Director of Public Prosecutions v Acuna
[2020] VCC 1414
•7 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-19-01992
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAX PAOLO ACUNA |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2020 and 1 September 2020 | |
DATE OF SENTENCE: | 7 September 2020 | |
CASE MAY BE CITED AS: | DPP v Acuna | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1414 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge of conduct endangering life – One charge of negligently cause serious injury – Offender drove at speed against flow of traffic on freeway whilst heavily intoxicated – Offender narrowly missed other vehicles before colliding head on with victim’s car – Serious examples of the offences – Victim suffered serious physical and psychological injuries – Genuine remorse – No prior criminal or driving history – Excellent prospects of rehabilitation – Verdins principle 5 – Circumstances surrounding COVID-19 taken into account.
Legislation Cited: Crimes Act 1958; Road Safety Act 1986; Sentencing Act 1991.
Cases Cited:Harrison and Rigogiannis v The Queen (2015) 49 VR 619; Gorladenchearau v The Queen [2011] VSCA 432.
Sentence: Imprisonment for a period of 3 years with a non-parole period of 18 months and a fine of $800.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Livitsanos | Office of Public Prosecutions |
| For the Accused | Mr P Chadwick QC | Dribbin & Brown Criminal Law |
HIS HONOUR:
Introduction
Dax Paolo Acuna, you have pleaded guilty to one charge of conduct endangering life contrary to s 22 of the Crimes Act 1958 (Charge 1), and one charge of negligently causing serious injury contrary to s 24 of the Crimes Act 1958 (Charge 2). The maximum penalty on each charge is 10 years imprisonment.
You have also pleaded guilty to the related summary charge of exceed the prescribed concentration of alcohol within three hours of driving a motor vehicle, contrary to s 49(1)(g) of the Road Safety Act 1986, which carries a maximum penalty of 20 penalty units (Summary Charge 4).
You have no prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
At the time of the offending you were 25 years of age and the holder of a probationary driver's licence.
On 26 September 2018 at approximately 12.05 am you were driving a white BMW hatchback in a northerly direction along the CityLink toll road in the vicinity of the Bolte Bridge. You were the sole occupant of this vehicle.
You continued to drive towards the Brunswick Road on-ramp where, without warning, you braked and performed a U turn on the tollway, crossing two lanes whilst doing so.
Whilst conducting this U turn, you narrowly avoided a collision with a truck travelling in a northerly direction in the second-from-the-right lane of the freeway.
You then drove in a southerly direction, and against the flow of traffic which was coming towards you.
Your driving and the entire incident was captured on cameras that were monitoring the traffic flow along the length of the toll road by the Transurban Control Room. Other footage was also obtained by police from various witness' dashcams. All footage was tendered at the plea hearing.
You continued to drive towards the Bolte Bridge at speed and can be seen in video footage travelling faster than the vehicles travelling on the correct side of the freeway.
You were travelling in the inside lane closest to the centre median barrier when another vehicle travelling north in the same lane was forced to take evasive action and break heavily to avoid a collision with your vehicle.
At approximately 12.09 am a witness, Eren Batu, was travelling in a northerly direction along the CityLink toll road. Mr Batu observed you travelling towards him at speed in a southerly direction in the lane beside the median barrier.
Mr Batu observed your vehicle veer to the right towards his vehicle and pass within approximately 30 cm to the right of him. Dashcam footage from Mr Batu's vehicle depicts your vehicle travelling contrary to the flow of traffic.
Mr Batu estimated that your vehicle was travelling 'a lot faster' than the traffic on the other side of the road, at approximately 140 km/h. Mr Batu called 000 to notify police.
Another witness, Paul Thompson, was driving an articulated tanker carrying flammable liquefied petroleum gas. Mr Thompson observed your vehicle travelling towards him and immediately exited onto Racecourse Road off the freeway due to concerns that your vehicle would collide with his tanker.
You continued to travel at speed contrary to the flow of traffic in the inside lane beside the median barrier when a further vehicle travelling north in the same lane caused you to take evasive action to avoid a collision. In doing so, your vehicle travelled across three lanes towards the outer lane of the freeway, still driving contrary to the flow of traffic coming towards you. You continued to travel on the wrong side of the road for a total period of one minute and 17 seconds.
At approximately 12.10 am, Ranveer Rajotia, the victim in relation to Charge 2, was driving his grey Toyota RAV4 in a northerly direction and had crossed over the Bolte Bridge travelling towards the 'Sound Tube' on the tollway. He was the sole occupant of his vehicle.
Dashcam footage from Mr Rajotia's vehicle shows that he was travelling at approximately 83 km/h when your vehicle is seen travelling across CityLink into the path of Mr Rajotia's vehicle.
Mr Rajotia attempted to avoid your vehicle and steered to his left towards the outside lane, however he was unable to avoid your vehicle and both vehicles collided head on. Both vehicles came to a complete stop with the force of the impact causing the rear axle of Mr Rajotia's vehicle to lift off the ground and forcing his vehicle 15 metres backwards coming to rest in the second lane.
The speed limit along the CityLink toll road is variable and remotely controlled by the Transurban Control Room. The speed limit was 100 km/h at the time of the collision. At the time of the collision the weather was clear, the road was well lit, and the traffic was light.
The force of the impact caused the front grill of your vehicle to become embedded in the front of Mr Rajotia's vehicle. Prior to the collision, Mr Rajotia estimates that your vehicle was travelling at approximately 120 km/h.
Your vehicle remained stationary with the driver's side door against the barrier in the left hand lane.
A fire started under the bonnet of your vehicle at which time a witness from the Metropolitan Fire Brigade, who was passing the scene en route to an unrelated incident, stopped and extinguished the fire.
Another witness, Holly Adam, was travelling in a northerly direction behind Mr Rajotia's vehicle and observed your vehicle travel across CityLink. Ms Adam states that your vehicle was travelling 'very fast' prior to colliding with Mr Rajotia's vehicle.
Both you and Mr Rajotia were treated at the scene and taken by ambulance to the Royal Melbourne Hospital.
At approximately 3.05 am at the Royal Melbourne Hospital a doctor obtained a blood sample from you. As a result of analysis at the Victorian Institute of Forensic Medicine, it was determined that you had a blood alcohol level of not less than 0.185 grams of alcohol per 100 mL of blood. No illicit drugs were detected.
Injuries sustained by Mr Rajotia
Mr Rajotia remained in hospital for six days and suffered the following injuries as a result of the collision:
· five fractured ribs;
· a fractured left wrist;
· abdominal bleeding;
· a fractured right hip;
· two vertebrae fractures; and
· lacerations and bruising.
Mr Rajotia required surgery and underwent fixation, reduction and repair of his forearm fracture. Mr Rajotia is still recovering from his injuries sustained in the collision, with further surgery on his back likely due to ongoing pain and difficulty with movement. He has also been unable to return to work in his trade as a carpenter which has had an adverse impact on his family.
Due to the injuries Mr Rajotia suffered, it is likely he will suffer from mid carpal and radio carpal arthritic change that may be progressive and it is likely that if degenerative change continues, he will need a wrist fusion.
It was later noted that Mr Rajotia was suffering from spinal canal stenosis, usually a chronic condition which compresses nerves at the base of the spinal cord. Without surgical treatment it is likely that he will continue to have problems with walking and standing for any period of time and that gradually these will worsen. With a successful surgical decompression it is expected that his prognosis would be much improved.
Mr Rajotia was referred to further doctors for psychological counselling funded by the Transport Accident Commission. He noted severe psychological symptoms including recurring nightmares and daytime flashbacks, insomnia, fatigue, panic attacks, hypervigilance and hyperarousal, depressed mood, anxiety, anger when reflecting on his situation, intermittent feelings of hopelessness, diminished sense of self-worth, poor motivation, reduced interest in activities, social isolation as well as decreased cognitive capacity with regard to concentration, planning, organisational skills and short term memory.
Results of testing reveal that Mr Rajotia's symptoms are consistent with a diagnosis of post-traumatic stress disorder, depression and anxiety.
Police interview
On 22 November 2018 you attended Melbourne West Police Station by appointment and were interviewed by police. You made admissions to drinking alcohol with a friend in South Yarra (although I note in evidence you state that the location was in East St Kilda) prior to driving. You stated that you drank 'around more than one' bottles of white wine.
You stated that you did not have any recollection of the collision and only remembered waking up in hospital after surgery.
You said, 'I don't have any specific memory, I just remember the sensation of the car hitting another car and hearing it and just, sort of, generally bracing myself is the memory I have.' You also wished to pass on your apology to the victim and stated, 'I would just like to express that upon learning that the other person was injured I can't say how terrible I feel about that and how sorry I am and how I wish I hadn't been so stupid.'
Expert evidence
According to the expert opinion of Dr Morris O'Dell of the Victorian Institute of Forensic Medicine, he states, 'It is generally presumed that the skills related to driving are adversely affected at levels above 0.10 per cent. It is increased by a factor of about 10 times at a BAC of 0.10 per cent and about 100 times at 0.20 per cent.'
Dr O'Dell opines that your driving skills would have been adversely affected by the effects of alcohol at a BAC of 0.185 per cent and that you would have been incapable of having proper control of a motor vehicle.
In relation to the metabolism and elimination rates of alcohol given the time frames involved in this case, Dr O'Dell states, 'By the time of the blood sample, it is reasonable to assume that all the ingested alcohol had been absorbed. In the 2.90 decimal hours between the collision and the blood sample, the accused would have eliminated an amount of alcohol equivalent to a fall in BAC of between 0.029 per cent and 0.058 per cent. Adding this to the measured figure of 0.185 per cent gives a total amount of alcohol in the body (both absorbed and unabsorbed) at the time of the collision equivalent to a BAC between 0.214 per cent and 0.243 per cent.'
In light of this opinion, the prosecution sought that the court make a finding that the offence was committed under the influence of alcohol and/or a drug, which contributed to the offence, pursuant to s 89C of the Sentencing Act 1991.
Finding of fact
Mr Chadwick who appeared on your behalf sought to rely on instructions you provided to him and to your psychologists, that prior to leaving the flat in East St Kilda to drive home, you were the victim of a sexual assault. As such it was put that you were in a state of panic fleeing the scene of the assault and thus that was a matter affecting your state of mind and the decision making at the time. The prosecution did not accept this submission noting that there is no independent evidence to support the assertion and that it was not raised with the police or medical staff immediately following the offending. Further, the references to the alleged assault in the psychologist's reports is ambiguous. As such the matter was adjourned to enable the parties to see if they could come to a settled position or if the matter was to require further evidence.
The issue was unable to be resolved between the parties and on 1 September 2020 you gave evidence in relation to the events of the evening before you drove the car resulting in the collision.
Your evidence was that you were at an acquaintance's flat in St Kilda East and it is not in dispute that you consumed a considerable amount of alcohol whilst there. You stated that at one point you fell asleep or were in a state of unconsciousness when you woke up to discover the other person you were visiting to be penetrating your anus with his penis. You also stated that he penetrated you with his finger. You said you immediately got up from the couch, put on your pants and left the flat. You said you got into your car and drove toward your home in a state of panic.
Under cross examination, you maintained that you were in a state of shock or panic however your recollection of events was not consistent. For example, you stated in evidence in chief that you arrived at the flat at 6 pm while in your record of interview you stated that you arrived sometime between 9 and 10 pm.
No further witnesses were called, and it seems that if you did provide a more detailed account to your psychologists, Mr Newton or Mr Szakmary, that detail was unable to be clarified. What you said to Mr Newton is that you awoke 'feeling panic and in pain with an intense feeling of dread'. It was further submitted that at the hospital you asked to be provided with HIV post exposure prophylactic medication and you received treatment in relation to the physical trauma to your anal area, although no medical evidence or reports were tendered providing any opinion or detail as to the nature of the trauma and the treatment provided.
Mr Chadwick submitted that the Court does not need to decide on the question of consent as to the alleged assault or indeed a finding of fact on the criminal standard as to whether or not the sexual assault occurred. The primary submission being that something occurred at the flat that caused you to be in a state of panic or shock, thereby combining with your severely intoxicated state and contributing to your poor decision making.
Mr Livitsanos who appeared on behalf of the Director of Public Prosecutions submitted that given the poor state of your evidence, the court could not come to any level of comfort as to what occurred at the flat even on the balance of probabilities. That said, even if something did occur, it was submitted that you could have made other choices such as calling your father, calling an Uber or taxi or simply stopping once you had left the flat before driving further. Rather, you drove some distance from East St Kilda to the Bolte Bridge area where you then made the U turn on the freeway and continued to drive in the wrong direction before the collision occurred.
What is not in dispute is that at the time you left the flat, you were extremely intoxicated, and, according to the expert evidence, incapable of having proper control of the vehicle (the blood alcohol at the time of the collision being equivalent to between 0.214 and 0.243 percent).
Mr Livitsanos submitted that your answers in the record of interview are more telling and more accurately explain your conduct as follows:
Answer 184 '…I guess, logical mind would have chosen to take an Uber or stay there but then because, I guess, I've been drinking a lot, I decided recklessly to drive home. I don't remember making that decision but generally I would stay at a friend's house if I had been consuming any - any amount of alcohol.'
Question 185 'Okay. Did anything occur to make you make that decision to drive?'
Answer 'Specifically on the night I don't think I was forced out of the house so it wasn't that. It was just, like I said, I probably was just acting stupid because I had drunk the alcohol and I thought that I could drive home because I wasn't thinking straight.'
While your answers do not entirely exclude the possibility of the assault occurring at the flat, there is a clear acknowledgement by you that you were cognisant of the fact that you were intoxicated and should not have been driving.
It is not uncommon in cases of drink or drug driving that the driver makes a choice to drive following some other event such as a domestic dispute or argument, or other circumstances where they are in an emotionally charged state. However, absent a proper legal defence, as is the case here, the question is whether the preceding circumstances are able to be taken into account in mitigation or whether they simply provide an explanation that contributed to the person's decision making.
In my view on balance I accept that there was some event that occurred at the flat that caused you stress and put you in a position where you wanted to leave. It is clear from the materials that whatever occurred, you felt ashamed and confused, and simply wanted to get out of the situation. However, it is not said that you were being pursued or in any immediate danger. However, the fact remains that whatever emotional state you were in, you were not in a fit state to drive. Further, in my view based on all the materials including the answers in your record of interview, it is clear you are an intelligent man and that you were aware of your condition at the time and as such, you were also capable of making other choices. I therefore accept that the events at the flat may have contributed to your decision making to drive but it does not in any way excuse or mitigate your conduct.
Nature and gravity of the offending
I turn to the nature and gravity of the offending. In Harrison and Rigogiannis v The Queen[1] the court reiterated that the offence of negligently causing serious injury by driving (NCSI) sits above dangerous driving causing serious injury and below dangerous driving causing death.
[1] (2015) 49 VR 619 at [2].
In Gorladenchearau v The Queen[2], Maxwell P said:
Because the level of negligence required to be established for NCSI is the same as that for culpable driving causing death (where the head of culpability is negligence), the key difference between the two offences is whether the victim dies or is seriously injured.
[2] [2011] VSCA 432 at [19].
3 Ibid at [22].
Thus, as was also noted in Gorladenchearau, the determination of the objective gravity of the offending is assessed by a consideration of the degree of negligence together with the seriousness of the injury caused.[3]
Considering your conduct as a whole in relation to both charges on the indictment, it is self evident that the offending is very serious. This was not a momentary lapse of attention. The offending extended over a period of time where a number of vehicles were exposed to you driving at speed, in the wrong direction on the freeway while heavily intoxicated. Even though you may have been in a state of distress, it is clear from observing the footage, that you were making choices and continuing to drive when you knew you were driving in the wrong direction while very intoxicated.
The prosecution submits that your offending represents serious examples of both offences. It is apparent from the viewing of the CCTV footage that you were driving at a speed at least equal to the vehicles traveling in the same direction (but on the correct side of the road). Lay observations estimated your speed at greater than 100 km/h. Your counsel took issue with these estimations, however, it is clear from the video footage that your speed in combination with the fact that you were traveling in the wrong direction was extremely dangerous and undoubtedly terrifying to the drivers of vehicles coming in the opposite direction.
The assessment of seriousness in relation to Charge 1, however, does not end there. The injuries to the victim are a very important component of the overall assessment of the seriousness of the offending. Without repeating the nature of his injuries, they are of such seriousness that Mr Rajotia will be unable to return to his work as a carpenter and he will require ongoing rehabilitation and medical intervention. The psychological impact of the injuries will also require further treatment.
In all the circumstances while I do not consider that your offending is in the worse possible category, in my view it represents serious examples of the offences of conduct endangering life and negligibly causing serious injury.
Victim impact statements
Two victim impact statements were prepared by road users Eren Batu and Paul Thompson. Mr Batu was driving in a northerly direction when you passed him, narrowly avoiding a collision. He states that he has been affected by the incident, losing sleep and being worried when he uses the freeway at night. Mr Thompson, a very experienced truck driver, describes what he witnessed on the night of the incident as 'horrendous'. He is now nervous when driving and has flashbacks of the incident, wondering if he could have done anything different to prevent the collision with the victim.
Ranveer Rajotia, the primary victim of Charge 2, did not provide a victim impact statement however a report from his treating psychologist Shireen Dass was tendered. While the report states that the victim's physical and psychological symptoms have improved over time, Ms Dass also notes that many aspects of Mr Rajotia's life, particularly from a psychological perspective will be irreversibly impacted. He still requires antidepressants, pain medication and sleeping tablets. As to Mr Rajotia's prognosis, Ms Dass states:
I anticipate Mr Rajotia will continue to improve over the next six to 12 months before reaching a level of functioning which remains lower than his premorbid functioning. For instance, although not an impossibility, Mr Rajotia is unlikely to ever return to carpentry where he enjoyed the 'hands on' aspects, financial remuneration, personal sense of achievement, self-confidence, purpose and enjoyment provided to him. In the absence of being able to perform these activities, Mr Rajotia should be viewed to have suffered a considerable reduction to his overall quality of life.
Personal circumstances
I turn to your personal circumstances. You are 26 years of age and were 25 at the time of the offending.
You were born in the Philippines and you have a younger brother. You grew up in Manila until early 1999 when your family migrated to Australia. You had a supportive and stable upbringing.
Your father was an engineer and transferred to Melbourne for work. Your mother initially worked in banking but has subsequently qualified as an engineer. Your brother has recently graduated from the University of Melbourne with an engineering degree.
You commenced your secondary education at St Bernard's College in Essendon where you were admitted into the accelerated learning program for Year 7 and 8. You gained a place in Melbourne High School in 2008 via entry exams and commenced Year 9 there. At school you were involved in many extracurricular activities and performed above average academically. You completed Year 12 at Melbourne High School, achieving a high ATAR score.
In 2012 you commenced a Bachelor of Design at the University of Melbourne and in your final year, in 2016 you transferred to RMIT to study furniture design. You also completed a diploma of silversmithing at the Melbourne Institute of Technology.
In 2017 you withdrew from your studies and commenced working in the family business as an office manager. You worked full-time in that position however as a result of your injuries from the collision, you were unable to return to work until early 2019 and only part-time. You have developed an interest in fashion design while working part-time in the family business.
In addition to your studies, you have become a talented painter and photographer and have been able to sell some of your paintings and photography commercially. You also commenced and continue to operate a small online clothing business.
You have never used any illicit substances and infrequently drink alcohol. As noted, you have no prior criminal history or traffic history.
Two character references were tendered from your mother, Gwendolyn Acuna and your brother, Rafael Acuna. Your mother speaks of your remorse and the emotional turmoil you continue to endure since the accident. It is clear from her letter that your mother and father continue to offer you ongoing support and understanding. Your brother states that he has always looked up to you as a kind person that he can trust. He also speaks of the enormous guilt you feel as a result of your conduct.
You wrote a letter to the victim where you offer an unequivocal apology for your conduct. You express that you are entirely responsible for how the accident has affected the victim's life both physically and psychologically. While the letter has not been passed on to the victim, I accept that it represents a genuine expression of remorse.
Two reports were prepared by Patrick Newton, clinical and forensic psychologist, dated 23 March 2020 and 15 July 2020, and tendered on the plea. In the more substantive report, dated 15 July 2020, Mr Newton provides his clinical opinion based on his assessment of you and the results of a number of psychological tests he conducted.
Mr Newton formed the opinion that you are suffering from symptoms of anxiety and depression. He is also of the view that you meet the criteria for post‑traumatic stress disorder. Further, Mr Newton notes that the causes of your identified psychological conditions are able to be traced to the collision and the sexual assault that you reported occurred in the hours preceding the collision.
Also tendered on the plea was a letter from Joseph Szakmary, psychologist, attaching his clinical notes. He confirms that you have had seven counselling sessions and the notes suggest that the incident at the flat prior to the collision has been the central topic of discussion.
Relevant sentencing considerations
I take into account your plea of guilty. You pleaded guilty at the committal mention stage and as such, your plea is an early plea. Your plea of guilty has saved the court time and expense and has spared the victims having to give evidence. In the circumstances, your plea has therefore facilitated the course of justice and you are entitled to have that fact taken into account in your favour.
Over and above your plea of guilty, it was submitted that you have demonstrated genuine remorse from the outset. In your record of interview, you apologised to the victim and you have expressed your remorse in a number of different settings including through the letter you wrote to the victim and to Mr Newton. Others, including your family, have also acknowledged observing your genuine sorrow and remorse towards the victim and his family. In the circumstances I accept that you are genuinely remorseful for your conduct.
You have no prior criminal history and are otherwise of good character. You have the support of your family who will continue to support you upon your release from custody. While intoxication is a relevant part of your offending, you otherwise do not have any substance issues to contend with and it was submitted that you now infrequently drink alcohol. It was put on your behalf that you are highly unlikely to offend in this way again. I accept that submission and in all the circumstances I asses your prospects of rehabilitation as excellent.
Mr Chadwick submitted that any term of imprisonment is likely to be particularly onerous for you and thus he submits that Verdins principle five is enlivened. In support of the submission, Mr Chadwick references Mr Newton where he states, 'He would be vulnerable to both more regular and more intense bouts of anxiety and mood disturbance than would a prisoner who did not suffer his pre-existing problems.' Taking into account Mr Newton's opinion in combination with other material, I accept that Verdins principle five is able to be taken into account.
General deterrence remains the primary sentencing consideration in this case. Just punishment and denunciation of your conduct must also feature in the sentencing discretion. The community can simply not tolerate this type of extremely dangerous conduct. The fact remains that you were extremely intoxicated and could have made the decision not to drive on the freeway in the dangerous manner which you did. Even in circumstances where you felt some immediate need to leave the situation you were in, it did not require you to continue to drive for the extended period that you did while intoxicated. A message must therefore be sent to deter others from engaging in similar conduct.
For similar reasons that support your excellent prospects of rehabilitation, in my view there is little need for specific deterrence in this instance. You have no prior criminal history and are otherwise of good character. You are also receiving support and ongoing counselling to assist you in dealing with the anxiety and trauma following the accident.
Finally, I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prisons have been suspended, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community. In your specific circumstances, as you will be entering prison for the first time following sentence, you will be placed in isolation for the quarantine period of 14 days and you will then be subjected to the restrictions that all prisoners are now facing as a result of the pandemic. I take these matters into account.
Mr Chadwick conceded that an immediate term of imprisonment is warranted however submitted that the relevant sentencing considerations are able to be met by a combination sentence pursuant to s 44 of the Sentencing Act 1991.
While I had you assessed and you have been found suitable, in all the circumstances in my view the relevant sentencing considerations are unable to be met by a combination sentence and a head sentence with a non-parole period must be imposed. However, taking into account your lack of prior history and your strong prospects of rehabilitation, in my view a shorter than usual non‑parole period is appropriate.
Sentence
Mr Acuna, please stand.
Dax Paolo Acuna, on Charge 1, conduct endangering life, you are convicted and sentenced to 12 months imprisonment. On Charge 2, negligently causing serious injury, you are convicted and sentenced to 2 years and 9 months imprisonment. I direct that 3 months of the sentence on Charge 1 be served cumulatively on the sentence imposed on Charge 2. That makes for a total effective sentence of 3 years imprisonment. I direct that you serve 18 months before becoming eligible for parole.
In relation to Summary Charge 4, exceeding the prescribed concentration of alcohol within 3 hours of driving a motor vehicle, you will be convicted and fined $800.
Pursuant to s 89C of the Sentencing Act 1991, I formally find that Charge 2 was committed while you were under the influence of alcohol, which contributed to the offence.
In relation to Charge 2, pursuant to ss 87P(b) and 89(2)(b) of the Sentencing Act 1991, your licence will be cancelled, and you are disqualified for a period of 24 months from today.
In relation to Summary Charge 4, pursuant to s 50(1)(a) of the Road Safety Act 1986, your licence will be cancelled, and you are disqualified for a period of 18 months from today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 4 years imprisonment with a non‑parole period of 2 years and 6 months.
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