Director of Public Prosecutions v Zam

[2020] VCC 283

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No CR-18-02524

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUAN HLEI THANG ZAM

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 3 February 2020 - 10 February 2020 Plea: 4 March 2020
DATE OF SENTENCE:	13 March 2020
CASE MAY BE CITED AS:	DPP v Zam
MEDIUM NEUTRAL CITATION:	[2020] VCC 283

REASONS FOR SENTENCE

Subject:   CRIMINAL LAW   

Catchwords:   Guilty verdict – one charge of dangerous driving causing death – no prior criminal history – failure to keep a proper lookout and give way – fatal collision with motorcycle – moral culpability in the lower range – genuine remorse – very strong prospects of rehabilitation.                  

Legislation Cited:   Crimes Act 1958, Sentencing Act 1991.

Cases Cited:Cheung v The Queen (2001) 209 CLR 1, DPP v Neethling (2009) 22 VR 466, R v Whyte (2002) 55 NSWLR 252, R v Musumeci (Unreported, NSWCCA, 30 October 1997), Boulton v The Queen (2014) 46 VR 308.

Sentence:  Imprisonment for a period of 6 months together with a Community Correction Order for a period of 2 years.                  

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R Gibson QC	Office of Public Prosecutions
For the Accused	Mr L Barker	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1. Tuan Hlei Thang Zam, you have been found guilty of one charge of dangerous driving causing death, contrary to s 319(1) of the of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment.

2. You have no prior criminal history.

Circumstances of the offence

1. In sentencing you, I am bound by the principles in the case of Cheung v The Queen.[1]  As such, I must interpret the facts in a way that is consistent with the jury's verdict.

   [1] (2001) 209 CLR 1.

2. The facts in this case however were largely not in dispute.  The defence advanced at trial was that the jury could not conclude beyond reasonable doubt that your driving was dangerous in all the circumstances rather, what occurred was a tragic accident.

3. At around 11.30am on Friday 15 December 2017, Conrad David, was driving his green Kawasaki motorcycle registration 1D5FP.  He was travelling along Liverpool Road in Kilsyth South.  He was on his way to the Aldi store in Bayswater running errands for his family.  The weather was fine, visibility was very clear, and the road was dry and in excellent condition.  It was a 70 km/h zone.

4. Prior to the collision, Mr David stopped at the red traffic light at the intersection of Canterbury and Liverpool Roads.  Mr David was the first to stop at the line in the right lane and other vehicles stopped behind and next to him.  When the lights turned green, the drivers all proceeded through the intersection.  Mr David remained first in line, followed by approximately six other vehicles and continued along Liverpool Road.  After the traffic lights, the left lane merges and forms one lane.

5. You were driving a white Nissan X-Trail and had just left your work in an industrial estate at 205-209 Liverpool Road, Kilsyth South.

6. You came to a very brief stop on Leeds Drive at the intersection with Liverpool Road and were travelling over the intersection with Liverpool Road into the continuation of Leeds Drive where you resided.

7. Mr David was on his motorcycle riding towards you.  The headlights of the motorcycle were on at the time of the collision.  He was followed by a line of traffic, in all about six vehicles.

8. You failed to give way to Mr David on your right-hand side and, as a result, Mr David attempted to avoid collision but impacted with the driver's door of your vehicle.

9. A car travelling in the opposite direction along Liverpool Road towards Canterbury Road had a dash cam fixed to the car.  The film from that dash cam was played and tendered at the trial.  The footage depicts the collision from the side facing your passenger door.  The footage, in combination with the eyewitness accounts, demonstrates that you attempted to cross Liverpool Road and did not see Mr David coming straight into your path.

10. Mr David received fatal injuries and died in the ambulance on the way to hospital.  The cause of death was determined to be 'injuries sustained in a motor vehicle collision.'

11. Dr Jenelle Mehegan, collision reconstructionist, gave evidence that the motorcycle was travelling between 65km/h and 75km/h as it approached the intersection with Leeds Drive.  At impact, you were not travelling at more than 21km/h.

12. There was no pre-impact or post impact tyre marks from either your Nissan X trail or Mr David's Kawasaki motorcycle.  The evidence also disclosed that the motorcycle was under braking at the time of the impact.

13. While there are native trees along both sides of Liverpool Road, the evidence at trial was that there is a clear line of sight from the industrial estate exit back to Canterbury Road.

14. You were interviewed by police on 15 December 2017.  In the interview you stated:

    ·You started work at 7.30am at a factory in Liverpool Road as an upholsterer.  You finished work at 11.30am and you went to drive home;

    ·You were aware you were required to give way at Liverpool Road;

    ·When you left work you called your wife and told her that you are coming home and then 'you drive, look out for cars both sides and then head off';

    ·When you stopped at Liverpool Road you stated that 'I normally look at the left and then the right because the left is closer to me';

    ·You think you looked to the right once and then you saw a car a 'bit far' so you went;

    ·You said you looked up to the right and you said, 'I didn't see anything at all';

    ·You agreed that you can see a fair distance down the road;

    ·You said you looked to the left and saw a white car coming and when asked if looked to the right again you said 'No, no because I didn't see anything so – I saw it then, like, I like - know I can cross over so I drove'; and

    ·You said you did not know where the motorcycle came from and could not think of a reason why you did not see it.

Nature and gravity of the offending

1. The offence of dangerous driving causing death is by its nature a serious offence as it involves the death of a human being.  The seriousness of the offence is also reflected by the maximum penalty set by Parliament, being 10 years imprisonment.  However, it is also an offence that is capable of covering a wide variety of circumstances.

2. In this instance the dangerousness of your driving was particularised by the prosecution as failing to keep a proper lookout.  You simply did not see the motorcycle in circumstances where, on the evidence, it should have been clearly visible.

3. Mr Barker who appeared on your behalf at the trial and plea, submitted that your failure to keep a proper lookout can only be characterised as transient and temporary.  Thus, it was submitted, that in all the circumstances your moral culpability should be assessed as low.  That said, your conduct, which is also able to be described as failing to give way, can result in very serious consequences as was the case here.

4. In DPP v Neethling[2] the Court identified the factors which may aggravate the seriousness of dangerous driving causing death as follows:

   [2] (2009) 22 VR 466

   ·     Extent and nature of the injuries inflicted;

   ·     Number of people put at risk;

   ·     Degree of speed;

   ·     Degree of intoxication or of substance abuse;

   ·     Erratic [or aggressive] driving;

   ·     Competitive driving or showing off;

   ·     Length of the journey during which others were exposed to risk;

   ·     Ignoring of warnings;

   ·     Escaping police pursuit;

   ·     Degree of sleep deprivation; and

   ·     Failing to stop.[3]

   [3] Ibid 473 [31], applying the decision of the New South Wales Court of Criminal Appeal in R v Whyte (2002) 55 NSWLR 252, 286 [216]–[217].

5. Of that non exhaustive list, it is self evident that most of the typical aggravating features of this offence do not apply in your case.  Speed, intoxication, erratic driving or distraction by a mobile phone or other distraction are absent in this instance.

6. However, giving way at a relatively busy road where the speed limit is 70km/h, in circumstances where you were seeking to cross over both lanes, required a significant level of attention.  That combination of circumstances also created a greater level of risk to other road users.  Thus, in my view the objective dangerousness is not in the lowest category.[4]

   [4] Ibid at [36]-[37].

7. Mr Gibson who appeared on behalf of the Director of Public Prosecutions submitted that in all the circumstances your moral culpability is not in the lowest category and that the offence generally sits in the middle range. 

8. In my view taking in to account what I have described in relation to the circumstances of the road and the manoeuvre you were attempting, and taking into account the absence of aggravating features, while your moral culpability is in the lower range it is not at the lowest level.

Victim impact statements

1. Five victim impact statements were tendered and read on the plea.  The five statements were from Mr David's wife, sister, brother, mother and father respectively.  I have taken the contents of all the victim impact statements into account.  The clear and consistent theme in all the victim impact statements is that Mr David was a much loved father, husband, brother, son and friend.  The statements eloquently speak of the enormous loss the family has suffered as a result of Mr David's death in such tragic circumstances.

2. Mr David had two young daughters who were aged five and two at the time of the collision and it is clear from the victim impact statements that he had a very special and close relationship with them.

3. I wish to direct some comments to the family of Mr David.

4. There is nothing this Court can say or do that will bring back Conrad David or heal your significant grief and pain.  The sentence I must impose can in no way be a measure of the worth of the life of Conrad David.  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.

5. I also wish to acknowledge that the family and friends of Mr David have conducted themselves in a dignified and respectful manner throughout this difficult criminal process.

Personal circumstances

1. You are 30 years of age and you were 28 at the time of the offence.

2. You were born in Burma (now Myanmar) and are the oldest of three children.  Your younger sister is studying accountancy and an MBA.  Your younger brother is studying medicine.  No member of your family has had any interaction with the criminal law.

3. Your family migrated to Australia when you were 19 years of age.  Your father came to Australia first on a student Visa and progressed to permanent residency, ultimately sponsoring the rest of your family.  When you came to Australia 11 years ago you did not speak any English.  You enrolled in English classes and ultimately completed Year 12 at Box Hill Institute.

4. In October 2011, you commenced work at Rae-Line where you work as an upholsterer and you have remained in that employment since.  You are a leading hand and manage a team of 15 employees.  You are a skilled employee and have in recent years been awarded Employee of the Year.  I received a number of references from that organisation, including from the Managing Director.  They all speak very highly of you as an employee and colleague.

5. You are married and have two children; one will turn three in April and your second is six weeks old.  You live with your wife and children at your parents' home and will continue to reside there for the next few years.  Your parents are very supportive of you and your family.

6. You are an active member of the Chin Community in Victoria.  The Chin Community is a community of people who support those people who are from Myanmar and have settled in Melbourne.  In a reference from Piang Lilian, the President of the Chin Community organisation, you are described as a person who is active in the community and a regular volunteer in community activities.

7. You are also an active member of the Emmanuel Christian Church and have been a volunteer teacher since 2018.  The Chairman of that church, Wesley Bawia, provided a reference where he speaks of your dedication and the respect you have from other church members.

8. In addition to the references I have already referred to, a number of other references were tendered at the plea representing a cross section of family, friends and colleagues.  All the references speak in a united voice that you are widely respected, trustworthy and dedicated to your family and your church.

Relevant sentencing considerations

1. The considerations that I am required to take into account in sentencing for the offence of dangerous driving causing death are well established and are conveniently distilled in DPP v Neethling[5]. In Neethling, the Court adopted the following principles in relation to sentencing for the offence of dangerous driving causing death:

   ·General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury;

   ·A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment;

   ·The sentence which is imposed must take account of variations in the moral culpability of the person responsible; and

   ·A custodial sentence will usually be appropriate for this offence, except in cases where the offender's level of moral culpability is low.

   [5] Ibid at [30].

2. The Court in Neething[6] also adopted the considerations summarised by Hunt CJ in the NSW Court of Criminal Appeal decision of R v Musumeci[7] including that:

   ·The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness;

   ·The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life;

   ·Such is the need for public deterrence in this type of case, that other factors … must be given less weight as subjective matters than … might be the case in other situations; and

   ·The courts must tread warily in showing leniency for good character in such cases.

   [6] Ibid at [28].

   [7] Unreported, NSW Court of Criminal Appeal, 30 October 1997.

3. In the circumstances of this case it is clear that general deterrence is the primary sentencing consideration.  The roads are a dangerous place and even a momentary lapse of attention can have catastrophic consequences.  As noted above, in my view crossing Liverpool Road in all the circumstances presented at the time was not a simple manoeuvre and required a degree of focus.  The message that must be conveyed is that persons committing an offence of this nature will face serious consequences.

4. Just punishment and denunciation of your conduct are also relevant considerations.  However, specific deterrence in my view need not carry weight in the sentencing equation.  You have no prior criminal history and are otherwise an honest, hardworking committed family man with strong community support.  Further, it is clear from the material that you have been greatly affected by the death of Mr David.

5. You provided a letter to the court where you express your sorrow to the family of Mr David.  While such letters are often viewed with caution, particularly after a trial, in this instance when read in conjunction with the other materials in relation to your character, in my view you have expressed genuine remorse.  Further, I note your comments to the officer who assessed you for a community correction order where you again appropriately expressed your remorse in relation to the death of Mr David.

6. The question at trial was whether the collision was the result of a tragic accident or as a result of a serious breach of the proper management or control of your vehicle.  As such, you through your counsel, did not contest the prosecution evidence to any great degree.  However, while the trial was run efficiently, you are not entitled to the discount that would have been open to you had you pleaded guilty.

7. As to your prospects of rehabilitation, I note that you have no prior criminal history and you have no issues to grapple with such as drugs or alcohol.  You have strong supports in the community.  In all the circumstances in my opinion your prospects are able to assessed as very strong.

8. As noted during the plea, sentencing in these circumstances is a difficult exercise.  On the one hand, you have lived a blameless life and made a terrible momentary mistake on the day of the collision.  On the other hand, the consequences of that mistake were catastrophic resulting in the death of Conrad David.

9. Mr Barker submitted that in all the circumstances, a community correction order alone is within range noting, with reference to Boulton v The Queen[8], that such orders are able to be applied even in cases of serious offending.

   [8] (2014) 46 VR 308.

10. Mr Gibson submitted that in the circumstances a period of immediate imprisonment is required however that any term of imprisonment may be part of a combination sentence pursuant to s 44 of the Sentencing Act 1991.

11. I had you assessed for a community correction order and unsurprisingly, you have been assessed as a low risk of reoffending.  Further, as you have no other issues to overcome, the only recommended condition is community work.

12. Balancing all the relevant considerations, in my view a term of imprisonment is required. However, I am also of the view that a combination sentence pursuant to s 44 of the Sentencing Act 1991 is able to meet all the relevant sentencing considerations in this instance.

Sentence

1. Mr Zam, will you please stand.

2. Tuan Hlei Thang Zam, on Charge 1, dangerous driving causing death, you will be convicted and sentenced to 6 months imprisonment. That term of imprisonment is the prison component of the sentence pursuant to s 44 of the Sentencing Act 1991.

3. In addition to the prison component of the sentence, upon your release you will be placed on a community correction order with conviction for a period of 2 years.  You will be required to complete 250 hours of community work over that 2 year period.

4. Pursuant to ss 89(1) and 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.

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