Director of Public Prosecutions v Ji
[2023] VCC 1227
•16 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02510
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
MAW JI
---
JUDGE: | HIS HONOUR JUDGE O’CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2023 | |
DATE OF SENTENCE: | 16 June 2023 | |
CASE MAY BE CITED AS: | DPP v Ji | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1227 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence; dangerous driving causing death; inadequate signage; category 2 offence; consideration of s 5(2H) of the Sentencing Act; substantial and compelling reasons engage statutory exception; cognitive impairment; poor physical health; lack of prior criminal convictions; delay; refugee background; risk of deportation; lack of aggravating factors; reduced moral culpability; 2 year licence cancellation and disqualification.
Legislation Cited: Sentencing Act 1991 (Vic); Road Safety Act 1986 (Vic).
Cases Cited:DPP v Lombardo [2022] VSCA 204; R v Verdins (2007) 16 VR 269.
Sentence: 30 month Community Correction Order.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr R. de Krester | Adrian Paull Criminal Lawyers |
HIS HONOUR:
Introduction
1Maw Ji, you have pleaded guilty to one charge that at Norlane in Geelong on 16 March 2020 you drove your motor vehicle in a manner that was dangerous to the public having regard to all of the circumstances and in so doing caused the death of Glenn Douglas Hocking.
2At about 6.43pm on Monday, 16 March 2020, you were driving your 2007 Toyota RAV 4 motor vehicle south along Melbourne Road in Geelong intending to go to work at a nearby poultry factory. Seated next to you in the passenger seat was a work friend, Travis Kelly. You regularly travelled on this route to get to work. Although it was dawn, visibility was relatively dark and vehicles were still using their headlights.
3At the time you were 44 years of age and the holder of a Victorian P2 probationary license.
4As you approached the intersection of Melbourne Road and North Shore Road, Mr Kelly told you that you had missed the turn off, a service lane on the left of Melbourne Road. You acknowledged the mistake and stopped your car at the red lights of the intersection. You switched on your indicator and when the lights turned green you began to turn left contrary to the arrow painted on the road and a sign which you had previously passed indicating no left turns displayed on Melbourne Road.
5As you executed the turn you did not keep a proper lookout. Mr Hocking was travelling on his motorcycle in the slip (service) lane continuing straight through the intersection. Your vehicle collided with Mr Hocking’s motorcycle throwing him from his vehicle and causing him to travel through the air and hit a signpost on the other side of North Shore Road. Despite CPR being administered by bystanders and then ambulance officers, together with other efforts to assist him, Mr Hocking died at the scene.
6You and your passenger were not injured. You pulled over and parked on North Shore Road and waited for police to attend. When they arrived shortly afterwards you were given a preliminary breath test which was negative for alcohol. You were later taken to Geelong hospital for the purposes of providing a blood sample. No alcohol or drugs were detected.
7Mr Hocking was 54 years of age at the time. The cause of death was attributed to multiple injuries sustained in the collision. It was the opinion of a forensic pathologist that the injuries sustained would have caused rapid unconsciousness and death and were not survivable. A toxicological analysis the deceased’s blood and urine indicated no alcohol or drugs could be detected in the deceased’s system.
The collision scene
8Melbourne Road is a two-way 6 lane divided road allowing for three lanes to travel in each direction. Parallel to the southbound lanes of Melbourne Road on the east was a one way service lane permitting vehicles to turn left into North Shore Road and also to travel straight ahead before merging with southbound lanes. There were traffic lights controlling the intersection including the straight - ahead service lane. That lane was separated from the three southbound traffic lanes on Melbourne Road by a narrow concrete traffic island. About 120 metres north of the intersection there was a break in that concrete traffic island which provided access to the service lane. About 50 metres north of the intersection there was a traffic sign stating “No Left Turn From Centre Lanes”. A left turn into North Shore Road was only permitted from the service lane - it was not permitted from the left lane of the three southbound traffic lanes as you attempted.
9The Norlane hotel is situated on the corner of Melbourne Road and North Shore Road and investigators obtained CCTV footage from the hotel which showed the collision from a distance. That footage was viewed at an earlier preliminary hearing of this matter.
10This collision was also investigated by police from the major collision investigation unit. They were unable to locate any pre-impact breaking marks from either the RAV4 or the motorcycle. A collision reconstruction expert determined that the deceased’s body came to rest approximately 20.5 metres from the first impact with your vehicle. The expert estimated that the motorcycle was travelling at a minimum of 51-59 km/h. It was likely in their opinion that it was travelling faster but they were unable to calculate how much faster. The speed of the RAV4 could not be calculated at impact because it had come to a controlled stop but it may have been going as slow as 5 km/h.
11Later that day you participated in a record of interview with police with the assistance of an interpreter. During the interview you told investigators:
· that you were “just going through but I couldn’t see clearly”;
· that “it was suddenly so I can’t remember”;
· that it was your first time driving in that lane;
· that you were in the left lane and drove into North Shore (Road);
· that you did not know what the sign no left turn meant;
· that you use the bus route very often;
· that you did not know that you were in a lane from which you were not permitted to turn left;
· you stated “actually I know that I should not go but I just, like, in my ears, go go go - it’s - I just heard that so I - I go; and,
· that the windscreen was “cloudy”.
12It goes without saying that causing the death of a person by driving dangerously is an inherently serious offence and is punishable by a maximum term of imprisonment of 10 years. It is defined as a Category 2 offence for the purposes of the Sentencing Act 1991 meaning that a custodial sentence must be imposed unless, relevantly for the purposes of this case, the offender is able to show that there are substantial and compelling circumstances that are exceptional and rare that justify not imprisoning them.[1]
[1] Sentencing Act 1991 (Vic) s 5(2H)(e).
13An important consideration in the formulation of your sentence is to assess the impact this offence has had on the victim’s family. In that respect, the Crown filed seven victim impact statements which describe the devastating effects Mr Hocking’s death has had. Those family members were:
· Philippine Hocking;
· Sharon Hocking;
· Julie O’Connor;
· Gary Kammermann;
· Gerard Kammermann;
· Paddy Kammermann; and
· Jack Kammermann.
14Sharon Hocking, Mr Hocking’s sister, read each statement to the Court this morning. She did so in a manner, it must be said, that was particularly moving. The following extract from the statement made by Mr Hocking’s mother, with whom he had lived for a large part of his life, provides some sense as to how he is missed:
“Every morning for 18 years I would get up at 530, make his lunch and coffee. I’d hear his alarm and no he was up. He always had the same lunch in a brown paper bag. When he was ready to leave for work and open the gates to let him out shutting the gate behind him. I’d wave as he set off to work and before he went out the gate I’d tap him on the shoulder and say I’ll see you when you get home. I’d stand and watch him go around the corner shut the gate and reopen it when it was time for him to come home. On March 16, 2020 I went through the same morning routine that I had always done that a couple of hours after Glenn left, I opened the door to the knock of the policewoman. I knew what had happened when I saw her standing there and broke down in tears. I didn’t know earlier that day that this would be the last time I saw my beautiful boy.”
15I have taken each of those statements into account.
Procedural history
16As has been indicated you committed this offence on 16 March 2020. You were not charged until 10 March 2021. You were committed to stand trial in this court on 24 November 2021. Thereafter, a case conference was held on 2 September 2022 following which a sentence indication was listed to be heard on 13 December 2022.
17That hearing was unable to proceed because in the interim you were diagnosed with cancer and commenced intensive chemotherapy treatment in November 2022. After completing that course of chemotherapy the matter was relisted for sentence indication on 18 April 2023 at which time the matter resolved. The plea hearing took place on 16 June 2023.
Personal circumstances
18You were born in January 1975 and are now 48 years of age. You live with your wife, your mother in law and four children aged between 4 and 19 in Norlane in Geelong. Importantly, you have no previous criminal or road traffic convictions.
19You were born and raised in rural Myanmar close to the border with Thailand. You are the eldest of eight children. Both of your parents worked as rice farmers. Your father is now deceased whilst your mother is currently living in a refugee camp in Thailand. There was, as you grew up, no opportunity for you to attend school and as result you have had no formal education. Essentially you worked in the rice fields for your parents from about the age of 12 into your early adulthood.
20You married your wife who has a similar background when you were about 20 and soon afterwards fled Myanmar into Thailand to escape the civil war. You and your wife spent many years living in a refugee camp in North Thailand and during this time three of your four children were born. All of your family have been exposed to multiple traumatic events throughout the years living either in Myanmar or Thailand.
21Eventually you and your family were granted refugee status and relocated to Australia in 2016. You then settled in Geelong and another child was born who is now about five years of age. Your mother-in-law has some significant ailments and is dependent on your wife for her care.
22You learnt to drive after you came to Australia. You required the assistance of an interpreter to obtain a learner’s permit and you were subsequently taught to drive by a community member volunteer. An interpreter was present when you undertook your driving tests. Having a licence provided you with a measure of independence and enabled you to obtain work. Initially you worked at a poultry processing factory for about 18 months. You then worked in a metal factory for about a year or so before having to go on sick leave in September 2022 when you fell ill with nasopharyngeal cancer.
Statutory framework
23Before turning to the submissions made on your behalf I should set out the statutory framework to which the thrust of those submissions was directed.
24Section 5(2H) of the Act relevantly provides:
In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
...
(c) the offender proves on the balance of probabilities that—
...
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
25Division 2 Part 3 essentially deals with terms of imprisonment.
26s 5(2HC) of the Act provides:
In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(d) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(e) an early guilty plea; or
(f) prospects of rehabilitation; or
(g) parity with other sentences.
27Section 5(2I) also provides that:
In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament’s intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
28As was noted in Lombardo[2] these provisions operate so as to qualify the principles of proportionality and parsimony.
[2] DPP v Lombardo [2022] VSCA 204, [20] (McLeish, Niall and Kennedy JJA).
29In applying the statutory test two steps are required. The first is to determine whether there are substantial and compelling circumstances. That phrase means that the circumstances must be “weighty and forceful or powerful”.[3] They must be such as to justify not imposing a custodial sentence.
[3] Ibid [66].
30The second step asks whether those circumstances are also ‘exceptional and rare’. That is, whether those circumstances are “wholly outside the ordinary factors typical” of the offence of dangerous driving causing death.[4]
[4] DPP v Lombardo [2022] VSCA 204, [71].
31In applying this test there are a number of further conditions to be taken into account. The court must regard general deterrence and denunciation as more important than other sentencing purposes. Less weight should be given to the offender’s personal circumstances than to the nature and gravity of the offence. The court cannot have regard to the offender’s previous good character (other than a lack of previous convictions), any guilty plea and prospects for rehabilitation. Further, that Parliament’s intention is that a custodial sentence “should ordinarily be made” Category 2 offences. Finally the sentencing judge must have regard to whether the cumulative effect of the relevant circumstances would justify a departure from a custodial sentence.[5]
[5] Sentencing Act 1991 (Vic) ss 5(2HC), (2I).
Defence submissions
32Mr de Kretser sought to establish that your circumstances are substantial and compelling and exceptional and rare.
The nature of the intersection
33It was first submitted that this was a complex and unique intersection where the signage regulating left-hand turns was inadequate.
34The police officer in charge of the investigation gave evidence at committal that the intersection had been built for a specific purpose related to the old Ford factory in Geelong. It was “very unique”. He had been advised that VicRoads had planned to conduct remedial works at the intersection. Indeed, a report about the intersection generated by VicRoads had proposed blocking the southbound service lane to through traffic.
35At committal Dr Janelle Hardiman, an expert collision reconstructionist, gave evidence to the following effect:
· She believed that this was an unusual intersection because normally that service lane either comes back onto the main road or it’s a slip lane to the left;
· she did not recall ever going to a similar collision at a similar road design as there was in this case;
· she did not recall ever going to a site where the service lane continued straight through a major intersection; and,
· the intersection was complicated because there were different speed limits between the main road in the service lane and yet the service lane proceeded straight ahead.
36Evidence was adduced that at some point before the collision a second sign indicating no left turn from the centre lane had been taken down. On the day of the collision there was only one sign to that effect located 50 or so metres before the intersection. The sign that was in place was in poor condition. Photographs show that it was turned at an angle, the arrows indicating the path for traffic were bent, the sign was dirty and it was to some minor extent defaced by graffiti.
37It was further contended that there was a live issue as to the applicable speed limit in the service lane. The informant had received conflicting information as to whether the speed limit was 50 km/h or 80 km/h. Had the matter proceeded to trial that issue would have been litigated at length, as would the issue of the speed of the motorcycle being driven by the deceased.
The nature of the driving
38The dangerous driving constituting this offence tended, it was submitted, to the lower end of the range of seriousness for this offence. That was put by reference to an absence of aggravating features such as speed, alcohol, drugs or protracted inattention or recklessness. Moreover, your failure to keep a proper lookout could only have been for a very short period.
Moral culpability and objective gravity
39Taking into account the unusual and complex nature of the intersection together with the manner in which you drove on this occasion it was submitted that the objective gravity of this offence and your moral culpability fell well below the norm.
Cognitive impairment
40You were assessed for the purposes of this case by a neuropsychologist, Dr Matt Treeby, on 7 November 2022. This was done with the assistance of an interpreter.
41Dr Treeby formed the view that your lack of educational opportunity has likely compromised the development of many important cognitive skills including the capacity to engage in abstract thought. Since arriving in Australia in 2016 you have not been able to learn English, you remain entirely illiterate and to a large extent reliant on your 19 year old daughter to assist you.
42It is I think useful to set out some of Dr Treeby’s more pertinent findings:
Mr Ji has no formal education and neuropsychological assessment was conducted with the assistance of an interpreter. This made assessing his cognitive function in a culturally fair manner a challenging task. With that said, Mr Ji’s perceptual reasoning skills were impaired and fell in the Extremely Low range. He had markedly poor attention to visual detail and struggled with visuospatial analysis (Extremely Low). His auditory attention span was impaired (Borderline) and he had difficulty with holding and manipulating information in working memory (Extremely Low to Borderline). He consistently performed in the Extremely Low range on tests of information processing speed. He performed within normal limits on a test of his ability to learn and recall verbal auditory information in the form of a word list read to him (Low Average to Average). His visual memory recall was also within normal limits (Low Average). There was evidence of executive dysfunction across tasks and Mr Ji’s “hands on” constructional skills, perceptual abstract reasoning ability, divided attention, and semantic verbal fluency were all impaired (Extremely Low).
Mr Ji struggles with understanding abstract concepts, he has an impaired ability to engage in consequential thinking, and he has difficulties with logically reasoning through problems. He has markedly poor attention to visual detail, he is slow to process simple and complex information, and he also has difficulties with generating and expressing thoughts. He additionally struggles to hold and manipulate information in mind to problem solve. These cognitive impairments are most likely longstanding in nature and would have been evident at the time of the alleged offending and he will experience these going forward (i.e., they will be permanent). His lack of education during the developmental period likely compromised the development of many of these cognitive skills.[6]
[6] Report Dr Matt Treeby; Neuropsychologist, 29 November 2022, [49]–[50].
43Your multiple limitations, according to Dr Treeby, are likely to make any time in custody more burdensome. Accordingly, the fifth principle in Verdins,[7] it was submitted, should be engaged.
[7] R v Verdins (2007) 16 VR 269.
Physical health
44As has been mentioned, you started aggressive treatment for nasopharyngeal cancer in September 2022. You had in the lead up to that diagnosis experienced significant pain and distress. Between September and November 2022 you underwent 3 cycles of induction chemotherapy followed by seven-week course of radical radiation therapy with concurrent weekly can chemotherapy until February 2023.
45The short medical report of 14 June 2023 provided by Dr Joe Hudson a medical oncology registrar at University Hospital Geelong indicates that your cancer is currently considered to be in remission although you are continuing to experience some mild ongoing impact from the radiotherapy. Unfortunately the medical material provides no further information as to your prognosis.
46It is nevertheless submitted that aside from your psychological difficulties your medical needs remain complex and are likely to be difficult to manage in a custodial setting given that you could not communicate without the assistance of an interpreter.
Delay
47It is now over three years since you committed this offence. It seems likely that much of the delay attaching to your case can be attributed to the pandemic. It was submitted that at all times you cooperate with investigators having remained at the scene and participated in a responsive record of interview. You were not charged with this matter until nearly 12 months later.
48It was put that the uncertainty of having this matter hanging over you has been protracted and distressing. Your financial circumstances have been dire and you have had to face the challenge of dealing with a very serious illness whilst this matter was pending. It was submitted that that is a matter which should now be taken into account in your favour.
Lack of prior convictions
49Although the statutory scheme prohibits regard to previous good character it allows for the absence of previous convictions or findings of guilt to be taken into account. It was submitted that exception is important and provides a further basis, in combination with the other matters, for justifying a non-custodial disposition.
Risk of deportation
50Having come to settle in this country as a refugee, your status is that of a permanent resident. Were you to receive a term of imprisonment of 12 months or more you would be liable to having your permanent residency cancelled and deported. Even if you were to receive a lesser term of imprisonment your status in this country is liable to review on character grounds.
51Aside from this offence, you have established yourself in this country with a large family and deportation would constitute a very severe penalty in your particular circumstances. It was submitted that the uncertainty that issue has and will likely engender, was proper to take into account in the application of this statutory test.
Other considerations
52As I have endeavoured to explain I am not permitted to take into account your previous good character, your plea of guilty and what I regard as your very good prospects of rehabilitation for the purposes of determining whether or not there are substantial and compelling circumstances that have exceptional and rare which would justify not imprisoning you.
53Mindful of that prohibition, I nevertheless mention those matters so that it is clear that I am aware of them and will have regard to them after I have determined whether the statutory exception is engaged.
Sentence indication hearing
54On 18 April 2023, this matter came before me as a sentence indication hearing. At that time Counsel for the Crown submitted that the unique combination of factors which are present in this case leave it open for the court to find that the exception under s 5(2H)(e) does apply to this offender. That position was maintained today.
Findings
55In considering the defence submissions and in light of the prosecution attitude to those submissions I have concluded that the statutory exception is engaged and the circumstances pertaining to this case are substantial and compelling, and in combination, they can safely be characterised as exceptional and rare.
56I accept this was a unique and not well designed intersection which at the relevant time was not adequately signed both as to the prohibition on making left hand turns from the main traffic lane and as to the applicable speed in the service lane. The remedial works undertaken to subsequently modify the intersection to make it safer tends to make the point that the shortcomings identified were of substance.
57I also accept that the degree of departure from the standard expected of a reasonable driver was not as grave as is seen in many dangerous driving causing death cases. There is no evidence of any drugs, alcohol, fatigue, speed or some other form of wanton recklessness. If this was not a case of momentary inattention then it is something approaching that type of case.
58In light of those findings the nature and gravity of this offending can I think be characterised as falling at the lower end of the range of seriousness for this offence. Moreover, the same considerations operate to reduce your moral culpability.
59All of that is not to suggest for a moment that the failure to keep proper lookout as you did on this occasion is to be excused. You drove your motor vehicle in a manner which was in all the circumstances dangerous. In so doing you caused the death of a much loved man. That simple but tragic fact remains uppermost in the factors to be weighed in the sentencing synthesis.
60Your cognitive impairment is not such as to amount to impaired mental functioning so as to attract the operation of s 5(2H)(c) of the Sentencing Act 1991, but it is significant. You essentially function in the extremely low range and together with your language difficulties they render you vulnerable and dependent on others, particularly your oldest daughter.
61Your physical health, I accept is precarious. The aggressive treatment you have recently undertaken in the form of chemotherapy and radiotherapy appears to have stabilised your condition. You are now considered to be in remission. That said, your long term prognosis is unclear.
62It follows that the fifth principle to be taken from Verdins case is engaged in your case in that your physical and psychological health is such that a sentence of imprisonment would weigh more heavily on you than a person of normal health.
63Those matters are significant and when taken with your lack of criminal history, the uncertainty that will now attach to your immigration status and the delay that has attended your case, engage the statutory exception. I make that finding conscious of the statutory invocation that a sentence of imprisonment should ordinarily be imposed.
64Beyond those considerations, you cooperated with investigators, pleaded guilty and I am satisfied you are genuinely remorseful. I have formed that view from among other matters your cooperation, your plea, your letter of apology, the personal references and the assessment of Dr Treeby. Your plea of guilty has facilitated the course of justice and is made in circumstances where it has saved significant community resources in the form of a complex trial, particularly as this Court strives to manage cases which have been delayed by the pandemic. In consequence the sentence to be imposed on you will be substantially reduced than would otherwise be the case.
65Given your remorse and the support you have in the community I assess your prospects for rehabilitation as being very good. I note also that, according to the submissions your counsel made this morning, that your financial position has improved a little and that next year you hope to be well enough to seek work.
66I should mention that in Dr Treeby’s opinion your disabilities are such that you should not be driving a motor vehicle. As part of the penalty I will impose your licence will be cancelled and you will be disqualified from driving for 2 years. If you seek to be re-licenced you will need to persuade the authorities that you are fit to drive a motor vehicle safely.
67Taking all relevant matters into account you will be sentenced as follows:
68On the charge of dangerous driving causing death you will be convicted and sentenced to undertake community correction order for a period of 2 years and 6 months. The core conditions of that order will be as follows:
· You must not commit another offence for which you could be imprisoned during the time that the order is in force;
· You must report to, and receive visits from a representative of the Office of Corrections;
· You must report to the Community Corrections Centre within two clear working days of the order starting;
· You must notify a Community Corrections Officer within two clear working days of you changing your address or job;
· You must not leave Victoria without first getting permission to do so from a representative of the Office of Corrections;
· You must obey all lawful instructions from and directions of representative of the Office of Corrections
69Special conditions of that order will be as follows:
· Firstly that you be under the supervision of the Office of Corrections for the duration of the order.
· Secondly that you perform 300 hours of unpaid community work.
· Thirdly that you undertake an offence specific program to address the causes of your offending – in this a Road Trauma program.
70I will further order that any licenses held by you under the Road Safety Act 1986 be cancelled and that you be disqualified from obtaining any such license for a period of 2 years.
71I will declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty you would have been sentenced to a term of imprisonment of 4 years and a non-parole period 2 years would have been fixed.
0
3
0