Director of Public Prosecutions v Yu

[2018] VCC 83

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01721

DIRECTOR OF PUBLIC PROSECUTIONS

v

WENTING YU

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2018
DATE OF SENTENCE:	12 February 2018
CASE MAY BE CITED AS:	DPP v Yu
MEDIUM NEUTRAL CITATION:	[2018] VCC 83

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 D. Porceddu	Office of Public Prosecutions
For the Accused	Mr T. Shocker	Stary Norton Halphen

Pages 1 - 5

 

 

HIS HONOUR: 

1Wenting Yu, you have pleaded guilty to one charge of dangerous driving causing death contrary to s.319(1) of the Crimes Act 1958. The maximum penalty for that offence is 10 years' imprisonment.

2You pleaded guilty at the filing hearing in the Magistrates' Court and I have taken your early plea into account in your favour in mitigation of sentence. 

3It is a high value plea which has spared the community the expense of a complex criminal trial and a number of witnesses the burden of giving evidence of traumatic events.  It is also evidence of your deep remorse in this case and I have taken your plea into account in your favour in mitigation of sentence.

4You have no prior convictions, subsequent convictions outstanding charges or indeed traffic infringements.

5A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –   

6At approximately 8 pm on 4 March 2016 you were driving members of your family to the top of Mt Dandenong to observe the sunset.  You were carrying four passengers, two of whom were your grandparents, who were in Melbourne to visit you and to have a holiday.  They were to return to China the following day.

7At the time, you were an extremely inexperienced driver.  You had held a driver's licence since January 2015 but had only commenced driving when you purchased your vehicle in December 2015.  That is, three months prior to the collision. 

8Apart from driving lessons, you had not ever driven prior to gaining your licence and due to your age you were not required to complete the 120 hours driving required of persons under 21.

9On the evening in question, a cousin who was an experienced driver was to drive your relatives to Mt Dandenong and he became ill and the task fell to you.  You entered the Mt Dandenong Tourist Road approximately two kilometres from the collision scene to drive up the mountain.  The road conditions were dry and the weather fine but the road is a winding complex single lane roadway. 

10Four other vehicles were following you and you were driving at 40 kilometres an hour in a 70 kilometre zone.  Although advisory signs suggested vehicles travel at 45 kilometres an hour around the tight bends.

11Concerned about the vehicles behind you and wrongly thinking that the roadway was a dual carriageway you moved to the right lane to let the vehicles pass.  You remained in that position for between 15 and 20 seconds.  On a blind right hand corner your vehicle was struck head on by an oncoming vehicle carrying two persons. 

12The occupants of that vehicle did not suffer serious injuries and they were extremely fortunate to have not done so. 

13In your vehicle, your grandfather suffered injuries from which he died on 5 March 2016 and your grandmother and others were also injured as were you.  The collision was caused by your confusion regarding the carriageway and your great inexperience as a driver. 

14I accept that your driving was dangerous, as do you by your plea, but the root cause of it was as I have described.  You had not consumed any alcohol or drugs and you were not driving in excess of the speed limit and further there was nothing deliberately reckless about your driving.

15In my opinion, your offending falls at the lowest end of the scale of seriousness for this offence and had your vehicle crossed over to the wrong side of the road for a significantly shorter period I doubt that the charge could be made out against you.

16This is a tragic case with tragic consequences for you and whilst I am also required to have regard to principles of general deterrence and punishment in fixing the sentence in this case I have no doubt that your moral culpability for your offending is also at the lowest end of the scale for such cases. 

17I also accept that the protection of the community is an important sentencing consideration in cases such as this and that the court must play a role in that regard.  However, in my opinion, based on my experience as a judge this is properly described as an exceptional case. 

18I now turn to your personal circumstances.  You were born in Shanghai, China on 20 June 1990 and are now aged 27.  You are an only child, unmarried and have no dependents.  You completed your secondary and tertiary education in China and came to Australia on a student visa in 2012 and commenced a master of accounting degree at the University of Melbourne.  You completed that degree in 2014 and are now a qualified accountant.  You are employed by a clothing design company.  I have received in evidence a number of character references that speak very highly of you and you have been engaged in community volunteering, assisting disadvantaged persons and refugees.  You have completed a road trauma course and a defensive driving course since this tragic collision. 

19I have also received in evidence two psychological reports of Mr Patrick Newton setting out your background and psychological profile.  You are deeply remorseful for what occurred, including the injuries to the passengers of the other vehicle, and you have developed a depressive disorder as a result of your distress.  You require ongoing treatment and counselling in relation to this. 

20The collision has had, in effect, a devastating impact upon you and Mr Newton is firmly of the view that you require ongoing treatment in the community. 

21In my opinion there is little or no risk of you re-offending and specific deterrence is not a factor in this case.  Your prospects of rehabilitation may properly be described as excellent.

22Despite all the objective factors in this case that I have referred to the prosecution submitted that the only sentencing option available to me was one of imprisonment. 

23As I made clear during the hearing of this case, I do not agree.  In arriving at the conclusion that I have, I have had regard to the sentencing statistics provided to me and the particular observations of the Court of Appeal in Akoka [2017] VSCA 214 regarding the role that mercy plays in the sentencing synthesis.  Quite apart from the facts I have recounted, yours is a case that clearly, in my opinion, engages that principle.

24In the result, I had you assessed for suitability for a Community Correction Order and you have been assessed as suitable in that regard.  In my opinion, the purposes for which this sentence is to be imposed will clearly be met by the imposition of that disposition.

25In the result, the sentence of the court is as follows –

26Without conviction, you are released on a Community Correction Order for a period of two years on the usual conditions. 

27I direct that you undergo supervision during the period of the order and that you carry out 100 hours of unpaid community work.

28Do you agree to enter in a Community Correction Order on those terms?

29OFFENDER:  Yes.

30HIS HONOUR:  Thank you. I will sign the order, well, actually, can you come out of the dock and sign the order please?

31All drivers licences held by you in the State of Victoria are cancelled and you are disqualified from obtaining a licence for a period of 18 months. 

32I do not propose to make an s.464ZF order in this case because in my opinion it is not in the interests of justice to do so. 

33Are there any further orders required Mr Raimondo?

34MR RAIMONDO:  No, Your Honour.

35HIS HONOUR:  Mr Shocker?

36MR SHOCKER:  No, Your Honour.

37HIS HONOUR:  Thank you.  A copy of that order will be made and provided to your client and you will explain it to her?

38MR SHOCKER:  I will, Your Honour.

39HIS HONOUR:  We will adjourn until 10.30.

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