Director of Public Prosecutions v Nguyen

[2018] VCC 1297

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00651

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI HANG NGUYEN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2018
DATE OF SENTENCE:	17 August 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1297

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Failing to stop after motor vehicle accident – Failing to render assistance after motor vehicle accident – Victim suffered multiple serious injuries – Driving did not contribute to accident – Victim riding bike erratically in the face of oncoming traffic – Gross lapse of good judgement – Appropriate insight into offending – Lack of criminal history – Good prospects of rehabilitation

Sentence:Convicted and sentenced to Community Corrections Order of 2 years’ duration with mandatory and unpaid community work conditions – Ancillary orders – Licence cancellation for 4 years – Forensic Sample Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper	Solicitor for Public Prosecutions
For the Accused	Mr D. Grace QC (Plea) Mr A. Lewenberg (Sentence)	Lewenberg & Lewenberg Solicitors

HER HONOUR:  

1Thi Hung Nguyen, you have pleaded guilty to the following offences:  failing to stop after a motor vehicle accident and failing to render assistance after a motor vehicle accident.  Both of these offences have a maximum penalty of ten years' imprisonment which reflects the seriousness with which Parliament regards these offences. 

2Your offending was opened by the prosecution as follows.  I was told that on 5 November 2017, your car collided with a 13-year-old child, Ms Lewis, who was riding a bicycle in Bell Street, Coburg.  At the relevant time, you held a current licence.  You were driving a BMW which you and your partner had agreed to buy from some friends, Tung Huynh, and his partner, Vi Quoc, who was the registered owner of that car.  However, you were yet to pay for the car or complete the necessary transfer process so the car was still in Ms Quoc's name.

3Ms Lewis had been riding her bike with some friends and was not wearing a helmet.  At about 8.10 pm on 5 November, the westbound traffic was flowing in Bell Street at about 60 kilometres per hour.  Ms Lewis was riding her bike on the roadway in the right hand lane towards oncoming traffic in the vicinity of the intersection of Bell Street with Sussex Street.  Ms Lewis was seen to be weaving between the two westbound lanes, still riding her bike against traffic when she was hit by the car that you were driving.  Ms Lewis collided with the passenger side of the windscreen of your car and was thrown into the air before landing on the road.

4A number of drivers pulled over and went to the aid of Ms Lewis who had suffered multiple serious trauma injuries.  One witness, Mr Gitchspurs, pulled into the second side street on the left and ran back to the accident.  He saw your car with a shattered windscreen and a broken passenger window and mirror.  He also saw you.  He said that he saw you get out of the car to quote him, "to have a look at it then got back into the vehicle".  Minutes later, the car was gone.

5Your conduct in leaving the scene of the accident gives rise to Charges 1 and 2.  Another witness who crossed the street to help Ms Lewis told police that your car slowed down slightly to about 40 to 50 kilometres per hour but only for a few seconds then the car continued west along Bell Street.  He did not see you stop, however it appears that you eventually stopped in a side street nearby.

6At 9.51 pm, you phoned your friend Tung Huynh who was one of the people who you were going to buy the car from.  You told him that you had "an accident" with a bicycle in the exit on the freeway.  You said that you stopped the car and got out and only saw a bicycle but no body.  You said a man was riding the bicycle but you did not see the man.  In any event, Tung Huynh said that maybe this man was okay but suggested that you had better go to the police station to report the matter.  You agreed to do this but you did not go to the police at this time.

7Investigators were able to determine the identity of the registered owner of the car from pieces of the car that had been left on the roadway.  Ms Quoc, the registered owner of the car, was contacted by police and she gave them your name and phone number.  Police found your car in a laneway that serviced your address in Sunshine.  It was seized for forensic examination.  Ultimately, the Crown did not submit that you had hidden the car in circumstances where you instructed your counsel, Mr Grace QC, that this was where you usually parked it.

8On Thursday 9 November 2017, four days after the collision, you handed yourself into police by appointment.  You were arrested and took part in a record of interview with the assistance of an interpreter.  You said at the accident, "I went a bit further and then there was an off street and I pulled over there.  I think the bicycle went opposite my direction.  When I saw the bicycle, I continued in my normal course and suddenly I heard a bang and I don't know what was going on but the screen was shattered, that's why I turned left to pull over.  When I heard the bang, I didn't see it, it means that when it happened, I didn't think that the vehicle hit me.  I didn't think - I didn't know what had happened."

9In another place in your record of interview, you said, "I looked in my rear view mirror and I was shivering and I stopped.  I looked for a place to stop, I didn't look back.  I didn't know what had happened."  You also said, "I was thinking of stopping on Bell Street but at the time there were cars travelling so I couldn't stop, that's why I had to look for a place to stop."  You said, "When it happened, I was frightened and I didn't think about it either, that it could happen.  At the time, I didn't see any injured person there."

10I must say, Ms Nguyen, that I found aspects of what you said to the police in your record of interview as somewhat disingenuous.  Your conversation with Tung Huynh shortly after the collision indicated that you were apparently of the mindset as at that time that there had been a person on a bike who was no longer on the bike after you had had an accident involving the bike.  Clearly, you also knew tre://ftr/?label="CC 1-8"?datetime="20180817104304"?Data="d2d54813"that the car you had been driving had been significantly damaged and it defies belief in my view that you did not realise that the person who had been riding the bike that collided with the front of your car was also seriously impacted.

11I accept that you panicked and I also accept that there is nothing to suggest that there was anything in your driving that caused the collision.  However in circumstances where you were driving a car that you were yet to own and became panicked and frightened after the collision to the point where you did not return to the scene in a bid to determine what had caused the damage to the car, it seems to me that the only plausible explanation for this is that you knew that the bike rider had been hit and injured by your car.

12There was something of a factual dispute as to whether you had returned to view the scene after getting out of your car, or whether as appears to be the account of Mr Gitchspurs, you got out of your car whilst on your phone, looked at your car damage then got back in.  At first, Mr Gitchspurs' description appears to be ambiguous but on a closer reading of his statement, he is saying that you left your car for a brief time in order to check the damage to the car. 

13In your record of interview, you said that when you stopped in your car, you were very frightened so you stayed in your car to compose yourself then walked to Bell Street.  You said that at the time you thought that something had hit your car but you did not know, that you were panicked and frightened and you were also concerned that you did not know much English.  You said that after regaining your composure, you went back and saw the bicycle and "the two kids".  You said that you could see clearly that there was a bike and two kids, and to quote you, "and I thought that it could be one of the kids that then stood up."  You said that you spoke to a friend on the phone who told you that you should speak to a solicitor as you did not know enough English and might say something at the scene as I understand it that was wrong.

14I sought clarification from the prosecution in respect of this aspect and the police informant provided further information in respect of what he had been told by Mr Gitchspurs.  Mr Grace did not seek to have Mr Gitchspurs called in respect of this point, but said that his account did not rule out the account given by you and pointed to the details that you were able to give in your record of interview as to the people present after the collision. 

15In the end, while the two accounts are at odds with each other in my view, I do not regard this as being of great moment in the scheme of things.  On any view of the matter, you did not stop immediately after the collision in any meaningful way in circumstances where at the very least you ought to have known that the accident in which you had been involved had resulted in serious injury to another.  You have pleaded guilty to this offence notwithstanding that Mr Grace submitted that you had a viable defence because he said that you did stop after the collision as soon as you could in view of the traffic conditions at the time. 

16I accept that you did so, however in my view the clear portent of the relevant provision is that the person is required to stop and remain stopped in order to attend to the well-known obligations that any road user has after a collision rather than to stop briefly then take off.  Further, you failed to do anything to help the person who you knew or ought to have known had just been seriously injured by the collision.  As I said at the plea hearing, you left Ms Lewis for dead in circumstances where at the very least you ought to have known that she, being the person who you had seen riding towards you on the bike, was seriously injured as a result of the collision.  While it is true that Ms Lewis was assisted by others, it was your primary obligation to do this.  It is indeed fortunate for Ms Lewis and for you that others were decent enough to stay at the scene, call emergency services and help this 13-year-old child.

17While your explanation for your offending is no excuse, I have taken into account that you left the scene because you were afraid, panicked, and were concerned that your lack of English would be an impediment to you being able to properly deal with the situation.  You became aware fairly quickly that the police were looking for you and what had befallen Ms Lewis.  However, despite being advised by Mr Huynh hours after the collision that you ought go to the police, it took you four days to do so.  I was told that you delayed going to the police as you were wanting to first speak with your solicitor with whom you were unable to make contact until after the Melbourne Cup Day holiday.  However, Mr Grace also accepted that you were aware the police were looking for you prior to this but said that you were afraid to come forward without the assistance of your solicitor.

18Ms Nguyen, I regard your offending as serious and deserving of a punishment which is just in all of the circumstances and your conduct must be denounced.  Also strong weight must attach to general deterrence in a bid to deter others from behaving as you have.  In sentencing you, I have factored in that although it was no thanks to you, Ms Lewis was attended to in a timely fashion.  I have also factored in that there was nothing in your driving or anything else on your part which contributed to the collision.  The overwhelming evidence from witnesses was that Ms Lewis was riding her bike erratically into the face of oncoming traffic and it was unfortunately a matter of time before she was hit by a car. 

19I accept that this was a traumatic incident for you too, especially in the aftermath when you came to learn the full extent of Ms Lewis' injuries.  I allow for a significant discount in the sentence that you would otherwise receive because of your early indication of a preparedness to plead guilty and the ensuring pleas of guilty as you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of running contested proceedings. 

20I also accept that you are very sorry for, angry about and ashamed of your actions, and you have been praying for Ms Lewis at your temple.  You have wanted to see her personally in order to apologise and have reflected that you have a child who is about her age.  Your heartfelt remorse and insight into the seriousness of your offending are positive matters when it comes to assessing your prospects of rehabilitation and the weight that I must attach to specific deterrence and protection of the community.

21No criminal history is alleged against you and this is another matter that counts in your favour in the ways that I have just explained.  You have a subsequent matter which was a careless driving charge committed in July 2016 but for which you were granted a good behaviour bond in January of this year.

22I have taken into account your background.  You were born in a village in central Vietnam in 1976 which was always under northern rule.  You are now 42 years old.  Sadly your father died when you were only five, and your mother raised you and three siblings on her own.  Sadly she passed away in 2015.  You were always a strong student and your mother continually encouraged you to pursue your education and worked hard to financially support you and your siblings.  You combined your studied at school with helping with the household chores.  You did well at school and moved to Hanoi to study environmental engineering at university.  Again, your valiant mother financially supported you through your university years.

23After obtaining your degree, you worked at the Environmental Institute for two years then as a teacher at the University of Hanoi for four years.  To your credit, you completed your master's degree in environmental studies in 2007 and taught on a part-time basis.  You married when you were 26 years old and have two children who are now aged 14 and 11.  You divorced in 2011 and your children live with their father in Vietnam.  Until the time of being charged, you were visiting your children four times a year.  It has been most difficult for you not to have seen them for some time now because of your bail obligations.

24You came to Australia in 2012 to further your studies in environment, enrolling in a master's degree at Sunshine Coast University.  However your lack of English skills made it too difficult to maintain your studies and you withdrew after a few months.  You then worked on a farm in Werribee then trained as a nail technician, buying your own salon in 2017.  You continue to run this business.

25You met Sung Huynh through a mutual friend and married in 2013.  I have assumed that this is the same person who is referred to in the opening as Truong.  Subsequently, you obtained residency in Australia.  You separated from your husband in October 2017, so shortly before the offending for which I now sentence you.  You now live alone and spend a good deal of your time working very hard in your salon.  You have few friends in Melbourne.  I understand that you wish to take steps to reunite with your children and to have them live with you in Australia.

26You have no impairment of mental function which would reduce your moral culpability in respect of the offending which I find is quite high, although not nearly as high as someone who fled the scene of a collision because they knew or suspected that they were in some way responsible for the collision or had something of a criminal nature to hide.  Further, your lack of mental impairment is relevant to your prospects of rehabilitation, specific deterrence and protection of the community.  I add that I take into account the report of Ms Lechner, psychologist, in a general way in sentencing you.

27I have taken into account the character references and your lack of criminal history and find that you are of otherwise good character.  I accept that in the present case, you suffered a gross lapse of good judgement which is unlikely to happen again. 

28In view of the offending and your failure to go to the police for four days, but also factoring in your early pleas of guilty, your heartfelt remorse, appropriate insight, lack of criminal history, strong work ethic and otherwise good character, I find that your prospects of rehabilitation are very good and I need only place fairly minimal weight on specific deterrence and protection of the community.  However, as I have already said, I must appropriately punish you and denounce your conduct in all of the circumstances of your case.

29Mr Grace submitted that in your case, it would be appropriate to impose a conviction and community corrections order with a work component only.  Ms Harper for the Crown submitted that a community corrections order was within the range of appropriate sentences, mooting that the only condition in addition to an unpaid work condition might perhaps be a requirement that you undergo a road trauma awareness program.  Mr Grace submitted that this was not necessary as you would be off the road for a significant period by operation of the law and because there was nothing wrong with your driving on the day which might necessitate you undergoing such a program.

30In view of all the relevant matters in your case including your blamelessness for the collision itself, the attitude of the prosecution and current sentencing practice including a most relevant Court of Appeal case which your counsel referred to and which I have taken into account, I am of the view that a community corrections order is warranted.  There is no utility in sending you to gaol.  Gaol is only appropriate where nothing short of it can do justice to the weight that must be attached to all relevant sentencing principles.  This is not your situation.

31I arranged to have you assessed for a community corrections order.  I have now received the report which indicates that you are suitable for such a disposition.  The report recommends as the sole condition unpaid community work and I have decided that this is appropriate in your case. 

32The Crown have also sought in order to obtain a forensic sample which was opposed by your counsel in view of your very good prospects of rehabilitation.  However, I am of the view that in view of the seriousness of your offending and in view of police efforts which had to be taken in order to identify you, it is in the public interest for a forensic sample to be obtained from you.  Therefore, I will make an order in those terms.

33Would you please stand up, Ms Nguyen.

34You are convicted of each of the offences.  I direct that all licences be cancelled and that you be disqualified from driving for a period of four years.  I make an order for the taking of a forensic sample from you by way of a buccal swab from the mouth.  I make the order because of the seriousness of the offending and because it is in the public interest to make such an order.  I warn you that if you do not cooperate in the taking of the sample, then the authorised officer may use reasonable force to obtain this. 

35I intend to place you on a community corrections order but I can only do this with your consent.  So please listen carefully to the order that I propose.  The community corrections order would run for a period of two years.  The conditions of the community corrections order would be as follows.  The mandatory terms that apply to all community corrections orders would apply to yours and these are:  you must not commit another offence for which you could be imprisoned during the time that the order is in force.  You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. You must report to and receive visits from the Secretary to the Department of Justice or his/her delegate. You must report to the Sunshine community corrections centre before 4 pm within two clear working days of today, so that is by 4 pm next Tuesday. You must let a community corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his/her delegate. You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his/her delegate.

36There will be one condition that applies in addition to the mandatory terms and that is that you must undergo 150 hours unpaid community work within the next two years.  Do you consent to the terms and conditions of the proposed order?

37OFFENDER:  (Through Interpreter)  Yes, Your Honour.

38HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this community corrections order, then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be resentenced in relation to the charges in which case you may well be sentenced to gaol.  I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with the conditions of the order.  Do you understand this?

39OFFENDER:  Yes, Your Honour.

40HER HONOUR:  Do you maintain your consent to the order?

41OFFENDER:  Yes, Your Honour.

42HER HONOUR:  Therefore in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out.

43If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years' imprisonment with a non-parole period of two years.  I will ask Mr Lewenberg to assist you with the signing of the order, thank you.

44(Community corrections order signed and acknowledged.)

45Thank you.  Before I sign the order, is there anything arising from those remarks?

46MS HARPER:  No, Your Honour.

47MR LEWENBERG:  No, Your Honour.

48HER HONOUR:  All right, thank you.  Yes, I have signed the order.  Thank you, we will now adjourn.

49MS HARPER:  May it please the court.

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