Director of Public Prosecutions v Tan
[2023] VCC 899
•31 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01157
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JIA TAN |
---
JUDGE: | HER HONOUR JUDGE CHAMBERS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 May 2023; 31 May 2023 |
DATE OF SENTENCE: | 31 May 2023 |
CASE MAY BE CITED AS: | DPP v Tan |
MEDIUM NEUTRAL CITATION: | [2023] VCC 899 |
REASONS FOR SENTENCE
---
Subject:Criminal law – sentence
Catchwords: Dangerous driving causing death – plea of guilty – substantial circumstances that are 'exceptional and rare' for the purpose of s5(2H)(e) of the Sentencing Act 1991 – no prior criminal history
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:DPP v Weybury [2018] VSCA 120; Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors [2007] VSCA 102; Farmer v The Queen [2020] VSCA 140; Bell v The Queen [2018] VSCA 281; DPP v Porritt [2022] VCC 1492; DPP v Nasser [2020] VCC 1660.
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Piggott | Office of Public Prosecutions Victoria |
For the Accused | Mr R. van de Wiel KC Ms V. Drago | Anthony Isaacs Criminal Lawyers |
HER HONOUR:
1Jia Tan, you have pleaded guilty to one charge of dangerous driving causing death contrary to s319(1) of the Crimes Act 1958 the maximum penalty for which is 10 years' imprisonment.
2As the offence of dangerous driving causing death is a category 2 offence, s5(2H) of the Sentencing Act 1991 applies and requires the court to impose a term of imprisonment unless one of the exceptions set out in sub-ss(a)-(e) of s5(2H) apply.
3The charges arise from the events of 19 June 2021 when the car you were driving struck 81-year-old Rosemary Kennedy as you turned left from Darling Street into Dandenong Road in Carnegie. In doing so, you failed to keep a proper look out for Mrs Kennedy, who was using the pedestrian crossing to walk across Dandenong Road. Sadly, Mrs Kennedy died as a result of the injuries she suffered from the collision. By driving in a manner that was dangerous to the public, in all the circumstances of the case, you caused her death.
4You were 54 years old at the time of the collision and had no prior criminal history. You have held a driver's licence since 1990 and have no history of driving offences, traffic violations or infringements.
Circumstances of offending
5The facts which give rise to the charges are set out in the prosecution opening, which is Exhibit A.[1] Other than some minor matters to which I will refer, the prosecution opening is the agreed basis upon which you are to be sentenced.
[1] Exhibit A – Summary of Prosecution Opening for Plea dated 13 April 2023.
6On Saturday 19 June 2021, you left your home in Malvern East at around 7.45 pm. You were driving a 2018 Toyota C-HR, which is a small two-door SUV wagon.
7You travelled south along Darling Road on your way to Springvale to visit your elderly mother. You stopped at the intersection of Dandenong Road, facing a red traffic light, in the left-hand turning lane on Darling Road. Your vehicle was the only one stopped in the left-hand turning lane at the lights.
8Mrs Kennedy was standing at the north-east intersection of Dandenong Road, waiting to cross at the lights. When the pedestrian traffic signal changed to green, she began to cross the road using the designated pedestrian lane on Dandenong Road.
9At the same time the pedestrian traffic signal changed to green, the traffic signal that governed your vehicle also turned to green. You then proceeded to turn onto Dandenong Road. A witness who was stationary at the lights in the
east-bound lane of Dandenong Road says they saw your Toyota turn left into Dandenong Road 'at a very low speed'.10Investigators were subsequently unable to determine the actual or estimated speed of your car.
11As your vehicle turned into Dandenong Road, you struck Mrs Kennedy after she had just begun to cross the road. Another witness who was standing on the south-east corner of the intersection described seeing your car hit a person and then 'push them forwards'.
12At the hearing of your plea, I viewed the CCTV footage of the incident taken from a hotel situated on the south-west corner of the intersection.
13At the time of the collision, the road was dry, the weather was clear, and it was not raining. Although it was night-time, the intersection is well lit.
14Tragically, Mrs Kennedy suffered fatal injuries as a result of the collision and was unable to be resuscitated after paramedics arrived at the scene.
15After hitting Mrs Kennedy, you drove another 50 metres or so along Dandenong Road before stopping in the left lane. You got out of your vehicle and called your partner, Winston Jiang.
16Another couple who were driving west-bound on Dandenong Road parked their car nearby. One of the occupants of the car, Ms Reinshagen, saw Mrs Kennedy lying in the middle of the road and walked up the road to where your Toyota was parked. She observed what appeared to be condensation or 'frost' marks on the bonnet of your car, with visible 'wipe' marks across it. You were standing at the front passenger side of the Toyota. Ms Reinshagen asked what happened, to which you replied, 'I don't know'. She asked if you hit the victim, and you replied, 'I don't know, maybe'. You told her that you did not speak English and were waiting for your partner.
17Ms Reinshagen saw you run west along Dandenong Road and followed you, saying, 'Stop, you need to come back'. You replied, 'My husband is coming'. A black van arrived, and Ms Reinshagen saw you speaking to the male driver, who was Mr Jiang. You then closed the van door and walked back across the road with Ms Reinshagen. She describes you as emotional at that time and says you were asking if the victim was going to be 'okay'.
18The police arrived a short time later. Assisted by an interpreter, you admitted driving the Toyota and made a number of other statements to the police, including:
• replying, 'No, I don't know', when asked if you hit the lady;
• saying that you were turning and did not see anybody;
• at one point saying you 'hit her' but then stating you 'dunno';
•that there was a car in front of you, and that the car just took off, so you did not know if she hit your car or the car in front of you; and
•that all you saw was a 'head just go – a hat just went over' and that is why you stopped.
19You voluntarily participated in a preliminary breath test and a blood test. Both tests were negative for the presence of either alcohol or drugs.
20When interviewed, you told police that you were familiar with the intersection, having driven through it more than 10 times a week for many years. You said you had just finished work at a restaurant in Waverley Road where you also live. You confirmed that you were not using your mobile phone while you were driving.
21As to the circumstances of the collision, you told police that you were waiting at the traffic lights, and there were two cars in front of you. You said that when the other cars were turning, you followed them.
22You told police you did not see the green pedestrian light and did not pay attention to it. You said you only saw the green light and that you did not see the pedestrian.
23You said that you looked to your left but did not see anybody.
24You told police it was drizzling and dark and that your windscreen wipers were on. You said you were not speeding.
25When the police told you that your vehicle collided with the pedestrian, you replied, 'I don't know whether I hit this … person or not. I really don't know'.
26You said you stopped your car because you saw a 'flying hat somewhere', and heard some noise, and stopped to check. You said you asked people to call an ambulance and the police when you saw someone lying on the ground.
27A fair reading of the totality of your record of interview supports a conclusion that, although you looked left, you did not see Mrs Kennedy crossing the intersection before turning, that you had seen other cars turning into the intersection and that you followed those cars. You described them as being 'in front of you'. You were not positively aware that you had hit someone when you stopped your car, but were uncertain about what had occurred.
28As stated, you told police you were not speeding. This is consistent with the evidence of another witness who described seeing your car turn at a 'very low speed'. Investigators were ultimately unable to determine the speed of your vehicle at the time of the collision.
29Subsequent investigations found no visible damage to your car, and the airbags had not deployed. The tyres had sufficient tread depth. The condition of the road was also good, and there was nothing to obstruct your view of the pedestrian crossing at that location.
Objective gravity and moral culpability
30By your plea, you accept that the manner of your driving was dangerous to the public. The consequences of your actions involve tragedy and loss for Mrs Kennedy's family. Knowing that you are responsible for the death of another person is a heavy burden that you must now carry.
31In assessing the objective gravity of your offending, it is necessary to consider the degree of risk of harm being caused by your manner of driving. This assessment is made having regard to all the circumstances of your driving, as offending of this nature encompasses a wide range of factual circumstances and criminal culpability.
32Your counsel submits that your offending falls to be assessed 'at the lowest end for offending of this kind', and that your moral culpability should be regarded as low. The prosecution, in its written submissions, contend that your offending does not fall at the lowest end of the spectrum of seriousness for this offence.
33In my view, the following considerations are relevant to my assessment of the objective gravity of your offending:
(a) you were an experienced road user, who was familiar with the intersection;
(b) you had stopped at the intersection and waited until the traffic lights turned green before proceeding to turn left into Dandenong Road;
(c) you were travelling at 'a very slow speed' when you turned into the intersection;
(d) the incident occurred over a very short distance and within moments;
(e) there were no other factors that contributed to the offending such as speed, intoxication, erratic or competitive driving or inattention through the use of a mobile phone; and
(f) this was not a case of callous disregard but rather a matter of momentary inattention that had disastrous consequences.
34In my view, the following considerations are relevant to my assessment of the objective gravity of your offending:
35It is unclear why you did not see Mrs Kennedy. It was night-time although the intersection was well lit. There was nothing obstructing your vision. You told police you looked left but did not see the green pedestrian light. The prosecution submission that you failed to maintain a proper lookout for pedestrians and the traffic signal indicating the pedestrian crossing at the time you turned, must be accepted.
36A number of other matters were raised on your plea hearing relevant to my assessment of the gravity of your offending.
37In its written submissions, the prosecution argued that you failed to stop to render assistance to Mrs Kennedy but rather ran away from the scene on foot. The prosecution argues this is an aggravating feature of your offending on the night. Ms Piggott did not press that submission at the plea hearing.
38The prosecution bears the onus of establishing any aggravating feature of an offence beyond reasonable doubt. In this case, I am not satisfied the prosecution has met this standard in relation to your conduct following the collision.
39First, you are not charged, and are not to be sentenced, with the offence of failing to stop and/or render assistance following a collision.
40Second, there is the evidence of your discussion with a witness and police following the collision which indicates you were uncertain as to whether you had hit a person.
41Thirdly, and significantly, you speak little or no English and had immediately called your partner, Mr Jiang, to assist you. You told people present that you could not speak English. When Mr Jiang arrived, you returned with Ms Reinshagen, who describes you as emotional at the time and states you were asking after the victim.
42In these circumstances, I am not satisfied that your offending was aggravated by a failure to stop and render assistance to Mrs Kennedy immediately following the collision.
43The other issue is whether you were 'evasive' with police when you were interviewed, as argued in the prosecution's written submission. This submission was made on the basis of your assertion that other cars were turning in front of you that drove through the intersection, and you then followed.
44The CCTV makes it clear that no cars were positioned in front of you at the intersection. However, the footage does show other vehicles turning into the intersection before you turned left, with those cars having turned right into Dandenong Road from the north-east intersection of Koornang Road. In the circumstances, and noting your language difficulties, I do not consider you were misleading or evasive in your interview with police when you indicated that other cars turned in front of you and you followed these when you turned left into the intersection.
45Finally, whilst it is not disputed by your counsel that it was dry at the time of the collision, I accept that there was some condensation or rain on your windscreen, as apparent from photos taken of your vehicle that night. These images provide support for your statement to police that your windscreen wipers were activated at the time of the collision even though it was not raining at the time.
46I find that your offending can properly be characterised as one of momentary inattention and a lack of due care at the time you turned the intersection. There is, however, an almost total absence of aggravating features. Although the authorities make it clear that it is not always helpful to categorise cases as falling within a particular 'range',[2] I consider this is a case where the objective gravity of your offending and your moral culpability are properly assessed as being at the lower end of the range for offences of this kind.
[2] See DPP v Weybury [2018] VSCA 120; 84 MVR 153, [34].
47In reaching this conclusion, I want to make it clear to the family of Mrs Kennedy that this assessment is not a reflection of the value of her life or the immeasurable impact her death has had on her family and loved ones. It is an assessment relevant to the criminal culpability of Ms Tan only.
48A number of victim impact statements provided by Mrs Kennedy's adult children were read to the court at the plea hearing. It is readily apparent from these statements that Mrs Kennedy was a much-loved mother and grandmother who will be greatly missed. Her sudden and untimely death has left her family bereft.
49Her son, Daryl Kennedy, describes his mother as a physically fit 81-year-old who lived her life to the full, enjoying travel, ballroom dancing, 10-pin bowling and the occasional flutter on the horses. Mrs Kennedy's first great-grandchild was born three months following her death, a source of much sadness for the family. Anniversaries, birthdays and special family events will forever be a reminder of her absence. Each of her children cherished daily contact with their mother, and they all describe a sense of loneliness and profound loss at her passing.
50I have taken the impact of Mrs Kennedy's death on her family into account in sentencing you.
Remorse
51I also accept that your plea is accompanied by significant and genuine remorse for your conduct.
52Your remorse is demonstrated by your early indication to plead guilty to the charge of dangerous driving causing death. Moreover, your counsel conveyed your deep remorse for your conduct, describing you as 'crippled and overwhelmed with profound guilt and remorse' for your offending and the resulting death of Mrs Kennedy. That this is so is confirmed by psychological material tendered on your plea.
53You were assessed for the purposes of the plea by forensic psychologist Ms Pamela Matthews on 24 April 2023. In her report, Ms Matthews concludes that you are 'deeply and genuinely distressed by [Mrs Kennedy's] death and the impact upon [her] family', stating:[3]
… despite considerable pharmacological and psychological treatment since the accident, Ms Tan remains burdened by guilt in causing the deceased's death, 'haunted', makes temple offerings to care for the deceased in the afterlife and is quite psychologically unwell, suffering moderate to severe depression and severe symptoms of post-traumatic stress disorder.
[3] Exhibit 4 – psychological report of Pamela Matthews dated 24 April 2023.
54Your treating psychologist, Ms Khai Lan Wong, in her report dated 8 May 2023,[4] outlines having treated you since July 2021, having been referred for counselling by your treating doctor, Dr Chui. Ms Wong reports that you are acutely stressed due to 'feelings of guilt' following the collision and also records your attendance at the temple making offerings in response to the guilt and shame you have experienced following the collision.
[4] Exhibit 1 – psychological report of Khai Wong, dated 8 May 2023
55In my view, your remorse is genuine. It is clear to me that you will carry the heavy burden of living with the knowledge that your conduct caused the death of another for a long time.
Personal circumstances
56I turn now to your personal background.
57You were born in Guangxi, a regional province of China, in 1966. You are the middle child of seven siblings. You grew up in poverty and report having little to eat as a child. You attended school to the age of 16 but were encouraged to leave school early to assist the family financially by finding work.
58You met your husband, who was nine years older than you, when you were 18. You married in 1987 and migrated to Australia together. Your husband worked for Toyota in North Melbourne, then in Dandenong, and the two of you lived in Flemington. There were no children born of the relationship due to medical complications.
59You sponsored your parents to emigrate to Australia, and they arrived in 1991. Your father passed away seven years ago.
60You have a consistent history of hard work in Australia. For the first 20 years, you were employed as a sewing machinist, working for a number of different manufacturers. However, in 2007, your position was made redundant. After this, your limited English made it difficult for you to find work until you found a job working as a kitchen hand, washing dishes on night shift. You worked at this restaurant for several years.
61You then operated a fast-food business from 2019. However, this ultimately failed during the pandemic. In May 2021, you and a business partner purchased a restaurant from which you ran a fast-food business. You live alone in a flat above the restaurant.
62You divorced your husband in 1997 and then met Mr Jiang, who you have known for 10 years.
63You mother is now aged 86 and requires day-to-day support, and you are her primary caregiver. Your mother lives alone in Springvale and, as on the night in question, you visit her regularly after finishing work and assist with her medication, shopping and personal care.
64You also suffer from medical issues, including severe diabetes and hypertension, for which you are prescribed medication.[5]
[5] Exhibit 2 – report to Dr Danny Chiu, Kingsway Medical Clinic, dated 24 June 2021.
65You are a devout Buddhist, and your attendance at your local temple has increased since this incident.
66As stated, you have no prior criminal history, no history of traffic violations or infringements and you have no subsequent or pending matters.
Matters relevant in mitigation of sentence
67Having considered the objective gravity of your offending, I turn now to consider the matters that are relied upon in mitigation of your sentence. These were set out in the detailed and helpful submissions of your counsel and were expanded upon by Mr van de Wiel at the hearing of your plea.
68First and foremost is your guilty plea. You offered to plead guilty to the charge of dangerous driving causing death without necessitating a committal hearing in June 2022. The matter did not resolve at that time. The prosecution ultimately accepted that plea offer in February 2023. It is accepted that you are entitled to the benefit of a guilty plea entered at the earliest opportunity. By pleading guilty at this early stage, you accepted responsibility for your wrongdoing. As I have stated, your plea is also accompanied by significant remorse.
69Your plea also saves the court and the community the time and resources associated with a trial. It also saves Mrs Kennedy's family the uncertainty and distress often associated by a trial. The utility of your guilty plea is heightened at a time when delays in the criminal justice system continue in the wake of the pandemic.[6] You are entitled to, and will receive, a significant sentencing discount in light of your early guilty plea and associated remorse.
[6]Worboyes v The Queen [2021] VSCA 169, [35], [38]-[39]
70Secondly, at the age of 56, you are a person of otherwise good character, having spent the majority of your life as a law-abiding, hard-working member of the community, committed to the care of your elderly mother. This must be taken into account in mitigation of your sentence.
71A number of character references were tendered on your plea.[7] These references came from friends who have known you a long time and the president of the Chin Lien Chinese Association of Victoria. The authors of these references speak of you as an honest, loyal and helpful person. They say your kindness is reflected in your voluntary work for the community and in your care of your mother. They each speak of your remorse for the offending, which they describe has caused you demonstrable distress and anxiety, leading you to become withdrawn.
[7] Exhibit 6 – Bundle of Character References
72I make substantial allowance for your prior good character and your unblemished driving record in the sentence I impose. You are entitled to have these matters given weight in mitigation of sentence.
73The delay associated with this matter also operates to moderate your sentence. The charge arises from your offending on 19 June 2021, yet you were not charged until April 2022, some 10 months later. You bear no responsibility for this delay. You then offered to plead guilty to the charge for which you are to be sentenced at a very early stage, but that plea offer was not accepted until February 2023, some eight months later.
74You now fall to be sentenced close to two years after the collision. This delay has been occasioned through no fault of yours. I accept that having this serious charge hanging over your head for a period of two years, not knowing the outcome, has been a source of anxiety and stress for you. This is a form of punishment in itself. I take this into account in moderating the sentence to be imposed.
75Moreover, in the two years since this offending, you have sold your car and ceased to drive. You have engaged in psychological treatment for depression and PTSD arising from these events. Given the total absence of any prior criminal history, your otherwise unblemished driving record and history of hard work, I consider you have excellent prospects of rehabilitation and pose no risk to the community through your manner of driving or otherwise.
76In my view, the sentencing considerations of specific deterrence and community protection have little, if any, relevance to the sentence I am now to impose.
77Finally, it was also submitted that the burden of any sentence of imprisonment would be significantly onerous for you for a multitude of reasons.
78First, that any experience of custody would be particularly isolating for you, as a first-time offender with limited ability to communicate with others in English. Moreover, that you speak a particular dialect that does not readily translate into either Mandarin or Cantonese. I accept that any experience of custody would be more difficult for you as a result.
79Secondly, and significantly, that as the primary caregiver for your elderly mother, any period in custody would cause additional distress caused by your concern for her health and well-being in your absence. A medical report, tendered on your plea, lists your mother's multiple medical conditions including hypertension, diastolic dysfunction, hyperglycaemia, gastro-oesophageal reflux disease, diabetes, retinopathy, anorectal cancer and declining renal function.[8] Although there are other siblings in your family, as a daughter with no dependents, it has been your responsibility in the family to care for your elderly mother by regularly visiting her, bathing her and purchasing food for her amongst other things. You were driving to visit your mother on the night of the collision. Whilst it is conceded that the hardship likely to be experienced by your mother if you were imprisoned does not meet the threshold of 'exceptional hardship', nonetheless it will be significant, and this too would be a cause of additional stress, adding to the burden of imprisonment.
[8] Exhibit 3 – Health Assessment Summary of Ms Huang Pei Cheng
80Thirdly, that your experience of custody would also be impacted by your own physical ailments, notably type-2 diabetes and hypertension requiring prescription medication and monitoring.
81Fourthly, it is inevitable that if you are imprisoned, your fast-food business would end, leaving you with no means of income upon your release. Three casual staff employed in this business, each in their 50s, would be unemployed. This too would be a source of significant concern for you, adding to the burden of your imprisonment.
82The last factor impacting on your likely experience of custody is your mental health.
83When you were assessed by Ms Matthews, she reports you presented as a 'slumped, small woman with a low mood', and that you now isolate yourself at home. You described trouble sleeping, feelings of sadness and anxiety, with palpitations, shaking and vivid dreams, coupled with disturbing daily memories of the accident. You told Ms Matthews that: [9]
I feel guilty, I feel like life is meaningless, I feel unhappy every day, I feel sad; I go to the temple and pray for her.
[9] Exhibit 4 – Psychological Report of Ms Pamela Matthews, dated 24 April 2023, p6 at [10]
84Ms Matthews assessed you as having a low average range of cognitive ability. Having taken your personal history, she concludes that your life has been one of 'drudgery, duty and before the accident, occasional small enjoyments'. Ms Matthews assesses you are genuinely distressed by the collision and the impact on the victim's family, which she says preoccupies your daily thoughts.
85Ms Matthews diagnoses you with a major depressive disorder and a
post-traumatic stress disorder. She states your symptoms present as severe.86Ms Matthews does not draw any connection between these mental health disorders and your offending. It is accepted that limbs 1-4 of the authority of Verdins have no application in reducing your moral culpability for your offending.
87However, Ms Matthews concludes you are
notquite 'psychologically unwell' and expresses the opinion that time in custody, given your poor mental health, would be 'psychologically burdensome'. She states:[10]Her mental health is unlikely to improve over time in custody, even with treatment; rather, prognostically, her mental state will likely worsen, given the burden of shame and guilt. Despite pharmacological and psychological treatment, the writer notes minimal improvement in Ms Tan's mental state over the past 18 months. Hence, treatment in custody is unlikely to ameliorate her symptom presentation. If Ms Tan is imprisoned, she will also experience worry and guilt about her elderly mother's care.
[10] Exhibit 4 – Psychological Report of Ms Pamela Matthews, dated 24 April 2023, at p8-9.
88Based on Ms Matthews' expert psychological opinion, I am satisfied that limbs 5 and 6 of the authority of Verdins are enlivened and operate to moderate the sentence to be imposed. I am satisfied that a sentence of imprisonment would weigh far more heavily upon you for the reasons given by Ms Matthews than a person in normal health. I also accept her prognosis that your mental health state would likely worsen. I accept that even with treatment in custody, it is unlikely the symptoms associated with your mental health conditions would be ameliorated.
Application of s5(2H) Sentencing Act 1991
89At the plea hearing, it was submitted by your counsel that s5(2H)(e) of the Sentencing Act 1991 is applicable in your case due to a combination of powerful mitigating factors, and that a community correction order would adequately reflect the relevant sentencing considerations, including general deterrence and just punishment.
90Section 5(2H)(e) provides an exception to the provisions mandating a term of imprisonment for this offence where there are substantial and compelling reasons that are exceptional and rare and that justify not making an order which would see you imprisoned. The prosecution argues the exception is not enlivened and that accordingly the only available sentence is one of immediate imprisonment with a non-parole period fixed.
91In determining whether there are substantial and compelling circumstances, s 5(2HC) of the Sentencing Act 1991 requires that the court:
(a)must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in s5(1); and
(b)must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c)must not have regard to:
(i) the offender's previous good character;
(ii) an early guilty plea;
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
92In determining whether there are substantial and compelling circumstances, s 5(2I) requires the court to have regard to:
(a)Parliament's intention that in sentencing an offender for a category 2 offence, an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with s 44) should ordinarily be made; and
(b)whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
93Consistent with the language of s 5(2H)(e), no party bears the onus of establishing that this exemption applies, and I have acted on that basis.
94In the case of Farmer v The Queen,[11] the Court of Appeal described this test as a 'stringent' test that poses 'a very high hurdle that will not often be surmounted'. However, the Court of Appeal also confirmed that a combination or cumulation of factors may satisfy the test, stating:[12]
“However, although each of the aspects on which the applicant relies fit within a category or type that is common, in our view, the cumulation of detail was exceptional and compelled the conclusion that the mandatory detention provision should not be applied.”
[11]Farmer v The Queen [2020] VSCA 140.
[12]Farmer v The Queen [2020] VSCA 140, [55].
95Your counsel relies upon a combination of factors in submitting the exception is enlivened and primarily relies upon the fact that this was a case where the objective gravity of your offending and your moral culpability are low, to establish the exemption under s5(2H)(e).
96In expanding upon these submissions on your behalf, counsel relied upon the Court of Appeal decision in the case of Bell v The Queen,[13] the facts of which the prosecution accept are comparable to those that present here. In the case of Bell, the offender made a right-hand turn through a green light at a controlled intersection and failed to see a pedestrian crossing the intersection on a green pedestrian signal, giving rise to the charge of dangerous driving causing death.
[13]Bell v The Queen [2018] VSCA 281.
97On appeal, the court concluded the offender's culpability and the objective gravity of the offending were 'lower level' and that the offending was properly characterised as a 'true case of momentary inattention'.[14] The appeal was allowed in that case, and a community correction order of two years was imposed by the Court of Appeal on resentence. In such a case, the Court of Appeal held, there was 'no imperative to impose a custodial sentence'.[15]
[14]Bell v The Queen [2018] VSCA 281, [54].
[15]Bell v The Queen [2018] VSCA 281, [52].
98I accept the submission that there are strong parallels between Bell and the fact scenario in this case. Here, as in that case, I have concluded that your offending was characterised by momentary inattention and that your culpability and the objective gravity of the offending fall within the lower range of offending of this kind.
99Added to that, in this case, as in Bell, there is a 'constellation of powerful mitigating factors' which must be accepted. Putting aside the factors to which I must not have regard under s5(2HC), these factors include the following. The punitive aspect of the delay associated with these proceedings. The value of your plea in the context of the need for courts to respond to delays in the criminal justice system that have been occasioned by the COVID-19 pandemic. Significantly, the compounding effect of the various factors that would add to the burden of any imprisonment, including your diagnosed major depressive disorder and PTSD, described by Ms Matthews as severe, coupled with anxiety and concern for your elderly mother, for whom you have been the principal carer, and the potential loss of your business.
100Whilst these factors, when viewed in isolation, would each fit within a category that is common or not unusual, when considered in combination, I conclude that these factors together render this case exceptional and rare and make good the proposition that there are substantial and compelling reasons that justify not imposing a sentence of imprisonment. However, the most important factor is my conclusion that these factors add weight to the combined factors in circumstances where your moral culpability for this offending was low.
101The level of moral culpability will always play a fundamental role in the instinctive synthesis of an appropriate sentence where a death is caused by dangerous driving. In this case, your moral culpability is informed by your previously unblemished driving record and the fact that this collision was caused through momentary inattention, with no other aggravating features.
102I have also had regard to other cases provided by the parties as providing some guidance as to current sentencing practices. Whilst these cases are not determinative and provide guidance only, I have had regard to these, and in particular to the case of Bell and the decisions of this court in Porritt[16] and Nasser.[17]
[16]DPP v Porritt [2022] VCC 1492.
[17]DPP v Nasser [2020] VCC 1660.
103As always, each case must turn on its own facts and circumstances. The cases to which I was referred are of some limited guidance in discerning a sentencing range which acts to promote consistency in sentencing whilst not governing or controlling the sentence to be imposed.
Other sentencing considerations
104I turn now to other relevant sentencing considerations.
105I have had regard to the purposes of imposing sentence as set out in s5 of the Sentencing Act 1991. In the circumstances of this case, the prosecution's submission that general deterrence, just punishment and denunciation are significant sentencing considerations must be accepted. In sentencing you, I must aim to discourage other road users from such conduct, given the devastating consequences that can flow from even momentary inattention on the road.
106I am also required to balance the interest of the community in denouncing your conduct whilst ensuring where possible that you are rehabilitated and able to be reintegrated into society. This is particularly the case with first-time offenders.
107You have been assessed for a community correction order and found suitable for such an order. Community Corrections have assessed you as a low risk of future offending. You have consented to a community correction order being made.
108I have also had regard to s5(4C) of the Act, noting that the exception in s 5(2H)(e) applies, and that the court must not impose a sentence of imprisonment if the court considers that the purpose or purposes of imprisonment can be achieved by a community correction order with appropriate conditions. I am satisfied that is the case here.
109I wish to make it clear to the victim's family before announcing my sentence that this sentence does not and could never reflect the value of Mrs Kennedy's life. My task is to sentence according to law.
Sentence
110Having regard to the various factors to which I have referred, whilst guided by the maximum penalty for the offence of dangerous driving causing death, I sentence you as follows. Ms Tan, could you please stand.
111On Charge 1, dangerous driving causing death, you are convicted and sentenced to a community correction order of two years, six months' duration.
112You have not been assessed as requiring supervision under this order. I accept that you pose a low risk of future offending, and do not intend to impose supervision as a condition of the order.
113It is a condition of the community correction order that you complete 150 hours of unpaid community work and undergo ongoing treatment for your diagnosed mental health disorders.
114The offence of dangerous driving causing death is a 'serious motor vehicle offence' pursuant to s87P of the Sentencing Act 1991. I am required to cancel your licence and disqualify you from driving and make this order for a period of two years, commencing from today's date. You must not drive.
115In addition to the conditions I have imposed, there are standard conditions. First and foremost, you must not commit any other offences punishable by imprisonment during the two-and-a-half-year order. You must report within two working days to the nearest community correction office. You are required to advise your supervising corrections office of any change in you residential or work address within two clear working days. It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your corrections officer. You are not able to leave the State of Victoria without the prior permission of your supervising corrections office.
116You should be aware that the community correction order can be breached if you do not comply with the conditions of the order or if you offend whilst it is in place. If you do, you will return before me for breaching the order. I may have to resentence you on this charge, and I may have to sentence you for breaching the order.
117Finally, s6AAA of the Sentencing Act 1991 requires me to state the sentence that I would have imposed had you not pleaded guilty. If not for your plea of guilty, the sentence I would otherwise have imposed is a sentence of 14 months' imprisonment with a non-parole period of eight months.
‑ ‑ ‑
0
7
0