R v Bekhazi [2001] VSCA 178

2. The appellant Michael Bekhazi appeals, pursuant to leave granted, against sentences imposed upon him by the County Court on 22 March 2000. On 16 March 2000 the applicant had pleaded guilty to a presentment containing two counts:

(a) Count 1: that on 29 April 1999, by the culpable driving of a motor vehicle, he caused the death of Kathleen Hornidge in that he drove the vehicle negligently and whilst under the influence of drugs.

(b) Count 2: that on 29 April 1999, without lawful excuse, he recklessly engaged in conduct, namely the driving of a motor vehicle, that placed or may have placed Vivienne Archdall and Owen Morland in danger of death.

Count 1 alleges an offence against s.318 of the Crimes Act 1958; the particulars of culpability are those prescribed by s.s.(2)(b) and (d); whilst count 2 alleges an offence against s.22 of the same Act. Section 318 (1) creates the indictable offence of causing the death of another person by culpable driving. Sub-section (2) prescribes four particulars of "driving culpably", including the two (namely (b) and (d)) alleged against the appellant. Section 22 makes it an offence for a person, without lawful excuse, to "recklessly engage in conduct that places or may place another person in danger of death". Before sentence, the appellant admitted a large number of previous convictions extending over a period of 10 years which in the main were for offences of theft and burglary but which included convictions for careless and unlicensed driving and for possessing drugs of dependence.

8. After hearing a plea in mitigation, the judge sentenced the appellant on 22 March 2000 as follows:

His Honour directed that eight months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. The total effective sentence was therefore one of 7 years. His Honour ordered 5 years of that sentence to be served before the appellant became eligible for parole. The judge further directed that the sentence which he had imposed be served concurrently with a sentence which the appellant was then undergoing. All licences held by the appellant were cancelled and he was disqualified from obtaining any further licence for a period of 7 years.

14. The appellant initially applied for leave to appeal against the convictions which had been recorded, but he subsequently abandoned that application. His appeal against the sentences imposed is based on four grounds:

1. That the sentence was in all the circumstances manifestly excessive;

2. That the judge erred in imposing sentences with respect to both counts on the presentment, as both offences were constituted by the same act or omission;

3. Alternatively, the judge erred in partially cumulating the sentence imposed on count 2 with the sentence imposed on count 1, having regard to the nature of the conduct and principles of totality;

4. The judge erred in equating the appellant's position and culpability to that of an alcoholic.

The last three of these grounds were added by leave of the Registrar on 26 March 2001. Before turning to the arguments which were made to this Court in support of those grounds, it is desirable to refer briefly to the circumstances in which the offences occurred.

22. The events from which the charges arose occurred on the evening of 29 April 1999. The appellant, who was then aged 28 years, was driving a 1978 Ford sedan motor vehicle for which a limited permit was in existence authorizing it to be driven for the purpose of obtaining a current "roadworthy certificate" or to drive it to the nearest Vic Roads registration office. On the day in question the appellant had a long-standing and deep-seated drug dependency. On 7 January 1999, he had been convicted of a number of drug related offences and had been ordered by the Melbourne Magistrates' Court to perform unpaid community work for a period of 12 months on condition that he undergo drug and alcohol assessment and treatment. That order was still in force when these offences were committed. On the day of the offences with which we are concerned, the appellant had been assigned to work under the supervision of Keith Mills. When he attended work at 8.30 a.m. Mills noted that the appellant appeared to be drug affected and "half-asleep". The appellant "signed off" at 2.45 p.m. He then went to his car with one Peter Bakarias and another man and drove to the shopping plaza at Lalor. Bakarias, too, noted that the appellant seemed affected by drugs. At about 8.07 p.m., the appellant drove his car in a westerly direction along Speight Street, Thornbury, towards its intersection with Victoria Road. Speight Street runs east/west and Victoria Road north/south. Facing drivers travelling along Speight Street in the direction in which the appellant was proceeding was a "Stop" sign at the Victoria Road intersection, obedience to which required the appellant to stop and give way to traffic travelling along Victoria Road. Although it was dark at the time, the lighting at the intersection was good. A 60 k.p.h. speed limit applied.

25. As the appellant was approaching the intersection, Vivienne Archdall was driving her car south along Victoria Road approaching the intersection from the appellant's right. She had with her her 13 year old son Owen Morland. At or about the same time, the vehicle driven by Miss Hornidge was travelling along Victoria Road, also approaching the Speight Street intersection, but from the opposite direction to Ms. Archdall's vehicle. Thus, her vehicle was coming from the left of the appellant's vehicle. Ms. Archdall realized before she reached the intersection that the appellant's vehicle was not going to stop in order to give way. She had to brake and take evasive action at the last moment to avoid it. The appellant `s vehicle, at a speed estimated to be in excess of 100 k.p.h., entered the intersection, passed across the front of Ms. Archdall's vehicle and collided with the driver's side of Miss Hornidge's vehicle carrying it up Speight Street in a westerly direction. Miss Hornidge was killed instantly. The appellant was, to all appearances, unscathed. When the police came and asked him what had happened, he replied:

"I hit the brakes - a cat ran across the road. It's an old car."

It appeared to the police that the appellant was affected by drugs of some sort. His speech was slow and slurred and the pupils of his eyes were small. Breath testing was negative for alcohol. From relevant available material including the finishing positions of the respective vehicles, police experts assessed the appellant's impact speed at approximately 116 k.p.h. When later interviewed by police, some six hours after the collision, the appellant still appeared to be drug affected. He told police that he had been "on" benzo-diazepines, prescribed to enable him to "get off" a methadone habit. A urine analysis revealed the presence of a high level of benzo-diazepines and a level of morphine so high as to overload the analysing machine. A blood sample taken at the Austin Hospital detected amphetamine at a "low level", methyl-amphetamine at a "very high level", diazepam at a "very high level", temazepam at "a medium level", and oxazepam, nitrazepam, morphine and codeine at "low levels". The evidence was, not surprisingly, that the levels of benzo-diazapines were consistent with the consumption of huge quantities of these drugs. All drugs present, it was said, would seriously impair the capacity to drive a motor vehicle. The test results were also consistent with recent introduction or consumption of heroin and amphetamine. It was not in issue before the sentencing judge that the appellant was a chronic drug addict of long standing. His drug addiction was primarily heroin-based but included other licit and illicit substances. Dr. Odell from the Victorian Institute of Forensic Medicine reported that benzo-diazepines are psycho-active drugs, but that their effect when mixed with a cocktail of other drugs is difficult to predict.

30. The sentencing judge had before him much material. Some of it related to the effect which the death of Ms. Hornidge had had upon members of her family. Much of it came from family members of the appellant. His Honour accepted that the appellant came from a close-knit family of Lebanese origin, members of which had, over a long period, sought to assist the appellant in overcoming his drug addiction. That evidence painted a picture of periodic attempts by the appellant to wean himself off the drugs; only to relapse into further drug addiction associated with anti-social behaviour. In the course of carefully crafted sentencing remarks, the judge accepted that the appellant, when not affected by drugs, was a decent and caring member of a supporting family. However he also found that the offences to which the appellant had pleaded guilty were the result of his "grossly negligent driving ... linked to [his] state of drug addiction and the effect which it had on [the] ability to drive a motor vehicle". His Honour compared the appellant to an alcoholic who drives under the influence of alcohol and expressed the view:

"You might not have been fully capable at the time of refraining from using drugs, but I am satisfied you would have been capable of refraining from driving a motor vehicle whilst in a drug-affected state."

His Honour concluded that this was a "very bad case of culpable driving".

35. Mr. Shirrefs, who appeared in this Court on behalf of the appellant, directed most of his submissions towards ground 2. They were submissions which the appellant's counsel on the plea had not addressed to the sentencing judge. The submissions raise the vexing question of "double jeopardy". Counsel's contention was that the appellant's course of driving was the gravamen of both the culpable driving offence charged in count 1 and "the reckless endangerment of life" offence charged in count 2, and that once the judge had sentenced the appellant for the first offence, it was not open to him to convict or punish the appellant on count 2 for the same conduct. Counsel recognized that he could not now challenge the conviction on count 2 because the appellant had pleaded guilty and had since abandoned his appeal against conviction. He nevertheless submitted that the conviction and sentence on count 2 impermissibly exposed the appellant to "double jeopardy" because the offence alleged in that count was, in substance, founded upon the same conduct as the offence alleged in count 1[1]. The submission relied upon the peculiar characteristics of the offence described in s.22 of the Crimes Act which, upon counsel's argument, is not an offence against the person but rather is an offence aimed at proscribed conduct much in the same way as the offence of "driving in a manner dangerous to the public". In the circumstances of this case, he submitted, the conduct upon which the appellant had been convicted of the offence charged in count 2 was "totally subsumed" in the conduct for which he had been convicted and punished for the offence described in count 1. Further, counsel submitted that, for the judge to punish the appellant for the s.22 offence, was to punish him twice for the same acts or omissions contrary to s.51(1) of the Interpretation of Legislation Act 1984. In this regard, he submitted, the presentment in this case was significantly different from presentments alleging multiple counts of culpable driving, where two or more deaths have arisen out of the one course of driving; and presentments alleging a count of culpable driving combined with counts of recklessly or negligently causing serious injury to some other person arising out of the same course of driving. He contended that the counts on such presentments, which have been often tried and separately punished by courts in this and other States[2], invite punishment by reference to the "result" contemplated by the offence which is charged; and not by reference only to the conduct which is the essence of the offence. In contrast to these cases, Mr. Shirrefs submitted that the offence created by s.22 is an offence punishable by reference only to the conduct which it describes and does not require proof of any identifiable person who is a victim of that conduct. Because, in this case, the conduct relied upon by the Crown to prove the offence alleged in count 2 was the same - or substantially the same - conduct upon which it relied to prove the culpable driving alleged in count 1, the judge was, thus, not entitled to separately punish the appellant for the offence alleged in count 2 because, in doing so, he was punishing the appellant for the "same act or omission" contrary to the protection provided to the appellant by s.51 of the Interpretation of Legislation Act 1984 which, relevantly, provides that:

"(1) 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. (2) In sub-section (1) "law" means - (a) an Act or provision of an Act;' (b) a subordinate instrument or a provision of a subordinate instrument; or (c) common law."

39. The submissions made on behalf of the appellant were attractively put, but they cannot, in my view, succeed. The offence charged in count 1 was an offence which depended for its proof upon evidence or admission of grossly negligent and/or drug induced driving causing the death of a particular person; whereas the offence charged in count 2 depended for its establishment upon evidence of reckless conduct which placed or may have placed different persons in danger of death. Each offence has, therefore, distinctly different elements and each is, in my opinion, an offence against the person. It is true that the offences were linked in time and place - at least in this case - by the same course of driving, but they were not offences constituted by the same acts or omissions resulting in harm to the same person. It follows that I cannot accept the appellant's submission that the offence created by s.22 of the Crimes Act is established simply by proof of a course of conduct as might be the offence of "driving in a manner dangerous to the public". Rather it requires the proof of reckless conduct which endangers the life of contemplated persons[3]. The fact that the danger contemplated by the section has not materialized seems to me, at least for these purposes, to be immaterial. In this sense, the charging and punishment of the appellants on counts 1 and 2 are, in my view, no different from charging an accused person with the offence of culpable driving causing the death of one person and the offence of negligently causing injury to another arising out of the same course of driving. Such offences, as I have said, have been regularly charged and punished in this State since R. v. Dean Williamson[4]. In that case the applicant had been convicted of a count of "culpable driving" causing the death of person A pursuant to s.318 of the Crimes Act and two counts of causing grievous bodily injury to victims B and C by negligent driving. It was contended on behalf of the applicant that the sentencing judge had been in error in separately punishing the applicant for the latter two offences because the episode of driving "constituted one incident", and that there was only "one act or omission which had brought about the several results". The Court rejected the argument. Pape, J., who delivered the principal judgment of the Court said (at p.7):

"... We are not able to accept the argument that, in reality, the only offence committed by the applicant was that of reckless driving. Nor do we think that any practice of universal application ought to be laid down as to the imposition of sentences to run concurrently with other sentences. Both s.318 and s.26 of the Crimes Act deal with a particular type of harm inflicted upon a person. Section 318 is applicable only when death is caused to another by culpable driving; and s.26 is applicable only where grievous bodily injury is caused to another by negligence. The two main elements in the crime constituted by these sections are first of all culpable driving and negligent driving and secondly death or grievous bodily injury caused thereby. They are entirely different offences and in our view punishable as such."

43. Likewise, in this case, it was not the manner and course of driving which constituted the offences charged against the appellant. As I have said the essential elements of those offences were discretely different; namely gross negligence and/or driving under the influence of drugs causing death to victim A; and reckless conduct endangering the lives of victims B and C. A similar view appears to have been taken by this Court in the recent case of R. v. Toombs[5] where the accused had been charged with and pleaded guilty to (inter alia) one count of culpable driving causing death of victim A and three counts of recklessly engaging in conduct which placed or may have placed victims B, C and D in danger of serious injury contrary to s.23 of the Crimes Act. The offences all arose out of the same course of driving which involved a high speed chase by police of the vehicle driven by the applicant; a chase which eventually ended with the applicant's vehicle colliding with the vehicle driven by victim A. Victims B and C were two police officers in the pursuing vehicle and victim D was a private citizen driving a third vehicle in the vicinity of the chase. Although the Court was not asked to consider the argument which has been advanced to this Court, it nevertheless rejected an argument that the judge was in error in cumulating some of the penalty imposed for one of the reckless endangerment offences upon the penalty imposed for culpable driving because it arose out of the same course of driving which caused the death (per O'Bryan, A.J.A. at [38]).

46. Notwithstanding the consistency of approach taken by the courts in the authorities to which I have referred, Mr. Shirrefs submitted that, in the particular circumstances of this case, the judge should not have punished the appellant for the offence charged in count 2 because he was, in effect, punishing the appellant more than once for "the same act or omission" contrary to s.51(1) of the Interpretation of Legislation Act 1984, the proper construction of which, so counsel submits, has received little attention by this Court or its predecessor in sentencing appeals since its introduction in 1984. Counsel submitted that, because the offences charged in counts 1 and 2 were founded upon the same fleeting course of driving which carried the appellant's vehicle into the intersection of Speight Street and Victoria Road, he was being "doubly punished" for the same acts or omissions in contravention of s.51(1). Counsel sought to assimilate the circumstances of this case to those which existed in R. v. Sessions[6]. However, in my view, the two cases cannot be compared. In Sessions, the accused had pleaded guilty to a presentment containing one count of rape (digital) and one count of recklessly causing serious injury. The two counts derived from the one course of conduct in which the accused had thrust his finger into the vagina of a young female victim with such force that he had caused internal damage to the victim. The trial judge had accepted the pleas of guilty to the two counts on the basis that the rape was constituted by the initial penetration and the reckless causing of serious injury was constituted by the deeper penetration resulting in the internal damage. The Court quashed the verdict on count 2 on the basis that, in the circumstances, it was unrealistic to regard the conduct as other than the one course of conduct towards the same victim; that it amounted to a "rape"; and that the judge was entitled, in sentencing for the "rape", to take into account the consequences to the victim. Thus, to convict and punish the applicant twice for the same act was to infringe the principles of "double jeopardy". Having referred to R. v. Hoar[7] (a case where it was decided that an accused who had been convicted and punished for conspiracy, could not thereafter be convicted and punished for a substantive offence comprising an overt act of the conspiracy), Hayne, J.A. said at 315):

"In my view, no different result should obtain when the counts are joined on the one presentment. For the reasons I have given earlier, the applicant should have been sentenced for the rape on the basis that his sexual penetration of the child caused the damage which it did and, if that had been done, no further punishment should then have been imposed on the other count and no conviction recorded. This is not to adopt a view of double jeopardy that one act cannot amount to more than one offence. It can; and in this case the applicant's conduct constituted the offence of rape and the offence of recklessly causing serious injury. But that is not to say that the applicant should have been punished twice for that conduct. ... But where, as here, the act for which the applicant was to be sentenced on count 1 was the same act as he was to be sentenced for on count 2, and there was no fact or matter that should be taken into account on one count that would not be taken into account in sentencing on the other count, it was, in my view, oppressive and unfair to punish him twice."

50. These comments were made in the context of a case where the two offences arose from the same conduct perpetrated upon the same victim and where, if the accused had been charged only with the offence of rape, as he should have been, the sentencing judge would have been entitled to "have regard to all of the consequences that flowed to the victim from that rape" (per Hayne, J.A. at 307). However, the issue which arises on this appeal is a wider one. Here, what is claimed to be the same "act or omission" has caused harm to more than one victim; yet it is contended that the sentencing judge is precluded from punishing the appellant on a count alleging the commission of an offence against discrete victims (count 2) where he has already punished him for another offence involving an entirely different victim (count 1). If the submission is correct, the judge - unlike the judge in Sessions (supra) - would not, as I see it, be entitled in sentencing the appellant for the offence alleged in count 1 to have any regard to the consequences flowing to the victims of the offence alleged in count 2[8].

53. It is not always easy to discern the boundaries of the common law doctrine of "double jeopardy", or the statutory boundaries of "double punishment". They have, perhaps, become even more difficult to discern since the Parliament in this State enacted s.51 of the Interpretation of Legislation Act 1984 to replace its predecessor section; namely s.28 of the Acts Interpretation Act 1958, which had provided that:

"Where an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law ... the offender shall, unless the contrary intention appears, be liable to be prosecuted under either or any of those Acts or at common law, but shall not be liable to be punished twice for the same offence." (emphasis added)

The submission made by appellant's counsel to this Court was that the protection given to an accused person from "double punishment" under s.51 of the Interpretation of Legislation Act 1984 is wider than the protection given by s.28 of the 1958 Act because the words "shall not be liable to be punished twice for the same offence" have been replaced by the words "shall not be liable to be punished more than once for the same act or omission". It is contended that the words of the current legislation focus on the "act or omission" which is the foundation of the offence rather than upon the ingredients of the offence. Thus, so it is submitted, double punishment is precluded, notwithstanding that the elements of the offences are different, if each offence was "founded upon substantially the same facts".

58. I accept that the provisions of s.51(1) of the 1984 legislation are significantly different from the provisions of s.28 of the 1958 legislation. The latter provisions were intended to embody the common law principles which were focussed on autrefois convict. In other words, a person was not liable to be punished twice for the same offence[9]. The provisions of s.51 of the 1984 legislation contemplate that a person is not liable to be punished more than once for "the same act or omission" constituting more than one offence. However these provisions will not avail the appellant in this case if, as I think, the acts or omissions constituting the offence under s.22 of the Crimes Act are not the "same acts or omissions" constituting the offence under s.318 of that Act. It is clear that the "acts or omissions" referred to in s.51 are not to be equated with the elements or ingredients of the offences which they comprise. Rather, they are the constituent acts or omissions which must be established to prove the relevant offence. It is not sufficient to establish either the offence prescribed by s.318 of the Crimes Act or the offence prescribed by s.22 of that Act to merely prove a course of driving which can be described either as "grossly negligent" or "reckless". In my view, the constituent "acts or omissions", essential for the proof of the respective offences, will necessarily include the consequences (namely death or danger of death) which the sections contemplate must flow to the victims of the offences created. In Phillips v. Carbone (No.2)[10], a similar view was taken by the Court of Criminal Appeal (WA) of s.16 of that State's Criminal Code which, in relevant respects, is cast in the same form as s.51 of the Interpretation of Legislation Act 1984 (Vic). That was a case where the question was whether an offender, whose dangerous driving results in an accident causing bodily harm to two persons, can be punished twice. The question involved consideration of whether, in those circumstances, the offender was being punished twice for the "same act or omission". The Court found that he was not entitled to the protection afforded by s.16 of the Code because he was not being doubly punished for the same act or omission. The members of the Court were not entirely ad idem as to the meaning of the words "same act or omission" which constituted more than one offence. Pidgeon, A.C.J. (at 175-6) was of the view that the words focussed on "the thing done" as distinct from "the means of doing it" and that, as the offences charged against the accused were offences of "causing bodily harm to another person by driving a motor vehicle in a manner ... dangerous to the public ...", the "thing done" was the causing of bodily harm to another person and the driving was the means of doing it. Similar views were expressed by Nicholson, J. (see pp.181-2). Ipp, J. expressed the view that "an act or omission constitutes more than one offence only if the evidence necessary to support the later charges would have been sufficient to procure a legal conviction on the first charge"; and that because, on the second charge, the identity of the person injured was different, that test could not be fulfilled (p.190). It was his Honour's view, therefore, that s.16 was not intended to "give protection to a person who, by one physical act or omission causes multiple harm to different persons or things". In Sessions (supra at 311-2), Hayne, J.A. referred to the views expressed by the Court in Phillips v. Carbone (No.2) when considering the effect of s.51 of the Interpretation of Legislation Act 1984 (Vic) and the impact of the changes made by that section to its predecessor in the 1958 Act. It was unnecessary for his Honour to resolve what was meant by the words "act or omission constituting more than one offence" because it was clear that, in the case before him, the charging and convicting of Sessions of the two offences arising out of the same conduct perpetrated against the same victim offended against the common law principles of "double jeopardy". Eames, A.J.A. (at 323-4) expressed similar views.

61. It is apparent from what I have already said that my view of the appropriate interpretation of s.51 of the Interpretation of Legislation Act 1984 (Vic.) closely conforms to the view expressed by Ipp, J. in Phillips v. Carbone (No.2), supra, as to the proper interpretation of s.16 of the Criminal Code (W.A.). For the reasons to which I have adverted in [13], I am satisfied that the judge in this case was, consistently with s.51 of the 1984 Act, entitled to punish the appellant for each of the offences to which he pleaded guilty. The offences described by ss. 22 and 318 of the Crimes Act are different, not only in their elements, but also in the acts or omissions which constitute them. Each contemplates "harm" flowing to identifiable "victims". In other words, they are not the same offence either in law or in fact[11] and, accordingly, to punish the appellant for each of them does not infringe the protection afforded by s.51 merely because each offence derives from a common course of driving. So far as I am aware, it has never been doubted that, if the act of detonating a bomb kills or injures multiple victims, the accused can be charged with and punished for as many offences as there are victims[12]. Likewise, if a course of driving a motor vehicle causes the death of one person and endangers the life of another, the fact of the death of one victim and the endangerment of the life of the other must be part of the relevant "acts or omissions" constituting the separate "laws" because the consequences cannot be divorced from the separate obligation owed by the accused to the separate victims[13]. In the eyes of the criminal law, it is the existence of the separate obligations owed to the several victims of the one criminal act which, in part, defines the acts or omissions constituting the different offences arising from that act. It is that concept which, I think, underlies the "fundamental distinction", referred to by Ipp, J. in Phillips v. Carbone (No.2), supra at 190, between a single act that contravenes more than one "law", and a single act that harms more than one person. The rationale for that distinction has been eloquently described in the reasons given by Vincent, J.A. in his judgment in this appeal, which reasons I have had the advantage of reading and with which I agree.

64. It follows from what I have said that I would reject ground 2 of the appeal grounds. That is not to say, however, that the "commonality" of the circumstances from which each offence derived could be ignored by the trial judge in determining how each of the offences was to be "justly punished"[14]. Although the appellant fell to be punished for each of counts 1 and 2, the judge was bound to consider the "totality" of the punishment to be inflicted. Under cover of ground 3, appellant's counsel submitted that, in the circumstances of this case, the judge was in error, and offended principles of "totality", by cumulating 8 months of the sentence imposed on count 2 upon the sentence which he imposed on count 1. In the course of his sentencing reasons, the judge gave careful consideration to the principles governing his sentencing discretion, and in particular to whether there should be some cumulation of the sentence imposed on count 2 upon the sentence imposed on count 1. In concluding that there "should be some cumulation" I can detect no error in his approach or the reasons upon which he based his conclusion. Nor, in my view, was the amount of cumulation so ordered excessive, so as to produce a total sentence which offended principles of totality or which was disproportionate to the gravity of the offending. Accordingly, I would reject ground 3.

67. It was next submitted, under cover of ground 4, that the judge erred by equating the position of the appellant, and his culpability, to that of a chronic alcoholic. His Honour said:

"I am satisfied that your grossly negligent driving was linked to your state of drug intoxication and the effect that it had on your ability to drive a motor vehicle. At the time you were using illicit drugs and prescription drugs. You have a long history of drug dependency and drug use, and as I have said have a severe and deep-seated drug problem. You could therefore be compared to an alcoholic who drives when under the influence of alcohol, a situation considered by Tadgell, J. in a decision in R. v. Currie (1987) 33 A.Crim.R. 7 in relation to an alcoholic. You might not have been fully capable at the time of refraining from using drugs, but I am satisfied that you would have been capable of refraining from driving a motor vehicle whilst in a drug affected state. For some time now public messages have been published in various forms of the media of the dangers of driving when consuming drugs. As Dr. Odell points out, the prescribing information from manufacturers caution against driving when taking these drugs. In my view there can be no clearer and more tragic example of the consequences of drug consumption combined with the driving of a motor vehicle than this case. In my view this is a very bad case of culpable driving causing death and warrants a severe sentence. Indeed, your driving could be described as bordering on the maniacal."

His Honour returned to this topic later in his reasons. He said:

"The fact that you are drug dependent, as pointed out by Tadgell, J. in Currie, in relation to the position of an alcoholic, does not reduce the importance of general deterrence in this case."

73. It was submitted on behalf of the appellant that the judge was in error in equating the appellant to the position of the chronic alcoholic with whom the court was concerned in Currie's case, and in respect of whom Tadgell, J. had said[15]:

"Now, the fact that the applicant was at the time an alcoholic, and known to himself to be one possessed of a severe alcoholic problem, is, in my opinion, something to be taken into account in assessing the culpability, that is to say aggravating the culpability, of what he did."

It was counsel's submission that, because there was insufficient evidence before the judge of the effect upon the appellant of his long standing addiction and the effect upon his mind of the "cocktail" of drugs which he had ingested in the days leading to the driving, the comparison between him and Currie was inappropriate for the purposes of aggravating the appellant's culpability.

78. For my own part, I think that the submission overstates the learned judge's sentencing remarks. The appellant had pleaded guilty to a count of culpable driving founded upon drug intoxication and grossly negligent driving. He did not contend, and could not have contended, that he was - as a consequence of his drug intoxication - deprived of his capacity to choose whether he should drive or not. Rather, the evidence indicated that the appellant well recognised his drug addiction. He had been seeking to overcome it for years. Notwithstanding, he had been driving his car before the day in question, and for a considerable period of that day. This was evidence from which his Honour was entitled to infer, as he did, that although the appellant might not have been able to resist drugs, he was possessed of sufficient insight to realize that he was a liability to others if he drove. His Honour's remarks were made in the context of determining whether the sentencing purpose of general deterrence should be moderated as a consequence of the appellant's drug addiction. He did not say, nor does the context of his remarks suggest, that he regarded the appellant's moral culpability as being aggravated by reason of that addiction. In the light of the evidence before him, his Honour was entitled to conclude that this was a bad example of the offence of culpable driving and that principles of deterrence should play their part in fixing an appropriate penalty. There is nothing about the sentences which his Honour fixed which suggest to me

that they were disproportionate to the gravity of the offences to which the appellant had pleaded, or that they were rendered inappropriate by reason of the reference which he had made to the case of Currie. I would accordingly reject ground 4. Ground 1 - namely that the sentences were manifestly excessive - was not strenuously argued. In my opinion - particularly having regard to the maximum sentence of 20 years which the legislature has fixed for the offence charged in count 1 and the penalties which are regularly imposed for it in this State - the sentences imposed by his Honour were within the range available to him for the offences which he was called upon to consider. There is nothing about those sentences, nor the total effective sentence, which would lead me to conclude that they are manifestly excessive.

82. I would, for the reasons stated, dismiss the appeal.

87. I agree that this appeal should be dismissed for the reasons given by the President. I also agree with the additional observations made by Vincent, J.A.

92. I agree that this appeal should be dismissed and for the reasons advanced by the learned President. With some hesitation I would like to add a few comments of my own concerning the expression "same acts or omissions".

95. Although seldom so expressed, a distinction is recognized in the criminal law between actions and acts. An action in this sense is simply a manifestation of some other process or application of force. An act, on the other hand, derives its character from the physical, perceptual and legal contexts within which an action occurs.

98. The detonation of a bomb in a shopping centre may, from the perspective of a

particular perpetrator, involve a single action. However, as far as the law is concerned, the individual has committed a separate criminal act against each of his victims. Through the actor's engagement in the one activity, he has breached what the law sensibly regards as quite distinct and identifiable obligations to the community and to each of those encompassed by the offence concerned and for which he is separately accountable. The one action may involve the commission of a number of such breaches and offences, each of which is regarded as involving a separate act. So viewed, the same conduct or act, although I would prefer to employ the term action, may attract criminal responsibility as murder, attempted murder, or one of a number of other lesser offences according to the consequences for the respective victims or potential victims.

102. It is not simply that the action undertaken has had a number of consequences or has affected more than one victim, although this underlying reality provides the most powerful rationale of the attribution of responsibility in respect of each victim, but rather that the criminal law represents and reflects, on behalf of the community, significant aspects of the relationships and duties which are regarded as essential and separately owed to the community and to each member. Returning to the example given above, it is not regarded as the same act to kill A as it is to kill B, although their deaths may result from the same action. Nor, in the present context, was the action which resulted in the death of Miss Hornidge to be regarded as subsuming the offence and acts of placing Ms Archdall and Mr Morland in danger of death.

[1] cf. Wemyss v. Hopkins (1875) L.R. 10 Q.B. 378; Falkner v. Barba [1971] VicRp 39; [1971] V.R. 332.

[2] See, for example, R. v. Williamson (unreported, CCA (Vic.) 5 June 1974; R. v. Yalim [2000] VSCA 64; R. v. Guariglia [2001] VSCA 27; R. v. Musson [1997] 1 V.R. 656; R. v. David Taylor [1999] VSCA 206; Phillips v. Carbone (No.2) (1992) 10 W.A.R. 169, particularly at 187 per Ipp. J.)

[3] cf. R. v. Nuri [1990] VicRp 55; (1989) 49 A.Crim.R. 253 at 255.

[5] [2001] VSCA 144.

[6] [1998] 2 V.R. 304.

[7] [1981] HCA 67; (1981) 148 C.L.R. 32.

[8] cf. R. v. Newman & Turnbull [1997] 1 V.R. 146.

[9] cf. R. v. Thomas [1950] 1 K.B. 26; R. v. Sessions, supra at 311.

[10] (1992) 10 W.A.R. 169.

[11] cf. Connelly v. D.P.P. [1964] A.C. 1254 at 1339-40 per Lord Devlin.

[12] cf. Philllips v. Carbone (No.2), supra, at 190 per Ipp, J.; see also R. v. Demirian [1989] V.R.97.

[13] cf. R. v. True [1999] VSCA 8 at [19] per Tadgell, J.A.

[14] cf. Pearce v. R. (1998) 194 C.L.R. 610 at 623-4.