R v Minna

sentence 1HIS HONOUR: This is a tragic case. The Offender, Mattia Minna, a young man from Genoa, Italy visiting Australia as a tourist, appears before me today for sentence having adhered to his plea of guilty to an offence against the provisions of s 52A(1)(c) of the Crimes Act 1900 in that he on 9 June 2012 at Euston in the State of New South Wales did drive a vehicle, to wit YEO 747 Victoria when it was involved in an impact occasioning the death of Carollynne Olivie, and at the time of impact the said Mattia Minna was driving the vehicle in a manner dangerous to other persons. 2He initially pleaded guilty before the Local Court Balranald on 7 November 2012. He was then committed for sentence before this Court sitting at Griffith. The matter, for various reasons, none of which were the fault of the Offender, did not proceed on those allocated sittings. Accordingly, the matter was listed before me at the commencement of these sittings and the sentence hearing allocated for last Friday, 22 March 2013. The sentence hearing then proceeded but submissions did not conclude until after 4pm. Accordingly, I continued the Offender's bail and adjourned the matter for conclusion and sentence today. 3In these remarks I will refer to Carollynne Olivie as the deceased. I do so for ease of reference rather than any disrespect or lack of personality and identity. She was no doubt an enthusiastic and energetic young lady with much to give this world. She was loved by many and the loss and grief suffered by her family and friends must be unfathomable. I acknowledge her passing and convey the Court's sympathy and respects to her and all those who loved and cared for her. 4The particulars of driving the vehicle in a manner dangerous to which the plea has been entered are twofold: the swerving manoeuvre (apparently the only evidence of which is that of the Offender who stated to Police in interview that he did so to avoid a kangaroo), and a blood alcohol reading of 0.137 grams of alcohol per 100 millilitres of blood. 5The fateful incident occurred in the early hours of the morning of 9 June 2012 when a group of five young people were travelling home to Robinvale from Mildura after a night of celebration. It was a journey of about eighty kilometres. The Offender was the driver. Of the four others, the deceased was sitting in the backseat behind the front passenger. She was not wearing a seatbelt. The rest were. They were all close friends. The celebration was to mark one of them commencing his long journey from Australia to make his way back to his home in France the next day. 6As the vehicle approached the intersection of Morris Road and the Sturt Highway just west of Euston, New South Wales, the Offender lost control of the vehicle. He swerved to avoid a kangaroo. He overcorrected. The vehicle rolled at least three times, and their friend, the deceased, lost her life; mercifully almost instantly due to injuries suffered when she was thrown from the vehicle. The lives of all involved, including the Offender, have no doubt been scarred forever, although their grief pales against the loss suffered by her family. 7This is a case where yet again individuals in our community ignore the risks attaching to driving motor vehicles dangerously and after imbibing in excessive amounts of alcohol despite the constant efforts of law enforcement agencies and the legislature to try and curb such criminal misconduct. It is against this background that I must sentence the Offender. 8The offence carries a maximum penalty of ten years imprisonment. There is no statutory standard non-parole period. The maximum, however, confirms the seriousness of the offence and is reserved for those cases which can be properly characterised as falling within the worst category. The punishment must fit the crime (see R v Veen (No 2) (1988) 164 CLR 465). I take this and other established sentencing practices, both at common law and under the legislation, including reference to those matters identified in ss 3A, 21A, 22, 22A and 23 of the Act where applicable, into account. That is, of course, the Crimes (Sentencing Procedure) Act 1999. This also includes, of course, the application of a process of intuitive or instinctive synthesis as also identified in cases such as Markarian v R (2005) 228 CLR 357 at [51]. 9I have taken all these matters into account, some stated and some not. They all form the basis for my decision in the exercise of my discretion as to sentence. 10The Offender has been on bail since the day of the offence, 9 June 2012. He has therefore not served any time in custody other than the short period during arrest, interview and charging. For reasons I will later elaborate upon I have no doubt this would have been both a gruelling and terrifying experience for this young man. Furthermore, I also consider the time spent in Australia awaiting finality of these proceedings has of itself resulted in additional hardship. 11I have received a considerable amount of material from both Crown and defence. These include the Crown sentencing bundle which includes the agreed facts, victim impact statement, and a Corrections Victoria presentence report. From the defence I have received a letter from the mother of the deceased, statements from two of the passengers in the vehicle (extracted from the Crown brief), and two Australian research papers regarding motor vehicle accidents caused by roaming fauna. I have also benefited from comprehensive written submissions from Crown and defence, each of which has been supplemented by further oral submissions. I have also heard oral evidence from the Offender, the poignancy of which cannot be overstated. 12The focus of submissions has properly been directed to not whether a custodial sentence is imposed, but whether upon the imposition of such sentence it be directed to be served in an alternative manner to fulltime imprisonment. The parties agree that this is only possible should an overall sentence of two years imprisonment or less be imposed. 13I have already touched on the facts. I will now expand upon them as are contained in the agreed statement of facts, and for this purpose I will read onto the record paras 1, 2, 3 and 4. 14Sometime before 9pm on Friday, 8 June 2012, Mattia Minna, drove his white Holden Commodore, Victorian registration YEO 747, from his home in Robinvale, Victoria, to Mildura. Also present in the vehicle were his friends and workmates; Max Fromentou(?), Mahzid Yahi, Kevin Dehenine(?) and Carollynne Olivie. Whilst in Mildura the group attended a number of licensed premises. The Offender and each of the other occupants of the vehicle consumed alcohol throughout the night. 15When the group returned to the car for the return trip to Robinvale the Offender got into the driver's seat. Max sat in the front passenger seat, Kevin sat in the middle of the rear seat next to his girlfriend, the deceased, who occupied the rear seat on the passenger side. Mahzid sat in the seat behind the driver. Mahzid and Kevin put their seatbelts on. Kevin noted that the deceased did not put her seatbelt on. The back seat passengers were all talking. Mahzid was also sending text messages to a friend throughout the journey. None of the passengers noted anything unusual about the Offender's manner of driving throughout the journey. 16As the vehicle was approaching the intersection of Morris Road and the Sturt Highway about one kilometre west of the township of Euston the Offender lost control of the vehicle causing it to cross onto the incorrect side of the road. In an attempt to avoid coming off the roadway completely the Offender swerved to the left causing the vehicle to become airborne and land on its roof. Whilst the vehicle was airborne the deceased was ejected from the vehicle, landing on the roadway suffering fatal head injuries on impact. Each of the other passengers then exited the car which was on its roof on the roadway. Kevin immediately checked on the deceased and noted that she had suffered significant injuries to the head and face and was not breathing. 17The Offender then ran to Euston Police Station to seek help. By the time he reached Euston Police Station, Police, together with other emergency services, had already been notified of the accident and were responding. The Offender then commenced to run back to the accident scene. He was assisted by rural fire brigade staff who were responding to the accident, and was conveyed back to the scene. 18Later the Offender spoke with Police and subsequent mandatory drug and alcohol testing revealed he had a blood alcohol reading of 0.137 grams of alcohol per 100 millilitres of blood. This falls in the higher end of midrange under the New South Wales drink driving legislation and is just under the high range limit (0.15 grams of alcohol per 100 millilitres of blood) which, if reached or exceeded, would have resulted in a far more serious "aggravated" rendition of this offence. After compliance with all proper protocols by arresting Police the Offender participated in an electronically recorded interview with suspected person, that is an ERISP. 19I return to the facts and [7] and [8]. 20The Offender participated in the ERISP again with the assistance of the interpreter. The Offender admitted being the driver of the vehicle YEO 747 Victoria at the time of the collision. The Offender said that a kangaroo ran into his path so he turned the steering wheel to avoid hitting it as he wanted to sell the car and had only just undertaken a number of repairs. The Offender stated that he lost control of the vehicle and the car flipped. When the car stopped he was still seated in the driver's seat upside down. The Offender stated that he got out of the vehicle and discovered that everyone else was out of the car and that the deceased was not breathing. 21When asked his level of intoxication the Offender stated that on a scale of one to ten he was about five out of ten (one being sober and ten being very heavily intoxicated). The crime scene examination conducted by the Broken Hill Forensic Services Group revealed that the vehicle had rolled at least three times. 22They were all close friends brought together from their various overseas countries and homes by a shared youthful love of travel, adventure, and the outdoors. They were sharing, as so many young people of more fortunate backgrounds are able to do, a rite of passage, travel, adventure, and work in a friendly foreign country. All were international travellers visiting and living in the local area. It was a night of celebration for a friend on his way home. The usual practice of selecting a nominated driver was not followed. This Offender tragically took the driver's seat and embarked on the long drive home. They were nearly there when the incident and tragic results occurred. 23The Offender cooperated with Police from the outset. He admitted being the driver and expanded on the circumstances of the incident. He participated in an ERISP. He made full admissions and gave an account that he adheres to in these sentence proceedings. There is no dispute and, indeed, no submission is put to the contrary that this Offender is facing the imposition of a fulltime custodial sentence. This, of course, reflects as I say the objective seriousness of the offence together with the long list or history of binding authorities, some of which that I will refer to shortly. 24The Offender has pleaded guilty at the earliest opportunity. I therefore expressly acknowledge the utilitarian value of that plea and I take it into account. In so doing I acknowledge the principles enunciated in R v Borkowski (2009) 195 A Crim R 1. It is properly conceded by the Crown that the Offender is entitled to the maximum discount of twenty-five per cent from the sentence I would have otherwise ordinarily imposed. 25By entering the plea this Offender has saved witnesses, now all from overseas, from having to give evidence in no doubt in excruciating circumstances. Furthermore, there is the related and, dare I say, significant cost savings in not having to proceed by way of trial. It is against this background that I consider the guilty plea also provides evidence of contrition. This is a mitigating factor and favours the Offender. From a pragmatic point of view the plea of guilty is also evidence of remorse. 26Furthermore, the early plea entitles me to reduce the sentence to lower than the suggested range. Please see R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Thomas [2007] NSWCCA 269. Please see [161] and [26] respectively. 27The guideline judgments of R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252 apply to offences against s 52A of the Crimes Act 1900, that is, dangerous driving occasioning death or grievous bodily harm. 28The guideline judgments indicate that an assessment of the Offender's moral culpability is relevant to determining whether a custodial sentence should be imposed, as well as to determining the appropriate length of sentence. See Whyte at [214] and [229]. 29It should be noted that the Court in Whyte was careful not to be unduly prescriptive in setting out a range of sentences of a "typical case". The Court made no reference to the upper limits of such a sentence but endeavoured to indicate a lower limit for a typical case below which a sentence would not generally be appropriate. At [229] the Court said: "The guideline for offences against s 52A(1) and (3) for the typical case identified above should be: Where the Offender's moral culpability is high a fulltime 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". 30It was also stated at [214]: "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 misjudgement". 31It is the "central inquiry with regard to the objective circumstances of the particular offence". Please see R v Errington (2005) 157 A Crim R 553 at [26]. 32In Jurisic, Spigelman CJ as he then was, in setting out the guidelines as to sentencing stated at p 231 para E: "A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgement". 33I am also assisted by the observations of Simpson J in R v Khatter [2000] NSWCCA 32: "Offences under s 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence, and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability". 34In R v Berg [2004] NSWCCA 300 Howie J stated at [21]: "But 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 in the way the applicant suggests. If the applicant does not fall within a typical case for whatever reason, the guideline is of less assistance than it might otherwise have been. The applicant fell outside the typical case of an Offender to be sentenced for dangerous driving for a number of reasons and, therefore, the guideline had less influence upon the exercise of his Honour's sentencing discretion". 35In R v Pisciuneri [2007] NSWCCA 265 it was confirmed at [75]: "A non custodial sentence for an offence against s 52A is almost invariably confined to cases involving momentary inattention or misjudgement". 36That, of course, adopts that which was said in R v Whyte and R v Jurisic. In R v Whyte a number of typical characteristics were identified in offences such as these. They included: (i) Young Offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value. 37In the present case the Offender does not conform to the "typical case" in two respects. The victim was not a stranger; indeed, she was a close friend, and the plea of guilty does have considerable utilitarian value. That judgment also recited a number of further aggravating factors which are also to be considered. These include: (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. 38Items (iii) through to (xi) have been identified as relating to the moral culpability of the Offender. 39As to these aspects there are only three that I consider relevant. These are (ii), (iv) and (vii). There were, of course, five people in the vehicle including the Offender. The journey was a long one, some 80 kilometres from Mildura to Robinvale. Notably the Offender was almost there. There were no complaints or concerns held or voiced by any of the occupants of the vehicle during the journey. This is corroborated by the statements from two of the passengers tendered by the defence. There is on the other hand significant concern attaching to the blood alcohol reading. It is, as I say, at the high end of the mid range. There were, as I say, another four people put at risk and aside from the deceased, and, of course, other members of the public, other road users. 40There was a clear abandonment of responsibility by the Offender when he chose to drive the vehicle after an evening of drinking and celebration. When spoken to by Police after the incident they noted his affectation although presumably by smell alone rather than by any overt behaviour. The level of intoxication was also assessed by the Offender himself as being five on a scale of one to ten. 41The defence submits some exception or allowance ought be made for a "foreign" driver not ensuring one of his passengers was wearing a seatbelt. The deceased was not wearing a seatbelt. Conduct of the victim has been considered by the New South Wales Court of Criminal Appeal in R v Dutton [2005] NSWCCA 248 where at [35] the Court considered it inappropriate to regard the conduct of a victim as mitigating the driver's criminal behaviour by putting the public and passengers at risk. In light of this authority I do not accept this submission. 42Submission is also made by the defence to consider in a rather circumspect way the intervention and thus possible contributing cause emanating from the swerve to avoid a kangaroo. I am prepared to accept that there was a kangaroo and that the Offender attempted to avoid it and that he then lost control of the vehicle. This was the version he gave to Police on the night and he said that he did so because the vehicle was in good repair and proposed to be sold. He thus did not want to damage it. This is entirely understandable. The Offender, however, has been in Australia for some considerable time and was experienced in driving in this country. Indeed, for example, he had driven from Mildura to Darwin on one occasion. He had also lived and driven in the Robinvale/Mildura area for some considerable time. He would have been aware of the dangers of fauna at night. 43He would also be aware of the prohibition against driving motor vehicles with the prescribed concentration of alcohol in his blood. He was starkly reminded of this earlier that evening because he was subject to a random breath test before the celebrations began; that very night. When the incident occurred, kangaroo or not, his ability to control the vehicle would have been considerably and adversely affected by the alcohol level in his blood. That to me is the most serious feature of his driving in a manner dangerous. 44The decision to drive a vehicle whilst affected by alcohol, the degree of which is indicated by the subsequent high reading, and embark on such a long journey with a group of similarly affected, if not drunken friends, are also indicators of the seriousness of this offence. 45These are some of the many factors to be considered. Expressions such as "abandonment of responsibility" and "high moral culpability" are necessarily flexible expressions and hinge on a wide range of factors. In my view this case does not fall within the category of "typical case" described in Whyte. There are variances. The aggravating factors listed are illustrative, not definitive of what is capable of constituting "abandoning responsibility", and the sentencing guideline is to be treated as a reference point rather than a starting point. Again please see R v Errington at [36] and [50]. In R v Nguyen [2008] NSWCCA 113 the Court stated at [48] reference to the head sentence of three years in Whyte was not prescriptive in all the circumstances and whilst not being exceptional this is a case that falls within the lower range of moral culpability. 46There is no dispute as I say, and no submission to the contrary, that the Offender faces the imposition of a fulltime custodial sentence. As I have said, the tension is whether I am able to impose a sentence that may be served by way of alternative to fulltime imprisonment. 47I must in this exercise be mindful of the reasonable proportionality between the sentence and the circumstances of the crime. The relative importance of the objective facts and the subjective features of every case will vary. Due weight must be given to the objective circumstances. Again I refer to R v Veen (No 2), Mill (1988) 166 CLR 59, and Rushby (1977) 1 NSWLR 594. 48Turning to s 21A of the Crimes (Sentencing Procedure) Act 1999. This section provides I must take into account the matters referred to in subs (2) "aggravating factors", and subs (3) "mitigating factors" together with any other objective or subjective factors that affect the relative seriousness of the offence together with any other matters required and/or permitted to be taken into account by the Court. 49As confirmed by the High Court in Muldrock (2011) 244 CLR 120 at [18] this includes the preservation of the entire body of judicially developed sentencing principles which constitute "law" for the purposes of s 21A(1) and (4). I am therefore permitted to take into account all factors under the common law that are relevant to the determination of sentence. In consideration of this matter I have done so, whether expressly stated or not. 50I also take into account those factors in ss (2) and (3), aggravating and mitigating factors. I note, without endeavouring to cover the field, the following: 51As to ss (2) Aggravating, the Crown concedes and I agree there are none. There are other matters but they constitute elements of the offence and I therefore do not take them into account. 52As to ss (3) Mitigating, the Crown concedes and I find: (e) the Offender does not have any record of previous convictions (f) the Offender is a person of good character (k) the Offender entered a plea of guilty. 53As to this latter subparagraph it is noted the plea is also acknowledged and relevant under s 22 of the Crimes (Sentencing Procedure) Act 1999. 54It is submitted by the defence and I accept, the following mitigatory factors are also made out on balance of probabilities. These include: (g) the Offender is unlikely to re-offend. (h) the Offender has good prospects of rehabilitation, both by reason of his age and his otherwise excellent character. 55As to (g) and (h) I am of the view this young man has sufficient moral compass and integrity to be completely rehabilitated. Furthermore: (i) the Offender has shown remorse both by providing evidence that he has accepted full responsibility for his actions and acknowledging the grievous loss arising from the death of Ms Olivie. 56He, of course, also expresses remorse and sorrow to the family of the deceased and in his evidence before me. He pleaded guilty from the outset and made full admissions to Police. My view is also bolstered by the statement of one of the passengers, Mr Yahi, as to the Offender in his grief, beseeching him to kill him. 57As indicated, without being comprehensive, these are the primary mitigatory factors I accept. 58I confirm I have also taken into account the provisions of ss (4) and (5) of s 21A. 59I take into account all the circumstances of the offence and I am ensuring in so doing the Offender is not punished for an offence for which he has not been convicted. See The Queen v Di Simoni (1981) 147 CLR 383. In so doing I am entitled to consider all the conduct of the Offender including those matters which may aggravate the offence, but I do not take into account those circumstances of aggravation which would have otherwise warranted conviction for a more serious offence. 60The Offender has a nil record both here in Australia and from his home in Italy. He is a young man of excellent character in all respects. 61I have considered relevant Judicial Commission statistics in relation to offences of this nature. It appears as though forty-seven per cent of all Offenders receive sentences of fulltime imprisonment. Of those fitting the profile of this Offender, fifty-four per cent received sentences of fulltime custody. The range of sentences was between two years and six years. Relevant periods of non-parole range between twelve months and forty-two months. Clearly there is a wide range of variables and sentences that must be applied. As has been acknowledged there is no dispute he must receive a gaol sentence. 62Statistics are of limited assistance. In accordance with the judgment of the High Court in Hili and Jones v The Queen (2010) 242 CLR 520 at [54] which adopted the comments of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303] - [305], and as later confirmed in Holahan v R [2012] NSWCCA 105, statistics assist by establishing the range of sentences imposed. They do not confirm that range as a correct range or that the upper and lower limits are correct. The material does however provide guidance and a yardstick against which I can apply the circumstances of this offence in the sentencing process. The statistics are a blunt tool as they tell me nothing about the circumstances of the offence or the Offender. 63I have received two further statements; one as a victim impact statement within the Crown bundle, exhibit A. It is from the aunt of the deceased. She is the sister of the father. The family live in Belgium. The parents appear separated. The deceased also has an older brother. As the family is overseas I think it is appropriate to read this statement onto the record. The aunty, Ms Lilian Olivie writes as follows: "My brother Daniel loved his children and only lived for them. He was very sad when his daughter announced she was leaving for a year in Australia. He loved her so much, he is a real daddy. He would often take his daughter into his arms to give her a hug. The happiness of his children is essential for him and that is why he let Carollynne go to Australia. Daniel is divorced. He has a son, Emanuel, who is twenty-six years old. Emanuel has always been very protective of his little sister. He loved his sister enormously and showed great courage by undertaking to solve a lot of the formalities to repatriate his sister. How has the death of Carollynne affected my brother? I can say that the loss of his daughter has destroyed his life and that of his son. He has lost the taste for life. He goes to the office but is unable to work. Daniel doesn't see a counsellor anymore but is under medication. He always says that he doesn't want to have a long life anymore. The mother of Carollynne and Emanuel is, of course, also very affected and is also under medication. We would like to add that we do not want to load more on Mattia Minna. Our desire is not to destroy his life. We just want to express our heartbreak and how we live without our Carollynne". 64The defence has also tendered by consent a letter in English and French from the mother of the deceased, Ms Sylvia Angelique Gomes. This letter, as with the former, is overwhelmingly poignant, compassionate and forgiving. Again out of respect I read it onto the record. "I am the mother of Carollynne Olivie, died in a car accident on 9 June 2012 and for which Mattia Minna is criminalised. I would like to interceded for him because even if my daughter died in the accident I believe it does not deserve a prison sentence. I know that the Australian laws are very strict about alcohol but Mattia did not ingest a quantity which prevented him from having risk of driving at night for tourists in Australia. It would be more profitable that the boy doing work of general interest to encourage young people to pay attention to the dangers of the road explaining his experiences. Think what it must live every day. It must be on his shoulders the deaths of his friend, Carollynne. His life will never be the same. I hope with all my heart that my application will be heard, because if my mum - I can forgive and hope that the young have a future. I think the Court can make an effort. Thank you". 65These letters show extraordinary compassion, understanding and forgiveness. Their heartfelt pleas are not overlooked, but I must consider them in light of the law of this State. I accept the submission as both Crown and defence agree, as to the view expressed by Sully J in R v Begbie (2001) 124 A Crim R 300 at [58]: "I confess that, as presently advised, I do not understand the logic of an approach which excludes rigidly an unforgiving attitude but accepts some weight as being appropriate to be given to a forgiving attitude. In my opinion it is extremely dangerous to suggest any departure of any kind at all from the proposition that the views of the victim's relatives are not to affect substantially one way or the other the framing of a proper sentence". 66I take the "forgiving attitude" into account in my overall consideration but not to the extent of interfering with the proper exercise of my sentencing discretion. I do so as to not ameliorate or aggravate the Offender's culpability or the sentence to which he is justly exposed but to mark the impact of his misconduct and its consequences. I refer of course to R v Previtera (1997) 94 A Crim R 76, R v Bollen (1998) 99 A Crim R 510, and R v Dang [1999] NSWCCA 42. The Court views the presentation of the victim impact statements as a compelling reminder of what follows for families who suffer the ultimate unfathomable loss and tragedy, the death of their daughter, sister, niece and friend. 67I have received a presentence report from Victoria Corrections under the hand of Mr Bruce Smythe, Mildura Community Correctional Services dated 22 February 2013. There are no specific sociological problems. He started drinking at the age of nineteen and on this night his consumption of alcohol was an aberration. This is consistent with his evidence that it was a send off for one of his friends. He does not use any illegal drugs. The report confirms his otherwise excellent character, honesty and predisposition for caring for others rather than himself. For example, he states he is more worried for his family than himself if sentenced to gaol. 68It is also reported that he has telephoned and apologised to the mother of the young lady who died. Compellingly, as I say, she has forgiven him and offered support. This to me is reflective of his genuine character and nobility. It represents a young man who is and will be of benefit to his community wherever he may be. I am informed supervisory options are available through this Service should an alternative to fulltime custody be imposed. 69I have heard evidence from the Offender. He is a young man now aged twenty-three; he will be twenty-four this week. He is a visitor to Australia, having come here in March 2011 as a young tourist and remaining on various working visas. Upon arriving in Mildura he found a home with locals and other young tourists, working in seasonal jobs, much of which is the backbone of the local agricultural industry. He is an amicable, social and positive young man. He comes from Genoa in Italy. He finished high school and was then in regular employment in a pizzeria so as to supplement his semi professional soccer career. 70Rather than go straight to university he, as many young people who are fortunate to do so, chose to travel and experience the wonderment, adventure and learning that can be achieved through independent and self-sufficient travel. He came to Australia as a part of this adventure and to learn English. He ordinarily lives with his mother, father and younger sister in Genoa. His sister is thirteen. She, like most little sisters, looks up to him with affection and admiration. It is she he misses most, and in a selfless way, it is the pain she and his parents will suffer if incarcerated, that he feels most. 71At the time of the incident he was sharing a house with a group of friends in a town called Robinvale. He was working at a local almond factory/orchard. He has a fine record there, having been re-employed after a short absence. That employer supports him to this day and through these proceedings. On the night of the incident he and a group of friends went to Mildura, the closest large centre, to celebrate the departure of one of them, Max, from Australia. He was in the car when the incident occurred. The car was one of shared ownership. It was in good condition, indeed more so because it was about to be sold. The usual practice when going out was apparently that someone would be the designated driver. This did not occur on this night. 72There were five young people in the car. They all went to various hotels and then a nightclub. In the early hours of the morning when preparing to head back the eighty kilometres or so to Robinvale they all hopped in the vehicle and left the driver's seat vacant. The Offender says he was annoyed when this occurred and that no arrangements had been made. He says everyone else was "really drunk". It was then he fatefully chose to drive. When questioned why not stay in Mildura he said that they had to get back to Robinvale so their friend Max would be able to depart to Melbourne and then France. 73He says he lost control of the vehicle because a kangaroo leapt in front of the vehicle from his left. He swerved to avoid it, lost control, and, according to forensic evidence, the vehicle rolled at least three times. He broke down with grief almost immediately he entered the witness box. The deceased, as with the other young men, were close friends of his. She was also the girlfriend of Kevin who was in the car. As a consequence of the incident Kevin apparently forfeited his savings that were then kept in the deceased's bank account. The Offender, in an act of generosity and compassion, gave Kevin his entire savings of $2500 to assist him. This has of itself resulted in considerable financial difficulties, particularly as he has not been able to leave Australia pending sentence. This, I accept, has created additional hardship for this Offender in that he has continual difficulty in obtaining employment and continues to be on bail, estranged from his loved ones, family and friends at a time where their solace is most needed. 74It is now over nine months since the incident and whilst from an administrative point of view the delay is not unacceptable it has, in the unique circumstances attaching to this Offender, had dire emotional consequences. The delay and uncertainty upon entering the plea of guilty and facing sentence together with the loss of a friend has, in my view, resulted in extra curial punishment, and I intend to take this into account. 75He has not told his mother the details of the dire consequences he faces insofar as imminent penalty as he feels this would be too much for her. 76As to extra curial punishment I am of the view that in light of what was said by the New South Wales Court of Criminal Appeal in R v Howcher [2004] 146 A Crim R I must also take into account that aspect "extra curial suffering"; that is, the effect that this crime has brought about on the Offender's own psyche, the effect that it has had on his emotional and intellectual life, the pain and suffering that is caused to him by the death of his friend. In that case after considering Whyte, Hulme J stated at [16]: "Despite the reference in R v Whyte to the victim being a stranger and the extent of the injury to the driver or persons known to him there is no discussion in that case of the significance of any such event. Nor as a matter of logic does it follow that the fact the victim is not a stranger of itself justify leniency. Rather, it is the case that an Offender's relationship with the victim may be some indication of extra curial suffering flowing from the occurrence". 77And at [18]: "I can accept that suffering or the psychological impact on an Offender of what he has done may properly be taken into account by a sentencing judge. Indeed, his Honour said that the applicant was 'entitled to leniency as a consequence of the anguish that he has experienced because of a death of a friend'. And that is an extract from R v Marlin, unreported NSWCCA 10/9/97". 78There is no doubt in my mind that this Offender will bear responsibility for this tragedy for the rest of his life. He is a young man and having heard evidence from him and in light of the presentence report and his post-incident conduct by contacting the parents and their responses, I consider he will continue to suffer well beyond any sentence imposed by this Court. His grief, remorse, contrition and overwhelming sorry for the death of his friend will be with him forever, and not a day will go by that he does not think of this young woman and his actions. 79Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a court may impose a sentence on an Offender. They are: (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, and (g)to recognise the harm done to the victim of the crime and the community. 80As to subparagraphs (c) and (d) I am confident that nothing further needs to be done to bring these aspects home to this Offender. Furthermore, there is no need in my view to sentence him so as to emphasise specific deterrence. I accept there is minimal need to specifically deter this Offender, but in circumstances such as these general deterrence must be given primacy over considerations personal to the Offender. The message must be conveyed to those in the community that conduct of this type cannot be tolerated despite compelling subjective circumstances. The conduct is of such moment and consequence that there must be condign punishment. It must be denounced and the harm caused recognised. 81Section 5 of the Crimes (Sentencing Procedure) Act 1999 also requires me to be satisfied that imprisonment is the last resort, and having considered all possible alternatives no penalty other than imprisonment is appropriate. For the reasons expressed I have come to the view that no penalty other than imprisonment is appropriate. I have, with both concern and compassion, come to the view that such sentence can only be one of fulltime imprisonment. 82Under the provisions of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 I am permitted to vary the statutory ratio and extend the period of parole that I find if there are appropriate special circumstances. 83It has been submitted by Mr Maisner on behalf of the Offender that there are special circumstances and that I ought therefore vary the ratio pursuant to that section. The bases for such course are suggested as, essentially, a young Offender and first time in custody. The Crown, with her usual candour and independence, does not oppose such a finding. It is also in my view notable that this Offender will be serving his sentence in a foreign country, a friendly land to which he was a visitor. He is here, thousands of kilometres from home, separated from his parents, his little sister, his grandparents. He is here without the support of any longstanding friends, those we draw upon in times of need. He will not receive the solace of visits by any of them to soften any time he spends in custody. It is also clear to me that the Offender's overall rehabilitation will be facilitated by a longer period of parole. 84A finding of special circumstances is a discretionary finding of fact. Please see Caristo v R [2011] NSWCCA 7. I am also mindful of that which was stated by the former CJ Spigelman in R v Fidow [2004] NSWCCA 172 at [20]: "It is necessary that the circumstances be sufficiently special". 85I am of the view that in combination there are sufficiently special circumstances to justify such a finding and I propose to do so. 86Would you mind standing up please, Mr Minna? 87The Offender is convicted and sentenced to imprisonment. I set a non-parole period of nine months imprisonment commencing today, 25 March 2013 and expiring 24 December 2013. 88I impose a balance of the term of one year and six months imprisonment to commence at the expiration of the non-parole period, that is, 25 December 2013 and expiring 24 June 2015. 89The overall sentence is thus one of two years and three months imprisonment commencing 25 March 2013. The sentence I would have imposed was three years. However, this has been reduced by twenty-five per cent for the early plea. 90I find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 as earlier described: young Offender, first time in custody, need for extended rehabilitation, serving his sentence in the absence of friends and familial support and that he is serving his sentence in a foreign country. These latter aspects will make his custodial period more onerous. The combination of all these factors satisfies me as to a finding of special circumstances and I therefore make that significant adjustment to the statutory ratio. 91Whilst in custody it is directed the Corrective Services Commission assist the Offender as follows: (a)Obtain urgent counselling and treatment as to his emotional and mental wellbeing, having regard to his youth, the nature of the offence and him being without familial support, and (b)Obtain access to educational and training programs. 92I also request the Corrective Services Commission act as quickly as possible to classify this Offender. 93The Offender is to be released to parole at the expiration of the non-parole period. Such parole is to be subject to the supervision and guidance of the Parole Authority and as provided for in the standard conditions of parole prescribed the regulations of the Crimes (Administration of Sentences) Act 1999. 94Whilst no specific submissions have been made I am of the view that the automatic period of disqualification of three years should be reduced to eighteen months. 95Was the Offender disqualified or suspended as at the date of arrest? 96ADAMSON: No your Honour. I do note that he did hand in his licence, however. 97HIS HONOUR: All right. Well what I will do, I will make a recommendation that the Commissioner of Roads and Maritime Services take into account any period that he has not been driving, and in particular the fact that he handed in his licence on the day of arrest, that is, 9 June 2012. Accordingly that period should be taken into account pursuant to the provisions of s 205(6)(b) of the Road Transport (General) Act 2005. I ask that be taken into account as satisfying a part of the disqualification period. 98Now, are there any matters that either of you wish to raise? 99ADAMSON: Simply the s 166 certificate, your Honour. There was a backup charge of negligent driving. As that was a summary offence it's remained on foot until the conclusion of this sentencing. I seek leave to withdraw that. 100HIS HONOUR: All right. No opposition to the withdrawal of that, Ms Barnes? No opposition to the neg driving being withdrawn? 101BARNES: No. No your Honour. 102HIS HONOUR: All right. That matter is withdrawn and dismissed. Are there any matters that you need to raise with me, Ms Barnes? 103BARNES: No your Honour. 104HIS HONOUR: All right. Crown, nothing you need to raise? 105ADAMSON: Nothing, your Honour. 106HIS HONOUR: Mr Minna, I just have to explain the sentence. The law has required me in the circumstances to impose a sentence of imprisonment. I have imposed a sentence and reduced it to that which I felt I could. I have significantly adjusted the ratio between the parole and non-parole period so that you serve only nine months of imprisonment. You will then be released to parole. When you are released to parole, and I am sure you won't have any trouble, you must not breach that parole. It won't come before me; if you do breach it you'll go before the Parole Authority and go back to gaol for the balance of your parole. Now I anticipate that will not be a difficulty. Do you understand? 107OFFENDER: Yes. 108HIS HONOUR: The fact, however, is that I have sentenced you to gaol for a period of nine months and that will commence today. I have made some specific recommendations that Corrective Services urgently attend to some counselling and treatment just to help you cope with the imposition of that sentence, and particularly the distress that it causes to you. I have also asked that they help you with any education and training programs so as to assist you in doing things whilst you are in custody. I have also asked that they try and classify you; that is, give you the lowest relevant classification that they can as quickly as possible so as to help you get classified and get into a better custodial environment. Do you understand all that? 109OFFENDER: Yes. 110HIS HONOUR: All right. Look, what I'll do, I'll adjourn. Officers, there is a friend of Mr Minna here just in court on your right. Would you allow a short moment for he and his legal representative just to talk to Mr Minna before he goes downstairs. All right, thank you. I'd be grateful if you'd do that. I thank everyone for sitting on. I apologise it's taken so long. 111And Mr Minna, I hope with all my heart that things work out for you.