Ramsay v The Queen

[2020] SASCFC 4

Supreme Court of South Australia

(Court of Criminal Appeal)

RAMSAY v THE QUEEN

[2020] SASCFC 4

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)

30 January 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - CULPABLE OR DANGEROUS DRIVING CAUSING BODILY HARM

Appeal against sentence imposed by a Judge in the District Court – where the appellant pleaded guilty to two counts of aggravated causing serious harm by dangerous driving and three counts of aggravated causing harm by dangerous driving – whether the sentence imposed was manifestly excessive.

Held (per Bampton J, Peek and Lovell JJ agreeing): Appeal dismissed – the sentence imposed by the Judge was not manifestly excessive.

Road Traffic Act 1961 (SA); Motor Vehicles Act 1959 (SA); Criminal Law Consolidation Act 1935 (SA) s 19, referred to.

R v Olbrich (1999) 199 CLR 270; MJDH v Director of Public Prosecutions (2013) 116 SASR 180; Law v Deed [1970] SASR 374; R v Kreutzer (2013) 118 SASR 211; R v Johnston (1985) 38 SASR 582; R v Wooldridge (2015) 123 SASR 422; R v Copeland (No 2) (2010) 108 SASR 398; R v Bagnato (2011) 112 SASR 39; Attorney-General (SA) v Tichy (1982) 30 SASR 84, considered.

RAMSAY v THE QUEEN

[2020] SASCFC 4

Court of Criminal Appeal:  Peek, Bampton and Lovell JJ

1. PEEK J:       I would dismiss the appeal.  I generally agree with the reasons of Bampton J and I will refer briefly to only one matter, that of the asserted presence of the drug Ranitidine. 

2. The collision the subject of the charges (the collision) occurred at about 1.50 pm and the blood sample was taken from the accused at 3.35 pm.  Even if one took the time of the last drink to be as late as 1.40 pm, there is a delay for almost two hours between last drink and the taking of blood.  It is highly likely that no matter what the precise pattern of drinking in those circumstances, the appellant would have been in the oxidation phase at the time of the taking of the blood sample and his true BAC at the time of the collision would have been somewhat greater than 0.19.  However, the case proceeded on the basis that the relevant BAC was 0.19 and it is too late to quarrel with that.

3. However, the defence sought to rely on a reported finding of the presence of an unspecified amount of the drug Ranitidine on analysis of the blood sample. A report by Professor White was tendered by the defence and, in the absence of prosecution objection, received by the Judge; and the prosecution did not seek to cross-examine the author.  The relevant part of the report was as follows:

   Ranitidine

   Ranitidine is a drug used to treat gastrointenstinal disorders, particular gastric reflux.  It produces its effects by reducing the amount of acid released in the stomach.  It is available as a prescription and an over-the-counter medication and is commonly known by the brand name Zantac.

   Ranitidine does not normally affect mental state of behaviour.  However, the rare side effects of ranitidine (those occurring in less than 0.1% of people using the drug) include tiredness, dizziness and confusion.

   None of the medications taken by Mr Ramsay prior to the accident would give rise to a positive result for ranitidine.

   Ranitidine and alcohol

   Ranitidine is known to have an effect on blood alcohol concentration.  The main effect is to increase the blood alcohol concentration reached after consuming a given quantity of alcohol.  In one study, the effect was to increase the maximal blood alcohol concentration by an average of 32%¹.  However, this value should be regarded as indicative only as the difference resulting from ranitidine use will depend on the amount of alcohol consumed, the time over which it is consumed as well as characteristics of the individual concerned.  These various factors that are likely to influence the effects of ranitidine on blood alcohol concentration have not been explored in research.

   Ranitidine produces its effects on blood alcohol concentration because, in addition to its effects on stomach acid, it accelerates the rate at which the contents of the stomach are emptied into the duodenum.  Most alcohol absorption into the blood occurs in the duodenum.  After absorption into the blood, the alcohol passes through the liver, where some of it is metabolised.  By accelerating gastric emptying, ranitidine increases the rate which alcohol passes through the liver.  This can lead to the liver enzymes being ‘overwhelmed’ so that the metabolism of alcohol is less efficient, resulting in a higher overall blood alcohol concentration.

   The presence of ranitidine in Mr Ramsay’s blood could therefore have resulted in him reaching a higher blood alcohol concentration than would be expected based on the amount of alcohol he consumed.  As noted, there is insufficient research evidence available to give a firm figure on the magnitude of the increase that ranitidine would have produced in this situation.  The figure of 32% could be considered an approximation of the increase in blood alcohol concentration due to the presence of ranitidine.  As there was no quantification of the blood level of ranitidine, a further unknown is the amount of ranitidine present at the time the drinking was occurring.

   Ranitidine does not modify the effects of alcohol in a manner other than by increasing blood alcohol concentration, except in those rare instances where side effects such as confusion are experienced.  In those instances, there may be an exacerbation of the effects of alcohol.

   …

   Reference

   1.  Amir et al.  (1996) Ranitidine increases the bioavailability of imbibed alcohol by accelerating gastric emptying.  Life Sciences 58: 511-518.

4. In considering this report, it is important to be clear as to what is not being suggested.  First, it is not suggested that if there is a given amount of alcohol in the bloodstream, the presence of Ranitidine can in some mysterious way increase that amount of alcohol. Secondly, it is not suggested that if there is a given amount of alcohol in the bloodstream, the presence of Ranitidine will potentiate the effect of that amount of alcohol (as is sometimes the case with one particular drug potentiating the effect of another particular drug).

5. What is claimed is that there is some evidence for the proposition that Ranitidine can have an adverse effect on the body’s oxidation (metabolism) rate of alcohol.  To provide some context, during the course of a drinking session, the body will be in both the absorption phase and the oxidation phase.  In other words, as further alcohol is continued to be imbibed, it will continue to be absorbed into the bloodstream; but at the same time alcohol already imbibed will continue to be eliminated by the oxidation process.  In many, if not most, situations, as drinking continues more alcohol will be absorbed into the blood stream than is oxidized; and therefore as drinking continues the BAC continues to rise.  Of course, when drinking ceases the absorption process will at some time thereafter come to an end, leaving only the oxidation process occurring.  That process of oxidation will continue and the BAC will eventually become zero, provided no further alcohol is imbibed.

6. If one assumes that the presence of Ranitidine in the bloodstream of a person may have an adverse effect on that person’s oxidation rate of alcohol, one could sensibly apply that assumption to a particular factual situation only if one knew quite a number of things, including at least the following.

7. First, one would need to know the precise nature of the drinking pattern on the occasion in question.  For example, it would appear to be the case that if there was a drinking pattern involving a large and rapid intake of alcohol on an empty stomach, there would be rapid absorption resulting in a high BAC relatively quickly.  In such circumstances, even if one were to assume that Ranitidine could seriously compromise the oxidation process, the difference between the BAC achieved and the lower BAC that would have been achieved if the oxidation rate had been normal might be fairly small; and very much smaller than the figure of 32% being fastened upon here. 

8. Secondly, one would need to know for how long leading up to the subject occasion the person had been taking Ranitidine (the precise dosage regime including frequency and amount) in order to assess the degree to which (if at all) the person’s ability to oxidise alcohol may have had been impaired on the subject occasion.  Thus it is to be noted that in the (only) article cited by Professor White, that of Amir et al in 1996, the participants had been given 300 mg of ranitidine orally each evening for 1 week.

9. However, in the present case, there is no evidence at all as to these matters.  In fact, the appellant asserts that he was not undergoing any treatment regime involving Ranitidine and had no idea how it came to be in his bloodstream.  On correct analysis, there is no evidence whatever that the appellant’s ability to metabolise alcohol was in any way impaired on the subject occasion.

The onus of proof of an asserted mitigating factor

1. In the decision of the High Court in R v Olbrich, the plurality stated:

   25.  Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof.  References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue.  Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it.  Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it.  (We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)

   26.  In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a fifty-eight year old first offender who pleaded guilty to importing more than 1.1 kg of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation “principal” could be attached to him.  Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was “a courier”.  The respondent bore the burden of proving this fact.  The judge was not persuaded of it.  [Citations omitted]

2. In MJDH v Director of Public Prosecutions (‘MJDH’), Kourakis CJ said:

   17.  A defendant’s onus to prove a mitigating circumstance deprives the often heard prosecution submission, that the defendant’s account cannot be disputed, of any meaningful utility.  The question is not whether the prosecution has positive evidence to contradict that mitigating circumstances.  As this case shows, and Bray CJ observed in Law v Deed, the prosecution will seldom have any such evidence.  The question is whether the prosecution accepts the defendant’s account or instead requires the defendant to prove a matter in mitigation on the balance of probabilities.

   [18]      The dictates of procedural fairness play an important part in this aspect of sentencing procedure.  A sentencing court should not, in the face of a challenge by the prosecution, or on its own initiative, reject a defendant’s explanation without according the defendant an opportunity to give evidence on oath in support of it.  As Bray CJ explained in Law v Deed:

   Some stories which might appear incredible when related in oratio oblique by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.

3. In R v Kreutzer, Kourakis CJ further discussed the matter and formulated the following propositions for sentencing purposes:

   (1) Circumstances which operate adversely to a defendant on the one hand, or favourably on the other, should first be identified (always bearing in mind that not all relevant circumstances can be so categorised).  Even though there exists authoritative guidance about many commonly recurring circumstances, the categories are not closed.

   (2) In the absence of agreement and acceptance by the court, the prosecution must formally prove circumstances of aggravation beyond reasonable doubt and the defendant must formally prove matters in mitigation on the balance of probabilities.

   (3) If a circumstance of aggravation or mitigation is not proved by the party who carries the onus to do so, the converse is not thereby proved and the court must proceed to sentence not knowing whether the circumstance, or the converse, is true.

   (4) A sentencing court may inform itself of matters which are neither circumstances of aggravation nor mitigation as it sees fit in accordance with historical sentencing practice and any applicable statutory discretions such as s 6 of the Sentencing Act.

4. It is sufficient to observe that in the present case, the onus was on the appellant to prove a mitigating factor such as that asserted here on the balance of probabilities and, with respect, a much more vigilant role could have been taken by the prosecution at the sentencing hearing. 

5. BAMPTON J:        Ian Neal Ramsay pleaded guilty in the Magistrates Court to two counts of aggravated causing serious harm by dangerous driving and three counts of aggravated causing harm by dangerous driving and was committed to the District Court for sentence.  The circumstance of aggravation in respect of all counts was that there was a concentration of 0.08 gm or more of alcohol in 100 ml of Mr Ramsay’s blood at the time of his driving.

6. The sentencing Judge imposed individual sentences for each count, allowing a reduction of 40 per cent for the guilty pleas, and arrived at the resulting sentence of four years, 10 months, and two weeks with a non‑parole period of two years and six months as follows:

   1.  Count 1 — aggravated cause serious harm by dangerous driving — three years’ imprisonment.

   2.  Count 2 — aggravated cause serious harm by dangerous driving — three years’ imprisonment, with one year of the sentence be served cumulatively upon the sentence imposed for count 1.

   3.  Count 3 — aggravated cause harm by dangerous driving — 12 months’ imprisonment, with four months of the sentence to be served cumulatively on the sentences imposed for counts 1 and 2.

   4.  Count 4 — aggravated cause harm by dangerous driving — 12 months’ imprisonment, with four months of the sentence to be served cumulatively on the sentences imposed for counts 1, 2, and 3.

   5.  Count 5 — aggravated cause harm by dangerous driving — seven months and two weeks’ imprisonment, with two months and two weeks of the sentence to be served cumulatively upon the sentences imposed for counts 1 to 4.

7. The Judge ordered that Mr Ramsay be disqualified from holding or obtaining a driver’s licence for a period of 12 years, to commence upon his release from custody.

8. On appeal, Mr Ramsay contended that the sentence is manifestly excessive, particularly when compared to sentences imposed in cases of causing death by dangerous driving.

Background

1. The offending can be summarized as follows.  On 3 June 2018, Mr Ramsay was driving a Subaru Forrester registration RIP 666 (“the Subaru”) on Billabong Road, Para Hills at high speed when he lost control of the vehicle, colliding with a parked Hyundai Getz (“the Hyundai”) causing serious harm to Barbara Catchpool who was sitting in the driver’s seat of the Hyundai (count 1) and to Cooper Carpenter who was standing next to the Hyundai (count 2).  The collision also caused harm to Joanne Yates who was standing alongside the Hyundai (count 3), to Jed Carpenter who was a passenger in the Hyundai (count 4), and Koen Trenton who was a passenger in the Subaru (count 5). 

2. Mrs Catchpool, the victim of count 1, was the driver of the Hyundai.  Mrs Catchpool’s grandsons, Jed (then aged 13) and Cooper (then aged 11), were passengers in the Hyundai.  Cooper was seated in the front passenger seat and Jed was seated in the rear of the Hyundai behind Mrs Catchpool.  Mrs Catchpool had stopped her vehicle outside her daughter Mrs Yates’ home on Billabong Road to pick up her grandson, Jake (Mrs Yates’ son and cousin of Jed and Cooper).  Jed and Cooper got out of the vehicle to swap places and Jed got into the front passenger seat.  Mrs Yates came out to the Hyundai and stood by the front passenger window.  Mrs Catchpool reported that she then saw the Subaru swerving up the road travelling in an easterly direction and that she could hear a heavy motor.  The Subaru mounted the kerb on the northern side of the road and then moved across the road where it struck the driver’s side of the Hyundai causing the Hyundai to rotate 90 degrees.  The Subaru then crashed into a parked vehicle, two houses up from Mrs Yates’ home. 

3. Mrs Catchpool, who was trapped in the Hyundai, had to be cut from the vehicle by the Metropolitan Fire Service.  She was taken by ambulance to the Royal Adelaide Hospital, where she was diagnosed with a cracked pelvis, a broken femur, and a left chest wall haematoma.  She required the surgical insertion of plates into her leg and pelvis.

4. Cooper, the victim of count 2, was standing near the rear left of the Hyundai when it was struck by the Subaru.  He was catapulted approximately 10 metres down the front garden of Mrs Yates’ home striking a glass table.  Cooper was intubated at the scene and taken by ambulance to the Women’s and Children’s Hospital, where he was diagnosed with a subdural haematoma and concussion and placed in an induced coma.  He also sustained comminuted and displaced fractures of the pelvis and hip with accompanying bleeding and displacement of his bladder.  He also suffered a partial collapse of the left lower lobe of his lung. 

5. Jed, the victim of count 4, who was sitting in the front passenger seat of the Hyundai at the time of the collision, suffered bruising and associated trauma.

6. Mrs Yates, the victim of count 3, reported that she saw the Subaru to be travelling at about 80 kmph when it suddenly changed direction and collided with her mother’s Hyundai.  As the Hyundai rotated, it made contact with Mrs Yates’ chin, causing her to fall backwards onto the ground and sustain bruising.  Mrs Yates then saw Cooper lying on the front patio area of her home.  She noted that he was conscious but not talking, that his eyes were rolling around and he had sustained a 10 cm gash to the top right side of his head. 

7. Koen Trenton, the victim of count 5, was the passenger in the Subaru who recalled the engine revving loudly when Mr Ramsay lost control and collided with the Hyundai and then another vehicle.  Mr Trenton was conveyed to the Modbury Hospital suffering soreness. 

8. The collision was witnessed by numerous persons who reported that Mr Ramsay was driving at high speed, well over the speed limit. 

9. The speed limit on Billabong Road is 50 kmph.  An accident reconstruction expert estimated the speed of the Subaru at the moment of collision to have been somewhere between 118 and 125 kmph.

1. After the collision, Mr Ramsay told a witness that he had been drinking and driving over the speed limit.  He also said that he was showing his friend what his car was capable of when he lost control.  At the time of the collision, Mr Ramsay had a blood alcohol concentration of 0.193 per cent.  Blood taken after the accident also revealed the presence of the drug Ranitidine.

Victim impact statements

1. In her victim impact statement, Mrs Catchpool said that on the day of the collision she was going to take her grandsons to watch the Crows play at Adelaide Oval.  She had parked in front of her daughter’s home and, in a split‑second, the Subaru struck her vehicle from the opposite direction.  Mrs Catchpool said that she was injured, her car was destroyed, and the impact was big.  She poignantly said that “NO NANNA wants this carnage to happen on their watch”, that it “destroyed three families” who will never be the same again, and their suffering is ongoing.

2. Mrs Catchpool spent five weeks in hospital.  Upon discharge from hospital, she was in a wheelchair with a leg extension for three months due to her severe injuries.  She said that it put a huge strain on her husband and their marriage.  She was housebound and she could not access half of her home because of disabilities.  She missed out on significant events in her grandchildren’s lives and a planned trip to Dreamworld with two of the grandchildren was cancelled due to her injuries.  Her plans of travelling with her husband are now, in her words, “only a pipe dream as [she] can’t get around unaided and finds some things physically challenging”.

3. Cooper, now aged 12, said that he does not remember the accident but recalls waking up in hospital with tubes.  He said that he stayed in hospital for a very long time and he missed so much football.  His team nearly made it to the grand final for the first time, and he was angry that he could not play.  He said that during 2019 he had to play football with a helmet and he had to keep going to occupational therapy and physiotherapy to try to improve his movement.  He hates feeling tired all the time due to his brain injury and sometimes gets very angry, and just wants everything to be quiet.  He said that his brain does not always do what he wants it to and it takes him longer to do things.  He does not like having a tutor at school and “[does not] want people to think [he is] dumb” because it takes him longer to understand what someone wants him to do.  He said that he just wants his brain to get better so that he can feel normal again, not have so many appointments and for his family to be happy again.

4. Jed, now aged 15, said that he has been diagnosed with suffering post‑traumatic stress disorder.  He said that immediately after the accident he thought that Cooper was going to die.  He remembers climbing out of the car and running back and forth between Cooper and his nanna, not knowing how to help them.  He said that the accident has really affected his nanna and he worries about her all the time. 

5. He and Cooper used to play rough and wrestle, but they cannot do that anymore because they have to be careful to avoid hitting Cooper’s head. 

6. Jed said that his mum is concerned about Cooper and she tries to help him, but Cooper just blocks out.  He said that he does not feel safe in cars anymore and he always has flashbacks.  He is angry at the driver of the Subaru, as he has changed his life and his family’s life.  He said that he does not concentrate or sleep well, and if he had one wish it is that he had never gotten in the car that day and his family would be fine.

7. Donna Carpenter, the mother of Jed and Cooper, said that 3 June 2018 was the worst day of her life when she nearly lost four members of her family, two of them her children.  She said that the Subaru’s numberplate, RIP 666, will be burned into her memory as long as she lives.

8. Mrs Carpenter said that she was 15 minutes away when she received the phone call informing her of the accident.  She said that she lives with the guilt that she was not there to protect her children when the accident happened.  She could not travel in the ambulance with Cooper as he needed four medivac specialists to keep him alive.  She learned that he died four times on the way to hospital and required a blood transfusion due to the significant amount of blood he lost when his head was split open after being flung into the air and smashed onto the table, losing consciousness.  She said that the scar across the front of his head is a constant reminder of what happened.  Mrs Carpenter said that her oldest son, Jed, was frightened and blames himself for not being able to help his nanna and his brother.

9. Mrs Carpenter said that when she finally got to see Cooper at the hospital he was already in an induced coma, with a brain monitor drilled into his skull.  He remained in this condition for three days due to the traumatic brain injury he sustained.  She said that it was days before they knew he would wake up, or have any idea whether he would recognise them or walk again.  She said that it is a miracle that he survived, he did not come home for four weeks – two of those weeks were spent in a low intensity room where the room was in total darkness and silence – and when Cooper opened his eyes he had to be told to blink because fixated vision may have triggered a seizure or a brain bleed.  Mrs Carpenter said that the few times she left Cooper alone with a nurse it was to see her mother at the Royal Adelaide Hospital.  She felt split in a million directions as she could not support her mother as much as she needed, or her sister who was also injured in the collision.

10. Mrs Carpenter said that she had to be strong in front of her other sons and as a teacher she had to keep her year 11 and 12 students on track with emails and text messages.  Mrs Carpenter said that Cooper had to be toilet trained again and had intensive rehabilitation before finally being able to come home seven weeks after the collision.  However, it will be up to three years before his residual disability is known. 

11. Mr Carpenter, the father of Cooper and Jed spoke of the anguish and trauma he and his family have suffered as a result of the offending. 

12. Mrs Yates said that she will never forget the accident and remembers the sound of “heavy acceleration and crashing metal against one another” and a “sudden small silence” and being frozen on the ground before hearing the second crash.  She recounted that her five-year-old daughter witnessed the horrific scene unfold, seeing her nanna and cousin Jed being hit whilst in the car and Cooper being catapulted into the air and watching the Subaru strike her mother, Mrs Yates.

13. Mrs Yates said seeing the seriousness of Cooper’s head injury and her mother being cut from the car was devastating.  She said that following the crash her family was harassed relentlessly by the media for three days and again when Mr Ramsay first went to court.  She recounted spending the first two weeks after the collision going to different hospitals to visit her mother and Cooper.  She described that Jed could not bring himself to return to her home in the first few months following the accident because he was too traumatised. 

14. Mrs Yates said that she now feels differently about her home and that the aftermath of the collision has put a lot of stress on her marriage.  She described the physical pain as well as the depression and anxiety she suffers.  She described how her daughter still freezes at the sound of heavy or loud acceleration or a turbo sounding car, and how she has to calm her in bed when she is woken by loud cars at night.  Ms Yates said that her neck and jaw still tense when she is upset or stressed and she struggles with her emotions.

Mr Ramsay’s personal circumstances

1. At the time of sentencing, Mr Ramsay was aged 60.  He is the father of an adult son with whom he is close.  He has been separated from his son’s mother for many years. 

2. Mr Ramsay has three convictions for drink driving committed in 1983, 1987, and 1995.  He also has convictions for offences contrary to the Road Traffic Act 1961 (SA) committed in the 1980s. Prior to this offending, he was convicting on 8 December 2005 for driving unregistered and uninsured and failing to hold a learner’s permit contrary to the Motor Vehicles Act 1959 (SA).

3. It was submitted that during his 20s Mr Ramsay developed into a heavy drinker for socialisation and to help dull his memory of the sexual abuse he suffered as a child.  It was further submitted that in recent years he had gained a measure of control over his drinking.  It was pointed out that he had not committed any drink driving offences for over 20 years and that he has been employed in the transport industry for 20 years as a truck driver.  The Court received a number of references attesting that he was of good character and to the fact that his offending was entirely out of character.

4. The Court heard that Mr Ramsay is wracked with guilt and deeply sorry for his actions.  He does not have a memory of what he was thinking, or what caused him to act in the way that he did.  The Court received a report from the psychologist, Dr Lim, following her assessment of Mr Ramsay.  Dr Lim reports that Mr Ramsay’s personal background is suggestive of a history of some psychological dysfunction which is directly related to his severe alcohol use disorder.  Dr Lim said that this disorder featured prominently in his late 20s to 30s, evidenced by his drink driving and other driving offences prior to 1995.  Dr Lim referred to Mr Ramsay’s report of being a victim of childhood sexual abuse and that he had relied on alcohol to self-medicate in that regard for a long time, particularly in his younger years.  Dr Lim said that it appeared that Mr Ramsay had developed insight into the deleterious impact his significant alcohol use was having on his functioning, which is why he reportedly reduced his consumption.  Dr Lim considered that Mr Ramsay’s risk of reoffending was low, providing his alcohol use is well controlled. 

5. In sentencing, the Judge accepted that Mr Ramsay’s offending was an isolated offence and that he had not, over the previous 20 years, committed any drink driving offences.  The Judge accepted that he was remorseful, of general good character and that his prospects for rehabilitation “are very good”.

6. A report prepared by the pharmacologist Professor Jason White explained that the Ranitidine detected in Mr Ramsay’s blood is a drug used to treat gastric reflux.  Mr Ramsay’s counsel submitted to the Judge that Mr Ramsay does not suffer from gastric reflux and had no memory of the events leading up to this collision or how he came to ingest the Ranitidine.  It is not known whether he took it deliberately to treat a stomach ailment or whether he took it unwittingly or if someone maliciously caused him to consume it.  There was no suggestion that he took it deliberately to become more intoxicated.

7. Professor White reported that Ranitidine has been reported to have an effect on blood alcohol concentration and in one study conducted in 1996 the effect was to increase the maximal blood alcohol concentration reached after the consumption of a given quantity of alcohol by an average of 32 per cent.  Professor White pointed out that this value should be regarded as indicative only as the difference resulting from Ranitidine use will depend on the amount of alcohol consumed as well as characteristics of the individual concerned.  He also highlighted the fact that the various factors that are likely to influence the effect of Ranitidine on blood alcohol have not been explored in research. 

8. Mr Ramsay’s blood alcohol reading of 0.19 per cent was not in dispute.  The Judge sentenced on the basis that his “blood alcohol concentration could have been 0.131 per cent but the unwitting introduction into his system of Ranitidine has resulted in him having a higher blood alcohol concentration than might otherwise have been the case had he been simply drinking”.

9. Given the lack of scientific evidence regarding the effect of Ranitidine on blood alcohol concentration, the Judge’s reduction of the accepted reading of 0.19 per cent by 32 per cent was a very generous reduction.

Mr Ramsay’s submissions on appeal

1. It was submitted that the starting point taken by the Judge before the 40 per cent reduction and orders for partial concurrency was a sentence of eight years, one month, and two weeks.  It was argued that, notwithstanding the serious injuries caused by Mr Ramsay’s dangerous driving, this starting point was manifestly excessive.  Counsel for Mr Ramsay referred the Court to sentences imposed for offences of causing death by dangerous driving and causing harm by dangerous driving, submitting that the starting points in those matters did not exceed seven years’ imprisonment, even in cases involving multiple deaths or injury.  It was submitted that sentences for causing harm by dangerous driving should bear an appropriate relationship to the sentences for causing death by dangerous driving. 

2. It was accepted that there is a significant degree of moral culpability involved in Mr Ramsay’s driving with a high blood alcohol level and at high speed in a built‑up area.  Nevertheless, it was submitted that his conduct did not involve the intentional infliction of harm.  Mr Ramsay referred to the following comments of King CJ in R v Johnston:

   It is important therefore that in concentrating our attention on the dreadful consequences of the driving, we do not obscure the chasm which exists between the moral quality of heedless or even reckless conduct which causes death or bodily harm and the moral quality of conduct which deliberately inflicts death or bodily harm.

3. It was submitted that in the circumstances of this case there is no need for significant weight to be given to personal deterrence.  Mr Ramsay is now aged 61 and the lengthy licence disqualification imposed by the Judge means it is unlikely that he will drive again.  It was further submitted that the remorse he expressed through his counsel during sentencing submissions and to the psychologist, Dr Lim, is further confirmation that he is unlikely to offend in this way again.

The respondent’s submissions

1. The respondent submitted that the sentencing Judge approached the task of sentencing Mr Ramsay in the manner recommended by this Court in R v Wooldridge.  It was submitted that the principles underlying the discretion of a sentencing Judge to order that sentences be served wholly concurrently, partially concurrently, or wholly cumulatively has been examined in cases, for example, R v Copeland (No 2), R v Bagnato, and, as noted in Wooldridge, the remarks of Wells J in Attorney‑General (SA) v Tichy are of assistance:

   It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively.  According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty.  But such a logic could never hold.  When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet.  But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct.  Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes.  Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not.  Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice.  The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time.  What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty.

   (Emphasis added)

2. As submitted by the respondent, in fixing a sentence for this offending the Judge had to have regard to a range of factors including the protection of the community, the need for general and personal deterrence, and the circumstances of the offending, in particular, the manner of driving, the nature of the matters of aggravation, the number and nature of offences committed and the impact of the offending on the victims. 

Consideration

1. The maximum penalty for aggravated causing serious harm by dangerous driving is imprisonment for life and disqualification from holding or obtaining a driver’s licence for at least 10 years.  The maximum penalty for aggravated causing harm by dangerous driving is imprisonment for seven years and disqualification from holding a driver’s licence for at least three years.

2. Mr Ramsay relied on a schedule of comparative sentences prepared for his appeal.  The Director has provided submissions in reply and a schedule of sentences imposed in the District Court between October 2015 and November 2019.  Each of the sentences referred to turns on its own offending circumstances and the particular personal circumstances of the offender.  Each sentence involves a greater or lesser number of offences and a greater or lesser number of victims.  As such comparing other sentences is of limited assistance, particularly when many of the sentences proffered for comparison involve different maximum penalties to the applicable maximum penalties in this matter.  Nevertheless, the table of comparative sentences supports my view that the sentence imposed on Mr Ramsay is within the range of comparable sentences. 

3. In determining the totality of Mr Ramsay’s criminality, the multiplicity of counts is a significant feature.  Regard must be had to the fact that Mr Ramsay seriously injured two people, who suffer ongoing disabilities, and injured three others. 

4. The Judge properly determined that the circumstances of Mr Ramsay’s driving were “towards the upper end of the most serious imaginable for offences of this nature”.  The sentence needed to reflect:

   1.  the high blood alcohol level;

   2.  the fact that he had made a decision to drive at high speed with the aim of showing his friend what the Subaru was capable of doing;

   3.  the fact that he exceeded the speed limit by more than 70 kmph;

   4.  the injuries sustained by all five of the victims, particularly the ongoing injuries sustained by Mrs Catchpool and Cooper, noting that Cooper’s residual disability will not be known for three years; and

   5.  the fact that he has previous convictions for driving offences including driving with excess blood alcohol, albeit 20 years ago, driving without due care, and driving under disqualification/suspension.

5. The question of whether the sentence is manifestly excessive is to be determined by this Court considering whether, on the facts, the sentence imposed was unreasonable or plainly unjust.

6. Having regard to the gravity of Mr Ramsay’s offending and the deterrent purposes of punishment, the Judge’s decision to make the five individual penalties partially concurrent was within the exercise of his discretion and not unreasonable.  The resulting sentence is not, in my view, manifestly excessive.

1. I would dismiss the appeal.

2. LOVELL J: I agree that the appeal should be dismissed for the reasons given by Bampton J.