Director of Public Prosecutions v Goh
[2023] VCC 783
•16 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01986
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIM GOH |
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| JUDGE: | HIS HONOUR JUDGE LAURISTEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 May 2023 |
| DATE OF SENTENCE: | 16 May 2023 |
| CASE MAY BE CITED AS: | DPP v Goh |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 783 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charge of negligently causing serious injury – serious motor vehicle offence – vehicle approached intersection and collided with other vehicle – demonstrated a great falling short of the required standard of care – high range of serious injuries caused – no criminal history – plea of guilty deserving of sentence discount – general deterrence and denunciation relevant sentencing purposes
Cases Cited: Aston v R [2019] VSCA 225; Worboyes v R [2021] VSCA 169
Sentence: Six months imprisonment and 12-month community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr J. Marquis | David Laschko Barrister & Solicitor |
HIS HONOUR:
Introduction
1Mr Goh, on the charge of negligently causing serious injury, I propose to sentence you to six months' imprisonment and, subject to your consent, to a community correction order of 12 months' duration with these conditions:
(a) to perform 200 hours of unpaid community work;
(b) to undergo assessment and treatment for your mental health; and
(c) to undertake programs to reduce your risk of reoffending.
2Any hours satisfactorily undertaken for conditions (b) and (c) will count as hours for the purposes of the unpaid community work condition.
3And any licence or permit you hold to drive a motor vehicle will be cancelled and you will be disqualified from obtaining a licence or permit for 24 months.
4You pleaded guilty to a charge of negligently causing serious injury. The maximum penalty for the offence is 10 years' imprisonment. As a 'serious motor vehicle offence', the offence also requires the cancellation of any licence or permit you hold to drive a motor vehicle and a disqualification from obtaining a licence or permit for at least 24 months.
5The circumstances of this charge are contained in Exhibit A, a document entitled 'Summary of prosecution for trial'. Essentially, you agree with its contents.
Circumstances
6At about 10.38 am on 10 May 2021, you drove your Toyota RAV4 vehicle east along Poplar Avenue, Orrvale. Orrvale is near Shepparton. The victim, Cherie Mammone, was driving her Hyundai motor vehicle north along Orrvale Road. These roads intersect.
7Poplar Avenue is straight piece of roadway, running east to west. It has a bitumen surface with one lane each for traffic travelling east or west. The speed limit for the road is 100 kilometres per hour.
8To a driver proceeding east along Poplar Drive towards the intersection with Orrvale Road, there are warnings of stop signs ahead and, obviously, an intersection:
(a) there are two sets of rumble strips before one reaches the stop line at the intersection:
(i)starting at about 331 metres, there are three slightly raised, yellow-painted rumble strips. The strips would be felt when driven over;
(ii)starting at about 131 metres, there are another set of slightly raised, yellow-painted rumble strips from the stop line. Similarly, they would be felt when run over;
(b) at about 201 metres from the stop line, there is a yellow sign warning of the stop sign ahead. Above the sign are two yellow lights which flashed as your vehicle approached it;
(c) at about 6 metres from the stop line, there are two stop signs, one on each side of the road. They would have been clearly visible to you for Poplar Avenue is a straight, flat road.
9Your vehicle did not slow as it approached the intersection. You braked just before it entered the intersection and at least one-fifth of a second before the collision, veered slightly left, struck Ms Mammone's vehicle and injured her. When your vehicle struck the passenger's side of Ms Mammone's vehicle it was travelling at about 91 kilometres per hour. Such was the impact, your vehicle intruded about 0.6 of a metre into her vehicle. This is graphically depicted in photographs.[1]
[1] For example, figure 9 to the report of Dr Richardson.
10At the time, the road was dry, the visibility good and the weather was fine but cloudy. There was little other traffic.
11Approaching the intersection, your view of Ms Mammone's vehicle was hindered by a line of trees on your left. After the accident, you told a witness, Joseph Scali, you did not see the stop signs.
12Your solicitors engaged a forensic engineer, Shane Richardson. He is very experienced in examining accidents including those involving motor vehicles. He reported on 4 July 2022.
13Among other things, Dr Richardson noted parts of the statement of a senior traffic engineer for the Greater Shepparton City Council to the effect:
(a) this intersection has been a concern 'for quite a while'. In 2004, there was a collision where two persons died. Since 2004, there have been six other collisions at this intersection between 2013 and 2016 and one since this collision.
(b) in 2017, the Council obtained Commonwealth funding to install the flashing lights and they were installed;
(c) as part of a wider plan to review speed limits, the Council decided to reduce the speed limits of both roads to 80 kilometres per hour. Dr Richardson noted this was done by 9 November 2021.
14Dr Richardson noted other collisions in Poplar Avenue at three other intersections. In a diagram, he pointed out the positions of signs warning of the new speed limit.
15Dr Richardson considered the extra present measures (i.e. a reduced speed limit) are still insufficient. He recommended:
(a) a staggered reduction in the speed limit approaching the intersection from 80 kilometres per hour to 60 kilometres per hour to 40 kilometres per hour. To him, reducing the speed limit to 80 kilometres per hour will not 'drastically' reduce the number of accidents but will reduce the severity of any collision;
(b) he believes reducing the speed limit to 60 kilometres an hour and more signage to that effect then this accident 'would most likely not occurred or it would have occurred at a much lower speed';
(c) rumble strips with more strips and a close pitch 'to provide an audible and physical input to the driver'. Apparently, Dr Richardson did not see photographs of the rumble strips. He inferred their inadequacy through their failure to alert you;
(d) the creation of what he called 'a right-left staggered T treatment' which is an offset intersection. (In that regard I refer to figures 17, 18 and 19 of his report.) The staggering would reduce the speed of approaching vehicles along Poplar Avenue. He gives the example of the intersection of Poplar Avenue and Doyles Road where a small degree of staggering is present. (In that regard see figures 20 and 21). Since that intersection occurred earlier than the intersection here, Dr Richardson speculates:[2]
'The treatment of Poplar Avenue and Doyles Road intersection most likely informed Mr Goh on how other intersections on Poplar Avenue were treated and the same failure to undertake the same treatment at the intersection at Poplar Avenue and Orrvale Road, in the Author's opinion had some contribution to the cause of this crash ...'
[2] At pp31-32.
There is no direct evidence to support that speculation and I do not accept it.
(e) installing a roundabout which would have the same effect as a staggered intersection.
16Dr Richardson's ultimate conclusion is the accident would not have occurred if the speed limit had been reduced to 40 kilometres an hour, more aggressive rumble strips were emplaced and the intersection was staggered and/or a roundabout was installed. One may accept these views but their value lies in the evaluation of the degree of negligence shown by you.
17There are these factors. The speed limit on approaching the intersection was 100 kilometres per hour. The earlier intersection with Doyles Road was differently configured. Perceiving Ms Mammone's vehicle and, perhaps, the intersecting road, were hindered by the line of trees.
18On the other hand, there are two sets of rumble strips before a vehicle reaches the stop line at the intersection. There are three strips each, slightly raised and painted yellow. They should be seen and felt. They were placed 131 and 331 metres from the start of the intersection. At about 201 metres from the start of the intersection is a sign, painted yellow, warning of the stop sign ahead. Above the sign are two yellow lights which flashed as your vehicle approached it. Finally, there are two stop signs, one on each side of the road and placed by the side of the road and about 6 metres from the start of the intersection. Each of these warning signs should have been clearly visible to you for as I have said, Poplar Avenue is a straight, flat road.
19If the only warning was the stop signs 6 metres from the intersection with the speed limit of 100 kilometres per hour, then your level of neglect would have fallen that required by the charge. But the other indications were present. Dr Richardson's implied view the rumble strips were inadequate is based on their failure to alert you. To a reasonably attuned driver, they may have been adequate in the number of strips, their visibility and the sound produced as a vehicle drove over them.
20This raises the degree of neglect necessary to support the charge. During the case conference on 25 January 2023, reference was made to the judgment of the Court of Appeal in Aston v R.[3] At paragraph 70, the court said:
'... on a charge of negligently causing serious injury, the judge must direct the jury that the required negligence must be of a high order, involving a great falling short of the standard of care which a reasonable person would have exercised in all of the circumstances, and a high risk that death or serious injury would result from the relevant conduct. The judge should also explain that, since the required negligence must be of a high order, and must involve a high risk of death or serious injury, the kind of negligence which might be constituted by momentary inattention or a minor error of judgment, or which might found a simple civil claim for damages, generally would be insufficient to establish the necessary high degree. It will also be necessary for the judge to point to those matters which might constitute a high order of negligence necessary to support a conviction. The judge should bring home to the jury that the offence is not concerned with minor breaches of the expected standard of care, even if they result in someone being hurt. While minor breaches of the standard of care might establish negligence in a civil case, such minor breaches are not sufficient to establish guilt in a criminal case. More is required, in the sense that the conduct must involve a great falling short of the standard of care, and a high risk that death or serious injury would result. Even a substantial departure from the standard of care may not constitute such a great departure sufficient to constitute criminal negligence'.
[3] [2019] VSCA 225 at [70].
21Putting aside your guilty plea, you showed a great falling short of the required standard of care which involved a high risk of death or serious injury. Your inexplicable disregard of a series of plain warnings, visual and sensual, and the weight of your vehicle and the speed at which it travelled meant a collision could very well result in a serious injury, which is exactly what happened.
22As to the victim.
23Ms Mammone was flown to the Alfred Hospital in Melbourne. Exhibit A contains a description of the injuries by an emergency physician. First, there was a severe brain injury comprising a subdural haemorrhage, subarachnoid haemorrhage and an interventricular haemorrhage and a diffuse axonal injury, grade 2. Apart from the last, each describes bleeding, the first two affecting the surface of the brain and the third within the brain. The last involves the shearing of the brain's connecting nerve fibres with the grade indicating the degree of severity.
24The physician reported other injuries. From a layperson's perspective, the injuries to the heart and the pelvis seem the most serious. There are other injuries to the bones of the left side of her face, ribs, liver, spleen, right clavicle, lumbar spine and left forearm.
25The only way I can gauge the longer-term impact of some of these injuries is through Ms Mammone's impact statement. About two years after the accident, she is largely bedridden. When using a wheelchair, her legs hurt constantly. She cannot feed or shower herself or even brush her teeth. Her memory is seriously affected and she is easily confused. She tires easily. Her mood is plainly depressed through the realisation of what she has lost or, as she put it, 'my life has changed for the bad'.
26Her mother's impact statement contains a photograph taken about a month ago. It shows her daughter in a wheelchair. The wheelchair supports both her head and legs.
27The words of the charge include 'serious injury'. This expression is defined. Relevant to your case, it means an injury which endangers life or is substantial or protracted. Untreated medically, Ms Mammone's injuries would have caused her death. They were certainly substantial and protracted. Plainly, the definition encompasses a range of injuries. The injuries suffered by her are in the higher range of injuries which are substantial and protracted. On the available material, they are very serious.
28The charge brings together two considerations. Although the degree of negligence satisfied the criminal threshold, it was in the lower range contemplated by the concept. On the other hand, the injuries are in the higher level of 'serious'.
Criminal history
29You have no criminal history. Several of your referees speaks of your conscientiousness as a driver, which contrasts with your failings on this occasion. The sad truth is many people who commit serious traffic offences are of previous good character. Nevertheless, your good character over many years is a mitigating factor.
Victim impact statements
30There are three victim impact statements: one from the victim, her mother and sister. The victim's statement was read to the court by her sister-in-law.
Victim
31I have already spoken about Ms Mammone's statement.
32Her mother expresses the fear of a parent about the future of her disabled daughter, saying:
'I am now 70 years of age and continue to worry about her future. I do not sleep well and constantly fear that Cherie will die too young'.
33She and other family members were waiting for her daughter to arrive for a Mother's Day lunch when the accident occurred. She went to the accident scene and then to the hospital in Melbourne. She saw her in the Trauma Intensive Care unit and stayed with her through the surgeries and tests, knowing her daughter was in constant pain.
34The anniversary of the accident causes her 'extreme emotional pain, anguish and anger'.
35As with her mother, her sister Annette wondered for a long time whether her sister would survive. Following the realisation she would, came the further realisation of how impaired her sister was and what she has lost. She requires round-the-clock care. She cannot even conduct a conversation with her.
Personal
36You are now 44. You were born in Malaysia. You have an older sibling. This child and your parents live in Malaysia. Your father is unwell. You are married with three children, two boys and a girl. The boys, aged eight and 11, are autistic. The girl is four.
37In 2009, you and your recently married wife emigrated to Australia. You are now an Australian citizen.
38You were very well educated in Malaysia gaining, among other qualifications, a Master's degree in Information Technology and Business Administration.
39You have enjoyed continuous employment in Malaysia and in Australia. At the time of the accident, you were employed by Telstra. As a result of the accident, you were absent from work for six months. You returned to work on lighter duties. Owing to a restructure in your team at Telstra, you became redundant. Nevertheless, in September 2022 you gained employment as a manager with Secure Agility. This employer values you so much that, even if you are sentenced to imprisonment, it will re-employ you after your release.
40You are heavily involved in chess, as an arbiter, coach and organiser. Your referees speak highly of your engagement in the area. You are also engaged in other community activities.
41You are active in the community formed by people who have come to this country from Malaysia. Many of your referees attest to the enormous assistance you have extended to them.
Psychologist
42Nial Wotherspoon is a psychologist, counsellor and occupational therapist. Between 16 June 2021 and 3 February 2023, he has treated you on 12 occasions.[4]
[4] Report dated 10 February 2023.
43The accident has caused you symptoms which are consistent with a post-traumatic stress disorder. They are difficulty driving alone, intrusive thoughts, overwhelming memories of the collision, sleep disturbance, dreams and triggering events including associations with Shepparton.
44Mr Wotherspoon administered a number of tests indicating, among other things, you are severely depressed. However, you are responding to treatment. He expected imprisonment would impact your fragile mental health and exacerbate your depressive symptoms.
45He has seen your strong involvement in the playing of chess as a means of coping with the aftermath of the collision, both to yourself, your family and Ms Mammone and her family.
46He made several recommendations including continued psychological counselling and continuing with your meditation.
Guilty plea
47In terms of the timing of your plea of guilty, it occurred midway in the process which starts at the laying of the charge and ends with the verdict of a jury after a trial.
48By pleading guilty, you have accepted responsibility for your offending. From the perspective of the criminal justice system, it saves the time and expense of a trial. It allows other trials to be listed earlier than would be the case. You have spared witnesses the burden of giving evidence in a trial. Giving evidence is rarely easy.
49At the present time, a guilty plea deserves a greater discount on sentence than in other times. Why this is so was explained in the case of Worboyes v R,[5] where the court said:
'As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence'.
[5] [2021] VSCA 169 at [35]
50Even though this passage appeared in a 2021 judgment, it still remains applicable. This court, and other criminal courts, are still struggling to overcome the backlog of cases built up during the pandemic and the effects of the virus still affect the functioning of this court, especially in relation to jury trials.
51Overall, your plea of guilty entitles you to a significant discount on the sentence which would otherwise have been imposed if you had not pleaded guilty but had been found guilty.
Prospects of rehabilitation
52I very much doubt you will reoffend again in this manner or in any other significant way. Your guilty pleas are evidence of your remorse for the offending. The accident has profoundly affected you. Your referees, of which there are a surprisingly large number, uniformly attest to your deep remorse, your important achievements, your compassion, and your decency as a person and family member.
53In sentencing you to even a short term of imprisonment, I am giving effect to the punishment side of the purposes of sentencing, specifically, the purpose of general deterrence and denunciation. There is little or no need to deter you from committing this or similar offences. There is a similar lack of need to protect the community from you. Your behaviour and its consequences require punishment in the form of imprisonment. This is so even though you will suffer psychologically in prison through that fact and your appreciation of the significant difficulties your absence will cause to your family.
54You were assessed for a community correction order and adjudged suitable. That is unsurprising. You were also assessed by a registered nurse from Forensicare. I will adopt the recommendations of the assessors.
Sentence
55On the charge of negligently causing serious injury, I sentence you to six months' imprisonment and, subject to your consent and with conviction, to a community correction order of 12 months' duration with these conditions:
(a) to perform 200 hours of unpaid community work;
(b) to undergo assessment and treatment for your mental health;
(c) to undertake programs to reduce your risk of reoffending.
56Any hours satisfactorily undertaken for conditions (b) and (c) will count as hours for the purposes of the unpaid community work condition.
57Any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit for 24 months.
Section 6AAA
58Absent your guilty plea, I would have sentenced you to 18 months' imprisonment with the same period of disqualification.
Disposal order
59I will make the disposal order in the terms sought.
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