Director of Public Prosecutions v Truong

[2022] VCC 1774

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-00881

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI THUY TRUONG

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JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2022
DATE OF SENTENCE:	14 October 2022
CASE MAY BE CITED AS:	DPP v TRUONG
MEDIUM NEUTRAL CITATION:	[2022] VCC 1774

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:               Guilty verdict – one charge of dangerous driving causing death – one charge of dangerous driving causing serious injury – offender drove through red light that was on for 15 seconds – at least 15 seconds of inattention – high moral culpability – serious offending – low risk of re-offending – reasonable prospects of rehabilitation – uncertainty of deportation increase burden of imprisonment – no prior convictions.

Legislation Cited:        Crimes Act 1958 (Vic), s319(1); Sentencing Act 1991 (Vic), s5, s5(2H), s87P(d), s89(1)(b), s89(2)(a).

Cases Cited:Harrison v The Queen (2015) 49 VR 619, 629; Gorladenchearau v The Queen (2011) 34 VR 149; R v De Montero (2009) 25 VR 694; Lee v The Queen [2021] VSCA 156; Pesa v The Queen [2012] VSCA 109; Loftus v The Queen [2019] VSCA 24; Al-Anwiya v The Queen [2022] VSCA 181; Gray v The Queen [2021] VSCA 322; Lee v The Queen [2021] VSCA 156; Pan v The Queen [2020] VSC 42; Woldesilassie v The Queen [2018] VSC 285; Bell v The Queen [2018] VSC 281; Pesa v The Queen [2012] VSC 109.

Sentence:  Convicted and sentenced to a total effective sentence of 3 years’ and 5 months’ imprisonment with a non-parole period of 24 months; Licence disqualification for 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Dickie	Office of Public Prosecutions
For the Accused	Ms J. Clark	Haines & Polites Lawyers

HER HONOUR:

1Thi Thuy Truong, on 29 August 2022 you were found guilty by jury of:

·        One charge of dangerous driving causing death, which carries a maximum penalty of 10 years' imprisonment;[1] and

·        One charge of dangerous driving causing serious injury, which carries a maximum penalty of 5 years' imprisonment.[2]

[1]Crimes Act 1958 (Vic), s319(1)

[2]Ibid s319

Circumstances of Offending

2Given the jury's finding of guilt, the evidence given at trial is the factual basis for sentencing.  I will provide the following brief summary of the circumstances of your offending.

3On 8 January 2020, the car you were driving, collided with a car driven by
Mr Theodoros Siriopoulos, 82, at the intersection of Neerim and Grange Roads, Glen Huntly.  His wife Mrs Elipida Siriopoulos, 81 was seated in the passenger seat.

4At the time of the collision, the intersection lights were functioning normally, the road surface was bitumen and in good repair, the weather was fine, the road was dry, the traffic was light and there was clear visibility.

5You were driving your boyfriend's BMW from your St Albans home to visit a friend in Caufield. The car did not have any mechanical fault which could have caused or contributed to the collision.

6You entered the intersection of Neerim and Grange Roads some 18 seconds after the lights facing you had turned red.  Your vehicle collided with the front passenger side of the Siriopoulos' Toyota Corolla.

7Mr and Mrs Siriopoulos' car crashed through a front garden fence of a property close to the collision.  They were injured and taken by ambulance to the Alfred Hospital.

Elpida Siriopoulos’ Injuries & Subsequent Death

8As a result of the collision, Mrs Elipida Siriopoulos sustained extensive and significant injuries including:  neck fractures; a fractured left collarbone; a fractured right shoulder blade; a fractured pelvis with associated bleeding; a rib fracture with flail segments; blood in both lungs; and bruising consistent with a seatbelt-type injury.

9Mrs Siriopoulos' treatment included a collar for her neck fracture and surgery for her pelvic fractures together with pain relief.

10Just over a week after the collision, on 16 January 2020, Mrs Siriopoulos suffered a stroke.  Her treating doctors advised her family that the severity of her injuries sustained in the collision combined with the effects of the stroke gave rise to a high risk of morbidity for her.  Accordingly, Mrs Siriopoulos was placed on palliative care and died the next day.

11Her body was examined by pathologist, Dr Joanna Glengarry.  In her opinion,
Mrs Siriopoulos' stroke was a complication of the trauma sustained in the collision and that the risk of stroke increased acutely due to the trauma.  Dr Glengarry gave evidence at trial that whilst Mrs Siriopoulos did have risk factors for stroke including high blood pressure and atrial fibrillation, the type of stroke she suffered is not usually associated with those pre-existing factors.

12Dr Glengarry also gave evidence that Mrs Siriopoulos' death was not caused by her extubation and commencement of palliation.

Theodoros Siriopoulos’ Injuries

13Mr Siriopoulos sustained and was treated for substantial and protracted injuries including a number of fractures throughout his body, including to his sternum, ribs, right pubic bone, ankle and spine.

14He remained in hospital for over four months and continues to have regular rehabilitation treatment.

Nature & Gravity of Offending

15In your interview with police, you admitted driving the BMW and colliding with the Corolla.  You said that you were following the GPS on your phone, which was mounted on a cradle inside the car.  You said that you did not see the red light because you were thinking about the turn you needed to make further ahead.  You said you were not 'in yourself'.  You did not have the slightest justification for your failure to control your car.

16At trial you accepted that you drove in a dangerous manner but disputed that your dangerous driving caused the death of Mrs Siriopoulos or caused serious injury to both Mr and Mrs Siriopoulos.

17The prosecution submit that the gravity of your offending is high, whereas your defence counsel argues that it falls at the lower end of the range of severity.

18The death of a person as a consequence of a crime is always a serious matter.  However, the objective gravity of an offence of dangerous driving causing serious injury or death depends on both the degree of dangerousness of the driving and the seriousness of the injury caused.[3]  The degree of dangerousness depends upon the extent of the risk which the driving creates, and the extent of the potential harm which could be caused should that risk materialise.[4]

[3]Harrison v The Queen (2015) 49 VR 619, 629 at paragraph [44]; Gorladenchearau v The Queen (2011) 34 VR 149 at paragraph [22]

[4]See, for example, R v De Montero (2009) 25 VR 694 at paragraph [55]

19There is no suggestion that in your case, speed, drugs, or illegal use of your mobile phone or any other aggravating features contributed to this collision.  You remained at the accident scene afterwards and expressed concern about the occupants of the other vehicle involved.

20However, the collision occurred in the middle of a fine, clear day, at an intersection in a built-up area.  The dash cam footage of the collision shows that there were a number of other cars at the intersection ahead of you at the time.  It shows that you did not see, nor slow down for the red light ahead.  You had every opportunity for at least 15 and up to 18 seconds to make these necessary observations.

21There is nothing about the driving of Mr Siriopoulos which in any way contributed to this collision.  He lawfully entered a green light to travel safely through the intersection ahead.

22It was your extended inattention that caused this collision.  You were thinking about the turn you had to take further along the road and not feeling your usual self that day.  This disassociation from your immediate driving conditions resulted in your failure to observe a red light in circumstances where it was almost inevitable in all the conditions, that you would collide with another vehicle or persons who crossed your path.  You did not have proper control over your vehicle for that period, and consequently the potential risk for you to cause serious injury or death to others was very real.

23The Court of Appeal in Lee v The Queen has stated:[5]

'The first obligation of a driver is to pay attention to the road ahead, and to be aware of the movements of others who are on or near the road.  The inherent dangerousness of a motor vehicle travelling at speed makes it imperative that the driver remain in control of the vehicle at all times.  The obligation to maintain control is an obligation which each driver owes to each other road user and to those in the vicinity of the road.  Compliance with that obligation is essential to community safety. 
…
 'Inattention by a driver at any time is dangerous.  Prolonged inattention is highly dangerous.'

[5][2021] VSCA 156 at paragraphs [20]-[21]

24In that case, the Court found that during the period of 14 seconds over which she was distracted, the applicant was simply not in control of her vehicle.  Her conscious mind was elsewhere and the Court noted:[6]

'The risk to others which her driving created was very high.  Given that she was driving in traffic, in a built-up area, her failure to be in control of her vehicle for that length of time meant that everyone in the vicinity was exposed to risk.  And, if the risk materialised, the resulting harm was certain to be serious.  When a car is being driven at 40 km per hour and hits a pedestrian, serious injury or death is almost inevitable.  Depending on the point of impact, a collision with another vehicle at that speed would also carry a real risk of serious injury.'

[6]Lee v The Queen [2021] VSCA 156 at paragraph [21]

25That your crime is not one of premeditation or malice is not the point in this type of offending.  Your failure to properly control your vehicle created a serious risk, which tragically materialised.  The objective circumstances of your offending make it a serious example of the offences of both dangerous driving causing death and of causing serious injury and I assess your moral culpability as high.[7]

[7]See Pesa v The Queen [2012] VSCA 109 at paragraphs [21]-[24]

26Thi Thuy Truong your inattention on the roads on 8 January 2020 has taken the life of another, caused serious injuries to her husband and caused immense suffering for their family and friends.  Those events have also irreparably changed your life and you now stand to be held criminally liable for your actions.

Personal Circumstances

27Thi Thuy Truong, you were born in Northern Vietnam in February 1997.

28You are the eldest of 3 siblings.  Your parents and brother currently live in Vietnam and your sister lives in Canada.

29You were educated to the middle of Year 12 in Vietnam and came to Australia at the age of 18 in 2015 to continue your education.  You tried a few different courses including English Language studies at La Trobe University, Foundation Business Studies and then a Diploma of Business Studies which you ultimately discontinued due to troubles paying the fees.  You tried your hand in a cookery course but returned to business studies, starting an Accounting Diploma in 2022.  You hope to enrol in a Bachelors' Degree.

30Throughout your studies in Australia, you have received financial support from your parents and have also worked in a nail salon for the hours permitted under your student visa.

31You had been in Australia for five years prior to the collision and had been driving since approximately April or May the year before.  You were permitted to drive under the authority of your Vietnamese licence.  You did not have a Victorian driver's licence as you usually used public transport.

32Since arriving in Australia, you have established a social network through Facebook and have lived in share houses.  I note that you were supported in court by your friends, and your employers from the nail salon.

33Following the collision, you reported trouble breathing, experienced depression, poor sleep, loss of appetite and were believed to have low iron.  Your GP I am told, organised an x-ray to identify issues with your lungs, but no damage was found.  The doctor also recommended iron tablets and prescribed medication for depression.

34The plea was adjourned on the last occasion so that your lawyers could arrange a letter from your treating GP.  All that has subsequently been tendered is a print out of your visits to your doctor,[8] which I will mark as an exhibit on this plea, together with a letter from a social worker,[9] which I will similarly exhibit.  That letter is written in support of your application to defer your studies due to stress and anxiety you were suffering as a result of your impending court hearing.

[8]Exhibit C

[9]Exhibit B

35You used the anti-depressants for a short time after this collision, but stopped because you felt that it did not help.  You were also referred to a psychologist, but I am told only attended one session.

36You have subsequently been prescribed Olanzapine on remand but instruct that you have no previous psychiatric diagnoses.

Sentencing Considerations

Victim Impact Statement

37George Siriopoulos, son of the victims, made a victim impact statement on behalf of their family.  He speaks of the grief associated with the loss of their wife, mother, grandmother and friend.  He describes his mother as a 'gentle, humble and selfless person who dedicated her days and life to her family.'  He describes her loss as 'beyond words'.

38Mr George Siriopoulos also describes the physical and mental pain suffered by his father, and that watching him grieve has had an enormous impact on the family.  Most notably, Mr Siriopoulos says:

'The fact that the offender never showed remorse, offered an apology and insisted on taking this pathway of not guilty all the way to court has extended the families pain (sic).  It has brought back many painful memories and given light to even more suffering than we could remember.'

39I do note at this point that it is your right to have these matters contested at trial.

Remorse

40You did demonstrate concern for your actions by immediately stopping after the collision and offering your assistance.  You made admissions to police and were concerned about the welfare of the victims.  You were visibly distressed when the contents of Mr Siriopoulos' victim impact statement were read aloud in court.

41You confined the issues at trial to causation with respect to Mrs Siriopoulos' death and left it to the jury to decide whether Mr Siriopoulos' injuries fell within the legal definitions.  You conceded that your driving was dangerous and agreed to facts about the circumstances of the collision and the injuries sustained.  This assisted to reduce the length of trial.  Your overall actions however, appear to reflect concern for you own situation and fall well short of an expression of genuine remorse.

Prospects of Rehabilitation & Risk of Re-Offending

42Whilst no psychological material was tendered upon your behalf, your lack of prior convictions and young age tend to suggest that your prospects of rehabilitation are reasonable, and you have a low risk of reoffending.

43You have been in custody on remand since your finding of guilt.  This has been during the COVID-19 restrictions in custody, and I accept that it would have made your time in custody burdensome.

44Since being on remand, you have been placed in a unit with other Vietnamese women and have a job in the laundry.  You also help others in the kitchen.

45You are on a student visa and your immigration status remains uncertain.  In accordance with the principles outlined in Loftus v The Queen,[10] I accept that this uncertainty increases the burden of your imprisonment.

[10][2019] VSCA 24 at paragraph [79]

46Ms Truong, you were 22 at the time of the collision and are now 25.  Whilst not technically a 'young offender', you are youthful.

47You have no prior convictions and I note that this is your first time offending and you fall to be sentenced accordingly.

48In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances.  I must balance the interests of the community in denouncing your criminal conduct with the interests the community clearly has in seeking to ensure as far as possible, that offenders are rehabilitated and are reintegrated into society.  I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be just and no more than is necessary to satisfy those various objectives of sentencing.  In this type of offending, specific deterrence will have little application.

49I have taken into account the relevant sentencing principles referred to in s5 of the Sentencing Act.  I also have regard to some examples of comparable cases to which I have been referred together with current sentencing practices more broadly for the offences to which you have been found guilty.[11]  Whilst the principles of both totality and proportionality are important, and being careful to avoid double punishment, I consider that a degree of cumulation is appropriate in this case to reflect the direct impact you have had on each of your two victims.

[11]         Al-Anwiya v The Queen [2022] VSCA 181 (Priest & Beach JJA); Gray v The Queen [2021] VSCA 322

(McLeish JA); Lee v The Queen [2021] VSCA 156 (Maxwell P & McLeish JA); Pan v The Queen [2020] VSC 42 (Emerton JA & Croucher AJA); Woldesilassie v The Queen [2018] VSC 285 (Maxwell P & Kaye AJA); Bell v The Queen [2018] VSC 281 (Priest & Ashley JJA); Pesa v The Queen [2012] VSC 109 (Maxwell ACJ & Hansen JA)

50Parliament's clear intention is that a sentence of imprisonment should ordinarily be made for offending of this nature.  Dangerous driving is a category 2 offence under the Sentencing Act, and the court must therefore impose a sentence of imprisonment unless certain exceptions apply.[12]  No such exceptions were said to apply in your case.

[12]Sentencing Act 1991 (Vic), s5(2H)

Sentence

Imprisonment

51Thi Thuy Truong, I sentence you as follows:

52On Charge 1, that of dangerous driving causing death, you are convicted and sentenced to three years and two months' imprisonment. This is the base sentence;

53On Charge 3, dangerous driving causing serious injury, you are convicted and sentenced to 12 months' imprisonment.

54Three months of the term imposed in respect of Charge 3 is to be cumulative upon the base sentence.  That is, your total effective sentence is three years and five months' imprisonment.

55I order that you serve 24 months before being eligible for parole.

Pre-Sentence Detention

56I declare that the period of 46 days of pre-sentence detention, not including today, as having already been served in respect of this sentence and I order that such declaration and its details be entered in the court records.

Licence Disqualification

57Each offence for which you have been found guilty is a 'serious motor vehicle offence'.[13]  Accordingly, you are disqualified from driving in the State of Victoria for four years from today.[14]

[13]Sentencing Act 1991 (Vic), s87P(d)

[14]Ibid, s89(1)(b), s89(2)(a)

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