WHAT do you do with a serial drink-driver with an acquired brain injury who killed a great-grandmother as she slept when the car he was driving while unlicensed ploughed through the wall of her retirement village bedroom?
That is the dilemma faced by Supreme Court judge Paul Coghlan as he continues to grapple with whether John Stein should face a custodial sentence for killing 92-year-old Helen Higginbotham.
Stein's Toyota Camry sedan crashed through Mrs Higginbotham's bedroom wall at the Lexington Gardens retirement village in Springvale where he also lived just after 4am on May 12, 2011.
She was asleep in bed when his car landed on top of her, killing her instantly.
Stein, whose brain injury dates from a serious car crash in 1968, had a blood-alcohol reading more than three times the legal limit at 0.174, having spent several hours drinking at the Springvale RSL.
His car had been fitted with an interlock device, but because it had been voluntarily fitted, he had a pin-code that enabled him to circumvent the device.
Justice Coghlan said Stein was liable for a 10-year supervision order, but he needed more information before he decided whether that should be served in custody or not.
He told the court he had to strike a balance between Stein's autonomy and the safety of the community, adding that a supervision order committing a person to custody in a prison could not be made unless he was satisfied there were "no practicable alternatives".
The judge stated he was conscious of how long the process was taking, which he acknowledged was difficult for Mrs Higginbotham's family, but added: "I just think I need to get it right".
Brian Higginbotham wept as he read out an emotional victim impact statement to the court.
He described his mother as a very independent person who loved knitting, crocheting, playing cards, attending elderly citizen's meetings and going to her favourite hairdresser.
She also loved gardening and had moved from an upstairs room to the room in which she died so she could be close to the garden. She had even asked him to turn her bed around so she could lie in bed and look at the plants, he said.
Mr Higginbotham told Justice Coghlan he struggled to understand how Stein's disability could be used in his defence, yet his prior drink driving offences could not be presented to the jury as evidence.
Justice Coghlan extended Stein's bail while a further report is obtained by the Department of Human Services about custodial options. The matter will return to court on October 15.