A preliminary breath test revealed a blood alcohol concentration of 0.234 per cent
On 24 December 2008, accused and his girlfriend had drunk four bottles of wine and had taken LSD. They decided to buy more LSD. They got into the girlfriend’s unregistered car and the accused drove along Beach Road in Mentone. The area has a 60 km/h speed limit. Two cyclists were riding in the same direction as the accused. The accused struck them at a minimum speed of 77 km/h. The impact caused one cyclist to be thrown 51 metres and another to be thrown 68 metres. When questioned by the police, accused said he did not see the cyclists.
A preliminary breath test revealed a blood alcohol concentration of 0.234 per cent. Both cyclists suffered traumatic head injuries, and underwent surgery. The first cyclist was removed from life support upon medical advice while the other had post-traumatic amnesia for 70 days. His right calf, right knee and left shoulder required specialised treatment. It is unlikely that he could return to work, and that some of his physical and cognitive deficits will be permanent.
The accused pleaded guilty for all offences and was sentenced to 10 years’ imprisonment on culpable driving causing the death of one victim; and 5 years’ imprisonment on negligently causing serious injury to the second victim (3 years of which is to be served cumulatively after the first 10 years), resulting in a total effective sentence of 13 years. A non-parole period of 10 years was fixed.
The issue is whether the particular sentences or the total effective sentence are manifestly excessive.
The court accepted the accused’s argument. It took note of the accused’s pleas of guilty at the earliest opportunity and stated that this entitled the accused to a reduction in sentence. His remorse evidenced by letters from the accused tendered on the plea and that the remorse was genuine. Accused’s history of drug and alcohol abuse, that he was introduced to alcohol at an early age of 16 and was on a lot of detox programs. There was also a reasonable doubt on the exact speed of the accused car and the probability that the car increased speed only after the impact.
Re-sentence was ordered by the Court of Appeals to a total effective sentence of 10 years’ imprisonment (10 years to 8 years and 5 years to 4 years) and eliminating the sentence for exceeding prescribed limit for blood alcohol concentration, for being double punishment. Non-parole period was decreased to 7 years.
Source: Shields v The Queen  VSCA 386 (25 November 2011)
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