King v The Queen [2011] VSCA 69 is an appeal of conviction and sentence for culpable driving. The conviction was upheld but the sentence was moderated to take into account strong mitigating factors.

The appeal on conviction questioned the appropriateness of certain jury directions. The Court examined them in light of the previous decisions of R v De Montero [2009] VSCA 255 and Guthridge v The Queen [2010] VSCA 132 (each of these links will take you to the previous posts where the cases were considered, as well as the cases themselves). Although the trial directions were found wanting, the conviction itself was upheld.

On sentence it was contended that the sentencing judge erred by finding that the evidence of prosecution witnesses established the level of cannabis found in the applicant’s blood indicated that the applicant’s driving skills were impaired significantly, and that he had a high reading.

Mandie JA [at 30]:

32 The judge said that she accepted the uncontradicted evidence of Dr Odell and Dr Wells. The judge relevantly summarised their evidence as follows. Dr Odell said that the reading of 13 nanograms per millilitre indicated recent usage of cannabis in the last couple of hours and, for reasons that he gave, he said that the level would have been considerably higher at the time of the collision. Dr Odell’s opinion was that there was no evidence from any scientific study that a person could reach a level as high as 13 from passive inhalation of cannabis smoke. Dr Wells in substance agreed with the foregoing. In addition, Dr Wells’ opinion was that there was overwhelming evidence that at the sort of level which was found in the applicant’s blood analysis the range of skills that were required for a safe driver would be impaired and he went on to describe in detail how the whole range of skills involved would be impaired.

The judgment doesn’t really explain how the appellant argued that the sentencing judge couldn’t reach these findings. Mandie JA [at 40] described them as, ‘well justified by the evidence’.

The appellant was re-sentenced to a reduced total effective sentence of six and a half years imprisonment with a non-parole period of three and a half years.