Director of Public Prosecutions v Wan
[2020] VCC 1529
•25 September 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CRIMINAL DIVISION
CR-20-00611
Indictment No: L10581670
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DIMIN WAN |
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| JUDGE: | HER HONOUR JUDGE CARLIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 September 2020 |
| DATE OF SENTENCE: | 25 September 2020 |
| CASE MAY BE CITED AS: | DPP v Wan |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1529 |
REASONS FOR SENTENCE
---Subject: Criminal Law
Catchwords: Dangerous driving causing death, Category Two offence, mandatory custodial sentence, offender failed to show 'substantial and compelling circumstances that are exceptional and rare', failure to notice road signage for upcoming intersection, failure to give way, two passengers who were the offender’s parents died as result of the crash, early plea of guilty, low range moral culpability, demonstrated remorse, no prior criminal history, extra curial punishment on offender, victim forgiveness
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991(Vic)
Cases Cited: DPP v Neethling [2009] VSCA 116; Stephens v the Queen [2016] VSCA 12; Pan v The Queen [2020] VSCA 42; DPP v Oates (2007) 47 MVR 483; DPP v Ng [2016] VCC 1565; R v Skura (2004) VSCA 53; Marsh v R [2011] VSCA; R v Campbell [2005] VSCA 225; Mok v The Queen [2011] VSCA; Ivanov v R [2019] VSCA 834; Farmer v The Queen [2020] VSCA 140.
Sentence: Total effective sentence of 18 months imprisonment with a non-parole period of 9 months. Licence cancelled and disqualified from driving for 18 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Moran | Office of Public Prosecutions |
| For the Accused | Mr R. van de Wiel QC | Anthony Isaacs Criminal Lawyers |
HER HONOUR:
Introduction
1Dimin Wan, on Monday 13 May 2019 you took your elderly parents, who were visiting from China, on an outing to the Mornington Peninsula. You visited Arthurs Seat and were on your way to Hastings when, at about 1.30 pm, you drove through a 'Give Way' sign into the path of an oncoming truck. Tragically your parents, who were in the back seat of your car, sustained serious injuries in the collision and died at the scene.
2Let me acknowledge at this point that you were a devoted son, that you did not intend your parents' death and that the consequences of your actions haunt you every single day.
3You received relatively minor injuries in the collision - specifically a partial fracture of your lumbar spine - and were released from hospital after one night. There followed a series of communications between your lawyers and police resulting in you being interviewed by appointment on 31 October 2019. At the commencement of the interview you were told you were being interviewed in relation to offences of culpable driving. I will return to your explanation in a moment, but when you were asked at the end of the interview whether you wished to say anything, you said that you felt sorry and remorseful and that you should have been more careful.
4You were charged on 4 March 2020 with offences of culpable driving and dangerous driving causing death. You made an early offer to plead guilty to the dangerous driving charges and the matter was rightly settled on that basis. You pleaded guilty at the committal mention on 29 April 2020 and were committed to this court.
5On 16 September 2020, you pleaded guilty before me to two charges of dangerous driving causing death contrary to s.319(1) of the Crimes Act 1958. The offence carries a maximum penalty of 10 years and a mandatory loss of licence of at least 18 months.[1] Further, the date of your offending means that I must impose a custodial sentence, not being one combined with a Corrections order, unless certain exceptions exist.[2] In your case, relevantly, I would need to be satisfied of the existence of 'substantial and compelling circumstances that are exceptional and rare' which justify making some other order.
[1] Sentencing Act 1991 (Vic) s 89, the charges being ‘serious motor vehicle offences’ as defined by s.87P of that Act.
[2] Sentencing Act 1991 (Vic) s 5 (2H).
6After a plea on your behalf it now falls to me to sentence you for your conduct. Your counsel, Mr van de Wiel - senior counsel - submitted that exceptional circumstances did exist and that a community corrections order was within range and appropriate in your case. The prosecutor, Ms Moran, submitted that there were no exceptional circumstances and, in effect, that I would fall into error if I imposed a non-custodial or combination sentence.
7In arriving at an appropriate sentence I am required by law to have regard to a number of factors which are sometimes overlapping and sometimes contradictory in nature.[3] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other, rather I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.
[3] Sentencing Act 1991 (Vic) s 5 (2).
Circumstances of offending
8It is not necessary to recite in detail the circumstances of the collision and subsequent investigation. They are outlined in the agreed Summary of Prosecution Opening, which was tendered as Exhibit A on the plea.
9Suffice to say, at the relevant time you were driving your Mitsubishi wagon in an easterly direction on Myers Road, Balnarring, towards the intersection with Coolart Road, which had the right of way. The weather was dry, clear and sunny.
10Myers and Coolart Roads were perpendicular, bitumen sealed, semi-rural, tree-lined roads in reasonable condition. They were long, flat and straight and comprised a single lane in each direction, separated by solid or broken white lines, or a combination of both. All vegetation along both roads ceased prior to the intersection. The speed limit on Myers Road was 90 kilometres per hour and Coolart Road was 80 kilometres per hour.
11As you approached the intersection along Myers Road, the first indication of the need for caution was the fact the centre road markings changed to two solid double white lines, indicating it was unsafe to overtake. Then, approximately 355 metres from the intersection was a 13 metre wide set of rumble strips, approximately 284 metres from the intersection was another 13 metre wide set of rumble strips, approximately 269 metres from the intersection were two large red rectangular 'REDUCE SPEED' signs on either side of the road, approximately 231 metres from the intersection was another 13 metre wide set of rumble strips and approximately 201 metres from the intersection were two yellow diamond shaped 'Give Way Ahead' warning signs on either side of the road.
12Approximately 80 to 100 metres from the intersection the trees on both sides of Myers Road ceased, providing a clear view of Coolart Road. Just after that was a blue and white arrow shaped sign on the left-hand side of the road, saying, 'Balnarring Racecourse, 2 kilometres'. Myers Road then widened to the mouth of the intersection to allow for turning vehicles and to accommodate a concrete median strip. This median strip diverted vehicles travelling straight ahead, as you were, slightly to the left. Facing you at the intersection were two triangular red and white 'Give Way' signs - one on the left side of the road and the other in the concrete median strip. There was also a partial broken white line on the road surface of your lane, perpendicular to your direction of travel.
13You failed to notice any of these warning signs or indications of the impending intersection. Even after the vegetation had ceased and Coolart Road was clearly visible you still did not see it. You did not slow down, let alone give way. Instead, you drove straight into the intersection and in front of a truck approaching from your left at the speed limit of 80 kilometres per hour. There was absolutely no opportunity for the truck driver to take evasive action and the front of his truck hit the passenger side of your car, causing the fatal injuries to your parents.
14Police reconstruction dashcam footage reveals that cars passing along Coolart Road are visible quite some distance prior to the first set of rumble strips on Myers Road. Further, the dashcam footage of the truck reveals that there was a reasonable amount of traffic on Coolart Road in both directions at the time of the collision. Indeed, that footage reveals that there was a car just ahead of the truck, which would have been clearly visible to you as you approached the intersection, had you been paying attention.
15You were observed to be distressed at the scene. You told the truck driver, 'I ran a stop sign', and you said to someone else, as if in surprise, 'There's a sign, there's a sign', whilst pointing at the 'Give Way' signs. As I said on the plea, I do not take your comment to the truck driver as an admission that you intentionally disobeyed the 'Give Way' sign, rather an acknowledgment that you had not seen it.
16Neither you, nor the truck driver, were affected by drugs or alcohol. Neither of you were using mobile telephones, neither of you were speeding - although the precise speed of your car could not be determined. The condition of neither vehicle contributed to the collision. The sole cause was your failure to give way.
17When interviewed, which was through an interpreter, you told the police you had never driven down Myers Road before and did not intend to take it on this occasion but had missed your usual turn off. You said, variously, that you did not know why the collision happened and that you believed there were 'lots of factors involved'. As to those factors you said it was sunny one moment and not the next, the road was narrow and tree-lined, the trees cast shadows on the ground and your father, who was in poor health, groaned about 10 seconds or more prior to the collision. You said you did not know if you were aware of the intersection coming up, but did not see the crossroad and did not notice driving over the rumble strips or any of the warning signs on the approach to it. You attributed this mainly to the fact you were probably not concentrating because of your concern for your father. You said that when your father groaned it sounded like he was very uncomfortable and you looked in your rear-view mirror, then yelled out to him, and when he did not answer you turned your head to look at him. You only turned once and estimated that you only took your eyes off the road for one to two seconds. Mostly you were looking ahead. You also checked the speed panel. You knew the speed limit was 90 kilometres per hour and said you were travelling between 80 and 90 kilometres per hour. You did not pull over or stop because the accident happened too quickly.
Objective gravity of your offending and moral culpability
18I turn to the objective gravity of your offending and your moral culpability.
19The offence of dangerous driving causing death covers a wide range of conduct from momentary inattention to intentional risk-taking behaviour, but always involving a serious breach of the proper management or control of a vehicle so as - to be in reality, not just speculatively - potentially dangerous to others. The objective dangerousness of the driving and the driver's state of mind are relevant to both offence gravity and moral culpability.[4] Further, in assessing the dangerousness of the driving I should take into account the extent of the risk created and the extent of the potential harm were that risk to materialise.[5]
[4] DPP v Neethling [2009] VSCA 116.
[5] Stephens v the Queen [2016] VSCA 121 at [20].
20You failed to notice many different warning signs and indications of the upcoming intersection, as well as failing to see the intersection itself when it became perfectly clear. You did all this whilst driving at a speed between 80 and 90 kilometres per hour.
21At 85 kilometres per hour it would have taken you 15 seconds to cover the distance of 355 metres from the beginning of the first set of rumble strips to the intersection. Putting aside the commencement of the double white lines and any traffic that may have been driving through the intersection along Coolart Road, this means you were not paying proper attention to the road ahead for at least 15 seconds. Indeed, if you were driving at less than 85 kilometres per hour the period of your inattention would have been correspondingly longer.
22By driving at that speed for that long, without paying proper attention to the road ahead, you exposed your passengers and other road users to a significant risk of significant harm, as was borne out by the fact two people died.
23I accept that your offending was the product of inattention, rather than intention. This was not a case, unlike many, where you took a calculated risk or did something you knew, or should have known, to be dangerous. I also accept that the driving conditions were somewhat difficult because of the narrow tree-lined road and the effect of the dappled light - such effect being apparent from both the reconstruction and truck dashcam footage. However, the dappled effect disappeared once the trees ceased, closer to the intersection, and in any event such conditions, especially on an unfamiliar road, should have caused you to be even more cautious and attentive, not less. Further, your concern for your father, which I note was not the first contributing factor you mentioned in your record of interview, does not explain why you were distracted for so long or why, knowing you were distracted, you continued driving at all, let alone at such speed. Nor does it explain why, even when the intersection became clearly visible, you still did not see it, nor the car driving ahead of the truck. As was recently said in our Court of Appeal:
'Given, in particular, the higher speed limits often in place on country roads, it is paramount that drivers focus squarely on the road ahead and be astute to any indicators of the need for caution'.[6]
[6] Pan v The Queen [2020] VSCA 42 at [11].
24Yours was more than a mere momentary lapse of attention, such as would reduce the gravity of your offending and your moral culpability to the lowest end of the spectrum of seriousness for the offence. It is unfathomable how you could have missed so many warning signs, as well as the intersection itself. This was profound inattention and constituted a serious departure from the level of care that all the circumstances required.
25That said, taking into account the lack of aggravating features - which are common, although perhaps not usual in these cases, and the unexpected and sudden distraction of your father - I do consider the gravity of your offending and your moral culpability to fall somewhere in the lower range.
Current sentencing practices
26One, and only one of the matters to which I must have regard in arriving at an appropriate sentence for you, is current sentencing practices - which may be gleaned from statistics or sentences imposed in other cases, or both. The rationale for this is to promote consistency of approach in sentencing; particularly the application of relevant sentencing principles.
27The offence of dangerous driving causing death was not introduced into the Crimes Act 1958 (Vic) until 2004. Over the years the penalty for the offence has changed in a number of ways, reflecting Parliament's view of its seriousness. First, in 2008 the maximum penalty was increased from 5 to 10 years. Then, in 2016, it became subject to a form of mandatory sentencing whereby offenders had to receive non combination custodial sentences unless certain exceptions existed. Finally, on 28 October 2018, the exceptions were tightened in various ways, making it even harder to avoid a custodial sentence. Significantly for you, the scope of the substantial and compelling circumstances exception was narrowed by the introduction of the words 'that are exceptional and rare', and a constraining of the way the courts could determine the issue.
28Even before the introduction of the mandatory sentencing scheme our Court of Appeal made it clear that except in cases of low moral culpability the offence of dangerous driving causing death should attract a custodial sentence and usually a significant term.[7]
[7] Stephens v The Queen [2016] VSCA 121 and DPP v Oates (2007) 47 MVR 483.
29Any consideration of sentencing practices must take into account these various legislative changes, as well as the fact that in 2016 our Court of Appeal determined that courts were, in essence, sentencing too leniently for this offence.[8]
[8] Stephens v The Queen [2016] VSCA 121 although dealing with mid-range offences.
30The most recent Sentencing Advisory Council Statistics of the higher courts (May 2019) indicate that 56 per cent of people sentenced for dangerous driving causing death over the five years between 1 July 2013 to 30 June 2018 received an immediate term of imprisonment ranging from a number of months to seven years, with two to three years being the most common sentence. A community corrections order was the next most frequent sentence imposed at 26.6 per cent.
31Whilst no two cases are ever truly the same, of more use than statistics are sentences imposed in comparable cases. Such sentences are not binding precedents to be applied or distinguished, nor do they set the outer parameters of appropriate sentences. They are simply a guide or yardstick against which to measure any sentence I propose in this case.
32I have read all the cases involving dangerous driving causing death to which I was referred by your counsel and the prosecutor - both County Court and Court of Appeal decisions. There is no need to recite the facts or sentences in all those cases, suffice to say some involved deliberate risk-taking behaviour and others inattention of varying degrees and type. Most resulted in sentences of immediate imprisonment, but community corrections orders were imposed in some cases. Only one involved offending after 28 October 2018 (that being DPP v Kent Ballan[9]) and in that case although the offending was more serious than yours the judge found that there were exceptional and rare circumstances, mainly family hardship, which justified a non-custodial disposition.
[9] [2020] VCC 883.
33The case most similar to yours is a case called Pan[10]. Mr Pan was a 27 year old driver on a country road who proceeded through a stop sign and collided with another car, which had the right of way. The other driver was killed and one of Mr Pan's passengers was seriously injured. Like you, Mr Pan's only error was inattention. Like you, he failed to take heed of a number of indicators of the impending intersection, including three sets of rumble strips, a 'Reduce Speed' sign and a 'Stop Sign Ahead' warning sign. Unlike you he did brake, but only 0.8 seconds prior to the impact, which had no effect at all. The Court of Appeal in that case reduced the sentence imposed by this court to take into account the contribution of the poorly designed intersection, which reduced Mr Pan's moral culpability.
[10] Pan v the Queen [2020] VSCA 42.
34Pan is significant because not only are the facts so similar - although there is no suggestion in this case that the intersection was inherently unsafe - but because it is a decision of the Court of Appeal. Further, although the offending preceded the October 2018 amendments to sentencing, the view of the Court of Appeal meant that was of no consequence. That is, the Court of Appeal held that Mr Pan's level of inattention was such that the offence gravity was just below mid-level and in the upper lower levels. It held the offending to be too serious, notwithstanding Mr Pan's low moral culpability and notwithstanding the concession of the Crown that a combination sentence was open, if not impractical, to result in anything other than a term of imprisonment with a non-parole period. It re-sentenced Mr Pan to 2 years on the dangerous driving causing death charge and 10 months on the dangerous driving causing serious injury - 4 months of which were cumulative - making a total effective sentence of 2 years 4 months with a non-parole period of 12 months.
35I have also had regard to the sentence of Ng, which was referred to in Pan, and was another case of failure to give way on an unfamiliar road with catastrophic but not fatal consequences.[11] Mr Ng's dangerous driving was characterised by a failure to see or heed a 'Give Way' advisory sign 150 metres ahead of the intersection, and then the 'Give Way' sign itself. Again, the mitigating circumstances were different, as indeed was the offence and maximum penalty (five years), but the sentencing judge characterised his as mid-range offending with medium to low culpability. Mr Ng received an immediate term of imprisonment.
[11] DPP v Ng [2016] VCC 1565.
36Whilst all these cases are informative, as I have already said, no two cases are ever truly the same. Personal and mitigating circumstances always differ. There is no single correct sentence and sentences imposed in other cases are not binding. Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Plea of guilty, co-operation and remorse
37You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a very early stage. In so doing you have facilitated the course of justice and taken legal responsibility for your crimes. This is particularly important in the current environment, where COVID-19 has placed the criminal justice system under considerable strain.
38Moreover, the fact and extent of your remorse entitles you to an even greater discount. You were distressed at the scene and made admissions to the police. Your treating psychiatrist, Dr Jianyi Zhang, described you as being overwhelmed by profound sadness and guilt after the accident because you blamed yourself for your parent’s death.
Background and personal circumstances
39Turning to your background and personal circumstances, these were outlined in the report of Dr Zhang dated 24 July 2020 and tendered on your plea as Exhibit 2.
40Very briefly, you were born in Shanghai, China, and are now 53 years of age. You were raised by your parents in China and have two siblings who, like you, now live in Australia. You are a close family. Before their retirement your father was a university professor and your mother was a librarian.
41You excelled in athletics at school and graduated from Shanghai University of Sport.
42After university you worked in sales and management jobs. You married your wife, who is also of Chinese origin, in 2000. She was also a librarian. The two of you moved to Australia in 2004, where you opened a fish and chip shop with your brother, and your wife gained work as a receptionist and bookkeeper, which she still does. You do not have any children.
43Your physical health is reasonable. You have largely recovered from the physical injury you sustained in the collision, with only some restrictions to your weight bearing activities and the occasional necessity to take pain medication. You suffer from a thyroid condition which is well managed with medication.
44You saw your general practitioner shortly after the collision and he prescribed an antidepressant. He also referred you to Dr Zhang, who you first saw on
8 July 2019. You have been seeing Dr Zhang regularly since then. I place particular store on Dr Zhang's report, because he is your treating psychiatrist rather than someone you saw on only a couple of occasions for the purpose of obtaining a court report.45Dr Zhang described you as developing a depressive illness after the collision. You had no previous psychiatric illness. You started having flashbacks of the collision, with vivid visual images, and were hyper aroused, anxious and depressed. You suffered a loss of self-esteem and confidence, had passive suicidal thoughts and became withdrawn. You lost weight and could not sleep. These symptoms have persisted to varying degrees until today. They improved with treatment but resurged following your being charged.
46Your mental state meant that you could no longer work and your takeaway shop was sold. You currently live off savings and your wife's income. You have also not driven since the collision. I am told that your wife takes considerable care for you and is very concerned about you.
47Dr Zhang considers that you suffer from a major depressive disorder and post-traumatic stress disorder. He said it is important that your treatment regime continue and said a custodial sentence would likely adversely affect your prognosis and be detrimental to your mental health.
Impact of your offending and circumstances of your victims
48Other matters I am required to take into account are the impact of your offending on your victims and their personal circumstances.[12]
[12] Sentencing Act 1991 (Vic) ss 5(2)(daa), (da) and (db).
49Your most direct victims were of course your mother and father, who were aged 85 and 86 respectively. Although elderly - and particularly in the case of your father, facing a number of health issues - they were still mobile and actively engaged in life. Indeed, at the time of the offending they were visiting you from China. Their lives were tragically cut short.
50Your sister, Dimei Wan, read to the court her Victim Impact Statement, which was really a testimonial to your good character and a plea for leniency on your behalf. Similarly, tendered on your plea were a number of letters from family friends and relatives, all testifying to your kindness towards your parents and pleading for mercy.
51It is obvious that although your parents were deeply loved, all those affected by their death have forgiven you and do not wish you to suffer any more than you already have. Whilst the law is clear that the wishes of victims cannot govern a sentence, or lead to the imposition of an inappropriate sentence - whether too harsh or too lenient - this is a significant matter I am entitled to take into account in your favour, and I do.[13]
[13] R v Skura (2004) VSCA 53. It bears upon the impact to the victim and an offender’s rehabilitation. See also Marsh v R [2011] VSCA [33]; R v Campbell [2005] VSCA 225 and Mok v The Queen [2011] VSCA.
52However, in so far as any punishment you receive - particularly any term of imprisonment may compound the grief of your victims - this appears to be something to which I am not entitled to have regard; it being a consequence of sentencing rather than a direct result of your offending.[14]
[14] Ivanov v R [2019] VSCA 834, albeit that was a case concerning treating sentencing consequences to a victim as adverse to an offender.
53Although what the Sentencing Act requires me to consider is the effect of your actions on people other than yourself, I do also take into account how you have been affected. You have lost your parents, who were very dear to you, and because you were responsible for their death you are overwhelmed with guilt. This is a severe punishment in itself.
Your character and risk of reoffending
54At 53 you have no prior traffic or criminal convictions. You have a good social and employment history. You are entitled to be sentenced as a person of good character who has, unfortunately, made this one mistake with tragic consequences.
55Your sister's Victim Impact Statement, and the many letters and character references tendered on your plea, speak of your kind and caring nature and your dedication to your parents. I accept the opinions of the authors of all these documents. I consider you to be at virtually no risk of reoffending.
The burden of imprisonment
56There are a number of reasons why a term of imprisonment may be particularly difficult for you and I take them all into account in your favour.
57First, you are man of 53 with no prior convictions of any sort. Experiencing a term of imprisonment for the first time is difficult for anyone, let alone someone of your age with absolutely no prior involvement in the justice system.
58Secondly, your depression and post-traumatic stress disorder will probably mean that the experience of prison will be harder for you than someone not suffering from those conditions.
59Thirdly, it is likely that imprisonment will have a detrimental effect on your mental state.
60Fourthly, your cultural background and limited English may mean you will feel more isolated in prison than someone born in Australia or fluent in English.
61Finally, although this is not peculiar to you, I take into account the effect of the COVID–19 pandemic. Whilst the chance of being infected with coronavirus in prison is speculative, I accept that the worry of contracting the virus is an additional burden, as is the curtailment of various activities and programs and the abolition of personal visits.
Purposes of sentencing
62In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes - indeed the only purposes for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required and not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall offending.
63The courts have repeatedly emphasised the importance of general deterrence and denunciation in sentencing for offences such as yours. That is, members of the community must understand that if they drive dangerously, even though inadvertence, with consequent loss of life or serious injury, significant punishment will follow. Further, the sentence must manifest the community's disapproval of dangerous conduct which results in the loss of human life. Such conduct not only harms the innocent victims, it harms the community as a whole.
64These principles are also now enshrined in the Sentencing Act by virtue of the provisions prescribing the manner of determining whether there are substantial and compelling circumstances justifying a non-custodial or combination sentence. That is, in making that determination I am required to regard general deterrence and denunciation as of paramount importance. I am also required to give less weight to your personal circumstances, to disregard other mitigating factors and to consider Parliament's intention that your offence should ordinarily be punished by a custodial non combination sentence. In addition to all that I must also be satisfied that the substantial and compelling circumstances are exceptional and rare. Needless to say, this is a very high bar, as has been confirmed recently by our Court of Appeal.[15]
[15] Farmer v The Queen [2020] VSCA 140.
65Mr van de Wiel relied upon a combination of factors to establish the exception, in particular:
·Your impeccable driving record;
·Your profound remorse;
·Your immediate confession at the scene, and thereafter to police;
·The forgiveness and attitude of your family, being the victims in this matter;
·The extra curial punishment you have received by virtue of your parents' death;
·Your vulnerability in prison because of your psychological state, being the 5th and 6th limbs identified in a case called Verdins;
·The reason for the distraction to your driving and its effect on your mental state;
·Your unfamiliarity with the road.
66I have already discussed the significance of these various factors in the course of these reasons, so there is no need to repeat my assessment of them. I do take them all into account, however in my view, when one has regard to the gravity of your offending, they do not, either singularly or in combination, amount to 'substantial and compelling circumstances that are exceptional and rare’ that justify not imposing a term of imprisonment. Indeed, I would have reached the view that a term of imprisonment was necessary to meet all sentencing purposes independently of the mandatory provisions.
67Further, it is an unfortunate fact that many of the matters Mr van de Wiel relies upon are not exceptional and rare when it comes to your type of offending. It may be exceptional and rare in other offences for perpetrators to be so comprehensively forgiven by their victims, or to suffer in the way that you are, but it is not so uncommon in offences of driving causing death or serious injury.
68I do not consider there is any need for my sentence to specifically deter you and do not factor that into the equation. Similarly, I do not consider there is any need for my sentence to address community protection. Further, taking into account your various mitigating factors and the need to promote your rehabilitation, I consider a relatively low non-parole period is called for.
Sentence
69Mr Wan, if you could stand please?
70On Charge 1, I convict and sentence you to 12 months' imprisonment. On Charge 2, I convict and sentence you to 12 months' imprisonment. 6 months of that sentence is to be cumulative upon Charge 1. That makes a total effective sentence of 18 months. I set a non-parole period of 9 months. That is the earliest date upon which you can be released. It does not mean you will be released on that date, that is up to the Parole Board, but that is the earliest date upon which you can be released.
License Disqualification
71On both charges I am required to make an order against your licence. I am not going to exceed the mandatory minimum period of 18 months. On both charges your licence is cancelled and you are disqualified from driving for a period of 18 months, effective from today.
Post Sentence Detention
72I declare that you have served no time in custody.
Section 6AAA
73If you had not pleaded guilty to these charges and then been found guilty by a jury I would have sentenced you to a total effective sentence of three years' imprisonment with a non-parole period of two years.
74Mr Wan, you can be seated.
75Are there any other matters that I need to attend to, or any other matters counsel wish to raise with me at this stage?
76COUNSEL: No, Your Honour.
77HER HONOUR: Yes, thank you. I will allow Mr Wan's wife to approach
Mr Wan to say goodbye and I'll remain on the Bench while she does that briefly.78MR van de WIEL: Your Honour, given the linguistic difficulties my client might have I wonder if Your Honour might make a note that Mr Wan is on medication for thyroid and for depression?
79HER HONOUR: Yes. I will indicate that Mr Wan is receiving medication for depression, and for his thyroid condition, and direct that the authorities be provided with my sentencing remarks so that they are aware of that fact.
80MR van de WIEL: If Your Honour pleases.
81HER HONOUR: All right, I think Mr Wan – if he could be taken into custody, thank you, and I'll leave the Bench.
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