DPP v Halket [2016] VCC 520

4 The second car involved in the collision was a white Ford Territory. Inside that vehicle were Peter Cousens and his wife, Enid Cousens.

5 The third vehicle involved in the collision was a black Suzuki Swift hatchback driven by Smara Poulios, her 3 year old daughter was also in the vehicle.

6 The fourth vehicle involved in the collision was a DAF prime mover towing a tautliner semi-trailer, occupied by Jagdeep Singh.

7 Photographs of the collision scene and the vehicles were before me (Exhibit B).

8 Turning to a summary of your offending, I refer to the prosecution opening (Exhibit A).

9 A short time before the collision you departed in your truck from Oakleigh South, about 2.4 kilometres from the scene of the collision. You were observed following leaving that site to turn into Old Dandenong Road and drive part of the truck on the wrong side of the road, failing to give way to a truck coming from the right. As you were then travelling along Old Dandenong Road, you were weaving in and out of the lane, sometimes driving into oncoming lanes, while at other times driving on the verge of the road.

10 At the intersection of Old Dandenong Road and Clarinda Road, you failed to stop your truck at a red light, forcing the car that had entered the intersection to stop to avoid colliding with you. Undeterred by this incident, you continued to drive the truck in a similar manner.

11 You reached a divided section of the road near Warrigal Road, known as the South Road extension. You drove along the right side of the road next to the median strip approaching a righthand lane in the left-turn lane, at that time travelling at about 60 kilometres per hour (the applicable speed limit).

12 All of a sudden, you collided with the rear of the Ford Territory driven by Mr Peter Cousens, near the commencement of the left-turn lane. The Ford had been stationary for about 60 seconds. You did not slow or brake before hitting that car. Directly in front of the Ford was a Suzuki Swift, and in front of that car, the prime mover. The prime mover had stopped at the red light at the intersection of Warrigal Road and the South Road extension. The collision occurred about 94 metres east of the stop light intersection of the South Road extension and Warrigal Road.

13 As a result of the collision, the Ford was pushed into the back of the Suzuki, then to the right side of the road across the right-turn lane. The Suzuki was also pushed to the right, colliding with the rear-right corner of the prime mover in the process.

14 Following the initial collision with the Ford, your truck then collided with the rear of the prime mover, where it eventually came to a stop.

15 As the South Road extension approaches the intersection with Warrigal Road, the carriageway is two-way, with a lane travelling in each direction marked by a single, solid white line. Although the area where the collision occurred was undergoing roadworks at the time, the point of collision was not affected by the roadworks and the bitumen surface was in excellent condition.

16 As a result of the collision, Mr and Mrs Cousens suffered serious injuries and were treated at the scene before being taken to hospital.

17 Peter Cousens was taken to the Alfred Hospital, having sustained the injuries outlined in paragraph 13 of the prosecution opening.

18 Enid Cousens was taken to the Alfred Hospital and then transferred to the Austin Health Victorian Spinal Cord Service. She had sustained injuries outlined in paragraph 14 of the prosecution opening.

19 Police attended the scene and spoke to you and noticed your speech was slow and that you appeared dazed, vague and unsteady on your feet. At the scene you blamed a sneezing fit and its effect on your vision, as being the cause of the collision. I shall return to that later. A preliminary breath test at the scene returned a negative result for alcohol.

20 A drug test was conducted at the scene which returned a positive result. A secondary test was also positive. A subsequent analysis of the drug test revealed the presence of methylamphetamine in your body. Blood was taken from you at the hospital about four hours after the collision and an analysis of that blood revealed you had methylamphetamine in your system at a level of point 35 mg/L.

21 On 17 July 2015 you were arrested and participated in a record of interview. During that interview you maintained a sneezing fit was the sole cause of the collision, and as I said that was discussed during your plea hearing. You admitted being a user of ice and that you had used it on the previous weekend, although later in the interview admitted you had used ice the night prior to the collision, some time it would seem after about 6.00pm.

22 Police obtained call charge records for your mobile telephone from the day of the collision as well as the preceding week. During that timeframe, there were telephone calls, text messages and mobile data use that occurred frequently every day and every night. In the week leading up to the collision the longest period during which there was no overnight telephone use was three hours, and this was also discussed during your plea hearing.

23 A mechanical inspection of your truck was conducted and found to be in good working order and with all brakes and brake lights working effectively. At the time of the collision it was daylight, the road dry and the weather overcast.

24 The prosecution case was that you drove in a negligent manner for some distance prior to this collision, continued to drive in that manner and, as a result collided with the Ford causing serious injury to the victims. Further, you had had limited sleep during the week prior to the collision and had used ice in the week preceding it, and also the night before. Those factors, the prosecution submitted, and accepted by you on your plea, had contributed to your negligent driving on this occasion at this collision.

25 You entered pleas of guilty to these charges at a committal mention on 4 December 2015. As a result, witnesses were not required to be called to give evidence at that hearing. As you have pleaded guilty to these charges, you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses, including Mr and Mrs Cousens, have also been spared the ordeal of having to give evidence and relive the collision upon your trial. Further, I take into account in your favour, you intimated early your intention to plead guilty to these charges and I accept your plea of guilty indicates remorse for your offending.

26 The victims of your offending, Mr and Mrs Cousens, have suffered considerably as a result of it. I shall return to pass some comments upon that later. Suffice to say at this stage the physical and emotional injuries sustained, particularly by Mrs Cousens, are profoundly serious.

27 Mr Fitzgerald of counsel, who appeared on your behalf, prepared an outline of written submissions for your plea hearing and addressed them during the course of it (Exhibit 1).

28 He submitted your current circumstances were that you were living on your own in rental accommodation and you were also taking Suboxone, 4 milligrams daily.

29 You are the middle of seven children, however, over the last 10 years or so you had drifted apart from your siblings. Your father had been in steady employment over the years, your mother involved in home duties and then, as I understand it, in a cafe after the children started school.

30 You attended Northvale Primary School and Clayton Technical College, leaving at age 16. You then worked as a bricklayer for six years before forming your own business in which you worked for a couple of years.

31 During that time at age 19 you moved to Corowa for about eight months then returned to Melbourne to continue your work as a bricklayer.

32 When you were about 22 or 23 you joined the Army Reserve and injured your back while working at the Simpson barracks.

33 You then ceased bricklaying and started working as a landscape gardener in the Frankston and Endeavour Hills area, working as such for about four or five years.

34 When you were about 26 years of age you formed a relationship with Cathy Nicolls, and lived together until you separated when you were 29.

35 You then moved to Adelaide where you began working as a roadie with a band. You also worked as a truck driver, doing deliveries around Adelaide and also worked in a factory.

36 At around that time you began drinking heavily, up to a carton of beer or a bottle of Jim Beam a day. Also, as part of your life as a roadie you began using heroin and also amphetamine.

37 You then formed a relationship with Marian Pledge which lasted for about two years.

38 You returned to Melbourne when you were about 36 or 37 and lived with a new girlfriend, Michelle North.

39 You then got work as a truck driver delivering building materials in the Forest Hill area, for about four to five years.

40 Your relationship with Ms North ended when you were about 41. You instructed you had not consumed alcohol since then. While in your previous relationship with Ms North, however, you had been drinking heavily. You said you started using ice in approximately May 2014.

41 Most recently you were in a relationship with Ms Da Costa, although you described that relationship as having been 'on and off' at times. Despite that, she has remained a friend and was in court during your plea hearing to support you.

42 You then began working for a trucking company involving big tipper trucks around Melbourne, removing mud and clay from building sites. You commenced working with your employer at the time of your offending in the beginning of 2014.

43 Regarding this offending, you conceded you had used ice the evening prior following a disagreement with Ms Da Costa. You said you did get some sleep the night before and you said you felt badly dehydrated.

44 Mr Fitzgerald submitted you maintained you had a series of sneezes immediately prior to the collision, which you said led to a lapse in your concentration.

45 You have acknowledged your driving resulting in this collision has had significant adverse consequences for your victims, Mr and Mrs Cousens. You instructed you were deeply remorseful for your offending and the impact upon them.

46 Mr Fitzgerald, on your behalf, conceded that the injuries sustained by Mrs Cousens were long lasting and debilitating, and fell at the higher end of seriousness. I agree with that classification. There is no doubt that the injuries sustained have been devastating to her, both physically and emotionally, consistent with the sentiments expressed by her in her victim impact statement to which I shall later refer. There is no doubt her life has changed for the worse as a result of your offending.

47 In relation to Mr Cousens, Mr Fitzgerald submitted that the seriousness of the injuries he sustained were not at the higher end, but then nor at the lower end. The physical injuries sustained by him were not in the same category as that of Mrs Cousens, but nevertheless were not insubstantial. He also suffered ongoing emotional impact of your offending which affected his daily life, in particular, involving the care of his wife. Mr Fitzgerald did not attempt to minimise the injuries sustained during the course of the plea hearing.

48 Mr Fitzgerald conceded that there needed to be, based on your prior driving history, specific deterrence when sentencing you. However, he urged your history was 'slight' and would not warrant great reliance upon specific deterrence. I disagree.

49 I turn to your prior driving history. Since 1988 you have appeared at court for driving offences on six occasions and received an infringement notice. You appeared in 1988, 1990 and 1991 for offences of exceeding the prescribed concentration of alcohol, on another occasion in 2012 disobeying a traffic control signal and in 2014 driving whilst your licence was suspended. The traffic infringement notice related to exceeding the speed limit.

50 I do note your driving history is over an extensive period of time, that is 1988 to 2014, and with relatively few court appearances in those 26 years. However, your ongoing offending shows disregard by you of driving rules.

51 Mr Fitzgerald conceded there was a need for general deterrence and denunciation when sentencing you. I agree.

52 It was conceded by Mr Fitzgerald that in relation to your offending and your moral culpability, you had driven the truck having taken ice the night before. As I discussed with Mr Fitzgerald it would seem sometime after about 6.00pm that night. Further, it was conceded you had not had sufficient sleep over a number of days prior and, in particular, the evening prior. I discussed this at some length with both counsel and the records to which I was referred by the prosecution show you had spent time downloading information during the early hours of the morning prior to the collision, at 1.11am, 3.05am, 4.48am and 6.51am.

53 Mr Fitzgerald also conceded the evidence showed that over approximately 2.4 kilometres prior to the collision scene, your driving, as observed by Mr Burgess, was very concerning. It certainly was.

54 I note and discussed with Mr Fitzgerald your instructions that you thought you had had a sneezing episode over approximately 100-200 metres prior to the collision. That of course would not explain your bad driving over approximately 2.2 kilometres, as observed by Mr Burgess, prior to the 100-200 metres prior to the collision.

55 A significant amount of time was spent discussing with Mr Fitzgerald your instructions that you had sneezed immediately prior to the collision, ie: contributing to the collision. In that regard, I discussed with Mr Fitzgerald the other evidence which tended to suggest different explanations by you, including coughing and/or sneezing, and most recently in the report of Mr Cummins dated 30 March 2016, coughing. Ultimately, Mr Fitzgerald was not submitting that your instructions were as you were sneezing that this would be mitigatory of sentence.

56 I have some concerns regarding your instructions that sneezing caused you to lose concentration, or rather not be able to concentrate at the time of the collision. Ultimately I do not regard your explanation of sneezing as mitigatory, however, nor is it an aggravating feature of your offending.

57 Mr Fitzgerald referred to your work history as having been solid over the years, despite your use of various substances, being alcohol or illicit drugs. I of course discussed with Mr Fitzgerald that, in particular, on this occasion you were also working but under the influence of ice.

58 Mr Fitzgerald submitted you had longstanding issues regarding substance use, more recently with drug use and in the past with alcohol use. He submitted you had attempted to deal with your drug use, although I note you had not, on your instructions, undertaken any formal drug and alcohol counselling in the past. No reason was proffered as to why you had not sought such assistance by age 48.

59 It is clear you require assistance for your drug use. Hopefully, at 48 years of age you now appreciate that need and will seek out any such counselling should it be offered to you in custody, also upon your release, taking advantage of ongoing assistance to avoid relapse into drug use and the potential for you to offend in the future that may be drug related.

60 A report was also before me from Mr Jeffrey Cummins, Consulting Clinical and Forensic Psychologist, dated 30 March 16 who assessed you on 24 March 16.

61 Mr Cummins referred to correspondence from Dr Dharmage from Heatherton Consulting Rooms dated 23 November 2015, who diagnosed you on 3 September 2015 with anxiety symptoms and a generalised anxiety disorder with panic symptoms since the collision. He noted you had never experienced a psychiatric illness prior to this motor vehicle collision.

62 Mr Cummins set out further details of your background and history.

63 Your parents remain supportive of you and your father and a family friend, Mr Stephen Curnow, were in court to support you during your plea hearing.

64 You described being raised in a loving and caring family, and further details were provided of your education and employment history within that report (Exhibit 2, paragraphs 12 and 13).

65 You told Mr Cummins you had not had any paid work since the collision in May 2015, although approximately three months prior to his assessment you said you received a licence renewal, which precluded you from driving a truck.

66 You had never been diagnosed with any chronic physical or mental condition, nor been hospitalised in a psychiatric hospital or in a psychiatric ward of a general hospital.

67 You instructed that you often thought about this collision.

68 Further details of your relationship with Ms Da Costa were also contained within the report (paragraph 20).

69 Reference was also made to your history of alcohol consumption and drug use (paragraphs 21-22). While working as a roadie in Adelaide, you said you became a frequent user of amphetamines. In the last two years when living in Adelaide you were an intravenous heroin user, ceasing heroin use when you came to Melbourne, at which time you were prescribed Suboxone. You had been taking Suboxone for approximately the last 10 years on a daily basis.

70 Over the past three years, you describe intermittently smoking and sometimes injecting methylamphetamine, and that you had used a point of methylamphetamine the evening prior to this collision. You also told Mr Cummins you may have used more than 1 point on that occasion. Mr Cummins made reference to your apparent continued use of methylamphetamine, through your own admissions, on the weekend prior to you being interviewed on 17 July 2015 by police for this offending.

71 Your self-report to Mr Cummins was that you were no longer using methylamphetamine.

72 You told Mr Cummins you had a coughing fit at the time of this collision, and that you had methylamphetamine in your blood, and had only approximately four hours sleep the night before following your discussion with Ms Da Costa.

73 You told Mr Cummins you were embarrassed and concerned about the injuries received by both victims.

74 In interview with Mr Cummins, you acknowledged you should have been more vigilant and prudent about driving any vehicle, let alone a heavy tipper, under the circumstances where you were still under the influence of illicit drugs, and/or where you could have been fatigued.

75 Turning to Mr Cummins' conclusions and opinion, he currently diagnosed you with a reactive adjustment disorder with mixed anxiety and depressed mood with some panic symptoms, following this collision. Your adjustment disorder was reactive to the collision of 8 May 2015.

76 He identified two risk factors for your being a possible return to using and/or abusing illicit drugs and/or alcohol, and chronic loneliness. You are at least moderately depressed and in the absence of appropriate treatment your mental health is very likely to deteriorate. Mr Cummins urged that you request antidepressants if incarcerated, although he suspected (given your past refusal to take prescribed medication) that you would refuse to seek out mental health treatment and take medication. I strongly urge you to reconsider that attitude.

77 In Mr Cummins' opinion, if you were incarcerated, the risk of mental health problems would be exacerbated the longer you spent in custody. In that regard, I urge you again to seek medical assistance and take any prescribed medication to assist you during your incarceration.

78 On the material before me, and in particular the report of Mr Cummins, Mr Fitzgerald conceded he was not relying on the principles in R v Verdins and Ors[1]. In my opinion that concession was appropriate.

79 Regarding any difficulties you would experience in custody, Mr Fitzgerald relied upon those closing paragraphs in the report of Mr Cummins, which I have discussed with him. I am aware when sentencing you that this will be your first time in custody and that your mental health may be adversely affected during the course of your incarceration, although there may be some assistance to you if you take prescribed medication.

80 There was a reference before me from Stephen Curnow who has known you all your life and had interacted with you over many years. He said he always got on well with you. He understood you had held jobs consistently until this offending. You had a close and protective relationship with your siblings and a good relationship with your parents.

81 He said you were a loyal person who would do anything you could to help others and that you had been devastated by this train of events.

82 He had spoken to you and you understood you had done wrong and that two people had directly suffered such pain and trauma to a point whereby their lives would probably never be the same.

83 Turning to sentence, Mr Fitzgerald conceded your offending was serious and as previously stated, general and specific deterrence were relevant sentencing considerations, although I refer again to his description of the specific deterrence being slight.

84 Through your plea, you acknowledged that by driving your truck, having consumed ice the night prior and not having a good night's sleep, you put yourself in a position where there was a danger you would not be able to drive safely.

85 Again, he says you were deeply remorseful for your offending and the effect it had had on the Cousens' lives.

86 I am also aware, consistent with the sentencing submissions at paragraph 44, as I previously stated, that your plea of guilty had spared the Cousens and other witnesses the ordeal and cost of a committal hearing, as well of course as a trial.

87 He submitted you are currently not using drugs and had the support of your parents and former partner. It was submitted you had good prospects for rehabilitation. In that regard I do have some concerns. I remain concerned, given your prior driving history and your decision to date, at age 48, to not seek formal drug and alcohol counselling, nor take previously prescribed medication. You have attempted abstinence in the past without long-term success. I note in passing a subsequent court appearance on 5 August 2015 for driving whilst your licence was suspended, although I am very much aware that offending pre-dated this collision, specifically occurred in December 2013.

88 I hope your appreciation of the gravity of this offending and appreciation of the serious injuries which have impacted significantly upon the lives of both your victims will encourage you to rehabilitate.

89 Although one must never give up hope of your eventual rehabilitation, in my opinion your prospects are guarded. When sentencing you, I must of course, seek to maximise your chances of rehabilitation as they may be.

90 While it was conceded that a term of imprisonment was warranted for your offending, Mr Fitzgerald urged I consider the imposition of a term of imprisonment, combined with a community correction order. In that regard I am also aware of the decision of Debono v R[2]. I was referred to authorities including Boulton and Ors v R[3]. I discussed that submission at some length with Mr Fitzgerald. I am conscious of Boulton and that a community correction order with imprisonment may, in certain circumstances, be appropriate. In Boulton the court urged judges to rethink the conventional wisdom about whether prison was really the only option. The decision in Boulton emphasised the grave disadvantages of imprisonment and the unique advantages of a community correction order which, in permitting significant punishment to be imposed while at the same time advancing an offender's rehabilitation in a way that imprisonment cannot. I am acutely aware of that decision. Boulton has been referred to in a number of cases since, including DPP v Maxfield[4], Alam v R[5], Maracchini v R[6] and Hutchinson v R[7], just to mention a few, although of course when reading those authorities I am mindful of the different offending in those cases from yours.

91 However, as I discussed with Mr Fitzgerald, I do not understand Boulton to remove the need to take into account s5 Sentencing Act 1991, nor did I understand Boulton to mean that the sentencing principles stated by the Court of Appeal, relevant specifically to this type of offending, now amounted to nought, nor did I understand the decision in Boulton to remove the instinctive synthesis when sentencing.

92 Nor did I understand Boulton to remove the need for me to be mindful of the maximum penalty considered to be appropriate for this type of offending.

93 Specifically relevant to your offending, I discussed with counsel the recent decision of Harrison and Rigogiannis v R[8], (post Boulton). Mr Fitzgerald agreed that decision addressed current sentencing practices in relation to the offence of negligently causing serious injury, particularly in driving cases, and the factors that the court was required to consider when determining the sentence.

94 Mr Fitzgerald submitted that decision also supported the proposition that a community correction order, in combination with imprisonment, may be appropriate in some cases. He was, of course, relying specifically upon the principles in Boulton in support of his submission that there be a combination disposition imposed in your case. I discussed at some length with Mr Fitzgerald the decision of Harrison.

95 Mr Fitzgerald submitted that your offending did not fall at the highest level. I disagree with Mr Fitzgerald's classification of your offending as being midrange.

96 In Harrison the court also referred to the objective gravity of negligently causing serious injury by driving, to be assessed by reference to the degree of negligence and the seriousness of the injury caused (paragraph 44).

97 I regard your degree of negligence as very high, although not the worst imaginable case, noting the words of the Court of Appeal in Harrison.

98 The court in Harrison also advised against the common practice of drawing detailed distinction between the precise injuries suffered in different cases (referring to paragraph 68) further -

"At least where the negligence of the driving is at the upper end. It is not appropriate to attempt to distinguish between serious injury in this way. Such distinction will not alter the fact that the offence remains in the upper range of seriousness." [para 69]

99 The court also referred to the importance of general deterrence and denunciation and that as the importance of those factors increased there was a correspondent diminution of the mitigating effects of factors such as, in some cases, the offender's youth and an offender's prospects of rehabilitation.

100 Regarding dispositions involving a community correction order, or community correction order with a term of imprisonment, the court stated that the likelihood of either a community correction order, or community correction order with imprisonment would be appropriate, diminished as the degree of negligence and the seriousness of the injuries increased. As the court recognised in Boulton, a point would be reached at which such sentencing options ceased to be capable of satisfying the sentencing purposes of punishment, denunciation and deterrence (and I include specific deterrence relevant to you in addition to general deterrence) (paragraph 130).

101 In my opinion, taking into account all matters relevant to your offending and matters personal to you and in mitigation of your sentence, that point has been reached and that the disposition urged upon me by Mr Fitzgerald would be manifestly inadequate.

102 There were two victim impact statements before me.

103 From Enid Cousens, who described the enormity of the impact upon her of your offending. Her victim impact statement was written in November 2015, and I note she has now returned to live with her husband. As a result of your offending, she was required to live at a rehabilitation centre for a number of months, learning to live normally again. It would take her up to three hours every morning to do bowel preparation work, showering and get dressed. When she was able to go home during that time to spend time with her husband, she was depressed when she had to return to the rehabilitation centre for the night. When she first started living at the rehabilitation centre, she would wake thinking this was all just a bad dream, but soon realised it was not. She found it frustrating, relying on nurses to get her started in the morning and to put her to bed at night. She became angry and frustrated when trying to stand and walk, was having physiotherapy, at the time of the victim impact statement, on a regular basis to assist her. She and her husband had had a lot of difficulty finding a suitable home for her to come home to, as she needed a wheelchair friendly environment. I note fortunately such accommodation has apparently been found and that they are now able to live together again. Your offending had affected her relationship with her husband, as she was not only trying to deal with her own physical and emotional issues, but trying to support him.

104 As a result of your offending she was mobile through use of a wheelchair. How much longer she would need to be wheelchair bound was inconclusive according to recent instructions to the prosecutor, Mr Fisher. At this stage, doctors were unable to determine if this would be for the rest of her life.

105 At the time of writing her victim impact statement, Mrs Cousens described trying to stand, however, her legs would collapse. There was also nerve damage, which she had been told may stay that way. She had a spinal fusion and a rod inserted which was frustrating and stressful. She had put on weight since being confined to the wheelchair. She was also seeing a psychologist as 'things' at times were overwhelming for her. She was on painkillers for her nerve damage and had spasms when sitting up or lying down, which meant she could not breathe properly for short times. After leaving the rehabilitation centre she had to return regularly to help retrain her bladder. At the date of her victim impact statement she still had a catheter.

106 There has been financial impact upon she and her husband as a direct result of your offending. They had to move house since your offending as she needed to be in a wheelchair friendly environment. That had meant an increase in rental cost. She had also lost a significant amount of her wages.

107 There was also a victim impact statement from Peter Cousens dated 4 November 2015, who described after your offending having trouble sleeping for at least two months. He suffered occasional anxiety and great sadness (then) being separated from his wife for five months due to her being in hospital. He had been unable to work for approximately three and a half months and had his drive's licence suspended for three months due to the head injuries he sustained in the collision.

108 Mr Cousens also experienced several months of stress and frustration trying to find somewhere larger to rent as his wife required wheelchair friendly accommodation and their then accommodation was not suitable. He felt emotionally 'down' as he was not able to work with his friends.

109 In the first month after you offending, Mr Cousens had poor memory and problems with balance due to head injury he sustained in the collision. He also had ongoing numbness to his right foot. When his driver's licence was suspended, he had difficulties with leisure activities and difficulty visiting his wife in hospital. At work, he was required to do retesting of heavy equipment and some IT training. He also had ongoing doctor, physiotherapist and psychologist appointments.

110 Eventually, Mr Cousens said he was able to find appropriate wheelchair friendly accommodation for he and his wife, at an increase in cost of rent. He described living apart from his wife for five months when she was in hospital as very upsetting, and that he had greatly missed her.

111 A number of authorities have referred to the notion of social rehabilitation, including DPP v Toomey[9] in which His Honour Vincent J cited DDP v DJK[10] allowing of course for differences in the factual circumstances in those cases to yours. I read part of those paragraphs into the transcript and I will not repeat them here.

112 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon the victims to swamp the sentencing process.

113 Mr Fisher, who appeared on behalf of the prosecution, submitted regarding your offending that you were fatigued, deprived of sleep, had used ice, which in his submission was 'a recipe for disaster.'

114 Mr Fisher submitted I should reject any suggestion that a community correction order with imprisonment would be appropriate in your case. He submitted that such a disposition, in all the circumstances of your offending, being mindful of the relevant factors to consider when determining the seriousness of your offending, as stated in Harrison, meant that such a disposition would be manifestly inadequate. As previously stated, I agree.

115 Mr Fisher referred to your bad driving over a considerable period of time and distance prior to the collision, occurring at mid-morning and on a major road. The collision had also involved three other vehicles, with Mr and Mrs Cousens sustaining serious injury. He submitted the injuries sustained by both Mr and Mrs Cousens were at the higher end of the scale. I previously referred to my opinion in that regard.

116 Overall, Mr Fisher submitted your offending was not mid-range or moderate, but at the high end of the scale. I agree.

117 Mr Fisher referred to you being 47 at the time of this collision and with a relevant prior driving history. Further, you had used ice on this occasion.

118 He referred to Harrison in which the Court of Appeal stated:

"In our view CSP for NCSI involving driving in the upper category of this offence is plainly inadequate. First, sentences imposed for offences in the upper range of seriousness disclose and inadequate response to the increase in the maximum penalty. There has been an inappropriately narrow range of sentences imposed in cases comparable to those the subject of these appeals." [para 137]

"The increase in the maximum necessarily implies that there should be some increase in the sentences actually imposed." [para 138]

120 I note the increase in sentence for this offence from 5 to 10 years in 2008 as fixed by Parliament.

121 I am also required to, and do have regard, to current sentencing practices (s5(2)(b) Sentencing Act 1991).

122 Mr Fisher submitted in all the circumstances an immediate custodial sentence was the only appropriate disposition.

123 I took both counsel to paragraph 49 of Harrison. Mr Fisher submitted that when sentencing you for these offences the principles stated by the Court of Appeal in Harrison were applicable. Mr Fitzgerald accepted the prosecution submission. I gave Mr Fitzgerald an opportunity to revisit this, should he wish to, and set down some dates for filing of any material if he wished to further agitate that issue. No submissions were forthcoming from Mr Fitzgerald or Mr Fisher, and I confirmed that prior to your sentence today.

124 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this, consistent with Harrison and the many cases referred to therein.

125 There is also the need for specific deterrence when sentencing you. While you do not have any prior offences for this type of offending, you nevertheless have a very disturbing driving history.

126 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This continues to concern me.

127 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.

128 In sentencing you I take into account the principles of totality.

129 On Charge 1, you are convicted and sentenced to 4 years and 6 months' imprisonment.

130 On Charge 2, you are convicted and sentenced to 6 years' imprisonment.

131 Charge 2 is the base sentence and I direct that 18 months of Charge 1 be served accumulatively upon Charge 2.

132 That results in a total effective sentence of 7 years and 6 months' imprisonment and I direct that you serve a period of 5 years before you are eligible for parole.

133 Pursuant to s6AAA Sentencing Act 1991 had you pleaded not guilty to these charges and been found guilty of them I would have sentenced you to 9 years' imprisonment with a non-parole period of 7 years.

134 Pursuant to s18(4) Sentencing Act 1991 I declare you have spent 8 days in custody (up to and including 7 April 2016) by way of pre-sentence detention and I direct that be entered into the records of the court.

135 The prosecution also referred to your licence cancellation for a minimum of 2 years pursuant to s89 Sentencing Act 1991. I cancel your licence for a period of 7 years effective from 31 March 2016, being mindful of the decision of Lefebure[11].

136 The prosecution made application for forensic sample pursuant to s464ZF Crimes Act 1958. That was not opposed by counsel on your behalf, and I make the order in the terms sought. I make the order on the basis of the seriousness of this offending and your prior offending history. It will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample.

137 Any other orders? Thank you to both counsel for assistance.

[1] [2007] VSCA 102; (2007) 16 VR 269

[2] [2016] VSCA 16

[3] [2014] VSCA 342

[4] [2014] VSCA 95

[5] [2015] VSCA 48

[6] [2015] VSCA 29

[7] [2015] VSCA 115

[8] [2015] VSCA 349

[9] (2006) VSCA 90

[10] (2003) VSCA 109, [17]-[18]