Director of Public Prosecutions v Huang

[2022] VCC 2226

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-00138

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUAXIAO HUANG

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2022
DATE OF SENTENCE:	14 December 2022
CASE MAY BE CITED AS:	DPP v Huang
MEDIUM NEUTRAL CITATION:	[2022] VCC 2226

REASONS FOR SENTENCE

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Subject:                    CRIMINAL LAW – Sentence

Catchwords:             Negligently causing serious injury – Driving on the wrong side of the road – Gravity of offending – Moral culpability – Remorse – Good character – Punishment – General deterrence – Denunciation – Expectations of the community of drivers.

Cases Cited:           Harrison v The Queen [2015] VSCA 349; Worboyes v The Queen [2021] VSCA 169; R v Lu [2022] VSC 258; Bell v R [2018] VSCA 28; Gurovski v The Queen [2018] VSCA 3; DPP V Haynes [2022] VCC 59; DPP v Barry [2017] VSCA 344; Sutic v The Queen [2018] VSCA 246.

Sentence:                Total effective sentence of 2 years and 8 months with a minimum non-parole period of 14 months and all licences are cancelled and disqualified from driving for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Gurry	Office of Public Prosecutions
For the Accused	Dr T. Alexander	Nicodemus Lawyers

HIS HONOUR:

1Huaxiao Huang you have pleaded guilty to 2 charges of negligently causing serious injury. So, once again this court is required to impose a sentence arising from negligent driving which has caused utter devastation. It was, as is so often the case, a tragedy that was completely avoidable. This case involves the causing of catastrophic and life changing injuries to the then 11 year old Sam Farnsworth and the serious injury to his mother, Lisa Farnsworth. The scale of the injuries are matters I will refer to at some length shortly. However, a brief outline of the facts and circumstances will focus attention on how avoidable this disaster was.

Facts and Circumstances

2On 13 February 2019, you Huaxaio Huang, drove to a winery in Red Hill on the Mornington Peninsula. You were at the time involved as a retailer in the wine and liquor business. You were attending a corporate function. You were not familiar with the area and had driven to the venue in a convoy with others.

3I need to point out right from the outset that although you were at a winery, and it was a function for those in the liquor industry, you did not drink any alcohol on this day.

4Around 4:30pm you left the winery to head home. You were not in a convoy. Rather, you activated the GPS navigation system in your modern car to set the route for you to drive home to Melbourne.

5You drove out of the winery in Red Hill onto Paringa Road. You drove a short distance until Paringa Road meets Point Leo Road at a T-intersection. Your navigation system told you to turn right onto Point Leo Road. Your route was to head along Point Leo Road through the township of Red Hill and from there to the freeway back to Melbourne. It was on any view a straightforward route without too many complications.

6However, what you did when directed to turn right onto Point Leo Road was to turn onto the wrong side of the road. Instead of turning across the first lane and into the correct, or lefthand lane, you made a shallow turn, and drove in the incorrect or righthand lane. Inexplicably, you drove along Point Leo Road on the wrong side of the road for another 1 to 1.5 kilometres.

7The road you were on was quiet. There were no other cars in the vicinity that may have woken you up to the fact you were on the wrong side of the road. As  you headed towards the township of Red Hill, it was the time of the day for school pick up.

8Ms Lisa Farnsworth was on a day off from work and she drove to the local school to pick up her young twin boys, Sam and Luke, then 11 years old. They were all heading back along Point Leo Road towards their family home. Sam was in the rear seat of the family car behind his mother. He was heading home at the end of the school day to continue with his lively, busy life full of football, martial arts, gaming, drawing, riding his bike and much more, all done as part of a close family, of five boys and caring parents.

9Ms Farnsworth drove along Point Leo Road in a perfectly orthodox and careful manner. She was on her correct side of a familiar road. As she approached a curve where there were double white lines, you Mr Huang appeared, driving as you had been for some time on the wrong side of the road. Both cars had been travelling at, or near, the speed limit of 80 kilometres per hour. As Ms Farnsworth said in her police statement, by the time she saw your car and you saw her, there was nothing that could be done to avoid a heavy collision. She briefly saw you before the collision, and she could see on your face sheer and utter shock and panic.

10The subsequent police investigation established the various technical aspects of this collision. Not much needs to be said about those aspects of the case save that the collision was a head on impact with the cars hitting each other with immense force. At the moment of impact, your car Mr Huang, was well and truly on the wrong side of the road and, sadly, you were completely oblivious to the fact that you were on the wrong side of the road until it was too late.

11What is clear from the circumstances is that you were not driving at some excessive speed, and you were not affected by alcohol or other substances. There was nothing apart from the fundamental error of being on the wrong side of the road that explains the collision. The absence of some other aggravating aspect of the driving, including those that are often seen in cases of this kind, does not serve to mitigate. I must deal with the circumstances as they existed and not be concerned with other factors that played no role in this tragedy.

12The prosecution and your counsel had different approaches to the question of the gravity of your offending and your moral culpability.  I will return to those issues shortly. The issue upon which there is no disagreement is the catastrophic consequences that were caused by your negligent driving.

The Serious Injuries

13It was obvious immediately after the collision that Sam, sitting in the back seat behind his mother was in a dire state. The prosecution summary of the facts and circumstances tended on the plea expressed it in the following terms

Sam FARNSWORTH was unconscious and unresponsive after the collision. He was extracted from the vehicle and CPR was performed on him at the scene. When paramedics arrived, he was in cardiorespiratory arrest and had no detectable pulse and was not breathing. ….He was subsequently transported via helicopter to the Royal Children’s Hospital. Sam was subsequently intubated and ventilated and underwent a CT scan and later surgery to insert a drain into his intracranial cavity to drain blood and fluid from around his brain.[1]

[1] Statement of Sgt Michael GRIDLEY, Deps p. 13. 

14I should note that a part of this utter tragedy was that his father Mr Neil Farnsworth was at the time a short distance away, working at Red Hill. He had seen his wife and boys and waved to them as they drove by oblivious that disaster was only moments away.  He came to the scene within a minute or so. He tried desperately to help his son Sam performing CPR until an off duty nurse came by and took over and then paramedics arrived. Mr Farnsworth refers to this excruciating aspect of being there in the immediate aftermath of this collision in his victim impact statement. It has affected him greatly.

15I will continue with describing as best I can the enormous injuries sustained by Sam Farnsworth, before returning to the serious injuries sustained by Lisa Farnsworth and what happened to Luke Farnsworth as well.

16Sam was taken to the Royal Children’s Hospital in a critical condition. His parents speak about whether Sam survived was very uncertain at the outset and for some time thereafter. Sam underwent multiple neuro and orthopaedic surgeries. He was for weeks in the Intensive Care Unit. He remained in hospital for a very long time, over 10 months before his discharge home on 23 December 2019. I will not go through all the details in the medical materials. What everyone involved with Sam Farnsworth knows is his life has been so completely altered. In short, Sam suffered very severe brain trauma involving severe and permanent injury to his brain stem. What this means is Sam can no longer speak. He is a unable to walk. He cannot breathe without assistance overnight. He cannot independently empty his bowels or bladder. A summary from his medical team reads:

As a result of the brain injury Sam need[s] assistance with all activities of daily living. He has no self-mobility and needs assistance to reposition himself in bed. He cannot use his arms in a functional way and he has minimal movement of his legs. He has stiffness (spasticity) in all his limbs. He requires a hoist for transfers and support to sit up… He has a powered wheelchair which he can control with head movements… He will require lifelong full time carer assistance to manage activities of daily living and participation in society… [and] lifelong physical therapy… [and] lifelong increased visits to hospital for specialist assessment and therapy assessments.[2]

[2] Exhibit 6 – Medical Treatment Summary of Sam FARNSWORTH dated 13 March 2020. 

17What was also noted was:

Further, the upper part of Sam’s brain did not sustain any injury and thus his cognitive function was not severely compromised.[3]

[3] Report of Dr Jo TULLY, Victorian Institute of Paediatric Medical Service, dated 22 February 2022. 

18Sam was on the morning of 13 February a vibrant, active, sporting, artistic 11 year old with his life unfolding. As a consequence of the collision, he has sustained catastrophic, life changing injuries. He will never be the young man or adult that he and his family were entitled to think he would become. He will not have all the many experiences he was entitled to expect would be part of his life. He is, and will live a life, much loved by those who hold him dear, but it will be so very different. His enduring physical discomforts are plain enough, notwithstanding every effort made by his family and carers to make things as comfortable as possible. The existence and extent of any psychological impact felt by Sam is impossible to fully gauge. It is safe to infer that he like those around him has and will have lifelong sadness and psychological scars.

19In the collision, the driver, Ms Lisa Farnsworth, suffered very significant injuries to her legs with complicated comminuted fractures to both ankles involving bone loss. She has undergone a long and painful recovery from multiple specialist surgeries to insert plates screws and wires and with more surgery likely in the future. She also sustained fractures to both feet, Her leg and in particular her ankles and feet injuries have significantly impacted on her mobility. She cannot to this day stand for long, nor walk any distance. She requires a mobility scooter. Ms Farnsworth has gone from being an active mother in a busy household, business partner with her husband and a contributor in her community, to someone deeply frustrated by her physical ailments and her profound psychological scars from the collision and its life changing aftermath. Her life is now very different and for her, bleak.

20Although no criminal charge flows from the injuries suffered by Luke Farnsworth, I note he sustained traumatic subarachnoid haemorrhaging in his brain. He had post-concussion double vision and soft tissue injuries. As I will outline by reference to his victim impact statement, there are ongoing difficulties for Luke, as there are to the whole family.

The Victim Impact Statements

21I turn now in more detail to the victim impact statements – all were raw, powerful expressions of how life has changed forever.

22I need to make clear that the law requires a sentencing judge to take into account the impact of a crime on a victim. It is a particularly important consideration in crimes of this kind.  However, I must consider the impact in a balanced way, and ensure I do not let the dreadful impact of these crimes entirely overwhelm the sentencing process.

23There are 5 boys in the Farnsworth family, three of Sam’s four brothers made and had read victim impact statements. So too did Mr Neil and Ms Lisa Farnsworth. One brother, Nicholas Farnsworth, just cannot write what he feels – it is too hard. I have to take into account that Nicholas too has been, is still, and will be into the future, deeply affected by what has happened to his brother, his mother and to family life.

24I will set out some parts of victim impact statements so all can understand what can be caused when drivers do not do what is required and expected of them.

25The eldest son, William or Billy wrote of being a normal 18 year old, who had finished high school the year before. He was excited to take on all that the world had waiting; he had a new job and was starting tertiary studies. Following the collision he was immediately thrust into a position of enormous responsibility as he became the guardian and decision maker for his younger brother Luke who was in hospital with a brain injury, but far less serious than Sam. His father had to deal with that unfolding tragedy and his mother was herself seriously injured in hospital. His responsibilities continued at home as the eldest. He found it overwhelming. His mental state commenced to deteriorate. He had nightmares and developed panic attacks.

26He could not face seeing Sam in ICU, every time he approached the ward he would freeze and have a panic attack and have to come back another day and try again. He had to seek professional help from a psychologist. He had to abandon his studies as he worked through what he described as his mental demons. He wrote:

Those who know me would [have] described me as [an] easily approachable and sociable character. I became a shell of myself and till this day haven’t been the same.[4]

[4] Victim Impact Statement of William Joseph FARNSWORTH, dated 9 September 2022.

27He reflected on his brother Sam and what he is going through and wrote at that time:

It’s now been 2 and a half years from the accident, not only has Sam made little to no recovery regarding his physical health, but the hardest thing is also sitting there looking at him mentally defeated and struggling to keep a smile on his face at the age of 13…My family will never [be] the same again, not a day goes by where I don’t think about what life could have been like if a man was not driving on the wrong side of the road and that day never happened on Point Leo Road.[5]

[5] Ibid.

28Jamie spoke of the immediate, intense shock and distress of seeing his mother, and then later his brother Sam, so badly injured in hospital. He was worried his brother may never come home.

29In describing the impact on his father – he writes with devastating insight:

Dad, I only have one word to explain him BROKEN.[6]

[6] Victim Impact Statement of Jamie Neil FARNSWORTH, dated 9 September 2022.

30He spoke of his other siblings, Billy who was so distraught at having to make important decisions as the eldest brother and Nicholas who could not sleep or stop crying. For himself he missed large amounts of school such that he had to repeat a year losing friends while enduring all the difficulties of the severe injuries to Sam and his mother.

31He wrote:

The crash stole my happiness and my personality, I didn’t want to do anything, I could not find happiness no matter how hard I tried. Spending a large quantity of my time at home alone, looking after myself, making my food, cleaning my clothes, and just being alone. I eventually decided I needed help and sought help going to a therapist once a fortnight. I struggled with the fact that my parents no longer had the time for me due to having to be at Sam’s bed side at the hospital. I had to endure and try to be sympathetic to my parents fluctuating emotions, never knowing what they will be like next time I see them, whether it be happiness, sadness or anger, which was hard.[7]

[7] Ibid.

32These are sad, poignant, insightful observations.

33Jamie like his siblings and his parents spoke of the loss of family life, with the family home becoming a converted hospital ward with so much of what goes on in the family home having to be shared with the carers. He misses so much that was the normal taken for granted family life before the collision.

34Luke Farnsworth is in quite a unique position. He was in the collision but has physically recovered. He experienced the collision, what happened, but at this point it is what has happened to his twin brother that affects him deeply. Luke wrote of the connection between him and his twin brother. As twins, as they grew up, they were always together, linked, but now it is no longer the same. Luke also spoke of the loss of the family life they all enjoyed with just Sam, his other siblings and parents – daily life is now shared with Sam’s carers as it has to be.

35Luke writes that he feels like:

It has made it hard to be me, Luke. The man that hit us has changed my life so much.

36Luke has the added psychological burden of wondering why he did not suffer the sort of injuries Sam did.  He wrote again poignantly:

I feel guilty, how did I get off with so little damage.[8]

[8] Ibid.

37He should never have been made to feel like this, but in the circumstances of his twin being so changed, such things are probably unavoidable.

38Luke concluded his victim impact statement with larger font and all caps to emphasise his point:

I JUST WANT MY LIFE, SAM’S LIFE AND THE REST OF MY FAMILIES LIVES BACK       TO NORMAL, WAKE FROM THE NIGHTMARE![9]

[9] Ibid.

39Neil Farnsworth wrote of the horror of coming to the scene within moments and seeing the devastation unfold. He desperately gave CPR to Sam before an off duty nurse came by. The trauma of being at the scene has not left him. He has developed a post-traumatic stress disorder. The impact of seeing his son Sam, a once active lad reduced to requiring permanent full time care for every part of his life, including his hygiene has greatly affected Mr Farnsworth. He has witnessed the great physical and mental pain of his wife. He spoke of family life, their businesses, their home being upended. He wrote of life being like a horror story.

40He concluded with these heartfelt words:

Lisa, my wife, it is so hard seeing her in pain, her lack of mobility, she can’t even get into the disability vehicle without help to take Sam to medical appointments. My other boys have missed out on so much, their lives, childhood, their parents that are bogged down with paperwork, meetings, decisions, emotions, specialists, TAC, this has not eased to this day. Red Hill CFA, I have been a volunteer for 30 years, I can no longer attend the fire brigade as it triggers nightmares of reliving the crash over and over again. I love my family, my family are now forever broken

MY LIFE HAS TURNED INTO A LIVING HELL!!![10]

[10] Ibid.

41Ms Lisa Farnsworth provided two victim impact statements written at different times setting out her experience and that of her son. Her first victim impact statement is a raw heartbreaking account of the pain and worry that she  endured herself. She was in hospital and separate from her family and desperately worried about Sam for months. Her injuries were incapacitating and remain a very significant debilitating aspect of her life. There is much in her impact statement and I have read and reread it all. It is a catalogue of how physical and emotional trauma. She wrote at the end:

Our lives will NEVER be the same again. All of our hopes and dreams both as a family unit and as individuals have been ripped out from under us. All      through no fault of our own, just driving home after school on my day off work. This was all caused by someone driving on the WRONG SIDE OF THE ROAD and he has completely and utterly shattered our lives physically, mentally, and emotionally, and a day does not pass where I wish it was all a nightmare that I will wake from soon.[11]

[11] Victim Impact Statement of Lisa Jane FARNSWORTH, dated 21 August 2022.

42Her second victim impact statement adds how relentless the consequences of the collision are in her life:

We are now approximately 3 and half years since that day, every day is consumed by this incident. We have constant support workers from the moment we wake until the moment we sleep, where ever we go! Our “home” is now a work place. Sam’s rooms is a hospital room, not a 14 year olds room. My days are consumed with all facets of the crash, TAC emails for myself and Sam, paperwork for myself and Sam, rostering support workers for Sam, speaking to specialists for myself and Sam, making appointments with specialists, ordering supplies, I could go on with the list being 5 times longer than this.[12]

[12] Victim Impact Statement of Lisa Jane FARNSWORTH, dated 4 September 2022.

43In speaking about her own life now she writes:

Myself, I am a shadow of the person I once was. I was outgoing, happy, social and heavily involved in the junior football club and Red Hill CFA, where I was once president of the auxillary. I now prefer to stay at home, not that I can do much there as I still cannot be on my feet for very long, I spend most of the day sitting with my legs up due to swelling.[13]

[13] Ibid.

44Ms Farnsworth provided detail of the many aspects of her life – as a wife, as a mother, work partner, community member, where things are just not what they should be, all of which causes her great distress. She summarizes that with these words:

“the simplified statement is, I AM EMOTIONALLY, PHYSICALLY, SOCIALLY & MENTALLY SCARRED.[14]

[14] Ibid.

45She then turned to the impact on her son Sam and wrote:

I would like to also be a voice for my son Sam, as he now no longer has one, my poor Sam………. He had his whole life ahead of him, 11 years old and the world at his feet,  What my poor boy has endured, one moment he was in the back seat of the car doing what he loved most, drawing, and he was amazing, his talent was out of this world, to then awaken approximately a week later, with nothing, from the chin down, no movement, no voice, life as he knew it was gone.

Sam is now nearly 15, he has support workers do EVERYTHING for him, personal care, showering, dressing, turning things on and off, moving things, moving him, they are Sam’s voice, arms, legs, fingers, they advocate for him. Sam is now a very insecure boy with a major fear of falling, whether he is in his wheelchair, lounge chair to bed, he is PETRIFIED!!!!![15]

[15] Ibid.

46She speaks of Sam losing his friends as it is so hard for them to communicate with Sam.  She fears Sam will be in and out of hospital for the rest of his life. The impact on the whole family is described by Ms Farnsworth as: ‘a family broken, devastated, struggling, unstable’.[16]

[16] Ibid.

47Notwithstanding the length of my quotation and references to the victim impact statements there was much more said in each of those statements and, as was said by each in the family, much more that could have been said. It is important for the victims that there is a sense that they have been listened to and the lifelong impact on them is as understood as it can be. This process aids in what Justice Vincent called the “much undervalued social rehabilitation of victims”.[17] But again, I emphasise that I must approach this aspect of the sentencing process in a measured and balanced way.

[17]DPP v DJK [2003] VSCA 109, [17]-[18].

Assessment of the Gravity and Moral Culpability

48Just as the Sentencing Act requires me to consider the impact on the victims,[18] I am also required to assess the gravity of your offending and your moral culpability. In assessing the gravity of your offence, I must examine the degree of negligence involved and the scale of the injury caused.[19] The degree of negligence involves all the circumstances of the driving conduct and the level of risk created to other road users. In other words, in this case, it is both the risks created by driving on the wrong side of the road and what occurred when that risk materialised.

[18]Sentencing Act 1991 (Vic).

[19]Harrison v The Queen [2015] VSCA 349; 49 VR 619 [44].

49Although it is necessary to consider the relative gravity of the offending – that is where this particular offence sits compared to other examples of the crime – the Court of Appeal has cautioned against overly fine graduations and categorisations.[20]

[20] Ibid.

50The Court of Appeal in Harrison and subsequent cases have made clear that negligently causing serious injury by driving is a serious crime,[21] where the sentencing purposes of deterrence and punishment were to be the primary sentencing purposes.

[21] Ibid.

51The Court in Harrison considered a wide array of issues relating to sentencing for the crime of negligently causing serious injury by driving.[22] The Court commenced its broad analysis of the offence with these words:

The motor vehicle is an integral part of our society. Most adult citizens drive cars. A car driven negligently is capable of producing catastrophic consequences for victims. When the degree of negligence of the driver increases, there is a corresponding increase in the likelihood of devastating consequences. The most serious instances of the offence of NCSI by driving demonstrate negligent conduct of the very highest order.

The law thus provides for particular penal consequences for those who drive in a negligent manner and cause serious injury. The primary purposes for the sanction are twofold: to punish the offender and to deter drivers from driving irresponsibly.[23]

[22] Ibid.

[23] Ibid, [106]-[107].

52Your Counsel in his comprehensive submissions described your mistake as entirely inadvertent and that notwithstanding that the consequences were catastrophic, the proper assessment was that the gravity of your offending was low.

53The prosecutor’s equally outstanding submissions argued that this was a grave departure from the standard of care expected and required of a driver to, at the very least, drive on the correct side of the road. The risks created to all road users were very significant and, when realised, caused devastatingly serious injuries. Thus, the offending was properly seen as in the middle to upper range of seriousness.

54The negligence involved in this case is obvious, though inexplicable. Driving on the correct side of the road is fundamental to safety on the roads. A driver who does not stay in the correct lane presents as a lethal risk to other drivers who simply do not expect to face a car coming at them, even marginally over the dividing lane, let alone completely in the wrong lane heading straight at them. It is every driver’s worst nightmare, words your own Counsel used.

55This court deals with all manner of examples of negligent, dangerous and culpable driving, where a driver may drift across lanes, or go to overtake when there is not enough room or time to do so. It is uncommon that the driver has by mistake, driven into the wrong lane and proceeded on oblivious.

56You, Mr Huang, have been driving in Australia without breach of the road laws from 2016 or even earlier. You were from all the evidence, a careful and responsible driver. You did from time to time, return to China and you drove there, of course, on the other side of the road from how traffic moves in Australia.  However, always on your return to Australia you resumed lawful driving behaviour according to our road rules. Your latest time in China before the collision on 13 February 2019 saw you return to Australia on 9 February 2019. You had after your return, driven in Melbourne, including driving on that very day to the event on the Mornington Peninsula.

57As was said, why you drove on the wrong side of the road is as inexplicable as it is tragic. However, the fact this tragedy was caused by one inexplicable mistake cannot in the circumstances of this case greatly lower the gravity of the crime. The degree of negligence involved in turning onto the wrong side of the road and then not correcting the obvious error for 1 – 1.5 kilometres makes this a serious example of negligence. I do not see this as brief inadvertence or a slight misjudgement or momentary inattention. This was a dangerous mistake that no responsible driver should make. There were the usual dividing lines, which became double unbroken lines on the curve leading up to the collision. The road had fog lines on the edge. This was not some confusing scenario. It was a high standard rural road, where it was safe for a responsible driver to move along at the high speed limits allowed. Your breach of the fundamental road rule to drive on the correct side of the road, risked the sort of catastrophic outcome that sadly materialised.

58In making my assessment of the gravity, it is clear on all the circumstances, you did not mean to make this horrible mistake and now you profoundly regret that you did. However, this is an offence where objective or community standards of what is expected of a responsible driver are what I must consider. That your mistake or negligence is inexplicable does not dimmish the objectivity gravity of the offences.

59In my assessment I do see this as a serious example in the mid-level of gravity for this offence.

60The assessment of moral culpability is always difficult. On any assessment you, Mr Huang, are the sole cause of this calamity, and its avoidance was so easily achieved. However, while the objective gravity of the negligence is, as I have said, in the mid-range, an assessment of your moral culpability leads me to conclude that is not at that same level. It is, given the unintended nature of your mistake, proper to see your moral culpability as lower than mid-level. However, it is not to be seen at the lowest levels of true, momentary inattention. This was a colossal mistake that continued without you waking up to it, or correcting, for some time. The prolonged nature of the error takes your moral culpability to a higher level. In short, you were simply not paying attention to what you were doing as every driver must. You had enough experience on Australian roads. You were not like a foreign tourist on the first trip in a hire car confused by our road rules.

Genuine Remorse

61Although I have not spoken of your personal circumstances as yet, I want to move directly to what is an important feature of this case. It is a feature that connects to the concept of moral culpability, though it is of itself a separate consideration in the sentencing synthesis. What I am referring to is the exceptional level of your remorse. Your remorse is genuine and profound. It is displayed in a measure and in ways rarely seen, even in a case of this kind, where genuine remorse is often a feature. You intensely regret causing such suffering to the Farnsworth family by your dreadful mistake. You are one of the rare few, whose remorse is not because their offending means they face punishment. Your concerns are for the victims.

62You have done all you can, including writing letters of apology. Your first letter of apology read in part:

I write this letter to you with a shaking hand and a heavy heart because my mistake on 13 February 2019 has caused you and your family great harm and great grief. I understand that, in the past year and more, you and your children have been through terrible suffering. I understand that, in the past year and more, Lisa, Luke, Sam, and the rest of the Farnsworth Family have been through something that no family should have to experience. It is all the more hard for me to bear because I caused it. I understand that each day you have suffered mentally and physically.  All these were due to me, due to my mistake. This is a burden I carry every day and will for the rest of my life. My heart is broken by your pain.  You should be able to lead happy lives and I have destroyed that. It is the greatest pain that I have ever felt knowing that my conduct was the cause of so much sorrow.  I also understand, no words could pretend to express what this has been like for you and your family. Although I cannot fix the pain from the accident, it is to my eternal regret that I made the mistake that I did that day.[24]

[24] Letter of Apology to the Farnsworth Family from the Huaxiao HUANG, dated 16 August 2022.

63In a separate letter you again expressed your deep concern for the Farnsworth family. You proposed and went through with a large donation to the charitable foundation set up for the Farnsworth family. I have redacted the amount from the published reasons, out of respect for the Farnsworth’s privacy.

Following my Letter of Apology, I wish to write this separate letter to your family, as in my mind, this is a separate matter to address. I have been keeping up to date with your family’s situation through news articles and the radio, as well as through your Police Statements to date. It pains me to hear of the suffering I have caused your family. I understand that you may not even want to hear from me at all, however, I plead with you and your family to give me this brief opportunity to express the below. I have spent every day reflecting on what I have done. As someone who is 53 years old, I understand the deep sense of duty and responsibility that parents have to their children. You and your family’s suffering is not something that I can reverse. However, if you accept, I do have some means to support and help your family alleviate the predicament you are in right now, it is my wish to help, if your family chooses to accept such assistance. I know that your family has set up a Support Team Farnsworth charity page.  I make this offer from my heart and my conscience, not from any other place. Should your family accept, I wish to assist you with a $ ……..donation.  We are not rich people, but I want to help alleviate at least some part of the consequences of my actions.[25]

[25] Letter of Donation to the Farnsworth Family from the Huaxiao HUANG, dated 16 August 2022.

64You spoke directly to the family and the court reading another letter of apology at the end of your plea. I note that what you have written has been translated from your first language Mandarin. It does not seem to have lost any impact in the translation. What you wrote were heartfelt sentiments of remorse and empathy.

65The dire consequences of the collision have changed you. You are quite simply not the same man you were before, and you will never be the same again. What occurred has, and will, haunt you lifelong.

66The community are more troubled if an offender shows no or little genuine remorse. If remorse is shown, then right minded members of our community are more understanding when the courts say there are good reasons to show an offender mercy. It is seen as more deserved. I must acknowledge your remorse, not merely by speaking of it, but by ensuring in the overall synthesis this aspect results in a lower sentence.

67Your own letters of apology are clear and compelling evidence of your remorse. There are many other examples, in the letters from those who know you best tendered on your plea, in the psychological material from your treating clinicians, and in Mr Cummin’s forensic psychologist reports.

Plea of Guilty

68Your remorse is also connected to your plea of guilty. I must acknowledge your plea and give to you a benefit more pronounced now than in pre-COVID times. The Court of Appeal in Worboyes said in the following:

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.[26]

[26]Worboyes v The Queen [2021] VSCA 169, [35] and [39].

No Prior Convictions and Good Character

69You have from the outset, accepted that you were responsible for the crimes. This attitude, and your remorse, fit with your underlying good character.

70You have no prior or subsequent criminal history. You are entitled to call on that fact in seeking a merciful sentence. However, in this regard I must acknowledge what has often been said by the appellate courts in dealing with crimes of this kind, that often those who make the one, but grossly negligent mistake, while driving are persons of previous good character. This fact of previous good character cannot be given too great a weight in the sentencing process.

Personal Circumstances

71I turn now to your personal circumstances. You are now 53 years old, 50 at the time of the collision. You were born China, the youngest of four children. Your father was a public servant and your mother a factory worker.  Your parents are both still alive, now in their 80’s, and they are both still in China. Your older siblings also live in China.

72You grew up in a middle-class, law abiding family. You completed High School in China in 1988 and then worked at a toy factory as a manager for around 3 years. After working briefly as a company driver and sales consultant, you commenced working in a government position which you held until 1999.

73You then worked at a trading company as a general manager, before opening your own business as a distribution agent in 2001, then opening a car trading company, and then a Nissan dealership. Your older brother now owns that business. Your very impressive work history is to your credit.

74You came to Australia in 2014 looking to relocate for educational opportunities for your son. In 2015, you were granted an investment visa and the following year 2016, you, your wife and son moved to Australia. That year your family purchased a Cellarbrations, retail liquor store, on Punt Road, Windsor

75Your son wrote:

Our family is a traditional Chinese family. So far, most of the time in my life has been living with my parents and grandparents in China. My father had been running a business in China which supported the whole family. He is the man who takes good care of each family member such as their jobs, school and even the small things in their lives. One of the main reasons that our family decided to move down to Australia was me. Hence, my parents decided to come with me in a way that they can take care of me instead of having to worry about me being alone in another country. I know that when my parents came with me to Australia, they had given up the business in China and have less opportunity to take care of my grandparents. The longer we have lived in Australia, the more we enjoy it here and we love to live in this city. From the bottom of my heart, I deeply respect my father. He is a man who taught me to be kind with other people. A man who taught me to love and protect the family.[27]

[27] Character Reference by the Huaxiao HUANG’s Son, dated 22 March 2021.

76Your wife and many others, be they customers, employees, neighbours, business advisers, all who are now your friends, wrote in similar terms.  I have taken all that has been written about your many good qualities into account. 

77The impact on you of the collision has been very considerable. Your wife wrote:

After the accident, my husband changed totally. He has very low mood, and he was very depressed. He didn’t want to have any contact with the outside world. He stayed at home all the time. During that period, our family lived in darkness and in pain. No smiles appeared on our faces. My husband, who was very confident in the past, was knocked down by this accident.[28] 

[28] Character Reference by the Huaxiao HUANG’s Wife, dated 22 March 2021.

78After learning more details of the full extent of the injuries you deteriorated. As your wife put it:

My husband’s conditions of stress became worse. Each night, he relied on sleeping pills and he went to see a psychologist to help him with his mental issues. Due to the changes in his mood, we could not continue operate our liquor store, and we had to sell it. Our son, who was being very supportive and helpful, understood that it was time that he should try and shoulder responsibilities for our family, put his master’s studies on hold, so that he could focus on the family matters. He only returned to his studies early this year.[29]

[29] Ibid.

79It is of note that your son has changed his focus in his studies and, as a consequence of the collision, is now researching in the area of automotive safety.

80Although it has been said by the appellate courts that mitigatory matters arising from your personal circumstances must yield to the sentencing purposes of deterrence and punishment, it is clear from all the evidence that there is almost a sense of unfairness that something like this could befall such a decent, upright, generous man as you have been.

Mental Health

81Your mental health is relevant to the sentence to be imposed. As described by your wife, you were immediately in a dark place after the collision. Your GP could see you were in need of assessment and dedicated psychological treatment. He referred you to Mr Leung, a qualified psychological counsellor. You saw or spoke to him in less than ideal circumstances, throughout the pandemic from 2020 and up to July 2022. Mr Leung concluded that you were displaying symptoms of PTSD and, on testing and from his clinical observations, you had moderate levels of depression and anxiety requiring intensive counselling and medication to sleep. I have read and taken in Mr Leung’s helpful report.

82Mr Cummins, the experienced forensic psychologist, examined you twice – once in early 2020 and then again before your plea in August 2022. Mr Cummins in his final report confirmed the diagnosis of PTSD. He also, like others, spoke of your intense feelings of guilt, shame and genuine remorse. Mr Cummins was of the opinion that your mental health would inevitably deteriorate and very significantly so if you were incarcerated.

83It is clear that you have gone from a man with stable mental health, strong self-esteem, and confidence about your future and that of your family, to a man wracked with guilt, poor self-esteem and a diagnosed mental illness of PTSD with depression and anxiety. Your current view of the future is bleak. This is all developed as a reaction to the crime, the consequences for the victims and your own much altered prospects. The fact that your mental health has deteriorated as a response to the offending does not, in this set of circumstances, mean that it is entirely irrelevant to sentencing, on the contrary. I do consider that any period of incarceration will be more onerous on you by reason of your mental health and, on the evidence, it seems there is a real risk your mental health will deteriorate if you are incarcerated.

84Your counsel urged that the full impact of general deterrence should be appropriately ameliorated by reason of your impaired mental function. I am not convinced, in the circumstances of what is a reactive deterioration in your mental health, that this would be a basis for the community to be comfortable that you are no longer a proper vehicle for the central message of deterrence to be sent to other drivers. In my view, general deterrence can be moderated if the circumstances of the offender are such that it is clear that using that offender as an example to send a message to others is not fair or right. It is the nature and circumstances of the offender’s impaired mental functioning that needs to be considered, and whether what has befallen the offender before or after the offending simply makes the particular offender different to others, such that fair minded members of the community would be uncomfortable using that offender as the one to make an example. I cannot see that the fact of, or the extent of, your almost inevitable PTSD, depression and anxiety are such that in the circumstances of a horrific collision caused by your negligence, that the community would say you are not the one whose sentence should have the appropriate measure of deterrence directed at others.   

Risk of Deportation

85As noted already, you are a migrant who came to Australia from your native China. You have a permanent residence visa. You are not an Australian citizen. By reason of the Commonwealth migration laws, you are at risk of having your visa cancelled. The possibility of deportation is a brutal reality.

86The reason your immigration status is at risk is because of the offences you committed and ultimately the sentence I impose.  Precisely how the fact that there is some risk of deportation is relevant to the sentence to be imposed was recently articulated by the Court of Appeal in Hague.[30] In that case, what a sentencing judge was permitted to consider was outlined. The Court said:

It is well accepted that the prospects of an offender's deportation is a relevant consideration in the sentencing process.  It may bear upon the impact the sentence of imprisonment will have both during the currency of the incarceration and upon release.  In an appropriate case it will be proper to take into account the fact that a sentence of imprisonment will result in an offender losing the opportunity of settling permanently in Australia.[31]

[30]Hague v The Queen [2022] VSCA 17.

[31] Ibid, [22].

87The court went on to say the following:

In our view, the permissible ways that a court can consider the very considerable chance that the applicant will be deported are as follows:

(a) the prospect or real chance of the applicant's future deportation can be considered an extra curial form of punishment; and  

(b) his time in prison will, we find, undoubtedly be more burdensome than it is for others or, indeed, than it otherwise would be for him due to anxiety about prospects of future deportation.[32]

[32] Ibid, [31].

88I take into account that any time you may have to do in a Victorian prison will be particularly onerous because you will be concerned as to whether you will be allowed to remain and make your life in Australia as you wish. Losing the opportunity for you and your family to make a permanent life in Australia is a significant loss. All the testimonials speak of your contribution to your community and desire to remain in Australia. I reiterate it is for others in the Commonwealth executive to decide immigration matters. My concern is to recognise how much harder any prison time will be for you as you contemplate the risk of deportation. I cannot, however, impose an inadequate sentence simply to give you a fighting chance with your immigration status.

89An additional factor is, that if I fix a head sentence and a non-parole period, I must be more aware that you may have to do every day of the head sentence as the Parole authorities have made clear that there are added complications for those with uncertain immigration status when it comes to parole decisions. That said, if I fix a non-parole period, it will be no more or no less than what justice requires as a minimum period of incarceration. Whether and when you are granted parole is for others not the Court.

Cumulation

90While your negligence caused the collision, the two serious injuries mean there are two charges that required separate punishment. The law in this area is clear; I must acknowledge the separate impact on each victim by sentences that are in part cumulative. This is not an insignificant consideration in your case, as one of the options – not urged by either party as their primary position – is a sentence involving imprisonment combined with a Community Corrections Order (‘CCO’).

91Parliament has restricted sentencing discretion to only permitting a sentence of less than 12 months imprisonment to combine with a CCO. Orders for cumulation must be proper and adequate and cannot be unduly tailored or shortened in order to allow for a combined disposition.

COVID-19

92I must take into account that any period of incarceration will be more onerous because there remains restrictions or the potential for restrictions imposed on prisoners as the prison authorities continue to deal with the Covid pandemic. It is still a reality. You fell ill with COVID yourself recently and your sentencing had to be delayed.

Other Cases of Negligently Causing Serious Injury by Driving

93I have reviewed the cases referred to by Counsel, including as is obvious Harrison,[33] but also Barry,[34] Sutic,[35] Gurovski,[36] Bell,[37] and first instances sentences Lu,[38] and Haynes.[39] The cases are helpful, but what is made clear in looking at them that no two cases are alike and each sentence is determined based on the unique facts of each case. No other sentence is a precedent for another.

[33]Harrison v The Queen [2015] VSCA 349.

[34]DPP v Barry [2017] VSCA 344.

[35]Sutic v The Queen [2018] VSCA 246.

[36]Gurovski v The Queen [2018] VSCA 3.

[37]Bell v R [2018] VSCA 28.

[38]R v Lu [2022] VSC 258.

[39]DPP V Haynes [2022] VCC 59.

Submissions as to Sentence

94The prosecution submitted that, given the need for denunciation and deterrence to other drivers, and given the serious failure to abide by the basic road rule and expectations of the community of drivers, and given the very grave life changing injuries, that the only just and appropriate sentence was one involving imprisonment with a head sentence and non-parole period.

95Your counsel referred to the many mitigatory factors that he said set your case apart.  He urged me to consider that the offending behaviour was an inadvertent or one off mistake. He submitted that notwithstanding this was a tragic case, that by the application of sentencing principles, a non-custodial sentence was the proper and just sentence. He argued correctly, that a CCO can operate as onerous punishment and it is a sentencing option which deters. He contended that a jail term was simply too punitive in all the circumstances. This summary hardly does justice to his very helpful submissions. I have considered all the submissions, written and oral.

Purposes for Sentence

96As has been repeated often, the most prominent sentencing purposes for offences of this kind are denunciation and deterrence to other drivers. It is sometimes said, as it was by your Counsel that a sentence of imprisonment serves little purpose and is counterproductive when the offender has acted negligently – has made an unintentional mistake – and is truly remorseful and highly likely to resume lawful ways. However,  the Court of Appeal has made it clear that punishment for the serious harm caused is required, even where offending is not intentional, but rather is a gross falling short of what is expected of a responsible driver. Punishment in the form of the loss of liberty is the usual and expected outcome, though of course jail is not inevitable. The question to be asked is not the easy rhetorical one of what is the point of a jail sentence for a man like you who made one mistake. The issue is as was raised and settled in Harrison,[40] the consequences of a driver failing so far short of the duty of care required when driving a car at speed that punishment must be part of the sentencing equation harsh as that may seem.

[40]Harrison v The Queen [2015] VSCA 349.

97Likewise, deterrence to other drivers is the foundation of sentencing for crimes of this kind. All drivers must understand that falling so short of proper care and responsibility will lead to punishment and usually immediate incarceration. This message must be unambiguous and consistent. 

98The other relevant sentencing purpose as set out in the Sentencing Act, is that I endeavour to establish conditions that may facilitate your rehabilitation. In consideration of that purpose, what is notable is your rehabilitation or return to lawful ways is guaranteed because of your character and your way of living. The court needs to do little, if anything, to enhance your reform. However, this sentencing purpose is one that must yield to the other sentencing purposes I have mentioned, given the seriousness of the offences and all your personal circumstances.

99I have experienced, as so many in my position have also in cases of this kind, great difficulty in balancing all the important matters I must consider. I have given this case long and anxious thought. I have considered the powerful submissions made by both counsel. I have considered as I must the grave impact on the victims. I have not given mere lip service to the many mitigatory matters simply because the offending and its consequences are so serious.

100It is always a grave step to send a man like you to prison. I am only justified in doing so if there is no other option. In a civilised society like ours, jail must be the punishment of last resort. However, in this case, there is no other option if I am to properly express denunciation and deterrence to others and meet the gravity of the offence with a proportionate sentence.

101Although it may be hard for you to see, I assure you the many powerful matters in mitigation have been factored into the sentence. I have at the last moment again revisited the sentence, the orders for cumulation and the non-parole period to be sure that all is as merciful as the law and the circumstances would allow.

102For committing the offence of negligently causing serious injury to Lisa Farnsworth, Charge 1, I sentence you to serve 1 year and 3 months imprisonment.

103For committing the offence of negligently causing serious injury to Sam Farnsworth, Charge 2, I sentence you to serve 2 years and 3 months imprisonment.

104I order that 5 months of charge 1 be served cumulatively upon the sentence imposed on charge 2.

105The total effective sentence is 2 years and 8 months and I order you to serve 14 months before being eligible for parole.

106Had you pleaded not guilty and after trial been found guilty I would have imposed a sentence of 5 years and with a non-parole period of 3 years.

107I further order that all licences you hold are cancelled and you are disqualified from driving for a period of 2 years.