Shane David Bausch v The Queen
[2019] VSCA 235
•22 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0107
| SHANE DAVID BAUSCH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 October 2019 |
| DATE OF JUDGMENT: | 22 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 235 |
| JUDGMENT APPEALED FROM: | DPP v Bausch (Unreported, County Court of Victoria, Judge Wilmoth, 6 March 2019) |
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CRIMINAL LAW – Appeal – Sentence – One charge of driving in a dangerous manner causing serious injury, one charge of driving with illicit drug present in blood, one charge of fail to appear on bail – Total effective sentence of 3 years’ imprisonment with non‑parole period of 2 years – Driving licences and permits cancelled – Disqualified from obtaining driving licence or permit for 5 years – Whether trial judge erred in concluding applicant knew of drugs in his body when offending occurred – Whether trial judge erred in relying on this conclusion as aggravating applicant’s moral culpability – Whether sentence manifestly excessive – No evidence of when or how some drugs ingested – No evidence of causal relationship between drugs and offending – Drugs could not be said to aggravate offending – Impact of acquired brain injury on offending – Impact of acquired brain injury on sentencing – General and specific deterrence – Real prospects of rehabilitation – Leave to appeal granted – Applicant resentenced to total effective sentence of 2 years and 1 month’s imprisonment with non‑parole period of 15 months – Applicant disqualified from driving motor vehicle on Victorian roads for 9 years – R v Bernath [1997] 1 VR 271; King v The Queen (2012) 245 CLR 588; DPP v Neethling (2009) 22 VR 466; Stephens v The Queen (2016) 50 VR 740; R v Verdins (2007) 16 VR 269.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Emma Turnbull Lawyers |
| For the Respondent | Mr P Bourke | Mr J Cain, Solicitor for Public Prosecutions |
ASHLEY JA:
OSBORN JA:
On 18 February 2019 in the County Court at Geelong the applicant pleaded guilty to one charge of dangerous driving causing serious injury and one charge of driving with an illicit drug present in his blood. Subsequently he pleaded guilty to one charge of failing to appear on bail. On 6 March 2019 her Honour Judge Wilmoth sentenced the applicant[1] as follows:
[1]DPP v Bausch (Unreported, County Court of Victoria, Judge Wilmoth, 6 March 2019) (‘Reasons’).
| Charge | Offence | Maximum Penalty | Sentence | Cumulation |
| Indictment No: G11007637.1 | ||||
| 1 | Dangerous driving causing serious injury | 5 years | 3 years | Base |
| Summary charges | ||||
| 1 | Failing to answer bail | 2 years | 3 months | |
| 6 | Failing a drug blood test | 60 penalty units | $800 fine | |
| Total Effective Sentence | 3 years | |||
| Non-Parole Period Fixed | 2 years | |||
| Pre-Sentence Detention | 110 days | |||
| 6AAA statement | 4 years, with a non-parole period of 3 years | |||
| Other Orders | Licences cancelled, disqualified from driving for 5 years from 6 March 2019; forensic sample order | |||
The applicant now seeks leave to appeal against the sentence imposed with respect to the first charge on two grounds:
Ground 1: The sentencing judge erred by:
(a)Concluding that the applicant knew of the presence of drugs in his body when he committed the offence of dangerous driving causing serious injury; and
(b)Having regard to that conclusion when assessing the applicant’s culpability in relation to that offence.
Ground 2:The sentence imposed on the charge of dangerous driving causing serious injury (3 years) was manifestly excessive.
On the afternoon of 26 March 2016 the applicant drove a Holden Caprice from Lara to Bannockburn. He had an adult passenger in the front seat alongside him and a child passenger in the rear of his car. The route he took brought him in a south westerly direction down a side road known as Clyde Hill Road to an intersection with the Midland Highway.
As he travelled towards the intersection he overtook another vehicle, but then slowed down. Evidence subsequently obtained from the airbag control module within the applicant’s car showed that as he approached the intersection the applicant slowed to 18 kilometres per hour but then accelerated into the intersection reaching a speed of 41 kilometres per hour.
In so doing he failed to comply with a Give Way sign. The front of the applicant’s vehicle struck the driver’s side of a Holden Commodore driven by Ms Amanda Davies and did so with significant force causing both vehicles to spin and come to rest facing in different directions to those in which they had been travelling prior to the collision.
Ms Davies was 31 weeks pregnant and as a result of the collision suffered very serious injuries. She had two child passengers in the rear section of her car who were uninjured but were confronted with the injury to their mother. Ms Davies was airlifted from the scene of the collision to the Royal Melbourne Hospital and placed in an induced coma. Her injuries included a broken pelvis, fractured ribs, spinal fractures and lacerations to her liver, lungs and spleen. Tragically, she lost her unborn child who was stillborn following an emergency caesarean section.
Police arrived a short time after the collision and spoke to the applicant. When asked what had happened the applicant said he had not seen Ms Davies’ vehicle. The movements of his vehicle which we have described above, are consistent with this admission. In particular, the fact that the applicant slowed his car to a low speed before entering the intersection. This is thus a case of disastrous misjudgement at an intersection rather than one of protracted dangerous driving.
Preliminary testing indicated the presence of an illicit drug in the applicant’s system. He was arrested and taken to Geelong Hospital where a blood sample was obtained. Analysis of the sample demonstrated the presence of methylamphetamine (0.23mg/L), buprenorphine (4ng/L), norbuprenorphine (3ng/L), diazepam (0.24mg/L), nordiazepam (0.62mg/L) and oxazepam (0.11mg/L).
On 29 October 2018 the applicant failed to answer his bail and appear before the County Court. He was arrested on 16 November 2018 and in the course of that arrest suffered bites from a police dog to his left forearm which caused injury subsequently requiring plastic surgery to repair the skin.
The applicant was 58 years’ old when he came before the County Court on a plea hearing on 18 February 2019. He had an extensive criminal history commencing when he was a teenager and extending over some thirty years with convictions for dishonesty, driving offences, violence, conflict with police and in the 1990s some drug matters. In consequence a considerable part of his adult life has been spent in jail.
His prior convictions for driving offences included most recently two imposed in respect of separate instances of driving in a manner dangerous which were considered in the County Court at Bendigo on 4 February 2009 on appeal from the Geelong Magistrates’ Court and in respect of both of which he received a custodial sentence. He had also received traffic infringement notices in 2004, 2006 and 2011 for exceeding the speed limit by 25 kilometres per hour but less than 30 kilometres per hour.
On the plea three matters were emphasised on his behalf:
(a) that after spending a substantial part of his adult life either in custody or in recurrent criminal activity he had turned his life around on release from prison in 2010 and focused upon caring for his younger children,[2] successfully avoiding offending for a period of some seven years. This submission was supported by detailed evidence;
(b) that he suffered from an acquired brain injury which diminished his culpability, made him a poor vehicle for general deterrence and meant that imprisonment would be unusually onerous; and
(c) that it could not be concluded that he knew he was affected by illegal drugs at the time of the collision.
[2]Aged 20, 15 and 14 at the date of sentence.
Central to the defence case was the opinion of Dr Matthew Treeby, a clinical neuropsychologist who was called to give oral evidence on the plea to support and elaborate a written report. Dr Treeby’s report described the applicant’s personal history including a deprived and very difficult childhood, and the suffering of head injuries due to car accidents, the first when he was 12 years’ old and the second in about 1990. Dr Treeby also recorded that the applicant had been on opioid substitution therapy (buprenorphine) for the previous 17 years and had used Serepax (Oxazepam) on most nights for some seven years in order to deal with sleep difficulties and anxiety. He also had a history of benzodiazepine use.
After clinical testing Dr Treeby expressed a detailed opinion:
Mr Bausch’s premorbid intellectual ability was estimated to fall in the Low Average range. On neuropsychological assessment, Mr Bausch performed in the Borderline range on an overall measure of his intellectual function (FSIQ = 73, 4th percentile). His verbal comprehension skills were limited (Borderline, 4th percentile) and he has a Grade 4 primary school level of literacy (1st percentile). His perceptual reasoning skills were within normal limits (Low Average, 21st percentile). However, there was clear evidence of difficulties with attention to visual detail. His working memory function and basic information processing speed were both impaired (Borderline, 3rd and 4th percentiles, respectively). His verbal memory function was intact (Low Average). In contrast, his ability to learn and recall visual information was impaired (Borderline). There was clear evidence of executive dysfunction on assessment. His verbal and visual abstract reasoning skills and semantic verbal fluency were all impaired (Borderline). There was evidence of severe difficulties with divided attention and cognitive flexibility (Extremely Low). He had difficulties with adhering to rules on some tests and had poor behavioural inhibition.
This assessment confirms that Mr Bausch has an acquired brain injury (ABI) which can be attributed to past head-related trauma and substance misuse. He meets formal DSM V criteria for a diagnosis of Mild Neurocognitive Disorder Due to Traumatic Brain Injury and Substance/Medication Use. He has particular difficulties with learning and remembering visual information he sees (Borderline) and suffers from slowed information processing speed (Borderline). He has additional impairments in working memory function, semantic verbal fluency, and verbal and visual problem solving (Borderline). He struggles with understanding abstract concepts and has a poor ability to engage in consequential thinking. There was also evidence of an impulse control disorder on assessment. Indeed, he had difficulties with adhering to rules on some tests and he commenced tasks impulsively and without adequate forethought or planning.
Mr Bausch said in interview that he failed to see Ms Davies’ car prior to the collision and this is plausible given his neuropsychological test results. More specifically, he experiences a range of cognitive impairments including poor attention to visual detail, poor impulse control, reduced information processing speed, and severely impaired divided attention which together, may have adversely impacted his decision making and ability to drive a vehicle safely at the time of the accident. I also note blood test results following the accident revealed that he had methylamphetamine (0.23mg/L), Buprenorphine (4ng/L), Noruprenorphine (3ng/L) Diazepam (0.24mg/L), Nordiazepam (0.62mg/L), and Oxazepam (0.11mg/L) in his bloodstream. It is possible that these substances may have caused additional acute cognitive impairment while he was driving and at the time of the collision.
Mr Bausch has significant cognitive limitations and my impression is that his acquired brain injury adversely impacts his judgement, impulse control, decision making, and ability to control and manage his emotions and behaviour more broadly. These impairments would have been evident at the time of his offending and he will continue to experience these going forward. It follows that he would benefit from referral to a service which specialises in ABI rehabilitation such as … . He would be eligible for services under the National Disability Insurance Scheme due to his acquired brain injury and would benefit from case management support.[3]
[3]Emphasis added.
Dr Treeby also recorded a history of ongoing anxiety and remorse since the collision. In turn he expressed the opinion that the combination of the applicant’s mental difficulties would render imprisonment more burdensome for him than the average person.
In oral evidence Dr Treeby confirmed that as a result of acquired brain injury the applicant experiences a range of cognitive impairments, including poor attention to visual detail, difficulties with impulse control, reduced information processing speed and severely impaired divided attention. In his opinion, the applicant would have been affected by these deficits at the time of the collision. He also agreed that the applicant had reduced insight into his limitations because of his underlying condition.
Dr Treeby’s opinion is generally supported by a written report from Mr Gary McMullen who first saw the applicant as a treating psychologist. In his view the applicant satisfies the criteria for Mild Neurocognitive Disorder due to traumatic brain injury (with behavioural disturbance) due to a head injury sustained as a 12 year old and exacerbated by further head injury in or around 1990 and possibly by substance misuse.
On the other hand, the prosecutor emphasised amongst other things the consequences which the applicant’s offending had had for the occupants of Ms Davies car. The sentencing judge acknowledged those consequences in the following terms:
Ms Davies read to the court her victim impact statement in which she described the terrible consequences of the collision, in particular, the loss of her baby. The immediate experience of the collision was highly traumatic for Ms Davies and for her two children aged 8 and 10 who were in the rear of the car and were thankfully unhurt.
Ms Davies was conscious and aware of the fact that she was badly hurt and feared that her baby had not survived, but had to remain calm for the sake of the children. Her physical recovery took a long time, with 18 months of rehabilitation. She has returned to work as a leading chef at a boarding school, a job which she loves, but described as physically demanding, and she is constantly in pain, but tries not to think about it.
She considers her personality to have changed from an outgoing person to someone who is stressed and detached emotionally, suffering anxiety and depression because of the ongoing grief. She is concerned for her children, who also still grieve and suffer trauma at a young age. Ms Davies acknowledges that she has strong support from her family and doctors and is encouraged by her motivation to tell her story in the hope that one day the law might be changed to recognise an unborn child as a person. She quoted the fact that Shiloh was issued with a birth certificate and her death was counted in Victoria's road toll statistics.
Kevin Davies, the father of Ms Davies and the grandfather of Shiloh, also provided a victim impact statement. With great eloquence and care, he described the very sad experiences of having to identify Shiloh's body, to be present when his daughter was told she had died, and to attend the funeral.[4]
[4]Reasons [9]–[12].
In her sentencing remarks her Honour Judge Wilmoth summarised the evidence relating to the happening of the collision and the trauma suffered by Ms Davies and her family.
She then observed:
The gravity of your offending was indeed high because of the manner of your driving, your knowledge of the presence of drugs in your body and the tragic consequences. Subsequent drug-testing of you disclosed the presence of several drugs, including methyl amphetamine, and several prescribed drugs, belonging to the benzodiazepine group of sedative drugs. There has not been any specialist toxicological evidence presented as to the conclusions which can be drawn from the level of the drugs found in your body, save to say that, according to Dr Shriver, the forensic physician who provided the report, the presence of these drugs in your blood would have been expected to impair your driving skills.[5]
[5]Reasons [13] (emphasis added).
It is her Honour’s observations concerning the role of drugs in the gravity of the offending that form the initial basis of proposed ground 1 of appeal.
Her Honour went on to summarise the evidence of Dr Treeby and stated:
Failure to see Ms Davies’ car can be attributed to your cognitive impairments even without the influence of drugs because of your defective judgment, impulse control and decision making. Indeed, Dr Treeby commented in his evidence that his advice would be that you not drive a car.
The evidence indicates that drugs may have played a part in your impairment but it is not possible to determine that exactly and so I cannot make a finding that they did. There was no evidence as to when you had consumed methylamphetamine and that information would have helped determine at the time of the collision, the likely effect upon you, subject to the opinion of a duly qualified expert forensic specialist.
While I can place some limited weight upon your decision to drive, knowing you had taken methyl amphetamine, and also prescription drugs in the hours before you drove, I cannot make a finding as to the role played by the drugs. Even without the factor of the presence of drugs, your culpability starts at a high level because of your serious inadvertence.[6]
[6]Reasons [20]–[22] (emphasis added).
Her Honour then addressed the issue of general deterrence and concluded that the evidence as to acquired brain injury justified a slight reduction in the need for the sentence to reflect the consideration of general deterrence but did not justify a reduction with respect to specific deterrence.
She then outlined the applicant’s personal history in some detail, including the positive change in the applicant’s behaviour since his release from prison in 2010 and his efforts to care for his children.
Her Honour acknowledged that the evidence supported the conclusion that the applicant had expressed genuine remorse for his offending and concluded that the applicant had some prospects for rehabilitation as long as he did not drive again.
In stating the sentence to be imposed her Honour specifically recorded:
I have been asked to make a finding under section 89(c) of the Sentencing Act 1991, that you committed the offence while under the influence of a drug, but I decline to do so, given the state of the evidence in that regard.[7]
[7]Reasons [22].
Ground 1
It must be accepted that the statements by the sentencing judge that the gravity of the offending was high in part because of the applicant’s knowledge of the presence of drugs in his body do not sit comfortably with the balance of her Honour’s reasons as a whole.
As her Honour made clear it could not be concluded beyond reasonable doubt that the drugs identified following the blood test had played a causal role in the offending. The evidence of Dr Shriver[8] and Dr Treeby made clear, it is possible that they did contribute to the happening of the collision, but the evidence went no higher than that. In these circumstances the question arises as to whether it was open to her Honour to conclude (in the passage quoted above at [22]) that she could place some limited weight upon the applicant’s decision to drive knowing that he had taken methylamphetamine and also prescription drugs in the hours before he drove.
[8]A forensic physician whose report was also before the Court.
The evidence may be summarised as follows:
(d) the applicant was guilty of the discrete offence of driving with an illicit drug within his bloodstream (and fell to be separately punished for this fact);
(e) the evidence did not show beyond reasonable doubt whether that drug or the prescription drugs he used adversely affected his capacity to drive at the time of the collision;
(f) there was no evidence as to when the applicant consumed methylamphetamine.[9] Nor was there evidence as to when he consumed diazepam and nordiazepam;
(g) there was evidence that he had consumed prescription drugs in the hours before he drove.[10] In his record of interview the applicant admitted that he used the prescription drug Suboxone (10 mg) (buprenorphine) and Naproxen (an anti-inflammatory drug) but denied that he used other drugs. He also told both Dr Treeby and Mr McMullen that he used Serepax (oxazepam). There was no toxicology evidence enabling an inference to be drawn as to when the further drugs shown on blood analysis were consumed.
(h) The evidence did not show that the applicant knew or should have known that he was in fact affected by drugs at the time of the collision.
[9]Reasons [21].
[10]Reasons [22].
The judge concluded that she could place some limited weight upon the fact that the applicant knew he had taken methylamphetamine at some time prior to the collision and knew that he had taken prescription drugs in the hours before he drove. This conclusion was flawed. Once her Honour concluded that she could not establish when the applicant took methylamphetamine, it could not be concluded he was aware of having taken it at any time proximate to driving. Likewise, there was no satisfactory evidence as to when the benzodiazepines were consumed.
More fundamentally, the taking of the drugs identified by the blood analysis either individually or together could not be regarded as logically bearing on the gravity of the offending by way of dangerous driving unless some causal connection could be positively established to that offending.[11] In the absence of such connection the drugs could not be said to aggravate the conduct which caused the serious injury.
[11]R v Bernath [1997] 1 VR 271; Humphries v The Queen [2010] VSCA 161; Wright v The Queen [2015] VSCA 333.
Counsel for the respondent submitted to us that the sentencing judge must be taken to have regarded the presence of drugs in the applicant’s bloodstream as an indicator of general disregard for his responsibilities as a driver. There are three problems with this proposition. First, the applicant fell to be discretely punished for the presence of illicit drugs in his blood by way of a separate offence. Secondly, in the absence of evidence as to when the illicit drugs were consumed and/or their probable effect it cannot be concluded beyond reasonable doubt that the applicant disregarded a probable risk. Thirdly, such disregard could not on the evidence be causally linked to the offending.
Accordingly, leave to appeal on ground 1 should be granted and this Court must consider whether it would impose a different sentence from that imposed by her Honour.
We have reached this conclusion with some reluctance because it may be doubted the finding in issue played a significant role in her Honour’s ultimate instinctive synthesis. Immediately after the critical statements to which we have referred, her Honour observed:
Even without the factor of the presence of drugs, your culpability starts at a high level because of your serious inadvertence.
Nonetheless, the judge’s reasons make clear that she did give some, albeit limited, weight to an aggravating factor which was not open on the evidence.
Should this Court impose a different sentence?
By his plea, the applicant has admitted that he drove his motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case and that by so doing he caused serious injury.[12] The essence of the offence is objective.[13] Nonetheless, for sentencing purposes regard must be had to the culpability of the offender.[14]
[12]Crimes Act 1958 s 319(1A).
[13]King v The Queen (2012) 245 CLR 588.
[14]DPP v Neethling (2009) 22 VR 466, 474–6 [37]–[50] (Maxwell P, Vincent JA and Hargrave AJA); Stephens v The Queen (2016) 50 VR 740, 747 [26] (Redlich, Santamaria and Beach JJA).
In the present case, the applicant’s culpability and the seriousness of the offending were aggravated by the following matters:
·the high risk that entering the Midland Highway from a side road might occasion a serious collision if the Give Way sign was not observed;
·the fact that the applicant endangered the lives and safety of six individuals together with the child Ms Davies was carrying;
·the horrific injuries suffered by Ms Davies and their lasting consequences; and
·the applicant’s extensive record of driving offences including prior convictions for dangerous driving.
Taken together, these matters raise significant issues of just punishment, general deterrence and specific deterrence. General deterrence constitutes a fundamental public policy imperative with respect to offences of this type. The need for such deterrence is informed by the very serious harm which is occasioned to innocent victims and the community as a whole by offending of this kind. Whilst it should be accepted that the applicant’s acquired brain injury renders him a less than ideal vehicle for general deterrence, nonetheless it remains an important consideration. Likewise, the applicant’s driving record is such that it raises issues of protection of the community,[15] and specific deterrence requires that he receives a forceful message as to the consequences of his actions.
[15]It includes repeated offences of unlicensed driving in addition to the matters we have already noted.
On the other hand, the applicant was entitled to have a series of matters put in the balance in mitigation of sentence:
·his plea of guilty and his genuine remorse;
·the community interest in encouraging his further rehabilitation by enabling him to continue the pattern of family oriented behaviour he had maintained since 2010. Like the sentencing judge, we accept that, provided he does not drive again, the applicant has some real prospects of rehabilitation;
·the role that the applicant’s acquired brain injury played in his offending. The sentence must proceed on the basis that the applicant was responsible for his actions, but, like the sentencing judge, we accept that the evidence of Dr Treeby established that the cognitive deficits resulting from the acquired brain injury would have affected the applicant at the time of the collision, and that the failure to see Ms Davies’ car can be attributed in part to this factor. As the cross-examination of Dr Treeby made clear these were deficits from which the applicant had suffered for some time. Nonetheless, he had reduced mental insight into them and, in our view, they must be regarded as reducing his moral culpability for the collision to some extent;[16]
·the fact that the acquired brain injury and mental condition of the applicant rendered it probable that incarceration would be somewhat more burdensome for him than for a person in good health,[17] a factor conceded by the prosecutor at the plea hearing;
·the fact that the acquired brain injury reduced his suitability as a vehicle for general deterrence;[18]
·the delay which occurred between the offending and the applicant’s failure to appear in October 2018 (but not thereafter) occasioned the applicant continuing anxiety on the one hand and, on the other, tended to confirm the view that he had positive prospects of rehabilitation.
[16]The first factor identified in R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
[17]The fifth factor identified in Verdins.
[18]The third factor identified in Verdins.
Whilst the evidence showed that the applicant suffered significant deprivation and abuse in his childhood, we do not accept that he can also call this in aid of mitigation of sentence. He was at the date of offending a mature man in his 50s with substantial experience of the criminal justice system. His offending was constituted by serious inattention (with disastrous consequences), which cannot be linked back to his childhood experiences.
In all the circumstances, we would set aside the sentence of three years and substitute a sentence of two years’ imprisonment. We note in passing that on the appeal counsel for the respondent properly conceded that the sentence imposed was ‘very high’ in terms of current sentencing practice.
There is, however, a downside to the evidence concerning the applicant’s acquired brain injury. The evidence of Dr Treeby, which we have accepted, made abundantly clear both that the applicant’s substantial cognitive limitations will continue as he goes forward and that in consequence he should not be permitted to resume driving upon his release into the community.
Whilst Dr Treeby put forward the possibility the applicant would benefit from learning new coping skills, impulse control techniques and other strategies to compensate for his acquired brain injury and trauma-related cognitive, emotional and behavioural difficulties, we understand the thrust of his evidence to be that the applicant has significant long term problems. In oral evidence on the plea, Dr Treeby recommended that the applicant not hold a licence. Having regard to this evidence and the applicant’s criminal record, we propose to increase the period of his disqualification from driving a motor vehicle.
An offence under s 319 of the Crimes Act 1958 arising out of the driving of a motor vehicle (other than the operating of a vessel) is defined as a ‘serious motor vehicle offence’ within the meaning of s 87P of the Sentencing Act 1991 (‘Sentencing Act’) for the purposes of div 3 of that Act. At the date of sentencing the applicant held a Victorian driver’s licence.[19] By order made 6 March 2019, the sentencing judge cancelled all Victorian licences and/or permits held by the applicant and disqualified the applicant from obtaining any such licence or permit for a period of five years. We will confirm the cancellation and vary the disqualification under s 89(1)(a) of the Sentencing Act to order that the applicant is disqualified from obtaining a Victorian’s driver’s licence or permit for a period of 9 years from today.
[19]The Reasons erroneously state at [2] that the applicant [holds] a full South Australian driver’s licence, however this Court is advised that the applicant held a Victorian licence at the date of sentencing, having obtained a Victorian driver’s licence and surrendered his South Australian driver’s licence after the offending but prior to the plea.
The Court must also consider the question of the appropriate total effective sentence. The failure of the applicant to answer bail in October 2018 at a point in time when Ms Davies and her family expected the matter to be resolved, must have caused Ms Davies and her family significant distress. The offence was also aggravated by the fact that the applicant had prior convictions for failure to answer his bail and a series of other convictions demonstrating ongoing contempt for the law.
In our view, whilst the penalty of three months’ imprisonment was appropriate, some cumulation of such penalty was necessary, if only for reasons of specific deterrence. We have reached this view despite the incidental injury which the applicant suffered upon his subsequent arrest and the report from the applicant’s general practitioner which states that the applicant failed to appear because of anxiety. Once again, on the appeal, counsel for the applicant conceded that some cumulation was open.
In all the circumstances, we would direct that one month of the three month penalty relating to the failure to answer bail be served cumulatively upon the sentence for dangerous driving causing serious injury. Ground 1 having been upheld it is unnecessary to consider the question of manifest excess.
Accordingly, leave to appeal will be granted, the appeal will be allowed, the sentence with respect to dangerous driving causing serious injury will be set aside and a sentence of two years’ imprisonment will be substituted. The sentence for breach of bail is confirmed and a total effective sentence of two years and one month’s imprisonment will also be substituted. A non-parole period of 15 months will further be substituted. The cancellation of all Victorian driver’s licences and/or permits will be confirmed. The period of disqualification will be varied. The applicant will be disqualified from obtaining a Victorian driver’s licence or permit for a period of 9 years from today. The further order made in the County Court with respect to a forensic sample will be confirmed. It will be declared that the applicant has served 340 days by way of pre‑sentence detention excluding this day and directed that this declaration be entered into the records of the Court.
But for the applicant’s pleas of guilty, we would have sentenced him to a total effective sentence of three years and one month’s imprisonment with a non-parole period of two years.
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