In handing down her sentence, Judge Rita Joseph Olivetti said a custodial sentence was fitting.

On March 15, 2012 Judge Olivetti listened to submissions of mitigating and aggravating factors by the Crown and response by the defence.

Mr. Varlack also attempted to make a statement to the court but broke down in tears and could not continue hence his lawyer had to complete the statement.

Attorney at Law Dancia Penn QC, was also called to the stand as a character witness for Mr. Varlack and noted that she has known the defendant all her life and that he was a respected, honest and hardworking individual who was very remorseful for what happened on that fateful day.

The defendant was previously found guilty by a 7-2 verdict.

In giving the mitigating circumstances, Prosecutor Jude Hanley said in looking at the facts of the case it could be said the accident was as a result of "prolonged persistence and very bad driving" on the part of Mr. Varlack in that he not only overtook stationary vehicles but he also drove over road signs and even on hitting the deceased he did not immediately stop. She argued too that the accident occurred in a school zone where the defendant should have been cautious of pedestrians and motorists and should have taken the stand-still vehicles as an indication to also exercise caution.

As for the mitigating circumstances, she said Mr. Varlack had no previous convictions as he held a good driving record and that he showed remorse to the family for what had happened.

Crown counsel Hanley, however, argued for a custodial sentence for the defendant and even pulled a similar case where the mitigating factors were the same but the defendant was still sentenced to 12 months imprisonment. She said the message from that judge was that a serious message must be sent out to drivers. Ms. Hanley argued that similarly only a custodial sentence would be fitting and serve to underline the importance of being cautious on the roadway. She also said it was important for the court to drive home the message about dangerous driving and noted that the defendant was an experienced driver, a taxi driver in fact, and should have known to have driven better under the circumstances.

No mitigating factors , Counsel Hanley argued, should prevent the defendant from being given a custodial sentence.

Mr. Varlack was then asked if he wished to address the court as to why it should not pass sentencing on him according to law and he began by addressing the family and friends of the deceased noting that it was very difficult to find words to express what happened but that he was deeply sorry. He added that he knew being sorry would not bring Tofficah back to life nor bring relief to her family and friends. At this stage he broke down in tears.

Varlack’s lawyer Patrick Thompson then continued the statement which read that the defendant understood it was a very “rough” time for the family of Tofficah but hoped that they could look into his heart and see how truly and deeply sorry he was. It further said the incident has been a nightmarish one for the defendant.

Before calling the character witness, Mr. Thompson noted that his client, who was a taxi driver by profession at the time of the incident, was a former employee of Barclay’s Bank, and a former bartender and fisherman who did many odd jobs over the years. He said too Mr. Varlack’s 85-year old mother was bed-ridden and he takes care of her when her caretakers leave.

Attorney at Law and former Deputy Premier- Dancia Penn then testified that she knew Varlack her entire life as they both hailed from East End and their families were very close. She said Varlack’s father was one of her father’s closest friends. She added that Varlack is honest, decent, upright, law abiding, respectful of people and their rights, quiet and well respected throughout the Territory. “He is a man who has always been in gainful employment and reliable....As a taxi driver people trusted him to drive them over many years.” She appealed to the court to apply justice with mercy.

The defence then argued that the aggravating factor of prolonged persistence and very bad driving as stated by the crown could not be considered since it was rather an error of judgement on his client’s part and there was no evidence to suggest prolonged persistence and very bad driving.

He also said the mitigating factors outweighed the aggravating factors and argued against a custodial sentence or if the court decides on one that it be a suspended sentence. The suspension of Mr. Varlack’s taxi driver’s license over the last two years, Mr. Thompson said, was already a significant punishment since he was not able to make his daily living as he was accustomed to. Mr. Varlack’s health was also brought up as his lawyer stated he suffered from hypertension and arthritis among other ailments and a custodial sentence would only cause his client significant harm as well as continued hardship on his family.

The learned judge then set sentencing for next week.

Mr. Varlack was previously put on $60,000 bail and was required to report to the East End police station every Monday, Wednesday and Friday between the hours of 6 a.m. and 6 p.m.

Varlack landed in trouble for causing the death of Tofficah Thompson following an accident on April 13, 2010 on the Blackburn Highway in the vicinity of HLSCC. She succumbed to her injuries on April 30, 2010.

On February 15, 2012, the Crown completed its closing statements with Counsel Jude Hanley arguing that Varlack was not prudent and careful which resulted in him driving dangerously and led to the accident which took the life of Thompson.

Hanley had urged the jurors to determine what a prudent driver would do in the circumstances surrounding him or her where it was a school zone and other vehicles had stopped.

She further submitted that it was not Thompson’s fault that Varlack did not see her as she did what a pedestrian would have done – she looked both ways before crossing and other vehicles had stopped for her to cross.

Hanley told the court that Varlack did not see Tofficah because “he did not have no intention to stop.” “He wants you to believe is a mistake,” she told jurors.

She also stated that according to Thompson’s mother, Varlack met her at the hospital on April 14, 2012 and told her he was sorry that he did not see her daughter and that he had only seen something on his windscreen and swerved and stopped.

She further stated that while the experts said that Mr. Varlack was driving within or a little over the speed limit, to drive dangerously does not mean to exceed the speed limit.

“You do not have to exceed the miles per hour to drive dangerously as we can see from this case,” the court was told. “It may be put to you that he did not see, but whose fault it was that he couldn’t see.”

Another contention made by the Crown was that Mr. Varlack said lights were in his eyes, which Hanley if that was so why would he keep driving faster.

Hanley also stated that though Mr. Varlack said he swerved, there were no skid marks on the road. “He couldn’t wait he was in a rush. A taximan from East End, the college on the eastern end on the island. Who know the road by the college better than Mr. Varlack,” Hanley asserted.

“She was not a stick or a shadow , she was a person who was diligent who did what she had to do to cross the road,” she further stated.

She further said he was not the victim as he was the one who had no patience since he did things that a prudent and careful driver would not have done.

Dangerous Situation presented – Defense

“The danger is created by the pedestrian we are not blaming Tofficah but it does not mean Mr. Varlack drove dangerously,” said Defense Attorney Thompson.

He further told jurors that the case is not about feeling sorry about any one as it touched the lives of two families and the situation could have happened to anyone.

“Road traffic accidents can happen to any body. That situation presented to Mr. Varlack on April 13, 2010 could have happened to any one of you.”

While stating that he is not blaming Ms. Thompson, he said if she was not in the middle of the road on April 13, 2010, there would not have been a dangerous situation. “What we don’t know is if Mr. Varlack drove dangerously. It’s a dangerous situation so we have to look if he was driving dangerous.”

He quoted from the expert witness Spencer Grant who calculated the speed of Mr. Varlack’s vehicle at the time to be in the range of 35 to 45 miles per hour, which would have been 5 miles below or above the speed limit.

“But if you are driving at the speed limit or below does not mean you were driving dangerously,” he contended stating that a speed limit is described as one which drivers can operate safely within.

Thompson further outlined to the court that while Thompson’s boyfriend Deshaun Scatliffe stated in the witness box during the trial that Mr. Varlack was driving fast, he reminded them that in both of his police statements two years ago he did not say that Mr. Varlack was driving at a great speed. “Both of them cannot coexist together.”

He also stated that from the witnesses, they state that the street was dark, it was poorly lit and that a number of other factors created a dangerous situation on the road but it did not mean that Mr. Varlack drove dangerously.

The defense attorney further contended that Mr. Varlack did not intend to kill anyone and pointed out to Mr. Varlack’s clean record of never being in an accident before, and told jurors that Mr. Varlack was man of good character and had no traffic convictions. “Would you say he is a man more likely to drive dangerous?”

Furthermore, he told the court that there was no evidence that Mr. Varlack was driving under the influence of alcohol, no evidence that Mr. Varlack was driving speed, and nothing to sure he had a poor driving history.

He said Mr. Varlack’s explanation was that a light from a vehicle would have shined in his eyes which would have impaired his ablity to see someone.

He also asked if it was far-fetched for a man to apologise and it did not mean he drove dangerously.