The State of Western Australia v Berry
[2016] WASCA 113
•7 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BERRY [2016] WASCA 113
CORAM: McLURE P
NEWNES JA
MAZZA JA
HEARD: 3 MAY 2016
DELIVERED : 7 JULY 2016
FILE NO/S: CACR 184 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
ALAN KEVIN BERRY
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCHOOMBEE DCJ
File No :GER IND 46 of 2015
Catchwords:
Criminal law - State appeal against sentence - Three counts of dangerous driving occasioning grievous bodily harm while under the influence of alcohol - One count of dangerous driving occasioning bodily harm while under the influence of alcohol - Road Traffic Act 1974 (WA), s 59(1)(a), s 59A(1)(a) - Blood alcohol level of 0.168 - Speeding - Unlawfully overtaking vehicles - Lost control of vehicle and hit a tree - Four children in car injured - One child likely to be quadriplegic - Previous record of offending - Total effective sentence of 2 years' imprisonment and disqualified from holding or obtaining a driver's licence for 2 years
Legislation:
Road Traffic Act 1974 (WA), s 59(1)(a), s 59A(1)(a)
Result:
Appeal upheld
Respondent resentenced to total effective term of 4 years and 6 months' imprisonment;
Disqualified from holding or obtaining a driver's licence for 4 years
Eligible for parole
Category: B
Representation:
Counsel:
Appellant: Mr J McGrath SC
Respondent: Ms K J Farley SC
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
CMB v Attorney General (NSW) [2015] HCA 9; (2015) 317 ALR 308
Devine v The State of Western Australia [2010] WASCA 94
Drage v The State of Western Australia [2015] WASCA 145
Eves v The State of Western Australia [2008] WASCA 7
Libri v The State of Western Australia [2013] WASCA 113
Lutumba v The State of Western Australia [2013] WASCA 172
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Chapman [2012] WASCA 203
Timbrell v The State of Western Australia [No 2] [2013] WASCA 269
JUDGMENT OF THE COURT: This is a State appeal against sentence. The respondent was convicted on his pleas of guilty to three charges of dangerous driving occasioning grievous bodily harm while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, contrary to s 59(1)(a) of the Road Traffic Act 1974 (WA) (the Act); one charge of dangerous driving occasioning bodily harm while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, contrary to s 59A(1)(a) of the Act; and one charge of driving under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, contrary to s 63(1) of the Act.
The charges arose from an incident in which the respondent, who had a blood alcohol level more than three times the legal limit and was driving well in excess of the speed limit with his four children in the car, lost control of the car which collided with a tree. The respondent's four children were injured in the accident, one severely.
The respondent was sentenced to a total effective sentence of 2 years' imprisonment, and was disqualified from holding or obtaining a driver's licence for 2 years.
The State contends that each of the terms of imprisonment imposed in respect of the three charges of dangerous driving occasioning grievous bodily harm was so inadequate as to manifest error and that the total effective sentence of 2 years' imprisonment infringed the first limb of the totality principle. It also contends that each of the periods of disqualification from holding or obtaining a motor vehicle licence was manifestly inadequate.
For the following reasons, we would allow the appeal.
Background
On 4 December 2014, the respondent left his mother's home with his four children in the car after an argument with his brother. The respondent had been drinking heavily and was in an agitated state. His mother pleaded with him not to take the children in the car with him. He ignored her pleas and left the house at high speed. He drove along the North West Coastal Highway near Geraldton at a speed well above the limit of 70 km/h.
The part of the highway on which he was travelling consisted of one lane in each direction and between them a continuous non‑elevated painted traffic island which at various intervals became a turning lane for vehicles leaving the highway. It was about the width of the traffic lanes. The respondent unlawfully overtook cars ahead of him using the painted traffic island as a de‑facto overtaking lane. At the end of one of these overtaking manoeuvres, he lost control of the car. After swerving toward the left hand side of the road, the respondent turned sharply to the right to avoid hitting the curb, causing the vehicle to skid sideways across to the wrong side of the road. The vehicle left the road, mounted the curb and collided with a tree, the impact being in the area of the rear left wheel of the vehicle. One of the children was flung from the car on impact and landed on the edge of the road. The vehicle continued through a wire chain link fence before hitting a vehicle parked inside the fence.
All four of the respondent's children were injured as a result of the crash. One child, Jaiden, who was 7 years of age at the time of sentencing, suffered a spinal cord injury which has resulted in the loss of mobility in his legs and arms. He is likely to be permanently wheelchair bound. He is unable to stand unassisted or sit on the floor for any substantial period of time, and needs help to transfer from the wheelchair to a bed. He requires assistance with showering, dressing and feeding. He has impaired sensation in his lower body and is unable to control his bladder or bowel functions. It is uncertain to what extent, if any, his condition will improve but he is at risk of developing further medical complications over time. At the time of sentencing, Jaiden was at the Lady Lawley Cottage, a rehabilitation hospital.
Macklan, who was 4 years of age at the time of sentencing, received fractures to both upper arms and to his thoracic vertebrae. It is likely that he will have permanently reduced movement in his left shoulder and arm.
Dylan, who was 8 years of age at the time of sentencing, fractured a bone in his upper leg and spent some time in a wheelchair and then on crutches. He will require a further operation to remove the pin from his bone, but is expected to make a full recovery.
Ethan, who was 9 years of age at the time of sentencing, escaped with bruising and abrasions.
After the accident the respondent was aggressive towards people trying to assist him to get the children out of the car, pushing them away and swearing at them. At one point, the respondent fell over backwards while taking one of the children out of the car. He also behaved in an aggressive manner toward the attending police officer and initially refused to take a breath test.
A subsequent breath analysis established that at the time of the accident the respondent had a blood alcohol level of 0.168, more than three times the legal limit.
On 18 September 2015, in the District Court at Geraldton, the respondent pleaded guilty to three charges of dangerous driving occasioning grievous bodily harm while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. Those charges related to the injuries to Jaiden, Dylan and Macklan respectively.
On a notice under s 32 of the Sentencing Act 1995 (WA), the respondent also pleaded guilty to one charge of dangerous driving occasioning bodily harm while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle (in respect of the injuries to Ethan), and one charge of driving under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle.
The sentencing remarks
The sentencing judge noted that the respondent was 35 years of age. His father died when the respondent was 5 years old. The respondent had limited memories of his father but said that he had abused alcohol and was violent towards the respondent's mother. The respondent was raised by his mother with support from relatives. The respondent reported that he did not fit in at school. He started to play truant in year 11 and left school permanently midway through year 12, by which stage he was using cannabis. The sentencing judge noted that the respondent had continued to use cannabis on and off for 20 years and had used amphetamines from time to time.
After leaving school, the respondent worked in various labouring jobs before stopping work to look after his then partner who had developed mental health problems. After they separated, the respondent looked after their four children with assistance from his mother. The respondent also has a daughter from a relationship he had at about 18 years of age, but he has limited contact with her.
The primary judge noted that the respondent had been convicted in 2005 of dangerous driving and failing to stop after an accident, in 2009 of reckless driving, in 2010 of driving with a blood alcohol level in excess of 0.08, and again in 2010 of driving with a blood alcohol level in excess of 0.05. He also had a conviction for burglary in 1998 and one for possessing a weapon in 2004, as well as convictions for possession of cannabis and obstructing police.
There were before her Honour a psychiatric report, a psychological report and two pre‑sentence reports. In the psychiatric report, the respondent was described as having a severe alcohol use disorder, but the psychiatrist observed that the respondent minimised the need for help to deal with it. The psychiatrist also reported that the respondent had not developed sufficient skills to deal with negative emotions, and that he lacked self esteem. The psychiatrist considered that the respondent's offending was likely to continue unless he got assistance for his alcohol abuse. He recommended psychological assistance to enable the respondent to learn coping skills, and treatment for the respondent's alcohol abuse disorder, preferably in a residential rehabilitation facility.
The primary judge observed that the author of the psychological report had come to very much the same conclusions, reporting that the respondent had poor coping and emotional regulation skills, and that he was immature for his age. The psychologist considered there was a risk of the respondent reoffending because of his serious alcohol problem, poor coping skills and limited social supports. The primary judge also noted that the respondent had told the author of a pre sentence report that in the past he had driven while intoxicated with the children in the car.
The sentencing judge took into account that the respondent had pleaded guilty at the first reasonable opportunity and in view of that reduced the sentences she would otherwise have imposed by 25%. Her Honour also took into account that it would have been very traumatic for the respondent to realise that his conduct had caused such serious harm to his children and that he had suffered guilt and anguish as a result.
Her Honour observed that personal deterrence was an important factor as it was apparent from the psychiatric and the psychological reports that the respondent was likely to reoffend unless he took serious steps to deal with his drinking problem.
On the charges on the indictment, the respondent was sentenced as follows:
Count Particulars of each offence Maximum penalty Sentence imposed 1 Dangerous driving occasioning grievous bodily harm while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, in respect of the injuries to Jaiden 14 years' imprisonment 20 months' imprisonment (head sentence)
Disqualified from holding or obtaining a driver's licence for 2 years (concurrent)
2 Dangerous driving occasioning grievous bodily harm while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, in respect of the injuries to Dylan 14 years' imprisonment 15 months' imprisonment (concurrent)
Disqualified from holding or obtaining a driver's licence for 2 years (concurrent)
3 Dangerous driving occasioning grievous bodily harm while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, in respect of the injuries to Macklan 14 years' imprisonment 15 months' imprisonment (concurrent)
Disqualified from holding or obtaining a driver's licence for 2 years (concurrent)
The respondent was sentenced on the offences on the s 32 notice as follows:
Charge Particulars of each offence Maximum penalty Sentence imposed 1 Driving under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle A fine of 50 penalty units
(for a first offence)
$1,600 fine
Disqualified from holding or obtaining a driver's licence for 18 months (concurrent)
2 Dangerous driving occasioning bodily harm while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, in respect of the injuries to Ethan 10 years' imprisonment 4 months' imprisonment (cumulative)
Disqualified from holding or obtaining a driver's licence for 2 years (concurrent)
Her Honour made the sentences on count 1 on the indictment and the offence of dangerous driving occasioning bodily harm on the s 32 notice cumulative, and the sentences on counts 2 and 3 on the indictment concurrent with those sentences and each other. The total effective term was therefore 2 years' imprisonment. Her Honour also ordered that each of the periods of disqualification from holding or obtaining a driver's licence be concurrent so that the total effective period was 2 years.
The grounds of appeal
The grounds of appeal were, in substance, that:
1.Each of the sentences on counts 1, 2 and 3 on the indictment was manifestly inadequate (grounds 1 to 3);
2.The total effective sentence of 2 years' imprisonment infringed the first limb of the totality principle (ground 4);
3.The individual periods of disqualification from holding or obtaining a driver's licence were manifestly inadequate (ground 5).
The disposition of the appeal
Grounds 1 to 4
The first four grounds can conveniently be dealt with together. The relevant principles are well established and can be shortly stated.
In determining whether a sentence is manifestly inadequate, the sentence must be viewed in the light of the maximum sentence prescribed for the offence (in the case of dangerous driving occasioning grievous bodily harm while under the influence of alcohol, 14 years' imprisonment); the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
The first limb of the totality principle requires the sentencing judge to ensure that the total effective sentence is an appropriate and just measure of the overall criminality in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24]; Libri v The State of Western Australia [2013] WASCA 113 [46]. The appellant submitted that the total effective sentence of 2 years' imprisonment was so disproportionate to the overall offending as to manifest error.
It is important to observe that while for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought to, sentence: Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39] ‑ [40]. Caution must also be exercised in considering sentences imposed in other cases as inevitably there will be differences in the circumstances of the offences and the offender.
There is no tariff for cases of dangerous driving occasioning grievous bodily harm because of the great variation in the circumstances of the offending and offenders: Timbrell v The State of Western Australia [No 2] [2013] WASCA 269 [44]. Further, there are only a limited number of cases concerning offences involving grievous bodily harm under s 59(1) of the Act, whether under the 7 year maximum, or the 14 year maximum.
The appellant referred to four cases that, whilst quite different factually, it contended supported its submission that the individual sentences were manifestly inadequate and that the total effective sentence infringed the totality principle. The cases were Drage v The State of Western Australia [2015] WASCA 145; Libri; Lutumba v The State of Western Australia [2013] WASCA 172 and Devine v The State of Western Australia [2010] WASCA 94.
In Drage, the appellant knowingly showered three people with sand as he drove past them on a beach access road. After a verbal altercation, a member of the group who was obviously affected by alcohol tried to goad the appellant into driving at him. The appellant did so, and when it became apparent that he was going to hit him, one of the other members of the group threw a beer can at the appellant's windscreen, causing him to duck. He then collided with all three members of the group. Each of the victims was injured, but made a full recovery. Alcohol was not a factor, but the sentencing judge found that the appellant was driving at an excessive speed in the circumstances. The sentencing judge found that the appellant did not intend to cause injury, but that his driving exhibited 'a callous or reckless disregard for the safety and well being of other persons'. The appellant was convicted after a plea of guilty of one charge of dangerous driving occasioning grievous bodily harm for which he was sentenced to 1 year 9 months' imprisonment, and of two charges of dangerous driving occasioning bodily harm, for which he was sentenced to 3 months' imprisonment on each to be served concurrently, resulting in a total effective sentence of 2 years' imprisonment. He was disqualified from holding or obtaining a driver's licence for 3 years. An appeal against sentence was dismissed.
In Libri, the 18 year old appellant and three friends had left a party after being involved in an altercation. The appellant then found himself driving back past the house where the party was being held and observed a group of partygoers standing on the road and verge. He made no attempt to slow down as he approached them. His vehicle struck one of the partygoers, who was left with a serious and probably permanent disability. The appellant was not affected by alcohol. The appellant was found guilty after trial of dangerous driving occasioning grievous bodily harm, failing to stop after an accident, and failing to report an accident. He was sentenced to 3 years and 3 months' imprisonment for dangerous driving occasioning grievous bodily harm, and a total effective sentence for all of the offences of 4 years' imprisonment was imposed. The appellant's driver's licence was suspended for 4 years. On appeal, the total effective sentence was reduced to 3 years and 3 months.
In Lutumba, the appellant was a mature‑age learner driver who at the material time was not properly supervised and was not displaying 'L' plates. As he approached a right hand curve, the appellant crossed double white dividing lines onto the incorrect side of the road in order to overtake a truck which had reduced its speed in accordance with a 'reduce speed' sign. The appellant's vehicle collided head on with a car travelling in the opposite direction. Of the four passengers in the appellant's car, one received fatal injuries, one was seriously injured, and two received injuries amounting to bodily harm. The two occupants of the oncoming vehicle sustained extensive injuries. Alcohol was not involved. The appellant was convicted after a plea of guilty of nine charges, including one count of dangerous driving occasioning death, three counts of dangerous driving occasioning grievous bodily harm and two counts of dangerous driving occasioning bodily harm. He was sentenced to 5 years' imprisonment for the charge of dangerous driving occasioning death (reduced to 3½ years on appeal), 3½ years' imprisonment for each of the charges of dangerous driving occasioning grievous bodily harm, and 4 months' imprisonment for each of the charges of dangerous driving occasioning bodily harm. He was disqualified from holding or obtaining a driver's licence for 6 years. A total effective term of 6 years' imprisonment was imposed. On appeal, that was reduced to 4½ years' imprisonment.
In Devine, the appellant, who was 21 years of age, was driving on a dark country road with three passengers in the car. He said he wanted to see how fast his car would go and reached speeds of 210 ‑ 220 km/h. The speed limit was 110 km/h. He did not slow down when asked to by one of his passengers. He subsequently lost control of the car and collided with a power pole, causing fatal injuries to one of his passengers and serious injuries to another. At the time of the accident the appellant was travelling at a speed in excess of 170 km/h. The appellant was convicted after trial and was sentenced to 5½ years' imprisonment for dangerous driving occasioning death and 1½ years' imprisonment for dangerous driving occasioning grievous bodily harm, both in circumstances of aggravation in that the appellant was driving in excess of 45 km/h over the speed limit. The total effective sentence imposed of 7 years' imprisonment was reduced on appeal to 6 years.
We were not referred to any other cases by way of comparison and our own research has not revealed any more appropriate comparators. While the cases referred to provide limited assistance, they point toward the individual sentences and the total effective sentence being erroneously low.
What is significant in the present case is the very serious nature of the offending. The respondent was implored by his mother not to take the children with him in the car when he left her house in a highly intoxicated and agitated state. He must have known that he was in no condition to be driving a motor vehicle. The manner of his driving exposed not only the children but other road users to a high risk of serious injury or even death. He drove well above the speed limit, he had a blood alcohol level more than three times the legal limit, and he weaved in and out of traffic unlawfully using the painted traffic island as an overtaking lane.
His conduct had catastrophic consequences for Jaiden who, at 6 years of age, suffered injuries that in all likelihood will confine him to a wheelchair and to limited movement in his upper limbs for the rest of his life, with the real prospect of additional medical problems. And Macklan, at 4 years of age, suffered injuries that are likely to leave him with permanently reduced movement in his left shoulder and arm.
The respondent's conduct cannot be regarded as an out of character aberration. He had a previous conviction for reckless driving and one for dangerous driving, and convictions for driving with a blood alcohol level in excess of 0.08 and 0.05 respectively. He has admitted that he had previously driven with the children in the car while he was under the influence of alcohol. As the primary judge noted, the respondent knew he had a serious drinking problem and did nothing about it. Instead, he exposed his children and other road users to the obvious risks involved while he continued to drive under the influence of alcohol.
The psychiatric and psychological reports both state that there is a risk of the respondent reoffending unless he overcomes his serious alcohol problem. The prospects of the respondent doing so are not encouraging. In the psychiatric report it is observed that the respondent minimised the need for help to deal with his severe alcohol use disorder. His rather perfunctory attitude to the problem is illustrated by his post-accident conduct. In early 2015, after the accident, the respondent self‑referred to the Midwest Community Alcohol Drug Service but discontinued attendance after four counselling sessions. He told the psychiatrist that he had discontinued the counselling because it had not reduced his alcohol consumption.
There was little by way of mitigation beyond the early plea of guilty, for which the sentencing judge allowed the maximum deduction of 25%. Some allowance may also be made for the anguish and guilt that her Honour found the respondent had suffered from causing such serious harm to his children. But that allowance is limited in circumstances where the respondent knew he had a problem with alcohol but took no steps to overcome it and instead drove with the children in the car when he must have known he was not in a fit state to drive and was exposing them to serious and unnecessary danger.
The prospects of the respondent being in a position to care for the children in the future on a full time basis are problematic. The fact that the respondent had been the sole carer for his children and wished to resume that role appears to be a factor that weighed heavily with the sentencing judge. However, this was not a case where the degree of hardship to be suffered by the children was exceptional or would result in the children being deprived of proper care: see The State of Western Australia v Chapman [2012] WASCA 203 [119].
At the time of sentencing, Jaiden was being cared for at Lady Lawley Cottage, and the other children were being cared for by their paternal grandmother. In any event, as the sentencing judge recognised, the respondent had difficulty coping with the care of the children before the accident (ts 25 ‑ 26). Further, the respondent's offending conduct fell a long way short of his parental obligations, particularly given the children's vulnerability by reason of their young age. Finally, the respondent's unaddressed and unresolved problems with alcohol cast great doubt upon his ability to properly care for the children on a full time basis in the foreseeable future. Given his difficulties coping with the children before the accident, it is unlikely that he will be able to properly care for Jaiden if and when Jaiden is ready to leave his current accommodation, having regard to the child's severe permanent disability and special needs.
Senior counsel for the respondent submitted that the respondent was, at the time of the offence, a man in crisis and was not a proper vehicle for general deterrence, and that personal deterrence was not relevant because he would have to live with the consequences of what he had done for the rest of his life (appeal ts 7). While it may be accepted that at the time of the offences the respondent was a man in crisis, that does not mean that he was not a proper vehicle for general deterrence or that personal deterrence was of little weight. There is nothing about the respondent's circumstances or mental state that makes him an inappropriate vehicle for general deterrence. In relation to personal deterrence, the respondent's relevant prior convictions, his admission that he had previously driven in an intoxicated state with his children, and his inability to address his alcohol issues even after the commission of the offences, emphasise the need to deter the respondent himself.
Having taken into account all the relevant circumstances, we consider that the individual sentences on counts 1, 2 and 3 are manifestly inadequate. We would allow grounds 1, 2 and 3. We also consider that the total effective sentence was not an appropriate and just measure of the overall criminality involved in the offences viewed in their entirety having regard to all the relevant features of the case, including those referable to the respondent personally. The first limb of the totality principle has been infringed. We would allow ground 4.
Ground 5
The sentencing judge imposed in respect of each offence the minimum period of disqualification from holding or obtaining a driver's licence and made those periods concurrent so that the effective period of disqualification was 2 years. Her Honour did so as an incentive for the respondent to put his life in order so that after serving the term of imprisonment he would be able to meet the children's needs to be driven to school and their other activities.
In our view, in light of the respondent's history of driving offences, including two previous drink driving offences, and the serious circumstances of this offending, including the respondent's high blood alcohol level, the periods of disqualification on counts 1, 2 and 3 were manifestly inadequate. We would allow this ground of appeal.
Residual discretion
Counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. It is for the appellant to negate any reason why the residual discretion should be exercised: CMB v Attorney General (NSW) [2015] HCA 9; (2015) 317 ALR 308 [33] ‑ [34]. In our view, on the evidence there is no basis for invoking the residual discretion. Error has clearly been established and it is necessary for this court to intervene to preserve proper sentencing standards with respect to offences contrary to s 59(1)(a).
Conclusion
We would set aside the sentences imposed by the sentencing judge on counts 1, 2 and 3 on the indictment and the disqualification from holding or obtaining a driver's licence for a period of 2 years that her Honour imposed. The court has before it sufficient information to enable it to resentence the respondent and it is appropriate that it do so.
Resentencing
We would allow the discount of 25% that the sentencing judge allowed under s 9AA of the Sentencing Act. Having regard to the matters set out above, and bearing in mind the need to avoid double punishment (see Eves v The State of Western Australia [2008] WASCA 7), we would sentence the respondent as follows:
1.count 1 on the indictment - 3 years and 6 months' imprisonment and disqualified from holding or obtaining a driver's licence for a period of 4 years;
2.count 2 on the indictment - 2 years' imprisonment and disqualified from holding or obtaining a driver's licence for a period of 4 years;
3.count 3 on the indictment - 2 years' imprisonment and disqualified from holding or obtaining a driver's licence for a period of 4 years;
4.on the s 32 notice, on the charge of dangerous driving occasioning bodily harm - 4 months' imprisonment and disqualified from holding or obtaining a driver's licence for a period of 2 years;
5.on the s 32 notice, on the charge of driving under the influence of alcohol - a fine of $1,600 and disqualified from holding or obtaining a driver's licence for a period of 18 months.
We would order that the terms of imprisonment imposed on counts 2 and 3 on the indictment, and on the charge of dangerous driving occasioning bodily harm on the s 32 notice, are to be served concurrently with each other, but are to be served partly concurrently with the sentence on count 1. The sentence on count 1 is to commence one year after the commencement of the sentences on counts 2 and 3 and the s 32 notice. The total effective sentence would therefore be 4 years and 6 months' immediate imprisonment. The respondent would be eligible for parole.
We would order that the periods of disqualification from holding or obtaining a driver's licence on all counts on the indictment and the periods of disqualification on the s 32 notice offences be served concurrently. The total effective period of disqualification would therefore be 4 years.
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