Director of Public Prosecutions v Luk

[2024] VCC 1183

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01516

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASYAI LUK

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2024
DATE OF SENTENCE:	7 August 2024
CASE MAY BE CITED AS:	DPP v Luk
MEDIUM NEUTRAL CITATION:	[2024] VCC 1183

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Discontinuance of indictable charges – summary related offences – careless driving – learner driver driving without a supervisor present – death – plea of guilty – youthful offender – good prospects for rehabilitation – post-traumatic stress disorder – significant remorse – non-conviction

Legislation Cited:      Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:DPP v Aydin [2005] VSCA 86; Azzopardi v The Queen (2011) 35 VR 43

Sentence:                  Aggregate fine of $600 imposed without a conviction – learner permit suspended for 9 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Mr K. McDonald	Balot Reilly Criminal Lawyers

HER HONOUR:

1Asyai Luk, on 18 June 2024, the Crown announced the discontinuance of three indictable charges; dangerous driving cause death, failing to stop after motor vehicle accident and failing to render assistance after motor vehicle accident. You pleaded guilty to two summary related offences; charge 4 being a learner driver driving without a supervisor present and charge 8 careless driving. You consented to these summary related charges being heard in this court.

2You admitted one prior conviction, namely a traffic infringement notice in relation to exceeding the speed limit by more than 25km/h but less than 30km/h. This offence occurred on 17 March 2022. Your learner permit was suspended for a period of 3 months commencing 13 May 2022.

3At the outset I acknowledge the grave consequences and the loss of life that resulted from this tragic accident. It is my duty to sentence you for the offences to which you have pleaded guilty having regard to the factual basis upon which they occurred. To be clear, I am not sentencing you for having caused the death of your sister rather it is one of the consequences of your offending to which I have had regard.

Circumstances of offending

4The details of your offending are contained in the Summary of Prosecution Opening for Plea dated 17 July 2024. What immediately follows is an abridged version of this document.

5At the time of the offending, you were 22 years old and the holder of a current learner’s permit. On 7 November 2022 at around 11.30am, you borrowed your mother’s black Dodge and drove from your house with your sister, Gol Luk, as a passenger.

6Gol was your older sister and was then aged 24. Gol was also a learner driver. Any driving you did on this day, the amount of which is unclear, was without the supervision of a qualified driver. This is the factual basis of summary charge 4.

7At around 3.00pm, you were driving on High Street, a residential area in Sunshine. Gol was in the passenger seat and your cousin was in the back seat. You pulled the car over, got out and went to a nearby house. You spoke to the resident and said you were being attacked by your sister. You requested they call the police. The resident called the police, you returned to the vehicle. There was a verbal argument between you and your sister, who was at this stage in the driver’s seat.

8Whilst still outside the car, you hit Gol with a piece of clothing, she moved to the passenger seat and you got into the car. Your sister got out of the car via the front passenger door, which she left open. A short time later, Gol tried to get back in the car, as she did so, she took hold of the front passenger door. At that moment you accelerated forward. You drove forward one car length, and the passenger door that was open and being held by your sister struck the front of a Nissan Patrol that was parked in front of your car, with its bonnet protruding on to the road.

9Gol lost her grip on the door and was thrown face forwards into the bulbar of the Patrol. This is the factual basis of charge eight of careless driving.

10You then drove the vehicle forward, before hesitating and then driving away from the scene. Police observed you driving the vehicle when you returned home at 7.07pm. You were arrested at 7.10pm.

11Observers of the collision called emergency services and provided assistance to Gol until police arrived. Gol was transported to the Royal Melbourne Hospital for treatment. She had suffered extensive facial injuries and skull fractures, as well as ventilation difficulties and severe blood loss. At 9.47pm Gol died as a result of her injuries.

Victim impact statement

12The prosecution tendered a victim impact statement from your mother, she requested that the statement not be read in court. I respect her wish for privacy and will therefore refer only briefly to its contents though I make clear that I have read and considered her statement. Your mother describes the complex and tragic consequence of this accident. She describes it as a curse that she would not wish upon her worst enemy. The impact has been life changing and profound for your mother, yourself and all of your family.

Nature and gravity of the offending

13The summary charges to which you have pleaded guilty are almost exclusively dealt with in the Magistrates’ Court. These charges are before this court having been transferred as related summary offences. This court may impose any sentence in respect of a related summary offence that could be imposed by the Magistrates’ Court.[1]

[1]Criminal Procedure Act 2009 (Vic) s 242(6).

14The maximum penalty is a guide post, or a navigational aid for fixing an appropriate sentence.[2] The maximum penalty for a first offence of careless driving is 6 penalty units. For the charge of learner driver driving without an appropriate supervising driver the maximum penalty is 60 penalty units or 6 months gaol.

[2]DPP v Aydin [2005] VSCA 86, [12].

15On behalf of the prosecution, Mr Pickering submitted that a charge of careless driving can cover a vast array of circumstances. Mr Pickering submitted the careless driving in your case was made more serious because you should not have been driving at all as you did not have a supervising driver. Further, he submitted that you had been driving for several hours without supervision and at the time of the accident everything went very wrong. Mr Pickering submitted that this elevates your case to one where a higher penalty is appropriate, as opposed to a case where someone had been driving for a short period unsupervised and made a momentary error. Mr Pickering agreed that this incident involved a couple of seconds of driving. He conceded that you were not hoon driving but he submitted your careless driving had terrible consequences.

16Mr McDonald on your behalf submitted that the relevant episode of driving was just over a second in duration. It occurred in circumstances where you had an argument with your sister and you had sought help from a nearby house. Mr McDonald highlighted that you were unaware of your sister’s presence at the passenger door at the time you accelerated. Further, he submitted after the collision you drove a short distance, slowed to a stop, looked in the rear vision mirror and then drove away. Mr McDonald submitted charge 4 relates to your driving at Sunshine only. In addition, he submitted a supervising driver would not have been able to advise you in a way that would have prevented what happened.

17I accept that the episode of careless driving for which you are to be punished occurred in less than a couple of seconds. It occurred in circumstances where you were unaware of your sister’s presence at the car door and in circumstances where there had been an argument underway, that was of sufficient severity to cause you to stop the car and seek help from strangers. You drove no more than a car length before your sister, who was holding the open passenger door, collided with the bulbar of a vehicle that was protruding from a nearby driveway on to the road. This unusual and unforeseen set of circumstances resulted in the tragic death of your sister.

18I accept the argument of your counsel that you are to be punished in relation to the second charge of being a learner driver without an appropriate supervising driver, for your driving at Sunshine at the time of the accident. There is otherwise limited evidence as to how long or where you drove on the day in question. I do not accept that this charge should be used to render the charge of careless driving as more serious as I understood the argument of Mr Pickering. It indicates that you were an inexperienced driver requiring supervision, but to use it in this manner, in my view would amount to impermissible double punishment.

19You fall to be sentenced for a charge of careless driving of very short duration where your moral culpability is low and a separate charge of being a learner driver without an appropriate supervising driver.

Personal circumstances

20You are currently 24 years old and were 22 at the time of the offending. You live with your mother, three of your siblings, and your son who is 4 months old.

21You were born in Khartoum, Sudan. Your father worked as a mechanic and your mother stayed at home. When you were two years old your family fled war torn Sudan and relocated to Egypt. There you lived with your family in a refugee ‘shanty town’ for two years, suffering racial prejudice and harassment, until you and your family were granted Humanitarian Visas and flown to Australia in 2004.

22Your parents did their best to raise you and your siblings, but you encountered general socio-economic hardships, as well as cultural-generational differences. Your parents did not speak English and held traditional Sudanese cultural expectations for you and your siblings. Notwithstanding these issues, you had close relationships with both your parents until they separated when you were 16 years old. You have not had contact with your father since he left the family home in 2014.

23Your mother has remained single since the separation, and was previously working, six and sometimes seven days a week as a disability worker with an NDIS provider. Although she has attempted to return to work she has been unable to do so as a result of the trauma and grief resulting from this matter.

24You are not involved in an ongoing relationship with the father of your child, but he contributes financially to your son’s care and visits him when he is in Melbourne.

25During your primary school years you endured significant racially motivated teasing and harassment. Your family was one of the first African families in the area. This improved during secondary school and you went on to complete year 11.

26From the age of 14, you have worked in part time employment whilst you were at school. You first worked at McDonald’s, then at a cafe and later providing hairdressing and makeup services from home. You were also involved in the VICSEG community volunteer program, providing support to refugee and asylum seeker families. At times you have stopped work to help your mother run the family home and also to provide care for your siblings.

27At age 18 you started an online Textiles and Fashion course with the Australian Academy of Fashion. However, you did not complete this course as you were already in the process of selling clothing, bags, and accessories which you designed yourself and chose to concentrate on your business. The upheaval and trauma associated with this matter caused you to stop your business.

28You are currently receiving Centrelink benefits, and plan to relaunch your online business once this matter has resolved. You have also been accepted into RMIT University’s Social Work program and expect to commence this next year.

29A report from Ian MacKinnon, psychologist, was tendered at your plea hearing. Mr MacKinnon opined that you have a diagnosis of complex post-traumatic stress disorder currently manifested at a mild to moderate level, with significant levels of both anxiety and depression evident. In his view this diagnosis was present both at the time of your offending and remains present currently. The source of this disorder is threefold. First, in 2017 you were a passenger in a significant motor vehicle accident. You suffered serious internal injuries and required hospitalisation and ongoing treatment. Second, in 2018 you were witness to the fatal stabbing death of a close friend. Third, the death of your sister Gol in the circumstances previously outlined.

30Mr MacKinnon was further of the opinion that you do not labour with antisocial and criminal traits. He considered that despite your disadvantaged personal background you have an impressive history in Australia of good educational achievement, gainful employment and self-employment, involvement in community volunteer work and community sporting competitions. I take into account Mr MacKinnon’s report and your compromised mental health in a general way in the sentencing synthesis.

Matters in mitigation

31You have pleaded guilty to charges that are significantly less serious than those originally charged. This in large part explains the lateness of your plea of guilty. Your plea has significant utilitarian value as the court has been spared the time and expense of what would have been a traumatic and difficult trial. In addition, your plea has saved several witnesses the need to relive these events, which no doubt would have been extremely difficult and confronting.

32Further, your plea of guilty demonstrates your desire to facilitate the course of justice and is demonstrative of an acceptance of responsibility for your offending. I accept that it is also indicative of your remorse.

33Further evidence of your remorse was detailed in Mr MacKinnon’s report. During your assessment you repeatedly expressed remorse and regret over the incident. Moreover, you reported experiencing continual flashbacks and nightmares about the collision.

34Two letters were tendered at your plea. One from a childhood friend and the other from a family friend. These people have known you for 15 and nine years respectively. Both of these people spoke of your remorse in relation to the incident, and also the significant sadness you continue to suffer. Additionally, they both spoke of your solid work history and your good character.

35I accept that your remorse is profound and genuine. I also take into account the significant grief, trauma and guilt that continues to haunt you.

36Your counsel, Mr McDonald, submitted that this matter has also had an immense effect on your family, both internally and within the larger community. The victim impact statement written by your mother refers in detail to this impact as does your insightful letter that was tendered to the court.

37The media reporting of this matter has intensified your feelings of isolation and shame and has caused your grieving mother to be shunned by some within your community. Whilst your counsel did not submit this amounted to extra-curial punishment, it nonetheless remains a matter I take into consideration.

38I have taken into account that you have one prior conviction for speeding that occurred approximately nine months before the current offending. This was a traffic infringement notice that did not involve court proceedings. Further, it appears as a single offence unaccompanied by any careless or dangerous driving and there is no evidence that you were driving unsupervised at that time. Speed is not a factor in the current offending. In circumstances where you only have the one prior matter I do not consider this to evidence a blatant disrespect for the road traffic laws on your part.

39I take into account that you have participated in a road trauma awareness course. The certificate tendered acknowledges that you have completed a seminar focused on increasing awareness of the impact that road trauma has on people’s lives, and the choices and responsibilities that come with using the road safely. I consider this to be an important educative program, particularly in light of your prior matter. This together with the assessment of Mr MacKinnon, that you are a low risk of re-offending fortifies my view that you have good prospects for the future and you are unlikely to re-offend.

40At the time of your offending you were 22 years of age you are now 24. Whilst you do not fit the description of a young offender as defined in the Sentencing Act I accept the submission of your counsel that nonetheless you are a youthful offender and the principles that apply to the sentencing of youthful offenders have some application in your case.[3]

[3]Azzopardi v The Queen (2011) 35 VR 43.

Sentencing principles

41The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

42I consider in circumstances where your moral culpability is low that general deterrence should be somewhat moderated. Given the impact of the offending upon you and the immense strain of almost two years of delay before the courts I consider specific deterrence should also be somewhat moderated. I consider you have good prospects for rehabilitation and in circumstances where I consider that you have a low risk of re-offending, protection of the community should be given limited weight. It is my view that I can appropriately punish you and denounce your offending behaviour by way of the penalty I will announce shortly.

43I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act, where relevant to your case.[4] In particular, I have had regard to the current sentencing practices for the offences before me as informed by the sentencing statistics provided by Mr McDonald, noting their obvious limitations. Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

[4] Sentencing Act 1991 (Vic) s 5.

44In arriving at an appropriate sentence in your case I have considered all the submissions raised by the parties, both written and oral. I have taken into account that your offending was momentary, unintended and a consequence of you being unaware of your sister’s presence at the crucial time. In these circumstances despite the devastating effects of the collision, as I have already said, I accept that your moral culpability is low. Further, I have taken into account other factors, already canvassed, including your relatively young age, your plea of guilty, your sincere expressions of remorse, your enrolment in further education to become a social worker, your previous good character, your solid work history and, your good prospects for the future, the devastating impact your offending has had upon you and your family, your mother’s statement, your participation in the Road Trauma Awareness course, the testimonials tendered on your behalf, the content of the psychological report and your compromised mental health and vulnerabilities. I have considered the factors in s 8 of the Sentencing Act and I intend to exercise my discretion in the unusual and exceptional circumstances of your case, to impose a penalty without conviction.[5]

[5] Ibid s 8.

45In relation to the two charges before the court without conviction I impose a fine of $600. In relation to your learner permit pursuant to s 89 of the Sentencing Act I order that your licence be suspended for a period of 9 months.[6] I must take into account that you have been served with a s 85 notice and your learner permit has been suspended since the date of your arrest and charge for this offending. In the circumstances I backdate the suspension of your learner permit until that date.

[6] Ibid s 89.