On 9 June 2010, accused drove his vehicle in a southerly direction along the Calder Highway, having some hours earlier consumed a six pack of full strength beer on an empty stomach. At the time, he was aware that he was under the influence of alcohol, and did not have a driver’s licence. Accused was driving at an estimated speed of 130 to 140 kilometres per hour, in speed zones of 80 and 100 kilometres per hour. The victims were driving their vehicle northbound on the Calder Highway.
Seeing the accused on the incorrect side of the road, driver-victim slowed her vehicle and moved onto the shoulder of the road in an attempt to avoid a collision. Unfortunately, the accused’s vehicle collided with the victims’ vehicle. She fractured her right femur and her right ear was almost severed. At the time of incident, she was around 17 weeks pregnant and later gave birth to a stillborn child. Another victim sustained a sore ear, bruising to his chest and a laceration to his right shin. Accused suffered a serious injury to his right foot. Analysis of a blood sample taken from the applicant returned a blood alcohol concentration level of 0.28%. Traces of cannabis were also detected.
He was convicted of two counts of dangerous driving causing serious injury, one count of exceeding the prescribed concentration of alcohol, and summary charges of driving with illicit substance present in blood, unlicensed driving and using a vehicle not in a safe and roadworthy condition. He was sentenced to a total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years and six months. In addition, he was disqualified from obtaining any Victorian licence and/or permit for a period of 6 years from the date of sentence.
Accused appealed stating primarily the court’s error in imposing a sentence of imprisonment for the offence of driving with an illicit substance present in blood when the maximum penalty was a fine.The issue is whether the penalty of imprisonment for the summary offence of driving with an illicit substance in blood is appropriate. The Crown noted the error and that the maximum penalty for this offence is 12 penalty units. Hence, he was resentenced to a fine of $500 for this offence.
Source: Gangur v The Queen  VSCA 139 (27 June 2012)
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