Director of Public Prosecutions v Do
[2015] VCC 90
•6 February 2015 [sitting in Latrobe Valley]
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL DIVISION
CR-14-00878
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DONG THANH DO |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 29 January 2015 [sitting in Melbourne] | |
DATE OF SENTENCE: | 6 February 2015 [sitting in Latrobe Valley] | |
CASE MAY BE CITED AS: | DPP v Do | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 90 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr G. Hevey Mr M. El-Asmar (Plea) Mr A. Moore (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr S. Payne Mr J. Fitzgerald (Sentence) | Victoria Legal Aid |
HER HONOUR:
1 Dong Do, you have been found guilty by jury verdict of one charge of dangerous driving causing death and six charges of dangerous driving causing serious injury.
2 The maximum penalty applicable to the charge of dangerous driving causing death is 10 years' imprisonment and the maximum penalty applicable to each of the charges of dangerous driving causing serious injury is 5 years' imprisonment. As a result of the findings of guilt pursuant to s.89 Sentencing Act 1991, I am required to cancel and disqualify your driver’s licence for a minimum of 18 months.
3 Your offending involved a collision that occurred on 12 October 2012. It is not necessary for me to recount in great detail the facts of this matter as they were aired fully during your trial. I proceed to sentence you on the basis of the facts before the jury during your trial and as discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious.
4 This collision was, no doubt, a tragedy not only for the seven victims of your offending, one deceased and six seriously injured, but you also received serious injuries.
5 I turn to a brief summary of the prosecution case. On 12 October 2012 you and the seven passengers of your Hi Ace van, registration NEJ 770, had been working on a farming property just off Fenaughty Road, Tatura, having arrived earlier that day to pick broccoli.
6 Your work at the farm finished early that day and at approximately 1.00pm your van, with you driving, and your passengers left the property and drove along Fenaughty Road (an unsealed road) towards its intersection with the Tatura-Undera Road.
7 At that location, your intention was, as you had done in the previous four days, having worked with your passengers at that same farm on Fenaughty Road, to return to your home in Tatura where each of the passengers also resided.
8 The Tatura-Undera Road is a two-lane sealed country road, one lane running in each direction.
9 The only issue in this trial was whether you were in all the circumstances driving dangerously. There was no dispute you were driving the Toyota Hi Ace van, nor was there any dispute that the collision caused the death of the victim named in Charge 1 and serious injury to the passengers named in Charges 2–7.
10 The only issue, as I have said, before this jury was whether your driving was “dangerous”. The jury was required to determine whether your driving involved such a serious breach of the proper management or control of your vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured. By their unanimous jury verdict, the jury was satisfied you had so driven.
11 In brief, relevant to the evidence relied upon by the prosecution that you had driven dangerously, Mr Hevey, for the prosecution, submitted the speed and manner of your driving was dangerous in the circumstances which included there being a stop sign at the intersection of Fenaughty Road and Tatura-Undera Road, without any trees to block your view of that sign. That as you approached Fenaughty Road you did not pay due and proper attention to the stop sign, that you failed to stop, you failed to look to the left and the right, and you failed to see the Iveco 435 prime mover with trailer driven by Mr Dale Lindrea, registration RC 6007, travelling towards you from your right hand side. You drove, submitted the prosecution, in such an inattentive manner past the stop sign into the intersection at 31 kilometres per hour (specifically between 29-33 kilometres per hour), with your vehicle in third gear at the time of the collision.
12 Mr Payne, who appeared on your behalf, urged that your driving on this occasion was not dangerous. You conceded you did not come to a complete stop at the intersection of Fenaughty Road and Tatura-Undera Road, and proceeded through the intersection at between 29 and 33 kilometres per hour. This collision, he submitted, was an “accident” – inadvertence, an error on your part, but not driving in a speed or manner that was dangerous to the public.
13 In support of Mr Payne’s submissions he referred to a number of aspects of your driving which he described as ‘positive’ and elaborated upon during the course of his closing address, and which I again summarised at your plea hearing.
14 The jury by its verdicts on each of the seven charges was satisfied the prosecution had proven beyond reasonable doubt your driving relevant to each of the seven charges was at a speed or in a manner dangerous to the public at the time the collision occurred.
15 You participated in a record of interview with police regarding these charges on 14 December 2012, approximately two months after the collision. You were interviewed in hospital, being there as a direct result of the injuries you sustained in the collision. In that record of interview, you stated you did not have any memory of the actual collision. In the evidence given by the informant, Detective Senior Constable Hardiman at your trial, your asserted lack of memory was accepted.
16 In the record of interview, you did however, state that you owned the Hi Ace van and it had 12 seats. You had the van for two to three years and only you drove it. In the interview you told police where the collision occurred was an unsealed road and “I … there many times, I don’t remember the name.”
17 You said in the record of interview you did not see any speed limit signal but did see a signal about ‘lamb and cow’.
18 During your record of interview you drew a diagram of the intersection. You indicated on it the direction you were travelling and what you said was a “Give Way sign” located prior to the intersection of Fenaughty and Tatura-Undera Roads.
19 You also told police you had driven from Michael’s farm (on Fenaughty Road) to your house in Tatura before. You would come out along the sealed road and turn right to Tatura and had driven that a lot.
20 You described a “Give Way” sign on Fenaughty Road before you entered the main road. You said your van was in good condition and that you often did maintenance on it. Evidence from Sergeant Booth in your trial, was that there was nothing mechanically wrong with either your vehicle or the truck which would have contributed to this collision.
21 You further described in the interview that your vision to the side through the windows of your van and out the front was good. You said there were no problems with you being able to see cars coming on the side roads and that you often saw vehicles at the intersection where the collision had occurred. You said you always looked before entering the intersection. You were asked the following question:
“Q:Do you stop at the intersection, or just drive straight through?---
A:… stop because the other is a main road.”
22 As previously stated, it was accepted by you, that on 12 October 2012 you did not stop your van at this intersection.
23 Relevant to your level of remorse is your inability (accepted by the prosecution) to remember the collision and the circumstances in which it occurred. You have subsequently expressed your remorse for the death and serious injury caused by your driving to your passengers. Further, I accept your trial was run on a very narrow issue and witnesses were not cross-examined to any real extent regarding the facts, nor the injuries they sustained.
24 There were seven victims of your offending in this tragic collision. There is no doubt the impact upon each of the victims of your offending has been profound, in particular of course Ms Tran relevant to charge 1.
25 There were no victim impact statements before me. I was advised by the prosecutor that the victims had been given the opportunity to make statements and have not done so.
26 During the course of the trial, evidence was before the jury by agreement regarding the injuries sustained by each of the seven victims. The injuries sustained by Ms Tran, relevant to charge 1, caused her death. There is no doubt that to varying degrees, the victims of your offending in charges 2-7 spent significant periods of time in hospital undergoing treatment and had ongoing sequelae from this collision.
27 I turn to a summary of the injuries sustained by each. In charge 1, Ms Tran received very serious injuries to her heart, spleen, skull and brain. Also rib and pelvic damage. She died at the scene of the collision from these injuries.
28 Ms Vo (charge 2) lost consciousness at the scene for a short time, woke and then became unconscious again. She suffered head injuries, a broken neck, a very swollen left leg and fractures to her right kneecap. Ms Vo was transferred from Shepparton Hospital to The Alfred Hospital in Melbourne by helicopter. After being at The Alfred Hospital she went to a rehabilitation centre where she remained until 18 November 2012. In her evidence before me, she described ongoing pain in her neck.
29 Charge 3 related to Ms Thu Le. She was taken to The Royal Melbourne Hospital by air ambulance. Her injuries included lacerations to her head and face, a collapsed right lung, and right rib fractures 9–12. She had fractured vertebra at the top of her neck and at around her waist area, a liver laceration, and pelvis fracture. She was in intensive care and on 14 October there was spinal fusion of the T11 vertebra fracture. On 19 October her pelvis was operated on. She then went to rehabilitation on 24 October, remaining until 6 December 2014.
30 Charge 4 related to Ms Bein Le, who sustained traumatic head injuries and facial lacerations. She went to The Alfred Hospital on the day of the collision and underwent plastic surgery to her face and scalp wounds. She went to rehabilitation on 25 October 2012, and returned to The Alfred Hospital on 9 November 2012 for further surgery. She then went to rehabilitation where she remained until January 2013.
31 Charge 5 related to Ms Thi Nguyen. Her injuries included liver lacerations which caused bleeding and shock. She required surgery to repair the bleed. Part of her heart needed repair. C5-6 of the cervical spine required fusion by surgery. She had multiple rib fractures and acute kidney failure which required renal replacement therapy. Whilst in hospital recovering from the injuries sustained in this collision, she developed pneumonia. She was in Intensive Care from 13 October to 27 October 2012, then remained at hospital until 9 November 2012, at which time she was transferred to rehabilitation remaining there for some months.
32 Charge 6 related to Ms Su Nguyen. She was taken from the scene of the collision to The Alfred Hospital by air ambulance. She sustained head injuries and spinal injuries that prevented her from walking. She had only recently in the past few months, been able to use sticks to walk. She had recurrent bladder infections as she could not move and also needed catheterisations. She also required a bowel regime because of difficulty moving her lower body. She had chronic abdominal and back pain, was on antidepressant and pain medication. As a result of her injuries caused in this collision, she was required to live for some time with her sister to assist in her care and I understood that situation still continued.
33 Charge 7 related to Mr Lam, who gave evidence during your trial. As a result of the collision, he was unconscious at the scene for a while. He also had broken teeth, was badly bruised, had cuts to his face and forehead area, and bruised ribs. He was taken to Shepparton Hospital and stayed there overnight.
34 During the course of your trial the description of the injuries sustained by each of your victims, including the injuries that caused the death of Ms Tran, were not challenged by Mr Payne. Further, the injuries sustained by each of the victims in charges 2-7, the classification of those as ‘serious injury’ was not challenged by Mr Payne.
35 You have no prior Court appearances. You had previously in 2004 been issued with a Traffic Infringement Notice for speeding. I note the charges before me do not involve speeding, and I have disregarded this Notice when sentencing you today.
36 Since this current offending, you have not subsequently appeared at Court or been in any further trouble with the police, nor is there anything pending.
37 At your plea hearing on 29 January 2015, Mr Fitzgerald appeared on your behalf with your agreement, as counsel who appeared at your trial, Mr Payne, was not available for the plea hearing.
38 Mr Fitzgerald filed a written outline of his submissions for the plea (Exhibit 1), and addressed them during the hearing.
39 In Court to support you during your plea was your wife, children and Ms Le’s mother, who had come to Australia from Vietnam to assist Ms Le following your recent incarceration.
40 There was a letter before me from Ms Le dated 18 January 2015 in which she referred to her wish you be released from custody to return to she and your children.
41 There was also correspondence from Bernadette Thorn, Goulburn Valley Health Shepparton, Social Worker, dated 24 December 2014, whose role is to provide practical and emotional support to patients/clients and their families. She had been at that time in recent contact with your wife Hoa Le. She stated your wife did not drive and did not have any family support in the area, and was at that time relying on friends for support. It would seem her mother came to Australia after this report. Ms Le had limited English. Mr Fitzgerald was appropriately not relying upon the hardship that will be caused to your wife and family by your incarceration as amounting to ‘exceptional circumstances’. Nevertheless, I do accept consistent with general sentencing principles, that your being aware your wife is trying to cope on her own with two young children and with limited English, will weigh heavily upon you whilst you are in custody and that some moderation of your sentence can therefore apply. Mr El-Asmar, in submissions for the prosecution, did not urge otherwise.
42 Also in Court were the authors of two character references, Mr Anthony Rossignuolo and Mr Allan Perry.
43 In his written submissions, Mr Fitzgerald referred to your background and history. You are 41 years of age at the time of sentence, and at the time of your offending were 39. You had spent 57 days in custody by way of pre-sentence detention for these offences up to and including 28 January 2015.
44 You are married to Hoa Le and your two children are 3 years of age and 6 weeks of age.
45 You were born in Ben Ti in South Vietnam, where you had an older brother, a younger brother and two older sisters. Your siblings remain in Vietnam. Your father died when you were 2 years of age, and you grew up on a rice farm.
46 You and your siblings attended school in the local area and worked on the farm. You were raised, and remain, Buddhist.
47 You left school at approximately the equivalent of Year 9 and began work as a deck hand on a river boat, involving loading and unloading cargo. You worked every day and remitted whatever money you could to your mother to assist her.
48 When you were 18, you did a three-month course and qualified as a sailor. In that employment you also remitted what money you could to your mother.
49 When you were 21, you met Trang Pham. She was Australian and you met her when she was visiting her family in Vietnam.
50 You came to Australia in 2001 and married Trang Pham. Your employment prior to coming to Australia was in an ice factory.
51 In the Melbourne area, you worked at various farms and Ms Pham studied and then worked for an accountant.
52 In 2004, you became an Australian citizen. Throughout this time, you continued to remit money to your mother in Vietnam to assist her.
53 In 2005, you and Ms Pham divorced. There were no children of that marriage.
54 Later that same year, you returned to Vietnam for five weeks due to your mother’s ill health. You then returned to Australia and began working as a picker on farms in the Geelong area, where you met your current wife, Hoa Le.
55 In 2007, you moved to Shepparton to do picking work on local farms. In 2007, you married Ms Le and moved to rented accommodation in Shepparton.
56 To help you with work on the farms, you purchased the van involved in this collision. You assisted other workers with transport and also transported fruit and vegetables. You also assisted in finding workers for farms, and assisted the workers to obtain licences and find accommodation. In return, the workers would give you a contribution towards fuel costs or accommodation if they stayed with you.
57 You have never had a history of illicit drug use, nor of drinking alcohol or smoking.
58 You instructed Mr Fitzgerald you enjoyed living in the Shepparton area and hoped to return there upon your release, and be involved in the same type of work.
59 Mr Fitzgerald also further referred to your background and history in his oral submissions, confirming you were born in South Vietnam and that you lived a frugal existence. After leaving school you worked on a river boat, which I was told involved very heavy and hard work. Mr Fitzgerald confirmed you remitted what money you could to your mother to assist her with the upkeep of not only herself and the farm, but also your siblings.
60 You completed a three month course, which enabled you to work as a sailor, also hard work. You then met your first wife when you were 21, later moving to Australia and marrying her.
61 You divorced your first wife in 2005 and, shortly after that, found out that your mother was seriously ill which required you to return to Vietnam, where you stayed for five weeks. Unfortunately, she passed away two weeks after you returned to Australia, as I understand it, from a cancer-related illness. Your family remain in Vietnam.
62 Following your return to Australia, you met your current wife, Ms Le. She initially worked in a clothing factory then, after meeting you, commenced fruit/vegetable picking. You married in 2007, and moved to Shepparton. Thereafter, your work was essentially to find people to work at farms, in particular for Mr Rossignuolo.
63 There was a reference from Anthony Rossignuolo dated 28 January 2015, who also gave evidence before me. He confirmed the contents of his written reference. He had known you for approximately 12 years, when you came to the Tatura area as a tomato picker. You approached his company for work 12 years ago and have worked for him ever since. He described you as a great contractor. You worked for him at least nine to ten months every year. He described you as “all round nice guy”. You were involved in assisting other pickers with their licences and accommodation arrangements. He described you as having embraced the opportunity to work and that you were grateful for the opportunities provided in Australia.
64 In his evidence he described you as a fantastic worker. As a contractor, you sourced labour for his farm. You were a person of high integrity. He believed you respected him and he respected you. He was aware you had a wife and two young children and had expressed a desire to remain in Shepparton when you finish your term of incarceration. He would give you your job back when you were released from custody.
65 Regarding the loss of licence which will occur as a result of your guilt of these charges, Mr Rossignuolo understood you owned three vans and had other workers who could drive, thus enabling you to maintain your employment with Mr Rossignuolo.
66 There was also a written reference and evidence from Allan Perry, who has known you for many years as you were a tenant in his son’s house and he lived next door to that property. He described you and your wife as very good tenants and you as considerate and affable.
67 Mr Perry also gave evidence before me. You and your wife had lived most recently in his son’s property, which was next door to Mr Perry’s home. Mr Perry had known you for approximately eight years and described you as a diligent worker. He described you and your family as being good tenants and that you were always “nice” to Mr Perry.
68 I am aware this is your first time in custody. You have described the experience of being in prison as ‘horrible’, in part due to your limited ability to speak English. You have started an English course in custody and you are on a waiting list for an Occupational Health & Safety course. Your limited English, I accept, will likely add to your anxiousness in custody, and I have taken that into account.
69 As a result of the collision, you sustained a number of injuries and material was tendered by Mr Fitzgerald in support of that submission. There was a Discharge Summary from Epworth Rehabilitation confirming you were admitted to Epworth Rehabilitation on 2 November 2012. You were admitted to Epworth as a result of a traumatic brain injury sustained in the collision, after initially having been transported to the Alfred Hospital. The injuries with which you presented at the Alfred Hospital were summarised in that report (pages 1 and 2). The records indicate you were in the Intensive Care Unit for approximately eight days. Medication given to you on admission was also set out on the Discharge Summary (page 3). Your progress at Epworth Hospital was noted (pages 3 and following). You had symptoms of a severe traumatic brain injury. Formal cognitive assessment was limited due to your non-English-speaking background.
70 The discharge summary recommended ongoing outpatient physiotherapy at Goulburn Valley Community Rehabilitation Centre.
71 Your current medical situation was addressed in a report from Dr Yousif Shamoun, Tatura Medical Centre, dated 13 January 2015, with attachments (Exhibit 2). You currently suffered with chronic chest pain, back and pelvic pain. There were frequent flare-ups requiring ongoing analgesia, physio-therapy and rehabilitation, currently and in the foreseeable future. The injuries you sustained in the collision were also set out in that report (pages 1 and 2), as was your current medication.
72 In the opinion of Dr Shamoun, the physical trauma and psychosomatic effect of your chronic pain would have a negative effect on your health and future ability to work.
73 I was advised by Mr Fitzgerald that you continue to experience ongoing pain in your head and chest as a result of the injuries sustained. You have only been given Panadol in custody to date to relieve that pain.
74 I accept, consistent with general sentencing principles (Verdins and Ors[1] not having been urged upon me in your plea, and appropriately so) that your ongoing pain will make your time in custody more difficult for you than an able-bodied prisoner, and I have also taken that into account.
[1] (2007) 16 VR 269
75 Also before me were a number of brief statements from the victims in a number of the charges, urging mercy when sentencing you. In addition, there was correspondence from Nguyen Viet Thu, the husband of the deceased (charge 1), also urging mercy in sentence. I have read the statements. I was told they were unsolicited by you.
76 Consistent with decisions such as R v Skura[2], Mok v R[3] and R v CLP[4], such references and statements are relevant. It is equally clear from the authorities the weight to be given to a victim’s attitude varies according to the circumstances of the case. As stated in Mok, the weight to be attached to positive victim impact statements in mitigation is a matter of discretion in each case (para 12). In Mok, the Court referred to culpable driving cases (which yours is not) where general and specific deterrence and denunciation were important when sentencing. Whilst Mok involved culpable driving, those considerations, in my opinion, also apply to cases involving charges of dangerous driving causing death and dangerous driving causing serious injury, for which you are to be sentenced. As Hargrave AJA stated:
“Each case depends on its own facts.”
[2] [2004] VSCA 53
[3] [2011] VSCA 38
[4] [2008] VSCA 113
77 In CLP the Court confirmed the weight to be given to the victims’ attitude would vary according to the circumstances of the case.
78 In CLP referring to R v Sa[5], Eames JA said that the sentencing judge’s statement that the attitude of the victim could not ‘govern’ the sentencing approach, was consistent with the principles laid down by the Court of Appeal in Skura [para 32].
[5] [2004] VSCA 182
79 Independent of the wishes of the mercy urged by the victims, mercy can be extended in appropriate cases consistent with other authorities (R v Osenkowski[6] and R v Nagul[7]). More recently in DPP v Moore[8], the Court confirmed that considerations of mercy must be weighed alongside all other sentencing factors. I note, however, this principle is not specifically relied upon by Mr Fitzgerald but it does exist as a sentencing consideration generally.
[6] (1982) 30 SASR 212
[7] [2007] VSCA 8
[8] [2009] VSCA 264
80 The Court also referred to R v Kane[9]:
“… But mercy must be exercised upon considerations which are supported by the evidence which make an appeal not only to sympathy but also to well-balanced judgment. If a court permits sympathy to prejudice it from attaching due weight to the other recognised elements of punishment, it has failed to discharge its duty.
Mercy however must be considered alongside the relevant circumstances.” [paras 19-20]
[9] [1974] VR 759
81 Referrable to ‘recognised elements of punishment’, Neave JA in R vOates[10] referred to general deterrence being given considerable weight in sentencing an offender for dangerous driving causing death or serious injury. Her Honour stated:
“Members of the public must recognise that a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.”
[10] [2007] VSCA 59
82 Mr Fitzgerald conceded that general deterrence was a relevant sentencing consideration.
83 Since Oates, there has been the recent decision of R v Boulton & Ors[11] and upon which Mr Fitzgerald relied. There remains as one of the recognised elements of punishment, in my opinion, the need to reflect the need for general deterrence for offending involving driving causing death or serious injury. I am conscious, of course, of Boulton & Ors, which refers, in appropriate cases, to an offender being sentenced to a Community Corrections Order and/or combined with a term of imprisonment. I do not however understand Boulton & Ors to extinguish decisions and principles such as those stated in Oates. Relevant to sentencing are all elements of punishment including the matters referred to in s5 Sentencing Act 1991, the ‘intuitive synthesis’ and all matters in mitigation of sentence.
[11] [2014] VSCA 342
84 Mr Fitzgerald, in his initial submission urged yours was momentary inattention and at the lowest end of moral culpability relying upon the decisions in Oates and DPP v Neethling[12]. Those decisions have been often cited in cases involving this type of offending. Ultimately, following discussion and analysis of a number of cases, including Neethling, Mr Fitzgerald conceded your offending was not at the lowest end of moral culpability. As I discussed with counsel, your offending, in my opinion, was between the middle and lower (not lowest) end of culpability, having regard to the gravity of your offending, and all other relevant considerations. In my opinion, whilst yours was not high moral culpability, it was not lowest moral culpability either.
[12] [2009] VSCA 116
85 Mr El-Asmar, appearing on behalf of the prosecution at your plea hearing, also submitted your case was not momentary inattention.
86 Ultimately Mr Fitzgerald, following discussion and reference to authorities (as recorded in the transcript of the plea hearing) also resiled from his submission that yours was momentary inattention. Both concessions to which I have just referred were, in my opinion, appropriate on the facts and circumstances in this case. You went through a stop sign without stopping. The jury had the benefit of a view of the collision scene and your view of the road. This was a road you had driven many times before. You acknowledged you had seen the sign, although you described it as a “Give Way” sign. The evidence before the jury was also that, on other occasions, you had stopped at that intersection. In my opinion, yours was not momentary inattention.
87 I accept absent in your offending were some of the aggravating features often found in this type of offending, such as the presence of drugs or alcohol, being distracted by a phone or other device, or suffering from fatigue, or driving at excessive speed.
88 Mr Fitzgerald submitted you had very good prospects of rehabilitation. I accept that you have had a productive life and worked hard up until your recent incarceration. You had a difficult early life, but worked hard despite limited education. You have a solid history of work and are respected by those that you have worked with and those that you have come to know you, particularly in the Tatura/Shepparton area. You have made what could be described as “a good life for you and your family in Australia”. I accept your prospects are very good.
89 Mr Fitzgerald’s primary submission, relying principally upon the principles in Boulton & Ors, submitted the time you had served to date, together with the imposition of a Community Corrections Order, would be an appropriate disposition for this offending. I discussed this with him at some length.
90 His secondary submission, without abandoning his primary submission, was that I could impose a term of imprisonment to a maximum of two years (a straight sentence) and then impose a Community Corrections Order.
91 Mr El-Asmar, who appeared on behalf of the prosecution, again submitted that the prosecution did not accept your driving amounted to momentary inattention. Mr El‑Asmar referred to the distance you drove along the road prior to the collision with the opportunity to observe other cars on the road, and your failure to stop at the “Stop” sign, when previously you had stopped at it, albeit you understood it to be a “Give Way” sign. On the totality of the evidence, Mr El-Asmar submitted yours was not momentary inattention.
92 Mr El-Asmar also referred to your responsibility for the seven passengers on board your van.
93 Mr El-Asmar conceded, in relation to your moral culpability, there were not the “usual” aggravating features, referred to in Mr Fitzgerald’s submissions and, of course, that is so. Ultimately, Mr El-Asmar submitted your moral culpability was between the middle and low range (not at the lowest end of the range). I agree.
94 Turning to disposition, the prosecution submitted that to impose a Community Corrections Order on either basis urged by Mr Fitzgerald would be manifestly inadequate in all the circumstances, even conceding lower moral culpability. That a Community Corrections Order, in all the circumstances, was not appropriate, given the number of charges of which you had been found guilty by jury verdict, the penalties applicable in relation to each of those charges, the need for some cumulation to reflect the serious injuries/death as a result of your dangerous driving, and the multiple victims of your offending.
95 Mr El-Asmar conceded, appropriately in my opinion, there should not be total cumulation between the sentences imposed in relation to each of the charges.
96 In reply, Mr Fitzgerald conceded that, should I consider a term of imprisonment to be the only disposition appropriate in all the circumstances, there be some cumulation in relation to each charge, however he urged it be modest as the offending occurred in the one incident.
97 Ultimately, I must determine the appropriate sentence in all the circumstances of this case. That requires me to take into account the facts and circumstances of your offending, and of course all matters personal to you in mitigation of sentence.
98 It is difficult comparing cases factually as the facts vary enormously. It is clear to me from the authorities that there remain a number of relevant sentencing considerations I must take into account when determining the appropriate sentence.
99 A relevant sentencing consideration is the maximum penalty applicable for this offending and I note that, in relation to the offence of dangerous driving causing death, there has been an increase in the penalty over the years from 5-10 years’ imprisonment reflecting Parliament’s concern regarding the seriousness of such offending.
100 Further, in R v Towle[13], the Court also referred to social rehabilitation as an important sentencing factor citing Neethling, a case of dangerous driving causing death:
[13] [2009] VSCA 280
“In cases such as these, sentencing performs an important function of social rehabilitation. As this Court said recently in Director of Public Prosecutions v Neethling, also a case of dangerous driving causing death:
The rationale of the criminal law is to minimise the damage occasioned by anti-social behaviour, by limiting the occasions on which it occurs, by reinforcing the values of the community, by vindicating the rights of victims and by rehabilitating offenders. The sentencing function enables the courts, on behalf of the community, to state with crystal clarity that conduct of the particular kind will not be tolerated.
Sentencing performs an important function of social rehabilitation. As Vincent JA said in Director of Public Prosecutions v DJK:
This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim’s perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.
In our view, those remarks apply with particular force to an offence of this devastating kind. Similar concerns appear to have informed the statement of Hunt CJ at CL in Musumeci, that ‘the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.’ Similar sentiments were expressed by Spigelman CJ in Jurisic:
It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciation, courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishment. Courts are, however, aware that the requirements of justice and the requirements of mercy are often in conflict, but that we live in a society which values both justice and mercy.”
101 In my opinion, taking into account all relevant sentencing considerations, including the decision of Boulton & Ors, to accede to either sentencing submission by Mr Fitzgerald, would, in all the circumstances, result in a manifestly inadequate sentence.
102 As well as matters personal to you, including your prospects of rehabilitation, to which I have referred, I must also consider the need for general deterrence which is of particular importance in a case such as this.
103 Turning to specific deterrence, I note you do not have any prior court appearances, nor is there anything pending. There is, however, an element of specific deterrence required when sentencing you, given the number of victims of your offending, although I am conscious that each of the charges related to the same collision, and such is to be reflected in the orders made for cumulation.
104 I must also consider the question of protection of members of the community from you and bear in mind your likelihood of re-offending. Your lack of criminal history and prospects of rehabilitation support my confidence in that regard.
105 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
106 When sentencing you, I apply the principles of totality and proportionality.
107 On charge 1, you are convicted and sentenced to 2 years and 2 months’ imprisonment.
108 On charge 2, you are convicted and sentenced to 12 months’ imprisonment.
109 On charge 3, you are convicted and sentenced to 12 months’ imprisonment.
110 On charge 4, you are convicted and sentenced to 12 months’ imprisonment.
111 On charge 5, you are convicted and sentenced to 12 months’ imprisonment.
112 On charge 6, you are convicted and sentenced to 12 months’ imprisonment.
113 On charge 7, you are convicted and sentenced to 12 months’ imprisonment.
114 I order the following in relation to cumulation and concurrency.
115 Charge 1 is the base sentence and I direct that:
·4 months of charge 2 be served cumulatively upon Charge 1;
·4 months of charge 3 be served cumulatively upon Charge 1;
·4 months of charge 4 be served cumulatively upon Charge 1;
·4 months of charge 5 be served cumulatively upon Charge 1;
·4 months of charge 6 be served cumulatively upon Charge 1; and
·4 months of charge 7 be served cumulatively upon Charge 1.
116 For clarity, I indicate that each order for cumulation is upon each other and upon the base sentence.
117 That results in a total effective sentence of 4 years and 2 months’ imprisonment and I direct that you serve a period of 2 years 3 months before you are eligible for parole.
118 I have, in my opinion, ordered a short non-parole period and longer parole period to reflect the matters to which I have referred which include your rehabilitation prospects, language difficulties, health issues and concerns in custody for your family’s wellbeing (see R v Tran[14] and MA v R[15])
[14] [2006] VSCA 222
[15] [2012] VSCA 214
119 I declare that you have spent 65 days in custody by way of pre-sentence detention up to and including 5 February 2015, and pursuant to s.18(4) Sentencing Act 1991, I direct that be entered into the records of the Court.
120 For completeness only, as this follows a trial, I do not make any declaration pursuant to s.6AAA Sentencing Act 1991. As I say, this is for completeness only.
121 I am also required pursuant to s.89 Sentencing Act to cancel your licence and disqualify you from obtaining a licence for a minimum of 18 months. I order your licence be cancelled for a period of 3 years from 3 December 2014, the date of your remand. In so determining the period of disqualification and cancellation I am mindful of your rehabilitation (R v Lefebure[16]).
[16] (2000) 31 MVR 131
122 Are there any maths issues? Do you want me to read anything out again?
123 COUNSEL: No, Your Honour.
124 HER HONOUR: PSD correct? Yes, very well. Any other orders sought? I did not think there were. No, good. I discussed this with Mr Fitzgerald, unless you say no, he thought it was a good idea but you might not, Ms Jackson has run off I believe a copy of the most recent medical report from Dr Shamoun which will go with the prison authorities and hopefully they might be able to address it and perhaps improve on the Panadol medication if required, I do not know. So do you have a view on that?
125 MR PAYNE: I'd be grateful for that, Your Honour.
126 HER HONOUR: Very well. No objection?
127 MR MOORE: No.
128 HER HONOUR: No, very well. You will be given a copy of a medical report, sir, if you would not mind. Can you ensure that that goes with Mr Do back to the prison? There are some medical issues that the prison should be made aware of.
129 VOICE (from the body of the court): Yes, Your Honour.
130 HER HONOUR: Thank you very much for that. That is about as much as I can do, Mr Payne.
131 MR PAYNE: Yes, Your Honour.
132 HER HONOUR: Very well. So anything further in this matter, no?
133 COUNSEL: No, Your Honour.
134 HER HONOUR: Very well, we are going to disconnect the link in Shepparton. So thank you very much, we will just disconnect it now, thank you and can you please remove Mr Do? Thank you, Mr Do.
135 Madam, can you just assist Mr Do? Just tell him he is now to go with the police? Mr Payne are you going to see him?
136 MR PAYNE: I am going to see him, yes, Your Honour.
137 HER HONOUR: And tell him Mr Payne is going to come and see you. Mr Payne will come - very well, thank you, Madam Interpreter for your assistance yet again. Very well, anything else in this matter, no?
138 COUNSEL: No, Your Honour.
139 HER HONOUR: Very well then. Yes, you are excused. Thanks very much Mr Payne.
140 MR PAYNE: Thank you, Your Honour.
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