Director of Public Prosecutions v Pan

[2019] VCC 360

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02314

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAN YADONG

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 March 2019
CASE MAY BE CITED AS:	DPP v Pan
MEDIUM NEUTRAL CITATION:	[2019] VCC 360

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Eckersley	Office of Public Prosecutions
For the Accused	Mr B. Newton	Dribbin & Brown

HIS HONOUR: 

1On Boxing Day 2017, George Hullo was heading to the Skenes Creek area to enjoy some time diving.  He drove what most would see as the back way down to the coast from the Geelong area, where he was then residing.  That is, Mr Hullo took the road towards Birregurra, turning off to travel along the Birregurra Forrest Road.  Mr Hullo's brother, Steven Hullo told me during the course of hearing his victim impact statement, that he and his brother would always take this route to the coast.  George Hullo had struggled with his mental health in the time heading up to Boxing Day 2017, but he was a man much loved by his brother and his brother's children.  He was on Boxing Day 2017 simply heading along roads familiar to him, to enjoy himself at the coast which was where he did enjoy himself. 

2You, Yadong Pan, had likewise decided to enjoy a day at the beach.  You, along with friends, were driving from Colac to Lorne.  You had arrived from China on a 457 visa in May 2017 to work as a butcher at the Australian Lamb Company abattoir in Colac.  You had two friends, housemates, in your car.  Another car with a Chinese family was driving behind you.  You were not familiar with the road that you were on.  It was the Colac Lorne Road.  It was more or less an east west, two-lane country road.  The road George Hullo was driving on, was more or less a north south two-lane country road.  The two roads intersected. 

3Those driving in the way that you were, or in the direction you were, Mr Pan, were required to stop at the intersection of the Colac Lorne Road and the Birregurra Forrest Road.  The priority was for those like Mr Hullo, heading along the Birregurra Forrest Road.  Speed limit for both roads was 100 kilometres per hour.  As your counsel, Mr Newton pointed out, the intersection had seen collisions in the past, thus the warning signs and road features along the Colac Lorne Road as it approached the intersection, were considerable.

4Thus, as you drove along the Colac Road you first were warned of the approaching rumble strips, with a sign saying, "Rumble strips".  You told me in your evidence on the plea that you could not read or understand the words, "Rumble strip".  You said that in your native China, rumble strips on the road mean an incline or a hill.  The road you were driving on had moderate undulations.  The vibrations caused by the rumble strips should have alerted you that there was a need to pay particular attention to the road conditions in the immediate vicinity ahead of you.

5The first rumble strips were 360 metres from the intersection.  They were the first of three sets of rumble strips, with six strips in each of the sets.  The second set of rumble strips came at 286 metres from the intersection and the third, 234 metres from the intersection.  At the point of the second set of rumble strips, there was a large red sign saying, "Reduce speed".  You did not reduce your speed at all.  You kept your cruise control on, set at 98 kilometres per hour.  You said in your evidence you could read and understand the, "Reduce speed" sign.  The fact that you did not reduce your speed makes it plain you were not paying proper attention to the road conditions.

6As the road continued, there was yet another warning sign just beyond the third set of rumble strips.  These signs advised that stop signs facing the direction you were driving, were approaching.  Again, this had no effect on your driving which was maintained at the same speed.  The Colac Lorne Road as it approaches the intersection was at a decline, giving a good line of sight to the approaching intersection and stop signs.  A drive through video produced by the police, was tendered and played on the plea.  After the intersection, the Colac Lorne Road continues on an incline and you seemed to think that the road kept going, without there being an intersection at all, or if there was one, the other road had to stop for traffic heading the way that you were driving. 

7This was a fundamental error of judgement and one hard to understand, if you were paying attention to the road conditions approaching.  You said in your evidence that you were using a navigational tool on your mobile phone, sitting in a cradle near your steering wheel.  You claimed that the map on the mobile phone did not display any intersection or road approaching.  This is hard to accept as the Birregurra Forrest Road was the major road, designed as a C- road with a number, and is a significant road and thoroughfare to the inland towns such as Forrest and the coast via Skenes Creek.

8In any event, you did not see the intersection or the stop signs which were there to be seen.  All other conditions were ideal for seeing what was there to be seen.  It was clear daylight, mid-morning at the beginning of summer.  You drove into the intersection without stopping as the law required you to do.  You did so just as George Hullo was travelling along the Birregurra Forrest Road, obeying all road laws.  You collided with his car at high speed.  The data from your car revealed that you applied brakes a mere 0.8 of a second before the collision.  Mr Hullo was killed instantly. 

9The female passenger in your car was seriously injured with internal abdominal injuries and fractures to her spine at the L1 and L4 and at her sacrum.  She suffered trauma to her kidney, resulting in a renal infarct.  At this point, 15 months or so later, she remains unable to work. 

10You had applied for a 457 Visa on 5 March 2017.  It was granted a few days later on 13 March 2017.  You arrived in Australia on 23 May 2017 to commence work at the Australian Lamb Company in Colac.  You lived in company quarters within walking distance to your workplace for the first month.  In around July 2017, you moved to other premises in Colac, a bit further away from your workplace.  You bought a car and drove to your workplace.  You had an international driving licence.  You returned to China for a month or so in October/November 2017, at which time you got married.

11On your return, you continued to drive to and from work.  You were not experienced in driving in Australia or familiar with the country roads that you were on, when you failed to obey the stop sign at the intersection.  That said, this country road had a significant number of warnings, so as to aid those unfamiliar with the area as tourists, as they approached the intersection.  Your counsel made much of what he said was the notorious nature of the intersection, where there had been collisions before and after yours in similar circumstances.  His argument was that this lowered your moral culpability. 

12He relied upon the Court of Appeal decision in R v Rudebeck [1999] VSCA 155 at paragraphs 15 and 31. It is hard to understand what the decision in Rudebeck or those two cited paragraphs aided, let alone established the proposition put by your counsel. That may be because, counsel also referred to the Judicial College Charge Book, not the Sentencing Manual, which says unsurprisingly that a trial judge in directing a jury as to all the circumstances of an alleged offence, such as dangerous driving causing death, may find that the conditions of the road and the size and speed of the vehicle being driven, were relevant to the jury's consideration.

13The Sentencing Manual at Chapters 28.7.2 refers to forms of dangerousness, which in turn lists five cases under the heading, "Failure to comply with Traffic Control".  Most of those cases involve failures to obey traffic lights, though the DPP v Martinez [2008] VSCA 165 involved a failure to stop at a give way sign in what was then a semi-rural setting. Mr Newton, your counsel, indicated his researches of the County Court sentencing decisions had not revealed any like circumstances of failing to obey traffic controls at intersections.

14There are County Court sentences where the facts reveal a failure to obey give way signs on rural roads.  One is perhaps particularly helpful.  I drew this to counsel's attention today, as it was the first opportunity I have had to do so.  That sentence was from Judge Hampel, who also was sitting at Geelong, where she dealt with a Singaporean national who was driving on unfamiliar country roads with friends on a rock climbing holiday in the Grampians.  The driver failed to obey a give way sign and collided with a car driving with the right of way.  There were some advisory signs, but not nearly the number here and no rumble strips in that case.  In that case, the following was said at paragraph 10 by Her Honour:

"Although the paramedic who attended the scene believes it is a dangerous intersection and on the material before me, this is not the first time there has been a collision at that intersection, it is nonetheless well and sufficiently sign-posted.  An attentive driver is given more than sufficient opportunity to note that they face a controlled intersection ahead, to slow down and to satisfy him or herself there are no cars on the intersecting roadway, before entering the intersection".

15I adopt those words and emphasise that here, the warnings in this case were much more explicit, clear and more numerous.  In my view, taking into account all the circumstances including the views expressed by experts in reports at the committal and indeed by politicians, that the control of the intersection should be upgraded, this is not a set of circumstances such that the road conditions meant that your moral culpability fell to the lowest or a low category, as urged by your counsel.

16The intersection, like so many country roads have intersections requiring drivers to take care and observe and comply with warning signs and then stop signs.  If they do not, given the high speeds of driving on country roads, the risks created for other road users are particularly high.  The risks are that death and/or serious injury is almost inevitable.  In my view, all drivers in the prevailing conditions must apply appropriate care for those conditions.  Indeed, as the often-cited case of DPP v Neethling makes clear, those inexperienced in the prevailing conditions, ought show particular caution in order to ensure proper care for other road users is being displayed, given the driver's inexperience and unfamiliarity with the roads.

17Other factors that elevate the moral culpability in other cases, such as excessive speed, alcohol or drug use impairing driving, showing off, distractions from within the car or otherwise or fatigue were not present here, to further elevate your moral culpability.  Here the risk was, that if you, Mr Pan failed to stop as required and entered the intersection at the speed you were driving, at or about the 100 kilometres speed limited, that if there was other cars or were other cars travelling on the Birregurra Forrest Road on Boxing Day, as Mr Hullo was, then the likelihood of death and/or serious injury was very high indeed.

18Thus the risk you created was considerable.  The road signs and the rumble strips were there in significant numbers, so as to ensure a driver took care to eliminate the risks by stopping as required and only proceeding on when safe.  The consequences here are dire.  Mr Hullo died and his brother greatly misses him.  Ms Xiao Yu suffered injuries that were significant and remain an ongoing impediment to her enjoyment of life and her ability to carry on her life as before. 

19Mr Steven Hullo, the brother of George Hullo, wrote a heartfelt victim impact statement in which he said it was:

"Difficult to come close in words, to describing the impact of losing my brother, George.  He was my brother.  My only brother.  Now he is gone.  I can't ever call him again, we can't laugh together, share stories, help each other out.  I have been robbed of him forever".  [He talks about his brother's troubled adulthood but he had a close relationship.  He said] "We were brothers and mates.  He was my big brother.  I needed him". 

20He goes on to say that in the lead-up or the months before the death of his brother, they had lost their mother to cancer and they were struggling to deal with that over the Christmas period.  So the death of his brother came upon a difficult time.  He says:

"I was devastated.  I fell to a depth of sadness I can't express.  I was at rock-bottom low.  I was processing my mother's death and finding peace that her suffering was over, then to needlessly lose my brother seemed a completely senseless and cruel blow.  [He says] Life is precious and family irreplaceable.  The sadness and sense of loss prevails.  I put on my brave face and show strength, because I have a family to bring up.  I have a nephew who's lost his father, who I need to be strong for and support.  To say it is hard is a gross understatement.  I'll never quite be the same person again.  A loss like this changes you forever".

21Before moving to your personal circumstances, I note that you wrote a letter of deep apology in respect of each victim and it was read during your evidence on the plea.  I conclude you are genuinely contrite and remorseful with ongoing sorrow for the victims.  This is to your credit.  Up until this crime, your life had been tracking as you wished.  From a difficult, impoverished life in China as a child, you had moved on to work in Mongolia, Japan and of course here, in Australia.  Your upbringing was particularly difficult because you lost your own father in an industrial accident when you were just five.

22Your mother raised you and your two siblings with limited income.  You progressed through to tertiary education studying advertising, but you did not take up work in that field.  Rather, you worked in a meatworks in Japan, then Mongolia and finally Australia.  You are now 28, arriving in Australia in May 2017 when 26.  Also as noted, you returned to China in October 2017 and married your partner, with whom you had to that point, a long relationship of six years, that is from your early 20s.  Having experienced Australian life for about four months or so, you became convinced it was for you and your partner, the place that you wanted to be.  You wanted to raise a family here with your partner, so you were keen for her to join you and for you all to reside in Australia permanently. 

23Your future plans in this regard are now very problematic.  Your partner has not been permitted to travel to Australia to see you since the collision.  You speak with her and are pained at the prospect of not seeing her for some time and worse, that you may be deported so you cannot make good your plans to live permanently in Australia.  You have made friends here in Australia, other Chinese nationals also working and living in Colac.  You have impressed them before the collision as a hardworking, quiet living man, doing all you could to ensure that your wife and you could settle here.  Those that knew your driving, considered you careful.  All this is to your credit.  You have no prior convictions and you are entitled to call on that in asking for a merciful sentence. 

24I could discern from your evidence, the letters that you wrote and the psychological report from Mr Newton, that you are deeply affected by what has happened.  You will do gaol hard, because of how you feel and also because of your isolation and your language difficulties.  Also you will do gaol harder, due to a sense that your ability to stay in Australia is very unlikely, especially if you are sentenced beyond a period of 12 months.  The expert opinion from the immigration lawyers that you engaged, makes it clear there is almost no chance of you being able to stay here and establish a family, as you had keenly hoped for.  Thus I take into account the added burden in prison of knowing that your immediate immigration plans are almost certainly dashed.

25You did not plead guilty until you had made but failed in a sentence indication hearing.  Your plea of guilty has saved resources.  As noted, you have always been remorseful and distraught by what happened.  That is now added to by your plea of guilty.  Your sentence will be less because of your plea of guilty and all that it entails.  Your counsel after the sentence indication hearing, sought thereafter a combined sentence involving less than 12 months' imprisonment and a community corrections order.  The prosecution indicated that there must be some gaol but whether it was in a combined sentence, was a matter for me.

26The sentences purposes in these tragic, avoidable road trauma cases have been restated many times.  That said, each case has unique aspects that must be taken into account.  I pause to say that I have done that in this case.  However, some general statements are particularly relevant here in the sentencing synthesis.  First, the crime of dangerous driving causing death or serious injury are crimes that are likely to be punished by significant terms of imprisonment.  So much was said in the past and repeated in the important decision of Stephens v The Queen [2016] VSCA 121 at paragraph 21.

27In Stephens, this was citing the other well-known case of DPP v Neethling (2009) VSCA 116 and DPP v Oates (2007) VSCA 59. I add in at paragraph 28 in the DPP v Neethling, there was a citation from the New South Wales case of DPP v Musumeci.  What was said there adapted to this case is:

The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness; (2), The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life; (3), Such is the need for public deterrence in this type of case, that other factors [in that instance, youth but other factors] must be given less weight as subjective matters than in it might be the case in other situations; (4), The courts must tread warily in showing leniency for good character in such cases".

28So, foremost in the appropriate consideration of the sentencing purposes is deterrence to others.  Time and again the courts emphasise the sanctity of life and the need for all drivers to show proper care when driving.  I must, through this sentence, contribute to the unambiguous message that if you fail to pay proper attention and cause death and/or serious injury by that dangerous driving, then stern punishment involving imprisonment awaits.  I must also and in a practical way, denounce your dangerous driving causing the death of George Hullo and the serious injury to Xiao Yu.  It was a completely avoidable tragedy.

29The practical expression of denunciation means appropriate punishment involving imprisonment as well as words of condemnation.  You have not been in trouble before but the seriousness of this offending opens up the need for some, but very moderate weight to be given to deterrence to you.  Your rehabilitation is important.  My Statutory mandate is to establish conditions to facilitate your rehabilitation.  You have been, at all points in your life save for this, a law-abiding man.  I expect with your deep remorse you will resume your previous lawful lifestyle in whichever country you reside. 

30In my view, your rehabilitation will follow upon your release and your resumption of your working and socially appropriate life.  Whether that is in Australia or elsewhere is for others, not me.  I will set a period at which you have the potential for parole.  Again, whether and when you are granted parole is for others, not me.  I have taken into account the submissions made that there be a community corrections order following a period of imprisonment.  The restrictions now imposed upon me that the sentence of imprisonment must be one of 12 months, taking into account in the appropriate synthesis, that is a punishment that is not just and appropriate even combined with an onerous community corrections order. 

31I have taken into account the very significant support you have from friends here and the letters that they wrote and from your wife in China.  Your good qualities are not overlooked but so often, these crimes are committed by people of otherwise good character.  And I refer again to what was said in the
DPP v Neethling quoting from Musumeci that, "The courts must tread warily in showing leniency for good character in such cases".

32But all matters in mitigation have been given real weight and have not been glossed over because of the seriousness of the offences.  There must be some recognition that there were two victims, but in this instance moderate cumulation is appropriate given the circumstances of a single act of dangerous driving, causing the death of Mr Hullo and the injury to Ms Yu.  It is always a grave step to imprisonment someone like you in your difficult circumstances, but there is in my view, no other option. 

33A sentence of imprisonment that allows as I have said, a community corrections order has been considered and I have after much anxious consideration concluded, that the only just and appropriate sentence that expresses the sentencing purposes that I have spoken about, must be of a length that disallows a combined penalty of imprisonment and a community corrections order.  I have taken into account the maximum terms here of ten years for causing death and five years for causing serious injury. 

34I have also heeded the remarks of the Court of Appeal in Stephens, as to the need for an increase in sentences for dangerous driving causing death, but I have kept well in mind my sentence must always be an expression of individualised sentencing.  Can you please stand, Mr Pan.

35For committing the crime of dangerous driving causing death you are sentenced to three years' imprisonment;

36For committing the crime of dangerous driving causing serious injury, you are sentenced to 12 months' imprisonment.

37I order that four months of the sentence on the dangerous driving causing serious injury be cumulative on the sentence of three years for the dangerous driving causing death.  That gives a total sentence of three years and four months and I order that you serve two years before being eligible for parole. 

38Any licence you hold is cancelled and you are disqualified from driving for a period of 18 months.

39Is there any further order?

40MS ECKERSLEY:  Your Honour, there is an application for a forensic sample order.

41HIS HONOUR:  Is that opposed?

42MR NEWTON:  Yes, Your Honour.  Particularly in light of Your Honour's comments ‑ ‑ ‑

43HIS HONOUR:  Yes.  Yes.

44MR NEWTON:  ‑ ‑ ‑ in relation to specific deterrence.

45HIS HONOUR:  Yes. 

46MS ECKERSLEY:  Your Honour, given the offender is likely to be deported after his sentence ‑ ‑ ‑

47HIS HONOUR:  Yes.

48MS ECKERSLEY:  ‑ ‑ ‑ there is maybe not so much utility in having the applicant - - -

49HIS HONOUR:  All right.  I am not - an application was made for a forensic sample to be taken from you.  The utility of that is problematic given what may well occur with the executive decisions relating to your immigration status.  You oppose the taking of the order.  It is a sanctioned assault upon you to take a bodily sample from you and in the circumstances, I decline to make the order.

50MS ECKERSLEY:  As the court pleases.

51MR NEWTON:  As Your Honour pleases.

52HIS HONOUR:  Thank you.  Any other orders?  I am so sorry.  Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of five years with a minimum of three years and four months.  I thank counsel for their considerable assistance.  We will end the link to Mr Hullo in Geelong.  Thank you very much.  And Madam Interpreter, thank you very much.  You may be required by Mr Newton and his instructor to speak to Mr Pan downstairs.  So, if you would not mind coming out of the dock so Mr Pan can be taken downstairs by the prison authorities.

53INTERPRETER:  Thank you, Your Honour.

54HIS HONOUR:  Thank you.  Thank you.

‑ ‑ ‑