Director of Public Prosecutions v Nguyen

[2022] VCC 1501

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No.  CR-19-02211

DIRECTOR OF PUBLIC PROSECUTIONS

v

GIAU VAN NGUYEN

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JUDGE:	His Honour Judge Moglia
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2022
DATE OF SENTENCE:	5 September 2022
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2022] VCC 1501

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentence upon plea of guilty

Catchwords:              Sentencing – failing to stop – failing to render assistance – careless driving – momentary inattention – victim died at scene – attempted to cover up offence the following day – no excessive speed – medium to low gravity – accused 67 year old – significant language and communication difficulties – poor mental and physical health – PTSD from early childhood – general deterrence – genuine remorse – hardship in prison.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Road Safety Act 1986 (Vic).

Cases Cited:Brown (aka Davis) v The Queen [2020] VSCA 60; DPP v Chhatre [2014] VSCA 280; Panourakis v The Queen 2021 [VSCA] 259; Tokay v The Queen [2014] VSCA 285; Verdins v R (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169.

Sentence:Imprisonment for 4 months with a CCO for 12 months. 7 days pre-sentence detention reckoned as already served. s6AAA: 11 months imprisonment with no non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	E. Ramsay	OPP
For the Accused	A. Waters	Victoria Legal Aid

HIS HONOUR:

1Giau Van Nguyen, you have pleaded guilty to one charge of failing to stop after a motor vehicle accident,[1] one charge of failing to render assistance after a motor vehicle accident,[2] and one related summary charge of careless driving,[3] all these offences occurring on 8 May 2019. 

[1] Road Safety Act 1986 s 61(3).

[2] Road Safety Act 1986 s 61(3).

[3] Road Safety Act 1986 s 65.

2The maximum penalty in relation to both Charge 1 and 2 is 10 years' imprisonment or a fine of 1,200 penalty units.  The maximum penalty in relation to careless driving is six penalty units for a first offence.

Summary of offending

3The agreed basis for your guilty pleas is set out in the summary of prosecution opening dated 28 June 2022.  You are to be sentenced based on those facts, which I summarise and make findings about as follows.

4On Wednesday evening, 8 May 2019, you were driving home to Essendon from St Albans in your red Honda Civic.  Just after 9:00 pm you were driving some distance behind a black Holden sedan eastwards along Main Road East. 

5The deceased, Mr Athanasios Frangis, was walking home from the St Albans Soccer Club where he volunteered.  He was also walking along Main Road East on the southern footpath.  He started to cross that road just past the Erica Avenue intersection.

6At about 9.07 pm, you approached that intersection in your vehicle.  The road was in good condition.  The weather was fine, the road was dry.  Your headlights were functioning, and the area was well lit due to presence of local businesses and street lighting on both sides of the road.

7Mr Frangis crossed Main Road East from your right to left.  You struck him with the front left-hand corner of your vehicle.  He was thrown onto the bonnet of your car and partially through the passenger side windscreen, causing him to go over the roof of the vehicle into the air and then land on the road.  At the time of the collision you had failed to keep a proper lookout or to take evasive action to avoid Mr Frangis, who was observed to be walking at an average pace.  This forms the basis of the related summary charge of careless driving.

8Immediately following the collision you continued to drive, and some way down the road you indicated and pulled over to the left, as you later told police, in a side street.  You did not stop at or return to the scene.  Nor did you render any assistance to Mr Frangis.  You admitted to police that you saw him immediately before the impact and as he hit your windscreen. 

9I find that you knew you had hit a pedestrian and at least ought to have known that Mr Frangis thereby suffered serious injury, if not death.  Footage of the incident from a nearby security camera shows him landing on the road, skidding along and remaining on the roadway in plain view.  This forms the basis of Charge 1, fail to stop after a motor vehicle accident, and Charge 2, fail to render assistance.

10An eyewitness driver in a car directly behind you described that he thought Mr Frangis was going to stop walking given there were two vehicles travelling in his direction, but Mr Frangis kept crossing without doing so.  The witness did not observe any brake lights activating on your vehicle.

11Soon afterwards, by about 9.20 pm, paramedics arrived and performed cardiopulmonary resuscitation on Mr Frangis, but they were unable to revive him.  As confirmed by a later post-mortem examination, he died due to injuries sustained in the collision. 

12In the meantime, you drove home. 

13The next day, 9 May 2019, the morning after the incident, at around 7.30 am you left your home, driving your damaged vehicle that you had parked in the street. 

14You drove to a car care centre in Strathmore, asking them to replace the windscreen.  You told the mechanic that you had parked your car outside your house overnight and when you looked in the morning you found it had been damaged.

15The manager of a nearby car wash also saw your vehicle parked at the car care centre.  He asked you about the damage and you repeated the story that you woke up in the morning and found it like that.  He suggested you should report it to police because it looked like someone tried to steal your car.  Your told him that you would prefer to just pay for a new windscreen.

16Later in the morning at about 11.30 am, having heard a media report of the collision and that police were looking for a red Honda, a building owner near the car care centre reported the presence of your vehicle to Moonee Ponds Police. 

17Police were at the centre when you returned to collect your vehicle at about 3.45 pm.  They arrested you and took you to Moonee Ponds Police Station. 

18Police arranged a mechanical inspection and test drive of your car, and determined that there was no mechanical fault, failure or condition that could have caused or contributed to the collision. 

Procedural history

19Police interviewed you following your arrest, with the assistance of a Vietnamese interpreter. 

20During your interview, you stated that you did not see Mr Frangis until a fraction of a second before impact, when he was “right in front of [you] already”.  When it was put to you that Mr Frangis was not walking fast, you maintained that he was too fast.  You stated that after the collision, you were “scared”, “shocked”, “tired” and “exhausted”.  You said that you thought that if you went back you would have been attacked by bystanders as you had seen happen in Vietnam.  However, you denied that anybody on the night had said or done anything to make you scared.  You denied that you tried to get the vehicle fixed so as to prevent police from identifying it as being involved in the collision, which denial I do not accept.

21You remained in police custody from 10-16 May 2019, until released on bail.  On 8 November 2019 you were committed for trial.  You pleaded guilty at that time to both of the charges on the current indictment, pleading not guilty to dangerous driving causing death, which has since been withdrawn. 

22It is unfortunate for all concerned that it took until 14 April 2022 before the matter settled, permitting you to proceed with your guilty plea.  I accept that your plea should be considered to have come at the earliest reasonable opportunity.

23Further, your guilty plea has important utilitarian benefits by obviating the need and cost and burden of conducting a trial, which trial would have been distressing for all concerned.  Your plea reflects a willingness to facilitate the course of justice and an acceptance of responsibility for your wrongdoing.  I accept that it also indicates remorse.

Personal circumstances

24You are now 67 years old.  You were born and raised by your parents in Vietnam with five sisters and two brothers.  You migrated to Australia with your cousin on a refugee visa in 1981 when you were about 26.  You acquired Australian citizenship in 1992. 

25You have two daughters and two sons from three different marriages.  You are close with all of your children, although you have no contact with your previous partners.  One son was tragically murdered in 2013, and to this day you suffer from severe grief and depression due to this traumatic event. 

26Currently you live alone.  You have a partner in Vietnam who lives with your youngest son.  You would like to bring them to Australia but have not been able to do this whilst the current proceedings have been outstanding.  You maintain contact with them and provide them with financial support.

27You completed the equivalent of Year 8 in Vietnam before disengaging with school.  You worked as a market gardener there from age 14.  After arriving in Australia you worked full-time in farms at Lilydale and Mildura for about 8 years.  You have not worked since around 2013 due to poor health.  You suffer from a range of health issues, including a heart attack in 2008, related surgery in 2017, retinal atrophy, hypertension and chronic obstructive pulmonary disease.

28You have a criminal history, essentially consisting of drug trafficking, for which you were sentenced to 6 years and 3 months, with a non‑parole period of 4 years and 9 months on appeal in 2000, and then again for trafficking resulting in a sentence of 4 years, 6 months, with a non‑parole period of 2 years and 6 months in 2011.  You have a minor record for speeding offences but nothing since 2009.  I do not find that any of this history has particular relevance to the offending before me. 

29

Psychologist Gina Cidoni assessed you and her report dated

20 June 2022 was tendered on your plea (Exhibit 1).  She diagnosed you, or confirmed your diagnosis, with major depressive disorder (MDD) and post-traumatic stress disorder (PTSD), and stated that those conditions likely emerged prior to your current offending and probably following your son's murder in 2013, possibly earlier.

30Since the collision in this case Ms Cidoni observed that you continue to suffer a “persistently low and depressed mood”, “decreased interest in pleasurable activities”, as well as feelings of guilt, worthlessness and detachment from others.  She observed you to display significant remorse about what occurred and your response immediately following the collision.

31Your son Tony Nguyen has supported you in court and provided a letter dated 18 July 2022 (Exhibit 3).  He said your behaviour changed drastically following the collision.  He said you used to be outgoing, but now you isolate at home and distance yourself from family.  You missed your grandson's first birthday celebration due to shame and embarrassment.  He states that you are a good man who is family orientated, with good intentions and who means no harm to anyone.  You have shared with him your immense regret and remorse for your behaviour on this evening.

32I accept that you are truly sorry for your actions and the role you played in Mr Frangis' tragic death.

Sentencing issues

33Your counsel, Mr Waters, submitted that your guilty plea, its added utility during the COVID pandemic, your remorse, your reduced moral culpability, the additional hardship you would face in prison due to your poor mental and physical health, as well as the substantial delay, together, weigh in favour of a non-custodial sentence. 

34The prosecutor, Ms Ramsey, conceded the relevance of each of these matters.

35As to the gravity of your offending on this night, your counsel submitted that it is not attended with the kinds of factors that this court unfortunately sees in moderate to highly serious examples.  He submitted that there was no excessive speeding or driving under the influence of substances.  Nor was there any of the circumstances that increases your culpability beyond merely careless driving, momentary as it was.  He submitted that this absence is a powerful factor when weighing up the seriousness of this case and that such a trend can be observed in other cases.

36By way of example he referred to the case of DPP v Chhatre[4] and the comments of Weinberg, Whelan and Santamaria JJA, who observed that typically in cases of this kind the offender has a cogent motivation to flee the scene, which may be their driving, their intoxication or their driving history.[5]  The court in that case found Mr Chhatre was an unusual case because “he had done nothing wrong and had nothing to fear before he made the decision not to stop and to drive away”.[6]  There were also exceptional matters in mitigation, including an exemplary record and role in his community.

[4] [2014] VSCA 280

[5] Ibid, 38.

[6] Ibid, 32.

37Your counsel submitted that in this case it could not be said, beyond reasonable doubt, that there was a connection between any awareness you had of your momentary inattention as a contributory cause of the collision and your decision to flee. 

38I accept that there is a trend towards leniency in cases where there is little or no bad driving, or other factor relating to the driver, about which it might be said that they effectively cover up or avoid by fleeing the scene.  As was fairly conceded by Mr Waters, this is a trend but does not give rise to a principle that a non-custodial sentence must be imposed in such cases.  In this respect I find the gravity of your driving, the subject of the careless driving charge, to be low level, consistent with that being a summary offence. 

39The seriousness of your election to leave the scene falls to be determined by reference to the repugnance with which the community holds such behaviour and the circumstances in which you did so, which I have outlined above. 

40The prosecutor submitted that the only available sentence is immediate imprisonment and that general deterrence should be at the forefront of the Court's consideration.  The prosecutor referred to Tokay v The Queen,[7] where Santamaria J stated that the maximum penalty, 10 years, reflects the reprehensible nature of those offences, as well as the serious community concern and disapproval associated with them.  The prosecutor raised the case of Panourakis v The Queen, a case with striking similarities to yours.[8]  

[7] [2014] VSCA 285

[8] [2021] VSCA 259

41Similar to you, Ms Panourakis was diagnosed with PTSD and adduced expert evidence regarding the causal connection between her psychological presentation and flight.  Like you, she also submitted other significant matters in mitigation.  In Panourakis, Priest and Kaye JJA found that her PTSD, as well as the associated heightened state of fear and distress, was the principal reason for her departure from the collision scene but still imposed a term of imprisonment.[9]  The prosecutor submitted that even if the court was to accept that avoiding responsibility for your careless driving was not a contributing factor to your departure, this would merely point to the absence of aggravating features.  The prosecutor submitted, and I accept, that a wholly non-custodial penalty is not appropriate in this case. 

[9] Ibid, 49.

42Your counsel relied on Ms Cidoni's report that you suffer from hyperarousal due to your untreated PTSD, and that you were at the time likely to have been in a “state of heightened psychological and physiological stress”.  She states that the collision, being a sudden shocking occurrence, likely “activated a neurobiological response”.  She states that this response was likely exacerbated by your anxious psychological state, which overwhelmed your capacity for rational decision‑making and caused you to flee from the scene.  Relying on this, your counsel submitted that your moral culpability is therefore reduced, and that general deterrence and denunciation have limited relevance in your case.[10]

[10] Verdins v R (2007) 16 VR 269

43The prosecutor countered that your moral culpability for this offence is higher than Mr Chhatre's, because no aspect of Mr Chhatre's driving contributed in any way to his collision.  The prosecutor submitted that one of the reasons for your flight was that you were trying to evade responsibility for your careless driving which had resulted in a collision with Mr Frangis.  The prosecutor submitted that this finding is consistent with Ms Cidoni's opinion that your PTSD was also a contributory factor because there can be more than one reason for flight. 

44The prosecutor also relied on your attempt to actively cover up the offence on the following day to support this proposition.  In these circumstances, the prosecutor submitted that your moral culpability, and the weight to be given to general deterrence, should only be reduced by a limited extent. 

45I do not find that your panic response, no doubt exacerbated by your PTSD, provides a complete explanation for your actions.  Nor do I find that you left the scene primarily to avoid apprehension due to any particular perceived liability.  I expect the truth of the matter will be a mixture of the two and perhaps other circumstances. 

46In those respects I neither aggravate the gravity of your offending due to your departure from the scene for a discreditable reason, nor do I mitigate, aside from the Verdins considerations, the seriousness of your conduct by virtue of the PTSD.  As I have said, I do take into account, in accordance with the principles in Verdins, your PTSD and the effect of your anxiety and those conditions on you on the night.

47Psychologist Ms Cidoni states that, given the severity of your depression and the PTSD, a period of imprisonment will likely result in a detrimental effect on your mental health.  Your counsel relied on this and submitted that a custodial disposition will likely weigh more heavily on you compared to an offender who does not share your condition.[11]

[11] Ibid

48In his letter dated 21 June 2022, (Exhibit 2), Dr Gall states that your multitude of health issues, particularly your vision difficulties, chronic obstructive pulmonary disease, will render any custodial disposition more onerous.  This is fairly conceded by the learned prosecutor.  The prosecutor relies on the affidavit from the Acting Director of Justice Health (Exhibit A), which states that all your conditions can be managed and treated within the prison system.  Although I agree that treatment and services are available in the custodial setting, I also accept that you will face significant language and communication difficulties that are likely to inhibit the timely receipt of optimal care for your physical and mental health conditions.  In that respect I have moderated your sentence accordingly.

49In addition to medicine by way of treatment for your depression and PTSD, Ms Cidoni states that you require “intensive psychological interventions” that focus on your grief and trauma.  On the court's request, your suitability for a community correction order was assessed and confirmed.  As part of that assessment a mental health clinician recommended that you be required to engage with a Vietnamese speaking psychologist for trauma and grief informed counselling. 

50Ms Cidoni states that you have experienced PTSD symptoms in the form of regular distressing nightmares and repeated “disturbing memories” and “intrusive thoughts” as a direct result of this incident.  Your counsel relied on this and submitted that specific deterrence has limited relevance in your case.[12]  The prosecutor fairly conceded, and I accept, that specific deterrence and community protection attract less weight in your case due to your good prospects for rehabilitation and your advancing age. 

[12] Ibid

51I am bound to ensure that any sentence I impose discloses a perceptible amelioration in sentence coming as it does during the COVID pandemic and I aim to do so.[13]

[13] Worboyes v The Queen [2021] VSCA 169

52Your counsel's ultimate submission was that a lengthy community correction order alone would deter others while imposing just punishment and denouncing your conduct, all while facilitating management and treatment of your depression and PTSD in the community.[14]  I accept that to a degree.

[14] R v Boulton (2014) 46 VR 308

53Accordingly, I sentence you as follows:

(a)   on Charge 1, failing to stop after a motor vehicle accident, 4 months' imprisonment;

(b)   on Charge 2, failing to render assistance after a motor vehicle accident, 3 months.

54I order that the sentence on charge 2 be served concurrently with your sentence on charge 1.  The total effective sentence is 4 months.

55I declare that you have served already 7 days and direct that this be reckoned as a period already served under this sentence.

56On charge 1 and charge 2, with your consent, I also impose a community correction order, with conviction for 12 months, with the following further conditions: 

(a)   that you cooperate with assessment and engage in treatment for your mental health as directed; and

(b)   that you engage in offending behaviour programs as directed.

57On the summary charge 4, careless driving, I impose a fine with conviction of $200.

58In accordance with s6AAA of the Sentencing Act 1991, and bearing in mind the increased weight given to a guilty plea during the pandemic, I indicate that but for your guilty plea I would have imposed 11 months.

Ancillary orders

59Pursuant to s61(1) Road Safety Act 1986, given that a person died because of the collision, I cancel your driver license and disqualify you from driving for 4 years. 

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