R v Veatufunga [2007] NSWCCA 54 | Case summary

SULLY J BELL J HOEBEN J 1 March 2007 REGINA v Potesio Soane VEATUFUNGA Judgment 1 SULLY J: This is a Crown appeal brought pursuant to section 5D of the Criminal Appeal Act 1912 (NSW). The appeal concerns a number of sentences of imprisonment that were passed upon Mr. Veatufunga, the respondent, by his Honour Judge Hughes sitting in the Penrith District Court on 10 August 2006. 2 The relevant background is summarised helpfully and as follows in the written submissions of the Crown: "2. On 28 April 2006, at the Penrith Local Court, the respondent pleaded guilty to one count of aggravated dangerous driving occasioning death and four counts of aggravated dangerous driving occasioning grievous bodily harm. The circumstance of aggravation being that at the time of the accident the respondent was driving under the influence of alcohol, his level of intoxication being in the high range. 3. These charges are laid pursuant to section 52A(2) and 52A(4) of the Crimes Act 1900 and carry maximum penalties of 14 and 11 years imprisonment respectively. In relation to each offence, an order pursuant to the Road Transport (General) Act 2005 may be made. The automatic period of disqualification is 3 years: s 188(2)(d)(i). The minimum period of disqualification is 12 months: s 188(2)(d)(ii). 4. The respondent also pleaded guilty to the offence of fail to stop and assist after impact causing injury [s.70 Road Transport (Safety and Traffic Management) Act 1999; maximum penalty 18 months imprisonment and or $3,300. 5. The matters were committed for sentence to the Penrith District Court pursuant to section 51A Justices Act 1902 and the fail to stop offence was placed on a certificate pursuant to section 166 Criminal Procedure Act 1986. 6. On 10 August 2006 the respondent adhered to his pleas of guilty entered in the Penrith Local Court and his Honour sentenced the respondent to the following terms: (i) Count 1 charge of aggravated dangerous driving occasioning death: Non-parole period of 18 months imprisonment to commence on 10 August 2006 and expire on 9 February 2008 with a balance of term of 18 months to expire on 9 August 2009. (ii) On each of counts 2 to 5 of aggravated dangerous driving occasioning grievous bodily harm: Concurrent fixed term of one year's imprisonment to commence on 10 August 2006 and expire on 9 August 2007. 7. An order was made disqualifying the respondent from driving a motor vehicle for 18 months from 10 August 2006 to 9 February 2008. 8. In relation to the offence of fail to stop and assist after accident on the s.166 certificate, the respondent was sentenced to a fixed term of 3 months imprisonment to commence on 10 August 2006." 3 The essential facts of the case are, also, summarised helpfully in the written submissions of the Crown. It is convenient to reproduce them: "11. A statement of facts was tendered as part of Exhibit 1 and his Honour set out the facts of the offences at pages 2 to 4 of the remarks on sentence. 12. At about 1.10 a.m. on Sunday 20 November 2005 the respondent drove his car in a westerly direction along Debrincat Avenue, Tregear. As the respondent's vehicle reached a point approximately 250 west of Wilkes Crescent the vehicle crossed into the east-bound lane. At this time Iulia Siloi was driving her car east along Debrincat Avenue. The respondent's vehicle impacted heavily with the front of the vehicle driven by Iulia Siloi. 13. As a result of the impact the other car sustained extensive front end damage. Iulia Siloi and her passengers Maria Sioloi, Otila Lauvao, Venzy Laupola and Malia Iata were trapped inside the vehicle. Maria Siloi suffered fatal injuries and died within the wreckage of the vehicle. Malia Iata was cut from the wreckage and airlifted to Liverpool Hospital, as a result of the impact Ms Iata suffered internal injuries. Venzy Laupola was cut from the wreckage and conveyed to Nepean Hospital suffering from a fractured hip and fractured C2 spine. Otila Lauvao was cut from the wreckage and conveyed to Nepean Hospital suffering from two fractured femurs, a lacerated liver, a degloved forehead and a fractured sternum. Iulia Siloi was cut from the wreckage and conveyed to Westmead Hospital suffering from a compound right tibia fracture and a fractured L1 to L4 spine. 14. The respondent alighted from the vehicle and decamped into nearby bushland. He was tracked by dog squad personnel a short distance from the scene. He was conveyed by ambulance to Westmead Hospital suffering internal injuries. 15. At the time of the collision the weather was fine and dry. The roadway was dry and appeared to be in good condition. Debrincat Avenue ran in a general east-west direction providing one lane for traffic travelling in each direction. The opposing traffic flow was separated by double white painted lines. Traffic conditions were medium to light. 16. The respondent was arrested at 1.30 p.m. on Wednesday 25 November 2005 at Westmead Hospital. He was escorted to Merrylands Police Station where he participated in an electronically recorded interview. During the interview the respondent made no admissions to being involved in the collision. 17. A blood sample was taken from the respondent at Westmead Hospital and the results of the blood testing showed the respondent's blood alcohol concentration to be 0.187 grams of alcohol in 100 millilitres of blood." 4 Before looking in any particular way at the remarks on sentence, it might be useful to recapitulate some matters of principle by which the learned sentencing Judge was bound. 5 First, his Honour was bound to deal with the respondent upon the basis that his Honour was dealing with the aggravated form of each of the offences of dangerous driving occasioning death and of dangerous driving occasioning grievous bodily harm. The foundational section of the Crimes Act 1900 (NSW), section 52A, provides a statutory scheme of deliberately graded offences of the particular kind. Thus, an offence of dangerous driving occasioning death, which is charged without accompanying circumstances of aggravation, attracts upon conviction a statutory maximum penalty of imprisonment for 10 years. Similarly, the cognate offence of dangerous driving occasioning grievous bodily harm, when charged without accompanying circumstances of aggravation, attracts upon conviction a statutory maximum penalty of imprisonment for 7 years. When either of such offences is charged with accompanying circumstances of aggravation, then the statutory maximum penalties increase from, respectively, imprisonment for 10 years and for 7 years, to sentences of, respectively, 14 years and 11 years. Those are significant increments in penalty; and a sentencing Judge must give proper effect to the legislative policy which lies clearly behind that incremental scheme. 6 In the present particular case, the respondent stood for sentence pursuant to a number of convictions, each of which was grounded in his plea of guilty. The respondent stood for sentence for one offence of aggravated dangerous driving occasioning death, and he so stood for sentence facing a statutory maximum penalty of imprisonment for 14 years. At one and the same time the respondent stood for sentence in respect of each of four admitted offences of aggravated dangerous driving occasioning grievous bodily harm; and in respect of each such offence he faced a statutory maximum penalty of imprisonment for 11 years. 7 Secondly, his Honour was bound to take carefully into account the simple and obvious fact that each of the five offences of, variously, aggravated dangerous driving causing death and aggravated dangerous driving occasioning grievous bodily harm, was a distinct and discrete offence involving a distinct and discrete victim. The sentences against which the Crown now appeals were passed on 10 August 2006. Almost a year to the day prior to that date this Court, (Spigelman CJ, Hunt AJA and Howie J), had delivered judgment in the matter of R v Janceski [2005] NSWCCA 228. His Honour had, therefore, the assistance of, relevantly and particularly, the following guidance given by Hunt AJA, who wrote the principal judgment of the Court: "21. ………. The other sub-category is where the one action by the offender causes a number of people to be injured and where separate charges are laid in relation to each victim. …….. 22. In this second sub-category, it is easy for the sentencing judge to consider the sentencing process as being related to a single action which has created multiple victims, and therefore to fall into the error of imposing wholly concurrent sentences, each of them having been assessed on the basis that the existence of the multiple victims aggravated that sentence. Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 , which identifies the fact that an offence involved multiple victims as an aggravating factor, may (read in isolation) unfortunately lend credence to that approach. That is how the judge approached his task in the present case. Such an approach overlooks the fact that, in a case such as the present, there are two counts, each identifying one of the victims and each requiring a separate sentence. It is completely contrary to principle to aggravate each of those sentences on the basis that each offence resulted in multiple victims: Regina v Tadrosse [2005] NSWCCA 145 at [28]-[29]. 23. In a case falling within the second sub-category, separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap in the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender. This, it seems to me, follows naturally from Pearce at [45]-[48] - and cases such as Regina v Weldon (2002) 136 A Crim R 55 at [46]-[53] and Regina v Price [2004] NSWCCA 186 at [38], [49] - when applying the general principles relating to the aggregation of sentences to this particular sub-category." 8 Thirdly, his Honour was bound to give dutiful effect to the substance of the sentencing principles that are established by the decision of the High Court of Australia: Pearce v The Queen [1998] 194 CLR 610. The basic principle thus established is, with respect, completely clear and is stated as follows in paragraph 45 of the joint judgment of McHugh, Hayne and Callinan JJ: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 9 It cannot be stressed too frequently that what is thus said does not amount to nothing more than an encouragement to sentencing Judges to adopt a particular sentencing method. What is said lays down a prescriptive statement of principle by which primary sentencing Judges are bound. 10 Fourthly, his Honour had the assistance of the guidance given by a specially constituted Bench of this Court, (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ), in R v Whyte & ors. (2002) 55 NSWLR 252. His Honour makes, in the remarks on sentence, passing reference to this judgment, a guide-line judgment of this Court. The remarks on sentence do not contain, however, any very particular discussion of the supposed principles that are established by this guide-line judgment; and it is useful in the context of the present appeal to clarify that topic. 11 The guide-line which is actually propounded by the decision is easily stated: where an offender's moral culpability is high, a full-time custodial head sentence of less than 3 years (in the case of death) and 2 years (in the case of grievous bodily harm) would not generally be appropriate. 12 The reasons of the Chief Justice, which spell out the actual guide-line and the process of reasoning upon which it depends, are at pains to establish other, and very important, propositions, respecting the practical implementation in a particular case of the guidance given by the particular promulgated guide-line. Thus, for example, the Chief Justice says at paragraphs 231,232 and 233 of his Honour's reasons: "231. In the case of the aggravated version of each offence under section 52A of the Crimes Act 1900 , an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment. 232. The guide-line is, to reiterate, a 'guide' or a 'check'. The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by section 21A of the Crimes (Sentencing Procedure) Act . 233. This guide-line focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration. ……….." 13 Fifthly, there could be no escaping in the present particular case that the moral culpability of the respondent was, on any reasonable reckoning, very serious indeed. In that connection I presume now to repeat some things that I said in R v Williams (unreported, Court of Criminal Appeal, NSW, 17 December 1996), noting the concurrence on that occasion of Gleeson CJ and of McInerney J; and noting, also, the adoption of those propositions by this Court, (Hunt CJ at CL, Smart and Sully JJ), in R v Sellers (1997) 92 A Crim R 381: "It is trite to say it, but the course of argument in the present case perhaps justifies its being repeated that drink driving offences are and have been for many years a bane of this community. Parliament has legislated repeatedly against them; and, as repeatedly, has progressively strengthened the statutory penalties prescribed in relation to drink driving offences. The Road Traffic Authority and the New South Wales Police Service pursue a constant public relations campaign designed to warn drivers that if they drink they must not drive, and that if they both drink and drive they are committing a serious breach of the criminal law. Newspapers habitually carry advertisements to that effect. Television broadcasts frequently carry community service notices to that effect. It is not unusual when driving around the metropolitan area of Sydney to see publicly displayed notices warning drivers that drink driving is, quite simply, a crime. Anybody who is old enough to be trusted with a driving licence at all, must be taken to understand that the law regards seriously drink driving offences; and that when such an offence is committed, and leads to somebody else being killed, as happened in the present case, then the matter is one for severe punishment intended not only to bring home to the offender the enormity of what he or she has done in the particular case, but act to reinforce in the mind of the community at large and, in particular, of the driving community at large, that drink driving offences are no longer tolerable in modern society. It is, I well understand, not the fashion for courts to express themselves strongly in ways that might be thought to be, in the fashionable argot of the day, 'moralistic', but it seems to me worthwhile to say in a case such as the present one, tragic as it is from the point of view of everybody involved in it, that driving a motor vehicle while stupefied with drink …is simply gross social irresponsibility. The present case stands as a tragic cautionary tale for the entire community of what can go wrong when sight is lost of those matters." 14 Sixthly, nothing that has been said thus far by way of an examination of correct legal principle should be understood as either detracting from or as disparaging in any way the subjective case that was available to be made for the respondent when he stood for sentence in the District Court. It will be necessary to say, presently, something further about those subjective aspects of the respondent's case. The point to be made for the moment is, however, simply this: "The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment.": R v Radich [1954] NZLR 86 at 87, cited with approval by this Court, (Street CJ, Lee and Slattery JJ in R v Rushby [1977] 1 NSWLR 594 at 597G - 598B; and see also the three following passages on page 598). 15 It is, now, convenient to look more particularly at the remarks on sentence. When that is done, then there emerge several matters calling for present comment. 16 First, the remarks on sentence do advert, and more than once, to the objective gravity of the respondent's offending; but the remarks dwell much more extensively, and repeatedly, upon the respondent's relevant subjective factors, by all of which the learned primary Judge was, obviously, very impressed. The following passages from the remarks on sentence will serve both to summarise the actual subjective factors and to give the flavour of his Honour's treatment, overall, of those factors: "This is, as I mentioned before, a tragic case. A woman was killed who had children, the other four women were also seriously injured and the actions of the offender were such that a custodial sentence is warranted. As I say that, I was impressed by the offender. He is what I would say a good man, he has worked all his life. He has three children of his own to the person he lives with now and he has a child in Tonga who he supports. He is a member of a church group and attends church every week with his family. He has no prior convictions, there is no criminal history at all, there are two traffic offences for speeding which are over a long period. He is thirty-six years of age and, as I say, this is the first time he has come to be dealt with by a court in this jurisdiction. The lack of any criminal history of course allows me to make some and I do have some regard to leniency when I come to sentencing. However, as the Crimes Sentencing Procedure Act requires me to, the purpose of sentencing a person is for punishment, general deterrence, to protect the community, to denounce the conduct of the offender, make the offender accountable for his actions, to promote rehabilitation and the recognition of harm done to the victim and his community. When I mention the victim and his community, the women who were injured and the woman who was killed were members of the same community, as I understand it, as was the offender. That in a sense brings greater condemnation on the offender by his community I expect. The offender has - and I accept his sound contrition and remorse for his conduct, and he is a working man who works as a fork-lift driver and is not a wealthy man - but nevertheless he has contributed to the funeral costs and has attempted to apologise to the other victims by way of a customary apology that that community understands. It is a very sad case in my view that this man who has no prior history is involved in such a serious matter." 17 The general tenor of the remarks on sentence seems to me to indicate, without more, that the learned primary Judge, with all proper respect to his Honour, fell into the error of giving to the subjective features of the respondent's case a weighting which, if it did not totally subsume the relevant objective criminality, at least gave that objective criminality distinctly less weight than it required to be given on the admitted facts of the case. 18 Secondly, and dealing with the important consideration of moral responsibility or lack of it, his Honour says: "The matters pursuant to s 21A I have taken into account and they have been put to me by the Crown and indeed they have been not cavilled with by the defendant. The nature of the injuries were serious, severe. There were five people in the other car and indeed the driver himself. The offender, according to witnesses, was driving the car in an erratic manner, swerving from side to side over the median strip and indeed that is how the accident occurred, there was a collision on the wrong side of the road. The degree of intoxication was high, it was in the high range, 0.187, and it was only a short journey, that is to say the offender lived close by. In that respect these aggravating factors are quite high and indeed it is submitted to me that the moral culpability, pursuant to the Whyte and Jurisic guidelines, is high. However, the offender has also had a medical problem, because he had thyroid cancer he has had his thyroid removed and is to take thyroid replacement therapy which is Thyrotoxin and he had not been taking that on a regular basis." 19 It seems to me, with all proper respect to the learned primary Judge, that this assessment of moral culpability is wholly inadequate in the circumstances of the present case. The moral culpability of a person, any person, who drives a motor vehicle upon a public street when his blood/alcohol concentration lies in the high range of the relevant statutory proscriptions is, without more, morally culpable in high degree. That degree of moral culpability is increased very sharply indeed when the result of such irresponsible behaviour is the death of one person, and the serious injury of four further persons, all five of whom were lawfully using the same public street. 20 Thirdly the way in which his Honour dealt with the four offences of aggravated dangerous driving causing grievous bodily harm, insofar as one can judge the matter from the relevant transcript, was, to say the least, odd. 21 His Honour dealt to finality with the offence of aggravated dangerous driving causing death. Having passed sentence in respect of that matter, his Honour is recorded as having asked "…….. (I)s there anything else?". The solicitor then appearing for the Crown is recorded as having replied: "Is that in relation to the aggravated dangerous driving?". What is then recorded is this: "HIS HONOUR: I have to go to do the others too. The other offences I have to do those as well, that is the aggravated dangerous driving occasioning grievous bodily harm to Iulia Siloia, Venzy Laupola, Malia Letu Iata and Otila Lauvao I sentence you to a fixed period of twelve months which will run from 10 August 2006 to 9 August 2007. All these sentences are to be served concurrently, so on each of those charges, two, three, four, five I sentence you to a fixed period of one year in prison from 10 August 2006 to 9 August 2007. HIS HONOUR: Mr. Veatufunga, that means that you will be eligible for parole in eighteen months. Now I've got to disqualify from driving. CROWN REPRESENTATIVE: That's correct, your Honour, yes. There's a three years automatic period in relation to each of those offences with a minimum period of twelve months. HIS HONOUR: Yes, well no-one has addressed me on that. What do you want to say about that, Mr. (respondent's legal representative)? RESPONDENT'S LEGAL REPRESENTATIVE: I would ask your Honour to consider imposing a disqualification period of 18 months so he will be able to work when he is released. CROWN REPRESENTATIVE: I have no submissions to make in relation to that, your Honour. HIS HONOUR: I disqualify you from driving a motor vehicle for eighteen months, that is you are disqualified from driving a motor vehicle from 10 August 2006 to 9 February 2008. Now what about the sixth charge? CROWN REPRESENTATIVE: And there's the sixth matter, your Honour. HIS HONOUR: On the matter of the s 166 certificate I sentence you to a fixed period of three months, also concurrent with the other sentences. So that is from 10 August 2006 to 9 November 2006." 22 When dealing with such a situation as is recorded in the way quoted above, this Court is necessarily dependent for its impressions upon a reading of the bare written word. There is before this Court no recording or any other aid that might amplify or qualify the prima facie impression which I, at least, have as a result of my reading of the quoted passages of transcript. Upon that basis my own impression is that the learned primary Judge, with respect, overlooked the fact that his Honour was dealing with many more discrete offences than a single offence of aggravated dangerous driving causing death. My impression is that his Honour, having been reminded that there were in fact those other outstanding matters, simply swept them up in a global way and without giving any particular consideration to the requirement that his Honour stipulate a discrete sentence, as required by the principles established in Pearce, for each of the offences which were before his Honour for sentence. 23 This approach seems to me, with respect, to have led his Honour into significant error. I can see no basis whatsoever upon which there could have been passed upon the present respondent, upon a correctly principled basis, a single and very lenient, sentence into which there were subsumed one offence of aggravated dangerous driving causing death; four discrete offences of aggravated dangerous driving causing grievous bodily harm; and one offence of failing to stop and assist after an impact causing injury. 24 I have come, therefore, to the conclusion that the Crown has amply demonstrated error in the sentencing process which gives rise to the present Crown appeal. There is, at the very least, a clear prima facie case justifying some intervention by this Court. 25 Before actually proceeding to any such intervention, it is necessary for consideration to be given to the question whether there is anything which should dispose the Court, although of the view that there is a clear prima facie case for intervention, to decline, in the exercise of its undoubted discretion in that behalf, in fact to intervene. 26 I can see no basis upon which the Court would be justified in exercising such a discretion in the present case. Delay in the bringing of the Crown appeal is not a factor. The errors in the primary sentencing process are, as I believe with respect, egregious and such as to require distinct correction in order to maintain important sentencing principles applicable to a case of the present kind. The sentencing outcome achieved at first instance is, in my respectful opinion, so manifestly inadequate as not only to permit, but to require, that this Court intervene and re-sentence. I acknowledge in that connection the established principles which both constrain and restrain any re-sentencing by this Court. I have kept them in mind when considering the matters to which I now turn. 27 The respondent had passed upon him, in effective and practical terms, a sentence of imprisonment of 3 years. The sentence was apportioned between a non-parole period of 1 year 6 months and a balance of term of 1 year 6 months. As I have pointed out previously in these reasons, that sentence covered, in effective and practical terms, six discrete offences. 28 Leaving out of consideration for a moment a discount for the pleas of guilty and any adjustment on account of special circumstances or to take proper account of some proper cumulation, then in my opinion, the respondent would have had no just grievance if he had been sentenced, in connection with the offence of aggravated dangerous driving causing death, to imprisonment for 6 years apportioned between a non-parole period of 4 years and 6 months and a balance of term of 1 year 6 months. The respondent would have had, similarly, no just grievance had he been sentenced discretely to a term of imprisonment of 5 years apportioned between a non-parole period of 3 years and 9 months and a balance of term of 1 year and 3 months, in respect of each of the four offences of aggravated dangerous driving causing grievous bodily harm. 29 The respondent received a 25 per cent discount of sentence on account of his pleas. It was, in my respectful opinion, plainly open to the learned primary Judge to allow that discount; and this Court would not be justified, in my opinion, in now interfering with that discount. Continuing to leave aside for the moment considerations of total or partial cumulation and the proper bringing to account of any available special circumstances, then a discount of 25 per cent would have reduced a proper sentence on Count 1 from a sentence of 6 years to one of 4 years 6 months apportioned between a non-parole period of 3 years and a balance of term of 1 year 6 months; and would have reduced the sentences of 5 years to sentences of 3 years 9 months apportioned between a non-parole period of 2 years 9-3/4 months and a balance of term of 11-1/4 months. 30 The learned sentencing Judge, in addition to allowing the 25 per cent discount previously mentioned, found special circumstances and apportioned the ultimate sentence equally between a non-parole period and a balance of term. His Honour altered the apportionment, as between non-parole period and balance of term, from what I might call a norm of 75 per cent to the significantly lower figure of 50 per cent. In my opinion that was a very generous adjustment on account of special circumstances; but I am unpersuaded that it was not properly open to the learned sentencing Judge to make that adjustment; and I would not now propose that there be any interference with it. 31 On the basis of the putative sentences which I have been using for my present purposes, such an adjustment on account of special circumstances would have yielded a head sentence on Count 1 of 4 years 6 months apportioned between a non-parole period of 2 years 3 months and a balance of term of 2 years 3 months; and would have resulted in sentences, passed on each of Counts 2, 3, 4 and 5, of 3 years 9 months apportioned between a non-parole period of 1 year 10-1/2 months, (but say for the convenience of calculation, 1 year 9 months), and a balance of term of 1 year 10-1/2 months, (but say for convenience of calculation, 2 years). 32 A correctly principled approach to sentencing must then have entailed, in my opinion, at least some cumulation of the sentences. A failure to cumulate in some just and sensible fashion, - and a fortiori a complete absence of any cumulation whatsoever, - could not have yielded an end result sufficient to punish properly according to law a course of criminal offending that had, not a single victim, but no less than 5 victims. 33 A correctly principled but resolute approach to the question of cumulation would have entailed, in the present particular case, an end result at first instance that would have been significantly more severe than the end result which seems to me to be proper now, and in the very different context of a successful Crown appeal against sentence. 34 It seems to me that it would be appropriate to re-sentence upon the basis of passing upon the respondent a sentence of imprisonment for a fixed term of 1 year 3 months on each of the offences of aggravated dangerous driving causing grievous bodily harm. I would make those four fixed term sentences concurrent, not because I think that that is what should have been done at first instance, but because I think that that is what needs to be done now in order to give proper effect to the principle of restraint that governs a successful Crown appeal against sentence. 35 As to the offence of aggravated dangerous driving causing death, I would pass now a sentence of imprisonment for 3 years and 6 months apportioned equally between a non-parole period of 1 year and 9 months and a balance of term of 1 years and 9 months. I would make this sentence wholly cumulative on the four concurrent sentences of which I have earlier spoken. I would take that course: first, because of the extreme gravity of the particular offence; secondly, in order to ensure that there is imposed in respect of that particular offence a discrete and manifest penalty; and thirdly, in order properly to take into account the principle of totality. 36 The end result would be a head sentence of 4 years and 9 months, apportioned between a non-parole period of 3 years and a balance of term of 1 year 9 months. I accept, of course, that such an apportionment does not preserve with pedantic exactness the 50 per cent apportionment upon which the learned primary Judge settled; but the difference is not great and to tinker with it further would serve no just purpose that I can see. 37 There are two ancillary matters requiring attention. 38 There is, first, the fixed term of imprisonment passed by his Honour in respect of the matter that was brought before him on the s 166 certificate. That sentence expired last year and there is no useful purpose in saying anything more about it. 39 There is, secondly, the matter of the driving disqualification ordered by his Honour. The disqualification was one of 18 months, and it was dated so as to correspond with the non-parole period of 18 months that his Honour had earlier fixed in respect of the sentence passed in connection with Count 1. 40 In a case such as the present one, the power of a sentencing Court to order that an offender be disqualified for a period from driving a motor vehicle is a power that is given in aid of the proper protection of members of the public in their lawful use of a public highway. To disqualify an offender such as the present respondent for a period which coincides exactly with the period for which he will be imprisoned before possible release to parole, is in my respectful opinion no real punishment at all and fails completely to recognise, and to be seen plainly to recognise, that a person who drives as the respondent drove on the relevant occasion ought, quite simply, to be taken off the roads for a period of disqualification that has some real and manifest sting from both the point of view of personal deterrence and that of general deterrence. 41 I would favour an order disqualifying the respondent from driving a motor vehicle for a period of 4 years and 9 months dated from 10 August 2006, the commencing date of his imprisonment. In other words, I would favour an order disqualifying the respondent not merely for the whole of the relevant non-parole period, but throughout the entirety of his sentence, both non-parole period and balance of term. 42 For the whole of the foregoing reasons I propose the following orders:

R v Veatufunga

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