DPP v Wareham - [2002] VSCA 110

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 308 of 2001

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
TRACEY LEANNE WAREHAM

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JUDGES:	WINNEKE, P., BUCHANAN, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 July 2002
DATE OF JUDGMENT:	16 July 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 110

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Criminal Law - Sentencing - Culpable Driving by gross negligence, the driver having a blood alcohol level of 0.161 - Relevance of 2 prior convictions for exceeding .05 - Appeal by DPP on ground sentence manifestly inadequate - Whether prior convictions adequately taken into account.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. (DPP) and Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson, Q.C.	Mahonys

WINNEKE, P.:

I invite O'Bryan, A.J.A. to deliver the first judgment in this appeal.

O'BRYAN, A.J.A.:

On 7 November 2001, the respondent, who is now aged 36, pleaded guilty in the County Court to one count of culpable driving in that, whilst driving a motor vehicle negligently, she caused the death of Paul Michael Winkler on 28 November 1999. She admitted six prior convictions from five Magistrates' Court appearances. The prior convictions included two counts of driving a motor vehicle whilst having a blood alcohol concentration exceeding .05% in 1985 and 1989, each reading being more than double the statutory maximum.

After a plea was made on behalf of the respondent, on 19 November 2001 she was convicted and sentenced to five years' imprisonment. A non-parole period of two years and six months was fixed and a declaration made that 13 days held in custody be reckoned as time already served pursuant to s.18(4) of the Sentencing Act 1991. The respondent's licence to drive was cancelled and she was disqualified from driving for five years effective from 19 November 2001. The maximum penalty for culpable driving was 20 years' imprisonment.

The Director of Public Prosecutions gave notice of appeal on one ground, namely, that the sentence of five years' imprisonment, the non-parole period of two years and six months and the period of licence disqualification are each manifestly inadequate. Particulars of the ground allege that the sentencing judge erred in that he -

(a)failed to adequately reflect the gravity of the offence generally and in this case in particular;
(b)failed to take into account or sufficiently to take into account the aspect of general deterrence;
(c)gave too much weight to factors going to mitigation;
(d)failed to give sufficient weight to the protection of the community;
(e)failed to give sufficient weight to the respondent's prior convictions for driving a motor vehicle whilst having a blood alcohol concentration exceeding .05%;
(f)failed to disqualify the respondent from driving for a period of time commensurate to the proven danger that she represents to the community.

Particular (f) was not pursued in oral argument by the Director.

Circumstances of the offending

On 28 November 1999, at about 2.14 a.m., a Hiace van taxi being driven by Paul Michael Winkler on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Wareham

Details

AGLC: DPP v Wareham [2002] VSCA 110
Case: [2002] VSCA 110
Decision Date: 16 July 2002

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Wareham involved the defendant, Wareham, who was convicted of culpable driving by gross negligence. The incident occurred while Wareham was driving with a blood alcohol level of 0.161, leading to a severe accident. The Director of Public Prosecutions (DPP) appealed the sentence imposed on Wareham on the ground that it was manifestly inadequate, particularly in light of Wareham's two prior convictions for exceeding a blood alcohol level of 0.05. The court was required to determine whether the trial judge had adequately taken into account Wareham's prior convictions when passing sentence.

The central legal issue before the court was whether the sentence imposed on Wareham, despite his prior convictions, was indeed manifestly inadequate. The court needed to assess the gravity of the offence, the nature and recency of Wareham's prior convictions, and the adequacy of the sentence in deterring future offending. The court considered whether the trial judge had appropriately balanced these factors in imposing the sentence and whether the sentence reflected the culpability of Wareham's actions.

The court found that the trial judge had adequately considered the relevant factors, including Wareham's prior convictions, in determining the sentence. The court emphasised the gravity of the offence and the high level of blood alcohol content, but also recognised the trial judge's discretion in sentencing. It was held that the sentence, while lenient, was not manifestly inadequate as it reflected a combination of deterrence, denunciation, and rehabilitation. The appeal by the DPP was dismissed.

The court did not alter the sentence imposed on Wareham. Wareham remained subject to the original sentence, which the court found to be an appropriate response to the circumstances of the case. The decision underscores the importance of considering both the gravity of the offence and the individual circumstances of the offender when determining an appropriate sentence.

Orders