Director of Public Prosecutions v Liu

[2018] VCC 729

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01622

DIRECTOR OF PUBLIC PROSECUTIONS

v

HENGZAO LIU

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2018
DATE OF SENTENCE:	22 May 2018
CASE MAY BE CITED AS:	DPP v Liu
MEDIUM NEUTRAL CITATION:	[2018] VCC 729

REASONS FOR SENTENCE
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Subject:Reckless conduct endangering persons; negligently causing serious injury; failing to stop and render assistance.

Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	Office of Public Prosecutions
For the Accused	Mr P. Morrissey	Melasecca, Kelly & Zayle

HER HONOUR:

1Hengzao Liu, you have pleaded guilty to the following charges:  reckless conduct endangering persons; negligently causing serious injury; and failing to stop and render assistance.  The maximum penalties for these offences are five years, ten years and ten years' imprisonment respectively.  Additionally as a result of your convictions for this offending there are consequences in relation to your driver's licence.

2The circumstances of your offending are set out in the prosecution opening.  Exhibit A can be summarised as follows.  On the night of Sunday, 8 January 2017 you were out with a business associate, Maliya "Maria" Mahemuti in the city.  You ate at a Chinese restaurant then went to a karaoke bar.  Ms Mahemuti had organised to meet some friends at the karaoke bar, Yafei "Blair" Lu and Gee Chan.  You had not met these people before and you all met up there at about half past ten.

3You had been drinking alcohol with dinner and continued to do so at the karaoke bar with the four of you participating in drinking games.  Whilst at the bar Ms Lu was concerned about both yours and Ms Mahemuti's level of intoxication and your behaviour towards her.  She contacted her boyfriend, Yan Enzo Ren Shi and asked him to meet up with her at the Korean restaurant where your group was headed.

4You had borrowed your friend's Mercedes that night.  The four of you went to that car and you drove to the Korean restaurant in Lonsdale Street.  You parked in the centre of the road the wrong way around, facing the oncoming traffic.  When at the Korean restaurant you all continued to drink alcohol including beer mixed with Soju, a high alcohol content drink.  When at the restaurant you continued to flirt with and annoy Ms Lu.  When Mr Shi arrived she told you he was her boyfriend and he sat between you and Ms Lu.  Mr Shi thought that you looked both angry and drunk and was concerned so he called a friend, Yi Tian, and had him join you all at the restaurant.

5After Mr Tian arrived you sat opposite him.  You continued to drink beer and Soju.  You spat on the floor near Mr Tian's feet.  You continued doing that despite him asking you to stop.  You then vomited in your cup and onto the table.

6Mr Shi and Mr Tian went outside the restaurant, waiting for the remainder of the party.  At 2.25 you paid the bill.  You were observed to be unsteady on your feet and leaning on the counter at the front.  You left the restaurant with Ms Mahemuti.  You were highly intoxicated.

7The group of you were on the footpath out the front of the restaurant.  An argument began between you and Mr Shi and Mr Tian regarding your treatment of Ms Lu.  Tensions escalated and some rubbish collectors working on the street who were observing you all, intervened and broke you up.  Mr Shi and Mr Tian walked towards their car and Ms Lu walked down Lonsdale Street, waiting for them.  You went with Ms Mahemuti to the Mercedes.  You yelled abuse at Mr Shi and Mr Tian, who turned and questioned what you had said.

8You then reversed your car and angled back towards the kerb and drove towards them.  They jumped up onto the concrete median strip in the middle of the road.  You then swerved the vehicle away to the left to avoid the median strip where they were, narrowly missing Mr Shi.  You, however, clipped the median strip with the front driver's side wheel.

9You continued driving east down Lonsdale Street towards Elizabeth Street where Ms Lu was standing on the road in the bus lane.  You did not brake and you struck Ms Lu with your car.  Your car hit her at the centre of its number plate protector and grille and sent her flying into the windscreen and then over the top of your vehicle with her landing on the road.  You did not stop and continued driving, performing a U-turn.  Mr Shi and Mr Tian went to her aid.  You then drove past on the other side of the road before doing another U-turn and drove back towards them.  The conduct in respect of Ms Lu and hitting her with your car is that that constitutes Charge 2, negligently causing serious injury.

10You were driving towards Mr Tian and he tried to hide behind a tree.  You stopped the car, facing the tree where Mr Tian was hiding, yelled at him and then drove away from the scene, east along Lonsdale Street.  Your driving before and after you hit Ms Lu is the factual basis of Charge 1, a rolled up count relating to all your conduct directed towards Mr Shi and Mr Tian.  You made no attempt to stop your car and render assistance to Ms Lu, who was lying seriously injured in the alley after being moved by Mr Shi.  That is the conduct regarding Charge 3.

11Police were called and an ambulance attended.  Ms Lu was taken to hospital and found to have suffered multiple injuries.  These included loss of consciousness, lacerations and bruising to the scalp and legs, haematoma to the left-hand side of her brain, a twisted pelvis, multiple fractures to her pubic bone, toe and spine.

12You drove Ms Mahemuti to Doncaster and then yourself home to Box Hill.
Ms Mahemuti went to the hospital in the early hours of the morning.  Mr Shi and Mr Tian recorded a conversation with her where they requested your details which she refused to provide.  She later sent a message to Ms Lu on your behalf, the contents of which included you stating you were sorry, that you wanted to provide her monetary compensation and that you could be deported back to China.

13On 10 January 2017 Ms Lu was transferred from Royal Melbourne Hospital to a rehabilitation unit at Epworth, Hawthorn.  She was unable to walk for two to three weeks and was discharged on 25 January 2017.  I received a victim impact statement from Ms Lu and I take that material into account.  She had no family and a limited amount of friends here in Melbourne at the time of this incident.  Her time in hospital was lonely, particularly as it occurred over Chinese New Year and she was afraid.  Her studies have been delayed and affected.  She notes, "This incident has caused me irreparable harm.  The scars on my head and leg are a constant reminder of what he's happened".  She is scared going out at night and crossing the street.

14The owner of the Mercedes came back to Australia about two weeks after the incident.  You told him the car needed a service and had been in an accident and that there was some tyre damage.  On 25 January you were arrested while attempting to go on a pre-planned  trip to China.  The Mercedes was located at your apartment building.  There was damage to the front passenger side bumper, driver's side door, front registration flap bonnet and a cracked windscreen.  The front grille had been dislodged.

15When interviewed by police you admitted that you had an altercation with
Mr Shi and Mr Tian outside the bar and that you all pushed each other.  You maintained your glasses fell underneath your seat in the car and you stopped to pick them up after hitting Ms Lu.  You said you were quite nervous and frightened and accelerated your car to get away from Mr Shi and Mr Tian and then you hit something.

16You said you drove yourself and Ms Mahemuti home and at 4 am you were advised by Ms Mahemuti that your car had hit Ms Lu and she was in hospital.  You denied you were affected by alcohol or that you were drinking throughout the night.  You also denied acting inappropriately with Ms Lu and her account of your conduct at the restaurant.  You denied that you knew you had hit Ms Lu.  You stated you did not know, Ms Lu was standing on the bus stop.  You admitted that you did not use the brakes and stated you did not see Mr Shi and Mr Tian when you drove at them and that you were trying to get away from there as soon as possible.  You denied that after hitting Ms Lu that you did a U-turn and drove back up past them.  You maintained you did not go to the police as you did not think Ms Lu had received the injury and that you then had legal advice that the police would contact you.  You admitted that you sent a message to Ms Lu through Ms Mahemuti to say sorry and offer her compensation but denied you were trying to encourage Ms Lu not to go to the police.  You denied running over Ms Lu intentionally or on purpose.

17As to your personal circumstances I received material tendered on your behalf which details your personal history and attests to your good character and reputation.  I take all this material into account and it can be identified as follows:  report of Luke Armstrong, consultant psychologist, dated 26 April 2018,
Exhibit 1; bundle of character references, Exhibit 2.  Additionally, I was provided with a letter from you, Exhibit 3.

18You are currently age 28.  You were born and raised in Hubei province in China.  Your parents have succeeded in business in China and you come from a financially stable background.  Your parents put you in boarding school at a very young age.  You were harshly treated by them with them having very high expectations of you.  You developed a closeness to your grandfather who regularly visited you and had only limited contact with your parents when you were away at school.  You initially struggled in this school environment but ultimately succeeded, doing well in the subjects that you enjoyed.  Your relationship with your parents also improved.  You completed your schooling and obtained a diploma from University of Wuhan.  That qualification enabled you to apply for a student visa for Australia.  You came to this country when you were 22 to study at Deakin University.  I note that your visa was cancelled on 25 March 2017.  Your English still remains very limited.  You initially worked part time while studying and had a very restricted social life.  However, your fortunes improved in or about 2014 after you commenced exporting baby formula or powder with the business quickly expanding and achieving financial success.

19You married your wife, Chen, in November 2016 and have been in a relationship with her for about seven years.  She remains supportive of you as do your friends and other business associates.  Your mother has visited you on one occasion, coming to Australia from China, and your wife regularly visits you in custody.  You are previously of good character with no prior convictions and a strong work ethic.  You have enjoyed a good reputation amongst your small group of friends and associates.  This conduct was very out of character.

20The offending occurred in the context of you consuming a significant amount of alcohol.  That appears to be the explanation for your involvement in these activities this night.  Although there have been other occasions of you consuming alcohol or what is commonly called binge drinking, such has never resulted in you engaging in similar antisocial behaviour.  You have not had any alcohol since you were incarcerated in January last year.

21Reference was made in the course of the plea to an incident that occurred in February 2010, resulting in you being hospitalised for a number of days after you were assaulted by a group of men in Tianmen.  It was submitted that this experience also provides some explanation for your conduct the night of this incident.  That is when challenged by the two men you wanted to get away as quickly as possible.  Although your level of intoxication in all likelihood was the most significant contributor to your conduct, that history helps to provide some context or explanation for it.  It does not and nor does your alcohol consumption excuse your behaviour.

22Your time in custody thus far has been difficult. You have been on remand since 25 January 2017.  You were granted bail on 8 August 2017 but were immediately placed in immigration detention and spent almost three months there until your bail was revoked and you returned to custody.  I take your time in immigration detention into account although it is not formally pre-sentence detention.

23You have very limited English and are thus more isolated in custody with only one other Mandarin speaking prisoner.  You are unable to access any programs because of this language barrier.

24You have experienced difficulties sleeping and anxiousness regarding this offending and the effect of your actions on Mr Lu.  Additionally, you are concerned about the impact on your family and have had worry and concern about your grandfather who recently fell seriously ill on learning of your predicament.

25You have also lost your student visa as a consequence of this offending.  You have thus lost the opportunity to settle in this country with your wife, a plan that is unlikely to be able to come to fruition.  You face the prospect of deportation on your release and that is an additional burden on you whilst you are in custody.  I take each of those considerations into account.

26You have pleaded guilty to these matters at the first opportunity.  I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.   None of the witnesses, particularly Ms Lu, have been required to give evidence and relive the traumatic incident.  I accept your plea is indicative of remorse.  Mr Armstrong notes that you have appropriate empathy for your victim and a recognition the incident was your fault.  He was of the view that you were genuine in your expressions of remorse despite your emotional awkwardness.

27Similar sentiments regarding your high level of remorse are expressed in the other material tendered on your behalf.  I accept your approach to Ms Lu regarding monetary compensation was in accordance with cultural expectations and consistent with your remorse.  You continue to indicate a preparedness to provide compensation to her for your actions.

28There are features that auger well for your rehabilitation.  You have no prior convictions and have previous good character.  This offending in a highly intoxicated state was conduct out of the usual for you.   You have shown that you are capable of successfully running your own business.  You retain the support of your family including your wife.  I accept you are unlikely to reoffend and that your rehabilitation prospects are good.  Specific deterrence has more limited application in the sentencing exercise.

29The negligence related to you driving in a highly intoxicated state.  Although you may not have expected Ms Lu to be standing in the bus lane your capacity to properly control your vehicle was significantly impaired.  Any driving whilst intoxicated shows complete disregard for others using the road including pedestrians.  Your reckless conduct encompassed by Charge 1 relates to two victims and involved you in engaging in a course of conduct with the use of your car that placed them at risk of injury.  Your counsel submitted and the prosecution conceded this was at the lower level for this offence and I accept that categorisation.

30Although the injuries to Ms Lu fortunately have not been long term, as is often the case in these offences in cases involving driving a car, they were no doubt serious.  As to leaving the scene you would have been aware that the others were with her and would come to her aid.  Clearly, you, in your intoxicated state, panicked and left.

31Your counsel conceded a term of imprisonment was the only sentencing option.  He submitted that I should structure a sentence which meant that the time that you have spent in custody is sufficient.  That is I should set a non-parole period where eligibility for release is in the near future.

32General deterrence in offending that involves the combination of the consumption of alcohol and offending whilst driving and then leaving the scene looms large in the sentencing process.  Just punishment and denunciation are also important sentencing considerations.  Taking all relevant matters into account including your plea and personal circumstances, I sentence you as follows.  If you could please stand, Mr Liu.

33In respect of Charge 1, reckless conduct endangering persons, you are convicted and sentenced to a term of imprisonment of 12 months.  In respect of Charge 2, negligently causing serious injury, you are convicted and sentenced to a term of imprisonment of three years.  In respect of Charge 3, failing to stop and rendering assistance, you are convicted and sentenced to a period of imprisonment of 12 months.  Six months of the sentence imposed on Charge 1 will be cumulative on the sentence imposed on Charge 2, leaving a total effective sentence of three and a half years.  You will be required to serve a minimum term of 21 months before you are eligible for parole.

34Your licence will be disqualified for a period of four years.

35Did I make the 464 on the plea date?

36MR MORRISSEY:  Yes, Your Honour already did, Your Honour.

37HER HONOUR:  I have already made that.  All right, what is the   PSD, please, Mr Hutton?

38MR HUTTON:   I have got it here.  Now 409 days.

39HER HONOUR: I declare 409 days pre-sentence detention and pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter I would have imposed a sentence of five and a half years with a minimum term of three and a half. Are there any other orders I need to make?

40MR HUTTON:  No, Your Honour.

41HER HONOUR:  Thank you.

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