Director of Public Prosecutions v Thuc

[2020] VCC 1718

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00925

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAK THUC

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2020
DATE OF SENTENCE:	27 October 2020
CASE MAY BE CITED AS:	DPP v Thuc
MEDIUM NEUTRAL CITATION:	[2020] VCC 1718

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:

Cases Cited:Harrison and Rigogiannis v The Queen (2015) 49 VR 619; DPP vNeethling (2009) 22 VR 466; Azzopardi; Baltatzis; Gabriel (2011) 35 VR 43; Mills [1998] 4 VR 235

Sentence:37 months imprisonment – $300 fine – 19 month non-parole period – disqualified from obtaining a licence for 3 years – s 6AAA: 4 years and 4 months imprisonment with 3 years and 2 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	Office of Public Prosecutions
For the Accused	Mr M. Kozlowski	Emma Turnbull Lawyers

HIS HONOUR:

Gak Thuc, you have pleaded guilty to the following offences which carry the following maximum penalties: 1       

Charge Nos.	Charge	Max Penalty
1, 2, 3	Negligently Cause Serious Injury	10 years
Summary Charge 9	Fail to Stop Vehicle on Police Request	First offence: 6 months or 60 penalty units or both Subsequent offence: 12 months or 120 penalty units or both
Summary Charge 15	Unlicensed Driving	6 months or 60 penalty units
Summary Charge 16	Unregistered Driving	First offence: 25 penalty units Subsequent offence: 50 penalty units
Summary Charge 18	Commit Indictable Offence Whilst on Bail	3 months or 30 penalty units

You face a mandatory disqualification from driving upon your conviction on Charges 1, 2 and 3. 2       

It is open for me to make an alcohol exclusion order if I am satisfied that you were intoxicated at the time of your offending and that alcohol significantly contributed to the commission of the offending.  I shall say more about this later in these sentencing remarks.3       

You have a number of prior convictions.  I will return to these later in these remarks also.4       

The Crown tendered the prosecution opening for plea as Exhibit A.  A summary of your offending is as follows.5       

On 7 March 2020 at 12.15 am, you were driving a black Holden Commodore.  You had four passengers in the car, Mr Duoth Jock, Ms Ajah Atem, Ms Jennifa Deu and Ms Nyadhiang Chol.  Your passengers were all aged either 16 or 17 years old.  Your car was not registered, and you did not have, and you have never had, a licence.  (Summary Charge 16 – Unregistered driving; Summary Charge 15 – Unlicensed driving) 6       

At the time of all of your offending in this matter you were on bail.  (Summary Charge 18 – Commit indictable offence whilst on bail). 7       

At 12.18 am, you appeared to turn away from a stationary police car conducting registration plate scans at the Heritage Shopping Centre on Henry Road.  The police followed you through residential streets into the Heritage Springs estate. 8       

After a short time, the police activated the lights on their car.  You slowed down, and Leading Senior Constable Jones saw you apparently looking at the screen of a mobile phone.  You then accelerated suddenly and drove off onto McGregor Road.  (Part of Summary Charge 9 – Fail to stop vehicle on police request).9       

Your speed was radar-detected at 88 kph across both a 60 and a 70 kph section of McGregor Road.  You overtook other cars and continued to accelerate away. 10     

The police continued to follow you, but they broke off the pursuit when you again drove through a red light and turned into McGregor Road.11     

After waiting at a red light and then a boom gate, police officers located you again, and this time you were driving normally.  After again activating their emergency lights, you again accelerated away, causing the officers to disengage from following you due to the high speeds at which you were travelling.  As you drove off towards the Princes Highway, you were detected travelling at 145 kph in a 60 kph zone.  (Part of Summary Charge 9 – Fail to stop vehicle on police request).12     

You again drove towards the intersection of McGregor Road and the Princes Highway.  There was a red light at the intersection.  Conditions on the night were clear and the road was dry.  The intersection was well lit by overhead street lighting.  You did not slow down, and as you went through the red light you collided with a white Holden Commodore driven by Phillipa Aslin, a 71-year old-woman who was returning home after catching up with a friend. 13     

Another road user witnessed your driving.  He said that you overtook his car on McGregor Road at about 120 to130 kph as you approached the intersection with the Princes Highway.14     

Your car impacted heavily, almost 'shaving off' the front of Ms Aslin's vehicle.  Ms Aslin's vehicle was pushed backwards.  The front left side of your car took the most damage, with severe damage to your front passenger side.  Your vehicle was pushed sideways, went over a raised traffic island and came to a rest in the northbound slip lane on the other side of the Princes Highway.15     

The police, who had been following you, went to Ms Aslin.  She was breathing but unconscious.  After she regained consciousness she remained incoherent.  She required first aid from the police until paramedics arrived. 16     

You and all your passengers had to be cut out of the car by the CFA.  Your passenger, Mr Jock, was screaming in pain and bleeding from the mouth.17     

Once attended to by paramedics, you were placed under arrest, as were your passengers.  At the scene and subsequently, you made a number of admissions that were recorded on the police bodycams.  These included:18     

that you blamed yourself for the collision, and you did not know why the other passengers had been arrested;·     

you had consumed 'a 'fair bit' of alcohol', which you indicated to be 8 to 10 Jack Daniels; ·     

you had been driving the vehicle during the police pursuit prior to the collision; and finally·     

your girlfriend had called you just before the collision and you had gone to answer your phone but you had dropped it on the floor. ·     

The photographs depicting the damage to both cars tell the story of the severity of the collision.  Even allowing for the fact the roof of your car was cut off, the photographs show extensive damage to your car.  The fact that you and your passengers had to be mechanically extracted tells its own story of the damage to your vehicle.  As I stated a few moments ago, the front of Ms Aslin's car was almost shaved off.19     

At hospital, you returned a blood alcohol sample of .098%.  A forensic physician, Dr Gaya, provided an opinion that at the time of the collision it is likely your BAC was between .126% and .154%.  Dr Gaya assesses that your blood alcohol level would have significantly and adversely impacted the psychomotor skills important for driving.  Dr Gaya concludes that you would have been incapable of having proper control of a car.20     

The police investigation revealed that on 6 March 2020, you had been to the Tyrepower centre.  There, you were advised that the two front tyres on the car were worn and unroadworthy, and that there was an undiagnosed suspension issue which would cause your car to drift left until the tyres were replaced.  You did not remedy these issues before the collision. 21     

The police accident reconstruction expert, Detective Sergeant Dr Janelle Hardiman, calculated that at the point of collision your car was travelling at between 123 and 150 kph, but most likely between 130 and 138 kph; whilst the car driven by Ms Aslin was travelling at between 16 to 48 kph, but most likely at 26 kph.22     

Two of your passengers, and as well as Ms Aslin and you, sustained a number of injuries. 23     

Mr Jock, who was sitting in the front passenger seat, was airlifted to hospital and remained there for seven days.  He sustained the following injuries: 24     

a Grade 1 laceration to his spleen with ongoing bleeding; ·     

a probable heart muscle contusion and injury to the conducting system of the heart; ·     

a fracture of the right hand and lacerations; and ·     

abrasions to his face, knee and elbow. ·     

Without medical intervention, Mr Jock's life was endangered due to the bleeding from his spleen, and his episodes of ventricular tachycardia resulting from the cardiac contusions suffered during the accident, which placed him at risk of cardiac arrest.  He faces the possibility of long-term functional impairment of his hand and scarring to his face.  (Charge 1 – Negligently causing serious injury).25     

Ms Atem, who was sitting in the rear centre seat, was taken to hospital complaining of chest and abdominal pain and remained in hospital for eight days.  She sustained the following injuries:26     

abdominal injuries, including a large tear in her diaphragm, and tears in her liver and her phrenic vein, both of which required treatment to stop the bleeding; ·     

chest injuries including: her stomach and part of her bowel passing through the tear in her diaphragm and being found in her chest cavity; bruising to her lung tissue; bilateral pneumothoraxes (that is air between the lungs and the chest wall on both sides); and a haemothorax (which is blood between the lung and the chest wall); ·     

facial injuries, including a fracture to her left eye socket, a 15 centimetre long laceration to the left side of her face requiring surgical repair, bleeding and a laceration on her left eye, and a chipped tooth; and·     

a mild to moderate traumatic brain injury resulting in a period of amnesia around the incident. ·     

Ms Atem's abdominal and chest injuries were life threatening and required immediate intervention, although it is expected there will be no long-term health consequences.  Her facial laceration required surgery and is likely to result in permanent scarring, although it is expected that normal function will return.  (Charge 2 – Negligently causing serious injury). 27     

Ms Aslin, driving the white Holden Commodore that you hit, was taken by ambulance to a hospital, where she remained for six days.  She sustained the following injuries: 28     

a large bruise and blood collecting in the soft tissue of her right upper arm; and·     

several fractures, including one to the right side of her face and the upper part of her breastbone.  These resulted in the exacerbation of an already existing airways disease. ·     

Ms Aslin did not require facial surgery; however, she was prescribed pain killers, antibiotics, and medication for breathing difficulties.  She was referred to physiotherapy, occupational therapy and social work.  Ms Aslin remembers waiting at the intersection for a green arrow, and then nothing else until she woke up in the hospital.  (Charge 3 – Negligently causing serious injury). 29     

Ms Deu, who was in the rear right seat, was taken to hospital with minor injuries and discharged after short time later. 30     

Ms Chol, who was sitting in the rear left seat of the car, was taken to hospital where she remained for several days due to damage sustained to the ligaments in her back. 31     

You were also taken to hospital, where you were found to have a fractured arm which required surgery.  You were released from hospital and remanded into police custody without interview. 32     

You pleaded guilty to these offences at the committal mention on 28 July 2020, following an application for summary jurisdiction which was refused and a committal hearing at which no witnesses were called.33     

You have been in custody since your arrest on 7 March 2020. 34     

I turn now to consider the objective gravity of and your moral culpability for your offending.35     

Focusing upon the charges of negligently causing serious injury, it is apparent that the maximum penalty of 10 years for each of these three offences underlines the seriousness of that charge.  Moreover, it is obvious that the circumstances in which you committed these offences makes this a very serious example of these types of offences.36     

I agree with the prosecution submission that your criminal negligence for Charges 1, 2 and 3 is established by the following factors:37     

you were driving at high speeds well in excess of the speed limits; ·     

you were heavily intoxicated while driving;·     

you were using and dropped a mobile phone whilst driving.  You stated this contributed to the collision.  I add that it appears implicit from your admission to police that you may have been looking at and/or reaching into the foot well, trying to find the phone at or near the time of the collision.  From the answers you provided to the police, it seems reasonable to assume that you had taken your eyes off the road to look for the phone;·     

you entered the intersection against the red traffic light; and·     

you were driving to evade police;·     

In addition to these factors, I take into general account the fact that:38     

you were unlicensed and you have never held a driver's licence; and·     

the car you were driving had unroadworthy tyres and an undiagnosed suspension issue.·     

I do not consider that these last two matters directly contributed to the collision; although it is likely that the fact that you were driving unlicensed, and in an unregistered car that was unroadworthy, may have been factors which influenced your decision to try to evade the police and to drive at speed.39     

In addition to those factors, the consequences of your offending to the driver of the other vehicle, and at least to two of your passengers, were severe.  Although Ms Aslin was treated conservatively (that is, she had no surgical procedures), she remains in pain from the injuries she suffered.  Moreover, I can say from having read the victim impact statement, and without breaching her privacy, that she is still distressed by the collision and the injuries that she suffered.  No doubt, they will stay with her for a long time.40     

It is actually difficult to imagine a more serious combination of factors contributing to your criminal negligence, perhaps absent the presence of drugs.  Quite frankly, any one of the five factors I have outlined would make out criminal negligence in its own right. 41     

Every person who drives on the road has a duty to take ordinary precautions to avoid harming other road users - in your case, other drivers and passengers in your car.  This is referred to as the duty of care that you owe as a driver to other road users. 42     

It is so plainly obvious to any reasonable observer, and without needing to give it a moment's thought, that your driving, taking into account those five factors, fell so far short of meeting that duty of care that you can be considered criminally negligent.43     

Mr Cameron, who prosecuted this matter for the Crown, submitted that as bad as the circumstances of your driving were, and despite the extent of the injuries suffered by those people I have named, worse cases of driving and injury can be imagined.  Mr Cameron submitted your offending should be seen as about 'mid-range'.  Mr Cameron submitted overall, the seriousness of your offending must take into account the fact that the injuries to Ms Atem and Mr Jock were life-threatening, and that Ms Aslin was rendered unconscious by the collision.  In the case of Harrison, the Court of Appeal emphasised that sentences for this type of offending must sufficiently recognise the harm caused by the offender and the seriousness of the offence.44     

Overall, I agree with the Crown's submission and characterisation of your offending.  The injuries caused to those three persons as a consequence of the collision, and the five factors of your negligence which contributed to that collision on the night, make this a serious example of this offence.  Moreover, your moral culpability for your offending is high as you alone chose to drive your car with passengers in all of those circumstances.  Each of the factors I outlined represents a different decision you made on the night - that is: to drive an unroadworthy car whilst unregistered and unlicensed and whilst you were intoxicated; to attempt to evade the police at speed; and using and dropping a mobile phone, culminating in either the inattention to the red light (which is likely if you were looking for your phone) or the poor decision to enter the intersection regardless.  Only you can bear responsibility for those matters.45     

I add to that your poor driving record.  Although you have no prior convictions for similar matters, you have shown a disregard and disdain for licensing.  The regulation of drivers by the provision of licenses ensures a minimum understanding and demonstration of the conduct and compliance required to drive a car.  It is high time that you regarded driving as an entitlement to be earned and not something to take as your right.46     

Your conduct must be met by principles of deterrence, denunciation and a measure of protection of the community.  I will consider the question of the impact of your youth on your sentence later in these remarks, but I note in the case of Neethling (2009) 22 VR 466; 477 [55], the court stated about dangerous driving offences:47     

'It is 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.'

I turn now to consider your personal circumstances. 48     

You are now 20 years of age; you were 19 at the time of your offending.  And you were born on 24 October 2000.49     

You were born in South Sudan, the eldest of six siblings.  Your family identify as members of the Dinka ethnic group.  Your family left Sudan when you were a young child.  During this move you spent about a year at a refugee camp in Kenya, before your family was granted refugee status and you migrated to Australia at age 4. 50     

You struggled to fit in once in Australia.  You had little to no English, and your family moved house multiple times, leading you to attend four different primary schools.  You found it difficult to continually have to make new friends and social connections each time you moved. 51     

Your parents separated when you were 15.  You remained living with your mother, where you were still residing when the offending occurred.  You have had limited contact with your father in the last few years, but you believe he now has another child with his current partner. 52     

You left school in Year 10.  You described to Ian Mackinnon, psychologist, how you 'got in with the wrong crowd'.  After getting into trouble at school, you transferred to an automotive course.  You had missed a large section of Year 11 whilst on remand.  While you completed some of the automotive course, you were removed after getting into more trouble with the police.  You have never had paid employment. 53     

You have a number of prior appearances in the Children's Court and Magistrates' Court for unlicensed driving.  You have also have appearances in the Children's Court and the County Court for dishonesty offences, including aggravated burglary, affray and robbery.54     

Mr Mackinnon concludes that you do not suffer from any psychological disorder.  It appears that you were neither addicted to, nor have a problem with, drugs, although it was apparent that you were significantly intoxicated at the time of your offending.  It is not otherwise reported that you have a history of problem drinking.55     

Mr Mackinnon states that in his opinion, you do not possess an inherently antisocial or criminal character, but you have acquired some antisocial or criminal qualities in order to fit in with the people you socialise with.56     

Mr Mackinnon considers you understand the ordinary meaning of 'right and wrong'.  Refreshingly, he set out what you told him about your insight into the collision.  It is apparent that you have felt some real regret and remorse for what you caused.57     

Mr Mackinnon considers that you are currently genuinely motivated towards moving away from criminal offending.  The real issue is whether you will maintain that motivation once you are released from prison.  Mr Mackinnon considers that you are unlikely to make any further significant improvement towards your rehabilitation whilst within prison and he is concerned about your vulnerability (that is, your impressionability) as a young offender.58     

Mr Kozlowski, of counsel, submitted the following factors should mitigate the sentence I impose upon you:59     

your youth and prospects of rehabilitation.  Mr Kozlowski submitted that your youth should be considered a dominant objective in the sentencing consideration;·     

you come from a disadvantaged background.  As a young child from war-torn country, your family was forced to move several times during childhood, thereby reinforcing your perception of and actual constant dislocation, restriction on building long-term meaningful social relationships, and stability of education;·     

you have a limited relevant criminal history; ·     

the effect of the lockdown on the prison system and your time on remand; and·     

that you have exhibited remorse, which the Crown accepts and I also accept. ·     

Overall, Mr Kozlowski submitted that you should be sentenced to a combination sentence of imprisonment with a community corrections order. 60     

I stated during the hearing of the plea to your counsel that I did not consider such an order was appropriate in the circumstances of your offending.  I have considered the matter further and I still maintain that view.  Your offending warrants a period of imprisonment with the imposition of a non-parole period.  I consider your reintegration back into the community (if you are granted parole) should take place under the supervision of a parole officer.  This will ensure you are provided with the structure and services necessary to both support and monitor your progress out of prison.  It should also afford you sufficient motivation not to offend during the currency of the parole order.61     

Mr Cameron submitted that the sentence I impose upon you should take into account the following:62     

the Crown accepts that your plea of guilty was made at an early time and should moderate the sentence I impose upon you;·     

the Crown also accepts you have expressed remorse through your early acceptance of responsibility at the scene of the collision and in your insightful statement to the psychologist, Mr Mackinnon;·     

the Crown accepts that your prior convictions are not necessarily directly relevant to this offending, but notes your non-compliance with previous court orders and that you have a 'cavalier' attitude towards driving without a licence;·     

the Crown accepts that youth is a relevant consideration in sentencing but submits that the dominant objective of rehabilitation and the moderation on your sentences that youth may bring in order to achieve that, is somewhat displaced in this case by the seriousness of the offending.  In that regard, the Crown refers to Azzopardi and to Mills.  I have already read what the Court of Appeal said in Neethling;·     

the Crown accepts that your disadvantaged background is relevant to the sentencing exercise but submits that there was no link drawn between your disadvantaged background and your offending on this occasion.  Mr Cameron submits that the psychological report of
Mr Mackinnon did not seek to draw such a link; and finally·     

the Crown submits you have reasonable prospects for your rehabilitation, although these will be tested by your motivation upon your release from prison.  In other respects, though, your rehabilitation prospects are somewhat enhanced by the fact that you are still a young man with your life ahead of you.·     

Apart from the cases that I have already referred to, the Crown did not provide me with any truly comparable cases; that is sentences of other courts or judges to guide me as to the appropriate sentence in this case. 63     

Overall, I consider:64     

your plea of guilty has utilitarian benefit and should be used to moderate your sentence.  Further, I consider the plea is attended by remorse as expressed to Mr Mackinnon;·     

youth is an important factor here.  I consider it, and the fact that you have no psychological disorder, both support your prospects for your rehabilitation.  Nevertheless, this is serious offending which has had direct and serious adverse consequences on several people.  Your youth will have some mitigating effect on the sentence imposed in order to aid your prospects for rehabilitation, but not so great as to displace the view that I consider a further period of imprisonment is warranted; and·     

likewise, I consider your disadvantaged background should have some mitigating effect on the sentence I impose.  Nevertheless, I agree that no direct link was established between your background and your offending.  In those circumstances, it becomes a factor in the mix of matters personal to you which will lead to some mitigation of the sentence I impose but will not have any other greater more significant effect.·     

I certainly take into account the effect of the COVID-19 pandemic causing the lockdown of all Victorian correctional facilities.  The consequences for you, and for other prisoners, are several.  First, you have not been able to receive normal visits in the prison for several months now; probably not since you arrived into custody.  Next, your movements around the prison have been restricted.  A deal of work activity, vocational, educational and therapeutic services have been severely limited, if not stopped.  In other words, there is a hardship to all prisoners who have been unable to effectively occupy their time whilst in prison.  Finally, I accept that for a considerable time there was a deal of fear within the prison system of the effect of the virus if it were to spread through such a dense population basis.  Although there are prospects that a number of these measures will begin to ease, and there is less basis for fear of the pandemic spreading through the prison system, I accept that the last number of months have been made very difficult indeed.65     

The alcohol exclusion provisions were brought to my attention but not otherwise pressed by the Crown.  I was not provided with any detail about the structure of or the objectives of such an order being made in your case.  It is obvious that alcohol was a significant contributing factor to your negligent driving.  It is not otherwise apparent that you have a problem with alcohol or that you have a previous history of driving under the influence of alcohol.  In the circumstances, I decline to make an alcohol exclusion order. 66     

As I stated earlier, I do not consider that a combination sentence of imprisonment (which only carries a maximum period of imprisonment of 12 months) with a community corrections order adequately reflects the gravity of your offending.  Rather, I consider your release back into the community should be supported and monitored by the parole board; if you are given the opportunity for parole.  Further, I have decided that you should be afforded the opportunity of a longer than usual parole period (if such an order is made) to ensure that those services and monitoring are provided and available over an extended period of time.  Ultimately, however, much will depend upon your motivation to remain offending free, your self-reliance, and the point at which you really start to mature.  It is encouraging that you showed true insight and took responsibility for your actions after the collision.  The key in your development will come when you apply that insight and the sense of responsibility to your decision-making before you act.67     

I turn now to the sentences I impose on this offending. 68     

Charge Nos.	Charge	Max Penalty	Sentence	Cumulation
1	Negligently Cause Serious Injury	10 years	18 months	9 month
2	Negligently Cause Serious Injury	10 years	18 months	9 month
2	Negligently Cause Serious Injury	10 years	18 months	Base
Summ Charge 9	Fail to Stop Vehicle on Police Request	First offence: 6 months or 60 penalty units or both	2 months	1 month
Summ Charge 15	Unlicensed Driving	6 months or 60 penalty units	2 months
Summ Charge 16	Unregistered Driving	Subsequent offence: 50 penalty units	$300 fine
Summ Charge 18	Commit Indictable Offence Whilst on Bail	3 months or 30 penalty units	2 months
TES	37 months
NPP	19 months

That leads to a total effective sentence, on my calculation, of 37 months.  I order that you serve a non-parole period of 19 months before you are eligible for parole.69     

I declare the period of 234 days pre-sentence detention, excluding today, be reckoned as already served. 70     

You are disqualified from driving for a period of three years in respect to Charge 1, 2 and 3. 71     

The 6AAA declaration is but for the plea of guilty, I would have sentenced you to a period of72      four years and four months, with three years and two months to serve. 

73Mr Cameron, are there any other matters from your perspective?

74MR CAMERON:  No, Your Honour. 

75HIS HONOUR:  All right.  Mr Kozlowski, are you clear on the sentences?

76MR KOZLOWSKI:  I am, Your Honour, yes.

77HIS HONOUR:  All right.  Thanks, Mr Kozlowski, I will give you the opportunity to speak to Mr Thuc in a moment.  So, Mr Thuc, the bottom line, just so that you understand it, the sentence of the court overall is a sentence of 37 months with 19 months to serve.  So, you have done about seven and a half months; you have got something in the order of 11 and a half months before you become eligible for parole.  All right, so do you understand that sentence?  Thank you. 

78Mr Kozlowski, do you want the opportunity to speak to Mr Thuc?

79MR KOZLOWSKI:  Yes.

80HIS HONOUR:  All right, then I will leave the Webex open.  If there is nothing else, Mr Cameron, then I will leave the court now and we will also exit you from the Webex link so Mr Kozlowski can speak to Mr Thuc. 

81MR CAMERON:  Yes, Your Honour.

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