Director of Public Prosecutions v Wan

[2018] VCC 1112

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

AT MELBOURNE

CRIMINAL DIVISION

.CR-18-00368

DEPARTMENT OF PUBLIC PROSECUTION

v

JACKY PAK-KEUNG WAN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 July 2018
CASE MAY BE CITED AS:	DPP v Wan
MEDIUM NEUTRAL CITATION:	[2019] VCC 1112

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms Lana Custovic	Office of Public Prosecutions
For the Accused	Mr Sherwood Du	Canaan Lawyers

HIS HONOUR:

1       Jacky Pak-Keung Wan, you have pleaded guilty to an indictment containing a single charge of culpable driving causing death. This carries a maximum penalty of 20 years imprisonment. At the time that you committed this offence you were 30 years of age. You were employed by day as a business development manager for a telecom company, and you worked at night as an Uber driver.

2       The victim in this matter, Leslie Tisseveresinghe was aged 97 years. The circumstances in which you came to commit this offence are set out in a detailed prosecution opening dated 1 June 2018, a copy of which was tendered as Exhibit A on the plea hearing. I will not recite the full circumstances of your offending, and it is sufficient for present purposes to provide the following outline.

3       On Friday 6 October 2017, you left your home in Mitcham just before 8:00pm, and drove to the Corner Hotel in Richmond, where you joined a friend to see a band play. You stayed for a couple of hours before leaving at around 11:35pm. You dropped your friend home in Toorak, before continuing on to the city and arriving at Crown Casino at approximately 12:10am. Once there, you entered the casino for around an hour to play the tables. At 1:23am you left the casino, picked up two friends from nearby and drove a short distance to Flinders Lane, where you parked your car and made your way to Bond nightclub. You stayed here with friends for approximately two and a half hours, during which time you drank alcohol.

4       At 4:18am, you and three friends returned to your vehicle. You drove a short distance to Russell Street where you parked and entered the nearby Eden Bar. You stayed at this venue for nearly four hours, during which time you continued to consume alcohol. You left the bar at 8:17am and returned to your vehicle. You pulled out, executed a U-turn, and drove a short distance before you performed a second U-turn and drove back to the same parking spot where you had come from. Dash camera footage from your car shows that during one of these U‑turns, you were clearly not in control of your car, as you were forced to take evasive action to avoid a collision with a parked car.

5       After sitting in your vehicle for a short period, perhaps in order to deal with your obvious fatigue and state of intoxication, you left the city via Punt Road, swerving and overcorrecting your vehicle as you did so. You stopped at a Hungry Jack's to order food before continuing on to Hoddle Street, and then the Eastern Freeway. On the Eastern Freeway you were unable to remain within the marked lane, which you swerved in and out of, at times overcorrecting and veering into another lane or the emergency lane on the far left. The dangerous manner of your driving continued as you exited onto Elgar Road and then subsequently onto Whitehorse Road.

6       As I indicated, your driving was recorded on video footage by an in-car dashboard camera. This footage makes for harrowing viewing. The Eastern Freeway is busy with many cars, and your vehicle appears to be keeping up with the speeding traffic heading east at a steady speed, but your driving was wayward and dangerous. You can be seen to exit on Elgar Road. By this time you are leaving large gaps between your vehicle and the vehicle in front of you at stop lights, then taking off with delay as the change of lights. You also continue to swerve and correct your trajectory up Whitehorse Road. Once on Whitehorse Road, you not only had trouble driving within a single lane, but the speed of your vehicle also becomes erratic. At times you slowed down almost to a complete stop, before accelerating off again at pace.

7       A witness who was driving behind you at the time describes your driving as “sloppy” and “all over the place”. She recalled needing to slow her vehicle from 60 to 40 kilometres an hour in order to stay behind you. She further recalls that at one point you came to a complete stop at a set of green lights, where you paused before taking off again a few seconds later. Whitehorse Road is a two‑way, two‑lane road, running in an east/west direction. It is generally flat and straight. On the morning of Saturday 7 October, the road surface was in good condition and visibility was perfect.

8       Immediately prior to the collision you were driving east along Whitehorse Road, Box Hill, approaching the intersection with Lindsay Street. You were in the left of two eastbound lanes, and your vehicle was observed to be veering left as you drove. At approximately 8:55am, as you approached the pedestrian crossing, you failed to heed the traffic signal that had changed from amber to red. Mr Tisseveresinghe had entered the crossing by about three or four steps, when you drove through at a likely speed of 57 kilometres an hour. Upon impact with him, the traffic signal applicable to you had been red for some six seconds. This section of your driving is also recorded on the dash camera. You were some 85 metres from the crossing when the light turned red, and the footage shows no change in speed in your vehicle.

9       Mr Tisseveresinghe suffered multiple injuries as a result of the collision, and despite the efforts of witnesses who attempted to render first aid assistance, he died at the scene a short time later. One witness recalls that you exited your vehicle and walked over to the scene, where Mr Tisseveresinghe lay. She requested that you call 000, but you did not assist. A short time later, police attended the scene and you were immediately arrested. You underwent a preliminary breath test which tested positive for alcohol, and you were taken to Box Hill Hospital, where a further blood sample was taken, which upon analysis indicated a blood alcohol content concentration of .089.

10      Later that day you attended Box Hill Police Station. You participated in a formal interview. You gave a no comment record of interview. Your vehicle was later examined on 6 December. The investigator concluded there was no mechanical fault present that could have caused or contributed to the collision. Forensic physician, Dr O'Dell, later provided an expert opinion as to the effects that alcohol and fatigue may have had on you, and the resulting collision. He concluded that at the time of the collision you had been awake for at least 21 hours and 16 minutes. At the time of the collision your blood alcohol concentration would have been between .102 and .116, and this would have undoubtedly had an adverse effect on your driving skills. Your reading, along with the dash camera footage depicting the manner of your driving, suggests that you were at the time, incapable of properly controlling your vehicle.

11      Later in the investigation it was ascertained that on the day before Friday 6 October, you had left home about 2:00pm and had driven to Chadstone Shopping Centre, where you shopped until about 4:20pm. You drove to other places before returning home at 6:42pm. At about 8:00pm you left and drove to Richmond. Earlier that morning, you had in fact driven your car as an Uber driver until about 4:00am. You had then slept until about midday. This was your last rest period until the time of the collision on Saturday, the next day, almost 21 and a quarter hours later. Clearly the combination of fatigue and alcoholic intoxication resulted in very poor driving. In this, you failed unjustifiably and to a gross degree, to observe the standard of care which a reasonable man would have observed in all the circumstances.

12      Victim impact statements were received by the court from the victim's son, Chandramohan Tisseveresinghe. He writes, in effect, on behalf of his mother, and the wife of Leslie Tisseveresinghe – wife of 67 years. He writes that she is depressed and on medication. This has created social isolation. She has a cognitive impairment, and her husband assisted her in most tasks, including shopping and cooking, and other household chores. She has become more dependent on others, she is finding it difficult to cope with the loss in this cruel and sudden fashion. He also looked after the household finances. She has been profoundly emotionally and physically impacted by his death, as indeed have the entire family.

13      She uses a walking frame, but her husband assisted her greatly in her mobility and this has been effected too. They were pensioners, and household income has been significantly reduced. She is likely now to have to move, as she has fallen a number of times, fortunately when others have been in the house. The absence of her husband renders this situation more precarious and full of apprehension for her. He also writes in his own victim impact statement that the victim had four children, nine grandchildren and six great-grandchildren. He was a mentor, guide and patriarch of a large family, and his loss has had a deep emotional impact.

14      Despite his advanced age, he was still the central and active figure in his family. The writer, his son, had to view and identify his father's body, and that is a difficult and sad experience. I take the victim impact statements into account. The starting point, as in every case of culpable driving, is that the offence is a species of involuntary manslaughter, and it must be treated as such. The community will not tolerate the taking of human life by acts of gross negligence of the sort that took place here, and it expects that the court will denounce such conduct with the imposition of stern punishment, to also send a message to all road users that such conduct is unacceptable and will be subject to heavy sanctions.

15      The consequences of culpable driving and the use of a car in combination with lack of sleep and alcohol by young men of otherwise good character, demand denunciation and general deterrence be at the forefront of the sentencing process. This means that relative youth, lack of priors, general good character and good prospects of rehabilitation, and other mitigating circumstances, play a reduced role in the synthesis required. Each of these matters are considerations which I take into account, and I attribute to them the reduced weight which principles compel.

16      In my view the objective gravity of the offending is high. In this context the dangerousness of your driving can be assessed by the extent of the risk to other drivers on the road, and the extent of potential harm. On both of those measures the gravity is high. The risk to other drivers was very high, given the roads upon which you travelled, the speed you maintained, the manner of your driving and the sheer number of other vehicles being driven around you. It was nothing short of miraculous that collisions or events involving other cars did not occur that morning. The extent of potential harm can only be stated as extreme. Any collision or unforeseen event provoked by your driving that morning, had the potential for death or very serious injury.

17      The next consideration is moral culpability. In my view, to drive while intoxicated is bad enough, and an aggravating factor. To do so at a time when your blood alcohol concentration was at least double the allowed limit, made the risk of potential harm and its extent a probability. Further, the appreciable risk was of significant duration. This was a course of driving which persisted over many kilometres, over a number of minutes, a protracted and sustained period of time, enhancing the danger further. During the course of the plea, though it was accepted that you were fatigued and that it should have been apparent to you that you were not capable of maintaining proper control of the vehicle, from as far back in time as leaving the Eden Bar. However, on the basis, apparently, that your intoxication made your fatigue worse, it was submitted that your moral culpability was mid-range.

18      I do not accept this submission. I expressed my disagreement with this classification, and I do so again now. In my view, and as you acknowledged to the psychologist who assessed you, you knew you were feeling tired. Your unusual pause from driving which occurred in the city after leaving Eden Bar, I repeat, was probably in brief recognition of that fact, but you went on, undeterred.  Rather than desisting from driving, you persisted. Driving while drowsy and affected by alcohol is a very dangerous activity. The effect was that you frequently lost control of the vehicle. As I said during the plea, you were not an automaton on this tragic journey every time you corrected, overcorrected, slowed up and sped up, drifted out of one lane, only to come back and then drift off again towards other cars.

19      You acknowledged by these actions that your full awareness of your own condition and of the risk you were creating for others and for yourself. You drove dangerously and negligently, knowing the risk associated with your driving. I accept that you have good prospects of rehabilitation, and note your voluntary attendance at the road safety program, and your own insight and remorse. I accept that both specific deterrence and community protection do not play a significant role in this sentence, given your good driving record.

20      I take your plea into account. You were charged on 9 October 2017, and at the committal mention in February 2018 you pleaded guilty. This was an early plea, and it is, I accept, accompanied by remorse. The plea also has a utilitarian benefit over and above the acceptance of responsibility, which it proffers. Your sentence will receive a discount because of your plea. You do not have any prior convictions or criminal history of any kind. You are a person of good character and good prior driving record. You are 31 years of age. You were born in Hong Kong. You came to Australia aged one year old, and have lived in Melbourne ever since. You were educated to high school level.

21      You began a degree in multimedia which you did not complete. You were previously employed in sales and part-time as an Uber driver at the time of the offence. Your health issues have been eczema, asthma and an eye condition, which required surgery. You have not had a serious relationship, and you are said not to be a heavy or a regular drinker. You live with your brother in rental accommodation. I take into account the psychological report of Jeffrey Cummins dated 15 June 2018. He said you presented as moderately anxious, embarrassed and depressed. Your body eczema was inflamed. Your mother died in her mid-40s, when you aged eleven, and your paternal grandmother, to whom you were very close, also passed away.

22      Your father, aged sixty, re-partnered, but because of his past employment, his English is limited, and as a result, you speak with him infrequently. Both he and your stepmother are supportive of you. Though you completed secondary school and obtained a diploma in design, your tertiary education floundered after some years. However, a sales position was obtained by you, with Star Telecom, which you combined with Uber driving. As a result of this matter, I note your Uber licence was confiscated and you lost both jobs, in effect. You obtained other IT sales jobs, disclosing to your employer, that you were likely to be incarcerated. You spoke to Mr Cummins of your eye surgery and health concerns, and though you do not use illicit drugs, you sometimes engaged in binge drinking.

23      

As a result of the accident, you have reconnected to the evangelical

Catholic Church in Blackburn South. You told Mr Cummins that as an Uber driver, you always received good feedback and had a five star rating. You admitted to him, resting in the car for a while before eating at Hungry Jack's, because you were feeling tired, and that is how you were feeling as you were driving home, and you spontaneously apologised for your conduct. Mr Cummins pointed to your expressed remorse, shame and embarrassment. He wrote that your inflamed eczema may draw negative attention in a custodial setting. You have an adjustment disorder, with anxiety and depressed mood, developed in response to your predicament.

24      You admitted to him being reckless as regard as to whether you were over the legal limit of blood alcohol concentration. You have not had any criminal contact or association before, and you will be likely to be very compliant in reclusion. I have read and will take into account your letter to the victim's family. I regard your expressions of remorse and sympathy to be authentic and genuine. The manager in counselling and support services of Road Trauma Support Services of Victoria, confirmed by letter that you contacted the service in May of this year and requested face-to-face counselling. You had three sessions so far and expressed remorse for your conduct.

25      Reverend Ang from the evangelical church in Box Hill, wrote to the court, informing the court that you are a regular worshipper at the church's service. You have spoken to him and have expressed your anguish at the suffering caused. Jennifer Yang, who is a former mayor of Manningham City Council and ran as a candidate in a State election, writes a reference on your behalf, that you were part of a volunteer team and writes of you as a caring and gentle person, who has volunteered for the Salvation Army, and is generous with others.

26      Mr Swinnerton also wrote on your behalf. He is a friend with whom you have travelled in the past. He wrote of your remorse and depression, hard-working, basically a happy person. Jacky Ngo is a business person, electrical officer overtime the federal member for Gellibrand, who met you at high school. He has written that this event has changed your life, isolating you socially and ruining your work prospects. Kim Ngo also wrote, another school friend, who writes of your friendliness and outgoing nature, which have been radically changed by these sad events. Yong Chen wrote a reference for you, a friend of some ten years. He is a parts adviser for Cummins South Pacific. He writes of the disgrace you feel and your hard-working, friendly nature. Nelson Yeung, an accountant, wrote another reference. He is a friend since school, and he writes of your genuine and generous friendship, the financial hardship these events have caused to you.

27      Your parents wrote a joint letter to the court. They too express their condolences for the loss of life caused by you. They wrote of your childhood, its losses and grief. You were, they say, a silent boy, struggling to communicate, but who was "a grateful child who treasured relationships and friendships", with a special bond with elderly members of your family, which have made this event and its consequences even harder. They describe you law abiding, loving, passionate and friendly, and I take each of these references and tributes into account. They clearly portray a person of good character, whose average and generally friendly and generous life has come to tragic juncture.

28      I am persuaded that this material and your background should excite some mercy and within appropriate parameters, allow some measure of leniency to be extended to you. However, the primary applicable sentencing principles here must reflect the seriousness of your offending, and make clear by its measure of punishment, that driving on our roads must be a privileged activity, which is conducted with appropriate care, because of the awareness of its inherent risk, danger and such measure must be sufficient to make that deterrent message unequivocal.

29      I note that you have served 21 days by way of pre-sentence detention, which I declare as such for the records of the court. Please stand, Mr Wan.

30      On culpable driving causing death, you are convicted and sentenced to imprisonment for eight years. I order you serve a non-parole period of five and half years. But for your plea, I would have sentenced you to nine years, with a non-parole of six years.

31      I order that pursuant to s.464ZF, you undergo a procedure for the obtaining of your DNA for placing on a DNA database. When a request is made from you for a scraping of the mouth, which is not a painful procedure, if you do not consent, then an authorised police officer can use reasonable force to obtain a blood sample from you.  Do you understand?

32      OFFENDER:  Yes.

33 HIS HONOUR: Pursuant to s.89(1) of the Sentencing Act, any driver's licence held by you is cancelled. You are disqualified from holding and obtaining a driver's licence for a period of six years.

34      Further in accordance with s 89C(1) the court makes a finding that the offence was committed while Mr Wan was under the influence of alcohol.

35      I note that there are probably some family members of Mr Wan in court. They can approach him and speak to him. They won't be able to have any physical contact with him, but I will stay on the Bench while that happens, if they wish to do so, before he's taken away.

36      MR LU: Thank you, Your Honour.

37      HIS HONOUR:  So they may do that now. Yes, thank you.

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