Director of Public Prosecutions v Yual

[2019] VCC 1981

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01006

DIRECTOR OF PUBLIC PROSECUTIONS

v

DIU CHUOL YUAL

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2019
DATE OF SENTENCE:	29 November 2019
CASE MAY BE CITED AS:	DPP v Yual
MEDIUM NEUTRAL CITATION:	[2019] VCC 1981

REASONS FOR SENTENCE
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Subject: Negligently causing serious injury, Conduct engendering persons & – Exceeding the prescribed concentration of alcohol in blood within 3 hours of driving
Catchwords:
Legislation Cited: s.89 of the Sentencing Act 1991, s.6AAA of the Sentencing Act,

Cases Cited: R v Barci & Asling (1994) 76 A Crim R 103 at 111, R v Azzopardi: 7 (2011) 35 VR 43 at [34]),

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik	OPP
For the Accused	Mr C. Carr	Yang & Vale Pty

HER HONOUR: 

1Diu Chuol Yual you have pleaded guilty to 2 charges:

·    (1), of negligently causing serious injury with a maximum penalty of 10 years.

·    (2), of conduct engendering persons with a maximum penalty of 5 years.

·    You have also agreed to have dealt with by me and pleaded guilty to Summary Charge 15 – Exceeding the prescribed concentration of alcohol in blood within 3 hours of driving – the maximum penalty is a fine NOT exceeding 20 penalty units.

2Additionally, given the nature of your offending and involving as it did your use of a car, there is a mandatory license disqualification period. 

3This offending relates to an incident that you were involved in on
14 January 2019 when you were on "P" plates, and driving your car – the registration had expired on your car. The full details of your offending are in the Prosecution Opening (Exhibit A) and can be summarised as follows:

Circumstances of offending

4At approximately 4.45 am on 14 January 2019 Mark Ryan was driving his partner's Toyota Corolla to work - He stopped at a red light at the junction of Springvale Road, Centre Road and Princess Highway.  That is the intersection.  You were travelling along the Princess Highway with 5 passengers, only you and one of the other passengers were wearing seat belts and you did not have your "P" plates displayed.  You had all been drinking alcohol at a party in Richmond.

5A driver had stopped at lights close to the intersection waiting to turn right, noticed your car "flying past" and travelling at excessive speed.  You continued speeding along Princess Highway and went through a red light, colliding with the passenger side of Mr Ryan's car.  The impact caused Mr Ryan's car to mount the traffic island in the middle of the road and spin around -  Your car spun around and stopped about 12 metres from the area of impact.  That is the conduct constituting negligently cause serious injury, Charge 1.  (Charge 1 – Negligently causing serious injury)

6Another driver who had cleared the intersection heard what he described as an "almighty bang" and he thought that a "bomb had gone off".  000 were called.  Mr Ryan was non-responsive and needed to be extracted from his car with life threatening injuries and taken to hospital.

7One of your passengers, Ms Sanga was injured and trapped in the car while she was receiving assistance.

8You were observed going to the back seat of the car and gave police a false name and date of birth.  However, you were identified by a witness as the driver of the car, wearing a red and black top.

9You admitted driving the car but said you were unsure about what had occurred.  You were taken to hospital by ambulance with police.  Your real name was revealed when your mother arrived at the hospital.

10There you also admitted that you had been at a party drinking and you were breathalysed and found to have a BAC of .207%  

11Your passengers had varying levels of injuries and each were transported to hospital.  That is the conduct endangering persons, Charge 2.  (Charge 2 – Conduct endangering persons) . 

12You suffered multiple bone fractures and a serious neck and back injury.  You underwent spinal surgery on 17 January 2019 and remained in hospital until 20 January 2019.

Arrest and Interview

13When released from Hospital you participated in a Record of Interview with police – you gave No Comment responses and were remanded into adult custody.  You have remained there since that date.

14As a consequence of examinations and investigations by  Major Collision Investigation Unit of Victoria Police, the following was noted:

•   No brake marks were observed at the scene indicating that neither vehicle had applied the brakes prior to collision;

•   You were travelling at a minimum speed of 113 km/h and Mr Ryan at 82 km/h when the collision occurred.  The relevant speed limit at the time was 80 km/h.

•   There were no mechanical faults with your car that would have caused or contributed to the collision.

15The prosecution relied on the following to establish your negligence:

•   Speed 33 km/h above the speed limit;  and

•   Alcohol BAC of .207%;

•   Breach of the road rules (by running a red light).  These features or conducted caused then Mr Ryan serious injury.  

•   Further you recklessly placed your 5 passengers, friends of yours,  in danger of serious injury. (Charge 2)

Effect on victim and victim impact statement

16Mr Ryan suffered traumatic severe brain injuries that required emergency life-saving surgery.  He was admitted to Intensive Care Unit (ICU) with injuries including:

·    Bleeds around the left and right side and left frontal area of the brain;

·    Multiple brain bruising and bleeding in the brain tissue; and

·    Left sided skull fracture and multiple lacerations on the head.

17An analysis of his blood confirmed he was not under the influence of any drugs or alcohol at the time.

18Mr Ryan underwent surgery that included:

·    Removal of the blood collection by surgical placement of a hole into his skull;

·    Drainage device insertion to relieve pressure in the brain (external ventricular drain EVD)

·    Brain pressure assessment and treatment by insertion of pressure monitor into the brain

19Mr Ryan also underwent intubation to maintain his breathing with subsequent artificial ventilation for over 2 weeks.  He remained unconscious and in deep sedation until 24 January 2019.

20He also required a tracheostomy into the throat airway.  He left ICU on
6 February 2019, though remained in hospital for some months.

21Medical opinion was that Mr Ryan had suffered life-threatening injuries, and without the surgery and treatment he received, he would have died. 

22This matter was adjourned part heard so that I could receive an update of
Mr Ryan's condition and prognosis. 

23I received a letter from Dr Kim Proudlove, one of Mr Ryan's treating doctors from the Alfred.  Clearly the prognosis is not good.  In paragraph 7 she says:

'In terms of his prognosis, Mr Ryan may show some improvement in his walking with time and ongoing physio.  His hearing is likely to remain impaired lifelong.  His cognition may demonstrate some minor recovery over the next few years but it's impossible to predict which areas of cognition this may be and to what degree.  He will likely always need support in the community for things such as decision making, activities of daily living, finances and community access'.

Victim Impact Statement

24I received a victim impact statement from Melinda Curson, Mr Ryan's partner.  The impact of your actions on their 2 boys and the family unit has been "massive" – they now live with stress, complications and confusion. 
Ms Curson's work, sleep and mental health have been affected and the boys are angry, more clingy and dependant on her.  Financial pressures are also impacting on the family and there remains uncertainty about Mr Ryan's level of recovery and capacity to ever return to normal.  Relationships with extended family have been significantly strained, as have social activities of the family, including involvement at the local cricket club which is no longer possible.

25Mr Ryan was in hospital and rehab for about 7 months – he has had to move in with his parents as he needs 24 hour supervision.

26Ms Curson says: "This has had a devastating  effect.  To put  it simply - my life will never be the same, my boys lives will never be the same.  Mark is a shell of the larger than life man that he was".

Personal circumstances 

27I received a report from Pamela Matthews dated 25 September 2019 (Exhibit 1).  I also received a number of character references and certificates from courses that you have completed in custody (Exhibits 2 and 3).  I take all of this material into account. 

28You were born in South Sudan, moved to Kenya when you were 2 or 3, then came to Australia with your family as refugees.  When you came to Australia, you were aged 5.  You are currently aged 20. 

29You come from a large family with many siblings, two of which have physical and cognitive difficulties and are reliant on your mother for care.  Other extended family members also provide support.

30You attended the local primary school first in Hobart and then when the family moved in Melbourne.  You completed schooling at a small Christian school, Lighthouse Secondary College.  You were a good student and successfully completed your VCE in 2016 with good results.

31You are a talented basketballer – during Year 12 you were awarded a scholarship to play for a North Carolina 'prep school', with the objective of securing a College basketball scholarship in the United States.  I was informed that you commenced working in Alice Springs after you had finished school to save funds and that you returned to Melbourne in order to fly out to the United States in November.  You had booked your ticket – however your visa application was denied and understandably, you were very disappointed and gave up playing.  You went back to Alice Springs to live with your brother and cousin in 2018 and returned to employment there at Woolworths.  You were promoted to second in charge of the fresh produce section and you contributed funds to support your large family at home from this job. 

32In about November 2018, after missing your family and friends, you returned to Cranbourne, planning to study in 2019 at university.  Upon your return, however, you commenced drinking alcohol heavily, regularly partying with friends.  This incident occurred about a month and a half after you had come home. 

33You have no prior criminal history, though I was informed that you have one matter outstanding in the Northern Territory, relating to an alcohol reading above the limit in that state.  This is not a prior, however, may suggest alcohol was an issue for you prior to your return to Melbourne.  I was informed there was an outstanding warrant as you failed to attend court for the hearing of that matter.  I draw no adverse inference from those matters given they are unresolved.

34It is clear from the material provided to me that you have significant supports within your family, including from members of your extended family, school friends and the community.  You have contributed to both and are described as a hardworking and considerate young man.  You consider yourself as part of your family's strong religious tradition, linked to your tribe in South Sudan and I was informed your faith had assisted you in dealing with adult prison since January this year.

35You yourself suffered fractures in the collision, including spinal fractures, which has required you to  use of painkillers.  Your prognosis was not positive and consistent with that prediction, you have suffered back and neck pain since the offence.  Your back continues to cause significant difficulties in your day-to-day life.  Further, this ongoing pain is a constant reminder of your criminality and this incident serves as an element of punishment.  See R v Barci & Asling (1994) 76 A Crim R 103 at 111

36You were arrested immediately  after the incident and hospitalised for about a week.  Thereafter, you were remanded into adult prison.  Your counsel submitted your experience in custody has been particularly onerous, for two reasons.

37The pain connected to your injuries limits your movement – you have difficulty sleeping and remaining in the same position for an extended periods. You are as a consequence of your injuries unable to work and thus not able to earn money and find it challenging to relieve the boredom.

38Ms Matthews' opinion as to the adverse impact your depression has on your experience of custody.  As a consequence you find custody more difficult than others of your age and the applicable stage of your development.  You have felt particularly lonely in custody.

Plea of guilty – remorse

39You pleaded guilty to these matters at the first opportunity.  I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  None of the witnesses have been required to give evidence and relive this traumatic incident. 

40I accept your plea is indicative of remorse.  You have expressed true and profound remorse to family members, one of whom gave evidence and to your school principal.  Your remorse is consistent with Ms Matthews' assessment and also that by Youth Justice who prepared a pre-sentence report dated 31/10/19.  You have also indicated to your principal that you want to speak to the students so that they have an insight into the profound impact that driving and alcohol mix can have on other people and their loved ones.

Rehabilitation

41Your counsel submitted you had excellent prospects for rehabilitation on the basis of your:

i.youth;

ii.remorse;

iii.supportive family;

iv.commitment to warning others of the risks of such offending, when you are released;

v.previous good character and limited application of specific deterrence

42It was submitted that you were a young person who could return to a productive life after the completion of your sentence.

Young offender

43You are a young offender – the consequence that usually follows is that less weight is given to general deterrence,  and rehabilitation prospects are considered more important.  However, in offences involving the use of motor cars and driving, with the devastating consequences, the prominence denunciation and general deterrence are such that youth cannot have its usual significance, though it does remain a consideration. 

44It remains the case that a young offender is not to be sent to an adult prison 'if such a disposition can be avoided', and '[t]he benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender'.

45In assessing the seriousness of offending, and culpability of a young offender for that offending, the law recognises that young people are more prone to engaging in impulsive and immature conduct, without fully appreciating its seriousness. (see Redlich JA in R v Azzopardi: 7 (2011) 35 VR 43 at [34])

46These remarks need to be seen though in the context of what I previously stated in relation to the reduction of significance in the sentencing exercise when it involves a young offending in offending of this kind.

47The remarks made by Justice Redlich appear consistent with Ms Matthews' professional assessment of you (see para).

48It was submitted that the Court should recognise the immaturity in your decision to drink and drive in the manner in which you did and that your immaturity bears upon your culpability and the weight to be given to deterrence in sentencing you.

Sentencing Submissions

49Your counsel submitted I should impose a Youth Justice Centre Order – that any further time to be served should be in that facility.  The offending was serious, but not so serious as to preclude such a disposition, in a case such as this, where you were 19 when you offended, have no prior convictions, are remorseful and have good prospects for rehabilitation.

50The prosecution submitted that a term of imprisonment should be imposed with me giving you a head sentence and a non-parole period.  It was submitted that Youth Justice was not within the sentencing range given the seriousness of this offending, the objective facts and that youth plays a diminished role given this type of offending.

51I was referred to a number of authorities by both counsel.  Some guidance in respect of offending of this nature can be gleaned but each case depends on the individual personal circumstances of the offender and the circumstances of the offence.  Your actions were all too common in the cohort of members of the community to which you belong, namely, young men affected by alcohol, driving, speeding, having others in the car with you and disobeying road rules, a dangerous combination.

52This experience shows the damage that can be done to others on the road when you completely disregard the duty that you owe to other road users.  The community expects denunciation, general deterrence and just punishment for such actions.  The effect on Mr Ryan and his family has been devastating.  These considerations must be balanced with your plea, youth and rehabilitation prospects.

53One matter of significance in relation to the sentencing exercise before me is that you have already spent about 11 months in adult custody.  I received a report from Youth Justice.  I take that material into account.  You meet the relevant criteria under the Sentencing Act in respect of your suitability to be sentenced to a term in a Youth Justice facility. 

54Could you please stand.

55In respect of Charge 1, you will be convicted and sentenced to a term of imprisonment of three and a half years.  In respect of Charge 2, you will be convicted and sentenced to a term of imprisonment of one year.  Six months of the sentence imposed on Charge 2 will be cumulative on the sentence imposed on Charge 1. 

56In the exercise of my power under the Sentencing Act, that sentence is to be served in a youth detention centre. 

Ancillary Orders

57Pursuant to s.89 of the Sentencing Act 1991 your license is cancelled and you are disqualified from obtaining a license for a period of 2 years

58Section 464ZF - Retention order will be made.  Is there a disposal order?

59MR MALIK:  I will just check, Your Honour.

60HER HONOUR:  And PSD please.

61MR MALIK:  313 days' pre-sentence detention from 20 January 2019.

62HER HONOUR:  Is that agreed, Mr Carr?

63MR CARR:  Yes, Your Honour.

64HER HONOUR:  I declare 313 days' PSD.

65MR MALIK:  No disposal orders, Your Honour.

66HER HONOUR: All right. If you had not pleaded guilty to this matter, pursuant to s.6AAA of the Sentencing Act, I would have imposed a sentence of imprisonment of six years with a non-parole period of three.  Any other matters?

67MR CARR:  Your Honour, said a youth detention centre.  Your Honour meant, presumably, Youth Justice centre.

68HER HONOUR:  Yes, I am sorry, I am just using the old language.

69MR CARR:  Yes, no, thank you, Your Honour.

70HER HONOUR:  Yes, a Youth Justice centre order, thank you.

71MR CARR:  Thank you, Your Honour.

72MR MALIK:  As Your Honour pleases.

73HER HONOUR:  Thank you, I will stand down.

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