Supreme Court of SA|1994-04-20|Before: Mr P, Matheson J

DIRECTOR OF PUBLIC PROSECUTIONS v STEPHEN ROBERT STONE No. SCCRM 93/469 Judgment No. 4489 Number of pages - 14 Criminal law and procedure - sentence (1994) 71 A Crim R 417 [1994] SASC 4489 (20 April 1994)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MATHESON(1), PRIOR(2) AND OLSSON(3) JJ

CWDS Criminal law and procedure - Sentence of imprisonment for 30 months with non-parole period of 10 months for causing death and causing bodily harm by dangerous driving - disqualification for a period of 6 years - application by Director of Public Prosecutions for leave to appeal - previous conviction for driving under influence of intoxicating liquor - respondent driving on wrong side of road - three people in other car killed and a fourth seriously injured

Solicitors for appellant: Director of Public Prosecutions (SA)

JUDGE1 MATHESON J At about 3.05 am on Sunday 5 April, 1992 a collision occurred on the Middleton Road between Middleton and Goolwa between a Land Rover Station Wagon driven by the respondent, Stephen Robert Stone, and a Holden Commodore Sedan driven in the opposite direction by Susan Buckingham. Susan Buckingham died from injuries she sustained in the accident, as did two of the passengers in the Commodore, namely David Pearson and Kerrie Hegney. The remaining passenger, Paul Zoontjens, sustained serious injuries. The respondent was the only occupant in his car. He was on the wrong side of the road at the point of impact. A subsequent blood alcohol test indicated that at the time of the test his blood alcohol was between .12 per cent and .185 per cent. Assuming a social drinking pattern and an average rate of elimination, both of which assumptions are justified here, his blood alcohol concentration was probably about 0.16 per cent at the time of the accident. At the time of the accident he was nearly 29 years of age. On 5 November, 1984 he had been convicted in the Adelaide Magistrates Court of driving whilst under the influence of intoxicating liquor and fined $550. He was disqualified from holding or obtaining a driver's licence for two years.

The respondent pleaded guilty in the District Court of South Australia to two counts, one of causing death by dangerous driving, particulars being that on 5 April, 1992 near Middleton he drove a motor vehicle in a manner which was dangerous to the public and thereby caused the death of Susan Buckingham, and one of causing bodily harm by dangerous driving, particulars being that on the same date and at the same place he drove a motor vehicle in a manner which was dangerous to the public and thereby caused grievous bodily harm to Paul Zoontjens.

The learned trial Judge's sentence read as follows (she invoked her powers under s.18a of the Criminal Law (Sentencing) Act): "The sentence of the court is as follows: you will be imprisoned for a period of 30 months. I fix a non-parole period of 10 months. That sentence will be suspended upon you entering into a bond in your own recognizance in the sum of $500, for a period of three years, subject to the following terms and conditions:

That you be of good behaviour for the period of the bond. 2. That you carry out 300 hours of community service within the next 18 months, and that you obey the lawful directions of the community service officer to whom you are assigned.

That you report within two days hereof at the office of the Department of Correctional Services at Adelaide, unless

I further order that you be disqualified from holding or obtaining a driver's licence for a period of six years."

The Director of Public Prosecutions has applied for leave to appeal upon the following grounds: "1. The sentence was manifestly inadequate. 2. The learned sentencing judge erred in suspending the sentence. 3. The sentence failed to maintain an adequate standard of punishment for this office when a significant alcohol level

is involved. 4. The period of licence disqualification was manifestly inadequate"

This Court has often discussed the sentencing principles applicable on a conviction for the offence of causing death by dangerous driving where the offender has a high blood alcohol reading. For example, in R v Hicks (1987) 45 SASR 270, King CJ said at 272: "Considerations of deterrence and satisfaction of public outrage must undoubtedly play a large part in the fixing of sentences for crimes of this kind. For that reason suspension of a sentence for this type of crime cannot be the norm... suspension of sentence for this class of offence will be the exception rather than the rule."

In MacKereth v The Queen Unrep.Jt.No.2731 delivered on 18 February, 1991, where an unsuspended sentence of three years imprisonment for causing death by dangerous driving had been imposed in a case not dissimilar to this, King CJ, (with whom Millhouse and Debelle JJ agreed), said: "Parliament has prescribed severe penalties for these offences and they have been increased as recently as 1986.

It is always distressing to see a person of hitherto good character facing a sentence of imprisonment, but the fact is

that in this case the appellant's driving when he had had too much drink to be able to exercise effective control of the vehicle has caused the death of an innocent member of the public who was not associated with his activities or his drinking in any way and injury to the deceased's person's wife. It has also caused injury to the two passengers in his own vehicle. The consequences of what he did can only be described as dreadful. That factor cannot be ignored by the court in considering the appropriateness of the penalty. The punishment which is inflicted must bear a proper proportion to the seriousness of the crime and the seriousness of the crime includes the consequences of the crime and, of course, the courts must be conscious of the need to deter others who may be tempted to drive after they have been drinking. The sentence is undoubtedly a severe sentence and that is apparent by a comparison of it with other sentences that have been imposed. However, it was a serious offence, and the judge has a wide discretion in the matter of sentencing. It was his responsibility to assess all the factors involved and to arrive at a correct sentence. It has not been shown that the judge made any error of fact or law or that he took into account any matters which were extraneous to his deliberations or that he omitted to consider anything that was in favour of the appellant. I think that although the sentence is severe, and perhaps more severe than some others that have been imposed in cases which could be regarded as comparable, it was within the scope of the judge's sentencing discretion and that no grounds have been shown upon which this court should interfere. Mrs. Shaw has argued that the judge was

wrong in not suspending the sentence. The factors in favour of suspension were, of course, the fact that the appellant

does not have a criminal record and has only convictions of minor significance and that he is a man who has been in regular employment. However, the seriousness of the offence, and the need for deterrent penalties had to be taken into account also... I think that the learned judge was right. I think that any considerations personal to the appellant were outweighed by the consequences of his driving, by the level of alcohol in his blood stream, and by the fact that he had had a previous warning with regard to drink-driving in 1980. I see no reason to suppose that the learned judge failed to give due weight to the factors in favour of the appellant or that he gave undue weight to the factors operating against suspension. I think, in the present case, his decision to refuse to suspend was correct. In my opinion, therefore, the appeal should be dismissed."

Other cases of this sort where this Court has declined to upset a trial Judge's decision not to suspend sentences of imprisonment are Pfeiffer v The Queen Unrep.Jt.No.2682 and Purdell v The Queen Unrep.Jt.No.2683, both delivered on 11 December, 1990 by a court constituted by King CJ, Cox and Olsson JJ.

It must be remembered that in the case at bar three people were killed, and a fourth person sustained grievous bodily harm. In that connection, Mr Rofe, QC referred the Court to the remarks of King CJ (with whom Mohr J agreed) in R v Hietanen [1989] SASC 1909; (1989) 51 SASR 510. At pp.516-517, his Honour said: "The Court of Criminal Appeal was called upon to consider the appropriate sentence for crimes of causing bodily injury by dangerous driving in R v Moore (Unrep 16 May, 1989). That was an Attorney-General appeal against sentences for seven offences of causing bodily injury by dangerous driving. The Court increased the concurrent sentences from 15 months to five years with a non-parole period of two years. It increased the licence disqualification from two

years to eight years. It affirmed the suspension of the sentence upon a recognisance to be of good behaviour for 30 months and to perform 150 hours' community service. Some attempt was made in argument to distinguish the degree of fault in Moore's driving and conduct from that of the appellant. I do not think that fine distinctions of that kind are useful. Both were under the influence and both drove very badly and to the obvious danger of other road users. What makes Moore's case so much more serious than the present case is the number of persons injured. Consequences of conduct are always a factor in assessing the gravity of crime. They are especially serious in this type of offence because they are of the essence of the offence. If bodily harm had not resulted, the appellant would have been punished in a court of summary jurisdiction by fine, or perhaps a short term of imprisonment, and licence disqualification, for driving under the influence. It is the consequences which convert the same conduct from a summary offence to an indictable crime and are therefore the principal measure of the seriousness of that crime. Dangerous driving which causes serious injury to seven persons is vastly more serious for this purpose than dangerous driving which causes serious injury to two persons." (See also R v van der Heyden (1990) 55 SASR 316, especially at p.320.)

In addition to the usual obstacles in the path of a prosecution appeal on penalty (see for example, R v Osenkowski (1982) 30 SASR 212; R v Drewitt (1983) 35 SASR 344 and Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227), the applicant has the further difficulty that here the sentence was suspended, but in that connection, I refer to the remarks of King CJ, (with whom Duggan and Debelle JJ agreed) in R v Taddeo Unrep.Jt.No.4059 delivered on 21 July, 1993. When delivering the decision of the Court of Criminal Appeal, admittedly in considering a different charge, his Honour said at pp.3-4: "I must say that it seems to me that suspension is a quite inappropriate order to make in a case of possession of cannabis for sale committed against a background of substantial involvement in cannabis trading. If I had been the sentencing judge I would certainly have declined to suspend the sentence. Moreover, it seems to me that the expressed ground for the suspension of the sentence are so inadequate that it must be said that the sentencing discretion has miscarried. My only cause for hesitation in

the present case is the fact that it is an appeal by the prosecution and on the well-known principles affecting prosecution appeals this court has to look very carefully at the matter before reversing a decision of a sentencing judge in a way which would increase the penalty upon the offender. That is particularly so where there has been a suspension of the sentence and the offender has been told by the court that he will not have to serve the sentence if he obeys the bond. Nevertheless, considerations of public interest have to prevail in the end over considerations of that kind. I think that the suspension of this sentence was wrong and that the public interest would not be served by allowing the suspension to stand. I think that to allow the suspension to stand would tend to erode the standards of punishment that are necessary to operate as a deterrent to persons who are inclined to engage in commercial activity with respect to cannabis. To allow this suspension to stand would send an entirely wrong signal to people who are tempted to engage in cannabis trading and could only tend to weaken the defences which the community expects to be erected and maintained against the drug trade. In my opinion therefore there is no real alternative but to grant leave to appeal and to allow this appeal and to reverse the order suspending

I consider these observations apply mutatis mutandis here.

After hearing evidence from a forensic psychologist, Mr Allen Fugler, that the respondent was suffering from post-traumatic stress disorder the learned sentencing Judge remanded the respondent for sentence on 3 September,
She sentenced him on 1 December. On 25 November, 1993 the Court of Criminal Appeal by a majority dismissed an appeal by the Director of Public Prosecutions in the case of R v Harvey Unrep.Jt.No.S4286, where a suspended sentence had been imposed for a similar offence committed in somewhat similar circumstances. I have no doubt that the sentencing Judge in the case at bar was influenced, and understandably influenced, by that decision. In that case the sentencing Judge was persuaded to suspend the sentence at least partly by reason of the mental health of the respondent, and the effect imprisonment might have upon him. His Honour said: "As a result of the accident you suffer from depression and gross anxiety. You receive and will continue to receive psychiatric and psychological treatment which, as I understand it, includes medication to mute the symptoms from which you suffer. You suffer from sleeplessness, nightmares and flashbacks of the accident. Originally you had no recollection of driving the car in the accident. However, as I understand it, under hypnosis, you realised you were driving and that has caused major psychological problems. On the night the verdict was delivered in this case you

required urgent medical treatment. You are extremely troubled by feelings of guilt. You suffer badly from anxiety, apprehension and panic attacks. Your depression is chronic and includes thoughts of suicide. The memory of the accident will remain with you for the rest of your life. There is a body of credible medical opinion that if you are imprisoned because of these crimes there is a strong possibility that you will commit suicide."

His Honour was influenced by the remarks of King CJ in R v Smith (1987) 44 SASR 587 where he said, delivering the judgment of the court: "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the

offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect

Debelle J (with whom King CJ agreed, except upon an aspect of the case that is not relevant for present purposes), said in R v Harvey at pp.6-7: "It is doubtful whether the medical evidence constituted exceptional circumstances of a kind sufficient to warrant suspension of the sentence. However, while I might not have given the medical evidence the same weight as did the sentencing judge, I am not prepared to interfere with the decision of the sentencing judge to suspend the sentence. I have reached that conclusion after a good deal of hesitation."

As I understand it, the submission relating to the respondent's health here rested on the report of Mr Fugler who saw him once on 31 August, 1993. In his report of 1 September, he said there were no suggestions of a psychiatric or personality disorder, but that he was "guilt ridden, remorseful and depressed over his responsibility for the death of three individuals as a result of his driving behaviour". When pressed further, Mr Fugler said in a letter dated 2 September: "(1) Mr Stone is depressed and presently views himself as

worthless. Imprisonment is, in my opinion, likely to reinforce this self view. Any treatment programme aimed at rehabilitation would end up having to address, and modify, that factor before commencing to treat the symptoms of his Posttraumatic Stress Disorder. (2) An absence of imprisonment, per se, will not inevitably lead to a speedier recovery. What will arise in that process will be the close and continued support of significant others."

Her Honour said: "You also have suffered significant problems following this accident. You suffered multiple injuries in the collision, and you have continued to suffer long-term emotional problems as a result of your guilt for what you have done. As to this aspect of the matter, I have been greatly assisted by the report of Dr Fugler. He mentions that you suffer both night-time and day-time visualisations in which the accident is reconstructed in your mind. He describes you as guilt-ridden, remorseful, and depressed over your responsibility for the deaths and injuries which occurred. He has diagnosed you as suffering from a post-traumatic stress disorder of a chronic type. In his opinion, you need long-term psychiatric or psychological assistance, and his prognosis with respect to full recovery is not overly positive."

This was not a case where the respondent's responsibility was diminished at the time of the offence (see The Queen v Clay (1979) 22 SASR especially at p.282), or where the respondent was mentally depressed (see Hietanen's case (supra) at p.517), or suffering from some other psychiatric disorder at the time of the offence. I do not doubt Mr Fugler's diagnosis, or that the respondent would benefit from the regular support of his relations and friends, but I do not consider that the depression and feelings of guilt that he predictably feels should have had any significant influence on whether or not his sentence should have been suspended, and certainly not to the extent that it appeared to have in Harvey's case.

Eloquent evidence of the respondent's good character was called before the learned Judge. He is genuinely remorseful. He pleaded guilty. He sustained serious physical injuries himself. However, I am finally persuaded that her Honour was wrong to suspend the sentence here. Having regard to what this Court has so often said in cases like this of bad and alcohol impaired driving with horrendous consequences and by a driver who already had a conviction for what is colloquially called "drunken driving", suspension was not an option, and I think it should be set aside. I agree with Mr Rofe that suspension in such cases as this understandably outrages the public conscience. I also agree that divided courts in the cases of Hicks (supra), and Harvey (supra), both prosecution appeals, on the one hand, and judgments exhorting custodial sentences in a number of unsuccessful defence appeals on the other hand, may have confused the public and indeed, sentencing judges. I am comforted in what will appear to be a harsh view here by the concurrence of both my colleagues on this appeal.

I would grant leave, allow the appeal and set aside the suspension. In the circumstances I would not increase the period of disqualification. The sentence and non parole period fixed by the learned Judge will run from the date the respondent is arrested or surrenders.

JUDGE2 PRIOR J I agree with what the other members of the Court have written. Leave to appeal should be granted and the appeal allowed.

An immediate custodial sentence was required given the gravity of the offence and the absence of exceptional circumstances to properly make out good reason to suspend that sentence. It is only in the most exceptional cases of this kind that a suspended sentence can be justified. The high blood alcohol level and the previous conviction for driving whilst under the influence of intoxicating liquor were not given sufficient weight against the personal circumstances of the offender. This is a case where the sentence is so disproportionate to the seriousness of the offence that this Court must interfere either to increase the licence disqualification or to revoke the suspension of the sentence. In this case, I consider that the principles of public and personal deterrence call for the sentence of imprisonment imposed being served. I would allow the appeal for that purpose.

JUDGE3 OLSSON J This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed following the arraignment of the respondent in the District Court, on the ground that it is manifestly inadequate.

The respondent pleaded guilty to one offence of causing death by dangerous driving and one offence of causing bodily harm by dangerous driving. Both counts arose from a single incident and the learned sentencing judge elected to impose a single sentence, as authorised by section 18A of the Criminal Law (Sentencing) Act. In the event the respondent was sentenced to imprisonment for a period of 30 months, with a non parole period of 10 months. However that sentence was suspended upon the entry by the respondent into a bond in the sum of $500 to be of good behaviour for a period of three years and to carry out 300 hours of community service within 18 months. In addition, the respondent was disqualified from holding or obtaining a driver's licence for six years.

Although the Director argued that the quantum of the head sentence and non parole period was too modest in the circumstances, his main contention was that, such was the serious nature of the offence, the order for suspension was inappropriate. He further contended that, if that submission was not upheld, then the period of licence disqualification was manifestly inadequate (R v Hicks (1987) 45 SASR 270).

I first turn to a consideration of the relevant facts. The respondent is a young man who was about 28 years of age at the time of the offence. He lived in the Goolwa area and was highly regarded in the local community, which clearly remains supportive of him, notwithstanding what has occurred. However, the fact remained that he came before the court as a person who had a previous conviction, in late 1984, for driving whilst under the influence, in relation to which his licence had been suspended for two years.

As at 4 April 1992 the respondent was employed as a chef in a restaurant at Goolwa. He finished work at 11.00 pm and joined some friends in the front bar of an hotel for some drinks. When the hotel closed at about midnight the respondent and other friends went to a private house in Goolwa and there engaged in further social drinking. This activity continued until about 3.00 am the next morning. At about that time it had been raining heavily.

When the group broke up the respondent drove off in his Landrover. He initially had Michael Lockett, the brother of his de facto wife, as a passenger, but dropped him off at the latter's home on Port Elliott Road, Goolwa. The respondent then continued on, to return to where he was living at Middleton. At that point it was still raining heavily.

Shortly after 3.00 am the Landrover driven by the respondent came into collision with a Holden Commodore on the Goolwa to Middleton Road. It appears that the point of impact was on the incorrect side of the road, from the respondent's point of view, and the vehicles met head on. As a consequence, three of the four occupants of the Commodore were killed and the other sustained serious head injuries, which necessitated extensive reconstructive surgery. The impact of that situation on the injured survivor and the families of the deceased victims was devastating and does not here require elaboration.

The respondent himself suffered significant injury, which has left some permanent disability. He also developed (and still suffers from) a significant post traumatic stress disorder, the effects of which will persist for some considerable time and may never fully abate. He is described as guilt ridden, remorseful and depressed; and is said to require long term psychiatric or psychological assistance.

As a consequence of the injuries which he received, the respondent is amnesic and has no memory of the circumstances of the actual collision. Nor is there any other direct, definitive evidence of the precise course of events leading up to the impact.

All that can be said is that it had been raining heavily at one stage (although it is by no means certain that this was the situation at the actual time of impact) and that, in the area of the impact, there is a dip in the road which tends to obscure the approach of vehicles towards one another, until they are about 150-200 metres apart. However, the facts remain that the respondent was, at the time, on his incorrect side of the road and a blood sample taken from him following the accident revealed, on analysis, a blood alcohol concentration of 0.185 per cent. On the count back basis this indicated a concentration between 0.12 and 0.19 per cent at the time of the accident - a high concentration indeed.

It is clear on the medical evidence and as a matter of common sense that the degree of intoxication of the respondent rendered him unfit to drive at the time. It clearly must have played a large part in the disaster which in fact occurred.

In the course of her sentencing remarks, the learned sentencing judge - who obviously agonised over what approach was appropriate in the circumstances

had this to say:- "At the date hereof, you are aged 29 years. You have been a decent, hardworking young man, and you are a member of a close-knit and supportive family. I am satisfied that you are genuinely contrite and remorseful for your actions. You also have suffered significant problems following this accident. You suffered multiple injuries in the collision, and you have continued to suffer long-term emotional problems as a result of your guilt for what you have done. As to this aspect of the matter, I have been greatly assisted by the report of Dr Fugler. He mentions that you suffer both night-time and day-time visualisations in which the accident is reconstructed in your mind. He describes you as guilt-ridden, remorseful, and depressed over your responsibility for the deaths and injuries which occurred. He has diagnosed you as suffering from a post-traumatic stress disorder of a chronic type. In his opinion, you need long-term psychiatric or psychological assistance, and his prognosis with respect to full recovery is not overly positive. The three character witnesses who gave evidence on your behalf were most impressive. I am satisfied that they were all genuine and sincere. It is clear from their

evidence that, despite these events, you continue to have the strong support of the community in which you reside. Your former employer, Mr Goddard, in particular, provided evidence as to the significant level of your remorse, and the devastating effects of these events upon you. Mr Zoontjens, in the victim impact statement, expressed a desire for you to see for yourself the grief, pain, and depression you had caused, and the way it affected other people's lives, so that you could understand the way those people feel. If he heard the evidence of Mr Goddard, I would hope that he would feel that, at least in part, his wishes have been fulfilled. Mr Goddard indicated that your distress was such that you were no longer able to continue

your employment, although he said he would re-employ you immediately if you felt capable of resuming that work. I have had considerable difficulty in reaching a decision in this case as to the appropriate penalty. The court must, in cases of this type, give considerable weight to the issue of deterrence, to bring home to you, and others who are like-minded, the consequences which flow from crimes of this type. A sentencing court is, however, also obliged to take into account the possibility of the rehabilitation of those who come before it. In your case, I consider that these matters are finely balanced. This was a tragic accident, with far-reaching consequences. I am mindful of the long-term effect on all those associated with the victims. It is clear that a custodial sentence must be imposed. I have finally decided, however, that, in all the circumstances of this case, and taking into account all the submissions of both counsel, justice will best be served by allowing you to pursue your rehabilitation within the community. I have, therefore, finally decided that it is appropriate to suspend the sentence I am about to impose."

It is the contention of the Director of Public Prosecutions that such an approach manifestly failed to recognise the inherent seriousness of the offences - given their disastrous outcomes - and also the relevant prior pronouncements of this Court concerning offences of this type.

It is trite to say that the essence of the offences of which the respondent has been convicted is that they focus on the consequences of the unlawful conduct in question, rather than any specific criminal intention on the part of the offender. In recognition of what, of recent times, has become quite understandable, vociferous outrage of the community concerning this type of offence, Parliament has marked the seriousness of it by decreeing that, in relation to a first offence, the maximum penalty is to be imprisonment for up to 10 years, coupled with a licence disqualification of not less than five years.

As was said by King CJ in MacKereth v The Queen (Court of Criminal Appeal, 18 February 1991, unreported) (at p6):- "The punishment which is inflicted must bear a proper proportion to the seriousness of the crime and the seriousness of the crime includes the consequences of the crime and, of course, the courts must be conscious of the need to deter others who may be tempted to drive after they have been drinking."

It is, of course, always a difficult sentencing task, in cases such as this, in which the offender presents as a young, hard working person, who is highly regarded in his local community and is truly remorseful for what has occurred. What is essentially involved is a balancing exercise. It is necessary to bear firmly in mind the words of King CJ in R v Hicks (1987) 45 SASR 270 (at pp272-273):- "... It is important for a court approaching its task in a detached and balanced manner not to allow its horror at the consequences of the criminal conduct to the victims to overwhelm other proper and rational considerations tending towards leniency. One cannot but be shocked by the loss of two lives, one of them cut short almost at the beginning of

life. One's human sympathy is excited by the thought of the terrible sense of grief and loss which has been experienced

and will continue to be experienced by the deceased persons' family and friends. But the learned sentencing judge had

the fate of another human being, the offender before him, in his hands. He was required to deal with him in a dispassionate manner having due regard to his character, past life and present health, and was entitled to temper justice with mercy."

Moreover, on an appeal of this nature, as the learned Chief Justice stressed in the same case:- "... the special considerations relating to prosecution appeals referred to in cases such as R v Wilton (1981) 28 SASR 362 at 363-364; R v Osenkowski (1982) 30 SASR 212 and R v Drewett (1983) 35 SASR 344 assume particular importance. As has been pointed out in those cases, prosecution appeals fall to be decided on somewhat different considerations than appeals by persons under sentence. When a person such as the present respondent has been told that he will not have to go to prison, a great load is lifted from his mind."

In practical terms a prosecution appeal places such a person in a situation of double jeopardy; and it is only in the clearest of cases, demanding such action, that this Court ought to grant leave to appeal. (The Queen v Malvaso [1989] HCA 58; (1989) 168 CLR 227 at 234, The Queen v Wait (1991) 161 LSJS 357.)

In this matter Mr Halliday, of counsel for the respondent, has properly stressed all of these considerations and has pleaded, with great sincerity, that it would be inappropriate to overturn the merciful approach which was adopted by the learned sentencing judge, particularly having regard to the character evidence before the Court, the young age of the respondent, his history of hard work, his timely pleas of guilty and the devastating physical and psychological impact which the accident has made upon him.

There is no doubt that all of these factors personal to the respondent merit careful consideration and proper recognition. Indeed they have clearly been reflected in the modest head sentence and non parole period fixed by the learned sentencing judge.

However, at the end of the day, two factors assume paramount importance in the present case.

The first is that the respondent comes before the Court as a person who has already had a stern prior warning as to the consequences of driving whilst intoxicated. Although he previously lost the privileges of his licence for two years, he clearly failed to learn from that experience. Furthermore, this was no mere inadvertent exceeding of the statutory prescribed concentration by a small margin. He was, manifestly, drinking steadily over a lengthy period of time and must have well appreciated that he was substantially in excess of the permissible limit. A probable concentration even of the order of 0.16 per cent (as was accepted by the learned sentencing judge) implies significant impairment of the faculties. It is impossible to perceive how the respondent would not have appreciated his own condition at the time.

Even more importantly, the outcome of his conduct has been nothing short of horrific. No less than three lives have been cut short and a fourth person has sustained serious injury, the effects of which are graphically portrayed in the relevant victim impact statement.

I am driven to the conclusion that so serious were the offences in this case that mitigating factors of a personal nature necessarily had to be subordinated to considerations of general and personal deterrence. To do otherwise was to transmit an erroneous signal to others who may be minded to drive whilst inebriated and would also, quite properly, attract public outrage. I consider that the suspension ordered constituted a demonstrable error in the sentencing process.

In my opinion, sympathetic as I am to the personal situation of the respondent, the clear duty of this Court, however unpleasant and unfortunate it may be having regard to the expectations engendered by the sentence originally imposed, is to allow the present application and to reverse the suspension sought to be appealed against.

I would therefore grant leave to appeal, allow the appeal and reverse the suspension of the custodial sentence imposed.

I would direct that a bench warrant issue, but lie in the registry for twenty four hours.

DIRECTOR OF PUBLIC PROSECUTIONS v STEPHEN ROBERT STONE No. SCCRM 93/469 Judgment No. 4489 Number of pages - 14 Criminal law and procedure - sentence

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DIRECTOR OF PUBLIC PROSECUTIONS v STEPHEN ROBERT STONE No. SCCRM 93/469 Judgment No. 4489 Number of pages - 14 Criminal law and procedure - sentence (1994) 71 A Crim R 417 [1994] SASC 4489 (20 April 1994)

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Cases Cited (14)