treatment had also focussed on minimising the potential of self-harm, accepting the inevitability of the process he was facing and developing coping mechanisms. The treatment has also moved on to evaluating his life and exploring pathways to continue his volunteer work in the community. Mr McEnery opined that the offender has proactively engaged with the process and desires to move positively into the future in ways that will benefit his world.
9. Exhibit 3 was a bundle of references attesting to the good character of the offender, being a man of compassion with a very strong community mind. They also attest to the devastation he has suffered as a result of this tragic incident, and his deep and honest remorse for the incident.
10. Exhibit 4 was the enlarged copy of the scale plan of Blackhead Road where the incident occurred. Exhibit 5 comprised four photographs of the accident site from the police brief, and Ex 6 was a report of Dr Karen Cavanagh, Forensic Consultant dated 18 April 2017, opining that the area of damage to the inner surface of the left leg of the shorts worn by the offender at the time of the accident could have been caused by direct heat, such as contact with a lit cigarette.

Submissions on behalf of the offender

1. Learned Counsel for the offender provided a thorough written outline of submissions on sentence. He outlined the typical case for an offence pursuant to s 52A(1)(c) of the Crimes Act 1900, by reference to the guideline judgment of R v Whyte (2002) NSWCCA 343 as follows: "A typical case A frequently recurring case of an offence under s 52A has the following characteristics. (i) Young offender. (ii) Of good character with no or limited prior convictions (i) Death or permanent injury to a single person. (ii) The victim is a stranger. (iii) No or limited injury to the driver or the driver's intimates. (iv) Genuine remorse. (vii) Plea of guilty of limited utilitarian value. Guideline with respect to custodial sentences A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or midjudgment. Aggravating factors (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic or aggressive driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit. (x) Degree of sleep deprivation. (xi) Failing to stop. Items (iii) to (xi) relate to the moral culpability of an offender. Guideline with respect to length of custodial sentences For offences against s 52A(1) and (3) for the typical case: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. For the aggravated version of each offence under s52A an appropriate increment is required. Other factors, such as the number of victims, will also require an appropriate increment. The guideline focusses attention on the objective circumstances of the offence. The subjective circumstances of the offender will also require consideration."
2. The offender conceded that despite him not being within the "young category", his offending would be classified as the typical case as referred to in Whyte, supra. It was submitted, however, that his offending could be categorised as momentary inattention and misjudgement. An aggravating feature of his manner of driving was driving under the influence of alcohol. That feature would impact upon the offender's moral culpability. It was submitted that he was to be sentenced on a blood alcohol content level of 0.065. Dr Perl, the Clinical Forensic Pharmacologist, opined that at level, all people would exhibit: "Some impairment of at least some driving skills, in particular perceptions, judgment, divided attention skills, lane-keeping skills, visual functions and reaction skills, which would all be impaired."
3. It was submitted that Dr Perl's assessment of the offender's driving impairment was at the lowest end of the range used by her in her reports generally, i.e, some impairment, rising to very substantial impairment. Accordingly, it was respectfully submitted that the degree of intoxication here increases the offender's moral culpability for the offending, but to a limited extent. Further, there was no evidence of the presence of any other aggravating factors listed in the guideline judgment. The offender had travelled 5 kilometres from the tavern to the collision site and intended travelling another 2.8 kilometres to his home. Having regard to all of those factors, it was respectfully submitted that the court would not classify the offender's moral culpability as high, despite the tragic consequences of the collision.
4. In advocating a finding of momentary inattention and misjudgement, the offender submitted that the objective evidence demonstrated that the vehicle travelled in the loose gravel on the left-hand side of the road for approximately 15 metres. Given his speed of 80 kph, that would demonstrate that his eyes were off the road for approximately 0.68 of a second. It was submitted that what occurred thereafter could not be regarded as a slow reaction and that therefore his level of impairment as a result of alcohol was limited. The amount of time his eyes were off the road therefore constituted momentary inattention.
5. The offender further submitted, that the loss of control of the vehicle as the offender steered it back onto the roadway, constituted momentary misjudgement. Based on his evidence that he had not dropped a cigarette in a car that he was driving for a period of in excess of 5 years, it was submitted that it was not something that he could expect to happen.
6. It was submitted, in circumstances where the dangerous driving involved a momentary inattention and momentary misjudgement, the court could appropriately classify the offender's moral culpability as falling towards the lower end of the range, and consequently, as the guideline suggests, consider an alternative sentence to full time gaol.
7. The offender further submitted that the personal circumstances outlined in the report of Ms Duffy (Ex 1), would also be taken into account. He was described as a person who is the first to help those in need, and involved himself in the local community by fundraising activities and had assisted the elderly in his community, without charge, by way of handyman repairs.
8. The offender submitted that there were no aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). Mitigating factors under that section were that the offender had no prior criminal convictions, he was a person of good character, was unlikely to re-offend, he had good prospects of rehabilitation, and that he had expressed immediately remorse at the scene of the accident and had continued to do so. Further he had entered an early plea of guilty, entitling him to 25% utilitarian discount on sentence.
9. The offender submitted that the court could find that an appropriate length of a sentence here was in the range of 18 months, and therefore it was appropriate to have regard to sentencing alternatives to full-time custody for the following reasons: 1. The dangerous driving, including the aggravating blood alcohol factor, occurred in unexpected circumstances of attempting to recover a cigarette that he dropped into the offender's shorts. He had taken his eyes off the road for that purpose for a fraction of a second, a timespan amounting to momentary inattention. His poor steering of the vehicle could be classified as a momentary misjudgement, thus his moral culpability for the offending was low. 2. Dr Perl's opinion that some impairment of some driving skills was at the lower end of the range. There was no evidence that his blood alcohol level impaired his driving, except for his ability to react to an emergency situation. The dangerous driving was confined to a time period of seconds only. 3. Having regard to the guideline judgment, the court would find that he was not driving with a high degree of moral culpability. 4. He had no prior convictions. 5. His plea of guilty entitled him to a 25% discount. 6. He is a person of good character. 7. He was unlikely to re-offend. 8. He had good prospects of rehabilitation.
10. The submissions then set out the alternatives to full-time custody, namely, an Intensive Corrections Order, Home Detention and a Suspended Sentence, if the range was within 18 months. Alternatively, it was submitted that if that submission was rejected, a finding of special circumstances should be made, this being the offender's first time in custody. In respect of the back-up offence on the s 166 Certificate, it was submitted that the court would deal with that by an order pursuant to s 10A of the CSPA, because it was the first offence of that nature in 37 years of driving, and his blood alcohol level had been taken into account as an aggravating factor on sentence.
11. Those submissions were supplemented by oral submissions by Counsel. In assessing the aggravating factor of the blood alcohol reading of 0.065, it was submitted that the characterisation by Dr Perl of "some impairment" was at the lowest level. Here, there was some impairment of some driving skills. There were no other aggravating features relied on. Counsel also emphasised that the Agreed Facts supported a finding of momentary inattention in that the vehicle was off to the left-side of the roadway for less than one second. Reaction to that needed to occur immediately and there was no gross delay in reaction. Rather, it was a combination of the near-side tyre sliding and the oversteering which led to the offender's loss of control of the vehicle. It was submitted that that over-correction combined with his blood alcohol level amounted to a momentary misjudgement. Counsel conceded that the s 5 threshold had been crossed here, but that given the range, there are alternatives to full time custody.

Submissions of the Crown

1. The Crown also relied on detailed and thorough outline of submissions. There was no issue that the guideline judgment of Whyte, supra, as outlined the offender's submissions, applied here, and the Crown submitted that this matter had many characteristics of the guideline judgment. In that guideline judgment, the Chief Justice had referred to an earlier decision of R v Jurisic (1998) 45 NSWLR 209, in which the following guideline had been given: "With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional."
2. The Crown also referred to the Court of Criminal Appeal decision R v Berg [2004] NSWCCA 300, where the court said: "The factors in the list set out in Whyte, as indicative of a typical case, do not operate as a checklist, the presence or absence of characteristics having some mathematical relationship with the sentence to be imposed. They merely describe the typical case and were not intended to circumscribe the sentencing judge's discretion …"
3. The Crown submitted that the sentence must reflect the seriousness of the offending and be proportional to the criminality involved in the offence. It was important to have regard to the objective gravity of the offence and a clear finding should be made on the continuum of criminality where the moral culpability of the offender lies. As held in R v Whyte, supra, the offender is assessed against the circumstances of the driving.
4. The Crown submitted that the criminality in the present matter is the offender taking his eyes off the roadway for a short time, crossing the fog line on the left and entering the gravel shoulder before sharply over-correcting and travelling into the oncoming lane of traffic. At that time, he was under the influence of alcohol.
5. The Crown properly agreed that at the precise time of his commencement of leaving the roadway after the cigarette had fallen into his shorts, the driving of the offender could be described as momentary inattention. The Crown submitted that a non-custodial sentence for an offence against s 52A is invariably confined to cases involving momentary inattention or misjudgement. Here, the presence of alcohol distinguished the present matter from many of the momentary inattention matters that had previously come before the appellate court, and the Crown submitted that the impairment from alcohol removed the matter from the low level of moral culpability range discussed in Whyte, and that the impairment caused by his consumption of alcohol was a relevant factor in causing the offender to over-correct and travel into the oncoming lane of traffic.
6. The Crown submitted that an aggravating factor pursuant to s 21A(2) of the CSPA, was that the offence was committed without regard for public safety, however, the Crown accepted that that was inherent in the nature of the charge. The Crown accepted the mitigating features relied on by the offender here, pursuant to s 21A(3) in his submissions, including that he was entitled to a discount of 25%.
7. The Crown also provided statistics produced by the Judicial Commission of New South Wales, the various categories of offenders pursuant to s 52A(1). It highlighted the limitations that the court should place on relying on such statistics referred to in recent appellate authorities. The Crown also provided a table of 17 sentencing decisions for offences pursuant to s 52A, however, each case must be assessed on its own facts.
8. In oral submissions, the Crown properly conceded that it did not cavil with much of the offender's submissions, except the effect of the offender's blood alcohol level as an aggravating feature in this matter, affecting the assessment of moral culpability of the offender to be on a lower range of moral culpability. It was emphasised that the offender left the tavern on the day in question having consumed five schooners of beer within a two hour period (and therefore, consistent with his cross-examination, must have known that his ability to drive the vehicle would be impaired).

Determination

1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. Except for being a young offender, the offending here meets the typical case described in the guideline judgment of R v Whyte, supra. Further, in assessing the objective seriousness of the offending, and the moral culpability of the offender, the aggravating factor here is the blood alcohol reading of the offender of 0.065 at the time of the offending. I accept the opinion of Dr Perl, that at the time of the driving, the offender was under the influence of alcohol to the extent that there would have been some impairment of his driving ability which would have contributed to the collision. That impairment would affect driving skills including perceptions, judgment, divided attention skills, visual functions and reaction skills (particularly emergency reaction skills).
3. I therefore accept that the offender's conduct in taking his eyes off the road to search for the cigarette that had fallen onto his shorts for a very short period of time of less than one second in the circumstances, amounted to momentary inattention. I do not accept, however, that what occurred thereafter could be characterised as momentary misjudgement. The court has to take into account that the offender had consumed five schooners of beer in the period of approximately 2 hours. He must have known that when he left the tavern. His subsequent conduct of reporting to police on more than one occasion, that he had consumed three beers, may have been either caused by his emotional reaction to the consequences of his driving, or, it was deliberately exculpatory. Whether it could be so characterised is immaterial. His driving with that blood alcohol reading is an aggravating factor which means that his moral culpability was above the lower end of the range.
4. I find the objective seriousness of the offending here was below the mid-range of objective seriousness for an offence pursuant to s 52A, given the absence of all other aggravating factors, however, it was, given his blood alcohol reading, at a mid-point between the lower range and the mid-range. His moral culpability for the offending was therefore significantly above the lowest level.
5. I am mindful that the absence of other aggravating factors does not amount to a mitigating feature, or make the offending any less serious - see Faehringer v R [2017] NSWCCA 248. I have also had regard to the maximum sentence of 10 years imprisonment as a guidepost in the sentencing process.
6. General deterrence is also important in the sentencing here, notwithstanding the guideline judgment. A clear message needs to be sent to the community that people who drink and drive, causing tragic circumstances to other members of the community, will be dealt with by the courts in accordance with the guideline judgment by way of lengthy terms of imprisonment. Specific deterrence is also important, however, here, for the reasons outlined below, the court acknowledges that the offender has been extremely remorseful and is unlikely to re-offend.
7. There are significant subjective factors which favour the offender here. He is a 56 year old man with no criminal antecedents. Whilst he has some history of traffic infringements, he has worked in a capacity that has seen him amass many hundreds of thousands of kilometres on the roads of this State over a 15 year period in his prior employment.
8. The offender is entitled to a 25% utilitarian discount on sentence. He has also expressed genuine remorse which the court accepts for the tragic consequences of his conduct, namely, the death of Mr Harrison. He is therefore entitled to have that remorse taken into account, together with the assessment of him of a low risk of him re-offending.
9. The court also has regard to the Victim Impact Statements read at the Sentence Hearing by the relatives of the deceased. They were testament to the grief and suffering of members of our community when death occurs as a result of dangerous driving and particularly, dangerous driving which is alcohol related. As stated above, those statements were a poignant statement of the massive impact that such offences have on the community generally, and the family and relatives of the victims of such offences. In listening to those statements, one could not help but be moved by them. It is a matter of common sense that this offence has had a substantial impact on the family of Mr Harrison. I have therefore taken those statements into account, but I make it clear that I have done so not to aggravate the offender's culpability.
10. Finally, the offender submitted that special circumstances should be found pursuant to s 44 of the CSPA, given that this would be the first time the offender was sentenced to a custodial sentence, if no alternative was available. The Crown did not demur from this submission. In the event that there was no alternative to a full time custodial sentence, I would find special circumstances here, not only on the basis that it was his first time in custody, but also his need to continue his psychological treatment to ensure his return to the community as a valued member thereof.

The sentence

1. Having regard to the objects and purposes of sentencing set out above, and to the guideline judgment in Whyte, I find that the offender's offending pursuant to s 52A did not amount to mere momentary inattention and misjudgement. Rather, he was momentarily inattentive to the manner of his driving when he looked down for the cigarette on his shorts and drove his vehicle beyond the fog line on the left-hand side of the carriageway and onto the gravel shoulder of the road for a short distance. What occurred thereafter could not be described as momentary misjudgement. Rather, due to his impaired driving skills, he was unable to react appropriately to the situation that confronted him, by driving the vehicle back onto its correct side of the roadway and avoiding colliding with the guide post. Rather, he oversteered, losing control of the vehicle, and causing it to go onto the incorrect side of the roadway and collide with the motorcycle driven by the deceased, Mr Harrison.
2. Learned Counsel for the offender has conceded that the s 5 threshold has been crossed and I so find. Having considered all possible alternatives, no penalty other than imprisonment is appropriate. Having regard to the guideline judgment, the aggravating factor of his blood alcohol reading, the mitigating factors involved, including his prior good record, his remorse and his 25% utilitarian discount on sentence resulting from his early plea of guilty, I intend to impose a sentence of full time custody of 2 years and 3 months. I further find special circumstances as outlined above, given that this will be first time in custody, and his need for ongoing psychological treatment to ensure his return as a valued member of his community. I therefore intend to vary the ratio between the head sentence and the non-parole period to impose a non-parole period of 14 months imprisonment.

Orders

1. I therefore make the following orders: 1. You are convicted of the offence pursuant to s 52A(1)(c) of the Crimes Act 1900 of dangerous driving occasioning death. 2. I sentence you to a Non-Parole Period of 14 months imprisonment to date from 16 February 2018 and to expire on 15 April 2019. 3. I sentence you to a balance of term of imprisonment of 13 months from 16 April 2019 and expiring on 15 May 2020. 4. Your parole eligibility date will be 15 April 2019. 5. On the back-up charge on the s 166 Certificate, namely the offence comprising lower range PCA, I proceed pursuant to s 10A of the CSPA, given that it is a first offence in 37 years of driving, and that your blood alcohol content has been taken into account as an aggravating factor on sentence in respect of the offence pursuant to 52A of the Crimes Act 1900. You are therefore convicted of that offence but no further penalty is imposed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2018