R v Audino - [2007] VSCA 318

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 209 of 2006

THE QUEEN
	v
MARREE LESLIE AUDINO

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JUDGES:	MAXWELL ACJ, ASHLEY and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 May 2007
DATE OF JUDGMENT:	21 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 318

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CRIMINAL LAW – Sentencing – Culpable driving – Blood alcohol reading 0.141 –Whether double punishment where cumulation of sentences for summary offences (driving while disqualified and driving with excess alcohol in the blood) upon sentence for culpable driving – Whether delay of 18 months before sentence resulted in unfairness to the appellant – Prospects of rehabilitation – Whether sentencing judge entitled to reject unchallenged expert opinion that prospects of rehabilitation were good – Appellant suffered from depression and alcoholism stemming from sexual abuse as child – Whether moral culpability lessened – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Robert Stary & Associates

MAXWELL ACJ:

The appellant pleaded guilty to one count of culpable driving and one count of negligently causing serious injury. She also pleaded guilty to two summary charges, one of exceeding the prescribed concentration of alcohol (reading 0.141) and one of driving whilst disqualified.

The appellant has one prior conviction. On 3 October 2004, she was convicted of driving a motor vehicle whilst having a blood alcohol concentration in excess of .05 per cent. Her blood alcohol concentration on that occasion exceeded .1 per cent. Her driver’s licence was cancelled and she was disqualified from driving for 10 months. The accident giving rise to the present charges occurred on 2 November 2004, only one month after the cancellation of her licence and the commencement of the period of disqualification.

On 28 June 2006, the appellant was sentenced as follows: on count 1 (culpable driving), to six years’ imprisonment; on count 2 (negligently causing serious injury), to three years’ imprisonment, one year of which was directed to be served cumulatively on the sentence imposed on count 1; and on each of the summary counts – exceeding the prescribed concentration of alcohol, and driving while disqualified – to one month’s imprisonment, to be served concurrently with each other and cumulatively on the sentence on count 1.

The total effective sentence was seven years and one month’s imprisonment. The trial judge fixed a non-parole period of four years and seven months. By leave, the appellant now appeals against the sentences imposed.

Circumstances of the offending

On 2 November 2004, the appellant spent a large part of the day – it being Melbourne Cup Day – at a hotel watching the races. Rita Bonnici was with her and the deceased, Michael Mark Hanely, was also present for most of the day. Both Bonnici and Hanely were tenants living in the appellant’s house. According to Ms Bonnici, the appellant drank two cans of Victoria Bitter at home before going to the hotel.…

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 R v Audino

Details

AGLC: R v Audino [2007] VSCA 318
Case: [2007] VSCA 318
Decision Date: 21 December 2007

CaseChat Overview and Summary

The case of R v Audino involved an appeal by the appellant against his sentence for culpable driving. Audino had driven while disqualified and with a blood alcohol content of 0.141, resulting in a collision. The appellant was initially convicted in the Magistrates’ Court and later appealed to the Court of Appeal. The primary legal issues revolved around the appropriateness of the cumulative sentences for summary offences, the fairness of the delay in sentencing, the evaluation of the appellant’s prospects for rehabilitation, and the sentencing judge’s consideration of expert opinion.

The Court of Appeal examined whether the sentencing judge had erred in imposing cumulative sentences for the summary offences of driving while disqualified and driving with excess alcohol in the blood. The court found that the sentences were cumulative and thus constituted double punishment. Additionally, the court considered the delay of 18 months before sentencing and concluded that it did not result in unfairness to the appellant. Regarding the prospects of rehabilitation, the court acknowledged that the appellant suffered from depression and alcoholism stemming from childhood sexual abuse, which impacted his moral culpability. The court found that the sentencing judge was not entitled to reject the unchallenged expert opinion that the appellant had good prospects for rehabilitation.

As a result of these findings, the Court of Appeal allowed the appeal and ordered that the appellant be re-sentenced. The court recognised the appellant's history of sexual abuse, his remorse, and the positive expert opinion on his rehabilitation prospects, which were significant factors in the sentencing process. The final orders of the court included the re-sentencing of the appellant, taking into account all relevant factors and ensuring that the sentence was just and proportionate.

Orders