Director of Public Prosecutions v Ng
[2024] VCC 739
•17 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01923
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALBERT NG |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March, 21 March, 27 March, 11 April, 15 May 2024 | |
DATE OF SENTENCE: | 17 May 2024 | |
CASE MAY BE CITED AS: | DPP v NG | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 739 | |
REASONS FOR SENTENCE
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Subject:Criminal law. Sentence.
Catchwords: Plea of guilty after sentence indication. Dangerous driving causing serious injury x 2. Dangerous constituted by inattention. Catastrophic injuries to elderly victims in another car. Minor prior history, but significant subsequent history. Bailed on pending matter to residential rehabilitation. Remarkable progress for more than a year. ‘Akoka time’ considerations. Delay. Relative youth. Remorse. Head sentence with non-parole period warranted. Totality. Setting of low non-parole period justified.
Legislation Cited: Crimes Act 1958. Sentencing Act 1991. Criminal Procedure Act 2009
Cases Cited:Akoka v the Queen [2017] VSCA 214, R v Storey [1998] 1 VR 359, Weineger v R [2003] HCA 1, Stephens v The Queen [2016] VSCA 121, Jiminez v The Queen (1992) 173 CLR 572, King (2012) 245 CLR 588, Board v The Queen [2013] VSCA 190, R v Jurisic (1998) 45 NSWLR 209, DPP v Neethling (2009) 22 VR 466, DPP v Oates (2007) 47 MVR 483, R v Whyte (2002) 55 NSWLR 252, R v Van Boxtel [1994] 2 VR 98, R v Towle [2009] VSCA 280, Da Costa v The Queen (2016) 258 A Crim R 60, Bell v The Queen [2018] VSCA 281, DPP v Lombardo [2022] VSCA 204, Gardezi v The King [2023] VSCA 297, Worboyes v TheQueen [2021] VSCA 169, Tones v The Queen [2017] VSCA 118, DPP v Dalgleish (2017) 262 CLR 428., Boulton v The Queen [2014] VSCA 342, R vBos [2023] VSC 68, R v Novakovic(2007) 17 VR 21, Koukoulis v The Queen [2020] VSCA 19.
Sentence: TES of 24 months with NPP of 12 months.
PSD of 3 days declared.
s.6AAA declaration of 34 months with NPP of 20 months
Licence cancelled for 20 months from today.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B. Cunningham | OPP |
| For the Accused | Mr L. Cameron | Leanne Warren |
HIS HONOUR:
Introduction
1Albert Ng, your dangerous driving on 30 June 2022 caused serious injury to Sheng Xu and Gongwa Zhu, by your plea before me you have acknowledged as much.
2Each charge of dangerous driving causing serious injury carries with it a maximum term of imprisonment of five years.[1]
[1]Crimes Act 1958 s 319(1A)
3Your offending is serious. It occurred at a time when you appeared to have little regard to the law. The collision caused horrific injuries to your victims. It will have life-long consequences for them. It will have life-long consequences for you too.
4In mitigation, the following matters assume real prominence in the sentencing equation: your plea of guilty, comparative youth, limited prior criminal history, demonstrated capacity for rehabilitation, the application of the principles in Akoka[2] and delay.
[2]Akoka v The Queen [2017] VSCA 214 (‘Akoka’).
5You will be sentenced to a head sentence and non-parole period, as I stated at the sentence indication hearing.[3] For reasons I am about to outline, the head sentence will fall modestly below that figure first indicated of 26 months. You will be the beneficiary of a meaningful parole period as part of the sentence.
[3]Held under s207 of the Criminal Procedure Act 2009 in March 2024 and accepted on 11 April 2024.
6The duration and structure of the sentence I impose is in no small way shaped by the efforts to reform you have sincerely made over an extended period of time. But for those efforts, the sentence I would impose would be far more severe.
Background facts[4]
[4]Derived from Exhibit F (Plea) Summary of Prosecution Opening for Plea dated 15 May 2024
7You were 26 at the time of the collision. You lived in Surrey Hills. You had a valid and unrestricted driver's licence.
8Sheng Xu and Gongwa Zhu are married and were aged 74 years and 71 years, respectively, at the time of the offending.
9On 30 June 2022 at approximately 6.30 pm Mr Xu was driving his white Toyota Corolla east along Templestowe Road, Templestowe Lower. His wife, Mrs Zhu, was the front passenger. They were on the way home from visiting their son. They were wearing seatbelts, and their headlights were on.
10At the same time, you were driving a red Camry west along Templestowe Road. You were heading home too. You had your seatbelt on. Your headlights were on.
11Templestowe Road is a two-way road with a single lane going in each direction and a posted speed limit of 70 kilometres per hour in both directions. The lanes are separated by double solid white lines and the roadway was in good condition. In the area of collision, the road is straight, with a slight bend on either side of the collision site. At the time of the collision traffic was light and visibility was good. The weather was clear, there was no wind, and the roads were dry. No issue with the road was identified as contributing to the collision.
12You drove dangerously by crossing over solid white lines and continuing to accelerate while travelling wholly in the eastbound lane until colliding head on with the Zhu’s vehicle.
Circumstances of the Offending
13Mr Xu recalls driving between 60 and 70 kilometres per hour at the time of the collision. He was concentrating hard and being particularly cautious, not even talking with his wife due to the dark conditions. Benjamin Cubelic was driving behind the victim’s vehicle and recalls doing 70 kilometres an hour. He maintained a consistent distance behind the victim’s car for two or three minutes.
14
As they approached Rose Avenue on a straight section of Templestowe Road,
Mr Cubelic noticed he was catching up to the victim’s vehicle and saw your vehicle travelling westbound. Mr Cubelic then saw your vehicle cross into the eastbound lane at which time he lost sight of you. Mr Xu was looking straight ahead when he suddenly saw headlights in front him. He does not recall whether he applied the brakes as there was no time for him to respond or take evasive action before your vehicle, by now entirely in the eastbound lane, collided head on with Mr Xu’s vehicle, just after Rose Avenue.
15The collision was captured by CCTV cameras on a nearby road. It makes for sickening viewing.
16Mr Cubelic did not see the victim’s vehicle take any evasive action. Neither the victims, nor Mr Cubelic, noticed anything remarkable about your vehicle before it began crossing into the eastbound lane.
17Mr Cubelic stopped quickly, parked and went to assist the victims. Mrs Zhu had lost consciousness. Mr Xu was disoriented but opened the driver’s side door and asked for help. Mr Cubelic assisted the victims until another passer-by (thankfully a medical practitioner) arrived and took over.
18At the same time, another couple had stopped and assisted you. Mr Cubelic remained at the scene and whilst he did not speak with you, he noticed that you were dazed, confused and declining medical attention.
19
Matthew McCoy and his partner Shani Pearce were travelling westbound on Templestowe Road when Ms Pearce observed the collision ahead and told Mr McCoy to pull over. He pulled over and then went over to your vehicle, whilst
Ms Pearce called Triple 0. Mr McCoy observed debris all over the road and could smell fuel. He went to the driver’s side of your vehicle and asked several times if you were okay but you did not respond. Mr McCoy eventually got the jammed driver’s side door opened and asked you again if you were okay. The music was very loud, and it took a while for you to respond, but eventually told him you were okay.
20
Mr McCoy did not observe any physical injuries to you however he observed you were very unsteady on your feet. Mr McCoy helped you from the vehicle and walked you to the grass embankment nearby. Once she had finished speaking with Triple 0, Ms Pearce walked over to join Mr McCoy and you. You asked
Ms Pearce if she knew what had happened and Ms Pearce explained that they had arrived after the collision.
21Mr McCoy and Ms Pearce stayed with you. You repeatedly tried to return to your car however Mr McCoy and Ms Pearce stopped you as they were concerned it was unsafe. At your invitation, Ms Pearce sent a text message from your phone to your girlfriend to tell her where you were and that you were okay. Ms Pearce and Mr McCoy stayed with you until your girlfriend arrived.
22Police then arrived at about 6.45 pm, with the fire brigade and paramedics arriving very shortly thereafter. Mrs Zhu had regained consciousness and both victims were transported by paramedics to The Alfred.
Victim’s injuries
Sheng XU
23Mr Xu was admitted to The Alfred on 30 June 2022 and discharged nine days later, on 9 July 2022, and required follow up treatment.
24He underwent a CT scan and a laparotomy (surgery). Following surgery Mr Xu’s bowel stopped working, he had an 'NG' (nasogastric) tube inserted and was placed on high-dose antibiotics delivered intravenously to treat the condition and prevent potentially life-threatening infection. Mr Xu sustained the following injuries:
(a) Acute non-displaced manubrial fracture (fracture through breastbone);
(b) Small volume retrosternal haematoma;
(c) Four (4) acute non-displaced left rib fractures;
(d) Acute L3 anterior wedge compression fracture with 25 per cent height loss, which is a crush fracture to his lower spine;
(e) Bowel perforation causing peritonitis, pus in the abdominal cavity caused by infection, that required surgical repair.
25The spinal fracture has potentially long-term complications including chronic pain or arthritis. The rib and breastbone fractures usually heal within 6-8 weeks however rib fractures are especially painful during the healing process. Seven weeks after the collision Mr Xu was continuing to experience ongoing pain and still required ongoing medical treatment.
26I add, he would have almost certainly have died from his injuries without timely medical intervention. His wife did not fare much better.
Gongwa ZHU
27Mrs Zhu was admitted to The Alfred Hospital on 30 June 2022 and was discharged 16 days later, on 16 July 2022.
28Mrs Zhu underwent an ultrasound before being taken for an urgent CT scan. As a result, she underwent an emergency laparotomy. The following day, on 1 July, she was taken back into surgery for a further laparotomy, during which the doctors performed an emergency splenectomy. On 4 July she underwent further surgery, during which metal plates and screws were placed across her fractured ribs to assist in healing. In addition to bruising and abrasions, she suffered the following injuries:
(a) Fractured C7 vertebra;
(b) Small haematoma around the right carotid artery;
(c) A possible small eye bleed in the right eye;
(d) Extensive bruising within both lungs;
(e) Small punctures to both lungs;
(f) A fractured breastbone and small haematoma behind the breastbone;
(g) Fourteen (14) rib fractures with four of the right rib fractures grossly displaced and one left rib fracture moderately displaced;
(h) Extensive bleeding (approximately one litre) in her abdomen;
(i) Multiple suspected fractures to L5 vertebrae;
(j) Multiple lacerations to the small bowel requiring 34 centimetres of it to be removed during surgical repair;
(k) Injuries to the start of the large bowel requiring a portion to be removed during surgical repair;
(l) A tear in the liver;
(m) Bowel leakage;
(n) Bleeding from the spleen requiring a splenectomy;
(o) Bruising to the heart;
(p) A blood clot in her right leg requiring blood thinners.
29Mrs Zhu also sustained multiple life-threatening injuries and would almost certainly have died from her injuries without timely medical intervention. She will require medication for the rest of her life to manage the risk that those life–threatening infections present from the splenectomy.
30She suffered a heart attack whilst in hospital on 9 July 2022. She required (and still requires) medication following this event. There are injuries that can easily be directly attributed to the collision, which I have outlined above, but the question of whether or not the heart attack was caused by or related to the collision is harder to discern. In the absence of expert medical material which was not forthcoming, and that is not a criticism, I cannot conclude to the requisite standard[5] that the heart attack suffered by Mrs Zhu necessarily flowed from the collision. Accordingly, I cannot sentence you on the basis that it did. Whatever the cause of the heart attack, I note that Mrs Zhu – hospitalised with horrendous injuries that were caused by you – had to endure this serious episode of poor health while she was already in such a parlous state.
[5]See R v Storey [1998] 1 VR 359.
31Further, Mrs Zhu will forever be at risk of complications arising from her bowel surgery. Given the extent of her injuries and her age, Mrs Zhu may have long term issues with recovery, and she may never return to the condition she was prior to the collision. That, I add, remains to be seen.
Victim Impact
32No victim impact statements were filed in the matter. There have been issues concerning the travel commitments of the victims, the language barrier to some extent and their trauma which prevented them from furnishing one.
33Prior to the sentence indication hearing, the informant diligently sought by way of summary from each victim, the long term effects your offending has had on them so far. This was necessary information for me to have at the time of the sentencing indication, as it is now.
34The parties agree I can treat this information, coming from the informant in this way, as a suitable and proper way for me to consider the effect the offences have had on the victims.[6]
[6]A significant consideration under s 5(2)(daa) Sentencing Act 1991 (Vic).
35I consider the way in which this issue was approached by you, having opted not to take a technical point about how the Court is to inform itself about victim impact of your crimes, to be consistent with your contrition.
36Having regard to the matters that appear below, one can only conclude that your driving has brought only pain, fear, and a serious diminution in the quality of life in both victims.
Sheng XU
37Mr Xu says that he still has pain in his feet and legs every day which means he cannot walk for long periods or distances. His sleep is frequently interrupted by pain.
38Mr Xu has not driven since the collision and fears driving or crossing the road. As a result, he has been required to take public transport or taxi everywhere, at great expense. Mr Xu no longer enjoys going out or doing the same activities that he and his wife used to do together.
Gongwa ZHU
39Mrs Zhu has no memory of the collision at all.
40Mrs Zhu indicates that since being discharged from hospital, she can no longer do many of the things that she previously did and is in pain and fatigued all of the time. She has difficulty raising her arms or standing for long periods. Mrs Zhu indicates that she must now physically and mentally prepare herself before commencing any household tasks.
41She is unable to do routine things like grocery shopping on her own or caring for her grandchildren as she no longer has the strength.
42She was so traumatised by the crash that she now takes public transport everywhere because she is too afraid to drive.
Concluding remarks on victim impact
43The stark reality, Mr Ng, is that nothing can ever return things to the way they were for both of the victims in this case. I must impose a sentence that will be expressed in terms of time, months and years and the like. The following comes from an undertaking of analysis of many legal factors, or as our High Court puts it, I 'have to somehow translate the complexity of the human condition and human behaviour onto mathematic units of punishment expressed in periods of time'.[7]
[7] Weineger v R [2003] HCA 14; 212 CLR 629 at [24] per Gleeson CJ McHugh, Gummow, Hayne JJ.
44
The length of any punishment I impose is not the value of
Mr Xu or Mrs Zhu’s wellbeing, safety, or sense of self. Their health and quality of life simply cannot be valued in that way. The loss that they have suffered is unquantifiable.
Arrest on 30 June 2022
45You were not injured in the collision. You were arrested and given your caution and rights at the scene. You told police you could not remember anything about the collision other than 'the boom'. You underwent a preliminary breath test and preliminary oral fluid test at the scene. The results were negative for alcohol, cannabis, methamphetamine and MDMA. No further evidentiary tests were conducted, and no blood was taken.
46Although not said to be directly causative of the collision I have just described, I note that a search of your bag located a quantity of illicit drugs and cash.
47You admitted to First Constable Jones that you had a few Xanax tablets, and you later informed Sergeant Carla Reardon you had taken Xanax and Modafinil at 4 pm.
48You were transported to Doncaster police station and stated the following during your interview:
(a) You were driving a rental car when your own vehicle was undergoing repairs.
(b) There was nothing distracting you and nothing impairing your ability to drive.
(c) You had no recollection of the collision but were sorry and said 'I obviously feel bad about doing what I was doing' and that you 'probably wasn’t paying too much attention to everything' you stated finally.
49You were initially charged with careless driving, and you were bailed to attend Court.
Investigation
50Both vehicles sustained significant damage because of the collision.
51The victim’s vehicle was not compatible with crash data retrieval software however was estimated to be travelling at a maximum speed of about 55 kilometres per hour at the time of collision.
52An examination of your vehicle revealed no mechanical faults or failures capable of contributing to the collision.
53The Airbag Control Module from your vehicle revealed there were three 'events' recorded. Two events related to the collision, however, the third event occurred prior to this collision and, I add, played no role in the sentencing exercise before me.
54In relation to that third event, analysis of the Airbag Control Module revealed:[8]
(a) It occurred in the ignition cycle immediately prior to the collision;
(b) It occurred within 10 kilometres of the collision site; and
(c) Airbags and seatbelt pretensioners were not deployed.
[8]Not a factor considered in this sentence, but merely include for context.
55In relation to the first and second events, that is this collision, analysis of the Airbag Control Module revealed:
(a) You had been travelling for 20 minutes before the collision occurred;
(b) 4.65 seconds prior to the collision you were travelling at about 49 kilometres per hour before you began accelerating, reaching a speed of 62 kilometres per hour in the four seconds before the collision;
(c) At the time of impact, you were travelling at 62 kilometres per hour and accelerating; and
(d) You did not engage the brakes.
56At the time of the collision, I repeat, your vehicle was wholly in the eastbound lane for what must have been no more than a few seconds. It is obvious that you did not apply the kind of care and concentration to the task of driving that Mr Xu did.
57For completeness I add this; Associate Professor (GP) Michael Burke was consulted regarding the prescription medications, Xanax and Modafinil. Xanax causes sedation and may impair complex activities such as driving a car. It can slow down reaction times and impair decision making. Modafinil, on the other hand, was a stimulant. Taking Modafinil does not negate the effects of Xanax but introduces its own stimulant effects in addition to the sedative effects of the Xanax. There is no logical or clinical reason for these drugs to be taken together. They were taken together by you, by your own admission to police at the scene. If taken together, the effect would be unpredictable.[9] That being said, they are not said to play any role in this collision, but they provide important contextual information that I will return to.
[9]Statement of Associate Professor Michael Burke, Depositions at p.126. I note here, as elsewhere, I do not sentence you as though the collision was caused by the ingestion of these substances.
Subsequent Arrest – 15 June 2023
58In the immediate aftermath of the collision Highway Patrol members attended the scene and they commenced an investigation.
59On 8 July 2022 Leading Senior Constable Donlon submitted a licence review related to VicRoads. After concluding preliminary investigations, it was determined that the offending was too serious and required further investigation. The charge of careless driving issued by uniform members on 30 June 2022 was withdrawn pending further investigation.
60That investigation appears to have taken close to a year. You were arrested by appointment on 15 June 2023. A further record of interview was conducted. You did not comment on the allegations, and you were charged with dangerous driving causing serious injury and bailed to attend Court.
61Counsel, in the next part of my sentencing reasons I deal with the chronology of events. I do not feel the need to repeat them before you, they will appear in my written reasons.
The offending
62All offences involving dangerous driving that cause serious injury are serious. So much is reflected in the applicable maximum penalty of five years.
63Driving will be dangerous when there is 'some serious breach of the proper conduct of a vehicle so as to be, in reality, and not speculatively, potentially dangerous to others.'[10]
[10]Stephens v The Queen [2016] VSCA 121.
64The driving must have 'some feature which subjects the public to a risk over and above that which is ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention.’[11] A Court's assessment of the dangerousness of driving will be informed by the extent of the risk that the driving created, as well as by the extent of potential harm should the risk materialise.[12]
[11]Jiminez v The Queen (1992) 173 CLR 572, 579; King v The Queen (2012) 245 CLR 588, 607–8 [46].
[12]Board v The Queen [2013] VSCA 190 [34] (Maxwell P, with whom Buchanan JA agreed).
65Here, it is put against you, and you accept, that your departure from your lane into that of oncoming traffic constitutes dangerousness by inattention.
66Dangerousness encompasses a wide range of conduct in a driving context. It has been said on a number of occasions that dangerous driving causing death or serious injury is likely to receive a significant term of imprisonment.[13] That statement of principle is qualified in Director of Public Prosecutions v Oates,[14] by noting that any sentence imposed must take into account variations in the moral culpability of the person responsible and that a custodial sentence will usually be appropriate for this offence except where the offender’s level of culpability is low.[15]
[13]R v Jurisic (1998) 45 NSWLR 209; DPP v Neethling (2009) 22 VR 466, 472 [29] DPP v Oates (2007) 47 MVR 483.
[14](2007) 47 MVR 483.
[15]Ibid 486 [22] (Neave JA with whom Warren CJ and Nettle JA agreed).
67Section 5(2)(d) Sentencing Act 1991 requires the sentencing judge to consider the offender's culpability in any event, and the degree of the responsibility for the offence.
68An assessment of the offender’s culpability is an exercise that can be made with reference to a number of factors set out by Spigelman CJ in R v Whyte[16] which was said to have been relevant in determining the seriousness of particular offences of dangerous driving causing death in New South Wales. The matters enumerated by the Chief Justice in Whyte were aggravating factors established in the authorities which were listed for the purpose of the guideline judgment in R v Jurisic and later revised in Whyte as follows:
[16](2002) 55 NSWLR 252.
(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) Degree of intoxication or substance abuse.
(v) Erratic driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.
(viii) Ignoring of warnings.
(ix) Escaping police pursuit.
(x) Degree of sleep deprivation.
(xi) Failing to stop.[17]
[17]R v Whyte (2002) 55 NSWLR 252 at [216]–[217]; DPP v Neethling (2009) 22 VR 466, 473 [31].
69It is important to note that these factors do not constitute some mere checklist to be ticked off, nor are they intended to be exhaustive.
70To that end, one might add the following considerations to an assessment of culpability:
(a) the experience of the driver;
(b) his familiarity with the vehicle being driven;
(c) the terrain over which the vehicle is being driven; and
(d) the degree of protection afforded to passengers.
71Moreover, moral culpability in respect of criminal conduct does not fall to be assessed simply by identifying aggravating features that could have been present and then asserting that the case under consideration cannot be regarded as serious or very serious because of the absence of some of those factors. Both the dangerousness and moral culpability fall to be assessed by reference to all the conduct and circumstances of a particular offender, including the circumstances of the offender himself.
72Offending by a person who has knowledge of the risks associated with driving will ordinarily be adjudged more blameworthy than offending by one who does it without knowledge. The degree to which particular consequences of the offender’s acts were, or should have been, foreseen by him or her will inform the question of moral culpability.[18]
[18]R v Van Boxtel [1994] 2 VR 98, 103–4.
73Given a wide spectrum of conduct may be captured by this charge, it is necessary to consider all relevant features of the impugned driving and the driver – including the presence or absence of aggravating features – to accurately assess the objective gravity of the offending.[19]
[19]See, e.g., DPP v Oates (2007) 47 MVR 483, [25], [31], [38]; DPP v Neethling (2009) 22 VR 466, 473 [31]-[32]; R v Towle [2009] VSCA 280, [52]; Da Costa v The Queen (2016) 258 A Crim R 60, 64-66 [20] – each adopting in Victoria the principles described in the New South Wales Court of Criminal Appeal guideline judgment of R v Whyte (2002) 55 NSWLR 252.
74In support of the proposition that your moral culpability could be properly assessed as 'falling toward the lower end of the spectrum', the following matters were relied on by your counsel, Mr Cameron.
(a) the prosecution alleges that you drove dangerously 'by crossing over solid white lines and continuing to accelerate whilst travelling wholly in the eastbound lane until colliding head on with the victims’ vehicle';
(b) the complainants’ injuries were significant and life-threatening, and must have had a considerable impact on them;
(c) Mrs Zhu will require medication for the remainder of her life to manage risk of infection due to the loss of her spleen;
(d) other road users were placed at risk; and
(e) the period of time with which road users were placed at risk was relatively brief, no more than a few seconds.[20]
[20]Statement of Sheng Xu, see Depositions at p.45, Statement of D/Sgt Robert Hay, see Depositions at p.177; Exhibit 1 (Depositions): CCTV; Statement of Benjamin Cubellic, see Depositions at p.53, [6]-[7]; Statement of Sheng Xu, see Depositions p. 45, [7].
75Many of the aggravating features frequently attending such offending are not alleged against you, including:
(a) driving at an excessive speed;
(b) driving erratically;
(c) driving whilst intoxicated, or substance affected or impaired;
(d) driving while using a mobile phone or otherwise distracted;
(e) driving competitively, showing off or 'hooning';
(f) driving a faulty or improperly maintained vehicle; or
(g) driving whilst fatigued or sleep-deprived.
76With the exclusion of these aforementioned factors, and given your comments in the interview, it was submitted that your driving is properly characterised as involving brief inattention. This was said to have led to your vehicle crossing over the double-white lines onto the wrong side of the road, causing the collision with the complainants’ vehicle. The Crown accepted that this is a proper categorisation of the cause of the offending.
77Assessment of moral culpability in such matters is heavily informed by the extent to which an offender should have foreseen the consequences of their driving behaviour and their knowledge as to the risks associated with that behaviour.[21] An offender’s moral culpability will be generally significantly reduced where a collision occurs because of momentary inattention.[22]
[21]Stephens v The Queen [2016] VSCA 121, 8 [25]-[28].
[22]Bell v The Queen [2018] VSCA 281, 14 [54].
78The prosecution submits that the offending is objectively serious and falls within the mid-range of dangerous driving causing serious injury. That is said even though it is conceded the dangerousness of your driving is brief, and that moral culpability is often assessed as higher where there is a deliberate assumption of known risk or where the accused foresaw the particular consequences. [23]
[23]They stress that the momentary nature of your inattention is the only matter that may reduce your (albeit comparatively low) culpability.
79The point is rightly made by Ms Cunningham that your culpability must nonetheless be assessed with respect to all the conduct and circumstances and by reference to the offence for which you fall to be sentenced and not in comparison to another, more serious, offence.[24]
[24]Stephens v The Queen [2016] VSCA 121, 9 [29].
80In assessing the nature and gravity of the offending, the Crown submits the following circumstances are relevant to my consideration:
(a) The collision occurred at night on a straight portion of road, with no visual obstructions;
(b) you were driving within the speed limit at the time;
(c) you were accelerating as you crossed into the oncoming lane and made no attempt to brake or correct course;
(d) the dangerousness of the driving involved a brief period;
(e) several other road users were endangered;
(f) both elderly victim’s sustained serious injuries which had life-long consequences and have had a significant impact on their quality of life;
(g) you made no attempt to render assistance to the victims or to contact emergency services (this comes with the understandable caveat that you were clearly dazed and confused after the collision);[25]
(h) you were not distracted by anything at all;
(i) drugs and alcohol were not a contributing factor to the collision;
(j) you demonstrated limited remorse, limited only because of the way you expressed yourself at the time.
[25]Statement of Benjamin Cubelic, see Depositions at p.53 and Statement of Matthew McCoy, see Depositions at p.57.
81Here, the Crown says the only factor moderating the objective seriousness of the offending is that you were driving dangerously for a brief period of time. That observation leads to the submission there may be an absence of many typically seen aggravating factors. There is equally an absence of any real mitigatory factors.[26] When assessing the gravity of the offence, the focus should be on what did occur and not on the absence of aggravating factors.[27]
[26]See generally DPP v Lombardo [2022] VSCA 204, 16 [88]; Gardezi v The King [2023] VSCA 297, 4-5 [18], 8 [40]; DPP v Neethling (2009) 22 VR 466.
[27]Gardezi v The King [2023] VSCA 297, 8 [37].
82One must remember that the term 'momentary inattention' can be slightly misleading. It may be an accurate description of what occurred, but it is a state of affairs still bound up in a criminal act. You did not simply 'make a mistake', and I note the clumsiness of your language in the reference that you provided,[28] and to say that you only 'made a mistake' is to severely understate the gravity of what occurred. What actually occurred was a serious breach of the proper conduct of a vehicle that was so dangerous to others. The danger was eventually realised, and others paid a very high price for it.
[28]I do not put much weight on your clumsy use of this phrase in your letter to the Court, see Exhibit AN-7 (Plea).
83Your comparative culpability might be seen to be low when considered alongside other examples of this kind of offending, but that is not the sole measure of the seriousness of the offence. One must look at consequences too and, here, they are nothing short of catastrophic.
Matters personal to the Accused
84You were born in South Korea in 1995. You are now 28. You were adopted by your parents, Helena and Kingsley, as an infant and an only child.
85Your mother was a pharmacist, and the primary breadwinner, while your father ran a newsagency.
86Your parents argued regularly, and you were exposed to physical violence at home, I am told, when your parents fought. Your mother would yell and scream at you regularly, and you grew up frightened of her.
87You felt distant from your parents and ultimately left home at age 16 to live with your paternal grandparents, where you continued to live until age 21 or 22.
88At age 18, you discovered that you were adopted and that your background was South Korean, not Chinese. You felt betrayed by your family, particularly your parents, for keeping this from you. You attribute your resentment towards your parents as contributing to issues with substances in your early adulthood. Despite your best efforts, you have been unable to identify or connect with your biological parents.
89More recently, you have come to terms with your adoption and accept that your parents love you and support you. Upon reflection, you believe that your mother’s behaviour when you were a child was based on stress and frustration.
90You have reconciled with your parents, and they are supportive of you. They have consistently attended Court in support of you. You visit them. I have had regard to their very powerful reference,[29] where they observe the change in you from a troubled young man into an insightful, compassionate man with the capacity to do much good. They speak of your remorse for your own actions.
[29]Exhibit AN-8 (Plea): Letter from Mr Ng’s parents, Kingsley and Helena Ng, dated 6 May 2024.
Education & Employment
91You attended primary schools in Balwyn and Boroondara. Your secondary schooling was difficult. You felt insecure and were often in trouble. You began to drink problematically and became increasingly truant. You were suspended from school on occasion, and you were ultimately expelled in Year 10. You commenced at another school but dropped out soon after.
92After leaving school, you completed Certificates II and III in security. You committed yourself to a gym and trained in kickboxing but, despite this, describe being very depressed and leading a life without balance.
93You worked in security from age 21 to 23, until you were sentenced to a community correction order (CCO) in May 2019. You then worked in manual labour and commenced studying VCE but stopped both when the COVID-19 pandemic struck. You then focused primarily on training in the gym, and you became an instructor. You worked occasionally as a forklift driver in 2021 but became involved in a drug-using lifestyle and lost focus on building a career.
Relationships
94You have had few relationships of significance. The two of the greatest duration spanned 12 months and 6 months. Both were marred by your substance abuse.
95You are currently single and have no children.
Substances
96You began drinking in your mid-teens. You found an acceptance there and developed a friendship with a group of young people you met in the park in Year 11. You would drink and socialise together, and you would often become heavily intoxicated until you blacked out.
97You began smoking cannabis and synthetic cannabinoids at age 16. You used these substances very heavily between the ages of 17 to 19, but they remained problematic until around age 23. You have also used a wide variety of substances including MDMA, cocaine, ketamine, and prescription medication. You describe drug use as having helped in reducing depressive feelings but acknowledge the detrimental impact they have had on you and your conduct.
Abstinence and Teen Challenge
98You have maintained abstinence from substances since entering residential rehabilitation at Teen Challenge in Kyabram in April 2023. There, you have engaged in a demanding full-time program from 7 am to 10 pm daily. You have not been permitted offsite without supervision, though have taken some approved weekend leave with your parents.
99You are not permitted access to mobile phones or computers. You have not had free access to money, and communication with the outside world is managed by your case worker.
100I have had regard to the written reports and references of Mr Ben Watson and Mr Jim Stevens of Teen Challenge.[30] I have had the benefit of hearing viva voce evidence from Mr Watson on 18 March 2024.
[30]Exhibit AN-5 (Plea): Reference from Ben Watson 30 April 2024; Exhibit AN-9 (Plea): Letter from Jim Stevenson dated 13 May 2024.
101It is fair to say you have progressed significantly over the past 12 months.
102Your time in Teen Challenge not only enhances your prospects for reform but is also to be taken into account in another way, consistent with the principles espoused in Akoka.
Mental Health
103You described having depressive symptoms for a number of years prior to entering residential rehabilitation. You have experienced periods of what you describe as psychosis in circumstances of drug use and have at times engaged in suicidal ideation.
104You describe your mental health as having improved significantly over the past year.
Forensic history
105You have a limited prior criminal history which predates, and has minimal reference to, the offending before the Court. The same cannot be said about your subsequent offending.
Subsequent offending & pending matters
106Your subsequent and pending matters pre-date your entry into residential rehabilitation in April of last year. It was submitted that the relevance of these pending matters is significantly reduced.
Subsequent matters
107You have a number of relevant subsequent matters, which were finalised on:
(a) 7 March 2023 at Melbourne Magistrates’ Court. You were fined $1600 without conviction for:
(i)using mobile phone whilst vehicle stationary but not parked;
(ii)driving suspended; and
(iii)state false name and address.
(b) 30 June 2023 at Melbourne Magistrates’ Court. You were fined $1000 without conviction for:
(i)drive whilst suspended; and
(ii)fail to stop vehicle on police direction.
Resolved pending matters
108Additionally, you have a number of pending matters for driving and drug offences that occurred between October 2022 and April 2023. The informants in that consolidated plea hearing are Pang, Ross, Fenyk, Philpott, De la Cruz, Hastings, Valentine and Shroen.[31]
[31]Extracts and summaries usefully appear in Exhibit C (Plea): Prosecution bundle of documents. I will return in more detail to the substance of this offending.
109These matters, listed at the Ringwood Magistrates’ Court, have been consolidated, pleas of guilty have been entered, and you have been subject to a deferral of sentence since October 2023.
110Those matters returned in April of 2024 on which date it was indicated by the presiding Magistrate Mr Hardy that you would be sentenced to no more than 16 days imprisonment, which have already been served, in combination with a therapeutic CCO.
111That Magistrates’ Court appearance has since been deferred further until 21 May 2024, pending sentence on these matters.
Unresolved pending matters
112Finally, you have a number of pending matters which are yet to resolve or finalise. There are mentions listed, firstly, in March 2024 and another in April 2024 as well. It was submitted quite properly by both parties that those matters, having not yet been resolved, must not be taken into account.
Treatment or consideration of other offending
113Subsequent offending for which you have been convicted or have admitted and for which you are subject to a deferral of sentence are relevant in assessing matters of remorse, prospects of reform and in determining the value of specific deterrence.[32]
[32]Bellizia v The Queen [2016] VSCA 21, 18 [77]-[78] (Santamaria JA, Whelan JA agreeing).
114The Crown does not concede that the subsequent offending is less relevant by virtue of your later participation in residential rehab, rehabilitation is only one factor to be considered in the Court's assessment of your overall circumstances.
115Further, it was submitted by Ms Cunningham that the subsequent offending operates to negate any mitigation that might have arisen from remorse purportedly expressed following the offending and moderates the mitigatory weight to be given to your subsequent rehabilitation. The latter is said to be important in circumstances where the rehabilitative steps were not proximate to this offending but occurred following your remand for other offending,[33] as well as being a condition of bail.
[33]The police summary indicates the accused collided with the front of a residence in Wheelers Hill at approximately 2am and left without reporting the collision to police or providing his details to the elderly occupant.
116The Crown submits it is evident from the dates on which the above offences occurred, the first of which was only four months after this matter, and the circumstances in which they occurred that you continued driving unlawfully and dangerously, apparently unaffected and undeterred by the consequences of your conduct in this matter before me on the indictment. Such ongoing conduct has the capacity to affect the weight to be given to specific deterrence, prospects for reform, and protection of the community.
117I agree that is the case, but it is not the only way I am to assess those important sentencing considerations.
Residential rehabilitation
Factual background
118It is well established that time in residential rehabilitation may warrant a discount in sentencing, due to this time being spent in 'quasi-custody'.
119Ben Watson, Program Director at Teen Challenge, provided the evidence relied upon by the defence to establish that it is appropriate that the Court give credit for your time undertaking the residential rehabilitation program.
120He was an impressive witness.
121In summary, his evidence, both in his letter to the Court dated 14 March 2024 and his overall evidence at the sentence indication hearing in March 2024, was as follows:
(a) You have been a resident at Teen Challenge since 24 April 2023;
(b) Teen Challenge offers a demanding 12-15 month full-time residential drug and alcohol rehabilitation program from its centre in Kyabram, for men aged 18 and older;
(c) The program runs from 7am to 10pm on weekdays, with other activities scheduled on weekends. Significant oral evidence was given by Mr Watson in relation to the minutiae of a typical day in the life of a student such as you engaged in the program;
(d) The restrictions placed on students at Teen Challenge include:
(i)They are not permitted offsite without supervision by a staff member, except where taking approved weekend leave, in which case a student is supervised by the relevant family or friend with whom leave has been approved. This involves the nomination of an 'accountability person';
(ii)They are not permitted unsupervised access to communication – including phone calls, messaging, emails, mail, social media, and any other online communication – all of which flows through the conduit of a student’s caseworker;
(iii)They are not permitted free access to money;
(iv)They are subject to drug-testing, both scheduled following approved weekend leave, as well as random testing.
(e) Mr Watson has been involved with you since you entered into the program;
(f) He has been your case manager in recent months;
(g) You initially presented to Mr Watson as somewhat cynically engaging with Teen Challenge in order to present positively to this Court. However, after a relatively short time, Mr Watson observed you to be engaging with the program sincerely and enthusiastically, and were making genuine efforts towards your reform;
(h) You have thus far taken seven instances of approved weekend leave, up to five days per occasion. No issues have been reported in relation to the same, and you returned negative drug screens upon your return to Teen Challenge each time;
(i) You returned negative random drugs screens on all occasions that these were administered;
(j) You have reconnected with family, particularly your parents, who are strong supporters of you;
(k) You have engaged and progressed so well during the time at Teen Challenge that you have been offered an internship with the program once you complete this current phase in April of this year. That is not something offered to students as a matter of course. It is only offered to select students who have demonstrated responsibility, real engagement, and a willingness and capacity to assist others seeking to rehabilitate themselves following addiction;
(l) Mr Watson is of the view that you are someone who has a lot to offer others facing substance abuse issues, and would it be an asset to Teen Challenge as an intern, and later an employee, if you were afforded the opportunity to do so;
(m) Mr Watson is a former addict himself and is well-attuned to the lies and deceit of addicts and has not detected any dishonesty by you about your drug use or your willingness to reform.
122Frankly, Mr Watson’s evidence was compelling. He was not the subject of any meaningful challenge by the prosecution. I am assured that not only is there a place for you as a participant at Teen Challenge when and if you are paroled, but the firm view of those who run the program is that you will be supported to be an intern and mentor to them.
123It is not often an offender can offer what you can to others. I am acutely aware that the sentence I impose necessarily disrupts the progress you have made in the last year. I have tempered the sentence to be imposed to recognise that in many ways I am not sentencing the same young man who offended in this serious way.
Application of Akoka
124In Akoka[34] the Court of Appeal set down the principles applicable to consideration of the mitigatory impact of time in such a facility. A sentencing court must take into account the punitive element of residency in a rehabilitation facility, separately and in addition to the rehabilitation achieved during that residency.
[34][2017] VSCA 214, 31 [105], 32 [107], 32-33 [109]-[112], 34 [114].
125The extent of the credit to be given will depend on the circumstances of each case, including the duration of the residency and the nature and severity of the restrictions to which the offender has been subject to.
126It is submitted that the Akoka principles would have application to you on a plea of guilty on account of the 12 months you have spent at Teen Challenge.
127Initially, there was resistance from the Crown that Akoka would apply because even assuming the Court was satisfied with the punitive nature and extent of the restrictions as they applied to you for the duration of your stay, there is no evidence before the Court that the drug use or addiction contributed in any way to the offending. The Court in Akoka when adopting the interstate practice regarding quasi-custody explained that giving credit to offenders who participated in residential rehab would encourage offenders to participate and therefore reduce the risk of recidivism. In particular, the Court relevantly stated:
'…residency at a rehabilitation facility has the potential to significantly assist an offender's rehabilitation. In particular, such residency may assist an offender to overcome drug dependency and other factors that have contributed to his or her offending and to develop strategies for becoming a law abiding citizen…'[35]
[35]Ibid 32-33 [109].
128The argument was that as a matter of logic, for participation in a residential rehabilitation to achieve the benefits discussed in Akoka, and thus for credit to be available to an accused, the condition or illness that the rehabilitation is directed towards must have contributed to, or in some way be connected to, the offending conduct. That argument was ultimately not pressed.
129When one looks at the nature of your subsequent matters it can be viewed as part of a continuum of the troubling conduct where a young man was often driving with drugs on him, around him or in him.
130In the present instance, you were found with drugs on you accompanied by an admission that you were using drugs inconsistent with their designed therapeutic use. It has the unhappy factor of you being driving at the same time. That is a concern whether or not drugs played a causative role in the present offending before me or not.
131The matter concerning informant Feynyk involves driving suspended in November 2022. Informant Philpott involves the same charge in the same month. The Valentine matter occurs a month later in December 2022, and it concerns you asleep in a car, where a strong smell of cannabis is originating. You were also charged with possession and trafficking of cannabis, as well as driving suspended. Again, in December 2022, you were charged, this time by informant Ross with failing an oral fluid test (noting the presence of MDMA and THC). Informant Shroen charged you with failing to pull over when directed and driving dangerously in March 2023. In that same month, you were charged for having cannabis and cocaine in your possession (informant De la Cruz). In April 2023, somehow you managed to drive into a house. You fled afterwards, leaving green vegetable matter, prescription drugs and deal bags behind you (informant Hastings). In October 2023, informant Pang charged you with driving suspended again, and possession of MDMA and magic mushrooms, if I had not stated that earlier.
132There is this deep troubling connection to drugs which has been addressed in a meaningful and structured way now for over a year. There is an air, in my view, of artificiality in severing off this time spent in Teen Challenge as a consideration in the relevant way, only on the basis that there must be a direct causal connection between drug use and driving in this instance. In my view, that creates an unnecessarily narrow focus and seems to be contrary to principle.
133In so far as it was argued that the credit available to offenders who have participated in rehabilitation of a residential form cannot be counted twice, I note you have been subject to a deferral of sentence, returning in May 2024. The deferral appears to have been for the express purpose of allowing you to participate in residential rehabilitation, consistent with the nature of those many offences I have just listed.
134I do not accept the argument that this Court, when taking into account the time spent at Teen Challenge, would constitute double counting of that time.
135A deferral of sentence is not a sentence and thus has not been ‘considered’ or declared by any Court at all as of yet. Magistrate Hardy has not heard any evidence of the restrictive nature of the regime that I have had the benefit of hearing that would permit him to apply Akoka in any event.
136His Honour will no doubt need to deal with you at a later time, which will no doubt bring the concept of the totality of sentences into sharper focus, but that is not the same as impermissible double counting of time.
137I will take into account in the way permitted by Akoka the time that you have spent in Teen Challenge. It will operate to meaningfully reduce the head sentence and non-parole period not only for the simple fact it serves as a form of punishment,[36] but given the therapeutic benefits of the stay, it reduces the need to a degree of specific deterrence and community protection.
[36]Not in precisely the same highly punitive environment as prison represents, but nonetheless for nearly a year it cannot be said that your life was your own, free of strict restrictions on movement and liberty.
Matters of sentencing principle
Plea of guilty
138You entered a plea of guilty relatively early (but not at the earliest) stage of proceedings. You did not run a contested committal but rather accepted that you would be committed for trial and engaged in the sentencing indication process in an effort to resolve the matter. Self-evidently this was a fruitful exercise.
139Given the timing in which the matter resolved, it cannot be said that your plea of guilty ought to attract a substantial discount for both the subjective and objective elements of that plea on account of Worboyes considerations.[37]
[37]Worboyesv The Queen [2021] VSCA 169
140Nonetheless the plea carries strong utilitarian value and warrants a significant reduction in sentence.
141Your plea also stands as a demonstration of remorse for the collision, noting that you have expressed feelings of sorrow and regret in your interview with the police.[38] You have subsequently expressed remorse via your letter[39] to your parents and Teen Challenge.[40] Ms Cunnigham accepts that your remorse is real and genuine.
[38]Record of Interview dated 30 June 2022, see Depositions p. 252 Q&A 164; p. 254 Q&A 179.
[39]Exhibit AN-7 (Plea): Unsigned undated letter from Albert Ng. Noting I don’t place any weight on the use of the word accident as opposed to collision.
[40]Ibid.
Youth
142You were relatively young (26) at the time this offence occurred. Sadly, as the Crown points out, your relative youth and limited prior criminal history must be given less weight here given the importance of general deterrence for dangerous driving offences that are overwhelmingly committed by young offenders with little or no criminal history.[41]
[41]DPP v Neethling [2009] VSCA 116, 17-18 [53] – [55].
143I can still give your relative youth appropriate weight in this exercise. You were not only young, but it seems labouring under a number of issues linked to your immaturity. You have since matured.
Delay
144To date, there has been a total delay of one year and eleven months since the offending.
145The first record of interview took place in June 2022, and the second in June 2023. There was a delay of nearly one year between your alleged offending and the charge on indictment being filed. You were originally charged with careless driving, as I noted earlier, however, this charge was later withdrawn pending further investigation until you were ultimately charged with the matters before me. I say this to simply reinforce the delay is not attributable to you.
146There are two limbs to delay:[42]
(a) The first limb concerns unfairness to an offender, in the sense that the relevant charge, or the prospect of such a charge, was hanging over an offender’s head causing anxiety or distress (‘unfairness limb’).
(b) The second limb concerns whether, during the period of the delay, the offender made progress towards rehabilitation and whether there were good prospects of ongoing rehabilitation (‘rehabilitation limb’).
[42]Tones v The Queen [2017] VSCA 118.
147The second limb is of particular relevance due to your plea of guilty. While you had this matter hanging over your head for some time, you more importantly used the significant portion of the delayed period to focus on your reform. Your lack of offending for nearly a year now demonstrates your commitment to rehabilitation and stands as a concrete example of the steps you have taken.
148The Crown conceded the delay I have just identified exists, and your offence-free status over the duration of that time is a positive step.
Prospects for rehabilitation
149It is submitted you have excellent prospects for rehabilitation, which are most powerfully demonstrated by your efforts in Kyabram.
150There, you have developed insight as to the causes of your past substance abuse and poor behaviour and worked to develop strategies to reduce your risk of relapsing into substance abuse – which has been a significant contributor to your risk of reoffending.
151In addition, you come before the Court with the benefit of family support, a history of employment, and a motivation to remain substance-free. You come armed with the knowledge gained from a Road Trauma Awareness course done in April of this year at your initiative and at your expense.[43]
[43]Exhibit AN-10 (Plea): Certificate of completion of road trauma awareness seminar.
152You have enjoyed the responsibilities you were trusted with including handing out other participants’ medication at Teen Challenge. You have been offered the opportunity to undertake an internship there once you complete the 12-month program in April 2024, with an expressed desire to pursue Certificates III and IV in counselling and community services.
153I do not accept that the involuntary style nature of Teen Challenge stay (given it is a bail condition) diminishes the efficacy of the treatment there or your commitment to it.
154The Crown accepts your prospects are now excellent but with one understandable caveat. Your prospects are excellent within the confines of a strict and structured environment, but that is not yet demonstrated to be the same in the community at large beyond the walls of Teen Challenge.
General deterrence
155General deterrence is an important sentencing consideration in matters involving deficient driving that causes injury to others.
156It is also accepted, as the Court of Appeal observed in Oates:[44]
a custodial sentence will usually be appropriate for an offence of this kind, except in cases where the offender’s level of moral culpability is low. [emphasis added]
[44][2007] VSCA 59, 6 [22].
157The imposition of a term of imprisonment is a sentence of last resort. It can only be imposed where the Court considers the purposes of sentencing cannot be achieved by any other sentence. I am so satisfied here.
Specific deterrence & community protection
158While specific deterrence and community protection remain sentencing considerations, in light of your subsequent and pending matters, they can be afforded less weight than might otherwise be the case in circumstances where you have now made significant and sustained efforts towards reform and remained offence-free. That they are to be given less weight does not mean they are eliminated entirely. They still have a role in shaping the penalty I have imposed.
Current Sentencing Practices, CCO’s and Comparative Cases
159It is convenient here to deal with the suitability of the Community Corrections Order (CCO’s). The principal submission advanced on your behalf that a stand-alone CCO was sufficient in this case, or alternatively, a combination sentence. Reference was made to Current Sentencing Practices in comparative cases.
160Current sentencing practices is but one factor to be taken into account in the instinctive synthesis, and do not set the limits within which the sentencing discretion must be exercised.[45]
[45]DPP v Dalgleish (2017) 262 CLR 428.
161
The most recent available sentencing statistics demonstrate that of offenders dealt with for dangerous driving causing serious injury in the higher Courts between
1 July 2017 and 30 June 2022, nearly 40 per cent were sentenced to a CCO.[46] This figure includes only those offenders sentenced to a ‘straight’ CCO and does not account for those who might have received a combination sentence.
[46]Sentencing Advisory Council, SACStat, ‘Dangerous driving causing serious injury: sentencing outcomes in the higher courts, 1 July 2017 to 30 June 2022’.
162Statistics are of only limited utility and must be used cautiously. Mr Cameron submitted this statistic clearly underlines that CCOs are by no means an atypical or infrequent disposition in matters such as yours and this is borne out by considerations of sentences imposed for broadly similar driving matters.
163Appendices A and B to his submissions[47] summarised comparative cases where offenders were sentenced to dangerous driving causing serious injury, as well as dangerous driving causing death. None of the matters that were contained in the appendices were said to be directly comparable to this but are referrable in a way as to be useful comparators to assist me in assessing the gravity of your offending, your moral culpability, and what current sentencing practices are.
[47]Exhibit AN-2 (Plea): Comparative cases for sentence indication.
164Ms Cunningham noted that the Sentencing Advisory Council Statistics indicated in the year June 2022 the most common sentence in higher Courts for offences such as this was imprisonment, with a median duration of 1.25 years on a single charge.[48]
[48]Sentencing Advisory Council, SACStat, ‘Dangerous driving causing serious injury: sentencing outcomes in the higher courts, 1 July 2017 to 30 June 2022’.
165I have had due regard to current sentencing practices and statistical data to the extent that it can assist me. In the end, individual justice means that each case must be decided on its merits, and I have done my best to synthesise all relevant considerations in this case that often pull in very different directions.
166I had regard to the decision of the Court of Appeal in Boulton v The Queen[49] which makes clear that a CCO can powerfully denounce an offender’s conduct whilst simultaneously benefitting the offender and the community.
[49]Boulton v The Queen [2014] VSCA 342.
167It was submitted the relative gravity of the alleged offending and the significant matters relied on in mitigation – most particularly your strong and consistent rehabilitative efforts – would move this matter out of the category where an immediate custodial sentence would be required.
168I am not satisfied that that is the case here. Applying the principle of parsimony, I still arrive at an outcome where the sentence of last resort, namely imprisonment, is warranted. Put another way, I agree with Ms Cunnigham that having regard to all the circumstances the only available disposition is a head sentence with a non-parole period. A community corrections order, in combination or alone, is wholly outside of the range of available sentences to me.
Totality
169I am mindful of the significance in this case of the application of the principle that requires me when sentencing you, Mr Ng, for multiple offences to ensure the aggregate term I impose is a just and appropriate measure of the total criminality involved.
170There must be appropriate relativity between the totality of all criminality and the totality of the effective sentence I impose. This is true when I consider the interaction between the charges on the indictment.
171A significant degree of concurrency is necessary given the fact that although there are two charges and two victims, the events before the Court all occur simultaneously during one act.
172I have determined an appropriate length of imprisonment for each charge, taking the applicable sentencing consideration into account, and designated the highest term as the base sentence. I then determined the extent to which there should be any cumulation regarding each count and finally stood back and considered in light of totality what the appropriate sentence ought to be.
Parole
173In affixing an appropriate sentence for you and allowing for parole eligibility, I have had again regard to the principle of parsimony; that is, the requirement not to impose a sentence more severe than that which is necessary to achieve the purposes for which sentence is imposed.
174The purpose of parole is to provide for mitigation of punishment in favour of reform through conditional release when appropriate. A non-parole period is the minimum time I determine justice requires you must serve, having regard to all of the circumstances. Due to the mitigatory factors in this case, I have concluded it is appropriate to allow a very meaningful parole component to your sentence. Accordingly, the non-parole period, that is, the period of imprisonment to be served before which you will become eligible for parole, will appropriately take into account the mitigatory factors in this case and facilitate your reintegration into the community and ultimate reform.
175I make this observation. This non-parole period is the minimum term I determine justice requires you must serve, given all the circumstances, before being eligible for release. This non-parole period falls outside the common range for
non-parole periods by design. In determining the length of the
non-parole period in your case, I have particularly placed emphasis on the cumulative effect of the matters relied on in mitigation. Those matters in my view compel a conclusion that a significantly disparate non-parole period is justified and appropriate.Considerations
176In formulating an appropriate sentence in your case, I have had regard only to the purposes for which the sentence must be imposed. Previous sentencing decisions I referred to, as well as statistics and current sentencing practices, have made clear the importance of punishment and general deterrence. I am satisfied in the circumstances of this case the need for specific deterrence and community protection is somewhat decreased. There is also a need for any sentence to facilitate your reform as appropriate.
177Ultimately, your serious offending must be denounced on behalf of the community, and you must be justly punished.
Disposition
178I come to the portion of my sentencing remarks where I pass sentence on you. As I said earlier, there is no alternative to me but to impose a head sentence and a non-parole period.
179As I said, it will be moderately lower than the 26 months I announced as the maximum sentence I would impose after the sentencing indication. I consider the additional matters brought to light after a further two months in the community warrant such a reduction.[50]
[50]R vBos [2023] VSC 68.
180After carefully considering, balancing and weighing all of the relevant considerations, I convict and sentence you in the following way:
181On Charge 1, dangerous driving causing serious injury to Sheng Xu, 17 months' imprisonment.
182
On Charge 2, dangerous driving causing serious injury to Gongwa Zhu,
17 months’ imprisonment.
183I will declare seven months of the sentence imposed on Charge 2, to be served cumulatively on the sentence imposed on Charge 1.
184This brings about a total effective sentence of 24 months' imprisonment.
185You will need to serve at least 12 months before you are eligible for parole. That does not mean you will automatically be released on that date, rather it represents the earliest date you might be released should your application be made in a timely way, and the Adult Parole Board conclude it is appropriate for you to be released at that time.
Ancillary Orders
186The two charges are ‘serious motor vehicle offences’ as defined at s 87P(d) of the Sentencing Act 1991 (Vic) requiring suspension of your licence for a period of at least 18 months. Pursuant to s89(2)(a) of the Act, if a person is the holder of a licence and they have been found guilty of an offence of dangerous driving causing serious injury, I must cancel their licence or permit and disqualify them from obtaining another one for the minimum period designated – as I have noted, 18 months.
187I have exceeded the minimum period of disqualification You will be disqualified from driving for a period of 20 months. I balanced the need for an extra degree of punishment to the order, while being conscious not to unduly hamper your prospects. The period of disqualification starts now, and it inevitably means that you will be disqualified if and when you are paroled.[51] You would be wise not to drive during that period of disqualification, Mr Ng.
[51]I have had regard to the principles in R v Novakovic(2007) 17 VR 21, and Koukoulis v The Queen [2020] VSCA 19, when arriving at this period.
PSD
188You have been in custody since I remanded you on 15 May. Pursuant to s18 of the Sentencing Act 1991 (Vic), I declare that you have served 3 days by way of pre-sentence detention up to but not including today.
Section 6AAA
189Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty I would have sentenced you to a total effective term of 2 years 10 months with a non-parole period of 20 months.
190Anything?
191MS CUNNINGHAM: Nothing from me, Your Honour.
192HIS HONOUR: Would you like to remain on the link with your client, Mr Cameron?
193MR CAMERON: Just briefly if I could, Your Honour, thank you.
194HIS HONOUR: Mr Brown will attend to that. I will attend to some of the typographical errors that troubled me through the delivery of my whole of reasons and you will have those by 4 o'clock.
195MS CUNNINGHAM: As the Court pleases.
196MR CAMERON: Grateful, Your Honour.
197HIS HONOUR: Thank you again, counsel. Adjourn the Court.
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