Director of Public Prosecutions v Lee

[2021] VCC 339

M

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01441

DIRECTOR OF PUBLIC PROSECUTIONS

v

SUSAN LEE

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JUDGE:	HIS HONOUR JUDGE C RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2021
DATE OF SENTENCE:	25 March 2021
CASE MAY BE CITED AS:	DPP v Lee
MEDIUM NEUTRAL CITATION:	[2021] VCC 339

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              dangerous driving causing serious injury – traffic signal red for 14.78 seconds prior to the collision - your victim sustained extremely serious injuries - your physical wellbeing and general health could only be described as poor - general deterrence – plea of guilty

Legislation Cited:      Road Safety Act 1986; Sentencing Act 1991

Cases Cited:R v Verdins (2007) 16 VR 269

Sentence:                  6 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J Malobabic	Solicitor for the Director of Public Prosecutions
For the Accused	Ms S Joosten	Victoria Legal Aid

HIS HONOUR:

1Susan Lee, on 15 March 2021, you pleaded guilty to one charge of dangerous driving causing serious injury.  The maximum penalty for this offence is 5 years’ imprisonment and upon conviction any licence or permit held by you under the Road Safety Act 1986 must be cancelled and you must be disqualified from obtaining any such licence or permit for a period of 18 months.

2Tendered as Exhibit E on the plea was a VicRoads certificate setting out a number of traffic infringement notices that you received from 7 May 2001 to 13 June 2019.  During that time, you have seven traffic infringement notices for exceeding the speed limit and the final traffic infringement notice was for disobeying a traffic control signal.  Your counsel informed me that in respect to this last traffic infringement notice you had entered an intersection late after a green turning arrow had ceased to operate and you were faced with a red disc.

3Tendered as Exhibit A and read aloud in Court was the agreed summary of prosecution opening.  Your plea arises from a collision that occurred at the intersection of Springvale Road and O’Sullivan Road in Glen Waverley on 13 August 2019 at approximately 6:50am.  At the time of the collision the road was wet, the weather was overcast and drizzling.  It was accepted that there was light in the sky and that visibility was good and the traffic was light on Springvale Road.

4You were driving a white Hyundai station wagon in a northerly direction when you collided with two pedestrians.  You were driving north in the left or western most lane of three lanes on Springvale Road and drove through a red traffic light as the pedestrians were crossing Springvale Road at a marked pedestrian crossing with a green “Walk” signal applicable to them.

5The Crown put its case against you on the basis that:

(a)   you drove through a red light signal owing to your lack of attention; and

(b)   you had THC in your blood stream at the time of the collision.

6In respect to sub-paragraph (b), by reference to the report of Dr Sanjeev Gaya, I can make nothing of, nor take into account the fact that you had THC present in your blood at the time of the collision.

7On the morning in question you were driving your daughter, Rebecca Lee to her workplace at the Glen Waverley Shopping Centre.  As you proceeded in the left or western most lane of Springvale Road, you went through the intersection of Railway Parade and your daughter looked up and saw the red lights applicable to you at the intersection with O’Sullivan Road.  You did not seem to have seen the red lights and as you approached the intersection your daughter realised this as you were not slowing down and she yelled at you, “Red light”.  Your daughter observed pedestrians on the pedestrian crossing and yelled, “Mum” but it was too late, and you struck two pedestrians on the pedestrian crossing.

8The pedestrians were Mr Kwok Wah Richard Tsui and his son, Hei Chit Tsui (known as Gordon).

9The pedestrians that you struck were part of a group of pedestrians who had walked south along the east side of Springvale Road to the pedestrian crossing at O’Sullivan Road.  They waited for the green “Walk” signal and proceeded to cross Springvale Road from east to west.  The group had crossed the south bound carriageway of Springvale Road and your victim and his son, who were slightly ahead of the group, entered into the north bound lanes of Springvale Road and were in the left or western most lane when they were struck by you.  The child, Gordon, suffered a fractured arm.  However, his father your victim sustained extremely serious injuries that included:

·        a right hemopneumothorax;

·        a small subarachnoid haemorrhage and a parieto-occipital subdural haemorrhage;

·        innominate artery avulsion from aortic arch (a major artery in the chest had torn);

·        left vertebral artery injury (in neck) secondary to trauma that put your victim at risk of stroke, and complex pelvis bone fractures;

·        a minimally displaced left occipital condyle fracture (being a fracture in the back of your victim’s skull that extended to the joint between his skull and the first spinal vertebra);

·        multiple rib fractures;

·        a fracture to the left elbow where pieces of bone had become detached;

·        comminuted left scapular fracture; and

·        comminuted left medial femoral condyle fracture (a fracture of the end of your victim’s thigh bone where the bone had broken into more than two pieces).

10Your victim required urgent restoration and maintenance of his compromised breathing and circulatory functions.  He underwent emergency surgery to repair the artery in his chest.  He required monitoring of his neurological complications associated with his head injury and surgical treatment for some of his fractures.  He developed significant post-operative complications while in the intensive care unit (ICU).

11Dr Gaya provided an opinion that your victim’s injuries were both life threatening, substantial, and likely to be protracted.

12Your victim was discharged after approximately four weeks at the Alfred Hospital to the Epworth Hospital for rehabilitation where he remained for approximately six weeks.  In consultation with doctors at the Epworth Hospital, your victim returned to Hong Kong in November 2019.  On return to Hong Kong he was admitted to hospital for approximately a week and thereafter continued his rehabilitation as an outpatient.

13A reconstruction of the collision estimated that the speed of your vehicle at the time that you hit your victim as between 37 and 42 kilometres per hour.  The reconstruction estimated that the traffic lights applicable to you at the intersection of O’Sullivan and Springvale Roads had been red for 14.78 seconds prior to the collision.  Using the most conservative speed attributable to your vehicle, being the lowest of the two speeds at the time of collision, you were at least 151 metres away from O’Sullivan Road when the lights turned red to you.  By the use of the formula set out page 121 of the depositions, should your speed have been greater than 37 kilometres per hour immediately prior to the impact, then you would have been further away from O’Sullivan Road when the lights applicable to you turned red.

14The collision was not caused by momentary inattention and for reasons that are unknowable you failed to observe the red traffic control signals for 14.78 seconds or at least 151 metres of travel, and struck your victim and his son as they crossed on a pedestrian crossing with a green light applicable to them.

15You were interviewed under caution at the Forest Hill Police Station on the day of the collision.  In answer to Question 69 you told police:

“And I didn’t actually see the lights, my - but my daughter said, ‘Mum, the lights are red’,  and because the - the car behind me - and it was wet – I didn’t want to stop ‘cause - anyway, because of that - there were two pedestrians which I didn't see.  My daughter yelled out and she – ‘Mum, · there's someone’, and it was sort of too late.  They hit the car, I felt it, my daughter saw it, I didn't.”

16It is plain from the reading of your record of interview that you were both distressed and remorseful at that time.

17Tendered as Exhibit C was the victim impact statement of Mr Tsui.  The day of the collision was his son Gordon’s ninth birthday.  Mr Tsui remembers nothing of it.  His first memory was waking up in hospital in the Intensive Care Unit a few days after the collision.  His arms, feet and head were all covered with protective frames, he was intubated, and his wife was standing nearby in a state of anxiety.  On his return to Hong Kong, Mr Tsui had not fully recovered.  Because of his inability to work, he was made redundant.  He is anxious and depressed.  He worries about his health and financial issues.  He can only walk slowly; he is prone to falls; eating and swallowing is slow and difficult for him; and his memory as well as his ability to concentrate has been reduced.  In short, Mr Tsui’s life physically, mentally, and professionally has been profoundly adversely affected by your conduct.

18Tendered as Exhibit D was the victim impact statement of Mr Tsui’s wife, Suet Nga Tsang.  She and her family had travelled to Australia as part of a reunion of colleagues who had studied at Deakin University.  It was her son’s birthday.  She saw the accident.  The reaction was to scream uncontrollably and madly.  Her husband was in a coma for a week after the accident; there were complications as a result of the injuries that he received; and so he was re-admitted to the Intensive Care Unit at the Alfred, having initially been transferred from that Unit.  While living in Hong Kong, Mr Tsui had been diagnosed with cancer.  He had undergone operations to remove his tumours and at the time he travelled to Australia, he was regarded as having fully recovered.  Upon return to Hong Kong, Mr Tsui’s cancer returned.  He underwent surgical procedures in respect to the cancer that were complicated by the surgery that he had undergone as a result of being injured by you.  When Mr Tsui was made redundant Ms Tsang collapsed and lost control because of the worry she felt concerning how she, her children, and her parents, as well as her husband, were to be supported.  She became very emotional and depressed, cried a lot and suffered from sleeplessness.  She attributes her hair and weight loss to worries that she has experienced to her husband being made redundant.  In the translated form of her victim impact statement, her state of mind is expressed in the following terms:

“I felt emotionally upset and sorrowed about what happened to Richard, I wish I could be the one to suffer it all.”

19Your conduct has had far reaching consequences upon Mr Tsui and his family.

20Ms Joosten of Counsel who appeared on your behalf tendered a number of exhibits being:

Exhibit 1 – defence outline of submissions;

Exhibit 2 – report of Jeffrey Cummins, psychologist, dated 3 March 2021;

Exhibit 3 – supplementary psychological report of Jeffrey Cummins dated 3 March 2021;

Exhibit 4 – report of Beenish Shahzad, clinical psychologist, dated 8 October 2020;

Exhibit 5 – a further report of Beenish Shahzad dated 23 November 2020;

Exhibit 6 – a further report from Beenish Shahzad dated 10 March 2021;

Exhibit 7 – a report of Carolyn Davies, physiotherapist, dated 6 March 2020;

Exhibit 8 – a report of Jonathan Harris, physiotherapist, dated 31 August 2018;

Exhibit 9 – four pages in respect of x‑ray reports;

Exhibit 10 – a Centrelink medical certificate together with discharge summaries from the Alfred and Dandenong Hospitals;

Exhibit 11 – a report of Dr Ian Maclean, general practitioner, of Medical One Moorabbin dated 10 March 2021;

Exhibit 12 – being 142 pages of medical notes being the complete medical record of Medical One Moorabbin in respect of you;

Exhibit 13 – notes from Scott Ramsay, counsellor, in respect to counselling received by you from Road Trauma Support Services;

Exhibit 14 – a bundle of eight references; and

Exhibit 15 – report of Dr Michael Gingold, consultant rheumatologist, dated 21 December 2020.

21Ms Joosten submitted that whilst you were driving you were distracted thinking about your mother’s medical appointment and you simply failed to see the red light and pedestrians crossing the road.  In addition, you seemed to have expressed to Mr Cummins some concern about making the turn into the Glen Waverley Shopping Centre appropriate to your daughter’s work as you had not taken her to work for some time.  Nothing arises out of these concerns.

22As to your personal history, you are 59 years of age and were raised in East Brighton.  Your father worked as an electrician and your mother in the home.  When you were aged 13 years your father died suddenly as a result of lung cancer.  Following his death your mother struggled with her grief and you are of the view she was unable to provide stable emotional support to you.  Your mother was a heavy drinker.  There is no suggestion that there was any family violence or similar issues in respect to you while being raised as a child.

23You left school at the age of 17 and apart from a period when you were in receipt of Centrelink benefits for the next seven years you worked in customer service and as a bakery assistant at a bakery in Middle Brighton.

24In 1988 when you were aged 25, you married Keven Lee who worked as a boilermaker and maintenance fitter.  There are two children of the marriage, your son, Wayne, born in October 1988 and your daughter, Rebecca, born in May 1997.

25In 1990 your family relocated to Ipswich in Queensland to be near your husband’s family.  This period was a happy time for you but came to a tragic end when your husband was crushed in an industrial accident.  At the time of your husband’s death your children were aged 11 and two years respectively.  You experienced intense grief as a result of the death of your husband but did not seek any counselling or psychological support in respect to this matter.

26Your husband was 40 years of age at the time of his death.  As a result of your husband’s death you received some compensation and after settling your affairs in Queensland with the assistance of your brothers, you returned to Melbourne to live.  As a result of the compensation, you were able to take time away from work for a period of four years and this allowed you to raise your daughter, Rebecca, on a full time basis until she was old enough to go to school. Thereafter you returned to the workforce.

27In 2006 you commenced a relationship with a man named Simon and you lived together with him in Moorabbin and then Dingley.  During your relationship with Simon, it became apparent he was an alcoholic and eventually he was unable to work.  He was diagnosed with liver failure and in March 2018 he collapsed at home and stopped breathing while in your arms.  He was revived and taken to hospital but died three days later.

28Accordingly, there has been great tragedy in your life which has continued with the death of your mother in 2000.  This is a matter that I will return to later in these reasons.

29Having failed to pass Year 11 at school, you have always worked in unskilled positions as a shop assistant, waitress, cleaner, in a bakery and in an industrial laundry.  Whilst living in Queensland, you worked as a care assistant in a nursing home.  On returning to Melbourne you worked as a process worker and from 2007 to 2019, you worked for Wholesale Paper (Vic) Pty Ltd as a packing and warehouse assistant.  Alister Macdonald the managing director of that company described you in his reference dated 24 February 2021 as “an employee of the highest integrity and reliability” and went on in his reference to describe you as “remorseful and distressed at having caused such an injury to other people”.  (See exhibit 14).

30In 2017 you left employment and became a full-time carer for your mother.  On 25 June 2020, your mother collapsed and died suddenly whilst in your care.  You mourn deeply the death of your mother.

31You have abused both cannabis and alcohol from time to time.  You and your husband, Kevin, smoked a small amount of cannabis each week throughout the period of your marriage.  However, following his death, you did not consume cannabis for almost 20 years.  You recommenced the use of cannabis after the death of your de facto partner, Simon, in 2018 and instructed Ms Joosten that you smoked a maximum of two joints per weekend to enable you to relax.  I was informed that you have not consumed any cannabis since the day of the collision.

32During your relationship with Simon, you became dependent on alcohol but following his death ceased using alcohol and your alcohol consumption was described in the following terms:  “She now drinks a minimal amount.”

33After the collision, it would appear through the good officers of the Victoria Police, that you were referred to Road Trauma Support Services, where you underwent some counselling sessions with Scott Ramsay commencing on 19 August 2019 and his notes formed Exhibit 13 on the plea.  More relevant are the reports of Jeffrey Cummins and Beenish Shahzad (Exhibits 2, 3, 4, 5 and 6).

34You were referred to Beenish Shahzad by your general practitioner and were seen for the first time on 8 October 2020, some 14 months or so after the collision and some three months after your mother’s death.  Between 8 October 2020 and 10 March 2021, you had attended seven sessions with Beenish Shahzad.  You exhibited severe symptoms of a Major Depressive Disorder.  In Exhibit 6 the precipitating factors for your psychological condition were described as: “chronic pain, motor vehicle accident and ongoing stress.”

35The perpetuating factors were:

“Grieving the recent loss of her mother, guilt about the accident and worries about the court outcome, limited physical capacity due to ongoing musculoskeletal pain and hopelessness about the future.”

36Later in Exhibit 6 the author opined:

“Taking into consideration that Ms Lee is facing multiple ongoing stressors, no significant improvement in her mood at this stage is understandable.  Her condition will be reviewed in 6 to 12 months’ time.”

37Mr Cummins opined that when you consulted with him on 15 February 2021, you presented with a Major Depressive Disorder with associated anxious distress.  He opined:

“As far as I could ascertain the Major Depressive Disorder was triggered by the incident of 13/8/2019 [the collision] and then further exacerbated as a result of her mother's death in June 2020.”

38Mr Cummins opined that your time in custody would be more onerous for you than for persons who did not have your documented medical history.  He was further of the view that your mental health would inevitably deteriorate if you were incarcerated.

39Accordingly, limbs 5 and 6 of R v Verdins (2007) 16 VR 269 have application in the exercise of my sentencing discretion.

40As to your physical wellbeing, your general health could only be described as poor.  You suffer from:

·        chronic osteoarthritis;

·        osteoporosis;

·        diverticulitis;

·        abdominal pain as well as generalised chronic pain.

41In respect to your arthritis, by reference to Exhibit 15, a report of Mr Michael Gingold, consultant rheumatologist, dated 21 December 2020, he regarded your medical history as notable for osteoporosis without fracture.  When seen by him, your main concern was mechanical low back pain that can occasionally radiate down the left leg from the buttock.  You have longstanding mechanical left knee pain.  You also have mechanical right ankle pain, from an injury you suffered some years ago.  You told Mr Gingold that you see a physiotherapist for widespread left side pain radiating through your left torso.  Mr Gingold reported that upon examination that your lower limb joints were unremarkable aside from osteoarthritis at the right ankle and subtalar joints.  An MRI scan of your lumbar spine showed substantial facet joint arthritis at the L4/5 level but no nerve root encroachment.  Ultimately, he opined:

“Sue presents with osteoarthritis with mechanical back pain and possibly a degree of pain sensitisation. … I have explained to her that her back pain is mechanical in nature and reassured her.  She will benefit from hydrotherapy.  I have offered Sue the option of having her left L4/5 facet joint injected as I think this may help her symptoms and reduce her reliance on medication.  She is a little nervous about this so I have given her a form to have this done and have told her to do it if she feels her symptoms warrant it but if she is improving with exercise alone then it is not required.  We will catch up in about 4 months.”

42You have not had the injection at the L4/5 level but have engaged in some hydrotherapy.

43Having reviewed all 142 pages of Exhibit 12 and the contents of Exhibit 10, being discharge summaries from the Alfred Hospital and Dandenong Hospital on 9 November 2016, 25 August 2020, and 25 January 2021, the contents are consistent with your history of matters summarised at paragraph 40 above.

44You have suffered kidney problems and in March 2019 you were seen by Associate Professor Sree Appu who described you as “a fit and healthy lady, apart from being a smoker…”.  A CT scan revealed an 8cm stone in the left Pelvic Ureteric Junction (PUJ), as well as well as several calculi in both kidneys.  He recommended that you undergo a left ureteroscopy and laser stone fragmentation of the stone in the PUJ and that this would require stenting.  I was informed that you underwent this procedure but continue to suffer from haematuria, being blood in the urine.

45A useful snapshot of your consultations with Medical One Moorabbin is set out in Exhibit 3 by Mr Jeffrey Cummins.

46Your general practitioner, Dr Ian Maclean, by a report dated 10 March 2021 (Exhibit 11) writes, that you are incapable of handling your affairs as you cannot understand or comprehend information even at the most basic level.

“…she requires her brother William Manning to act on her behalf with regards to dealing with complex problems as it is just beyond her.”

47Mr Mannix in his reference does not write about you in these terms.

48Dr Maclean describes the nature of your symptoms as extreme, that you have been referred for psychological counselling and that your treatment is basically by way of a psychologist and medically via Temazepam to try and help you sleep.  Whilst he reported that you were being scripted with Duloxetine by a colleague for depression, I was informed during the plea that you were not currently taking any medication for that purpose.

49Dr Maclean describes the nature of your symptoms as extreme and further opines:

“A term of imprisonment would have a seriously adverse effect on her underlying mental health which is fragile to say the least at the moment; I would not like to gauge the extent such a course of action could have but believe that such a course of action would be profoundly negative; and could lead to unforeseen consequences of a serious nature.”

50Dr Maclean’s opinions appear somewhat at loggerheads with the contents of your complete medical record and the opinions of Mr Cummins and Beenish Shahzad as well as the contents of the references on which you relied.  However, as previously stated your physical health is poor and your many physical ailments overlay your depression and anxiety.  This fact must be taken into account when applying principles 5 and 6 of Verdins case.

51Your referees consistently write as to your remorse and the stress that these proceedings have placed on you.  Some write as to the tragedies that you have experienced throughout your life and the effect that those matters have had on you.  Others write as to your kindness and generosity of spirit.

52You are a person of good character.  There was a delay of almost a year between the collision and you being charged, and you are entitled to the mitigatory benefit of that delay.  You entered your plea at the earliest opportunity and are entitled to the benefits that flow to you from that plea, being that it is evidence of your remorse and that it has utilitarian value.  You have the support of your family and you are now abstinent from drugs and you are seeking psychological counselling.  It is plain, that you are remorseful, and in my view, there is little likelihood that you will reoffend.

53The objective circumstances of your offending make it a serious example of the offence of dangerous driving causing serious injury.  Whilst there is an absence of many if not all of the aggravating features that are from time to time referred to in the authorities, your inattention for a period of something in the order of 14 seconds, which ultimately brought about the collision and the injuries suffered by your victim, call for the application of the principle of general deterrence.  I see little or no work to be done in your case by the application of specific deterrence.  Your offending must be publicly denounced, and you must be justly punished.

54Ms Joosten on your behalf submitted that taking all of the matters that she relied upon into account, that a Community Correction Order was the appropriate sentencing disposition in your case.  Ms Malobabic of Counsel who appeared on behalf of the Crown, accepted that you were remorseful, that you had good prospects for rehabilitation and that any term of imprisonment imposed on you must take into account the impact of the restrictions placed on prisoners as a result of the COVID‑19 pandemic.  However, ultimately Ms Malobabic submitted the appropriate sentencing disposition in your case was a term of imprisonment combined with a Community Correction Order.

55In my opinion, you do not require supervision or therapeutic conditions as you have for many years been a patient of the Medical One Moorabbin Medical Centre and one who consulted with the doctors there on a frequent basis.  You have complied with their recommendations arising from their diagnoses of you.  You are undergoing physiotherapy and hydrotherapy in respect to your physical ailments.  You are prescribed appropriate medications in respect to your diverticulitis, osteoporosis, and chronic pain.  You have also consulted a psychologist and I am confident that you will continue along this path in the future.

56Likewise, your antecedents and the matters relied on by your counsel including the contents of the many references relied on by you convince me that you do not require the supervision of the Adult Parole Board.

57In my opinion, the only appropriate disposition in all the circumstances is an immediate custodial disposition of a duration which may be regarded as merciful.

58Accordingly, doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to 6 months’ imprisonment.

59I declare that you have spent 10 days by way of pre‑sentence detention not including today.

60Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 18 months’ imprisonment with a non‑parole period of 12 months’ imprisonment.

61I cancel all licences and permits to drive held by you under the Road Safety Act 1986 and disqualify you from obtaining any such licence or permit for a period of 18 months. Is there anything arising out of the sentence?

62MS JOOSTEN:  No, Your Honour.

63HIS HONOUR:  Ms Malobabic?

64MS MALOBABIC:  No, Your Honour.  As Your Honour pleases.

65HIS HONOUR:  Yes.  Thank you, Ms Lee, we will now break the connection.  Ten o'clock Monday morning please.

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