Director of Public Prosecutions v Tran

[2018] VCC 428

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00251

DIRECTOR OF PUBLIC PROSECUTIONS

v

THUAN PHUOC TRAN

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 April 2018
CASE MAY BE CITED AS:	DPP v TRAN
MEDIUM NEUTRAL CITATION:	[2018] VCC 428

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr B. Nibbs
For the Accused	Mr D. Hallowes

HER HONOUR:

1Thuan Phuoc Tran, you have pleaded guilty to one charge of dangerous driving causing death.  The maximum penalty for that offence is ten years imprisonment.  The facts which found your offending are set out in the prosecution opening which was tendered upon your plea.

2On Friday 2 December 2016, at about 6.30 am, you were travelling north in Springvale Road, Nunawading, driving from your home in Vermont to your work in Doncaster.  At the intersection of Springvale Road and the Eastlink Freeway, you stopped your vehicle at red traffic control signals on the southern side of the intersection.  The victim in this matter, Mr Bensch, was also on his way from his home address in Warrandyte to his place of employment.  He was riding a Harley Davidson motorcycle.

3The victim was travelling south in Springvale Road and had entered the turn lanes intending to turn right onto the freeway to travel west.  A red light turn arrow was applicable to vehicles travelling in his direction.  His lane slipped moving forward to the front of the left hand lane for vehicles intending to turn.  When the arrows turned green for vehicles travelling in his direction, he entered the intersection in full compliance with the road rules.  You, for inexplicable reasons, moved off and accelerated into the intersection against a red traffic control signal applicable to vehicles who were not turning.  You had travelled about 45 metres into the intersection and Mr Bensch had travelled about 54 metres, at the time the collision occurred.

4Tragically, Mr Bensch was thrown from his motorcycle onto the road surface.  You and others immediately went to his assistance until Emergency Services arrived.  He was pronounced dead at 7.16 am.  Members of the police Major Collision Unit attended the scene and investigations revealed that you had entered the intersection while facing a red traffic light.  The traffic light was in fact still red at the time you collided with the motorcycle.  At the point of impact, you were travelling at about 43 kilometres an hour.  It could not be established why you went into the intersection while a red traffic light was applicable.  A blood sample was taken from you which indicated no presence of either alcohol or illicit drugs.  You were interviewed in relation to the circumstances, making admissions and confirming you were the driver.

5Subsequently your mobile phone records were analysed which indicated you had not been using your phone.  It is accepted by the prosecution that you were well rested and fatigue does not appear to have been an issue in relation to this matter.  There were no environmental or mechanical defects which contributed to the collision.  You have pleaded guilty to the charge of dangerous driving causing death on the basis of a period of inattention prior to the collision, which was more than momentary.

6Any offending of this type is serious because of the devastating consequences it has for members of our community.  As drivers, we all owe each other a responsibility and we rely on each other to discharge those responsibilities.  That being said, your offending did not involve speeding.  There was nothing erratic or concerning in your driving earlier.  This is not a situation where multiple road users were endangered over the course of your driving.  As I have said, there is no allegation of any kind of drugs or alcohol.  You had not used your mobile phone and it was tragic driver inattention.

7I have received six victim impact statements from Mr Bensch's wife, four daughters and his brother.  Mr Bensch's wife and daughters all read their statements in court this morning with remarkable courage and dignity.  Those statements detail the very real and enduring consequences of this type of offending.  Grief pervades their lives, impacting them personally, professionally and physically.  There are no words, there is no cure, but time will I hope help them heal, to the extent that that is ever possible.

8Returning to your circumstances.  You have no prior convictions or appearances.  You are to be sentenced on the basis that you are, apart from this matter, a man of good character.  Indeed I have been told upon the plea that in over twenty years of driving, you have only ever had one demerit point.

9You were born on 3 May 1972 in Vietnam.  You are one of a sibship of three.  You grew up in Saigon where you completed your secondary schooling before commencing an architecture degree.  Your family life had been difficult as in 1979 your family had been forced to flee Vietnam, but on that occasion, had been unsuccessful.  In that process, your family lost their possessions and your father found himself in custody for over a year.

10The family was ultimately able to immigrate to Australia in 1993.  That year you completed an English course in Brisbane before enrolling the following year in an associate diploma in International Trade at RMIT.  From 1997 to 2001, you completed your Bachelor's Degree in Economics and Finance at RMIT, studying part-time. In 2002, you completed a Diploma of Business Programing.

11You have a strong work history.  You have worked as a casual cleaner, waiter, kitchen hand and other unskilled roles for a number of years, as you sought to go about your studies.  In 1997, you gained employed to the Commonwealth Bank, initially as a teller and progressing to a credit support officer.  You remained with them until 2001. 

12From 2001 to the present day, you have been an analyst programmer with Norwich Research.  In addition, in December 2015, you purchased a juice bar at Doncaster Shopping Centre.  From December of that year until November 2017, you were working at both the juice bar and Norwich Research.  I have been told that the juice bar has now been sold. 

13You married in 1995, you have two children born in 2003 and 2009.  You reside with your wife, children and mother in law, who I have been told suffers from dementia.  As regards your driving history, you obtained your licence in the mid-1990s.  As I have already noted, you only ever accrued one demerit point, which I do not regard as being relevant to the sentence I will impose this day.

14I accept for the purposes of the sentencing that the progress of these matters, through the court system, has been difficult, in that there was originally an allegation in relation to your blood sample containing cannabis and potentially heroin.  Ultimately it was determined that in fact there had been a mistake at the laboratory, which established that there had been a mix up in the samples.

15I accept for the purposes of sentencing that you are remorseful as regards your conduct and not simply the circumstances in which you now find yourself.  This is demonstrated by your actions at the scene, the admissions you made to the police and by the contents of the large bundle of character references and testimonials which were tendered upon your plea.

16You acknowledge that your distress cannot be compared to grief and distress of the deceased family.  You have been seeking treatment with Dr Rosie Anderson, a clinical psychologist and have now seen her over seven sessions.  That therapy is focused on developing coping mechanisms, to help you maintain function and keep connected to your family, friends and work, whilst managing emotional difficulties.

17You are described as expressing overwhelming guilt for your behaviour, in that you have taken a person's life, and Ms Anderson knows that whilst feeling self-condemnation for your lapse of concentration, resulting in the accident, you additionally feel unworthy of pleasurable experience.  She says that sadness and grief experienced by you are palpable in each session and that your concern has always appeared to be for the family of the motorcyclist, rather than the punishment that you know awaits you.

18The many references and testimonials tendered upon your plea describe you in term such as "exemplary citizen” “a great support” “deeply sorrowful” and “guilty".  It seems that since the accident, you have remained in a state of significant distress.  But again, it was acknowledged upon your plea this day that you understand that that can never be compared with the distress you have caused to Mr Bensch's family.

19You are, it seems, committed to both your family and your church.  You have made contributions to your community.  You are described overall as being simply “unable to forgive yourself”.  The burden of knowing that you took a man's life will be heavy one, as it should be. 

20It is relevant that you have successfully completed a road trauma awareness seminar, focusing on how road trauma effects people and exploring ways of avoiding further trauma on the road.  This demonstrates not only your remorse, but your desire to make sure that such an event never occurs again.

21Your counsel submits upon your plea that there is disposition open other than an immediately servable term of imprisonment.  The prosecution concur.  Sentencing is of course a balancing exercise and I have approached my task on that basis.  As well as matters personal to you, I must have regard to relevant sentencing considerations. 

22Any sentence must manifest the community's denunciation of your conduct and impose just punishment. General deterrence is of particular importance in matters such as this.  I must seek to deter not only you, but others who would engage in like conduct.  I have regarded this sentencing consideration is properly given significant weight in the sentence I will impose this day.  Specific deterrence can be given less weight in light of your history and subsequent conduct. 

23I wish to make clear to the victim's family before announcing sentence that this sentence does not and could not reflect the value of a life.  That is not my task.  My task is to sentence criminality. 

24You are convicted and placed on a community correction order for a period of eighteen months.  I direct that you perform 250 hours unpaid community work over the period of the order.  Your licence is cancelled.  You are disqualified from driving in the state of Victoria for a period of eighteen months, effective today.  Would you have a seat for a moment please.  Can I confirm the Community Corrections Centre which is appropriate?  Is it Ringwood?

25MR HALLOWES:  I think we've discussed that Ringwood would appear to be the appropriate ‑ ‑ ‑

26HER HONOUR:  All right, thank you.  Yes, very well.  Mr Hallowes would you check the order.

27MR HALLOWES:  Yes, Your Honour.

28HER HONOUR:  And approach your client and have it signed please.  Just show it to Mr Nibbs while we're there.  Thank you.  Mr Tran if you would stand again please.  I am obliged to inform you that if you breach this order, you will be brought back before me.  The reality is that there would be little option other than an immediately servable term of imprisonment.  You must report to the office of Corrections within two working days of the making of this order.  There will then be an induction program and you will be given directions in relation to community work.  The compliance with this order must be given priority because you must understand, that in reality, this is what stands between you and a custodial term. 

29Yes, very well.  Counsel, is there anything else I need to do?

30MR NIBBS:  No, Your Honour.

31HER HONOUR:  Thank you.  I thank you for your assistance, but I thank the family of the deceased for your dignity this morning and I hope that time helps heal what is probably at this stage still unendurable.  Thank you.  Stand down.

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