R v Audino [2007] VSCA 318

Court of Appeal (Vic)|2007-12-21|Before: MAXWELL ACJ, ASHLEY and NEAVE JJA

CRIMINAL LAW - Sentencing - Culpable driving - Blood alcohol reading 0.141 -Whether double punishment where cumulation of sentences for summary offences (driving while disqualified and driving with excess alcohol in the blood) upon sentence for culpable driving - Whether delay of 18 months before sentence resulted in unfairness to the appellant - Prospects of rehabilitation - Whether sentencing judge entitled to reject unchallenged expert opinion that prospects of rehabilitation were good - Appellant suffered from depression and alcoholism stemming from sexual abuse as child - Whether moral culpability lessened - Appeal allowed - Appellant re-sentenced.

2 The appellant has one prior conviction. On 3 October 2004, she was convicted of driving a motor vehicle whilst having a blood alcohol concentration in excess of .05 per cent. Her blood alcohol concentration on that occasion exceeded .1 per cent. Her driver's licence was cancelled and she was disqualified from driving for 10 months. The accident giving rise to the present charges occurred on 2 November 2004, only one month after the cancellation of her licence and the commencement of the period of disqualification.

3 On 28 June 2006, the appellant was sentenced as follows: on count 1 (culpable driving), to six years' imprisonment; on count 2 (negligently causing serious injury), to three years' imprisonment, one year of which was directed to be served cumulatively on the sentence imposed on count 1; and on each of the summary counts - exceeding the prescribed concentration of alcohol, and driving while disqualified - to one month's imprisonment, to be served concurrently with each other and cumulatively on the sentence on count 1.

4 The total effective sentence was seven years and one month's imprisonment. The trial judge fixed a non-parole period of four years and seven months. By leave, the appellant now appeals against the sentences imposed.**

**5 On 2 November 2004, the appellant spent a large part of the day - it being Melbourne Cup Day - at a hotel watching the races. Rita Bonnici was with her and the deceased, Michael Mark Hanely, was also present for most of the day. Both Bonnici and Hanely were tenants living in the appellant's house. According to Ms Bonnici, the appellant drank two cans of Victoria Bitter at home before going to the hotel. She drank another six cans at the hotel and, after coming back home, drank two more, making a total of 10 cans of full strength beer. According to Ms Bonnici, the group arrived back home at about 6.00 pm. About an hour later, the appellant and Mr Hanely left again, in the appellant's car. The appellant was driving. They left to go and buy cigarettes and alcohol. Ms Bonnici said that the appellant was 'off her face' at this point.

6 The fatal collision occurred at about 7.45 pm that evening, on Calder Park Drive, Calder Park, approximately 400 metres west of the Calder Freeway. The appellant's car went out of control and slid, passenger side leading, across the road, in front of a four wheel drive vehicle travelling in the opposite direction. The collision occurred in the lane occupied by the four wheel drive vehicle, which was forced backwards by the impact. The appellant's car slid further forward into the middle of the road, coming to rest almost facing the way it had come.

7 Mr Hanely, who was the front seat passenger in the appellant's car, was killed instantly. His partner of 17 years, with whom he had raised three sons, spoke in her victim impact statement of the grief and anger which she and her sons continue to experience.

8 The two adult and two child occupants of the four wheel drive received injuries and were all taken to hospital. Eddie Iob, who was the front seat passenger, received serious long term injuries to his leg. At the date of the plea, he was suffering ongoing pain and depression, and he had been unable to resume his former employment. The anger and frustration he has experienced have placed a strain on the whole family. His wife, who was driving, and their two children, received less serious injuries, from which they have made a good recovery.

9 The appellant received serious injuries and was taken to hospital, where she remained for twelve days. She has no recollection of the accident at all. The evidence from the police engineer was that, if the four wheel drive was stationary at the time of impact, the speed of the appellant's car at the time of loss of control was 110 kilometres per hour. On the night of the accident, it was raining and the road was wet. Traffic was not heavy. The appellant had passed a speed restriction sign (70 kph) 180 metres before impact. The collision occurred in what was a right hand bend for the appellant. The bitumen road surface is good. The road is well marked and laid out and flat.

10 A senior forensic physician, Dr Morris Odell, considered the appellant's alcohol reading and expressed the following opinion:**

The appellant was driving after having consumed alcohol.
The blood alcohol concentration of 0.14 % corresponded to the alcohol content of 3.1 cans of beer 65 minutes after the death. It was not possible to calculate whether this was any different at the time of driving.
The appellant's driving skills would have been adversely affected by the alcohol. She would have been absolutely incapable of having proper control of a motor vehicle.

**The learned sentencing judge erred in ordering that the one month imprisonment imposed for the two summary offences be served cumulatively to the other sentences.

11 Counsel for the appellant pointed out that, in determining the seriousness of the offence of culpable driving, the trial judge treated as aggravating circumstances the fact that the appellant had been driving while disqualified and intoxicated. Reliance is placed on the following passages from the sentencing reasons:**

At 8.50 p.m. a blood sample was taken from you and found to contain 0.141 per cent alcohol content. It is not surprising that there is evidence that with that content of alcohol in your blood you would have been absolutely incapable of having proper control of a motor vehicle.

A significant factor in relation to sentencing is that on 3 October 2004, just one month before this collision, you were convicted of driving with a blood alcohol concentration exceeding .05 per cent and you were prohibited from driving for 10 months. You were an unlicensed driver at the time of this collision.

**12 It is submitted that the order for cumulation of the one month's imprisonment imposed for the summary offences (driving while disqualified and driving with more than the prescribed concentration of alcohol in the blood) amounted to double punishment. Reference is made to the decision of the High Court in Pearce v The Queen.[1] Counsel also points out that, on the plea, the prosecutor's submission anticipated a concurrent sentence for the summary offences, while not conceding that the principles in Pearce were applicable.

13 In Pearce, the appellant had been convicted on separate counts of -

(a) maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm; and

(b) breaking and entering the house of the victim and, while inside, inflicting grievous bodily harm on him.**

He had been sentenced to identical terms of imprisonment on both counts, and the sentences had been made wholly concurrent. It was clear that the infliction of grievous bodily harm was an element of each of the offences.

14 The High Court concluded that the sentence on each count must have contained a portion which was to punish him for the infliction of grievous bodily harm. He had been 'doubly punished for the one act', notwithstanding that there had been an order for concurrency. McHugh, Hayne and Callinan JJ said:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[2]

15 The offence of culpable driving causing death is created by s 318(1) of the Crimes Act. Subsection 318(2) defines the phrase 'drives a motor vehicle culpably' for the purposes of s 318(1). In the present case, the presentment relied on two of the four limbs of that definition, alleging that the appellant had driven:

(b) negligently, that is to say, [failing] unjustifiably and to a gross degree to observe the standard of care which a reasonable [person] would have observed in all the circumstances of the case; or

(c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle[.]

16 The Crown opening, which summarised the facts for the purposes of sentencing, referred specifically to the forensic physician's opinion that the appellant 'would have been absolutely incapable of having proper control of a motor vehicle.' Clearly, therefore, the appellant was pleading guilty to a count of culpable driving defined by reference to s 318(2)(c). Reading the words of that subparagraph into the language of the substantive offence, the appellant by her plea of guilty was admitting that she had

caused the death of another person by driving a motor vehicle whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle.

17 As a matter of substance, therefore, the act of driving with excess alcohol in the blood was an element both of the summary offence and of the culpable driving offence. On the authority of Pearce, the appellant was not liable to be punished twice for the same act. The same conclusion is dictated by s 51(1) of the Interpretation of Legislation Act 1984, which provides:

Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.

**18 Although the Crown's written submission disputed the point, senior counsel for the Crown in oral argument conceded that there had been double punishment in relation to the drink driving charge. In my view, for the reasons given, that concession was properly made. It may be that the consequence of this analysis is that no conviction should have been recorded on the summary offence,[3] but it is unnecessary to resolve that question now. There is no appeal against conviction.

19 That conclusion is sufficient for this ground to be upheld. Had it been necessary to decide the question, I would have reached a different conclusion with respect to the summary count of driving while disqualified. There was no common element between that offence and the offence of causing death by culpable driving. Nor, in my view, does any question of double punishment arise merely because the fact of driving while disqualified was treated as aggravating the seriousness of the culpable driving charge. The summary offence was committed immediately the appellant began to drive her car. The fact that she ought not to have been on the road at all, because of a drink-driving disqualification, was separately relevant to the court's assessment of the culpable driving offence.**

The learned sentencing judge erred by failing to give any weight to the delay in charging the appellant.

**20 The fatal accident occurred on 2 November 2004. The appellant was not, however, charged until almost 12 months later. The plea of guilty was entered within a matter of weeks, on 14 December 2005. Sentencing did not take place until June 2006.

21 Defence counsel relied on this delay as a mitigating factor. Reliance was placed on the concession made by the then Director of Public Prosecutions on the hearing of the appeal in DPP v Wareham that a 'delay of 12 months between the offence and the charge [of culpable driving] being laid was unusual and could be taken into account.'[4] When the point was raised on the plea, the trial judge remarked that 12 months between the event and the charge was 'a normal delay'. When asked by his Honour to comment, the prosecutor said it was a 'fairly standard sort of delay', which was 'not significant in the context of this case.'

22 The sentencing judge made no reference in his sentencing reasons to the question of delay. With respect, I consider that the appellant was entitled to know whether the submission had been accepted or rejected and - if rejected - the reasons for the rejection. The submission made on her behalf was given particular force by the Crown concession in DPP v Wareham.[5] But the lack of any reference to a matter in sentencing remarks does not necessarily warrant the inference that the particular matter was not taken into account. As Ormiston JA said in The Queen v Nikodjevic:[6]**

[T]he assumption ought ordinarily to be that the judge has taken into account those matters raised before the Court and has chosen to reflect it in the ultimate sentence, albeit without explicitly saying how or to what extent it has been taken into account.

23 In this case, the delay ground is relied on only as to unfairness.[7] According to the written submission

the impact of the delay was significant. The appellant was left in limbo, not knowing what action was to be taken against her.

The submission for the Crown maintained the position that a delay of this length was 'not unusual' and that no relevant unfairness arose. It was said that the appellant could not have been in any doubt that she would be charged and that to treat delay as a sentencing consideration in the present case would be to 'invite the argument in every case'.

**24 The counter view would be that, because the appellant was inevitably going to be charged with culpable driving, it was unfair for her to have had to wait almost a year to be charged and another six months to be sentenced. Given the circumstances of the collision, and the appellant's complete lack of recollection, it was inevitable she would be convicted and would be sentenced to a lengthy jail term. On this view, there was, in the particular circumstances of the case, undue delay.[8]

25 I think there is real force in the argument that, as a matter of fairness the appellant should have been able to commence serving her inevitable prison term much sooner. But this ground is concerned not with the merits of the argument but with whether the sentencing judge took delay into account at all. In view of my conclusions on grounds 2 and 4, it is unnecessary to decide that question.**

**The learned sentencing judge erred by failing to accept that the appellant had good prospects of rehabilitation.

26 The material before the sentencing judge as to the appellant's progress since the accident was, unfortunately, scant. On the plea, the appellant's counsel said that the appellant:**

had sought 'other assistance' for her alcohol problems;
had in the 18 months since the incident decreased her drinking significantly;
had attended ISIS Primary Care 'for help'.

No details were provided to the sentencing judge of the 'other assistance' or of the nature or frequency of the 'help' from ISIS Primary Care.[9] When the sentencing judge enquired whether there were records of the ISIS care available, the defence responded that they doubtless existed but had not been obtained. The appellant's case worker at ISIS Primary Care was unwell and, as a result, no information was available from her.

27 It is difficult to understand how those representing the appellant could have allowed the plea in mitigation to be completed in the absence of this crucial information. The appellant was inevitably facing a substantial period of imprisonment and what was required was a full account of the progress she had made, of the counselling she had attended and of the other assistance she had sought with respect to her alcohol problem. In the event, all that could be said was that the appellant was

somebody who has attended some counselling sessions, who has remorse for her actions ..., who has reduced her alcohol intake in order to be able to see her children more regularly and who has had [before the offence] periods of stability in her life in fact where she has managed to hold down jobs, save up enough money to buy a house and be a good mother to her children and because of those periods in her life, ... it would be open for your Honour to find that she does in fact have good prospects for rehabilitation ...[10]

28 Reliance was also placed on a report by Ms Carla Lechner, a consultant clinical and forensic psychologist. Ms Lechner's assessment of the appellant's psychiatric condition is considered under the next ground. The part of Ms Lechner's report relating to the prospects of rehabilitation was in these terms:

She presents as a depressed woman, with some borderline personality features, whose genesis and maintenance stems from her experience of sexual and emotional abuse, with an aggravation of her symptoms following disclosure of her daughter's similar experience. She has tended to use alcohol as a means of coping. Since the accident, Ms Audino has significantly reduced her alcohol intake. She expresses appropriate remorse for her actions and presents with favourable rehabilitation prospects.

Ms Audino is a psychologically fragile woman, who will need ongoing support, supervision and guidance. She expresses remorse for her actions and a willingness to remain involved with counselling services. Although frightened about jail, she is determined to continue her rehabilitation whilst in custody so as to minimise the risk of relapse to drinking upon her eventual release into the community. In view of her limited prior history, behavioural changes that have occurred subsequent to the accident despite a high level of anxiety, and her participation in counselling, her prognosis is favourable. It is hoped that Ms Audino may be afforded a lengthy parole period during which she can continue to receive the help that she needs.[11]

29 There was no challenge to this evidence. In his sentencing reasons, his Honour referred to the report and said:

You were assessed as "cognitively and emotionally immature" and as suffering from depression over a long period of time that falls into the moderate range. Your answer to your problems has been to abuse alcohol. You are said to have received counselling over the past five years but no details could be provided. You are said to have good prospects of rehabilitation but I see no basis for that conclusion. Your almost clear record is the only factor that supports such a conclusion.

30 It is contended for the appellant that his Honour erred in concluding that there was 'no basis' for the positive view about the appellant's prospects of rehabilitation. Apart from the driving offences of October and November 2004, the appellant had no criminal history. She had been a licensed driver for some 16 or 17 years before these offences were committed. Reliance is also placed on the following (unchallenged) matters:

the appellant's remorse, as noted by Ms Lechner;
the significant reduction in the appellant's alcohol intake, her seeking of assistance and her willingness to undertake further counselling;
the fact that she had pleaded guilty at the earliest opportunity; and
the fact that she had not re-offended in the 18 months between the fatal accident and the plea.

**31 In my opinion, this submission must be upheld. Ms Lechner's expert opinion - that the appellant had 'favourable rehabilitation prospects' - was based on what appears to have been an extensive interview with the appellant and a careful consideration of both her past history and her presentation at interview. Each of the objective factors identified in the previous paragraph provided substantial support for Ms Lechner's positive opinion.

32 It is, of course, always open to a court to reject expert evidence but, where that occurs, the basis of the rejection should ordinarily be stated. That is especially so in a case like the present, where the offence was serious and the expert opinion in question went to an important aspect of the sentencing analysis. The sentencing reasons gave no explanation for rejecting Ms Lechner's opinion and, with respect, I am unable to discern any basis for doing so.**

Ground 5: childhood sexual abuse and moral culpability

The learned sentencing judge erred in his assessment of the level of the appellant's moral culpability by giving no or inadequate weight to the impact of childhood sexual abuse.

33 The Lechner report contained a detailed account of the appellant's personal history. These matters were summarised by the sentencing judge in the following terms (which are not challenged):

Your counsel outlined your disadvantaged and turbulent life. You are now 39. You were born as the fourth child of alcoholic parents. Between the ages of six and nine you were sexually abused by your father. You complained to your mother and she abused you. Criminal charges were brought and in 1975 your father left Australia and your family has had no further contact with him.
You started drinking at age eight. Your mother brought you and your sister from Sydney to Melbourne and as a result of your binge drinking, you were made a ward of the State. You met a partner 20 years older than you and you had three children. He was violent and unfaithful and at age 21 you left that relationship.
You then met your former husband. You both worked and you lived with his parents over two periods. Two daughters were born. They are now aged 11 and eight. You renewed contact with your children from the first relationship and you have become distressed by allegations that your son from that first relationship sexually abused your young daughter. Those allegations are to be determined in this court in December 2006. These events worsened your drinking habits, your marriage ended and you cared for your mother before she died in December 2004.

34 The submission made on the plea was that the appellant 'turned to alcohol at the age of about eight in order to black out those experiences that she was having with her father.' The sentencing judge then posed the critical question: 'What is the connection between someone with this very unhappy and distressing background and the driving of a car when you are severely affected by alcohol?'[12] Defence counsel submitted that the decision to drive on that evening reflected an 'inability to reason appropriately' which, in turn, was to be explained by the depression and alcoholism which stemmed from the appellant's childhood experiences. It was submitted that

her clinical depression ... is relevant to her decision to drink. Whether or not her clinical depression or her history is directly in any sort of causative sense relevant to her deciding to get in the car on that evening is unclear ... but it does contextualise her drinking and to some extent it may contextualise her horrendous decision making on that night.

35 The submission on appeal is that the judge erred in not regarding the appellant's moral culpability as having been reduced to some extent by these matters. Reliance is placed on what was said by members of this Court in R v McKee.[13] In that case, armed robberies had been committed by heroin addicts, who needed money to buy heroin. Buchanan JA noted:

While the existence of an overwhelming physical craving may explain the commission of a crime to obtain money to purchase heroin to still the craving, the courts' refusal to take it into account[14] may be due to the view that the decision to begin to use drugs is said to be voluntary and the commission of crimes to feed an addiction is a likely consequence of that choice. In R v Henry, Spigelman CJ said:

Self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice.[15]

The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question ... I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse. An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.[16]

Vincent JA expressed agreement with these views and added the following:

[C]ounsel for the appellants placed considerable reliance on the fact that both of their clients had developed an addiction to drugs. Each did so at a relatively early age and each almost certainly became so enmeshed in consequence of the deprivation, abuse or disadvantage to which she had been subjected as a young person. I accept that such experiences and drug addiction itself are capable of producing serious corrosive effects that may continue to influence the conduct of the person concerned well into adulthood and from which, in some circumstances, they may never completely escape. That possibility is one which, in my opinion, must be seriously taken into account for a variety of sentencing purposes. These would include the assessment of the moral culpability of an offender with respect to the commission of a specific offence and therefore could assume relevance when considering the significance to be attributed to the notion of retribution for wrongdoing as a sentencing consideration. Of course, it does not follow that individuals who come before the court with the type of history to which I have referred do not make choices or that they cannot be held fully accountable for conduct in which they voluntarily engage or which may be the ultimate product of deliberate lifestyle choices made by them. However, and obviously, in the determination of an appropriate sentence in an individual case, regard must be had to the particular circumstances of the offender concerned. As Buchanan JA has pointed out, the background against which an offence was committed could also possess relevance when a sentencing judge came to consider the offender's prospects of rehabilitation. It may indicate the presence of a need to endeavour, through the sentencing process, to protect the public and affect the weight given to specific deterrence in the determination of an appropriate sentence.[17]

**36 These are, with respect, important statements of principle, emphasising as they do the duty of the sentencing court to pay careful attention to the personal circumstances of the offender and to the potential significance of deprivation, abuse or disadvantage in early life as explaining the offending or - as in the present case - as explaining an addiction. As appears from the sentencing remarks set out above, the sentencing judge did precisely that. But in my view, acceptance of the causal link between the appellant's alcohol dependence and her terrible childhood experiences did not justify, let alone require, a conclusion that her conduct on the evening of 2 November 2004 - in deciding to drive when drunk and in driving at a very dangerous speed, resulting in the fatal accident - was less culpable as a result. Neither her depression nor her alcohol dependence - nor the sexual abuse from which they stemmed - was causative of her offending, in the sense discussed in Verdins.[18] She had no need to drive while drunk, unlike the appellants in McKee who could at least explain their offending on the basis of their physical craving for heroin.

37 The appellant's sensible decision to go on foot to the hotel earlier in the day showed that, contrary to the submission made on her behalf, she was quite able to reason appropriately. Given her recent disqualification for driving over the limit, she had no other rational alternative, as she clearly appreciated. The twin prohibitions - on driving while drunk and, in her case, on driving at all - were in the forefront of her mind. She would have been well aware, with increasing intoxication during the day, that her judgment was becoming clouded and her capacity for decision-making impaired. Yet she continued to drink. That she had been attending counselling for five years only underlines the point that she was aware of, and was taking sensible steps to tackle, her alcohol dependence and its link with her psychological infirmity. Her decision to drive on that evening is as inexplicable as it is reprehensible.

**39 It follows from my earlier conclusions that the sentencing discretion is re-opened. It is unnecessary, therefore, to consider the remaining ground, which contended that the individual sentences on counts 1 and 2, the total effective sentence of seven years and one month and the non-parole period of four years and nine months were manifestly excessive.

40 This was, in my view, a very serious instance of culpable driving. I have already concluded that the appellant's culpability - in deciding to drive while drunk and disqualified, and in driving at a dangerous speed - is not reduced by the traumatic circumstances of her childhood or the long-term depression and alcoholism which ensued. To the contrary, the offending was made the more serious by the fact that the appellant had only one month earlier been disqualified for driving while over the limit. Her blood alcohol reading on that occasion was between 0.1 and 0.109, more than double the legal limit. Once disqualified, Ms Audino was of course subject to a zero blood alcohol limit. I have already referred to the medical evidence that, with a blood alcohol concentration of 0.141 per cent, the appellant 'would have been absolutely incapable of having proper control of a motor vehicle'.

41 I take into account the remorse which the appellant has expressed; her entry of guilty pleas at the very earliest opportunity; and her otherwise clear record. I also take into account the fact that the appellant sustained serious injuries in the accident.[19] I take into account the effect on the appellant of the delay, and the unchallenged evidence about her prospects for, and efforts towards, rehabilitation. It was submitted on the appeal that the appellant's depression made her time in custody more difficult. As there was no specific evidence to substantiate that submission, I am unable to attach any weight to it.

42 It was submitted on the appeal, as it had been on the plea, that the deceased was complicit in the culpable driving offence. This was said to be so because he had been drinking with the appellant during the day and must, when he got into her car as a passenger, have been aware that she was affected by alcohol. The converse must also be true, that is, the appellant must have been aware that the victim was affected by alcohol and, to that extent, not exercising sober judgment as to whether it was sensible to travel with her. Be that as it may, it is sufficient to say that I adopt the approach prescribed in R v Tran,[20] to which counsel for the appellant referred. That is, proceed on the basis that this is not a case involving an 'innocent' victim. What would otherwise be an aggravating factor is not present.

43 In the event, however, I would impose no different head sentences from those which the learned sentencing judge imposed. General deterrence is a very powerful consideration in sentencing for culpable driving.[21] In relation to the count of culpable driving causing death, I would impose a sentence of six years' imprisonment. Sentences for this offence vary widely, according to the circumstances.[22] I treat as of particular relevance the instances (set out in the recent judgment of this Court in The Queen v Martin) of sentencing for culpable driving where the driver had a high blood alcohol reading and one or more prior convictions for driving with excess alcohol in the blood.[23] I refer also to DPP v Wareham, where the driver had a blood alcohol concentration of 0.161 and two prior convictions (10 and 14 years earlier, respectively) for driving with a blood alcohol concentration exceeding 0.05%, each reading being more than double the statutory minimum.[24] The driver was convicted of one count of culpable driving and sentenced to five years' imprisonment with a minimum of two years and six months. On the Crown's appeal, and with a discount for double jeopardy, the sentence was increased to six years with a minimum of four.

44 Like the sentencing judge, I would impose a sentence of three years' imprisonment on the count of negligently causing serious injury, and I would order that one year of that sentence be served cumulatively on the sentence imposed on count 1. I would impose a penalty of one month's imprisonment for the summary offence of driving while disqualified, without cumulation, and no penalty for the summary offence of driving with excess alcohol in the blood. The total effective sentence is therefore seven years.

45 Where I would depart from the course adopted by the sentencing judge is in relation to the non-parole period. Unlike his Honour, I accept that the appellant has good prospects of rehabilitation. I acknowledge the efforts she has made, and**

continues to make, towards her own rehabilitation. Nothing can undo the terrible consequences of the appellant's criminal conduct but her efforts at rehabilitation demonstrate genuine remorse, and a commitment to ensure that no such thing will ever happen again. They also provide a real basis for optimism that the appellant, when she is released, will resume what had until October 2004 been a blameless life.

**46 I would fix a non-parole period of four years. The appellant will thus have a lengthy period of parole supervision, which should enable her to consolidate her rehabilitation.

47 I agree with Maxwell ACJ that error has been demonstrated and that the appellant falls to be re-sentenced. I also agree that the appellant should be re-sentenced as his Honour proposes.**

**48 For the reasons given by Maxwell ACJ, I would allow the appeal against sentence and re-sentence the appellant as his Honour proposes.

[7] Cf R v Merrett [2007] VSCA 1, [35]-[36].

[8] Cf Nikodjevic [2004] VSCA 222, [21].

[9] ISIS Primary Care is a not-for-profit community health service, which (relevantly) provides individual counselling.

[14] His Honour had earlier referred to the statement of the New South Wales Court of Criminal Appeal, that it had been 'said on countless occasions that addiction to heroin is not to be considered as a factor for the reduction of what would otherwise be an appropriate sentence for the nature of the offences which have been committed': R v Valentini (1989) 46 A Crim R 23, 25.

[16] R v McKee [2003] VSCA 16; (2003) 138 A Crim R 88, 92-93 [12]-[13].

[18] R v Verdins [2007] VSCA 102; [2007] 16 VR 269, 275 [24]-[26].

[19] See R v Haddara (1997) 95 A Crim R 108, 108-109 and 113.

[21] See eg The Queen v Stockdale [2002] VSCA 202 [37], [42] (Charles JA); DPP v Di Nunzio [2004] VSCA 78, [23] (Batt JA), [32] (Vincent JA).

[22] See DPP v Johnstone [2006] VSCA 281; (2006) 16 VR 75, 86-88 [35] (Warren CJ).

[23] [2007] VSCA 291, [55]-[56].

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