Gangur v The Queen
[2012] VSCA 139
•27 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0149
| JOHN ANDREW GANGUR | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN, NEAVE and REDLICH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 14 May 2012 |
| DATE OF JUDGMENT | 27 June 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 139 |
| JUDGMENT APPEALED FROM | DPP v Gangur (Unreported, County Court of Victoria, Judge Gaynor, 11 February 2011) |
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CRIMINAL LAW − Appeal against sentence − Two charges of dangerous driving causing serious injury − Four summary driving charges − Plea of guilty − Total effective sentence of six years and six months’ imprisonment, with non-parole period of four years and six months − Whether judge erred in imposing sentence of imprisonment for summary offence − Whether order for cumulation made on sentence for exceeding prescribed concentration of alcohol amounted to double punishment − R v Audino (2007) 180 A Crim R 371 considered − Whether sentence manifestly excessive − Whether sentence offended principle of totality − Appeal allowed − Appellant re-sentenced to five years and three months’ imprisonment, with non-parole period of three years.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
NEAVE JA:
REDLICH JA:
The appellant, John Andrew Gangur, pleaded guilty to two charges of dangerous driving causing serious injury and four summary driving offences. He was sentenced to a total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years and six months.
The maximum sentences for those offences, the individual sentences imposed and the orders made by the learned sentencing judge are set out below:
| Charge | Offence | Maximum | Sentence | Cumulation |
| Charge 1 | Dangerous driving causing serious injury | 5 years’ imprisonment | 4 years’ imprisonment | Base sentence |
| Charge 2 | Dangerous driving causing serious injury | 5 years’ imprisonment | 3 years’ imprisonment | 2 years’ imprisonment |
| Summary charge | Exceeding the prescribed concentration of alcohol | 18 months’ imprisonment or 180 penalty units | 12 months’ imprisonment | 6 months’ imprisonment |
| Summary charge | Driving with illicit substance present in blood | 12 penalty units | 3 months’ imprisonment | |
| Summary charge | Unlicensed driving | 3 months’ imprisonment or 25 penalty units | 2 months’ imprisonment | |
| Summary charge | Using a vehicle not in a safe and roadworthy condition (without conviction) | 5 penalty units | Fine of $500.00 |
In addition, the appellant was disqualified from obtaining any Victorian licence and/or permit for a period of 6 years from the date of sentence, and the judge ordered that any such licence and/or permit(s) held by the appellant be cancelled.
On 26 October 2011, the appellant was granted leave to appeal against his sentence.
Background
The background to the offences and the offender were set out in Neave JA’s leave reasons as follows:
3The offences arose out of an incident on 9 June 2010, in which the applicant drove his vehicle in a southerly direction along the Calder Highway, having some hours earlier consumed a six pack of full strength beer on an empty stomach. He later told police that at the time, he was aware that he was under the influence of alcohol, and did not have a driver’s licence.
4The applicant was driving at an estimated speed of 130 to 140 kilometres per hour, in speed zones of 80 and 100 kilometres per hour. Witnesses gave evidence that he was driving ‘all over the road’, and had a number of times drifted across the road’s double white lines onto the incoming traffic lanes.
5The victims, Ashlee Watters and her fiancé, Grant Adams, were driving their vehicle northbound on the Calder Highway. Ms Watters saw the applicant’s car on the incorrect side of the road. In response, she slowed her vehicle and moved onto the shoulder of the road in an attempt to avoid a collision. The applicant’s vehicle collided with the victims’ vehicle, hitting on the front driver’s side.
6Ms Watters sustained a fractured right femur and her right ear was almost severed. At the time of sentencing, she had a noticeable limp and could not walk more than 500 metres. At the time of the accident she was around 17 weeks pregnant, and on 15 June 2010, she gave birth to a stillborn child. Mr Adams sustained a sore ear, bruising to his chest and a laceration to his right shin. He also suffered an aggravation of a pre existing psychiatric condition and has ongoing depression. The applicant suffered a serious injury to his right foot.
7An analysis of a blood sample taken from the applicant returned a blood alcohol concentration level of 0.28%. Traces of cannabis were also detected in the applicant’s blood. At the time of the incident, the applicant was unlicensed and his vehicle was in an unroadworthy condition. He later told police that he knew that the vehicle’s front suspension and ball joints were ‘all shot’.
8The applicant was aged 34 at the time of offending and 36 years of age at the time of sentence.
9The applicant was described by the learned sentencing judge as having ‘very difficult childhood circumstances’. His father was a career criminal with serious drug and alcohol problems, and his mother also had a problem with alcohol. He was raised by his grandparents, whom he believed to be his parents until the age of nine. The applicant attended primary school on an intermittent basis and never attended secondary school.
10The applicant left home at the age of 10 and lived on the streets for a number of years. He never attended secondary school. He later lived briefly with his father, who introduced him to cannabis, and then with his mother who introduced him to alcohol. The applicant worked intermittently as an agricultural labourer. The judge referred to the report of Mr Ian Joblin, a forensic psychologist, who assessed the applicant as having ‘an extraordinary history of drug and alcohol abuse’, stating that he drinks alcohol and smokes cannabis on a daily basis. Mr Joblin classified the applicant as ‘a serious alcoholic’ and described him as having ‘limited intelligence’, which may have been compromised by his alcohol and cannabis use. Mr Joblin also reported that the applicant had not had any sustained professional support, since he was sent to Pleasant View for treatment, following an earlier incident of offending.
11The applicant has convictions for theft and various driving offences, including two previous convictions for driving with an excessive blood alcohol concentration. At the age of 18, he was convicted in the Melbourne Magistrates’ Court on charges of motor vehicle theft, theft from motor vehicle and driving charges. At that time, he was ordered to undergo treatment for drug and alcohol abuse at Pleasant View.
At the plea hearing, the prosecutor submitted that the appropriate sentencing range for these offences was between six and a half to seven and a half years’ imprisonment, with a non-parole period of between four and a half to five and a half years. The appellant did not make submissions as to an appropriate sentencing range.
Grounds of appeal
Ground 1
This ground alleges that:
the learned sentencing judge erred in imposing a sentence of imprisonment for the offence of driving with an illicit substance present in blood when the maximum penalty was a fine.
Since the Crown concedes that error is shown in this ground, the sentence of imprisonment imposed on this charge must be quashed and the appellant must be re-sentenced.
The maximum penalty for this offence is 12 penalty units.[1] We would re‑sentence the appellant to a fine of $500 for this offence.
[1]At the time of sentence, a penalty unit was $119.45.
Ground 2
This ground alleges that:
The learned sentencing judge erred in cumulating 6 months of the sentence on the charge of exceeding the prescribed concentration of alcohol, in circumstances where this amounted to double punishment.
The appellant submitted that the learned sentencing judge had accepted ‘the aggravating features which were put forward by the prosecution’.[2] This referred to the Crown’s reliance on the appellant’s high alcohol reading as a factor which aggravated the appellant’s culpability for the two charges of dangerous driving causing serious injury.
[2]DPP v Gangur (Unreported, County Court of Victoria, Judge Gaynor, 11 February 2011) (‘Reasons’) [39].
It was submitted that the appellant was subjected to ‘double punishment’ because, as well as taking account of his alcohol consumption as an aggravating factor in sentencing him for charges 1 and 2, the judge had ordered that 6 months of the sentence imposed on the summary charge of exceeding the prescribed concentration of alcohol should be cumulated on the base sentence of four years’ imprisonment imposed on charge 1.
In his written submission, counsel for the appellant relied on the decision of the High Court decision in Pearce v The Queen.[3] In that case, McHugh, Hayne and Callinan JJ emphasised that the question of whether double punishment had been imposed should not be approached with excessive technicality. They went on to say that:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[4]
[3](1998) 194 CLR 610 (‘Pearce’).
[4]Ibid 623, [40].
In addition, the appellant relied on s 51(1) of the Interpretation of Legislation Act1984, which provides that:
Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.
The issue of ‘double punishment’ was considered by this Court in R v Audino.[5] In that case, the appellant pleaded guilty to (among other things) culpable driving, and the summary offence of exceeding the prescribed blood alcohol concentration. The learned sentencing judge ordered that one month’s imprisonment imposed for the summary offence be served cumulatively to the other sentences. The appellant contended that this amounted to double punishment.
[5](2007) 180 A Crim R 371 (‘Audino’).
Section 318(2) of the Crimes Act 1958 describes four situations in which a person ‘drives a motor vehicle culpably’. One of these situations is where a person drives a vehicle ‘whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle’.[6]
[6]Crimes Act 1958 s 318(2)(c).
In Audino, Maxwell P (with whom Ashley and Neave JJA agreed) observed that the act of driving with excess alcohol in the blood was an element of both the indictable offence of culpable driving and of the summary offence of driving while exceeding the prescribed concentration of alcohol.
On the basis of the passage in Pearce set out above, his Honour held that it would amount to double punishment to sentence the appellant twice for the same act. Thus, in re-sentencing the appellant, the Court did not impose any penalty for that summary offence.
It may be that Audino could have gone further. Arguably, even if there is an apparent overlap between the elements of a summary offence (for example, driving while exceeding the prescribed concentration of alcohol) and the more serious offence (for example, culpable driving whilst under the influence of alcohol), there may be no double punishment if the summary offence was committed prior to the acts necessary to establish the more serious offence. However, that argument may be inconsistent with the proposition in Pearce that double punishment should not be approached with excessive technicality. Further, it is not necessary to express a concluded view on this issue, which was not argued before us.
Although the appellant relied on Audino in his written submission, at both the leave hearing and the hearing of the appeal, he conceded that Audino was not on all fours with the facts of this case, and that the judge had not erred by imposing a sentence of 12 months’ imprisonment on the drink driving offence. However, he maintained his argument that the appellant had been doubly punished because the judge ordered that 6 months of that sentence be served cumulatively on the base sentence.
The appellant correctly conceded that Audino did not assist him. As Maxwell P observed in that case:
Had it been necessary to decide the question, I would have reached a different conclusion with respect to the summary count of driving while disqualified. There was no common element between that offence and the offence of causing death by culpable driving. Nor, in my view, does any question of double punishment arise merely because the fact of driving while disqualified was treated as aggravating the seriousness of the culpable driving charge. The summary offence was committed immediately the appellant began to drive her car. The fact that she ought not to have been on the road at all, because of a drink-driving disqualification, was separately relevant to the court’s assessment of the culpable driving offence.[7]
[7]Audino (2007) 180 A Crim R 371, 376, [19].
That reasoning requires the rejection of ground 2. The offence of being in charge of a vehicle or driving a vehicle while exceeding the prescribed concentration of alcohol was committed as soon as the appellant took charge of his car (or at the very latest, when he began to drive).
The offence of dangerous driving causing serious injury is created by s 319(1A) of the Crimes Act 1958. That section provides that:
A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes serious injury to another person is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
It is not an element of that offence that the driver exceeded the prescribed concentration of alcohol. The dangerous driving offences occurred after the appellant had committed the summary offence. They were committed when the appellant seriously injured the victims by colliding with their car, while exceeding the speed limit and driving on the wrong side of the road.
It follows that her Honour did not err by cumulating a portion of the 12 month sentence imposed on the summary offence on the base sentence, as well as treating the appellant’s high blood alcohol reading as aggravating his moral culpability for charges 1 and 2. However, as we explain below, the total effective sentence imposed by her Honour did not take sufficient account of the principle of totality.
Grounds 3, 4 and 5
These grounds can be dealt with together. They were as follows:
3.The sentences imposed on counts 1 and 2 were manifestly excessive, having regard to the circumstances of the offence, the applicant’s remorse, and the extent of the harm caused.
4.The total effective sentence offended against the principle of totality as a result of the base sentence (count 1) being too high and too great cumulation being ordered in respect of count 2.
5.The learned sentencing judge erred in not taking into account the additional burden of imprisonment borne by the applicant arising from the hardship suffered by his family as a result of his imprisonment.
The appellant contended that the sentences imposed on charges 1 and 2 were outside the range of sentences reasonably open to the judge, having regard to her Honour’s acceptance of numerous mitigating factors. These included the appellant’s difficult upbringing, his introduction to alcohol and cannabis by his parents, his early plea of guilty and significant remorse, and the additional burden of imprisonment arising from the hardship that will be suffered by the appellant because of his knowledge of his family’s hardship during his imprisonment. It was also argued that the injuries suffered by the victims were serious, but ‘not catastrophic’.
The appellant relied on Table B set out as an appendix to this Court’s decision in R v Towle.[8] Table B describes the sentences imposed for the offence of dangerous driving causing serious injury in the County Court of Victoria and also includes some sentences imposed by the Court of Appeal. The appellant relied upon the fact that the highest sentences imposed by the County Court for an individual counts of dangerous driving causing serious injury were in R v Naumann[9] and in R v Tozer.[10]
[8][2009] VSCA 280.
[9][2006] VCC 810 (‘Naumann’).
[10](Unreported, County Court of Victoria, Judge McInerney, 8 February 2008) (‘Tozer’).
In Naumann, a sentence of 3 years’ imprisonment was imposed on an offender who had a previous conviction for driving without a licence. In Tozer, sentences of 3 years and 6 months’ imprisonment were imposed on an offender who had pleaded guilty to two counts of dangerous driving causing serious injury.[11]
[11]In Tozer, leave to appeal was refused against the total effective sentence of four years and six months’ imprisonment. The offender had seven prior convictions, including convictions for drink driving and exceeding the speed limit and, like the appellant in this appeal, was a poly-substance abuser.
As has frequently been observed, care must be taken in comparing sentences imposed for the same offences on other offenders.[12] However, it is fair to note that the sentences imposed on both the dangerous driving charges in this case were at the top of the range, by comparison to the sentences for this offence set out in Table B.
[12]See, eg, Hudson v The Queen (2010) 205 A Crim R 199.
The judge characterised the appellant’s offending as ‘the most serious example of this type of offence’.[13] We agree with that description. The offender’s moral culpability was very high. Although he may have been unable to control his alcohol addiction, he must have been aware of the high risk of driving when he had been drinking. He had a long history of driving offences, including two convictions for exceeding the prescribed concentration of alcohol and one for driving recklessly.[14]
[13]Reasons [35].
[14]In addition, the appellant was convicted of failing to comply with a Community Based Order in January 2001 and convicted of failing to comply with a Suspended Sentence Order in March 2006 for (among other things) exceeding the prescribed concentration of alcohol.
Although neither of the victims suffered paraplegia or brain damage as a result of the collision, throughout her life Ms Watters will be reminded of its occurrence by her leg injuries. The two victims lost their unborn child, and Mr Adams’ psychological condition has been exacerbated as the result of the accident. In our opinion, the sentence, although stern, was within the range of sentences which could be imposed in the circumstances of this case. For these reasons, ground 3 is not made out.
We take a different view of ground 4. In sentencing the appellant, the judge was required to take account of the fact that his driving had injured two people.[15] However, the sentence of four years’ imprisonment imposed on charge 1 was at the top of the range. Having imposed a stern sentence on charge 1, her Honour should not have cumulated two years of the three year sentence imposed on charge 2.
[15]R v Towle [2009] VSCA 280, [92] (Maxwell P).
In Towle, Maxwell P referred to orders of cumulation of 50 per cent in both R v Guariglia[16] and in DPP v Solomon,[17] which were made to take account of the fact that there were multiple victims of the culpable driving of those offenders.
[16](2001) 33 MVR 543.
[17](2002) 36 MVR 425.
In this case, two thirds of the sentence imposed on charge 2 was cumulated on the base sentence. The effect of that cumulation, combined with the order cumulating 6 months of the sentence imposed on the summary charge of exceeding the prescribed concentration of alcohol, produced a total effective sentence which was disproportionate to the appellant’s overall criminality and breached the principle of totality.[18]
[18]Mill v The Queen (1988) 166 CLR 59.
Ground 5 complains of her Honour’s failure to take account of the way in which the appellant was affected by his family’s difficulties. The judge referred to the problems experienced by the appellant’s family several times in her sentencing reasons.[19] Although she did not specifically allude to the additional burden of imprisonment which the appellant would suffer as a result of the hardship suffered by his family, we are satisfied that her Honour had regard to this matter.
[19]Reasons [27], [36], [40].
Because grounds 1 and 4 are made out, the appellant must be re-sentenced. His counsel submitted that in determining the sentences which should be imposed on him, the Court should take account of the fact that he was now serving his term in Loddon Prison. Because his family had moved to Ministry of Housing accommodation in Traralgon, they had difficulties in visiting him and he rarely saw his partner and children. Tragically, the appellant’s 16 year old son suffered a brain injury in a car accident after the appellant was incarcerated.
While in prison, the appellant had had clean drug and alcohol tests and was now working as a billet. He was on a waiting list for a course relating to misuse of drugs and alcohol and was studying for a certificate in business.
Finally, the appellant’s counsel submitted that the appellant should receive a longer than usual parole period so that he can be supported in abstaining from alcohol once he is released. Reliance was placed on the psychological report prepared by Mr Ian Joblin, which was provided to the sentencing judge. In his report, Mr Joblin stated that ‘the longer [the appellant] receives supervision at a coercive level, the greater will be the benefit for him, his family and the community’, and ‘[i]t would be very important that on release, [the appellant] is offered assistance to abstain when alcohol and cannabis are again available’.
Having regard to all of these matters, we would re-sentence the appellant as follows.
| Charge | Offence | Maximum | Sentence | Cumulation |
| Charge 1 | Dangerous driving causing serious injury | 5 years’ imprisonment | 4 years’ imprisonment | Base sentence |
| Charge 2 | Dangerous driving causing serious injury | 5 years’ imprisonment | 3 years’ imprisonment | 1 year’s |
| Summary charge | Exceeding the prescribed concentration of alcohol | 18 months’ imprisonment or 180 penalty units | 12 months’ imprisonment | 3 months’ imprisonment |
| Summary charge | Driving with illicit substance present in blood | 12 penalty units | Fine of $500 | |
| Summary charge | Unlicensed driving | 3 months’ imprisonment or 25 penalty units | 2 months’ imprisonment | |
| Summary charge | Using a vehicle not in a safe and roadworthy condition (without conviction) | 5 penalty units | Fine of $500.00 |
This will amount to a total effective sentence of five years and three months’ imprisonment, with a fine of $500 for each of the summary offences of driving with an illicit substance present in blood, and using a vehicle not in a safe and roadworthy condition. We direct that the appellant serve a non-parole period of three years’ imprisonment.
We declare pursuant to s 6AAA of the Sentencing Act 1991 that if the appellant had not pleaded guilty, we would have sentenced him to a total effective sentence of seven years’ imprisonment, with a non-parole period of four years.
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