R v Birnie [2002] VSCA 155

5. The applicant at first sought leave to appeal on a single ground but in May this year some five grounds were substituted. The first of the grounds was that all aspects of the sentence were "manifestly excessive" and the second asserted that the judge erred as to the imposition of cumulation and its extent, in particular (in para.(b)) that the sentences infringed totality and were "crushing". Ground 3 alleged that in respect of the culpable driving count, the learned judge erred in sentencing the applicant "on the basis of culpability proscribed by s.318(2)(a) of the Crimes Act 1958[2] (`recklessly') rather than on the basis alleged in the presentment and proscribed by s.318(2)(b) (`negligently')". Ground 4 asserted that the judge erred in sentencing the appellant for an offence for which he was neither charged nor convicted, namely, for failing to render assistance contrary to s.61 of the Road Safety Act 1986. Finally by the fifth ground it was asserted that the period of licence disqualification ordered was manifestly excessive.

8. The principal ground of complaint was directed against the sentence for culpable driving, although it was said in relation to each of the sentences for the thefts that they were also manifestly excessive and that there was excessive cumulation. The case is unusual only to the extent that the respondent conceded that ground 3 was in fact made out. Regrettably, the judge, having cited an extensive passage from the judgment of Callaway, J.A. in R. v. McGrath[3], which referred to the kind of culpability proscribed in para.(a) of s.318(2), namely a "conscious and unjustifiable disregard of a substantial risk of causing death", then proceeded to describe the circumstances in the present case as satisfying that test. In fact the Crown had chosen not to prosecute on the basis of paragraph (a), nor had it proceeded with an earlier charge of manslaughter, and so the learned sentencing judge was obliged, as is this Court, to treat the charge as it was in fact particularised, as one coming within para.(b) and so dependent on proof of negligence as defined in that paragraph. The respondent in making the concession stated, therefore, that it was necessary for this Court to resentence the applicant appropriately, although it maintained that nevertheless the sentence in fact imposed of 9½ years was within the range and appropriate to the circumstances of the case.

11. Thereafter it was accepted on both sides that the application should proceed upon the basis that all sentences, as well as the question of cumulation and minimum term and the period of disqualification, were to be the subject of resentencing and that the arguments thus far put forward on both sides should be treated as directed to what were the appropriate sentences or other dispositions in all the circumstances of the case. There was some discussion as to whether resentencing was strictly necessary in the case of the head sentences for theft, but no extensive argument took place on that issue and, having regard to the way in which the matter was argued, it is not necessary to express any conclusion upon it.

14. The facts should be set out upon which this Court must resentence the applicant, although they do not differ from those considered by the sentencing judge. The particular grounds of application will be treated as issues to be considered for the purpose of that resentencing process. It is not, however, proposed to state every fact and, having regard to the fact that no significant question of principle remains, at least none remains where any principle needs refinement or further exposition, I shall assume that the parties are familiar with the additional facts set out in the sentencing judge's reasons and in the summary made available to the Court and the parties.

17. I deal first with the relatively simple facts surrounding the thefts, not because they are the more serious of the counts, but because two of them led to the grossly negligent driving resulting in the death by culpable driving count. The catalogue of thefts begins on the evening of 30 June 2000 when the applicant stole a Ford sedan from the car park of the Kilsyth Club on the corner of Canterbury and Colchester Roads, Kilsyth. Then, at about 12.45 p.m. the next day the applicant drove the stolen car into the underground car park of the Forest Hill Chase Shopping Centre in Forest Hill. A female shopper was trying to put her child into the rear seat of her own car, at the same time holding her bag in her left hand. The applicant snatched the bag from her and ran to the Ford car, driving off with the victim's bag. It was recovered later that day but $60 had been taken from it (count 2). It seems that the applicant must then have driven direct to the K-Mart Plaza Shopping Centre in Burwood, for shortly before 1 o'clock the same day the applicant stole a Holden Commodore car from the parking bay near the Burwood Highway (count 3). He then drove into the Burwood East Shopping Centre where the events leading to counts 4 and 5 took place, to which I shall return in a moment. From Burwood East the applicant drove the stolen Holden Commodore at a fast speed down Middleborough Road and, so it seems, eventually came to the car park of the Croydon Hotel in Whitehorse Road, Croydon. Later it was discovered that the Commodore had been left there. In that car park, however, the applicant then stole a white Ford station wagon from the hotel car park at some time after 2 p.m. (count 6). From there it seems that he drove to the Chirnside Park Shopping Centre where he must have arrived somewhere between 4 and 5 p.m. that afternoon. There he left the white Ford station wagon because he had decided to steal yet another car, a blue Holden Commodore station wagon which was parked in the next bay to the place where he left the Ford (count 7). His stealing spree continued early that night, somewhere between 7.40 and 9.15 p.m. It seems that he left the blue Holden Commodore station wagon in the street in Glen Waverley with its rear left window smashed. From there he went into the Glen Waverley Community Centre in Waverley Road and stole a silver Ford Fairlane sedan (count 8). The next day this car was found in Bonbeach about 780 metres from the caravan park where the applicant was living at the time.

20. I return to the two most serious counts which had taken place at about 1 p.m. that day. One may recall that he had stolen, only some minutes earlier, a light blue Holden Commodore which he drove into the Burwood East Shopping Centre. By chance he parked it next to the car of a 76-year-old female pensioner, who left her car and made her way towards the shops carrying her handbag. Before she got there the applicant approached her and snatched the bag from her (count 4). The applicant then returned to the car he had stolen which was not far away but he was pursued by the pensioner. By the time he got into that car she had approached the driver's window and started to bang on it in her indignation. Of course it did not deter the applicant, who backed his car out as fast as he could in order to make his escape. It seems that in the course of doing so, perhaps by turning the wheel, he knocked the old lady to the ground, but worse was to come. As he reversed out, at high speed with the wheels spinning, he drove right over the old lady inflicting multiple injuries on her including a number of fractured ribs in the thoracic vertebrae and broken bones in the pelvic region. As a result she died not long afterwards in hospital. The applicant's object and his desperate thoughtlessness can be seen from the fact that he made no attempt to assist the lady whom he had knocked to the ground but drove off at high speed through the car park and out into Middleborough Road, clearly with the intention of enjoying the benefits of his theft and of avoiding detection and arrest. These events formed the factual basis and background to count 5, the count alleging culpable driving by gross negligence. The old lady's handbag was found a few day's later in the car park near the East Camberwell station. I have already described what he did with the car in his other activities later that day.

23. A few days later the applicant was arrested while drinking in a railway carriage close to Lilydale Station. He was interviewed but in substance answered "no comment" to every relevant question. He was then charged with these offences, although at first he was also charged with manslaughter. In due course, there was a committal proceeding, which proceeded as a contested hearing. About a week later the applicant made a plea offer, namely to plead to culpable driving and theft, but not to manslaughter, which offer was accepted and the matter proceeded as a plea in the County Court.

26. At the plea hearing a number of other matters were referred to which are of relevance, although it is not practical to describe them all in this judgment. It appeared that at the time of the offences he had just turned 27 years of age, and at this present time he is now 29. His record shows that he has taken very little to heart from his earlier court appearances of which there had been 16 and as a result of which he had been sent either to youth training centre or to prison 14 times in the preceding ten years. Indeed, on his first appearance in court when he was only 17, he was convicted of 13 offences which resulted in a sentence of 15 months in a youth training centre. Over the years his 63 convictions (or findings of guilt) have included 21 charges of theft, three charges of burglary or attempted robbery, one charge of dangerous driving and 15 lesser driving offences, eight charges of causing injury or assault (including two for causing serious injury) and numerous drug offences. It appeared that he had become a drug addict over the years. After coming out of prison in November 1999, he had spent some seven months with a family friend one Ruby Bower, who managed valiantly to keep him off drugs for that period, but he had left her in mid-June 2000 to live in the caravan park at Carrum, and not long afterwards had engaged in this spate of offences. It was fairly said on his behalf that he had come from a disjointed family background, deserted by his mother at the age of 18 months, although regrettably this sort of background is not uncommon to offenders appearing in the courts. He had become a heroin addict and was then diagnosed with hepatitis C which had led to psychological difficulties. He is a person of both limited intelligence and consequently education. At the time of the offences he was living alone and unemployed, with a seeming need to feed his habit by criminal activities of the kind which took place on or about 1 July 2000. It might also be said in his favour that he had pleaded guilty at a relatively early stage and, as reported by Mr Healey, he had expressed some remorse for his conduct. It was said on his behalf that at least he had attempted rehabilitation on one occasion even though that had not extended much longer than seven months, so that it was contended that he is not beyond redemption.

29. In approaching the several grounds of appeal I shall take a different approach from usual, for the reasons already stated. Counsel for the Crown made clear that the respondent conceded that ground 3 had been made out, in other words, that the judge had wrongly sentenced the applicant on the basis of a finding of causing death by culpable driving based on recklessness, as proscribed by s.318(2)(a) of the Act rather than on the basis of culpability founded on the negligent driving of the motor vehicle, as proscribed by s.318(2)(b) of the Act. It is useful, however, to repeat briefly the way in which the judge reasoned that a sentence of 9½ years' imprisonment for the count of culpable driving should be imposed. His Honour referred to and cited an extensive passage from paragraphs 15 and 16 of the judgment of Callaway, J.A. in McGrath[4] where his Honour sought to distinguish the seriousness and comparative culpability of driving which supported charges under paragraphs (a) and (b) of s.318(2). He had said, properly, that the worst class of case "would almost certainly involve the first kind of culpability described in s.318(2)(a), namely, a conscious and unjustifiable disregard of a substantial risk of causing death".

32. Although the learned sentencing judge in this case correctly referred to culpable driving contrary to para.(b) as "a species of involuntary manslaughter" which must be treated as such, he unfortunately went on to describe the present circumstances as exhibiting a "conscious and unjustifiable disregard of the substantial risk of causing death" which he had already classified, by reference to another judgment of Callaway, J.A.[5] as "the worst class of case". It seems therefore, as counsel conceded, that he had concentrated too much on the apparent recklessness of the applicant and had seemingly forgotten that the charge was one which essentially was based on gross negligence as proscribed by para.(b). Consequently there can be little doubt that his Honour sentenced on an incorrect basis. By accepting that concession, however, I should not be taken as expressing the view that all cases of culpability based on reckless driving are worse than all cases of culpability based on gross negligence for, although the mental element is clearly different, there may be factual elements which will render the criminality of a case of causing death by grossly negligent driving worse than that of some cases of causing death by reckless culpable driving. In other words, there may well be some overlap between the two classes of case, forgetting for the present those covered by paragraphs (c) and (d),[6] and the legislature has not chosen to impose different maximum penalties for the various classes of causing death by culpable driving.

35. In any event, it is necessary for this Court to resentence the applicant on the basis that the learned judge misdirected himself as to the relevant class of driving alleged and its proper characterisation. Much of his Honour's description and condemnation of the applicant's driving was accurate, but he was not entitled to put it in a class of case which involved recklessness in the relevant sense.[7]

38. In considering what sentence should be imposed in substitution one should, nevertheless, regard this as a very bad case of grossly negligent driving, characterised by a flagrant disregard of his duties as a driver and his responsibilities towards those on the roadway in the car park, in particular, the elderly lady whom he had already knocked down. His driving therefore can be characterised as callous and indifferent to her safety, motivated solely by a desire to get away without consideration of how that was achieved and the consequences to others. I shall return, however, to the proper basis for sentencing the applicant after considering the other matters raised in argument by counsel.

41. Counsel agreed that all aspects of the sentence were re-opened, at least as to cumulation and minimum term, although it is not clear whether that concession was made with respect to the theft counts, for counsel for the respondent insisted there was nothing wrong in those sentences. Notwithstanding that the conceded error re-opened the Court's discretion as to sentence, it is desirable to look at the matters raised by way of separate grounds for setting aside the sentence, as they raised matters about which the parties made contrary contentions.

44. Ground 4 complained that there was an error in the original sentence because the learned judge included as a relevant factor the commission of offences for which the applicant was neither charged nor convicted, being charges under s.61 of the Road Safety Act 1986 for failing to stop after an accident and for failing to render assistance. These were offences which were indictable and which carried a maximum of two years' imprisonment. The judge had drawn attention to the fact that the applicant, after striking and running over the elderly victim, "chose to drive on to avoid the consequences of his actions". Again he drew attention to the fact that the applicant had "callously exited the scene by driving in a very fast and dangerous manner", about which he said that this "cowardly desertion of the scene of the fatal accident fills me with complete contempt". Finally he pointed out that the applicant must have known that he had run over the elderly victim and caused her serious injuries but that he had driven on to avoid detection and "with callous disregard for her welfare". These descriptions were, if I may say so, very apt descriptions of the applicant, his driving and his attitude on the night. The question is now whether this Court can take those factors into account or whether, as apparently was originally the case, he should have been separately charged with offences under s.61. As to this latter point one may well see why it was that charges were originally laid, for the Crown, before proceeding to prosecute for culpable driving would have to be satisfied that they had sufficient evidence relating to the actual driving, but it could be confident that he had driven away without stopping to render assistance. More generally, however, it seems a very fine line in this case between what was involved in the actual driving by the applicant and what might properly be characterised as post-offence conduct which was capable of being separately charged. Cases such as The Queen v. De Simoni[8] and R. v. Newman and Turnbull[9], cited on behalf of the applicant as relevant to this issue, do not deny, indeed clearly accept, that a sentencing judge is bound to take into account all the circumstances relevant to the commission of the offence, but, where there are circumstances of aggravation which might have led to a more serious count or to a separate count, then it is not proper or fair to sentence on the basis of an offence for which the accused has not been charged. The suggested additional offences in the present case cannot be said to be charges involving any significant element of aggravation, indeed they are comparatively minor charges ordinarily heard in magistrates courts. If they had been charged in the present case, it is highly unlikely that any sentence imposed would be treated as other than concurrent, unless it can be said that subsequent events can never be looked at to explain, qualify or characterise the nature of the offending on the principal count. If the circumstances of the offending up to but not beyond the precise moment of injury (leading ultimately to death) were to display a relatively minor degree of culpability (and it is hard to think that in a proper count for death by culpable driving that could ever be the case), then later events might on some occasions call for a separate charge and not be capable of being used by the sentencing judge on the major count.

47. In this case, however, that is entirely unrealistic. The events all took place in a moment, as it were, and the nature of the applicant's driving and his crass, unfeeling callousness were clear from the moment he drove off. The later events referred to by the judge merely went to show that his purpose was plain and was consistent from that moment. Those events relevantly demonstrated the intention of the applicant at the time and his culpability in committing the charged offence of death by culpable driving. What he did as he drove out of the car park merely served to emphasise that from the outset he would brook no interference and would drive off regardless of the consequences, albeit that it was not a case of reckless culpable driving, as defined in the authorities. In other words, the best that could be said for him is that there was not established a "conscious ... disregard" of the risk of killing the elderly shopper. There was, nevertheless, in his driving a deliberate attempt to get out of the car park as fast as possible, at first by reversing out of the parking space and then by driving forward to find the exit, and he did that in a cowardly and callous way by ignoring the fact that he had struck the old woman and knocked her to the ground and proceeded backwards in a grossly negligent way in flagrant disregard of her well-being. All this, it must be inferred, arose because of his determination to drive away to avoid detection at least for the theft and for knocking the elderly victim to the ground. Those acts at least preceded the final contemptible act of driving over the woman while she lay there and it is presently irrelevant that his escape was also to avoid the consequences of the latter act, although I believe the law would be foolish to overlook that subsequent act in a case such as the present. Whether it also involved a "cowardly desertion" of the scene is not of direct consequence, having regard to the seriousness of the events themselves.

50. I would therefore propose to take note in resentencing the applicant of the events which took place after the actual running over of the elderly victim to the extent that they throw light on his intention at the time and the criminality involved in committing the offence of causing death by culpable driving. I would add that, although it is not now presently necessary to resolve the issue, that it is by no means obvious that the sentencing judge misused this material and I am inclined to the view that he merely described these events in order to characterise the seriousness of the culpable driving.

53. It is now necessary to turn to the question as to what is an appropriate sentence for the count of causing death by culpable driving, consisting in driving negligently in the sense defined in s.318(2)(b), namely where the offender has failed "unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case". It is in this case unnecessary to consider whether the learned judge erred in the manner described in ground 1 of the application, namely, by imposing a manifestly excessive sentence, for the Crown's concession means that his Honour was wrongly influenced, so it may fairly be inferred, by his conclusion that this was the kind of driving which would come within paragraph (a) of s.318(2) and thus came within the worst classes of case. In describing the relevant factors for present purposes counsel fairly conceded that it was a very serious example of this offence but he said that the penalty should be tempered by reference to the mitigating circumstances. Moreover he said that the present sentence was higher than any sentence ever imposed for this count, particularised in terms of driving negligently. He then indulged, if I may so describe it, in a comparative exercise with a number of other cases decided over the years. I confess that I have never found this a very satisfactory exercise for the purpose of determining ultimately what is the appropriate sentence in a particular case, for circumstances vary so much, as do the background and character of the offender, that is as hard to be confident that any of the comparative cases could be truly treated as on all fours with the instant case. One must observe that there are now so many factors which appellate courts have laid down as relevant to the sentencing process that it would be exceptionally hard to find any case where the same combination of facts occurred previously. Undoubtedly it was a high sentence, but there is no reason to think that it was beyond the range appropriate for a count based on para.(a). I accept, though, that a nine and a half year term may be a little high for a para.(b) offence committed in like circumstances, at least as it has been perceived up to the present time. One must, however, remember that the courts have been expressing, and in particular this Court has expressed on several occasions in the last year or so, emphatic views as to the need to take this offence seriously and to treat the offenders accordingly. It has been reiterated time and time again that the offence under this paragraph is considered to be a species of manslaughter: see in recent months the discussion in cases such as DPP v. Wareham[10] and DPP v. Solomon[11]. In the latter case[12] Winneke, P. reiterated that the offence "is a species of `involuntary manslaughter'", citing what he had said in R. v. O'Connor[13].

56. The present case was, in my opinion, one of the worst and most callous examples of death by culpable driving arising out of negligence as defined. It arose squarely out of the applicant's need and desire to escape from the scene of a theft from an old lady, although for that offence he was separately charged and should be separately sentenced. The need to escape, however, is directly related to the manner of his driving, his flagrantly gross failure to observe reasonable care and his selfish wish to avoid detection at all costs. Apart from the speed and manner in which he chose to reverse out of the car parking space in a busy car park on a Saturday afternoon, his criminality is aggravated by the fact that, in the process of achieving that end, he had already knocked the old lady to the ground, not merely allowing her to lie there, but continued on by reversing over her in wanton disregard of her well-being. Although the latter driving leading to death took place but a moment after the victim was knocked to the ground, it was entirely irresponsible. Doubtless, it was the shortness of that period which denied the prosecution the opportunity ultimately to allege and to have the Court infer that his behaviour involved recklessness, requiring actual foresight of a substantial risk that death or serious injury might result. Otherwise, so far as the criminality of the act is concerned, it deserved condign punishment.

59. These strictures, nevertheless, must ordinarily be tempered by a consideration of the criminality of the offender by taking into account those factors which would justify an amelioration of the sentence otherwise to be imposed. Regrettably, apart from an early indication of a plea of guilty and some indications of remorse, there is not a great deal to be said in his favour. Although it might be said that the thefts were committed to feed the applicant's addiction to heroin, that factor should have relatively little significance if one has regard to his consistent breaking of the law in this regard over many years. He had an unhappy youth but, although he has made one partly successful attempt at reform with Ms Bower, it lasted barely six months, and the three medical and psychological reports tendered at his plea hold out little real hope for his rehabilitation, especially if one has regard to his record.

62. In all the circumstances, therefore, I would substitute a sentence of imprisonment for 9 years for the offence of causing death by culpable driving. Although that sentence is higher than any imposed up to the time this application was argued[14] for a single count for that offence when based on driving negligently, as defined, it is a sentence consciously designed, after taking into account all relevant factors, to express disapproval of the applicant's behaviour and moral culpability, as well as indicating the seriousness with which the courts of this State should treat offences under s.318(2)(b) of the Act.

65. It was also argued that the sentences for the theft counts were manifestly excessive. There seemed little argument that the sentences for these offences should be considered as part of the resentencing process, albeit that there was no concession that these seven sentences were themselves erroneous. Rather it was agreed that questions of cumulation, the total effective sentence, and the appropriate minimum term would have to be looked at again and, for myself, I see no reason, nor was the Court taken to any direct authority, which would require resentencing in relation to offences on the same presentment where no error was conceded or found to exist on appeal. In the present case, however, I consider that each of the sentences imposed should be reconsidered.

68. Counsel argued that the theft sentences were higher than normally imposed for offences of this kind. Perhaps they were, but that may reveal only undue leniency in some cases which are seen to be towards the lower end of the scale of seriousness. With first and youthful offenders there are often good reasons for imposing light sentences, ones which are compassionate and which otherwise give greater scope for proper rehabilitation. They are not significant factors in the present case: far from it. The applicant may be described as an experienced thief, one who has received many warnings from the courts on earlier occasions and yet has taken none of those warnings to heart. On no less than nine of the 14 occasions he has been before a court since 1991 he has been dealt with for one or more charges of theft, in all totalling 21 charges, omitting for the present several more serious property offences. Sentences of detention of three, six, nine and twelve months have been to no avail. The prospects for rehabilitation are slender. It is not a question of imposing a higher sentence on any of these counts because of his past record; rather each should reflect merely the fact that there are so few mitigating circumstances relevant to his behaviour that higher terms than he has previously received are appropriate here. One must not forget that the maximum sentence available for this offence is 10 years.

71. As to the specific offences one should rightly treat the two counts of theft from the women in the car parks as the more serious, so that in my opinion they justify terms of two years each. Counsel was disposed to argue that the learned judge was treating the offences as the equivalent of robbery, assuming that there was some element of force used in order to steal the two handbags. He pointed to the fact that originally robbery was charged, presumably on the basis that the women were hanging on to their handbags at the time. One cannot, of course, treat these thefts as if they were robberies, but, if they had been, longer sentences may well have been justified. A more suitable analogy may be drawn with the following circumstances. Let us assume that the bags in question were not held by the victims but were placed on a table or chair next to them while they were, say, resting or eating. If the applicant had seized the bags from those places, there would have been no question of any force having been used, but they would still be seen to be serious thefts, in that each bag would have been taken from under the nose of the victim and in circumstances where such a theft would cause personal affront and shock to that victim, having regard to the personal nature of the contents of handbags. That is the kind of affront and shock here caused, which makes each bag theft equally serious and so deserving of punishment in each case for a term of imprisonment of two years.

74. As for the car thefts, at least two were, on the evidence, directly related to the thefts of the handbags, and there would seem little basis for considering that the other thefts were mere joyriding escapades on the part of some youthful, stupid offender, as counsel fairly conceded. Having regard to the circumstances and the lack of mitigating circumstances other than those referred to, imprisonment for 18 months in each case is appropriate for counts 1, 3, 6, 7 and 8, bearing in mind the Court's approach to multiple counts, as evidenced in cases such as DPP v. Grabovac[15].

77. As to concurrency and cumulation again the obligation to resentence requires the reconsideration of the need and desirability of cumulating the various theft sentences on the sentence for the principal count of causing death by culpable driving. It will be remembered that the judge cumulated 12 months of the first handbag theft sentence and six months of the last three sentences for car theft (counts 6, 7 and 8). It has been argued that this cumulation was excessive and not justified by the circumstances, such as to make the total effective sentence "crushing".

80. In the end I am inclined to agree that 2½ years cumulation was excessive. There was a connection between the thefts and the culpable driving, especially the counts for theft of the car and handbag immediately preceding the culpable driving, although the handbag thefts were an additional and different kind of offending requiring separate consideration because of their inherent seriousness. One may accept that each of the thefts involved inexcusable and serious repetition of conduct of a kind already committed by the applicant which deserved to be reflected in part in the overall sentence. For myself, however, I would take a somewhat different approach, largely because the offences (apart from count 5) should be viewed as one episode of thieving spread over less than 48 hours. The first theft of a handbag did not deserve such high cumulation as the 12 months imposed by his Honour, but I would treat the handbag theft offence preceding the culpable driving as requiring some cumulation in itself. Certainly it could not be treated as aggravating the culpable driving. Likewise I believe that cumulation for each of the car thefts on counts 6, 7 and 8 ought not to result in total cumulation to the extent of 18 months (as directed by his Honour), as they seem to have been motiveless, lesser (to a degree) offences committed one after the other. Nevertheless, the sentences for each of the car thefts related to the handbag thefts, though more serious in themselves, should continue to be treated as concurrent because of their close relationship to the handbag thefts.[16] The approach to be adopted, therefore, is closer to what was intended by cases such as Grabovac.

83. In the end I would therefore order the cumulation upon the sentence on the principal count (count 5) of 8 months in respect of count 2 and 4 months in respect of count 4 (a lesser cumulation because of its connexion with count 5), together with two months in respect of each of the sentences for counts 6, 7 and 8. The total period so cumulated will amount to one and a half years and, in consequence the total effective sentence should be 10 years 6 months. I believe that cumulation to this extent is necessary where the applicant has shown such a refusal to accept the warnings previously given by the courts in relation to this kind of offence. Whatever might be said in other circumstances, the requirements of totality are properly reflected in the total effective sentence. It should be noted that only a small proportion of all the additional sentences are made cumulative, that is one and a half years out of a total of 11½ years' sentences for all the thefts. To cumulate much more, however, would run the risk of constructing a "crushing" sentence.

86. It is then necessary to turn to the final aspect of the sentence, namely, the minimum term to be served before the applicant should become eligible for parole. In resentencing this likewise requires reconsideration, although one should note and take account of the submissions that the original minimum term was proportionately too high. One may doubt that it was outside the range, but I would propose to reduce slightly the differential between the head and minimum terms, so that it will not amount to a significantly different proportion of the newly imposed total effective term. In consequence I would direct that the applicant become eligible for parole after the expiration of 8 years from the deemed commencement of his sentence. In essence, therefore, the differential between head and minimum terms is reduced to 2½ years instead of 3 years. I do not believe that will be crushing in the circumstances and will reflect the faint hope for rehabilitation.

89. There remains only the question of the cancellation of the applicant's driving licence and his disqualification from seeking a new one for 10 years from the date when the sentence was handed down last year. This ought to be separately reconsidered in that both head and minimum terms of imprisonment are to be altered. No reasons were given why the sentencing judge chose this disqualification period, as is frequently the case. The period here chosen by his Honour was attacked by counsel as being excessive. He primarily pointed to the fact that the suspension extended well beyond the minimum term, saying that it might well affect the applicant's ability to seek and retain work, relying on The Queen v. Lefebure[17]. For myself I see no special vice in continuing disqualification beyond the minimum term in a case such as the present, as long as that does not operate for an excessive period. Almost invariably the restriction will not be noticed while the applicant is in prison. Ordinarily it will only be on his release that the disqualification will "come home" to him.

92. On the other hand, disqualification should not be extended wantonly and without regard to the additional penalty it imposes. Here the form of order, perhaps unconsciously, resulted in the disqualification extending for just under 21 months, not the 12 months period ostensibly stated in the judge's sentencing orders. This flows from the fact that the disqualification ran from "this date", i.e. the date of sentencing, whereas the actual sentences, including the minimum term, ran in effect from the moment he would be treated as having started the sentences, namely, some 260 days earlier, as referred to in the customary declaration. Having regard to the lack of explanation for the unusual period of effective disqualification, I would infer that this consequence was overlooked. Otherwise I am of opinion that the 12 months additional period of disqualification should stay, but the order for that purpose must reflect the 260 days already served. I would therefore disqualify the applicant from applying for a further licence until a date eight years and 105 days from the deemed date of sentencing, namely, 23 March 2001.

95. I would therefore allow the application and substitute the proposed sentences for those imposed by the trial judge, except to the extent that they have in part been confirmed. I would repeat that I propose reducing the sentence, and in particular the sentence on the primary count of culpable driving, essentially because of the apparent misconception of the sentencing judge as to the nature of the offence with

which the applicant had been charged. That sentence may well have been appropriate for a count of causing death by culpable driving based on an allegation of driving recklessly, but this application has to be resolved upon the basis that the foundation of the charge to which the applicant pleaded was the lesser allegation of negligent driving, as defined. In all the circumstances that should properly lead to a substituted term of nine years on the count of causing death by culpable driving, together with the consequential alterations to the other aspects of the sentences.

100. Having had the advantage of reading the reasons for judgment prepared by Ormiston, J.A., I agree that the appeal against sentence should be allowed to the extent proposed, and for the reasons given, by his Honour.

105. I have had the benefit of reading in draft the reasons for judgment of Ormiston, J.A. I agree in his reasons that the application should be granted and the appeal against sentence allowed to the extent proposed by his Honour.

[1] The date upon which the sentence was to operate was of significance, as will be seen later, in that the applicant had already served some 260 days so that it was an effective disqualification from applying for a new licence for some 21 months after the first potential date for release on parole.

[3] [1999] VSCA 197 at paras.[15]-[16].

[4] [1999] VSCA 197.

[5] R. v. Wright [1999] VSCA 145.

[6] Which refer to the causing of death by reason of driving under the influence of drink and drugs respectively.

[7] The same judge had made a similar mistake and the Crown had made a similar concession in the unreported case of R. v. Franklin [2002] VSCA 37 (decided after the sentences were imposed in the present case). The facts in that case were not similar to the present.

[8] [1981] HCA 31; (1981) 147 C.L.R. 383.

[10] [2002] VSCA 110.

[11] [2002] VSCA 106.

[13] [1999] VSCA 55 at [19].

[14] According to the submissions of counsel, which I have no reason to doubt, but it is possible that one longer sentence has been passed since argument concluded, though it has not been tested on appeal.

[15] [1998] 1 V.R. 664.

[16] At least so far as the handbag thefts are concerned. Effectively the extent of cumulation for those counts (counts 2 and 4) will also reflect the aspect that they were necessarily preceded by the car thefts (counts 1 and 3), but no separate order is necessary.

[17] [2000] VSCA 79; (2000} 112 A.Crim.R. 41.