Director of Public Prosecutions v Teo
[2023] VCC 304
•27 February 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01374
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FIAME TEO |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 January 2023 | |
DATE OF SENTENCE: | 27 February 2023 | |
CASE MAY BE CITED AS: | DPP v Teo | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 304 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCING
Catchwords: Plea of guilty - dangerous driving causing serious injury - failing to stop and render assistance after a motor vehicle accident – sentence indication – Worboyes – delay – hardship – prospects of deportation.
Legislation Cited: ss 5, 6AAA Sentencing Act 1991 (Vic).
Cases Cited:Boulton v The Queen [2014] VSCA 342; DPP v Neethling [2009] VSCA116; Markovic v The Queen (2010) VR 589; R v Cockerell [2001] VSCA 239; R v Tiburcy [2006] VSCA 244; Wassef v The Queen [2011] VSCA 30; Worboyes v The Queen [2021] VSCA 169.
Sentence: Three year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | J. Fitzgerald for plea A. Lee for sentence | The Office of Public Prosecutions |
| For the Accused | L. Richter | Stary Norton Halphen |
HER HONOUR:
1Fiame Teo you have pleaded guilty to the following offences: dangerous driving causing serious injury and failing to stop and render assistance after a motor vehicle accident.
Summary of offending
2The circumstances of your offending are outlined in the agreed summary of prosecution opening dated 12 January 2023 and this is the basis upon which I sentence you.
3Your offending arises from events that took place on 1 December 2018.
4On this day, at approximately 5.50 pm, the victim, John Vennell, was driving his VW Golf motor vehicle in a northerly direction on Frankston-Dandenong Road, Carrum Downs accompanied by his cousin Bradley Connell, who was in the front passenger seat.
5You were driving a Ford Explorer 4WD/SUV motor vehicle at this time, on the same roadway and heading in the same direction. Your wife was in the car and your child.
6
In the lead up to the intersection of Frankston-Dandenong Road with
Glasscocks Road, you became upset with the manner that Mr Vennell was driving and at some point you were observed by Mr Connell to be angry, mouthing words in his direction.
7Further, at some point in the lead up to this intersection, your cars became stationary in separate lanes at a traffic control signal. Mr Connell observed you approaching them on foot from the rear. At or about this time, the signal changed to green for north bound traffic and the VW Golf moved off.
8Mr Vennell proceeded up Frankston-Dandenong Road and ultimately turned right into Glasscocks Road. After doing so, he stopped his car on the left-hand side of the road, intending to seek an explanation from you as to your driving and your earlier demeanour. By this time, you had entered Glasscocks Road.
9Having stopped his car, Mr Vennell and Mr Connell got out of the car, leaving their respective doors open. A short time later, Mr Vennell was struck by your car. The force of the impact caused him to be thrown in an easterly direction. He came to rest on the roadway, approximately three metres from the front of the VW Golf. A short time later, a passing motorist, stopped to provide assistance. You did not stop after hitting Mr Vennell.
10Mr Vennell was subsequently attended to by a paramedic at the scene and taken by ambulance to the Alfred Hospital. He sustained a range of injuries, as outlined in the prosecution opening, including two fractured legs, a fractured skull and brain injury.
11There was a subsequent investigation into the matter, as outlined in the prosecution opening, which I will not repeat here. On 3 December 2019, you were formally interviewed at the Narre Warren Police Station. You admitted being the driver of the Ford Explorer that hit Mr Vennell. You admitted doing so having turned right into Glasscocks Road and seeing him and Mr Connell up ahead when you were at a distance of 'about half a rugby field, at least…'. You clarified that this was about 20 metres.
Victim impact
12Mr Teo, your offending has had life changing consequences for Mr Vennell and his family.
13In her victim impact statement, Mr Vennell's mother, Ms Pauline Walden, speaks powerfully of the stress and heartbreak she has experienced. She has become her son's fulltime carer. She stopped working due to travelling to hospital every day initially and the mental stress that has taken over her life. She states, 'I mentally feel broken as I struggle to make things be our new normal as they never will.' She states further: 'I feel sad it cannot be what it should have, that my son's love of family and friends have all effectively changed by his fear of the world and loss of understanding.'
14In her victim impact statement his sister, Kristy Abbott, speaks of the initial anguish of not knowing if her brother would survive. She states:
I was there when he opened his eyes and to this day it is one of my most traumatic memories along with the long period of post traumatic amnesia that would follow – he was not aware of the extent of his broken bones and would for the next few weeks keep getting up out of bed and trying to walk on his still healing broken bones.
15She speaks of the ongoing and traumatic impact of your offending on her family and of the responsibilities and stressors she now carries.
16The lives of both women have dramatically changed. They have both needed counselling and have both now selflessly I should add, taken on enormous caring roles for Mr Vennell.
17
The sentence imposed in this case is not to be seen as a measure of the life changing impact that your offending has had on Mr Vennell. It's impact on
Mr Vennell and his family is no doubt immeasurable.
Gravity of the offending
18Your offending is serious, Mr Teo, as indicated by the maximum sentences prescribed for each offence, as outlined by the prosecution at the plea hearing. In such cases, general deterrence and community protection are particularly important sentencing considerations.
19The prosecution case is that you drove dangerously, thereby causing serious injury, in that you failed to take any evasive action in the circumstances where you had seen Mr Vennell from a distance of half a rugby field/20 metres away, and where you knew that he was in the path of your vehicle and had an opportunity to avoid the collision with him. In my assessment of the gravity of your offending, I take into account the submissions of your counsel and that no deliberateness or negligence is alleged against you as to the causing of the injuries to Mr Vennell.
20In all the circumstances, I also accept the submission of both counsel that your driving offending falls somewhere in the middle of objective seriousness. It is not at the lowest end, typically characterised as, 'momentary inattention'; but nor is it an especially egregious example of the offence. It is also not suggested that it is at the highest end or that you were speeding, intoxicated, substance effected or driving erratically or competitively, for example.[1] You were also fully licensed at the time.
[1] DPP v Neethling [2009] VSCA116.
21The extent and nature of the injuries inflicted are an important consideration and in this case, as I have already referred to, they are clearly serious and life changing. At the earlier sentence indication I was not provided with material relating to Mr Vennell and his injuries. Both parties were content for me to proceed on the basis that his physical injuries had largely resolved but that there was an enduring, ongoing and permanent brain injury. This is broadly consistent with the medical material that was subsequently provided to the court at the plea hearing and that I have taken into account.
22In relation to the failure to stop charge, this is an inherently serious offence and the higher courts have stated that drivers who breach their duty should expect ‘the imposition of substantial terms of imprisonment’.[2] In my assessment of this offence, I also take into account the extent of Mr Vennell's injuries. You had a legal responsibility to stop and render assistance and you ought to have known that Mr Vennell had suffered serious injury. I take into account that there were obviously other people around at the time of the incident, so your decision to leave the scene was not made in circumstances where there was no reason to assume that assistance to Mr Vennell was at hand or readily available.[3] Also, without making a positive finding as to who the initial aggressor was in all of this, given the unfolding circumstances I am prepared to accept that at the relevant moment you may have held a belief that it was unsafe to stop. However, clearly as was conceded by Mr Richter on your behalf, you could have quite safely stopped a bit further down the road. In all the circumstances, I consider your offending on this charge to fall more towards the lower to middle range of seriousness.
[2] Wassef v The Queen [2011] VSCA 30.
[3] Abbott v The Queen [2021] VSCA 149.
Procedural chronology
23The procedural chronology of your case is important as delay is a significant matter that I have taken into account.
24Your offending occurred on 1 December 2018. You were arrested, interviewed and charged in December 2019. In your record of interview, you admitted your presence at the scene and that you were involved.
25On 23 June 2021 there was a contested committal. On 4 April 2022 a case conference took place in this court.
26On 23 January 2023, just prior to trial, a sentence indication hearing proceeded. You accepted the indication and then entered formal pleas of guilty to the charges.
27It has therefore now been some four years since the event and over three years since your arrest and charge. There were a number of delays caused by the impact of the pandemic and not attributable to your actions.
28You have therefore had this matter hanging 'over your head' for an extensive period of time. I take into account the stress and uncertainty of this period. I also take into account that you have continued to work, provide for your family, participate in your church and community, and that you have not re-offended.
Personal circumstances
29You are 45 years of age and you were born and raised in Samoa. You speak, and are only literate, in Samoan.
30You completed primary school and then joined your parents working in a plantation, where to this day, they continue to work.
31In 2007, you moved to New Zealand where you lived for a decade. You mostly worked in manual labouring positions.
32In 2011, you met your wife and in 2017 you came to Australia, as your brother lives here. You have a four year old child together, who was born here, though you are not a citizen or permanent resident of Australia.
33Your wife currently works in aged care and you are employed in a timber factory, building house components such as timber frames and other items. Your wife suffers from a partial and progressive visual impairment, which I'll return to shortly, but consequently she does not drive. She generally works from 10.00pm to 6.00am and you then pick her up, take her home and commence your shift in the factory from 7.00am to 3.30pm.
34Between the two of you, you share in the caring arrangements for your child. The Plant Manager at your workplace, Vaa Sitagata, who has known you for years provided a work reference in which he described you as family orientated and hardworking. He confirmed that he is aware of your offending and considered it to be out of character.
35The senior pastor of your church, Senior Pastor Gauaifaiva Taeao Noa, also provided a character reference for you. You are a serving Deacon and he describes you as very honest and a 'great leader and very responsible and hardworking'. Your wife, Tafu’e Te’o in her evidence also described you as helpful and hardworking.
36You do have a prior relevant criminal history in New Zealand that I have taken into account, though it is limited.
Factors in mitigation
37A number of factors were advanced in mitigation on your behalf by Mr Richter.
Plea of guilty
38Your plea of guilty is not an early one but I accept that it is an important one.
39I accept that your plea is of significant utilitarian benefit to the Court and the community. Your counsel submitted that there were real issues to be tried in a prospective trial and that you had available to you a viable defence, as he outlined. While Mr Vennell was not cross-examined at the committal hearing, he would likely have been required at trial so that prior matters, suggestive of a tendency to behave in a certain way, could be put to him. I am not called upon to make findings in respect of these matters. Rather, these factors are - it is submitted relevant to my assessment of your acceptance of responsibility and willingness to facilitate the course of justice and to your prospects of rehabilitation.[4] I take into account that you have spared the witnesses, including your victim, clearly someone who is now vulnerable, the trauma of giving evidence. Your plea of guilty will also result in a heightened discount in line with the Worboyes[5] considerations.
[4] Phillips v The Queen [2012] VSCA 140.
[5] Worboyes v The Queen [2021] VSCA 169.
Family hardship
40Your wife has a progressive medical condition known as macular dystrophy. She is currently considered vision impaired.
41This condition can be monitored but not apparently treated. She will inevitably be considered legally blind in the short to medium term future.
42A letter from Dr Tuan Tran of 15 September 2020 was provided which confirms your wife' s diagnosis, and also provides an indication as to her current sight capacity.
43Your wife also gave evidence at the sentence indication hearing. She confirmed she works in aged care and that she undertakes a number of duties. Her visual impairment reduces what she is capable of doing, such as using the computer and administering medication to patients. She would like to reduce her hours at work but this is very difficult. She stated that she is generally capable of looking after your son but does depend on you for heavy duties. She is unable to drive a car because of her visual impairment or catch public transport. She described her vision as 'bad' and at her last review she was told it was 'getting worse.' She has another appointment shortly.
44If you were imprisoned she indicated that she would not be able to manage. By necessity, she would have to stop working and your family would have no source of income. Your family have no savings and are not entitled to any social security payments because of their migration status. There are no family or friends who can assist them. Your wife stated that she has family in Australia but they live in Sydney and Brisbane. Your brother lives in Melbourne but he has his own four children to look after.
45Your Counsel submitted that while he would not expect your family to perish, if you were imprisoned, their future prospects are grim. It would be ruinous and harsh, more so in their situation because of your wife’s partial visual impairment and also because they have no security net available to them.
46In limited circumstances, hardship caused to an accused family as a result of incarceration can be taken into account in the exercise of the sentencing discretion. It can only be taken into account where exceptional circumstances render the plea for mercy irresistible.[6] It is necessarily a question of fact and degree and I have been guided by some of the relevant Court of Appeal decisions, including that of the case of Markovic in relation to the relevant principles. The Court stated:
In answering that question, it is necessary to have regard to the admonition, often stated in the authorities, that such cases will be ‘rare’. A sentencing judge should also have regard to the many examples in the decided cases of undoubted hardship which have, none the less, been held by appellate Courts to fall short of ‘exceptional circumstances.
[6] Markovic v The Queen (2010) VR 589.
47As I indicated at the sentence indication hearing, I accept your wife's evidence and I accept that your family will likely experience hardship and uncertainty if you were imprisoned. On the evidence before me and taking into account what appears to be your wife's current capacity, I do not consider this reaches the high threshold of exceptional circumstances. However, I do give full weight to the anxiety, burden and impact this prospect would likely have on you in custody.
Other factors
48Mr Richter also submitted that given you are not an Australian citizen if sentenced to more than a year in custody, you will be liable to deportation. In your case there is no certainty as to action or outcome and the Court is prohibited from taking into account future executive action. As submitted by Mr Richer, I am prepared to accept that as a non-citizen the uncertainty of your situation is a matter that has weighed on you and if you were sentenced to a term of imprisonment it would contribute to your anxiety.
49I also take into account that if you were imprisoned you would likely be more isolated in custody because you do not speak English. As to the present conditions in custody due to Covid-19, as discussed at the indication hearing, it seems the situation is fluid and fluctuating.
50I have already indicated that I have taken into account the delay in your case as an important mitigating factor, relevant to considerations of both rehabilitation and fairness.[7]
[7] R v Cockerell [2001] VSCA 239 per Chernov JA; R v Tiburcy [2006] VSCA 244.
Prospects of rehabilitation
51In all the circumstances, I consider that you do present with good prospects of rehabilitation. You have not reoffended over the last four years. Your wife has a serious and deteriorating visual impairment and you are an integral support to her and your family. You have a four year old child and you were described as an active and good parent. You are in full-time employment. While your prior criminal history suggests that excess drinking may have been an issue for you in the past, this is no longer an issue and you are instead family, work and community focused.
52
In his letter, Senior Pastor Gauaifaiva Taeao Noa states, you have 'quite matured over the years and displayed to be more of a leader than a follower.' He also describes you as a 'great role model to the men in our church.' Your friend
Mose Matavao plays team cricket with you and speaks of your character and describes being shocked by this offending. Your friend,
Anateria Pisa Falaniko Bourne refers to your ongoing sense of responsibility to your family. She refers to you as an active and well-respected member of your church and community ‘as well as a major contributor in all areas of your young family. She also states ‘he is the only person his parents, brothers and sister back in Samoa look to for financial or any other assistance he can provide.’
53Further I received a letter from Australian Pacific Incorporation which is an organisation that works with Pacific People in raising awareness about laws and consequences. You attended six classes in 2022, participated fully in group discussions, sharing your own experience of the law and showing 'full remorse for [your] actions.' In my assessment of your prospects, I also take into account that you have assumed responsibility for your offending.
Sentencing principles
54The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation, denunciation and protection of the community.
55I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic), where relevant to your case. I have had regard to the current sentencing practices for the offences to which you have pleaded. As your Counsel properly acknowledged, in the ordinary course of events, your offending would usually warrant an immediate term of imprisonment. In particular as I have already canvassed, what increases the gravity of your offending are the serious and life changing injuries sustained by Mr Vennell.
56Many of the factors raised in mitigation on your behalf were accepted and conceded as relevant by the prosecution. The prosecution's ultimate position as to sentence was that a combined sentence, that is imprisonment combined with a Community Corrections Order (CCO), was open and within range. Your counsel submitted that given the unique factors of your case it was open and appropriate to impose a straight CCO.
57You were assessed for a CCO, and considered suitable with conditions. You have had no prior contact with Corrections.
58I am guided by observations of the Court of Appeal in Boulton's[8] case. A CCO is punitive in nature and is an order that will operate punitively for every day of its duration. The Court stated:
Even in cases of relatively serious offences - which would previously have attracted a medium term of imprisonment, a sentencing court may find that a properly-conditioned Community Corrections Order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.
[8] Boulton v The Queen [2014] VSCA 342.
59I have considered and synthesised all relevant matters. I have taken into account the relevant principles, including parsimony and totality. Weighing up all these considerations as canvassed already, including the gravity of the offending and the important mitigating factors you have been able to call upon, as previously indicated, I consider that a substantial CCO is a just and appropriate sentence in your case.
Sentence
60Mr Teo, if I can ask you to stand now please?
61On both charges, you are convicted and sentenced to a Community Corrections Order of three years duration with the following conditions.
(a) Supervision;
(b) Treatment and rehabilitation, that is programs to reduce reoffending; and
(c) Community work which is both a way to contribute back into the community and also to punish you further, 280 hours. I will offset 100 hours against the treatment that you engage in.
62In terms of your licence, there are mandatory provisions that apply. I take into account all relevant factors as I have canvassed already, I won't repeat them. And I will disqualify you from driving for a period of 18 months, commencing today.[9]
[9] On 9 March 2023 these proceedings were reposed under s104B of the Sentencing Act 1991 (Vic) so as to correct the penalty imposed on 27 March 2023 that was contrary to law. The licence disqualification period on Charge 2 was amended so as to be for a period of four years.
63I can indicate pursuant to s6AAA that had you not entered a plea of guilty to the charges, I would have sentenced you to a term of 12 months’ imprisonment combined with a Community Corrections Order.
64Counsel is there anything further?
65MR RICHTER: Not from my point of view, Your Honour.
66HER HONOUR: Ms Lee.
67MS LEE: Nor from mine.
68HER HONOUR: There are no other ancillary orders from my memory, is that right?
69MS LEE: No, it was just the driving.
70MR RICHTER: That's correct.
71HER HONOUR: Yes, all right. What will occur now is the orders will be printed out, Mr Richter will approach you with the assistances of the interpreter, and he'll go through those orders with you. While that's being done, let me be clear there are mandatory conditions that also apply in addition to the ones that I have attached. You will need to report to the Cranbourne Correctional Office within two working days for your first attendance. You will need to accept visits and contact with the correctional services. You will need to advise them of any change of address and seek their permission in respect of some decisions you make, which will be outlined in the document that's about to be printed.
72
You can breach a CCO if you don't comply with it. Don't do and undertake the conditions that you're required to. You can also breach it
Mr Teo is you commit an offence that is punishable by imprisonment during its duration. In other words, it commences today and its duration is three years. If you do breach, you come back before this court for a breach, and also you can be
re-sentenced on the original matters, and you'd be at real risk of imprisonment. Do you understand? Mr Richter if you like to approach Mr Teo with that order and please go through the conditions with him?
73MR RICHTER: Thank Your Honour.
74HER HONOUR: Mr Teo, to be clear also, a breaching offence, for example would be driving whilst disqualified, which you presently are. I've signed that, copies will be made available to Mr Teo and to counsel. Ms Lee thank you, Mr Richter, thank you also. We'll adjourn the court.
75MS LEE: As Your Honour pleases.
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