Director of Public Prosecutions v Xangsayasane

[2014] VCC 1935

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01661

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHETMANISONE XANGSAYASANE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 November 2014
CASE MAY BE CITED AS:	DPP v Xangsayasane
MEDIUM NEUTRAL CITATION:	[2014] VCC 1935

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For the Accused	Ms L. Torres

HIS HONOUR:

1

Phetmanisone Xangsayasane, you have pleaded guilty to one charge of dangerous driving causing serious injury.  That crime carries a maximum penalty of five years imprisonment.  It can be heard summarily and on the material before me.  I am a little bit surprised that it was not.  You pleaded guilty at a reasonably early opportunity and there has been a delay of some 12 months which is not attributable to any particular person.

It is important in that you have not offended since.  You are now 53 years of age.

2You have a very extensive criminal history but the vast bulk of it relates to the use of heroin and associated dishonesty.  Those prior convictions in reality have very little to do with the task that I undertake.  Those prior convictions whist are of significance, basically contained within the Road Safety Act certificate which I have before me.

3That certificate points out that you have a careless driving from 2010.  You have a number of fraudulent use of what appears to be a number plate and you have a couple of matters of driving whilst intoxicated.  In this particular scenario, it is not put that you were under the influence of drugs and it is not put that you were intoxicated.  However, on any basis you are no stranger to the court system.

4

The circumstances surrounding the offending remain to a certain extent unexplained.  At around 5 o 'clock on Wednesday 21 August 2013, you were driving a Toyota Sedan which belonged to a friend of yours, Mr Sansuruth.

He was in the passenger seat without not wearing his seatbelt.  You had left his house in Ringwood apparently to go to a milk bar.  You ended up on the Maroondah Highway near Coldstream as you approached the intersection of the Melba Highway.  I am told and I would accept from my own personal knowledge that is some 20 km or so at least, I would have thought, from where you left the victim's house.

5You were driving because you had the licence and he did not.  The vehicle was observed by a number of people to be driving erratically.  You at one stage, locked up the vehicle's wheels causing the car to skid across the lanes.  You braked suddenly at another stage and stopped in the middle of the road.  You accelerated quickly causing a car to take evasive action to avoid being hit from behind and you were weaving from side to side across the highway and on occasion, driving partly on the left gravel verge, on occasion crossing over the centre road line and driving partial on the wrong side of the road.  That are simply the way that you were driving leading up to the incident to which I am about to describe.

6The nature of your driving is totally consistent with what from years of experience in this position one associates with intoxication.  However, you were blood tested after the event and no alcohol or illicit substances were found in your blood.  Why you were driving in this manner, as I say whilst I might have suspicions about all sorts of things, just remains simply unexplained for sentencing purposes.

7As you drove the past the intersection of the Melba Highway, you were driving very close to the rear of a Land Cruiser four-wheel drive.  You pulled out from behind that Land Cruiser and attempted to overtake it and another car in front of it.  You pulled out, obviously, onto the incorrect side of the road and were driving past the Land Cruiser.  At this point there was an oncoming car approximately four to five car lengths away which I find a bit hard to believe, but I move on.  You braked heavily and steered the car to the correct side of the road and thereby avoided the collision.  That means obviously that your reflexes at least were functioning.  But your car skidded diagonally and collided into the embankment.  It rolled once but landed again on its wheels.  I have seen the photograph of the vehicle.

8Your passenger, Mr Sansuruth received head and spinal injuries and was treated at the Alfred and Epworth hospitals where he remained in effect for over a month.  The injury is an un-displaced fracture in C1 together with a laceration to his forehead.  I am assuming that he lost consciousness.  He had post-traumatic amnesia for a period of some 13 days.  The fracture to the spine was treated with a collar and has apparently resolved.  There was concern that he had suffered a brain injury as a result of all this, but very fairly the Crown have pointed me to aspects of the medical evidence which suggests that that is only a possibility.

9The complainant has a, I suspect, a somewhat similar history to you with years of substance abuse and it is clear that the cognitive testing that took place during rehabilitation the result disclosed significant defects could have been caused by his lifestyle.  Accordingly I cannot sentence you on the basis of any degree of certainty of a brain injury.

10Taking all that into account, despite what it looks like at first glance, I think the injuries are at the lower end of serious as they were then defined.  You are not in the normal situation of having been intoxicated or drugged or anything along those lines.  You do not appear before me at least, to have been speeding to any great extent.

11However the circumstances are that you just cannot drive like that.  It has seriously injured your friend and general deterrence must play a part in this sentencing process.  Whilst I do not sentence you for what might have happened, as I have said, general deterrence and I think probably specific deterrence do have to play an appropriate part.  The most difficult aspect of the sentencing process involving you is the concept of just punishment and I have had very helpful discussions with counsel in regard to that.

12Your personal circumstances are that you are now 53 years of age and you have an intellectual disability and are on a pension.  You were certified as having an intellectual disability some decade ago.  You left school at the age of seven in Laos and worked in the rice fields with your parents.  Your parents were killed in 1975 in the war and you were able to escape the then Communist regime to Thailand at the age of 16.  Obviously a lot of lawyers in this state dealt with young people who had that childhood.

13At the age of 19, you came to Australia on your own and you worked as a labourer and in factories.  Your English was not good and you were unable to undertake any education.  By your mid-30's you were addicted to heroin and your criminal history brings it out very clearly.  I am told and accepted that periods of homelessness, that the extensive dishonesty that you have been guilty of in the past I accept would relate to that heroin addiction.

14Since this accident occurred you have no matters pending.  You have now been on, I accept a methadone programme for approximately three months.  You have stable accommodation in Ascot Vale and you are receiving medical attention in relation to injuries with a residual aspects of injuries sustained by you in 2006.  The due question as to your rehabilitation and risk of reoffending, the problems in your life have basically had not a lot to do with what has occurred on this occasion so far as I am aware.

15I agree with the learned prosecutor that the appropriate disposition here would have been, and it is my suggestion, a suspended sentence but that is no longer available to me.

16The next disposition was that of a community corrections order.  The problem is, because of the injuries sustained by you in a car accident in 2006 you would be unable to comply with any condition as to work hours.  That would mean that a CCO, that is what we call them, would not involve any punishment.

17I am also concerned that a CCO, in terms of rehabilitation whilst on the face of that looks an attraction proposition, it really had nothing to do with what this offending is about.  You do seem to be not offending, on methadone and in a stable environment.  I have taken the view that even though you are on a disability pension which is very limiting in terms of what I can do, that a fine is the appropriate disposition.  The simple fact of the matter is, that had it been able to me I would have given a suspended sentence and would not have considered attaching that where I could not have.  Attach that to a community corrections order and I think the fine in your somewhat straightened circumstances is in one sense, a replacement for that suspended sentence and in your particular situation, might even be a far harsher penalty.

18I also take into account that I have to cancel your driver's licence and disqualify you from obtaining a licence for a period of at least 18 months and it will be 18 months from this date.  Obviously your licence is important to you.  You use it to attend appointments, medical appointments and the like and that loss of licence is a very significant punishment in itself.

19Accordingly taking all those matters into account and being very conscious of the fact that this sort of offending has to receive appropriate punishment and there has to be deterrence to others, yours is a difficult sentencing proposition.

20However having discussed the matter and considered it I think that really all I can do is on the Charge you were convicted, which is a punishment in itself, and fined $1000.  I will make no order as to a stay but simply say that your counsel assist you in whether it can done this afternoon I do not know, but attending at the registry for that fine to be paid by way of instalments.

21On the basis that you are on a disability pension I do not expect that that was going to be repaid much more than about $50 or so a month.  Accordingly the imposition on you will continue over an extended period of time.

22Any licence to drive a motor vehicle is hereby cancelled and you are disqualified from obtaining a licence to drive a motor vehicle for a period of 18 months from today's date.

23There will be no custodial order s.6AAA and does not apply.  I do not know if there any other orders I need to make Mr Devlin are there?  There is nothing else requested?

24MR DEVLIN:  No, Your Honour.  Thank you, Your Honour.  As Your Honour pleases.

25HIS HONOUR:   Thank you for that.  Can I thank counsels assistance in this type.  Every now and then I get these things where you are just not happy with how it all ends up but that is all I can do here.

26MS DEVLIN:  Thank you, Your Honour.

27HIS HONOUR:  Yes thank you Mr Devlin.  Thank you Ms Torres.  We may see you in January ‑ ‑ ‑

28MS TORRES:  Yes, Edwards.

29HIS HONOUR: - - -for the ongoing saga.

30MS TORRES:  I will wait to hear the date, Your Honour.

31HIS HONOUR:  You will be given it though.

32MS TORRES:  Yes.

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