Director of Public Prosecutions v Yu
[2019] VCC 1805
•6 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02165
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| I-CHING YU |
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JUDGE: | HIS HOUNOR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November 2019 | |
DATE OF SENTENCE: | 6 November 2019 | |
CASE MAY BE CITED AS: | DPP v Yu | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1805 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty - one charge of dangerous driving causing death - one charge of dangerous driving causing serious injury - fatal single vehicle collision - offender was driving a bus - dangerous driving the result of momentary inattention and an overcorrection when steering - no evidence speed, drugs, alcohol, fatigue and mobile phone use were causative factors - offending represents a low order of gravity and moral culpability - general deterrence is a central sentencing consideration - no prior criminal history - low risk of reoffending - genuine remorse.
Legislation Cited: Crimes Act 1958, Road Safety Act 1986, Sentencing Act 1991
Cases Cited:Bell v The Queen [2018] VSCA 281
Sentence: Community correction order for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B Sonnet | OPP |
| For the Accused | Mr S Norton | Stary Norton Halphen |
HIS HONOUR:
Introduction
1 I-Ching Yu, you have pleaded guilty to one charge of dangerous driving causing death contrary to s 319(1) of the of Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment (Charge 1) and one charge of dangerous driving causing serious injury contrary to s 319(1A) of the Crimes Act 1958, which carries a maximum penalty of five years imprisonment (Charge 2).
2 You have also pleaded guilty to one related summary charge, Charge 7, using an unregistered trailer contrary to s 7(1)(a) of the Road Safety Act 1986 which carries a maximum penalty of 25 penalty units.
3 You have no prior criminal history.
Circumstances of the offence
4 A prosecution opening was tendered on the plea and may be summarised as follows:
5 The charges arise from a fatal single vehicle collision which took place on the Great Ocean Road, west of Apollo Bay in Victoria.
6 On 10 April 2017, as an employee of DCT Tours, you collected a bus and an unregistered trailer for use on a three day tour of the Twelve Apostles, Sovereign Hill and the Yarra Valley.
7 Shortly after 10:00 am you picked up 29 passengers (including three children) from Crown Promenade. The original manifest indicated 27 passengers but at some point that was changed to 29 passengers. The bus was only licensed to carry 27 passengers.
8 From there you drove towards Geelong and on to the Great Ocean Road. You stopped at various tourist spots along the way. You stopped at Apollo Bay for a late lunch, departing for the Twelve Apostles at approximately 4:00 pm. Upon departing Apollo Bay, you advised passengers that it was a one and a half hour drive and that it would be a good time for them to get some rest.
9 You continued along the Great Ocean Road heading west. The weather was overcast and it had been raining on and off. The road was wet and the traffic was light.
10 After leaving Apollo Bay, you travelled for approximately 30 to 45 minutes until the collision.
11 The majority of passengers on the bus had taken your advice and were either asleep or resting.
12 The bus approached a winding part of the Great Ocean Road just after the Binns Road intersection. It went up a slight rise and negotiated a sweeping right-hand curve which then straightened before going into a sweeping left-hand curve. The speed limit applicable at this location and the location of the collision was 80 kph.
13 You failed to negotiate the left-hand curve because of failing to pay proper attention to where you were going and allowed your vehicle to drift across to the right. As a result, the vehicle crossed over a solid white line into the eastbound lane. Fortunately, there were no oncoming vehicles at that point in time.
14 However, in an attempt to get back into the westbound lane you input excessive left-hand steering, causing the bus to overcorrect and yaw back across the westbound lane and into the soft gravel and dirt shoulder on the southern side of the road.
15 At the commencement of that yaw it is estimated that the vehicle was travelling at 68 kph. In an attempt to return to the proper position on the road you then input excessive right steering which caused the bus to veer across both lanes. The bus continued into the soft shoulder on the northern side of the road where the tyres sank into the shoulder, causing the bus to roll over onto its passenger side and slide into a tree.
16 The bus came to rest fully off the road surface. The trailer was left upside-down in the eastbound lane, still attached to the rear of the bus via the tow-joint.
17 The force of the bus tipping over and hitting the ground caused the passenger side windows to shatter, ejecting two passengers who were seated next to the windows on the passenger’s side of the bus.
18 After the collision other passengers opened the roof exit and escaped the bus.
19 One of the passengers who was ejected during the collision was
Cheng-Yung Kuo. He was 38 years old and was a Taiwanese national, resident in the United States. He had been in Australia with his wife, attending a Taiwan Chamber of Commerce conference at Crown Casino. He was seated next to his wife in the back row next to the window at the time of the collision. He, along with many other passengers, was not wearing his seatbelt.
20 Mr Kuo was ejected through a side window and the bus landed on his upper body causing fatal injuries. It is these facts that relate to Charge 1, dangerous driving causing death.
21 The other passenger who was ejected was Jia Jen Hsieh. She was 37 years old and was also a Taiwanese national. She lived in the Philippines and had attended the same conference as Mr Kuo.
22 Ms Hsieh had been seated two rows in front of Mr Kuo and was also not wearing a seatbelt. When she was ejected the bus landed on her abdomen area, trapping her. She was freed by fellow passengers and passers-by and was flown to the Royal Melbourne Hospital. She suffered injuries including bruised lungs and pelvic fractures. She underwent surgical fixation of her left sacrum and of a left acetabular fracture the following day. It is these facts that relate to Charge 2, dangerous driving causing serious injury.
23 The other 27 passengers were all transported to local hospitals for treatment of minor injuries.
24 Blood samples were taken from you. No alcohol or drugs were detected. Further, no evidence was obtained indicating that fatigue was a factor.
25 Both the bus and the trailer were subsequently examined and it was determined that there were no faults present which would have contributed to the collision.
Nature and gravity of the offending
26 The charge of dangerous driving causing death is capable of covering a wide variety of circumstances. In this case, in all the circumstances, the dangerous driving appears to be the result of momentary inattention by you which resulted in your overcorrection, ultimately leading to the bus rolling over.
27 As was outlined during the plea and the sentencing indication hearings, the evidence from other passengers and other road users was that there was no erratic or reckless driving prior to the accident and a consideration of all the evidence suggests that you were driving safely and carefully during the period leading up to the accident. Further, these is no evidence that speed, alcohol, drugs, fatigue, or use of a mobile phone played any part in the cause of the accident.
28 I accept therefore that the dangerous driving on this occasion was the result of a momentary lapse in attention and as such the offending in my view represents a low order of gravity and moral culpability.[1]
[1]Bell v The Queen [2018] VSCA 281.
29 While I have made the assessment of the level of seriousness of the offending, nonetheless I acknowledge that even in cases where there has been a momentary lapse in attention, the consequences are significant resulting in the loss of life and the causing of serious injury and thus demonstrating the importance of remaining alert when driving a vehicle.
Victim impact statements
30 A very moving victim impact statement was prepared by Mr Chun-Min Kuo, the father of the deceased, Cheng-Yung Kuo. Mr Kuo speaks of the enormous loss and grief he suffers as a result of the death of his son. He has difficulty sleeping, has no appetite and has developed a number of physical health conditions which he attributes to his reaction to the loss of his son.
31 I acknowledge that the sentence I must impose can in no way be a measure of the worth of the life of Mr Kuo nor can it alleviate the grief the family continues to suffer. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.
32 No victim impact statement has been tendered in relation to the victim of
Charge 2, Jia Jen Hsieh however I acknowledge that she suffered serious injuries which self-evidently would have resulted in long term recovery and ongoing treatment.
Personal circumstances
33 You are 51 years of age. You have two children a son aged 23 and a daughter aged 20. You separated from their mother some years ago and raised your two children as a single parent. You began a relationship with your current partner in 2016 and you have been living together since 2018 with her and her seven year old daughter.
34 Your current partner has recently been diagnosed with breast cancer and is undergoing treatment. As such you have taken on significant responsibilities in relation to the care of her daughter.
35 You were born in Taiwan and you have one brother and three sisters. Your father passed away approximately four years ago in Taiwan. Your mother resides with your brother in Taiwan.
36 You came to Australia after having finished year 11 in 1998 and you became a citizen of Australia in 2000.
37
You worked in a laundromat for many years from when you first arrived in Australia. You were given the opportunity to drive buses approximately
18 months prior to the accident and you enjoyed introducing visitors to Victoria as a tour guide. Since the accident you worked as a casual Uber driver however when that organisation became aware of the incident, they suspended your permit to drive with them. You also completed certificates to enable you to work in the security industry which also is no longer open to you as a result of the charges. As such, you have gone back to working in a laundromat.
38 You have been involved in the sport of ice skating for many years which is a very large part of your life and is where you enjoy your social support. A number of references were provided from friends and colleagues from within that field. One of those references is from the Treasurer of Ice Skating Australia, Ms Wendy Meik, who has known you for some 17 years. She notes that you are a kind, polite, respectful, honest and reliable person which is consistent with the sentiment of the other references that were tendered. She also states that you have been extremely upset that a person had died and others were injured as a result of the accident.
39 A reference was tendered from Michelle Brelaz, who met you through the ice skating world and has also known you for 17 years. Ms Brelaz is a relationship coach and while she is a friend, she has also offered you support by discussing with you the effects of the accident. She has discussed the offending with you at length and notes that you have had ongoing nightmares and anxiety since the accident. She also notes that you have expressed sadness and shock as you discuss attending to the injured passengers at the scene of the accident.
40 References were also tendered from your partner and one of your daughters. Your partner notes that you are a dedicated, polite and respectful man to her and her daughter. She also knows you to be a hardworking and trustworthy person. Your daughter acknowledges the effect the incident has had on you and notes that although you have seen a number of counsellors, you are having great trouble dealing with the consequences of the accident.
41 A report was prepared by Dr Mathew Barth, psychologist, and tendered on the plea. Dr Barth has been conducting trauma related counselling with you since May 2019. Although the report is not a psychological report as such, Dr Barth outlines the type of treatment he is conducting with you and notes your strong desire to continue with treatment.
Sentencing considerations
42 I take into account your plea of guilty. The relevant history is that this matter came before me for a sentencing indication on 4 October 2019. As a result of that application the plea was conducted on 6 November 2019. You conducted a contested committal however it was on a limited basis in relation to the observations of your driving by eyewitnesses and expert evidence.
43 As such while the plea of guilty is not an early plea, in my view it still demonstrates your acceptance of responsibility and ultimately has avoided the need for a trial. Your plea therefore has facilitated the course of justice and you are entitled to credit for that. As to genuine remorse, having read the references and reports tendered on your behalf, I accept you have expressed remorse over and above the plea of guilty. This is perhaps best summarised in the community corrections order assessment report where you indicated to the writer that you are devastated by the accident and the impact it had on the victims and their families.
44 General deterrence in my view remains a central sentencing consideration in cases of this nature. While this is a case of a momentary lapse in attention, it is clear that the consequences of failing to remain alert on our roads can have devastating consequences when collisions occur. As such, a message must be sent that drivers must remain alert at all times and failure to do so may result in criminal charges.
45 In my view specific deterrence need not be given weight as you do not have any prior history and you do not have any significant issues to grapple with. Further it is clear from the materials tendered that the impact of the accident and the prolonged criminal process has had a significant impact upon you.
46 In all the circumstances in my view your prospects of rehabilitation are very strong. At 51 years of age, you have no prior criminal history of any kind, you have demonstrated a good work history, you are otherwise a man of good character and you have close community support. In all the circumstances in my view a community correction order is the most appropriate disposition and I had you assessed for such as order.
47 You have been assessed as a low risk of reoffending and thus minimal order conditions are recommended, primarily in line with evidence based practice that minimising intervention is an effective way of maintaining a person’s low risk of recidivism. Further, while you would benefit from further counselling to deal with the ongoing reactive trauma you have suffered as a result of the accident, as there is no link between the offending and any mental health condition, no treatment conditions will be ordered. Thus the order will only contain a punitive condition, being unpaid community work in addition to the core conditions.
Sentence
48 Mr Yu, will you please stand.
49 I-Ching Yu, on Charge 1, dangerous driving causing death, and Charge 2, dangerous driving causing serious injury, you will be convicted and placed on a community correction order for a period of two years. Pursuant to s 40 of the Sentencing Act 1991, this is an aggregate order.
50 In addition to the standard conditions attached to all community correction orders, you will be required to complete 150 hours of community work.
51 On Summary Charge 7, using an unregistered trailer, you will be convicted and fined $100.
52 Pursuant to section 89(1) and s 89(2)(a) of the Sentencing Act 1991, any licence you hold will be cancelled and you will be disqualified from obtaining a licence for 18 months from today.
53 Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty I would have sentenced you to a period of three months imprisonment, together with a community correction order.
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