Director of Public Prosecutions v Chau
[2022] VCC 2109
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00273
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAROL CHAU |
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JUDGE: | HER HONOUR KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 November 2022 | |
DATE OF SENTENCE: | 28 November 2022 | |
CASE MAY BE CITED AS: | DPP v Chau | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2109 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Dangerous driving causing death – s5(2H) Sentencing Act 1991 (Vic) – Plea of guilty – Worboyes – Remorse – Excellent prospects of rehabilitation – Low risk of re-offending – COVID-19 pandemic – Delay.
Legislation Cited: ss 5, 5(2H), 5(2HC), 5(2I), 6AAA, 8, s89(1)(a) Sentencing Act 1991 (Vic).
Cases Cited:Boulton v The Queen [2014] 46 VR 308; Buckley v The Queen [2022] VSCA 138; DPP v Lombardo [2022] VSCA 204; DPP v Neethling [2009] VSCA 116; DPP v Wells [2022] VCC 244; Farmer v The Queen [2020] VSCA 140; R v Jurisic [1998] NSWSC 423; R v Lu [2022] VSC 254; Spanjol v The Queen [2016] VSCA 317; Worboyes v The Queen [2021] VSCA 169.
Sentence: Community Corrections Order of two years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr B. Newton | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1Ms Chau, you have entered a plea of guilty to one charge of dangerous driving causing death, which carries a maximum penalty of ten years' imprisonment.
2The full circumstances of your offending were set out in the agreed prosecution opening of 30 August 2022, marked as Exhibit A on the plea.
Circumstances of the offending
3On Monday, 19 August 2019 at approximately 3.35 pm a collision occurred at Springvale South in Victoria in the north bound lanes of Westall Road at the intersection of Rowan Road.
The Collision Scene
4
In respect of the collision scene, Westall Road at the intersection of Rowan Road is a divided dual lane bitumen road which ran in a predominantly north-south direction. There was a grass and vegetated median strip separating the two north and south bound lanes. Westall Road had a posted speed limited of
80 kilometres per hour for both the north and south bound traffic.
5Rowan Road was a two lane bitumen road which ran in an east-west direction which terminated to the east of a T-intersection with Westall Road.
6East bound traffic on Rowan Road at the intersection of Westall Road was controlled by a give way sign applicable to traffic proceeding north on Westall or crossing through the centre median strip to travel south along Westall Road.
7
The south bound traffic on Westall Road to turn right into Rowan Road, there was a right turn lane commencing approximately 50 metres north of the intersection which then crossed through the centre median strip. There was a stop sign applicable to this traffic prior to crossing over the north bound lanes of
Westall Road.
Collision
8At approximately 2.00pm on the afternoon of the collision the victim, Theresa Ruta and her daughter Maria Vocale left their holiday house in Blairgowrie to travel home to Melbourne with Ms Vocale driving.
9They travelled along the Peninsula Link and onto the Dandenong Bypass which becomes Westall Road at the intersection of Springvale Road. It is believed they were travelling in the left of the two north bound lanes.
10
At approximately 3.10pm that afternoon, secondary victim and witness
Jo-Ann Smith left her home in Frankston and was also travelling north along Westall Road at the same time as Ms Vocale and Ms Ruta. She was travelling in the right-hand lane north along Westall Road.
11
Shortly, before the collision you Ms Chau left your place of employment in
Glen Waverley and were heading towards the Direct Factory Outlets in Moorabbin.
12After leaving Glen Waverley in your vehicle, a 2016 Mazda 3, you proceeded south on Westall Road. At approximately 3.35 pm you approached the intersection of Rowan Road.
13After approaching the intersection you moved into the right turn lane from the south bound lanes of Westall Road to turn into Rowan Road, you proceeded through the centre median strip and approached the stop sign erected, prior to crossing the north bound lanes of Westall Road. You then proceeded without stopping at the stop sign and drove into the path the victim and Ms Smith's vehicle in the north bound lanes of Westall Road.
14After entering the north bound lanes you first struct the vehicle driven by Ms Smith, before then being struck by the vehicle driven by Ms Vocale. Both impacts were to the passenger side of your vehicle. As a result of the impact both Ms Smith's and your vehicle exited the lanes of traffic in a north-west direction into the vegetation and trees on the west side of the road, where they both came to rest.
15Following the impact, the vehicle driven by Ms Vocale moved off in a north-west direction also where it impacted the side of an RACV van driven by Mr Trippi who had been stationary at the intersection when the collision occurred.
16
As a result of the injuries received in the collision, yourself, Ms Ruta and
Ms Vocale were all taken to hospital for treatment.
17Ms Ruta remained at the Alfred Hospital for several weeks after the collision. On 1 September 2019 she died as a result of these injuries.
Consequences of offending
18Ms Chau, the consequences of your driving on this day were grave. As a result of your inattention an innocent elderly woman Theresa Ruta lost her life. As this Court has previously stated:
The law and the courts have, and always will, recognise the sanctity and value of each human life. Causing another person’s death by…dangerous driving is inherently serious offending.[1]
[1] DPP v Wells [2022] VCC 244, [13].
19In sentencing you I am required to take into account a range of factors. The sentence I will impose is in no way a measure of the value of Ms Ruta’s life. Family members have attended Court hearings and I understand are here today, and I have no doubt that they have experienced a terrible loss and pain that is immeasurable.
20All of the material Mr Chau, that has been tendered on your behalf speaks powerfully of your remorse. Your friends, peers and family offer the following insights:
She suffers from the guilt that she had caused this accident.[2]
[2] Exhibit 4.
She felt great pain and suffered huge sorrow about the loss of the life of another person.[3]
[3] Ibid.
Every time when she mentions the car accident she is unable to stop crying.[4]
[4] Ibid.
I have heard Aunty Carol talk about her feeling of guilt and despair over this incident.[5]
[5] Exhibit 6.
She is a very religious person and harming someone, let alone being involved in an incident where someone has passed away devasted her.[6]
[6] Ibid.
Carol told me that she feels deeply sorry and sad for the family who has lost a beloved person.[7]
[7] Exhibit 5.
The death of the lady who was someone’s precious mother and grandmother and friend and relative, was a big hit to Carol, she was not quite able to cope with it and feels terrible.
21Your treating Psychologist Ms Winnie Lau states,
She is genuinely sorry for the death of the lady. Her heart goes out to the family.[8]
[8] Exhibit 7.
22Your husband, Andrew writes,
Not a day goes past where I do not think about the accident and the tragedy it brought the family of Ms Ruta. My heart goes out to Ms Ruta’s family and relatives and friends. My wife Carol and I fully understand the pain and suffering Ms Ruta’s family have gone through.[9]
[9] Exhibit 2.
23
During the plea hearing you also indicated that you wish to apologise to
Ms Ruta’s family. Through the combined efforts of your counsel, the prosecutor and the informant, along with the generosity shown by Ms Ruta’s family in being prepared to afford you this opportunity, you were able to apologise. In Court you stated,
Every time I think about the incident I feel pain and regret – I know it is hard to ask for your forgiveness but today I really wanted to apologise for what I have done – I feel very sorry for the loss of Ms Theresa. I feel very sorry for all your family – thank you.
24Ms Chau, I do accept that your remorse is profound and genuine.
Schedule 2 Regime
25Dangerous drive causing death is a Schedule 2 offence and it is best to address the relevant factors that I have to consider in this case within the framework of this legislative regime.
26As discussed most recently by the Court of Appeal in the case of Lombardo[10], the enquiry under s5(2H)(c) of the Sentencing Act 1991 (Vic) has two key steps.
[10] DPP v Lombardo [2022] VSCA 204.
27First the Court must identify whether there are substantial and compelling circumstances, meaning circumstances that are ‘weighty and forceful or powerful’[11]. The second critical step, if the circumstances are so, asks whether they were also ‘exceptional and rare’. This refers to circumstances ‘that area wholly outside the ordinary factors typical of the relevant offence and requires the judge to make an evaluative judgment’[12]. It is possible that a set of circumstances may engage the exception in combination, even where constituent circumstances are mainly or even wholly relatively common.
[11] Ibid, [66].
[12] Ibid, [71].
28In determining whether there are ‘substantial and compelling circumstances’, the following principles emerge from the cases and are clear from the legislative regime:
(a) First, general deterrence and denunciation of the offender's conduct must be regarded as more important than other sentencing purposes. The strength of these considerations is influenced by the nature and gravity of the offending.[13]
[13] Ibid, [85].
(b) Second, less weight is to be given to the offender's personal circumstances, then to the nature and gravity of the offence.[14]
[14] s5(2HC)(b) Sentencing Act 1991 (Vic).
(c) Third, regard must not be had to the matters in s5(2HC)(c), which include the offender's previous good character, (other than an absence of convictions), an early guilty plea and prospects of rehabilitation.
(d) Fourth, regard must be had to Parliament's intention that in sentencing an offender for a Category 2 offence, only an order for a custodial sentence ‘should ordinarily be made’[15].
[15] s5(2I)(a) Sentencing Act 1991 (Vic).
(e) Fifth, regard must be had as to whether the cumulative impact of the circumstances of the case will justify a departure from a custodial sentence. It is the cumulative effect of the relevant circumstances which is significant.[16]
[16] s5(2I)(b) Sentencing Act 1991 (Vic).
29The stringency of the threshold has been clearly stated in a number of recent cases.[17]
[17] See Buckley v The Queen [2022] VSCA 138; Farmer v The Queen [2020] VSCA 140.
30On your behalf, a number of factors were relied upon in support of a submission that there are substantial and compelling circumstances that are exceptional and rare. While there was not much dispute as to the substantive factors relied upon themselves, the prosecution did not accept that they were sufficient to make the requisite criteria as prescribed by s5(2H)(e), I have taken into account and considered the detailed submissions of both counsel and all of the material at both the indication hearing and plea hearing.
31Your counsel Mr Newton, relied upon a combination of factors as follows:
Gravity of the offending
32First, he relied upon the gravity of the offending. It should be noted that these submissions were not designed to attack or call into question the inherent seriousness of the offending, its tragic outcome in the loss of Ms Ruta’s life or the likely impact it has had on those who loved and cared for her. Rather, it involves an assessment of the gravity of the offending conduct which is both appropriate and necessary to consider in such cases.
33Your Counsel submits that your offending falls ‘well within the lower range of examples for this offence’. The objective seriousness of the offending and your moral culpability alone. When one looks at all the surrounding circumstances of the driving, this is a case of momentary inattention. There is nothing that elevates your blameworthiness such as speeding or a wilful assumption of known risks. You took the right-hand turning lane in order to perform a U-turn, your error was failing to keep a proper lookout over a brief moment in time. You came to the end of your right turning lane at which there was a stop sign and proceeded to enter the north bound right lane at Westall Road. Your speed was low when you commenced to enter the north bound lane.
34The prosecutor Ms Holmes accepts that your moral culpability is at the low end of the spectrum. There was nothing further alleged to have impacted or affected your judgment other than inattention. The amount of inattention was for a short period and places your moral culpability at the lower end. However, Ms Holmes submitted that it was more than momentary. You failed to stop at a stop sign and there was space or time for you to notice that you were required to give way.
35In terms of the objective gravity of your offending and your moral culpability, considering and weighing up all relevant matters and factors, I accept that it lies within the lower range of this offence.[18] Your driving was dangerous, in that you were required to stop at the sign and give way to ongoing traffic and you failed to do so. Looking at all of the circumstances of the offending I accept that your offending involves a very short period of inattention.[19] At the time you held a full Victorian driver's licence and there was nothing else about your driving or the circumstances that could account for what occurred.
[18] DPP v Neethling [2009] VSCA 116; R v Jurisic [1998] NSWSC 423.
[19] See R v Lu [2022] VSC 254, discussion at [40].
Potential multiple circumstances causing death
36
Next your Counsel relied upon potential multiple circumstances causing or contributing to Ms Ruta’s death. At the time of the collision, Ms Ruta was
93 years of age. As already noted she died in hospital two weeks after the collision on 1 September 2019. A post-mortem inspection report following her death concluded the cause of death as ‘complications of neck, chest and spine injuries sustained in the motor vehicle collision (passenger)’.
37Dr Glengarry provided a statement and was extensively cross-examined at an earlier committal hearing and I have considered the transcript of his evidence. On your behalf it was contended that there were other potential causative factors contributing to Ms Ruta’s death, including but not limited to: serious comorbidities conceded as significant by Dr Glengarry; the entirely reasonable possibility of bone fractures having been sustained in a fall at home two weeks prior to the subject collision; and the trauma caused by the fall in hospital on 27 August 2019. It was submitted that the existence of other causative factors ought lead to a significant reduction in penalty within the sound limits of the sentencing discretion.[20]
[20] See Spanjol v The Queen [2016] VSCA 317, [46].
38On behalf of the prosecution, Ms Holmes submitted that the prosecution expert when challenged, did not shift from the position that the injuries resulting from the collision are what caused death. However, she accepted that there were a multitude of other factors, such as age and intervening events that were at play. It was accepted that such considerations were relevant for sentencing purposes, in that they were capable of reflecting on the utilitarian value of the plea and could also go to mitigate punishment.
39In light of your plea of guilty I proceed on the basis that the cause of death was as a result of your dangerous driving. However, given the circumstances and the evidence I accept your Counsel's submission that there were other factors that may have also contributed, or been a material cause and I take this factor into consideration.[21]
[21] Ibid.
Plea of guilty
40Next, your plea of guilty and the value of it was relied upon as attracting a significant amelioration of sentence. Mr Newton developed his submission as follows,
(a) First, there were real issues to be tried in a prospective trial and you had available a viable defence. The prosecution were required to prove that your driving was dangerous in all the circumstances and that it was a significant and operative cause of Ms Ruta’s death. Given the circumstances, some of which I have already canvassed, it was submitted that this would be difficult to prove to the requisite standard.
(b) Second, it was agreed that any trial would have been lengthy, complex and resource intensive. It was anticipated that a trial would require the calling of many professional witnesses on the emergency and clinical treatment aspects as well as independent experts.
(c) Third, a plea should also attract a further palpable discount as per Worboyes[22] principles.
[22] Worboyes v The Queen [2021] VSCA 169.
41I accept these factors advanced on your behalf and take them into account in my assessment.
Delay
42
It was submitted that there has also been a significant delay in the case, that is no way attributable to you. In his submissions, Mr Newton provided an outline of the relevant chronology which indicates that on 13 May 2020, you were interviewed and on or about 2 December 2020, you were charged. Apparently, it wasn't until early 2020 that you became aware that Ms Ruta had died. Over time there had been ongoing discussions and attempts to resolve the case. A contested committal hearing proceeded in February 2022. Subsequent to that a case initiation hearing and then a sentence indication before me on
17 November 2022, which ultimately resolved the matter, with you entering a plea of guilty.
43Your offending occurred now over three years ago.
44As attested to, in the character references you have mentally struggled with the uncertainty and distress associated with this litigation and preparing for each stage of it.
45In her reference your daughter states,
Ever since my mother found out that somebody had died in the accident, she's never been able to forgive herself for what she's done and the event plays itself in her mind every day.[23]
[23] Exhibit 2.
46Your friend, Isabella, who you know through your church activities, states,
The last couple of years have been unpredictable. Whenever there's a hearing there'd be sleepless nights and tears. There's been indescribable pain with torture in the past 29 months.[24]
[24] Exhibit 4.
47In her report your treating Psychologist, Ms Lau describes you as being ‘highly stressed and depressed’. The references also speak of the continued contributions you have made since the offending.[25]
[25] Exhibit 7.
48I take the delay in your case into account. You have had the stress and uncertainty of the matter hanging over your head for a considerable time. You have also demonstrated that you continue to be a law-abiding and contributing member of the community.
Extra curial punishment
49On your behalf, Mr Newton also relied upon what he referred to as extra curial punishment. You were hospitalised for approximately four days as a result of the collision. Under ‘injury details’ at the Alfred Hospital trauma discharge summary, it outlines injuries which include eye abrasion, bruising, pain, three upper teeth missing.[26] I take this into account.
[26] Exhibit 8.
50There is also evidence that this incident has contributed to your poor mental health. You were originally referred back to your Psychologist, Ms Lau in the context of this matter, and ‘for mixed anxiety and depression’ and ‘multiple stressors’ mainly arising from the fatal collision on 19 August 2019. Ms Lau has opined that you meet the criteria for Major Depressive Disorder and you are currently medicated. It appears that this disorder and its symptoms are at least partly referrable to this incident. Whether or not these matters amount to extra curial punishment, I do regard your Major Depressive Disorder as relevant to an assessment of your circumstances and I take it into account.
Lack of prior criminal history
51Further, I take into account Ms Chau that you are nearly 60 years of age and you have no prior criminal convictions or findings of guilt or any subsequent matters.
Personal circumstances
52Your personal circumstances were also referred to and relied upon.
53You were born and grew up in Hong Kong and you were one of eight children. Both your parents are now deceased. Growing up your father worked as a chef and your mother worked within the home. You have an older sister who continues to reside in Hong Kong and with whom you have a very good relationship. She suffers from severe heart disease and has been waiting for a heart operation. You completed high school. You met your husband in 1980 and later married. He migrated to Australia in 1983. You were unable to join him immediately and endured the hardship of years of separation until you were finally able to reunite with him in 1992. In 1994 you obtained your driver's licence in Australia. In 1995 you gained your Australian citizenship.
54Your husband operated his own business and worked as a hairdresser. You initially attended English school and assisted him with the bookkeeping of the business until your only child, Nicole was born in 1998.
55
Your husband's business struggled financially and ultimately failed in 2010. This led you to return to the workforce and in 2009 you completed your
Certificate III in Early Childhood Learning, and you have since been continuously and gainfully employed as a child care educator. Your friend and colleague Bee Choo Ooi describes you as a ‘very responsible educator’ and ‘respectful towards the children, families and colleagues'. Your former employer Dr Yaw Kuen Leong describes you as reliable, responsible and hard working. She refers to your cancer diagnosis and treatment and the impact it had on you. Despite your suffering at the time you showed ‘tremendous courage, strength and resilience by returning to work as soon as’ you could.
56In 2014 you were diagnosed with advanced stage breast cancer and underwent intrusive surgery. Thereafter it seems you have struggled with depression. Your treating psychologist Ms Lau outlines that you attended upon her for a period in 2018 within the context of familial tension and also as already noted subsequent to this incident between 2020 and 2022. Within the more recent period you have attend eight sessions and continue to see her for treatment of your disorder. She indicates,
Ms Chau has not attempted to minimise or avoid what has occurred. Her focus is identifying how her psychological functioning becomes impacted and developing effective strategies to manage her symptoms.
57You are of the Christian faith and were baptised in 2002 and you have worked tirelessly in your volunteer capacities with your church over the years. The testimonials tendered on your behalf collectively speak of your willingness to give and help those in need. They speak of your contributions and your involvement in the church council, the bible group, Sunday School and the care you have provided to the church, the elderly, and the vulnerable.[27]
[27] Exhibit 4.
58Your daughter also refers to your kindness and the support and inspiration you have provided her. She will be graduating this December and you have experienced anxiety as to whether you would be at liberty to attend the ceremony and celebrate her achievement.
59As I have already noted the references also speak very powerfully and poignantly of your genuine remorse, which I accept and which I have taken into account.
60For all of these reasons Ms Chau, combined, pursuant to s5(2H)(e), I find that there are a combination of substantially and compelling factors in your case that are exceptional and rare the cumulative impact of which justify departure from s5(2H).
Other sentencing considerations
61Having found that the exception is enlivened I must also consider the relevant sentencing principles that must be applied in your case. Ordinarily, and in the absence of exceptional circumstances for a driving offence that causes the death of another person, a substantial custodial sentence is required. General and specific deterrence, community protection, and just punishment remain relevant and important sentencing considerations.
62For all the reasons that I have already canvassed I consider that your circumstances in combination are exceptional and justify the imposition of a penalty other than imprisonment.
63Further, I accept that you are unlikely to reoffend in the future and that you present with excellent prospects of rehabilitation. I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic) where relevant to your case. I have also had regard to the general landscape of sentencing for the charge of dangerous driving causing death and I have considered a number of relevant authorities dealing with this charge.
64I had you assessed for a Community Corrections Order (“CCO”) and you were assessed as suitable. You were considered a low risk of reoffending by Corrections and accordingly minimal conditions are recommended.
65The Court of Appeal noted in Boulton v The Queen[28] that such an order may be appropriate, even in cases of relatively serious offence which might previously have attracted a term of imprisonment. In your case I consider that a properly conditioned order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while continuing to foster and support your rehabilitation.
66A consequence of your conviction for this offending is that you will lose your driver's licence for a mandatory period of 18 months. I do not propose to exceed this minimum period in light of your work responsibilities and also the other matters canvassed in these reasons, including your mature age, lack of prior criminal history and the delay in this matter.
67
At the plea hearing your counsel, Mr Newton relying upon s8 of the
Sentencing Act 1991(Vic), made submissions that the Court should not impose a conviction. In exercising my discretion whether or not to record a conviction, I must have regard to all of the circumstances of the case, including the nature of the offence, your character and past history, the impact of recording a conviction on your economic or social wellbeing or your employment prospects. Your Counsel relied upon your fears as to the possible impact of a conviction on future employment in your field and also upon the cumulative effect of the factors already canvassed. I have considered these matters. There are competing considerations and the seriousness of the offending is not the sole or determinative factor. However after considering all relevant matters and the submissions on your behalf, in the exercise of my discretion I consider it appropriate and necessary for a conviction to be recorded.
Sentence
[28] Boulton v The Queen [2014] 46 VR 308.
68Now, Ms Chau I have arrived at the part of my reasons where I will impose sentence and I will ask you to stand please.
69In relation to this charge Ms Chau with conviction, you are sentenced as follows.
70Your convicted and sentenced to a Community Corrections Order of two and a half years, two years and six months. The conditions are as follow: you are to perform 260 hours of unpaid community work and I will offset 80 hours of that work against treatment. You are also to undergo assessment and treatment for your mental health.
71I should note here that I considered a condition of supervision, but I am largely guided by the report received and the recommendations within it, so I am not imposing supervision as a requirement. There are other core conditions that do apply to all orders.
72The core conditions include Ms Chau, that you not commit an offence punishable by imprisonment for a period of two and half years, the order commences today. That you comply with all obligations of corrections. That you report to and receive visits from corrections and that within two days prior to changing your address or occupation you advise them and also that you not leave Victoria without their permission.
73You will further be required within two working days Ms Chau to attend upon and report to the Box Hill Community Corrections office. All right?
74Pursuant to s89(1)(a) of the Sentencing Act 1991 (Vic), I order all licences and permits held by you under the Road Safety Act 1986 (Vic) to be cancelled and you are disqualified from obtaining any further licences or permits for the statutory minimum period of 18 months from today.
75
Pursuant to s6AAA and I am not sure whether I am technically required to make a declaration in light of the order imposed, but I can indicate Ms Chau that by entering a plea of guilty you have spared yourself the real risk of serving a term of imprisonment. I would have imposed a term of some
12 months combined with a Community Corrections Order. So that gives you an indication at least as to the discount received for your plea of guilty and for sparing the court, the family and the community the time and resources and associated stress in dealing with the matter in the way that you have. All right?
76HER HONOUR: Is there anything further from either counsel?
77MR NEWTON: No, Your Honour.
78MS HOLMES: No there's not Your Honour, thank you.
79HER HONOUR: All right. Can I please thank you both, Ms Holmes, Mr Newton, and I also extend my thanks again to the informant and also to Ms Ruta’s family. Thank you, we'll adjourn the court.
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