Director of Public Prosecutions v Phongthaihong
[2020] VCC 294
•18 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02202
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON PHONGTHAIHONG |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2020 | |
DATE OF SENTENCE: | 18 March 2020 | |
CASE MAY BE CITED AS: | DPP v Phongthaihong | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 294 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Rochford QC Ms M. Dunbar | Solicitors for the Office of Public Prosecutions |
| For the Accused | Ms C. Hollingsworth Ms Y. Geneva | Fitzroy Legal Service |
HER HONOUR:
1 Brandon Phongthaihong, you have pleaded guilty to one charge of culpable driving causing death, the maximum penalty 20 years’ imprisonment; two charges of negligently causing serious injury, the maximum penalty 10 years’ imprisonment; and one charge of conduct endangering life, maximum penalty 10 years’ imprisonment.
2 These crimes arise out of events which took place on 12 April 2019 and involved four victims of your offending: Timothy Hocking, Ashley Gulliford, Harrison Moran and Xaiden Eddy.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say that the facts in this case are most serious and disturbing, a scenario regrettably all too familiar in these courts.
4 I turn to a summary of your offending.
5 You were 21 years of age at the time of this collision. At that time you had a current probation P2 driver licence due to expire 28 December 2021. I was told that you had had your licence just four and a half months approximately.
6 The Mazda you were driving was registered to your sister.
7 I turn to the victims of your offending.
8 Timothy Hocking (‘Hocking’) was 17 years of age at the time and lived in McCrae. He was a secondary college student. Hocking was in the front passenger seat and received fatal injuries as a result of the collision. Forensic pathologist, Dr Michael Burke, concluded his cause of death was “chest injuries in a motor vehicle incident”.
9
Ashley Gulliford (‘Gulliford’) was also 17 years of age at the time of the collision and lived in Capel Sound. He was a secondary college student. Gulliford was a centre rear passenger in the Mazda and received life threatening injuries as a result of the collision. He spent many weeks in an induced coma and was not expected to survive. As at the time of the Prosecution Opening, that is
5 February 2020, Gulliford had sustained significant brain injuries and had only recently returned home after approximately 10 months in hospital/rehabilitation.
10 Harrison Moran (‘Moran’) was 17 years of age at the time of the collision and also lived in McCrae. He was a secondary college student. He was seated in the left rear passenger seat of the Mazda and received life threatening injuries as a result of the collision, spending several weeks on life support. He needed to have his spleen removed. Moran had extensive pelvic and hip injuries and was undergoing intensive rehabilitation as at 5 February 2020.
11 The fourth victim of your offending, Xaiden Eddy, was 17 years of age at the time of the collision and lived at Capel Sound. He was a secondary college student and a right rear passenger in the Mazda. He received minor injuries as a result of this collision.
12 Police mechanically inspected the Mazda on 5 June 2019. No mechanical fault or failures were identified that would have contributed or caused the collision and at the time of the collision the road was dry, the weather cool and visibility good.
13 I turn to the collision scene. Field Street, Tootgarook is a single undivided carriageway with the provision of single lane traffic to travel in each direction. The speed zone in Field Street is 50 kilometres per hour defined by signage.
14 Marshall Street in Tootgarook is a single undivided carriageway with the provision of single lane traffic to travel in each direction. The speed zone in Marshall Street is also 50 kilometres per hour and defined by signage.
15 Field Street is intersected with Marshall Street by a roundabout. The roundabout was a standard, raised, paved with concrete edging.
16 As you approached that intersection in the direction you were driving, there were a number of indicators warning of that intersection ahead. Approximately 100 metres prior to the intersection was a yellow reflective roundabout warning sign. There was also a red and white reflective roundabout warning sign at the intersection positioned to the left side of the road. Both signs were fixed and clearly visible.
17 Further, the intersection was controlled by red and white roundabout signs directed at each entrance to the intersection. There was a white triangle shaped median with cats’ eyes on either side marked on the bitumen, which divided the lanes on approach to the roundabout in all four directions. There was also overhead street lighting directed over the intersection. Vegetation on approach to the intersection ceased prior to the corner which therefore allowed for vision of cross traffic approaching the intersection.
18 I turn to the circumstances leading up to your offending.
19 On 11 April 2019 at approximately 4.30pm, you arrived at the Rosebud Skate Park driving the Mazda, where Hocking, Gulliford, Goldingay and Eddie Gorman-Batt were present.
20 At 6.40pm you went to the Thirsty Camel liquor store opposite the skate park and purchased a six-pack of beer. When you returned to the skate park you began consuming those beers with Gulliford, who stated you consumed at least two drinks.
21 Hocking, Goldingay and Gorman-Batt left the skate park and went to Gorman-Batt’s house in Dromana to watch the football. Hocking then arranged for he and Goldingay to be picked up by you as Gorman-Batt needed to get to bed early.
22 You asked Gulliford if he wanted to go to the lookout and drove them to Rye, where Gulliford took a photo of you at 8.21pm. At that point, he believed you were drunk. You had been drinking Great Northern Beer and wanted to purchase more, however, had lost your bankcard.
23 At approximately 9.30pm, you and Gulliford parked around the corner from Gorman-Batt’s house and waited for Hocking and Goldingay. You were driving the Mazda and Gulliford was in the front passenger seat. Hocking and Goldingay got into the rear of the Mazda, with Goldingay sitting behind you and Hocking behind Gulliford.
24 Goldingay told police that as the vehicle travelled along Bayview Road towards McCrae you were speeding. Goldingay looked at the “speedo” to see how fast you were travelling, and it displayed 120 kilometres per hour. The posted speed limit for that section of road was 60 kilometres per hour. Goldingay told you he wanted to go home and, at approximately 9.40pm, was dropped off by you at his home address.
25 At approximately 10.25pm, you picked Eddy up from his girlfriend’s home in Rosebud. He sat in the left hand rear passenger seat. Eddy said there was a 10-pack of Captain Morgan bourbon cans which he consumed along with Hocking and Gulliford.
26 At approximately 10.30pm, you picked up Moran from his home address. Moran sat in the centre rear seat. He saw the cans of bourbon at the front passenger’s feet.
27 At 10.37pm, you drove to the Rosebud Hotel and went into the Thirsty Camel liquor store. Moran gave you a $50 note to purchase a four-pack of Woodstock bourbon cans, as you were the only one over 18 in the Mazda. After purchasing those cans, you drove towards Sorrento.
28 Moran stated as the Mazda was being driven by you all the occupants were drinking. You and Gulliford were sharing bourbon cans.
29 You drove to the Sorrento Skate Park, arriving at approximately 11.00pm. You, Gulliford and Hocking skated. Moran said you were trying to skate but could not do so because you were too drunk. At one stage you said “I’m too fucked up for this”. Moran believed you were over the limit to drive because you were falling over. I note you were also aware of your condition.
30 After skating, all the occupants got back into the Mazda, with Hocking in the front passenger seat. Hocking filmed you doing burnouts in the Sorrento car park behind the IGA Supermarket next to the skate park and sent that video to his girlfriend.
31
The Mazda driven by you left Sorrento at approximately 11.40pm driving towards Rye along Point Nepean Road. Eddy said you were speeding along Point Nepean Road after leaving Sorrento and he saw the “speedo” was
90 kilometres per hour in a 60 kilometres per hour zone. He told you “Alright slow down, no need to speed”. You, however, were not deterred.
32 As the night progressed, your voice slurred and Gulliford felt increasingly uncomfortable.
33 At 11.48pm, Hocking filmed you driving the Mazda at 151 kilometres per hour along Point Nepean Road between Blairgowrie and Rye. The posted speed limit for that section of road was 60 kilometres per hour. This footage was played during your plea hearing (Exhibit A).
34 As that was being filmed, you were yelling the speed of the Mazda at “140”. The other occupants were also saying “140”. When you yelled “140”, as I said, the “speedo” displayed 151 kilometres per hour.
35 Whilst Hocking was filming the video he sounded nervous and was heard saying “hey, hey, hey”. He sent the video at 11.50pm on Snapchat to Moran and Goldingay.
36 At approximately 12.15am on 12 April 2019, you drove the Mazda to a lookout spot in Rye known as “White Cliffs” and all occupants got out of the vehicle.
37 Kikidopoulos states that Hocking sent a photo to her via Snapchat of Hocking sitting in the front seat of the Mazda with his seatbelt on and a line of text on the picture that said “I’m gonna die”.
38 The occupants got back into the Mazda to leave White Cliffs. You were driving. Hocking was in the front passenger seat and Moran in the left rear passenger seat. Gulliford was the centre rear passenger and Eddy the right rear passenger.
39 Kikidopoulos states Hocking sent her a message via Snapchat with the same picture of him wearing a seatbelt at 12.33am.
40 At approximately 12.35am you drove to Moran’s house in McCrae to drop him off. Moran realised he had lost his wallet and believed it had fallen out of his pocket White Cliffs. You then drove back to that location at approximately 12:50am.
41 At approximately 1.00am, Moran located his wallet at the Lookout and you drove back towards Moran’s house in McCrae for a second time.
42 Kikidopoulos stated Hocking sent another message to her via Snapchat with the same picture of him wearing a seatbelt at 1.10am. At 1.11am, she replied to Hocking, however, Hocking did not open that message.
43 I turn to the collision.
44 At approximately 1.15am, you were driving along Field Street. Both Moran and Eddy said you were speeding, “way over” the speed limit.
45 You approached the roundabout at the intersection of Field and Marshall Streets. Eddy told police that one of the occupants in the car yelled “look out for the Marshall Street roundabout”.
46 You drove through the intersection over the roundabout and collided with a large tree on the north-east side of the roundabout. That caused the car to spin around and come to rest on Field Street. The rear passengers in the Mazda were not wearing seatbelts. The prosecution submitted and Ms Hollingsworth agreed there are signs on your dashboard when seat belts were not being worn.
47 Eddy said he got out of the Mazda and removed Gulliford and Moran from the car as they were both not conscious. Gulliford and Moran were lying on the nature strip next to the Mazda. Eddy attempted to open Hocking’s front passenger door but could not.
48 Residents from neighbouring houses tried to render assistance.
49 One neighbour called 000 and moved Gulliford into the recovery position. Gulliford was bleeding significantly from his head.
50 Another neighbour said she was holding Moran, who was in and out of consciousness. You were trapped inside the Mazda’s driver’s seat.
51 At approximately 1.20am, police arrived.
52 Sergeant Danny Lean, who attended to you, stated “[he] was conscious however not responsive, slurring his words and incoherent. The accused smelled strongly of alcohol”.
53 CFA and SES services arrived at the scene. At approximately 1.36am, SES members assisted you to exit the vehicle.
54 You said to Leading Senior Constable Stav Patogiannis “it’s my fault, I’m going to jail”. You told that officer you had drunk “a couple of drinks”, however, would not divulge any other information.
55 Ambulance crews arrived a short time later and Gulliford was conveyed to the Royal Melbourne Hospital by air ambulance in a critical condition, not expected to survive. He suffered a skull fracture, broken jaw and missing teeth. He is permanently deaf in his right ear and has lost 90 per cent of his vision in his right eye. A hospital stay was required to reinsert parts of his skull.
56 His Victim Impact Statement details at length the injuries he received and treatment he required and requires today.
57 Moran was conveyed by ambulance to Frankston Hospital in a serious condition. His condition deteriorated and he was taken to the Alfred Hospital in a critical condition. His Victim Impact Statement also provides details of the injuries he received and their sequelae.
58 Eddy was conveyed by ambulance to the Frankston Hospital in a stable condition.
59 Mr Hocking passed away at the scene.
60 You were taken by ambulance to the Frankston Hospital in a stable condition.
61 I turn then to the investigation.
62 Police from the Major Collision Investigation Unit attended the scene and conducted various examinations, took photographs, and measured the collision scene. They concluded the sight distance you had approaching the intersection, was from 200 metres. That at about 100 metres prior to the roundabout was a black and yellow sign indicating a roundabout ahead, and at the intersection a red and white sign indicating there was a roundabout and to give way.
63
Detective Sergeant May, a collision reconstructionist, analysed data obtained and provided an expert opinion of the minimum speed of the Mazda as
117 kilometres per hour, 2.5 seconds prior to impact. At the time of impact against the tree travelling at approximately 75 kilometres per hour. I clarified this with Mr Rochford, the prosecutor. When you impacted with the roundabout you were travelling at 117 kilometres per hour and as a result of that impact by the time you hit the tree the speed was 75 kilometres per hour.
64 The applicable speed limit at that location was 50 kilometres per hour. You were travelling at more than double that when you impacted with the roundabout.
65 On 13 April 2019 at approximately 12.00pm, you were arrested and taken to Frankston Police Station for interview, however, were medically unfit for interview. You were interviewed on 14 April 2019 and at that time chose to answer “no comment” to police questions. To so answer was, of course, your right.
66 Various CCTV footage and Snapchat video filmed by Hocking formed part of the investigation.
67 A toxicology certificate indicated alcohol in your blood. Your blood contained 0.189 grams of alcohol, more than three times over the limit for a fully licenced driver. You, of course, should not have had any alcohol in your blood as a probationary driver.
68 Dr O’Dell from the Victorian Institute of Forensic Medicine, regarding your ability to drive whilst being impaired stated:
“The accused had a total body content of alcohol at the time of the collision equivalent to a blood alcohol concentration between .209 and .229 per cent. His driving skills would have been very adversely affected by the effects of alcohol and a BAC in the range quoted above.”
69 Dr O’Dell further stated, “He [you] would have been absolutely incapable of having proper control of a motor vehicle.” In my opinion, from all the circumstances in this case, you were aware of that.
70 In Dr O’Dell’s opinion, your actual blood alcohol concentration (BAC) may have been lower than that range if there was still some unabsorbed alcohol in the stomach at the time that had not yet contributed to the BAC.
71 You have been in custody since 13 April 2019 and have, as at 3 March 2020 served 326 days in custody by way of pre-sentence detention.
72 Turning to Charge 1, the standard sentencing provisions apply referable to ss5A and 5B of the Sentencing Act 1991 and I shall return to that later.
73 The prosecution submitted that as a result of the charges before me, a mandatory licence disqualification was required pursuant to s89 of the Sentencing Act 1991, with a minimum disqualification period of 24 months.
74 The prosecution also requested I declare that pursuant to s89C Sentencing Act 1991 these offences were committed while you were under the influence of alcohol which contributed to the offence. I make that declaration and such will be entered into the records of the court.
75
By way of a chronology of this matter, there was a filing hearing on
15 April 2019 and guilty pleas entered by you on 6 November 2019.
Mr Rochford submitted this was an ‘early’ plea, however, not at the ‘earliest’ opportunity.
76 You have pleaded guilty to these charges and you are entitled to have that fact and the timing of those pleas taken into account in your favour and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses, particularly the victims of your offending, have not been required to give evidence during your trial and or relive this horrific ordeal.
77 I accept you indicated your intention to plead guilty to these charges at an early stage, 6 November 2019, and that the matter then progressed through the court system.
78 I am prepared to accept your pleas of guilty indicate remorse for your offending and also accept you have expressed remorse to others for your offending. You also expressed your remorse to the families in correspondence read by you during your plea hearing to which I shall later refer.
79 You have admitted a prior criminal history commencing in 2014 at the Melbourne Children’s Court. On 23 April 2014 you were dealt with for offences including dishonesty, criminal damage, amongst others, and without conviction were placed on probation for six months.
80 You next appeared at Frankston Children’s Court on 16 July 2015 on a charge of shop steal and without conviction were fined $100.
81 You next appeared at court on 31 May 2017, principally relating to graffiti offences, and were placed on a Community Correction Order until 31 May 2018. You were to continue counselling with a psychologist, Maria Cassar, or her nominee, amongst other conditions of the Order. I note a report of Ms Cassar, psychologist, dated 30 March 2017 was provided to the court following your plea hearing and I have read that report.
82 You breached that CCO and it was dealt with on 7 December 2018. The order was then varied and without conviction a Community Correction Order for 24 months was to commence on 31 May 2017 for 24 months. Your offending before me breached that Community Correction Order. You, of course, are not being sentenced by me for the breach. The relevance is your non-compliance with that Order by committing these offences. Despite being on this Order, you offended in this grave way.
83
I turn to the Victim Impact Statements. I will not repeat their contents in detail but I have read them. The impact on all the victims has been immense.
Mr Hocking, a young man with a bright future and loved by his family was killed by your actions that night. Their heartbreak and sorrow felt by his death is palpable. They will never recover. Their lives will never be the same.
84 Victims Gulliford and Moran were seriously injured by your actions. Their lives have been forever adversely changed as a result of the injuries they sustained.
85 The police and the courts are continually frustrated by offending such as yours. How someone responsible for driving a motor vehicle can drive as you did. Speed, inexperience and alcohol are a diabolical combination.
86 There was a Victim Impact Statement from Jeffrey Hocking, father of Timothy Hocking. Their lives were crushed. He described the enormity of comprehending their lives would never be the same. Birthdays and Christmas were unbearable. The family struggled to contemplate a future without Tim in their lives.
87 There was a Victim Impact Statement from Janice Hocking, mother of Timothy Hocking, who described her son as a beautiful little boy, always inquisitive, a deep thinker, articulate and opinionated, talented in maths and physics with plans to attend university. Her son was skilled in a variety of sports, his true passion skating. The family were devastated and heartbroken by the loss of Tim. His life was stolen from him and taken from them.
88 The family needed to seek help from psychologists to try and move forward.
89 There was a Victim Impact Statement from Rebekka Hocking, sister of Timothy Hocking. The loss of her little brother left her with an all-pervading sadness. There was always something that reminded her of her brother. She was devastated she would not see him grow into a man. She had difficulty sleeping, waking multiple times during the night and her anxiety levels had increased. Grief was exhausting physically as well as emotionally.
90 There was a Victim Impact Statement from Ashley Gulliford. He described that on 12 April 2019 his life changed forever and how the collision affected him in many ways. He had spent the last 10 months recovering in the Royal Melbourne Hospital and at Epworth Rehabilitation Hospital in the Acquired Brain Injury Unit, recently returning home. He spent approximately eight days on a life support machine in the Royal Melbourne Hospital ICU.
91 He detailed the extensive list of injuries he sustained in the collision. He had multiple trauma to his skull requiring several operations. He had to wear a helmet just to get out of bed for almost six months as a result of missing a piece of his skull.
92 Serious complications and infection required further surgery. The first surgery required 48 staples. The most recent surgery 98 staples to put his scalp back together.
93 He had nerve damage to his face, and had broken or missing teeth. His jaw was shattered and he has six plates inserted. He will require a number of procedures to correct his hearing and reconstruct the bones in his eye socket.
94 He spent months in physiotherapy learning to balance, walk, and build strength and to do the things he once took for granted.
95 He has daily drops and a patch for his eye and has had to undergo further surgery for repair and reconstruction of his eye socket, replace broken and missing teeth, and looking at options to get the hearing back in his right ear.
96 Before the crash he was outgoing with a passion for skateboarding and hanging out with mates. He did not get to finish school with his mates because he was too sick. Due to his head injuries, it had been recommended he not skate anymore in case he fell or reinjured himself. He can no longer submerge his head in water and is not permitted on an airplane. He had lost confidence socially because of the way he looked and he has to wear a noticeable patch over his face all the time.
97 There was a Victim Impact Statement from Harrison Moran.
98 Depression and anxiety were “big things” for him and he had been on medication for it. He turned to drugs. When he gets “super angry” and sad about the crash he said it can be “full on”. He struggled with the loss of a friend and had filled the hole with drugs. Not being able to walk or drive had left him really frustrated. The collision controlled his life. He just wanted to feel normal again.
99 He described his injuries – broken bones in his left cheek leaving him with nerve damage to his teeth. Two of his ribs were broken and punctured his lungs. His liver had been severed and his spleen had to be removed.
100 His pelvis was broken in three places, also a broken left hip. He suffered mild brain injuries also. He still attends rehabilitation three times a week. He had not been able to return to work or do sport. It had been a “massive struggle” to get through most days.
101 There was a Victim Impact Statement from Penelope Moran, mother of Harrison. She described the impact of your offending as overwhelming. The crime affected her every day. She had mild to moderate anxiety and trouble sleeping. She sees a counsellor to deal with the overall impact. She was also physically sick with anxiety and stress.
102 She had to relocate work as a result of the collision, moving from a secure job she had for three years to another job closer to home to support her son.
103 The anger and frustration she felt about your offending made her feel bitter, exhausted and tired.
104 There was a Victim Impact Statement from Lilly Moran, sister of Harrison.
105 She felt anger and frustration and was being treated for that by her doctor. She also had therapy to help her sleep. She was on medication for anxiety and depression.
106 She struggled at TAFE when topics related to trauma were dealt with.
107 I say to the victims and families in particular, the sentence I impose should not be seen as the measure in particular of the life of Timothy Hocking. His life cannot be measured. I must, however, impose a sentence that takes into account all relevant sentencing considerations and only one of those is relevant to the impact upon the victims. All the friends and family of Timothy Hocking and those injured have conducted themselves with absolute dignity in court during what I have no doubt has been a very stressful hearing. Family and friends are to be commended for that. Your lives as I have said will never be the same.
108 Of importance when sentencing is also the notion of social rehabilitation. A number of authorities have referred to the effects upon a victim of offending including DPP v Toomey,[1] in which his Honour Vincent JA referred to social rehabilitation citing DPP v DJK.[2] I, of course, allow for the very different factual circumstances in those cases to yours. However, the court noted the importance of social rehabilitation relevant to victims of crime generally.
[1][2006] VSCA 90.
[2][2003] VSCA 109, [17] and [18].
109 The effects upon a victim are a relevant sentencing consideration (s5 Sentencing Act). I am conscious, however, that I must not allow the effects upon the victim or victims to swamp the sentencing process.
110 In opening this case before the court, Mr Rochford on behalf of the prosecution submitted your offending was ‘high-end’ culpable driving given the facts in this case. Your offending he said involved excessive speed and excessive alcohol consumption and “ludicrous driving” prior to the collision occurring. You knew you could not even stay on a skateboard let alone drive a car. I also note you were aware of the likely/possible impact of alcohol consumption by you.
111 Ms Hollingsworth who appeared on your behalf advised that you had read all the Victim Impact Statements and heard that of Janice Hocking when it was read into the transcript. Ms Hollingsworth acknowledged there had been a real cost of your offending to a lot of people, including the victims and the victims’ families.
112
It was conceded by her that your blood alcohol content was at the higher end of the scale, and substantially higher than your prescribed limit of .00 as a
P-plate driver.
113 She conceded your speed at the time of the collision at 117 kilometres per hour was more than double the speed limit in that area, and at impact 75 kilometres per hour.
114 It was also conceded by Ms Hollingsworth your prior poor driving that night, showing off, prior to the collision was also relevant when assessing the overall circumstances of your offending. She is correct.
115 I was told that the standard sentence of eight years’ imprisonment was applicable to the offence of culpable driving and it was conceded that your offending fell above mid-range. Your counsel correctly observed standard sentences, were but one guidepost the court was to consider as part of the instinctive synthesis (see also s11A Sentencing Act 1991 relevant to fixing non-parole periods).
116 I was taken to previous sentences imposed in other standard offence cases and urged that there were some similarities in your case to that in DPP v Reid.[3] In my opinion there are also a number of dissimilarities. It is difficult comparing cases factually as factual circumstances vary enormously case to case as do matters in mitigation and personal to an offender.
[3][2019] VCC 1362.
117 Your counsel correctly stated denunciation and general deterrence were important sentencing considerations.
118 She also conceded that the offence of negligently causing a serious injury was a serious offence, conceding the injuries the victims sustained had been life-changing and would continue to impact upon their lives.
119 It is also conceded by her, again appropriately, the circumstances of the charge of conduct endangering life were also serious.
120 In court to support you during the plea hearing I was told was your mother, father, sister and family friends.
121 You were born in Australia and have one sister. Your father had substance abuse issues and was violent towards your mother, you witnessing domestic violence at home.
122 When you were 12 your mother relocated to Rosebud. In your later years your father returned to the family.
123 You attended Rosebud Primary School, then went to Rosebud Secondary School until Year 9. You described experiencing racism at high school. You struggled academically but had since completed Years 10 and 11 at Chisholm TAFE.
124 You had worked in several jobs since leaving school, including as a shop assistant, labourer and in landscaping. In the two years prior to your remand you were working as a pool tiler. You were then able to contribute to the family income.
125 You had alcohol issues from approximately the age of 15 and had recently completed a program in custody around your alcohol misuse.
126 Whilst you did have some drug use history, you said there was none in the two years leading up to these charges.
127 Turning to your mental health background, you have had extreme anxiety since childhood with periods of depression, and having previously having been diagnosed with PTSD, dissociative and obsessive compulsive traits and substance use disorder. You were prescribed antidepressants when a teenager. I was told that you remain depressed, anxious and were reporting most recently some symptoms of psychosis, although not defined.
128 I have read the recently filed report of Ms Cassar and I will mark that as an exhibit in a moment.
129 Cognitive testing showed that you did not have an intellectual disability however your intellect was in the low/average range.
130 On remand at Ravenhall Correctional Centre, you had undertaken a number of courses in workplace training and directed to your rehabilitation. You completed the “Alcohol and Me” course and had been working as a billet in the kitchen and laundry. You were hoping to study and obtain a university qualification.
131 In mitigation of your sentence, your counsel relied upon your plea of guilty and I have previously referred to that.
132 Remorse, she urged, was indicated by your pleas of guilty, your letter of apology, expressions of remorse to psychologists, and that you accepted responsibility at the collision scene when you said “it’s my fault, I’m going to jail”. You asked to be able to participate in a restorative justice pilot program run by RMIT.
133 A reference was before me from your sister, Anne Phongthai (Exhibit 2). Over the years you had developed into a considerate young man, learning to prioritise family and take responsibility to look after your wellbeing.
134 You took on the care of your parents financially at age 19 and developed a good relationship with your co-workers and employer. You had an ability to make friends easily, were empathetic, kind and a protective person. You were completely devastated and heartbroken by your offending, with deep regret and remorse for your friends and all the families affected by your offending.
135 In prison, you were making an effort to educate yourself. You had the continuing support of your family and friends. You had learnt the lesson a lifetime she said.
136 There was a reference from Major (Retired) Simon Knightley, who has known you and your family for the past 10 years since moving to Tootgarook. His family and yours were regularly involved in social activities. He described you as well-regarded by your employer.
137 You enjoyed skating and had competed successfully in competitions over the years.
138 In recent times you had mentored and encouraged young skaters through the local skateboarding park at Rosebud.
139 You were, he said, a caring young man.
140 It was conceded by your counsel that Major Knightley had not spoken to you personally to ascertain your remorse.
141 Regarding categorisation of the seriousness of your offending in relation to culpable driving, your counsel conceded, consistent with the written submissions (prepared by previous counsel), yours was higher than mid-level but not closer to high level and I discussed that with her.
142 She conceded, appropriately, that your offending relevant to the charges of negligently cause serious injury were serious examples of that offence and the injuries sustained by Gulliford and Moran were serious examples of such injuries. She is correct.
143 Your counsel conceded that the breach of the Community Correction Order by your offending was an aggravating feature. She is correct.
144 She also conceded you knew from the past you could be adversely affected by alcohol to the point of vomiting and ‘blacking’ out, nevertheless, you got into the car and drove hugely affected by alcohol. That was confirmed most recently in the report of Ms Cassar (page 4), referrable to you blacking out and being aware of it.
145 Your counsel conceded that whilst the three boys in the rear seat were not wearing seatbelts, it was your responsibility as the driver to ensure they wore seatbelts. She again is correct.
146 She urged, however, that there are a number of aggravating or elevating features which were absent in your offending compared to other cases. That you were licensed (I note however only for four and a half months). That you did not have relevant traffic prior criminal history, again I note you only had your licence for four and a half months.
147 She urged there were no drugs in your system. That is so, but there was, as she conceded, an excessive quantity of alcohol. You did not need drugs to cause this devastation.
148 She conceded your offending was above mid-level however due to the absence of elevating factors it as closer to mid-level, not high level. In my opinion, as I discussed with counsel, your offending is closer to the higher end – not the highest – but towards the higher end.
149 In custody, I was told that you have been receiving weekly visits from your mother and father and daily phone contact also and also some friends visit.
150 A letter was read by you in court in which you expressed remorse for your offending. I accept you are remorseful. It would be very troubling if you were not.
151 Addressing your mental health issues, your counsel was not relying on the principles 1-4 or 6 in R v Verdins & Ors[4]. And the transcript will reveal that discussion and that concession by her was appropriate.
[4](2007) 16 VR 269 (‘Verdins’).
152 She urged, however, principle 5 of Verdins was enlivened by the material before me, being the reports of Dr March (referable to paragraphs 51, 52 and 67) and the report of Ms Crole both tendered at your plea hearing.
153 Mr Rochford for the Crown during your plea said that the reports and material did not then enliven Verdins, principle 5.
154 Subsequent to the plea hearing I received further written submissions from your counsel and the earlier report from Maria Cassar which I have previously referred.
155 Ms Cassar’s report was forwarded to Mr Rochford for consideration, that is the prosecution's consideration, and the prosecution position regarding Verdins principle five. I was advised in correspondence from the prosecution as follows:
“On the basis of all the material that has been made available, including the psychological report of Maria Cassar dated 30 March 2017, the Crown concedes that Mr Phongthaihong has been diagnosed as suffering from PTSD since at least the time of Ms Cassar’s report. The Crown concedes that the evidence is sufficient to enliven Verdins limb 5, which is that a term of imprisonment will weigh more heavily on Mr Phongthaihong than it would on a person in normal health.”
156 I have read the subsequent written submissions of your counsel and read the report of Ms Cassar’s report and I therefore accept Verdins principle 5 is enlivened and such provides some mitigation of your sentence.
157 Turning to your age at sentence of 22, I discussed with your counsel that offences such as culpable driving and negligently causing serious injury and conduct endangering life often being committed by young offenders and I refer to DPP v Neethling[5] referred to within Harrison and Rigogiannis v The Queen[6]. Also in Azzopardi v The Queen[7] Court of Appeal Redlich JA stated:
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth.[8] But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished” (see para [44]).
[5](2009) 22 VR 466.
[6][2015] VSCA 349.
[7](2011) 35 VR 43.
[8]See also IE v The Queen (2008) 183 A Crim R 150 [16] (Latham J; Spigelman CJ and Hulme J agreeing).
158 You are young and rehabilitation is a relevant sentencing consideration mindful as I am, however, of the offending such as this is often committed by young drivers. The Court of Appeal in Harrison and Rigogiannis v The Queen[9] observed, referrable to the offence of negligently cause serious injury by driving in that case, that such offences were frequently committed by young offenders with otherwise good character, a limited history and good prospects for rehabilitation.
[9][2015] VSCA 349.
159 The court in referring to DPP v Neethling in respect of dangerous driving causing death and dangerous driving causing injury, “precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight”.
160
The court noted (paragraph 114) the objective seriousness of the offence is such that the importance of general deterrence and denunciation is heightened. Similar observations had been applied in relation to the offences of culpable driving involving young offenders. For example, see Callaway JA in
R v Sherpa.[10][10][2001] VSCA 145 [11].
161 Whilst rehabilitation is a consideration when sentencing given your age, I am also mindful of those authorities.
162 Your counsel urged you had excellent prospects for rehabilitation. I am not so sure. It is clear alcohol consumption has been a major issue for you for many years and, until you address that, I will remain concerned about your prospects of rehabilitation. On the material before me your prospects of rehabilitation are guarded. They will hopefully improve if you undergo appropriate treatment. In addition relevant to your rehabilitation prospects you do have a prior criminal history since 2014 and this offending also breached a Court Order. In sentencing you, however, I must seek to maximise your chances of rehabilitation as they may be.
163
Before me was a psychological report by Alice Crole, psychologist, dated
29 January 2020. Your counsel referred to Ms Crole having opined you had longstanding PTSD and your anxiety and depression was at a severe level. You met the criteria for attenuated psychosis syndrome, those symptoms worse at night, including sleep paralysis. Ms Crole also opined you had alcohol use disorder which impacted upon your function and memory loss. You met the DSM-V criteria for PTSD persistent depressive disorder with anxious distress, psychosis syndrome and alcohol abuse disorder.
164 Details were provided of your background and history, which I have read but will not repeat. For the past 10 years your father has been employed part-time and with intermittent periods of unemployment and as such, you have been helping to support your family financially.
165 At Lilydale Primary School you denied being bullied although recalled that your friends were marginalised and teased, that you were marginalised and teased. You were expelled from Rosebud Secondary College for cannabis possession. Most recently studying Year 11 at TAFE.
166 You describe alcohol use since the age of 15, heavy use from 16-19 years of age. You also recall smoking cannabis “a fair bit” from 15 years of age with daily use when you were at school. You also reported in the past problematic Xanax use and past experimental use of MDMA and other drugs.
167 You describe that from the age of 16 you reported paranoia which impacted your thoughts, decisions and behaviours (paragraph 41). In 2016 you were diagnosed with PTSD dissociative and obsessive compulsive traits and as I have said substance use disorder.
168 You have also been prescribed antidepressants when you were 16-17 years of age and you also reported non-prescribed use of Lexapro and Seroquel to help your drug withdrawal. You are not receiving medication in custody for your mental health.
169 Whilst you met the criteria for attenuated psychosis syndrome, it was below the threshold for full psychosis – for example, your symptoms were less severe and more transient with insight maintained.
170 In the opinion of Ms Crole, you continue to meet the criteria for substance use disorder.
171 You had expressed remorse to her for your offending and for the death of Tim and the impact on the others and their families.
172 You said you were not able to recall what had happened with nil recollection of what you had done.
173 In the opinion of the author, you were psychologically and cognitively immature for your age. Your excessive alcohol consumption was, she said, undoubtedly the primary cause of the collision.
174 In Ms Crole’s opinion, a lengthy custodial sentence would weigh more heavily upon you than someone without PTSD, depression and anxiety, and attenuated psychosis syndrome. I note application of Verdins principle 5.
175 There was also a report before me from Dr Evrim March, clinical neuropsychologist, dated 18 February 2020.
176 Dr March had at her disposal the report of Ms Crole. Her testing, however, was restricted to a neuropsychology assessment.
177 At the time of interview, you were depressed to a mild degree, resulting in increased episodes of sleep paralysis, withdrawal from social relations and activities and changes in appetite and sleep. You described your mood as flat. You denied psychiatric review in prison and were not taking any medication.
178 Specifically addressing your alcohol use, you reported you first started alcohol use when 16 and heavy usage from around 18. You said you had cut down your consumption by the age of 20, but could drink up to 18 to 19 beers on any given night (full or half strength). Some weekends you would drink less.
179 Assessment of your intellect revealed you did not have an intellectual disability. The author noted that her assessment followed an approximately 10-month period of abstinence from alcohol and drug use whilst on remand.
180 Dr March concluded you did not sustain a moderate or severe brain injury at the time of the collision. The effect of the collision on your current cognitive status was considered to be minimal.
181 Whilst you did not have an intellectual disability, you had attentional weaknesses and cognitive impulsivity. Those skills however did not, on their own, affect imprisonment and would be unlikely to deteriorate during imprisonment. Your cognitive status was likely to improve with abstinence. You were, however, at risk of deteriorating mental health during imprisonment with regard to mood, anxiety and psychotic symptoms, including increased depression.
182 In Dr March’s opinion, your sleep paralysis and the terror associated with it was of particular significance, placing you at risk of a psychotic disorder should it remain untreated. Dr March noted that you were not currently on any psychiatric medication. Dr March urged a medical and psychiatric review in prison to ascertain the type of treatment that could be implemented if required.
183 It was conceded by your counsel that a term of imprisonment was the only appropriate disposition and she is correct. It was further conceded some cumulation between the sentences was appropriate to reflect the separate victims. She is correct. Totality she urged was also a relevant sentencing consideration. That is so.
184
Regarding license cancellation, your counsel referred to the decision of
R v Lefebvre[11]. This has application regarding your rehabilitation prospects.
[11][2000] 31 VR 131.
185 Also before me was correspondence from you read into the transcript to all affected by this collision. You expressed sorrow for your foolish and stupid decisions. You would like to go back in time and change your actions. You wish you had never “drank and drove”. You felt deeply sorry for Tim’s family and friends who had to deal with the pain of his passing and were deeply sorry for the pain, suffering and physical damage to the others. You think about it constantly. You were aware their lives would never be the same.
186 You said you were not asking for forgiveness but it weighed on your conscience every day. You said it was hard not knowing or remembering what really happened.
187 Turning to the courses you have undertaken in custody, four certificates were provided. You completed a Certificate 2 in Cleaning, a Certificate 2 in Kitchen Operations, a Certificate 1 in General Education for Adults (one module, withdrawing from a second) and a Certificate of Achievement for the course “Alcohol and Me”.
188 Turning to the prosecution's sentencing submissions, Mr Rochford urged your rehabilitation prospects were guarded, ultimately dependent upon your attitude to alcohol consumption. You knew you had a problem with alcohol and comments to clinicians were that you had at times been drinking to excess. On this occasion, he submitted you chose to drive with a considerable amount of alcohol in your system. You were, he urged, well over .05 and you specifically had a .00 requirement relevant to your licence. Mr Rochford submitted your prospects for rehabilitation were not good unless you dealt with your alcohol problem. On this occasion, you were aware of the adverse effects that alcohol could have on you. You knew you were significantly impaired when you drove.
189 You had a prior history albeit not for driving offences and these offences breached a court order.
190 Mr Rochford urged some cumulation was appropriate in relation to this offending to reflect all the victims. I agree. I am conscious, however, of the principle of totality and aware that all the charges arise from the one incident. In that regard I was directed to DPP v Rakatau.[12]
[12][2019] VCC 1318.
191
Mr Rochford addressed his written submissions relevant to the standard sentencing scheme. I had discussed this previously with him albeit briefly, being unaware at the time that written submissions had also been prepared. But I have, since the plea hearing, had the opportunity to read those submissions. I note your counsel did not take issue with the contents of
Mr Rochford’s submissions in this regard. However, she urged that your offending was higher than mid-level, not high. Mr Rochford urged the latter.
192
Addressing the application of a standard sentencing regime in your case,
Mr Rochford submitted the standard sentence of eight years was one of the factors relevant to sentencing. That I should continue to take into account all factors relevant to determining the appropriate sentence in all of the circumstances.
193 The standard sentences, like the other factors in s5(2) of the Sentencing Act 1993 did not have primacy in the exercise of the discretion. Rather, was a guidepost for the court to consider.
194 The requirement to take into account current sentencing principles remains in the Sentencing Act 1991 and I am able to take into account non-standard sentencing cases insofar as they relate to sentencing principles, but not the actual sentences imposed.
195 Whilst I am required to refer to the standard sentence and explain how the sentence imposed relates to the standard sentence (greater than the standard sentence), I am not required to detail the various reasons why I have not imposed the standard sentence. I am required to say that the mitigating and objective factors discussed in the judgment warrant a sentence different to the standard sentence, taking into account all the facts and circumstances of the case.
196 In assessing the seriousness of your conduct I take into account all the circumstances including your driving prior to the collision specifically at 9:30pm at 120 kilometres per hour in a 60 kilometres per hour zone; at 11:40pm your speedo at 90 kilometres per hour in a 60 kilometres per hour zone, your speed at the time of the collision 1:15am – 117 kilometres per hour in a 50 kilometre per hour zone (when you impacted the roundabout). Burnouts in a carpark also indicative of your attitude to driving. Your bad driving occurred over a significant period of time prior to the collision with an awareness by you that you were “too fucked up for this” when you fell off your skateboard at approximately 11:00pm. You were also asked/advised to slow down at 11:40pm, “Alright, slow down no need to speed” and you were warned about the roundabout “Look out for Marshall Street roundabout”.
197 You consumed alcohol over a lengthy period of time, from 6:40pm, still drinking at 8:21pm then at 10:37pm approximately and you were aware of the adverse effects upon you of alcohol consumption.
198 You chose to drive in circumstances where you were required to be .00 alcohol and you had alcohol in your system being licenced for just four and a half months.
199 You had numerous opportunities to desist from driving that night but you did not.
200 You were also subject to the CCO at the time.
201 In my opinion your moral culpability is high.
202 The objective factors in my opinion place the gravity of your offending higher than mid-range to be clear, higher than the standard sentence for this offence.
203 As well as matters person to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
204 As an aside, and this is purely a comment of mine not relevant to sentence. It is frustrating to police and the courts that the message just does not seem to be getting out, in particular, to young drivers of the devastating effects of driving at speed and under the influence of alcohol.
205 Not only are the victim’s lives changed forever, often involving death, but young offenders such as yourselves find yourself spending some of the best years of their lives in jail. Not going to parties, not meeting partners, not going to the movies, not enjoying time with mates, not being able to access social media, not being able to keep up with technology changes, no mobile phones. Perhaps if students came to court and listened to these hearings and saw the grief caused, it may help avoid some cases like yours in the future.
206 There is a need for specific deterrence when sentencing you, although I note you do not have any prior driving history. You have, however, come to the attention of the courts before for criminal offending and I note this offending breached a previously imposed court order.
207 I must also consider the need to protect members of the community from you and bear in mind the likelihood of you re-offending. This concerns me, particularly if you revert to alcohol consumption upon release from prison.
208 I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
209 And when I sentence you, I must apply the principles of totality and proportionality.
210 Can you stand. I sentence you as follows:
211 On Charge 1, you are convicted and sentenced to 9 years’ imprisonment.
212 Charge 2, convicted and sentenced to 4 years and 6 months' imprisonment.
213 On Charge 3, convicted and sentenced to 4 years’ imprisonment.
214 On Charge 4, convicted and sentenced to 18 months' imprisonment.
215 I direct that Charge 1 is the base sentence.
216 I direct that 20 months of Charge 2 be served cumulatively upon Charge 1.
217 I direct that 18 months of Charge 3 be served cumulatively upon Charge 1.
218 I direct that 7 months of Charge 4 be served cumulatively upon Charge 1.
219 That results in a total effective sentence of 12 years and 9 months' imprisonment and I direct that you serve a period of 8 years 9 months before you are eligible for parole.
220 Pursuant to s6AAA of the Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 17 years with a non-parole period of 14 years.
221 Pursuant to s18(4) of the Sentencing Act 1991, I declare you have spent 340, I want that checked, days in custody by way of pre-sentence detention up to and including yesterday 17 March 2020 and I direct that that be entered into the records of the court, when I check with counsel in a moment.
222 Turning to licence cancellation and disqualification pursuant to s89 of the Sentencing Act 1991, I order any driver licenses that you have are to be cancelled and you not be permitted to be relicensed for a period of 12 years from today’s date.
223 I have already made the declaration pursuant to s89C Sentencing Act 1991.
224 Any other orders?
225 MS GENEVA: No, Your Honour.
226 HER HONOUR: PSD correct?
227 MS GENEVA: Correct.
228 HER HONOUR: Yes, any help with the numbers? Do you need me to read out - I am not asking if you agree with them, I am just asking, do you want me to repeat them?
229 MS DUNBAR: No, Your Honour.
230 HER HONOUR: You have got the sentence. Any further matters? No?
231 MS GENEVA: No.
232 MS DUNBAR: No, Your Honour.
233 HER HONOUR: Thank you. You will need to leave. Thank you very much.
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