District Court New South Wales Medium Neutral Citation: R v Jamie Michael FERRY [2014] NSWDC 64 Hearing dates: 8 April 2013, 17 April 2014. Decision date: 17 April 2014 Before: Judge Haesler SC Decision: Taking into account a finding of special circumstances and my conviction, you are sentenced to a term of imprisonment of three years and six months consisting of a non-parole period of one year and nine months to commence today and expiring on 16 January 2016. You will be eligible for consideration for release to parole on that date to serve the balance of term of one year and nine months. That parole should be subject to the supervision and guidance of the Community Service of New South Wales for as long as they deem necessary. You are disqualified from driving for a period of two years from today's date. The matters on the 166 certificate are withdrawn and dismissed. Catchwords: Dangerous Driving causing death Legislation Cited: Crimes Act 1900 Cases Cited: Bugmy v The Queen (1990) 169 CLR 525 R v Errington [1999] NSWCCA 18 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 R v Jurisic (1998) 45 NSWLR 209 R v Musumeci, unreported, NSWCCA 30/10/1997 R v Previtera (1997) 94 A Crim R 76 Whyte v R (2002) 55 NSWLR 252 Category: Sentence Parties: Crown Jamie Michael FERRY (Offender) Representation: Mr Pincott (Crown) Mr Simpson (Offender) Mr Fay (Crown) Mr Mainwaring (Offender) File Number(s): 2011/346041 Judgment 1On 8 August 2012, Kurt Gaske died in a motor vehicle accident at Spring Terrace south of Orange, New South Wales. On 7 November 2013 at Orange District Court, Jamie Michael Ferry accepted responsibility for causing Mr Gaske's death when he entered a plea of guilty to a charge of aggravated dangerous driving occasioning death, s 52A(2) Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment. 2Close attention is always required to maximum penalties as fixed by parliament. The maximum penalty is one of a number of important guides to the exercise of my sentencing discretion. Other guides include decisions of this Court and particularly the decisions of the New South Wales Court of Criminal Appeal. I have the benefit of the guideline judgment of that court, Whyte v R (2002) 55 NSWLR 252. I also have the benefit of the comprehensive summary of other cases and Judicial Commission statistics provided to me by the Crown as part of their submissions in this matter, exhibit D and MFI 1. 3The consistent application of legal principle is an important foundation for any sentencing decision, Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520. Judges must have regard to what has been done in other courts, see Simpson in DPP (Cth) v De La Rosa [2010] NSWCCA 194, but each sentencing exercise is discrete and separate. I have to impose a sentence which reflects the circumstances of this crime and the circumstances of this offender. 4Critical to any sentencing exercise is a close examination of the objective circumstances of the crime committed by this offender. The starting point must be that a life was taken. No sentence I impose could ever restore Mr Gaske to his family. No sentence, nor any statement of regret or remorse, could ever assuage the feeling of loss his family will forever feel. That loss was eloquently set out in the victim impact statement of Mr Gaske's mother which I receive and consider in these proceedings. In it she speaks of the impact of the death on her and her family, an impact that was emotional, physical and psychological. She has had her heart broken. A mother should not have to go through what Mrs Williams has gone through. All of this, as Mr Ferry himself acknowledged in evidence, could have been avoided by the simple application of his own knowledge of the dangers of drinking and operating machinery such as a car. 5The law, by the severity of the sentences imposed, seeks to dissuade dangerous driving, in particular driving while intoxicated. Despite the severe penalties imposed, despite media campaigns, despite clear understanding of the consequences of drinking and driving, avoidable deaths such as this continue to occur. Regrettably, punishment after the fact can only do so much. The length of the sentence can never and should never be used as a measure of a deceased's life. A court cannot put a specific value in terms of corresponding punishment on human life, or what loss of life means to a family and other loved ones: see R v Previtera (1997) 94 A Crim R 76. 6Jamie Ferry and Kurt Gaske both worked at the Cadia mine south of Orange. Mr Gaske had recently lost his licence for drinking and driving. Mr Ferry offered him a lift home after work on 8 August 2011. Mr Ferry was driving his Mitsubishi 380. He had bought it second-hand and kept it in good condition. It had recently had new tyres fitted. The two men stopped at the Forrest Creek Tavern about 6pm. Mr Gaske was good friends with barmaid, Ms Cooper. Mr Ferry was not a regular at the Tavern, Mr Gaske was. The two men left for home about 10.30pm. Ms Cooper had offered them a life home. She asked the offender a number of times if he was right to drive. Another patron, Mr Grum, noted Mr Ferry had been drinking spirits but that he did not appear drunk. 7Mr Ferry was drunk. When a blood sample was taken after the accident it was over the limit of 0.15 grams of alcohol in 100 millilitres of blood. I also note that the speedometer of the vehicle was stuck on 110, but I could not make a finding beyond reasonable doubt that that was the speed being travelled at the time of the collision, there being no expert evidence to assist me on that fact. That said, it is clear from the photographs, which form part of exhibit D, that the vehicle was travelling at a speed far in excess of that necessary for the conditions which then applied. 8The accident occurred on a quiet road through farm country. It was raining heavily that evening. Mr Ferry was familiar with the road. He was aware it was narrow, potholed, and required care to navigate on such a night. Soon after leaving the Tavern, he failed to negotiate a left sweeping bend. The car crossed double lines and left the road, colliding with a large tree. The point of impact was the front passenger seat. As a result of the collision with the tree, the front passenger seat was torn from its mount. Mr Gaske was killed. The offender suffered head injuries, including a significant fracture to the orbit around his eye. He spent four days in hospital and then had to spend time going backwards and forwards to Sydney for specialist treatment. The medical reports before me in exhibit 1 indicate a significant skull fracture which eventually resolved with conservative treatment. Mr Ferry was lucky to retain the sight of his eye but now suffers few residual problems. 9It would appear that Mr Ferry's state of intoxication meant that he failed completely to drive to the poor road conditions, with fatal consequences. That Mr Gaske suggested that they visit the Tavern and willingly travelled with the offender does not mitigate the crime: R v Errington [1999] NSWCCA 18 at [27]-[28]. A driver must take responsibility for his passenger. Here there were absent many of the serious aggravating features which often accompany such driving. So these are not features which would aggravate the penalty to be imposed. I have to sentence in terms of the maximum penalty and the elements of the offence. 10There are however, particular matters of concern. The first, of course is the matter which brings this offence within the section, that is, his state of intoxication. The second is that Ms Cooper did enquire whether he was "right to drive" and offered him a lift. He chose to drive regardless. It is also clear that Mr Ferry himself, because of his training as a mine worker, was well aware of the consequences of operating machinery such as a car while intoxicated. It is clear that his decision to drive while heavily intoxicated demonstrates a high level of moral culpability and an abandonment of his responsibility for his passenger, for himself and other road users. 11The courts and parliament on behalf of the community place a high premium on human life. The taking of a life by driving while intoxicated means a court must regard the offence as one of great seriousness, so serious that despite the matters raised in mitigation of penalty, only a full time custodial sentence could be imposed. The offender, from the moment he entered his plea of guilty before me in Orange, has accepted this. It is never easy to send a young man to gaol, but it is something that must be done as a deterrent to others and because, where a life is taken, retribution remains an important factor in any sentencing exercise: R v Musumeci, unreported, NSWCCA 30/10/1997; R v Jurisic (1998) 45 NSWLR 209. That he took another's life will I believe act to deter this offender from behaving in a manner such as this ever again. 12He is not an articulate man, but I accept his evidence that he is remorseful. That evidence was given before the family of the deceased. He was clearly nervous. He is a man of limited formal education. I note that he has been before the court for driving under the influence before. There are other traffic matters on his record when he was quite young, but it seems, as he got older, he adopted a more mature and responsible attitude to his driving, until this day. 13The guilty plea was late. It was entered the day a jury panel had been assembled to try his case. I accept Mr Ferry now has no memory of how much he drank that night and that he finds it hard to accept that his blood alcohol level was as high as it undoubtedly was. The proposed trial was limited to that narrow issue. It would have been short. There was some co operation with the course of justice by a narrowing of issues. In all the circumstances he should receive a 12.5% reduction in the otherwise appropriate sentence to reflect the utilitarian aspects of that plea. There are other aspects of the plea which I will take into account of course. 14He gave evidence. He is still a young man. He has never been at serious risk of going to gaol before. He is the youngest of six children. The family grew up in the Orange area. He has strong family support. Although his parents now live in Western Australia, they were in court last year in Orange. He has the support of his brother, who has come to Court today. He went to school in Orange and left school at the end of year 9. He has been in almost continuous employment since leaving school in a number of jobs. At the time of this accident he had a very good job at the local mine. 15At the time of this accident he was living with his de facto partner. They had a child and another on the way. That child was born on 24 October 2013, quite premature, and with serious health issues. The relationship has now ended, but Mr Ferry has a strong relationship with his two children and has been able to provide support for them until today. The wrench of being taken from his children is a matter that I understand, but could not have any significant influence on any sentencing exercise. I note the injury to himself and its consequences, as matters I do take into account. 16The evidence before me in exhibit 1 indicates that he is depressed about his present situation. That is entirely understandable. Anyone facing a custodial sentence, anyone who took another's life, who was a rational human being, would feel depressed. It is a matter that the custodial authorities I hope will take into account. 17I have regard to the purposes of sentencing. There is clearly here a need for general deterrence. I have regard to the maximum penalty. I have regard to the features in addition to the state of intoxication which is, as Mr Simpson points out, put this at the very bottom of the range in this high category of offence. The combination of objective features and strong subjective case puts this particular offender at the lower end of the range generally both objectively and subjectively, but I note objectively that this is a high range type of matter as indicated by the maximum penalty. In saying so, I do not intend in any way to diminish the dreadful consequences to Mr Gaske and his family. The Court must recognise the harm done to the victim and to the community. The Court must denounce what was done by this offender. There is a case here for a significant finding of special circumstances. It is clear that with assistance, which will be enhanced by supervision in the community, that Mr Ferry has good prospects for rehabilitation. He will however need assistance in adapting to normal community life. I suspect because of his background and his prior good character that he will have significant problems adjusting to being in gaol. Courts must always be conscious of the negative impact of gaol on offenders such as this. They are taken from a pro-social community and placed, frankly, in an anti-social community, but courts should not and must not shirk their responsibilities of imposing gaol sentences. The structure of the sentence can facilitate both the need for general deterrence and the strong subjective case made for the offender and his needs for support in the community: see Bugmy v The Queen (1990) 169 CLR 525. 18I note that the offender was disqualified from driving from 8 August 2011 to 28 November 2011. I note that there is a minimum period of disqualification of 12 months and an automatic period of three years. There must be a period of disqualification which extends after the offender is released from custody, or eligible to be released from custody, but I am aware that additional punishment can have a significant impact on his rehabilitation prospects. I presume he will return to the Orange area. I presume he will seek to obtain work in the mining industry. I presume he will do everything he can to support his family. If he does not have a licence he will not be able to do that and that can further impede his capacity for rehabilitation. For those reasons, the additional period of disqualification will be modest. Please stand, Mr Ferry. 19Taking into account a finding of special circumstances and my conviction, you are sentenced to a term of imprisonment of three years and six months consisting of a non-parole period of one year and nine months to commence today and expiring on 16 January 2016. You will be eligible for consideration for release to parole on that date to serve the balance of term of one year and nine months. That parole should be subject to the supervision and guidance of the Community Service of New South Wales for as long as they deem necessary. 20You are disqualified from driving for a period of two years from today's date. 21The matters on the 166 certificate are withdrawn and dismissed. 22Mr Ferry, you will be eligible for consideration for release from 16 January 2016. You have to be of good behaviour. If you are not of good behaviour while you are in gaol you will not get parole. Do you understand that? 23OFFENDER: Yes, your Honour. ********** 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: 12 June 2014