Director of Public Prosecutions v Liang
[2022] VCC 170
•22 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02238
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YING LIANG |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 November 2021 |
DATE OF SENTENCE: | 22 February 2022 |
CASE MAY BE CITED AS: | DPP v Liang |
MEDIUM NEUTRAL CITATION: | [2022] VCC 170 |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence upon plea of guilty
Catchwords: Dangerous driving causing death - Momentary inattention - Absence of
alcohol, drugs or sleep deprivation - driving under the speed limit – no
prior convictions - Diagnosis of leukemia, PTSD and a major depressive
disorder due to family violence - Remorse - Verdins -
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: DPP v Neethling [2009] 22 VR 466; R v Whyte and Ors (2002) 55
NSWLR 252; Fariah v The Queen [2021] VSCA 213; Peers v The
Queen [2021] VSCA 264; Roach v The Queen [2020] VSCA 205; DPP v
Ballan [2020], DPP v Borg [2020] VCC 1218, DPP v Hibberd [2020] VCC
1597, DPP v Marlow [2021]; DPP v Merrick [2020]; DPP v Wan [2020]
VCC 1529; DPP v Papagallo [2021]; DPP v Georgiou [2021]; DPP v
Marlow [2021]; DPP v Jerveski; DPP v Perrera [2018], DPP v Yu [2019,
DPP v Doni [2019]. DPP v Coburn [2019], DPP v Rodder [2019]; DPP v
Ledellan [2018] DPP v Lombardo; DPP v Contacolli [2022]; DPP v Mika
[2021].
Sentence: Community Correction Order for 3 years. Cancellation of all Victorian
licenses and permits and disqualification from obtaining them for 18
months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Hamill | Ms K. Voulanas |
For the Accused | Mr S. Pica |
HIS HONOUR:
1Ying Liang, you have pleaded guilty to one charge of dangerous driving causing death. The circumstances of the offence are outlined in a prosecution opening prepared for and exhibited on the plea. I shall outline the circumstances.
2On 9 June 2021, a Wednesday, you travelled from your home in Box Hill to your place of work. In order to reach your destination, you drove down Darling Road to the intersection with Dandenong Road, also known as the Princes Highway in Carnegie. At that location, Dandenong Road runs east-west, and Darling Road runs north-south and changes its name to Koornang Road after it intersects with Dandenong Road, heading south.
3You reached that intersection at about 9.12 am. You were driving a 2013 small Mercedes Benz SUV hatchback, grey in colour. At that time, you stopped at the intersection, and you were the front vehicle in a right-hand turning lane, waiting in order to execute a right hand turn into Dandenong Road to travel west, citybound.
4You stopped on a red light, waiting for lights to change from red to green. About the same time as you reached that position and stopped, on the opposite side of the intersection, a pedestrian had crossed Koornang Road as it meets Dandenong Road and walked from east to west and stopped outside the Rosstown Hotel, which is on the south-western side, having come from the south-eastern side of the intersection, where a shopping centre is located.
5The pedestrian was Sally Ann Filgate, age 80 years. She was walking home at a spritely pace, having been shopping, carrying a shopping bag. Having crossed Koornang Road, she went beyond the apex of the southwest corner to a post which had traffic lights attached and pressed the light button in order to affect the light which would enable her to cross towards the north and waited.
6This post is aligned with the delineation of the crossing by white lines further to the west and has a give way to pedestrian sign. The opening indicates that you had been stationary at the intersection for at least 50 seconds prior to lights turning green, facing you. This is calculated on the basis of footage from the Rosstown Hotel which was captured by closed-circuit TV camera from the beginning of that footage to the time your vehicle proceeds into the intersection, that is 09:11:47 to 09:12:37.
7The closed-circuit footage timestamp is said to be not precise, but 'is within 60 seconds of actual time', by references to the statement of Mr Summer's depositions p.62. the footage comes from a camera from the hotel. I note that the time may have been longer, given that when this footage begins, traffic is already shown as travelling, at speed, down Dandenong Road from east to west.
8It was not raining at the relevant time, although the footage suggests the road was somewhat wet. The weather was overcast, but visibility was good. There is no righthand turn arrow applicable for traffic completing a righthand turn from Darling Road into Dandenong Road, like you intended to do. When the lights facing you turned green, that also enables cars from Koornang Road travelling north to commence crossing the large intersection, and pedestrians on the crossing where Ms Filgate was to begin crossing on foot.
9Between 09:12:00 to 09:12:20 on the Rosstown footage clock, Ms Filgate crossed Koornang Road and reached the point at which she stopped and waited. Although the prosecution opening states that 'as she crossed the road there was very little cross traffic on Dandenong Road', the footage in the time period that I have indicated shows nine vehicles travelling east to west and vice versa across your field of vision, at speed.
10Ms Filgate stood at the crossing for 16 seconds, waiting for the light to turn green. At 09:12:33 on the Rosstown footage, vehicles travelling west on Dandenong Road came to a stop at the red light, and the light facing Ms Filgate turned green, commencing at 09:12:35, this being phase E for 36 seconds on the light sequence.
11Footage from the Rosstown Hotel and dash camera footage from a vehicle which had stopped at the red light and was travelling west on the inside lane of Dandenong Road, shows Ms Filgate steps onto the road promptly. The Rosstown clock would suggest she steps off either one second before or right on time as the green sequence begins.
12A second later at 09:12:36, your car can be seen moving off from your stationary position in a slow forward motion. As Ms Filgate stepped onto the pedestrian crossing, two cars which had stopped on the Koornang roadside travelling north or turning west had moved forward also. One, a white vehicle, can be seen to move straight ahead on the right lane of the two. The other, a black vehicle, can be seen to be wanting to turn left into Dandenong Road. They had both stopped at about 09:12:30, on the Rosstown clock. The white car reached your position and drove past your vehicle at 09:12:40.
13You continued your turn at that time and your vehicle collided with Ms Filgate at 09:12:44. Two seconds before, the black car at 09:12:42 drives behind
Ms Filgate, having paused to let her walk ahead on the crossing and is completing its left turn. As you are seen to complete your turn, Ms Filgate is in front of you and, at the same time, another vehicle has come from the south intending to turn left at Dandenong Road at 09:12:43, a second before the collision.14It is in the four seconds between 09:12:40 to 09:12:44 that you continue your turn once the white car has passed your car, travelling in the opposite direction, and to which you had to give way. The second piece of footage confirms this series of events and the timing involved. The vision comes, as I have said, from a dash camera and begins with the car in which the camera was housed, slowing as the light changes from green to amber to red as it travels in the left lane of Dandenong Road, travelling west, with Koornang Road on its left.
15The timestamp on this footage is different than the Rosstown footage, but the time sequences are very similar and there was no objection or argument casting doubt on their reliability. This footage begins as the clock is reading 11:05:55, the car comes to a halt at the intersection at 11:06:05. Ms Filgate is visible, standing under the lower traffic light facing it at left, west of Koornang Road. At 11:06:07, Ms Filgate is seen to step off onto the roadway just as the white car and black car, which had been stopped on Koornang Road facing north, move off.
16The black car goes to the apex of the left turn and lets Ms Filgate walk north on the pedestrian crossing, before continuing its turn. The white car proceeds north and reaches the outermost part of the visible view at 11:06:10 and exits this view at 11:06:11, just as Ms Filgate is approaching the centre of the left lane on Dandenong Road.
17At 11:06:14, Ms Filgate is in the centre of the middle lane as the black car completes its turn behind her. Your car comes first into view at 11:06:14 from the right, just as the next car can be seen on the left-hand lane of Koornang Road, also about to turn left. You are now only a few metres from the crossing, and the impact is at 11:06:16. This view does not extend north to show what precise time, on this timestamp, the white car travelling north, for which you waited to past, went past you. But in combination with the Rosstown footage, it is reasonable to say it would have been after 11:06:11, probably at about 11:06:12.
18This confirms the timing from the Rosstown Hotel vision and is consistent with it. That is, that from this crossing point to the collision, the time is about four seconds. There is no question that in this four second times frame you should have been definitely able to see Ms Filgate, but you did not. Before this time frame, as Ms Filgate crossed Koornang on foot to the stop light and then when she waited by the light post, and the time after she stepped onto the roadway at 11:06:07 to 11:06:14, when she reached the very middle of Dandenong Road, she could have been seen.
19However, it is also the case that in the times I have just described, you had a large number of vehicles travelling across your vision from east to west and vice versa. And thereafter, you would have rightly focussed on the white car to determine when to complete your turn, allowing that car to pass safely past you. It is true that you could have seen Ms Filgate at any time during this sequence of movements and times.
20However, this should also take into consideration the busy nature of the traffic at that intersection and its large physical dimension, Dandenong Road being, at that intersection, a very broad and carrying many lanes of traffic east to west. In my view, it is likely that, to a large extent, your focus was on, firstly, the white car travelling north towards you and secondly, thereafter, the silver car turning left from Koornang, to evaluate its relative position in relation to you. This is not to diminish your need for attentiveness to the circumstance of the entire intersection and, in particular, to any one on the pedestrian crossing.
21However, the critical time from the passing of the white car beyond you to the point of impact was about four seconds. In that time, it was probably very difficult to affect a manoeuvre to change the outcome. This, in my view, was momentary inattention. The term 'momentary' endeavours to measure time by using an imprecise term of moment to denote its brevity. Although sufficient to see something or someone, it is undoubtedly very short. There were many moving objects to observe at this large intersection. You missed the vital one for a period of time, during which you should have been able to see. You did not. The consequences were tragic.
22I note that part of the material tendered during the plea by the defence, without comment or objection from the prosecution, was a bundle of documents pertaining to a petition current to this matter. That is, June 2021, from local residents and concerned citizens addressing the need to make this intersection safe, and referring to two fatalities, including that involved in this case and another in similar circumstances only a few days apart, and other near misses involving pedestrians, and calling for action to render the intersection safer for pedestrians and vehicles alike.
23I only draw from this confirmation of what is observable by the photographs and the video footage which was used on the plea. That is the difficult nature of this intersection by way of its size, traffic volume, and light sequences, which appear to be inadequate. This of course has another aspect which I do not overlook, and that is that although recently, some two months or so, you had to take work which required you to use this intersection for that purpose, and so it was not totally foreign to you, though limited in time.
24The statements from witnesses who were at or near the scene do not add much to the events, particularly drivers like Mr Clark, who was in the left turning car, who said, 'The light conditions weren't amazing but there was still full visibility'. He noted you to be visibly in shock, crying uncontrollably afterwards.
Ms Skyring, who was walking near the intersection, noticed you wailing and crying and screaming near your car, saying that you had not seen the victim, and she consoled you and assisted you. Mr Priestly noted a look of disbelief when you got out of your vehicle.25The statement of Ms Trullore contains some observations of you. She was driving east on Dandenong Road and Darling Road was to her left. She stated that as you made your turn from Darling Road into Dandenong, she observed your mouth to be open, leaning forward, and turning your head from left to right, with your fingers gripping the steering wheel. You looked ahead, then to your right, giving her the impression you were confused.
26Ms Trullore was on the furthest lane heading east, next to the bus lane. She says she observed this as you entered Dandenong Road from Darling Road. I note the Rosstown footage shows your vehicle travelling forwards almost the entire width of Dandenong Road before beginning to veer to the right, perhaps in line with the outermost right-hand lane heading east.
27What these witnesses' observations indicate beyond the opinion which the witnesses express, in my view is equivocal, and I do not rely on them. There are matters which, in your personal circumstances at the time, may indicate that you were experiencing some difficulties, but this ultimately also remains speculative. You did not indicate to police who spoke to you that you were experiencing such difficulties at the time.
28A later inspection of your car confirmed not only that it was in perfect working order, but there was no visible damage to the front side of the vehicle. The summary contained a quote from the driver of the second car turning left from Koornang, left into Dandenong Road, Ms Steinberg, to the effect that she noticed you were going a bit quick. The footage, particularly from the dashcam, does not bear this out, rather showing that her car was approaching the turn at speed. She says she had the right of way but let you go first.
29In my view, you not only looked and waited for that white car to go past you, but as you moved forward and began your turn, you probably noticed
Ms Steinberg's car in the left turning lane and visually evaluated your situation in relation to her vehicle. You were well advanced into your turn by this stage. This may account for some more time to make that determination, which was a reasonable distraction from what was right in front of you by this stage.30Ms Filgate continued walking and saw you coming on to her and put her hands up in a vain attempt to shield herself, but it was too late. She was pushed onto the bonnet for a short time before falling on the road and partly under your vehicle. Her injuries were very serious, and she later succumbed to them.
31The expert reconstructionist was not later able to calculate or estimate your speed at the time of the collision. It can merely be observed in the footage available to have been probably well within the 70 kph speed limit applicable on Dandenong Road. You had been driving in Australia for about five years and knew the applicable road rules.
32Preliminary breath and blood test showed no presence of alcohol, drugs, or poisons in your system.
33I need not recite Ms Filgate's injures. She was 80 years of age, retired and living alone. A beloved mother of two sons, an active and popular woman, a great friend to many, a loving grandmother who loved dancing and music. Her two sons, Mark and James, paid homage to her in their victim impact statements and expressed with affection and with measured dignity the enormous loss which they have suffered.
34James Filgate wrote of his sadness for his mother, who seemed ageless in her vigour, youthfulness and independence. She had many friends, was a woman of style, and careful with the way that she presented, a level-headed person who had helped bring up her siblings with whom she was still close, had been a loving wife, mother, and grandmother who lived life to the fullest.
35Both James and Mark Filgate expressed their grief and sorrow. Having lost their father early in life, their mother was a central and constant person in their lives. She took pride in their achievements, and their loss is deeply felt for this devoted, dearly loved woman. I take these statements into account.
36I add this, there is nothing the court can say or do that might comfort or heal this grief or pain of loss for Ms Filgate. The sentence I impose is not a reflection or an evaluation of the worth of her life, as if anything so valuable could ever be measured. The sentence rather is a reflection of a large number of relevant factual and legal factors which I am required by law to consider and take into account.
37I recited the circumstances of the offending in some detail in order to focus upon the nature and gravity of your offending, Ms Liang. The prosecution case was that had you been concentrating at the level or for a time required for a reasonable prudent driver, you would have been able to see and properly avoid the accident and its terrible consequences.
38Notwithstanding these considerations and that the consequences of the incident were devastating, this was, in my view, an instance of dangerous driving causing death that fell towards the lower end of the spectrum of gravity and involved relatively low moral culpability.
39Your offence did not involve any of the many aggravating features commonly seen by this court in more serious examples of driving mentioned in the DPP v Neethling [2009] 22 VR 466 at 473, paragraph 31, where their Honours adopted those mentioned by the New South Wales Court of Appeal when dealing with a similar offence in R v Whyte and Ors (2002) 55 NSWLR 252 and 286 at paragraphs 216 and 217.
40You were not speeding, but under the speed limit. You were not driving erratically, aggressively, or competitively. You were not affected by drugs, alcohol, or sleep deprivation. You were not doing anything out of the ordinary or flagrantly flouting the road laws. You were not recklessly engaging in risk taking behaviour.
41I am persuaded that when one looks carefully at the sequence of events at the intersection at the time, even if one was to accept that in an optimal situation, a driver may have had the full opportunity by attentive and focussed observation of the large field of vision which encompassed the movements at that intersection, your failure to take due care and attention was essentially momentary and must be measured in seconds. These matters, in combination, as outlined above, in my view, adequately demonstrate a comparative level of low moral culpability for the offence.
42The maximum penalty for dangerous driving causing death is 10 years' imprisonment. I take this indication as to the gravity of the offending into account as a guidepost of relevance in considering this matter. Clearly, any conduct which leads to a loss of life must be considered inherently serious.
43I take your plea into consideration. It was entered at the earliest opportunity and has therefore the utilitarian value of having avoided a criminal trial, with its attendant costs and inconvenience. This value is enhanced by having been made at a time of pandemic, when that circumstance, over two years now, has caused great disruption to the criminal justice system and its capacity to deliver timely outcomes.
44The resolution of this matter to finality is an important consideration. The fact that the plea is made at this particular time also must be given full weight in the face of the prospects of possible incarceration, at a time when imprisonment is rendered much more burdensome by the conditions imposed by the pandemic upon prisoners. This is true even if the sentence was not to be imprisonment, given that all aspects of correctional services have been impacted significantly.
45I give your plea consideration because of this value, the burdensome prospect of potential imprisonment is rendered greater in your case, given your situation of essentially lacking any family support or presence in this country, except for one acquaintance, by way of your family, parents, and daughter.
46I accept that you are very regretful and remorseful for your actions and their tragic consequences. I will take your plea as some evidence of remorse and that you have expressed adequate remorse to others on a number of occasions. Your plea will reduce the sentence as is prescribed by law.
47You have no prior convictions, and nothing is pending. This is relevant to your prospects of rehabilitation and the need for specific deterrence which, in my view, in your case has little part to play in the synthesis of sentencing principles I am applying.
48The offence of dangerous driving causing death is a category 2 offence under part 2 of the Sentencing Act. You pleaded before me in November 2021, and as a result of a combination of factors primarily related to your health, I did not sentence you as I had intended in December but allowed your counsel to make further submissions on the plea before me. And as a result, I have received a number of other documents and submissions, and this represents the first practical opportunity to proceed to sentence.
49It is necessary to set out the statutory framework which applies to sentencing considerations in your case. The Sentencing Act requires that I must make an order for imprisonment, excluding an order for a combination sentence of imprisonment with a community corrections order unless either, (a), you establish on the balance of probabilities that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment or, (b) in my evaluation, there are substantial and compelling circumstance that are exceptional and rare (see Fariah v The Queen [2021] VSCA 213 and Peers v The Queen [2021] VSCA 264).
50Upon the plea, although there was material which may have been used to find an argument as to the first of these considerations above, I was essentially urged to find that the second test which I have outlined, had been met by a combination of factors present. The assessment of whether there are substantial and compelling circumstance that are exceptional and rare to justify the imposition of non-custodial sentence, or a combination sentence is a matter to be determined by me and not be proven by you. The combination of words raised the threshold significantly, in order to make avoidance of imprisonment for this offence an exceptional and rare event (see Roach v The Queen [2020] VSCA 205).
51The meaning of this wording was considered in Farmer v The Queen [2020] VSCA 140. The court observed that ‘compelling’ connotes powerful circumstances of a kind wholly outside the 'run of the mill'. This is undoubtedly a high hurdle that will not be surmounted easily or often, as the court noted. The test must be stringently applied but there may be departures from a prison sentence if the circumstances lead to such an evaluation.
52In determining whether substantial and compelling circumstances that are exceptional and rare exist, I must regard general deterrence and the denunciation of your conduct as having a greater importance than other sentencing purposes.
53Importantly, less weight must be given to your personal circumstances. I must have regard to the fact that Parliament's intention is that a period of imprisonment should ordinarily be imposed and whether the cumulative impact of the circumstances of this case would justify a departure from such a sentence. I must also not have regard to your previous good character, other than the fact that you have no prior convictions, your prospects of rehabilitation or parity with other sentences.
54When looking at comparable sentencing decisions, I must not have regard to cases that are not category 2 cases. Therefore, I must make an assessment of the objective gravity of your offending and your moral culpability for it. I have concluded from a close analysis of the circumstances of the collision that it was caused by momentary inattention. I find that you did not drive erratically or recklessly before the collision. You have no history of prior criminal convictions for bad driving.
55There were neither electronic devices operating to distract you, nor people in the vehicle with you. You were not reaching into a bag, searching for a phone, and you were not affected by drugs or alcohol. And the manoeuvre you were endeavouring to perform was not accompanied by other hazards. Your vehicle was mechanically sound and roadworthy.
56As to whether you were suffering from mental health infirmities, I will deal with your physical and psychological conditions in a moment, but I do not find that these should have either reasonably prevented you from driving or that they contributed to the collision, although they may have had an ongoing impact on your general health, demeanour, and comportment at the time.
57The risk of harm which actually eventuated was high. But this, to a large extent, is reflective of the disparate forces at play when a pedestrian is impacted by a motor vehicle, even at very low speeds. The assessment of the objective gravity of your offending must take into account the impact your conduct had on the victim and her family. The loss of Ms Filgate has caused profound grief at the loss of a beloved mother and was life changing.
58The objective gravity must begin with an acknowledgement that the charge itself recognises the seriousness of the conduct. Irrespective of the absence of aggravating features, the court is dealing with an inherently serious matter and a human life has been lost.
59In this case, my assessment of all the relevant factors I have already mentioned, and the matters mentioned above which I must have regard to or alternatively exclude, bring me to consider the cumulative impact of the circumstances of the case and whether that would justify a departure from Parliament's intention.
60The assessment of the above factors and those which I set out below lead me to conclude that the objective circumstances and your moral culpability for your offending is low. I have examined the permissible factor personal to you to the extent that I am able to consider these in relation to this evaluation, and I conclude that the primacy of general deterrence and denunciation may be dealt with without imprisonment once the presumption of category 2 provisions are overcome and put to one side.
61Before setting out these matters, I wish to set out the submission of counsel for the prosecution and the defence. The prosecution highlighted the prominence of the sentencing purposes of general deterrence, denunciation, and just punishment. The prosecution did not concede the combination of matters relied on by the offender came within the exception in this case. It is submitted this case was one of prolonged inattention. I disagree with this description based on the analysis of the mechanism of the collision which I have explained above.
62True it is that you were stationary at traffic lights for some 50 seconds prior to your tuning upon a green light, and that the victim was within what was referred to as a field of vision. This does not mean that you would have reasonably been looking particularly, or in fact at all in that direction for more than a fleeting glance. You had around four seconds of unencumbered opportunity to see Ms Filgate on the road and avoid a collision. Whilst you had the capacity to see
Ms Filgate for that period, you did not see her, by distraction or simple error.63The prosecution did not take issue with your prior good character, or the references filed on your behalf. It also conceded you have good prospects of rehabilitation, and that specific deterrence does not have a role to play in the sentencing exercise. Such matters, argue the prosecution, are not uncommon in offending of this type.
64In addition to the significant utilitarian value in the plea made during the COVID pandemic, and conditions of confinement which are likely to be more onerous during the pandemic, the prosecution reminded the Court that good character, prospects of rehabilitation, and plea cannot be taken into account in determining whether the exception applies.
65It was accepted that you are isolated from your family, and this would continue in custody and beyond.
66But the prosecution submitted your medical treatment as well as psychological condition, which I will clarify in a moment, could be provided in custody. The prosecution also acknowledged some of the evidence went to Verdins limbs 5 and 6, but because they related essentially to conditions which were a consequence of the offending, they were not amenable to the s5(2HE) exemption.
67The prosecution provided some comparable cases, mainly of this Court, where in some cases exception was found and others not. I have referred to those, particularly Ballan [2020], Borg [2020], Hibberd [2020], and Marlow [2021], all of this Court.
68It is appropriate at this juncture to consider your personal circumstances. You were born in Hefei in China, the only child of a senior traffic detective and factory worker supervisor, who both still reside in China. You are 33 years old. You were schooled in China, completing an accounting degree in 2011, when you came to Australia aged 23. You obtained a Master of Accounting degree in Tasmania that year, in the following year you commenced a relationship in Melbourne with your now ex-husband. You became a permanent resident in 2015, and between 2014 to 2016, you were a student service officer at an educational centre.
69You married in 2015 and you daughter, now five years old, was born in Melbourne. The marriage was difficult and soon floundered. Your husband was verbally and physically abusive. When you separated, he did not pay any child support. Domestic violence commenced when you were five months pregnant, and your husband had an addiction to online shopping. He was intimidating and wanted you to terminate the pregnancy. After going to the police and making a statement, I was told that you were advised by the Monash Legal Service and Legal Aid to leave Australia. Whether as a consequence of that purported advice or not, eventually you did leave.
70In 2016, your parents had visited you here and your husband got into conflict with them over his violence and moneys which he expected to receive from them. You obtained an intervention order against him, but soon thereafter you decided to leave Australia.
71You remained in China from 2017 to 2020. The divorce had become absolute in 2018, and you had sought permission to relocate yourself and your child to China, which was by agreement. While in China, you taught at an international school. In and around July 2020, you returned to Melbourne in order to finalise the custody of your daughter by way of a custody agreement.
72However, as a result of the pandemic, you had to remain in Melbourne, having originally expected to remain only for a couple of months. Between March and July 2021, you were an early childhood educator at a Montessori School in Caulfield, and from July you held the same position at Guardian in Kew. Your ex-husband was arrested for cybercrimes in 2019, and full custody was granted to you of your child in 2020.
73Your marriage had caused you distress and ill health. A significant condition was diagnosed in 2021. In February 2021, you were diagnosed with T cell large granular lymphocyte leukemia, with secondary pure red cell aplasia. In March 2021, you began treatment for the aplasia which often rendered you severely anaemic. You are on methotrexate and prednisolone and required red cell transfusions. You require monthly blood tests, as well as kidney and liver function tests.
74In October 2021, after the incident with which this matter concerns, you were diagnosed with anxiety and depression, both conditions which were related to your diagnosis and treatment, as well as the motor vehicle incident, as outlined in the letter of your GP, Dr Yong, dated 26 October 2021.
75A report of Dr Kwek, a psychologist, dated October 2021, diagnosed major depressive disorder and post-traumatic stress disorder arising out of the domestic violence, your diagnosis and treatment, and the accident. The psychologist opined that 'a gaol sentence would have a detrimental effect on your mental health'.
76Before the date of the collision, you had been hospitalised with palpitations during quarantine in June 2020. And after June 2021, you had received blood transfusions for the previous 10 months, as well as monthly treatment, including a bone marrow biopsy in June 2022. Between August 2020 to June 2021, there had been many therapies attempted, with various medication regimes, chemotherapy or clinical trials. Possible future treatment options may employ other novel agents. If you feel unwell, tests need to be more frequent and immune suppression medication will need constant monitoring. Any fever would need to be treated as an urgent matter. So reported Dr Tay from Eastern Health in a letter exhibited during the plea. These reports were tendered.
77A report from Mr Cummins, a consulting clinical and forensic psychologist was received by the Court, dated November 2021. He noted all the reports I referred to above, as well as your background and family history. He noted your daughter is still in China in the care of your parents, and your distressed and tearful presentation at interview. You reported being overwhelmed by your diagnosis and medication regime and its side effects. He also noted you were on doses of antibiotics, antidepressants, and that you were continuing to attend upon Mr Kwek.
78You reported frequent symptoms including anaemia, fatigue, memory difficulties, and intermittent difficulties with concentration. You reported suicidal thinking. He wrote that you felt ashamed, embarrassed, and guilty over the death of Ms Filgate, and expressed genuine remorse about which Mr Cummins was left in no doubt. He found that you were extremely and severely depressed, extremely and severely anxious and stressed, struggling to come to terms with future incarceration. Mr Cummins concurred with the diagnosis of PTSD and a major depressive disorder, technically complex post-traumatic stress disorder due to domestic violence and triggered by the incident in question here.
79You expressed concern for the victim's relatives and family, which he assessed as genuine. In his opinion, your mental health will inevitably deteriorate to the point where you could become actively suicidal if you were incarcerated.
80The prosecution submitted that treatment for your leukemia could be provided in custody, and provided an affidavit dated 28 January 2022 by Jennifer Hosking, the assistant commissioner, Sentence Management division of Corrections, who deposed as to the protocols and procedures in place for prisoners coming into the prison system during the pandemic, including quarantine and lockdown requirements, and also wrote of the provisions for health care available whilst in reclusion.
81Ms Hosking had seen the reports of the clinical haematologist, Dr Tay. She noted that as you were currently not in custody, she could not set out the treatment you would receive in custody with any certainty, but that Victoria Correctional Services do provide tertiary care in complex and specialist type of clinical care by major hospitals, endeavouring to ensure continuity of care.
82I note that there had been a number of updates on your condition. In early December 2021, a blood test yielded concerning results requiring transfusion and hospitalisation as a result of haemoglobin deficiency, accompanied by fatigue, troubled breathing, palpitations, and other symptoms.
83By the end of January of this year, you were still hospitalised after contracting COVID and attendant complications. As of 16thFebruary of this year, your blood count had again dropped, requiring another transfusion and hospitalisation, having lost your response to the previous medication of prednisolone and methotrexate, according to Dr Tay's latest report dated 18 February 2022. You are now again requiring two weekly transfusions as during the previous year.
84In my view, the evidence establishes that you currently suffer from major depression, an illness of severe degree, as well as complex post-traumatic stress disorder. Its existence is not challenged, nor does that it constitutes impairment of mental functioning. Your depression is multifactorial. Your young daughter and parents are away from you in China. You are essentially alone, except for a friend who has, from time to time, offered support. You have a pernicious disease which you are dealing with, and you are to be sentenced for driving offences which caused a person's death.
85In my view, your mental functioning is sufficiently impaired to place you at substantially materially greater than the ordinary burden or risk of imprisonment, that is when compared to the general prison population. This, however, was not argued.
86I consider that when paired with your complex PTSD diagnosis, your leukemia diagnosis, and your background of domestic violence and family separation, that these matters are sufficient to constitute, in my view, substantial and compelling circumstances that are exceptional and rare, and that the test has been made out as justifying a departure from incarceration under the operation of s5(2H) of the Sentencing Act.
87In doing so, I take into account the objective circumstances of and your moral culpability for your offending, which I have assessed as low, the primacy of general deterrence and denunciation and how they may be met, and the permissible factors personal to you to the extent that I am able to take them into account.
88I take into account the character references which were tendered on your behalf, who all attest to your character and your remorse, as well as your qualities as a teacher. You also wrote a letter to Ms Filgate's family to express your remorse and condolences and sincere apology.
89In relation to current sentencing practices, this is difficult matter. Apart from the cases from this Court which I mentioned above, a number of others were referred to , which were decisions in which the exception was not found: (DPP v Merrick [2020]; DPP v Wan [2020]; DPP v Papagallo [2021]).
90I also referred to some more recent cases in this Court which were not mentioned during the plea (DPP v Georgiou [2021]; DPP v Marlow [2021]), as well as DPP v Jerveski, where the exception was found. In Marlow, a momentary inattention amounted to low objective gravity and low moral culpability, and the exception was found.
91I have read DPP v Borg [2020], DPP v Ballan [2020], DPP v Dickenson [2019], DPP v Perrera [2018], DPP v Yu [2019, DPP v Doni [2019]. DPP v Coburn [2019], DPP v Rodder [2019], DPP v Ledellan [2018], and finally, the very recent decisions of DPP v Lombardo and DPP v Contacolli [2022], all which dealt with dangerous driving causing death and which all found the exception to exist.
92I also refered to DPP v Mika [2021], again where the exception was made out. I noted that in that case it was not disputed by the prosecution that the diagnosis of major depression and post-traumatic stress disorder upon the defendant's likely experience of prison properly founded the exception under s5(2H)(c)(ii).
93These cases are of course not sentencing precedents and are not Court of Appeal decisions and thus do not provide a full and adequate current sentencing practice. The Court of Appeal has not had many opportunities to examine these sentences.
94Each of these cases is a dangerous drive causing death case, and some comparative approach can be gleaned as to how the relevant provisions of the Sentencing Act have been interpreted and the tests evaluated by a number of experienced County Court judges in recent times.
95That is not the end of the matter. I have considered the imposition of a combination sentence, but I have concluded the stated principles can be met without imprisonment. Once the category 2 provisions are put to one side, I may take into account other personal factors, your undisputed previous good character, your remorse and the operations of limbs 5 and 6 of Verdins on the evidence produced, and the separation from your daughter, as well as undoubted prospects of your rehabilitation.
96You were assessed as suitable for a community corrections order. I have decided, in all the circumstance, that an imposition of a non-custodial sentence can accommodate principles of general deterrence and denunciation. I am acutely conscious of the intention and presumption contained in the legislation. The loss of a life, even unintentionally, is a grave matter. These cases invariably present very difficult sentencing circumstances because they highlight not only the effect of the loss of a loved and treasured person, but the care and attention required by drivers on the road and the tragic consequences that follow when even a momentary distraction or inattentiveness affects the course of driving.
97Taking into account the period during which it can safely said you were inattentive, without any other feature of aggravation which would have made you more culpable, individualised justice requires that each case be considered on its own facts and merits. All sentencing purposes, in my view, can be met by a significant community correction order with hours of community work as punishment.
98On the Charge of Dangerous Driving Causing Death, you are convicted and sentenced to a community corrections order for three years. You will undertake 250 hours of unpaid community work, an assessment and treatment for mental health to be considered with your psychological and treating doctors.
99Ms Liang, do you consent to the making of such an order? I cannot make that order without your consent, so I want you to express whether you consent to be subject to a community corrections order.
100OFFENDER: Yes, Your Honour.
101HER HONOUR: On the charge, you are convicted, and all Victorian licenses and permits held by you are cancelled, and you will be disqualified from obtaining such a license for 18 months. I direct that 80 hours of your mental health treatment be credited towards your community work. You are to report to Box Hill Corrections within two days of this sentence.
102But for your plea, I would have sentenced you to two and a half years' imprisonment with a non-parole period of 18 months. Ms Hamill, are there other ancillary orders that I need to make?
103MS HAMILL: No ancillary orders, Your Honour. I take it that the period of disqualification commences today.
104HIS HONOUR: The period of disqualification commences today.
105MS HAMILL: Yes, Your Honour.
106HIS HONOUR: Mr Pica, is there any lack of clarity in relation to the sentence that you wish to clarify?
107MR PICA: No, Your Honour. No, sir. Ms Liang has capacity to both receive email, scan, and send it at her residence for the purpose of her signature.
108HIS HONOUR: Certainly, thank you. The only other matter is do you wish to speak to her now via way of this link? If you wish to, I am happy to adjourn he court and leave you two in a separate lobby. If not, then I will simply adjourn.
109MR PICA: I will give her a telephone call, Your Honour. Thank you for that opportunity.
110HIS HONOUR: Yes, thank you.
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