A man who had a wrestling DVD playing in his car when he caused a crash which killed 89-year-old Harvie Spencer near Port Germein in 2013 will spend a minimum of two years and nine months in jail.
Mitchell Deane Franklin, 28, was returning to Adelaide from Roxby Downs where he worked as a security guard in June 2013, when the car he was driving collided with Mr and Mrs Spencer’s car, which was waiting to turn right into Old Port Germein Road off of the Augusta Highway.
The crash killed Harvie Spencer instantly.
Mrs Spencer, Mr Franklin and his passenger Ali Faquiri were all spared injury in the crash. A backseat passenger in Mr Franklin’s car suffered a fractured jaw in the crash.
During sentencing in the Adelaide District Court, Judge Paul Muscat said he was “… not the least bit surprised” that the jury rejected the evidence tabled by Mr Franklin that he did not look at the DVD playing in the car once during the trip.
“I agree with the prosecution submission made to the jury that your insistence that you never once looked at the screen in over four hours of driving was so incredible that it bordered on the absurd,” Judge Muscat said.
“It was a rather poor attempt by you to avoid the obvious explanation for your gross inattention or grossly defective lookout of the road in front of you at that critical part of the journey home.”
During the trial the court was told that Mr Franklin put the DVD on in the car before leaving Roxby Downs and was the only person with an interest in wrestling in the car during the trip.
Despite being found guilty of causing death by dangerous driving, causing harm by dangerous driving and driving a vehicle while a visual display unit was operating in the vehicle which was visible to the driver, Judge Muscat said he would have been inclined to hand down a lesser minimum sentence to Mr Franklin due to his good nature.
However, the judge said he was “constrained” by minimum sentencing legislation.
The judge praised Mr Franklin’s good employment and work ethic, while also noting his work with disadvantaged groups, including aboriginal children in education, homeless people and those within the prison system.
“You are a young, upstanding aboriginal man who has strived to become a positive role model for other aboriginal men,” he said.
“You are a good son to your parents, a good husband to your wife and a good father to your children.
“In every respect, aside from driving dangerously for about 10 seconds, you have been a good citizen.
“It is important for the court and others to acknowledge that you possess many good qualities.
“The court is not sentencing a recidivous offender, someone who has not reformed, but a true first offender.”
He also noted the offender’s remorse for his actions.
Mr Franklin was sentenced to three-and-a-half years’ jail, with a non-parole period of two years, nine months and 18 days. The judge also disqualified Mr Franklin from driving for 10 years once he is released.