Director of Public Prosecutions v Nguyen

[2015] VCC 1179

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00738

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAM CHI NGUYEN

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	6 July 2015, 8 July 2015, 20 August 2015, 21 August 2015
DATE OF SENTENCE:	25 August 2015
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2015] VCC 1179

REASONS FOR SENTENCE
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Subject:Sentencing; Dangerous driving causing death; failure to stop after an accident

Catchwords:  Plea of guilty; intoxication; passenger killed; likely deportation on release from prison

Legislation Cited:     Crimes Act 1958 (Vic), s 6AAA Sentencing Act 1991 (Vic)

Cases Cited:DPP v Zhang [2015] VSCA 96, R v Verdins[2007] VSCA 102; DPP v    Neethling [2009] VSCA 116

Sentence:Total Effective Sentence 3 years 6 months with non-parole period of 2 years; cancellation of drivers licence and disqualification for 2 years. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Teague (at sentence) Mr K. Gilligan (on plea)	Office of Public Prosecutions
For the Offender	Ms D Lamovie	Victorian Legal Aid

HER HONOUR:

1Tam Chi Nguyen, you have pleaded guilty to one charge of dangerous driving causing death and one charge of failing to stop immediately after an accident in which a person was killed. 

2The maximum penalty for dangerous driving causing death is ten years' imprisonment and for failing to stop, five years' imprisonment.  I have taken these maximum penalties into account as reflecting the relative seriousness with which Parliament, on behalf of the community, regards these offences.  You will not be receiving the maximum penalty on either charge. 

3These charges arise from events on the night of 3 August 2013, which resulted tragically in the death of Mr Dong Ngo, a passenger in the car you were driving. 

4I am about to describe the circumstances.  I realise that to hear the details again would be likely to be very upsetting to Mr Ngo's family and also for you to hear.  However, it is necessary for me to set out these details so that the seriousness of the offence and the level of your blameworthiness can be assessed. 

5After finishing work about 6 pm on 3 August 2013, you drove your employer and friend, Mr Dong Ngo, and another fellow worker, Mr Toan Nguyen, to a restaurant where the three of you ate dinner.  Mr Ngo had brought a bottle of vodka, which the three of you shared, and then he gave you money to go to buy a second bottle, which you did.  The three of you drank the vodka straight, that is not mixed with soft drink, and shared each bottle approximately equally, so you had drunk approximately two thirds of a 750 ml bottle of vodka over dinner.  That was over a period of approximately three hours.  You then set out to drive the other two men, Mr Ngo in the front passenger seat, and Mr Nguyen in the back seat behind you. 

6At approximately 9.15pm you drove north along Hampshire Road, Sunshine and at the T intersection with Ballarat Road, turned right.  At that point, Ballarat Road, a major thoroughfare, was a two way road with three lanes for traffic in each direction, separated by a grassed median strip.  The speed limit on that section was 70 km/h. 

7As you turned into Ballarat Road, you lost control of your car as you were travelling too fast for the turn and oversteered the car, causing it to slide.  According to a collision reconstruction expert from the Major Collision Unit, you would have been driving at at least 44.6 km/h at that stage.  After sliding on that turn, you then overcorrected your steering, causing the car to slide again, and this time you drove over the gutter on the left hand side onto the nature strip.  It is probable that the tyres on your car were damaged at that stage.  Photos show the tyre marks left by your car as it mounted onto the nature strip, passed a tree, then drove across a driveway of what was an ambulance station.  Your car then veered right, hit a traffic sign, and re-joined Ballarat Road. 

8You continued to drive east along Ballarat Road for approximately 79 metres when you oversteered to the left and then to the right, accelerating from what has been estimated by the expert to be at least 56 to 62 km/h.  By that stage you would have had at least one flat tyre, and apparently realised that you were having difficulty controlling the car.  Your car then travelled to the right, crossing each eastbound lane of Ballarat Road, and then across the median strip, and entered the carriageway for traffic travelling westbound, that is, in the opposite direction. 

9As you crossed onto the westbound lanes of Ballarat Road, your car collided with the front of another vehicle, a Honda Civic, being driven by Ms Phuong Pham, causing a moderate amount of damage to the front of both your car and hers. 

10Your car then spun around and you drove off, heading west along Ballarat Road.  You continued driving to a position parallel to where a Red Rooster store was on the left and the ambulance station to the right, which was a distance of somewhere between 100 and 200 metres along the road.  Your car then spun around clockwise, approximately 180 degrees, so that it was then facing east, that is, the wrong way, on the westbound carriageway.  You then drove it into the car park of the Red Rooster store which abutted the westbound carriageway. 

11Before you drove into the car park, the front passenger side door opened and Mr Ngo exited the car.  It is unclear from witness statements whether he opened the door and exited or something occurring inside the car caused the door to open and him to fall out.  It is also unclear due to differences in witness statements whether he exited while the car was spinning or when it had paused briefly before accelerating to go into the car park.  Mr Ngo fell onto the road backwards and hit his head with a loud “crack”.  He was observed to not be moving.  Whilst he was lying on the road, another car ran over him, that car travelling west along Ballarat Road.  That car did not stop, and neither the car nor the driver has been identified.

12Witness statements differ as to Mr Ngo's exact position on the road when the other car ran over him and as to which parts of his body were struck by that car, but witnesses state that his body was raised off the ground and shifted position when he was run over, from which I infer that there was substantial forceful contact. 

13Ambulance officers who had seen the incident came immediately and tried to assist Mr Ngo as he was lying on the road, but it became apparent that he was deceased.

14Your driving leading to that point is the basis of Charge 1.  The fact that you did not stop when Mr Ngo left your vehicle, and drove into the car park, is the basis of Charge 2, of failing to stop immediately when you ought reasonably to have known that Mr Ngo had been killed. 

15You had driven your car into the Red Rooster car park and got out and left it there.  The other passenger in your car, Toan Nguyen, also got out of the car and left the scene.  A customer who had been in the Red Rooster store observed you return to your car and attempt to start it.  He detained you there until police arrived, which was shortly afterwards. 

16While police were speaking to you in the Red Rooster car park, you were observed to be stumbling around, unable to stand on your own.  At 9.24 pm a police officer administered a preliminary breath test, which showed the presence of alcohol and a reading of 0.122 per cent.  You were arrested and taken to Sunshine Police Station, where you underwent a breath test at 11.58 pm, from which the result was 0.168 per cent.  You subsequently consented to the taking of a blood sample and at 1.41am the blood sample result was 0.192 per cent of alcohol.

17A forensic physician, Dr Odell, has given the opinion that at the time of the incident you had a blood alcohol concentration between 0.105 per cent and 0.139 per cent, being at least twice the legal limit.  Dr Odell's opinion was that your driving skills would have been adversely affected as a result of the alcohol in your system, and statistically the risk of crashing of a driver with a reading in your range would be at least ten times higher than if you had had a reading of zero. 

18Mr Ngo's blood was analysed and revealed a blood alcohol content of 0.17 per cent. 

19The forensic pathologist who conducted a post-mortem gave the opinion that Mr Ngo's death was due to multiple injuries.  In his view, the extent and location of fractures to the skull were consistent with the application of significant blunt force, and the injuries sustained appeared to be due to significant blunt forces being applied to his body, such that simply alighting from a slow moving vehicle would not be expected to have caused all of the injuries.  Given the nature and the pattern of the blunt force injuries, some of those could occur in a situation where he was struck or run over by a motor vehicle. 

20You were interviewed by police that night with the assistance of an interpreter.  Initially, you said that you had left the restaurant and driven away alone and were not drunk, had hit a kerb and one of your tyres blew up, and that that was bad luck and caused you to lose control of the car, and then you panicked.  You subsequently told police that you in fact did leave the restaurant with the two other men as your passengers, but did not want to say so earlier as you did not want to involve them.  You said that you had lost control of the car and it was spinning, and at that time when everyone was panicked, and you did not know how to handle the car. You thought that was when your two friends left the car. 

21After further questioning, you said that when the car pushed back onto the wrong side of the road, you heard Mr Ngo yelling out, "Stop, break, break" and that you had said to him, "I can't".  You then saw him trying to open the door and thought you had told him, "That's so dangerous" or something like that.  Once you stopped the car Mr No was not there anymore, that is, not inside the car.  You also said that you did not believe that you had hit another car during those events.

22The account you gave was inconsistent with the evidence as shown through photographs and the police investigation and the statements of a number of witnesses.  Your account also indicated that your recollection or perception of events was unreliable.  I conclude that whilst you may well have been suffering the effects of shock or some fright from the incident, the amount of alcohol you had consumed had played a substantial role in clouding your perception of the events that night. 

23Notwithstanding that another car ran over the body of Mr Ngo on the road after he left your car, the prosecution case was that the dangerous manner in which you drove your car was a substantial and operative cause of the death of Mr Ngo.  Your plea of guilty to Charge 1 means that you admit that connection, as well as admitting that your driving was a serious breach of the proper management or control of your vehicle, which posed a real danger to other members of the public that they would be killed or seriously injured, as well as to your passengers. 

24A victim impact statement of Ms Kim Thii, Mr Ngo's wife, was tendered, written for herself and for their three young children.  She did not wish it read out in court so I shall not quote from its contents in detail or specifically.  It is enough to say that I have read a moving account of a young widow who has lost her husband, who she describes as her mate, her friend, the financial provider for the family, and the father of her children.  Not only does she feel her own loss very deeply, but she feels the weight of her responsibility as a sole parent now and for the future.  The children have suffered emotionally from the loss of their beloved father, still miss him deeply, and question why their family cannot do things that they see other children's families do.  It is to be hoped that some financial relief can be obtained for this family.  That cannot, however, restore the man himself to them, and even though the passage of time may help them to get on with their lives, his wife and children will always carry their sense of loss. 

25You have pleaded guilty to these charges and are entitled to some leniency for doing so.  Although the matter was listed to start as a trial, I accept that shortly before that date negotiations were entered, which led to my being asked to adjourn the trial.  The following day, an agreement was reached that you would plead guilty to these charges, Charge 1 being less serious than the charge originally filed of culpable driving causing death. 

26Although by no means a plea of guilty entered at the earliest opportunity, I find that there was still substantial utilitarian value in your plea of guilty.  A large number of witnesses were due to be called, and many of them would have been asked to recall upsetting events which they witnessed.  They, and the family of Mr Ngo, were spared having to relive those memories, as well as spared the inconvenience to them of coming to court, and the community has been spared the time and cost of a disputed trial.  Further, even though it seems to me that there was a strong case against you on causation, there was going to be issue taken because of the role of the other car that ran over Mr Ngo, and exploration of that issue and likely upsetting medical evidence was avoided. 

27I take your plea of guilty to be an acceptance of responsibility by you and to be consistent with what I am told is the remorse you have expressed, together with deep regret at the death of a man who was both your employer and someone you regarded as a friend and confidante. 

28I shall tell you after I announce your sentence what it would have been if you had not pleaded guilty but been found guilty of these charges by a jury. 

29I turn now to your personal circumstances. 

30You are now aged 29.  You were born in Vietnam and raised in a hardworking and supportive family with three siblings.  I am informed, and accept, that none of your family has been in trouble with the law in Vietnam, and that they all still live constructive, hardworking and law-abiding lives there.  You have apparently been too upset and embarrassed or ashamed to tell them of this case, but you believe they have been told by other people and that they would continue to support you despite this. 

31You were educated in Vietnam to the end of Year 12, apparently doing well academically.  After leaving school you trained as a bodybuilder, and ultimately competed in that field and started your own gym.  In 2010 you met a woman of Vietnamese background who had Australian residency, and started a relationship with her.  You married her and after approximately a year of living together in Vietnam, you obtained a visa to enter Australia as her husband.  You came to Australia in 2011, and after engaging in several different jobs, you commenced employment with Mr Ngo. 

32I have read a reference from Mr Quang Thai Chau, who had employed and trained Dong Ngo in his business, then helped Mr Ngo set up a similar business and knew and observed you in that employment.  He speaks of Dong Ngo being very impressed with you as a hard worker, and wanting to promote you and keep you working in his business, and having helped you to buy your car.  He says that he knows you are very upset about what happened, and also knows you to be hardworking, productive and cooperative.  He is aware of the recycle business you have started.  Unfortunately his wish for you to have the chance to keep your business going is not likely to be possible. 

33I am told that you established a recycling business in February this year.  That reflects that you have continued to show a willingness to work hard and to establish a life for yourself here.  Unfortunately there is no other person involved in running the business that will likely need to be closed.  That was discussed when I remanded you in custody late last week. 

34I accept that since coming to Australia you have worked hard and tried to establish yourself productively as part of the community here.  Although you had a limited perception of the effect of your consumption of alcohol, you apparently did not engage in other antisocial substance abuse, and had no background disorders which would have limited your ability to establish your life well in the Australian community.  Those aspects of your background support your prospects of re-establishing yourself in the future. 

35You had no prior criminal history.  Significantly, you had no prior driving offences of any nature, although the weight of that is more limited in your case as you had only lived in Australia for about two years and only held a Victorian license for about a month. 

36Of some concern to the prospects of your rehabilitation, and to whether you have truly understood and accepted responsibility for the present offences, is that you have apparently been charged with subsequent driving offences, one involving drink driving.  However, as there has been no determination of guilt yet on those charges, I shall not be taking them into account. 

37Unfortunately on the personal side, your marriage was becoming strained by the time of the events that bring you here, and I am told that the marriage broke down almost straight after these events as your wife wished to leave you.  She was pregnant at the time, and your baby son was born in November 2013.  I have been told and accept that it has been very distressing to you that you have not had close contact with your young son, as he was born after you separated from his mother.  There has subsequently been dispute about you seeing him, and since the date your trial was set to start when you apparently missed attending a Family Court hearing, you have had no further contact visits with your son. 

38Your immigration status, and specifically the likelihood of deportation as a consequence of your sentence, has been brought to my attention as a significant factor in mitigation, that is, to persuade me to be more lenient in your sentence. 

39You came to Australia on a spousal visa in 2011, and at the time of these events had not yet applied for permanent residency. Under s.501 of the Migration Act 1958 (Cth) as it now stands, the Minister may refuse to grant a visa to a person who does not satisfy the character test, and under the definition of the character test, a person who has been sentenced to a term of imprisonment of 12 months or more does not pass that test. 

40As these provisions, unless further amended in the meantime, and assuming I impose a sentence of imprisonment of more than 12 months, enable me to find that it is most likely that you will be deported upon your release from custody, this is a mitigatory factor for me to take into account.  As confirmed in DPP v Zhang[1], it is appropriate for me to take into account in mitigation that knowing this likelihood will increase the burden of your sentence for you. 

[1] [2015] VSCA 96 at [54]

41I take into account that the expectation of deportation has two significant aspects for you.  First, it destroys the hope you had to establish a new life and becoming a productive member of the Australian community.  Secondly, it means that you are likely to be separated in the long term from your son, who is still an infant and whose mother seems unlikely to make efforts for you to be able to see him, even while you are in prison, and presumably after you have left this country.  Further, I take into account that you are unlikely to be granted a further entry visa, at least for a considerable time to come.  I accept that this is a very serious consequence for you, and the prospect of the separation from seeing your son greatly distresses you.  It also means that whilst in prison your distress on knowing this consequence will make your time in custody harder to endure.  I have taken it into account as warranting some leniency in your sentence. 

42Another personal consequence for you of these events and being charged has been that you have developed some symptoms of anxiety and depression.  Your doctor prescribed some medication in early 2014, which you apparently have been reluctant to take over the intervening time as it makes you sleepy.

43In April 2014, your GP referred you to a Vietnamese-speaking psychologist, Ms Catherine Ly.  You attended her on four occasions last year and again in early August of this year.  Her report after seeing you in August described that you appeared distressed and tearful, complained of a number of symptoms consistent with depression and anxiety, including feeling hopeless, helpless, guilty and worthless.  She found no personality disorder and estimated your intellectual functioning as in the average range.  She gave a provisional diagnosis of major depression, which she considered chronic because it has lasted more than six months. She considered your response to treatment was guarded due to poor compliance with attendance and treatment.  She regarded your illness as having been maintained by ongoing court matters, namely this case and your Family Court matters relating to access to your son, and immigration issues. 

44Ms Ly recommended treatment through supportive psychotherapy and cognitive behavioural therapy, with appropriate medication.  It will be for prison authorities to assess you for appropriate medication for your symptoms of depression and anxiety.  I expect that meaningful therapy will be near impossible for you in prison, especially given that you would need and interpreter or Vietnamese speaking therapist.  Ms Ly also gives the opinion that your symptoms of depression and anxiety would be exacerbated if you were to serve a prison term.  That opinion is in line with one also given by Mr Jeffrey Cummins. 

45In line with the last two principles in Verdins[2] case and based on the opinions of Ms Ly and Mr Cummins that your mental health is likely to deteriorate in prison, and my assessment that you are unlikely to get satisfactory, helpful counselling therapy in prison, I have allowed some leniency for that likely deterioration, and also as your symptoms of depression and anxiety are likely to make your time in prison more burdensome than it would be for someone not suffering those conditions. 

[2] [2007] VSCA 102

46There is no suggestion that you were suffering from any mental health condition prior to August 2013, so no suggestion that any such condition influenced or contributed to your offending on the night of 3 August 2013.  Therefore, none of the other principles in Verdins case is enlivened. 

47Mr Cummins' opinions vary from Ms Ly's in two main respects. He confirms symptoms of anxiety and depression in response to the accident and its consequences, namely the death of Mr Ngo and the charges you have faced, and also in part reflective of your marriage breakdown and being excluded from seeing your son.  Mr Cummins found your presentation to be mildly anxious and mildly depressed and concluded that you had probably developed an Adjustment Disorder with Mixed Anxiety and depressed mood, so his diagnosis I take to be of a not as severe mental health disorder as diagnosed by Ms Ly - Major Depression. 

48I was urged by your counsel to rely more on Ms Ly's opinion, as she had seen you over a period of more than a year and on five separate occasions and I accept that her opinion could be expected to be better informed because of that.  In the end, as both psychologists' opinions are that your mental health problems have developed since the incident of 3 August 2013, and did not suggest that it contributed to your offending, and as both expressed the view that your condition is likely to deteriorate if you are imprisoned, the implications for your sentence are effectively the same. The condition and its consequences enliven the last two considerations in Verdins case, but no others, and I do not find it necessary to decide which of the two diagnoses is more likely to be accurate.

49The other issue on which Mr Cummins' opinion differed from Ms Ly's was that Mr Cummins felt that you lacked insight into, or had failed to recognise, the extent of your drinking of alcohol - both that you were intoxicated on the night in question and that it affected your driving, and further, that although you state that you had not drunk alcohol since, you also told him that you still consume beer once in a while, which was not known to Ms Ly. 

50Neither Mr Cummins nor Ms Ly was told that you had been charged with subsequent driving offences, including one of drink driving.  As I have already said, that might have some implications for the weight given to your insight into the reasons for your offending and with it prospectively chances of rehabilitation. However, as there have been no findings of guilt, I have not taken that aspect, namely those subsequent charges, into account. 

51The authorities (that is, the higher courts) that have given a number of findings in relation to charges of this nature, establish that the principles for sentencing in a case of dangerous driving causing death or serious injury are:

·First, that general deterrence must be given considerable weight. General deterrence means the need to send a message to the whole community that if other people are tempted to engage in offending of this nature, they can expect stern punishment.

·The second principle from the authorities is that a significant term of imprisonment is likely.

·Next, that the sentence must take account of variations in the moral culpability of the person responsible; and

·That a custodial sentence will usually be appropriate for this offence, except in cases where the level of moral culpability, that is, blameworthiness, is low.

52It was conceded by your counsel that this was a serious instance of the offence of dangerous driving causing death, and that a term of imprisonment was the only sentence which could meet sentencing principles. 

53I was urged, however, to find that this was not at the highest level of seriousness, and to moderate the length of the term of imprisonment. 

54Therefore, to determine your sentence, that is, the length of a term of imprisonment, and non-parole period, I turn now to assess what we call your moral culpability - that is, the objective aspects that show your blameworthiness in committing the offence. 

55I find several features to fall within the list of aggravating factors that was approved in the case of DPP v Neethling[3].  First, you had consumed a large quantity of intoxicating liquor prior to driving.  No driver in this state could not be aware that drinking more than half a bottle of vodka over dinner was likely to cause a degree of intoxication sufficient to impact on driving ability.  Dr Odell's estimate of your being at least double the legal limit at the time of this driving confirms that you were affected by alcohol.  Indeed, I note that the reading was still rising as the night progressed and further tests occurred, although I take into account the reading estimated for the time of the driving. 

[3] [2009] VSCA 116 at [31-32]

56Next, I take into account that this incident was not a momentary lapse in attention or judgment, but a relatively protracted event in that you lost control of the vehicle when you first turned into Ballarat Road, but persevered in trying to keep driving.  Indeed, from the record of interview it seems that you were aware that you had hit a kerb and that a tyre had blown up, and you felt you had lost control of the car because of that.  However, the objective evidence indicates that after hitting the kerb and damaging at least one tyre, you hit a roadside sign, continued for about 80 metres up that side of Ballarat Road, effectively did a U-turn across a relatively wide median strip, collided with another car, and drove for about 100 metres to the point where your car spun 180 degrees and Mr Ngo left your vehicle.  There are witness accounts of you accelerating at more than one point, including after hitting Ms Pham's car.  I conclude from these facts that you had not only lost control of your car, but were not sufficiently aware of what was occurring to take appropriate action to stop the car safely, and I infer that alcohol or intoxication played a significant role in that. 

57Next, the fact that you were driving on a major thoroughfare meant that even though it was after 9 pm, there were likely to be a considerable number of other vehicles and members of the public put at risk.  The fact that your car collided with another on the opposite carriageway, and that the brother of the driver of that vehicle was travelling behind hers and saw the incident, as well as there being a number of witnesses from other cars driving by, or patrons of the nearby Red Rooster store, bears out that a considerable number of people were likely to have been put at risk by your driving that night. 

58There is evidence that both of your passengers felt scared as this incident unfolded.  Mr Nguyen in the back seat said that after the car hit the yellow road sign he started to panic, closed his eyes and screamed, and he was getting thrown around the car, which was shaking as it was being driven.  He said he thought he was going to die and had his eyes closed until the car stopped.  You yourself told police in your record of interview that when the car was on the wrong side of the road, you heard Dong, that is, Mr Ngo, yelling out "Stop, brake, brake" and at that point you said to him, "I can't". 

59Both of your passengers knew how much you had drunk before driving and were apparently willing to get into your car and let you drive them.  That is not a factor in mitigation - that is, it does not lessen your blame. However, in these circumstances it removes what would have been an aggravating circumstance to your culpability had the victims been entirely unconnected with a significant cause of your offending. 

60The prosecution submitted that the circumstances placed this case in the high range of seriousness for this charge.  Your counsel submitted that although serious, it was not as high as that. 

61I accept that it lacked some aggravating features that are found in some other cases, such as where there has been deliberate risk-taking, such as when racing another vehicle, or showing off, or deliberately driving aggressively, and also because you were not actually exceeding the speed limits, although clearly you were driving too fast in the circumstances to keep proper control of your car. 

62Your counsel also submitted that this was not as serious an incident as some because no person other than Mr Ngo was in fact hurt.  The fact that other people did not in fact suffer injury does not seem to me to reduce your moral blameworthiness on Charge 1, because Charge 1 relates only to your driving causing the death of Mr Ngo.  Had other people been seriously injured or killed, there would have been more charges which likely would have resulted in some cumulation of sentences.  However, I do accept that the risk of injuring more people, which I have already mentioned as aggravating, did not eventuate on this occasion.

63I accept that you were not engaging in deliberately risky driving, and not exceeding the speed limit in that area.  I accept, of course, that you had no intention to cause harm to Mr Ngo as is typical for cases of this particular charge.  I have also taken into account that you did not have a history of prior driving offences or any other previous incidents or warnings about the risk of driving as you did. 

64Nevertheless, I consider that this incident is at least at the high end of the medium range of moral culpability, and bordering on the lower end of the high range. 

65In relation to Charge 2, that is of failing to stop, the authorities also indicate that although imprisonment is not invariably required, the seriousness of this charge will usually require that a term of imprisonment be imposed. 

66In the present case the failure to stop has some equivocal aspects.  You drove away from the point where Mr Ngo had left your car, but stopped nearby soon afterwards in the car park.  There is no indication that you stopped at that stage in order to return to render assistance to Mr Ngo.  You left the car initially, it being unclear where you went, but certainly not to check on Mr Ngo. 

67I could infer that you had reason to flee because of the amount of alcohol you had consumed, but you returned to your car shortly afterwards and tried to restart it.  That must have been to drive away, as there would be no reason to drive rather than walk back onto the road where Mr Ngo lay.  The return to the car, though, is not consistent with fleeing in order to avoid being caught intoxicated.

68I infer that you failed to stop because you panicked, even though you told police that you were not aware of precisely when Mr Ngo left the car, and expressed surprised when told that he had died.  In my view the circumstances make this a serious enough incidence of failing to stop to require that the sentence be one of imprisonment, but at the lower end of the moderate range for offences of this nature.  I also will allow considerable concurrency as your failure to stop followed immediately on the conduct in Charge 1.

69Having taken all of these matters into account, I have concluded that no sentence other than imprisonment on both charges would be sufficient to adequately apply sentencing principles in this case.  Those principles are primarily of general deterrence, also just and proportionate punishment, specific deterrence, but to a lesser degree and also recognising your personal circumstances and the more burdensome impact of imprisonment on you due to your mental health symptoms, language limitations whilst in prison and the inability to see your young son.  Further, I consider that a sentence well in excess of 12 months is required, so the likely consequence for you of deportation on your release comes into consideration and as I have already said, I have taken that into account as likely to make imprisonment weight more heavily on you.   

70Stand up now please Mr Nguyen. 

71Tam Nguyen, on Charge 1 of dangerous driving causing the death of Dong Ngo, you are convicted and sentenced to three years and four months' imprisonment. 

72On Charge 2 you are convicted and sentenced to four months' imprisonment. 

73I direct that two months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1.  That makes it ‑ ‑ ‑

74INTERPRETER:  Sorry, Your Honour, could you please repeat that? 

75HER HONOUR:  The whole lot or just the second? 

76INTERPRETER:  Just the last, the last bit. 

77HER HONOUR:  On Charge 2 you are convicted and sentenced to four months' imprisonment.  I direct that two months of the sentence on Charge 2 be served cumulatively, that means added to, the sentence on Charge 1.  That makes a total effective sentence of three years and six months' imprisonment. 

78I set a minimum term of two years' imprisonment before you become eligible for parole. 

79I declare what I have calculated and stand to be corrected as four days of pre-sentence detention, which would not include today, as reckoned served towards this sentence and I direct that that be entered in the court record and deducted administratively. 

80I state that if you had not pleaded guilty but had been found guilty of these two charges by a jury, and if all other circumstances had been the same, I would have sentenced you to imprisonment of five and a half years on Charge 1, eight months on Charge 2, a total effective sentence of five years and ten months and I would have set a non-parole period of three years and nine months. 

81I order that your driver's license be cancelled and that you be disqualified from applying for another for a period of two years, which is relatively academic given the sentence. 

82I order that a forensic sample be taken from you.  That is limited to what we call a scraping from the mouth.  This is to enable your DNA to be placed on the state's database.  The reason I make the order is the nature of both of the offences. 

83I warn you as I must that if you resist the taking of the sample, an authorised officer can use reasonable force to take it.  That should not - force should not be necessary because the type of test is that a swab, like a long cotton bud, is rubbed on the inside of your cheek inside your mouth.  That should be sufficient to get a DNA sample and if you do not resist it should not be intrusive and there should be no need for force to be used. 

84If you take a seat, Mr Nguyen, I need to check with both side's counsel that I have covered all I need to and one of the things I have to raise is that on record there still are several summary offences which were transferred to this court.  I understood there is a document indicating that the terms of the plea of guilty included that those would be withdrawn, but is that so? 

85MS TEAGUE:  That's my understanding, Your Honour, and that a notice was filed seeking those matters be withdrawn. 

86HER HONOUR:  Yes, well it is expressed for the future, so. 

87MS TEAGUE:  Yes. 

88HER HONOUR:  I will mark them as withdrawn. 

89MS TEAGUE:  Thank you, Your Honour. 

90HER HONOUR:  Or I will enter that they have been withdrawn. 

91MS TEAGUE:  Thank you, Your Honour. 

92HER HONOUR:  Have I covered all other matters? 

93MS TEAGUE:  Yes, Your Honour. 

94MS LAMOVIE:  Yes, Your Honour. 

95HER HONOUR:  All right.  Mr Nguyen, the total effective sentence is three years and six months' imprisonment, and two years before you are eligible for parole.  I am sure your counsel will explain that to you, and the transcribed reasons will be available as soon as I can obtain and revise them. 

96MS LAMOVIE:  Your Honour, before you leave the bench, if I may ask if the interpreter can remain for five minutes after Your Honour leaves, five minutes so I can speak to Mr Nguyen. 

97HER HONOUR:  Yes, I think that is appropriate and for that - do you mean here or downstairs?  Because I do have a matter returning at 4 o'clock.  If it is all right with the interpreter - Madam Interpreter, you made yourself available especially this afternoon, can you wait another ten minutes? 

98INTERPETER:  Certainly, Your Honour. 

99HER HONOUR:  All right, thank you.  I ask you to do that so that Ms Lamovie can explain and discuss the sentence with her client. 

100INTERPRETER:  Yes. 

101HER HONOUR:  All right.  I think it is best that that be downstairs because I have another matter returning.  All right.  Could Mr Nguyen be removed from the court room please and the interpreter will join him downstairs subsequently.  I do not think you go now, Madam Interpreter, no, you stay here.  All right. 

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