DPP v Laz
[2021] VCC 1986
•24 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 21-00478
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AYSE LAZ |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 24 November 2021 | |
CASE MAY BE CITED AS: | DPP v Laz | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1986 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr A. Hodgeman | OPP |
| For the Accused | Ms J Krezenbacher | Doogue & O’Brien |
HER HONOUR:
1 Ayse Laz, you have pleaded guilty to the following offences which have the relevant maximum penalties. Culpable driving causing death, Charge 3, 20 years. Negligently causing serious injury, Charge 4. Theft of motor car, Charge 1. Dangerous driving whilst being pursued by police, Charge 2. Failing to stop and render assistance, Charge 5. Each of those charges has a maximum penalty of 10 years. Possession of drug of dependence, Charge 6. In circumstances where I am satisfied that the drugs were for personal use, maximum penalty 12 months or 30 penalty units.
2 Culpable driving causing death is a standard sentence offence and so the scheme under s5A of the Sentencing Act, or Act applies. The standard sentence is eight years' imprisonment. Further, it is a category 2 offence under the Act, though your counsel did not seek to rely on any of the exemptions conceding that a term of imprisonment was warranted.
3 The maximum penalty, particularly that in respect of Charge 3, reflects the devastating and catastrophic consequences for victims and the seriousness with which parliament regards this offence. You have also agreed to have dealt with by me, and pleaded guilty to the following related summary offences.
4 Driving whilst authorisation suspended with a penalty of two years' or 240 penalty units;
5 Committing indictable offence whilst on bail, and contravening a conduct of the condition of your bail. These latter offences both have penalties of three months or 30 penalty units.
6 The circumstances of this offending, including your involvement in unrelated criminal activity at your house immediately leading up to it, is set out in Exhibit A of prosecution opening. That document sets out the details of your journey, specific multiple breaches of road laws constituting dangerous driving, including when being pursued by police, and your driving that led to the death and serious injury on impact with another driver and pedestrian respectively.
7 You, Adam Doyob and Penil Kok, were involved in a robbery against a mobile hairdresser who was attending your house. Mr Doyob, was the main participant in that offending, however ultimately, you stole that victim's car and drove off with Ms Kok through Meadow Heights. Police had been alerted to that robbery and commenced following you in an unmarked car and attempted to intercept you.
8 You did not stop and accelerated away. This driving was the commencement of your conduct or driving constituting Charge 2. You drove over a raised concrete divider, onto the wrong side of the road, and around three stationary cars. You then drove into an intersection against a red traffic light, across three lanes of traffic and turned right onto Pascoe Vale Road.
9 Victoria Police Air Wing had commenced aerial surveillance of your car. You started to panic having seen the helicopter and police behind you and you accelerated, driving effectively as fast as you could. Between 6.38 pm and 6.54 pm or approximately 15 minutes, you drove through Meadow Heights, Broadmeadows, Dallas, Campbellfield, Fawkner, Pascoe Vale, Brunswick and Flemington, before entering the CityLink at Moreland Road. You drove whilst exceeding the speed limit, travelling up to 140 kilometres an hour in a 70 km zone, disobeying or running eight red lights and overtaking other vehicles in an unsafe manner. (See paragraph 28 of Exhibit A.)
10 As to your circumstances regarding Charge 3, 4 and 5. At 6.54 pm, you exited CityLink and proceeded towards the central business district of Melbourne. You continued to drive erratically in the city on tram tracks and through red lights. This was particularly dangerous, given there were a number of people around, as it was grand final day.
11 You were using your mobile phone, talking to a friend whilst driving. Unfortunately, two people just happened to be in this vicinity. Mr Carshen Chow a 36 year old Malaysian student was riding his scooter carrying out delivery duties, and Mr Bing Hong Tran a 64 year old builder, was crossing at a pedestrian crossing near Flagstaff Gardens.
12 You continued to drive in that dangerous and erratic manner as described above. You swerved to avoid cars on King Street, before immediately colliding with Mr Chow's scooter. He was dislodged from his seat and he became air borne. His head impacted with the passenger side of your roof and he was thrown over it onto the road, suffering catastrophic and fatal injuries. The impact was such, that the scooter rotated and travelled along with the debris throughout the intersection.
13 After hitting the scooter, you immediately swerved right and struck Mr Tran on the left-hand side of his body as he was crossing Latrobe Street. The impact caused Mr Tran to fall face first onto the road in the middle of the tram tracks in the centre of Latrobe Street. He was thrown to the ground and was unable to stand up or move off the road.
14 You did not stop and render assistance to either victims. Rather, you accelerated and headed towards Docklands. Other witnesses called triple 0, additionally police had been observing your driving from the police helicopter and CCTV footage at the intersection.
15 Your driving included as part of Charge 2 then continued. You drove at a fast speed and proceeded through three red lights in the CBD, (see paragraph 49. ExA) You then travelled to Altona North, Brooklyn, Ardeer, Sunshine North, Keilor East and Airport West before exiting the Western Ring Road at Pascoe Vale Road Jacana.
16 You were exceeding the speed limit and disobeyed three more red lights, continued to drive erratically and dangerously, whilst continuing to talk on your phone. (See paragraphs 52 and 53.Ex A)
17 At about 7.20 pm, police caught up with you and activated their emergency lights. You did not stop and continued driving in this dangerous manner. Ultimately, the police orchestrated a collision with you, so that you were unable to continue as your car was pinned in a position and unable to be moved.
18 You then ran from your car and were chased by police, though you were ultimately caught and arrested. You were not injured in any of the collisions though you were deemed unfit to be interviewed. The entirety of your driving and arrest was captured on video footage recorded by a camera in the Air Wing. Additionally, CCTV footage of the collision with both of your victims was available.
19 It is fair to say that the footage is confronting and shocking. Your passenger, Ms Kok, was taken to hospital for treatment for an injury to her shoulder. She was later interviewed by police and released. She provided police with a statement that included details of your demeanour whilst driving and avoiding police apprehension.
20 At the time of this offending your learner's permit had been suspended for speeding, and you were on bail for nine separate criminal matters, involving multiple serious driving, drug assault and deception offences. One of the conditions of the bail was that you would not drive without a valid licence. Those are the circumstances constituting the summary offences. A body search was conducted by police on you, and two Ziplock bags containing methylamphetamine were located.
21 Subsequent place investigations revealed;
(1) that at the time of the collision with the scooter your car was likely travelling between 52 and 55 kilometres an hours in a 40 zone;
(2), there were no faults, failures or conditions with your car, that could have caused or contributed to the collision;
(3), the blood sample taken from you was found to contain .31 megalitres of methylamphetamine and .11 megalitres of amphetamine.
22 Dr Angela Sungaila opined that this level found in your blood was a recreational level. Your behaviour with respect to speeding, risk taking, disregard for other road users, disinhibition and anti-social behaviour, were all in keeping with the effects of a stimulant use on brain function. Your actions at the time of engagement with police and the pursuit, were not in keeping with rebound fatigue per se however any impairment caused by the stimulant drug would have been amplified by sleep deficit, if it was present. You were clearly incapable of maintaining the proper control of your car as a consequence of your ingestion of drugs and fatigue. (See paragraph 76, Ex A) .
23 Your culpability in respect of Charge 3 and criminal negligence in respect of Charge 4 are each constituted by the following factors;
(i) Driving into the intersection against a red light;
(ii) Driving whilst exceeding the speed limit, approximately 12-15 kilometres over the limit in a 40 zone.
(iii) Driving under the influence of methylamphetamine and amphetamine to such an extent as to be incapable of having proper control of the vehicle;
(iv) Driving whilst fatigued; and
(v) Driving whilst your learner's permit was suspended.
24 As to your victims, Mr Chow was taken to hospital via ambulance, but was unable to be revived. A post mortem found Mr Chow's death was caused by chest injuries sustained as a result of the collision. Mr Tran was also taken to hospital via ambulance. He was found to have suffered injuries to his arms, and more significantly his left foot, knee and leg. (See paragraph 47 Ex A)
25 He required intensive physiotherapy and was unable to walk without the aid of crutches for three weeks after the collision. His rehabilitation for his injury, to his anterior cruciate ligament continues.
26 I was provided with victim impact statements from Ms Kai Sin Chow on behalf of Mr Chow's family and from Mr Bin Tran. See Exhibits F and G.
27 Mr Chow was a much loved son and brother, studying in Melbourne to further his career and better his financial prospects to enable him to support his parents overseas. In a powerful and moving testament to the terrible tragedy associated with her brother's death, she notes;
'The sudden and tragic loss of my brother has left me in low spirits, even up 'til today. It's just agonising to realise he's no longer with us, especially during festive seasons where we have family celebrations together. My brother was supposed to return home to Malaysia in April after graduating. Then the COVID-19 pandemic happened. Due to the lockdown in Australia, he became a full-time delivery rider. I feel a sense of unfairness and at the same time confusion and anguish, that of all people, my brother had to be the victim in such coincidence, time and place. At the same time I feel disgusted by the actions of the offender, because I can't understand how such gangsterism on an innocent bystander happened. I'm still having sleepless nights and restless moments. At times, unable to focus very well on my work. I've inadvertently taken a heightened sensitivity towards almost anything related to the passing of my brother. Such is mentions of the word like delivery riders Australia, Melbourne and motorcycles. I've also developed a sense of insecurity at traffic junctions and pedestrian crossings, as I fear for my own safety and being constantly reminded of the same fate as his. Due to the pandemic, we were unable to travel to see his face for one last time. Still today, my mum constantly asks me if my late brother will detest her, as she decided to cremate his remains in Australia and not Malaysia. She never had the chance to say goodbye in person, or to hold his hand for the last time. My father whose always been the toughest guy in the family, finally broke down after the third day of realising that his first born son, will never return home.'
28 She concludes by saying, that this fateful episode has left a gaping hole in their family bond, and they have had to rethink their future plans.
29 Mr Tran indicates he still has issues with his knee and may require surgery. He has interrupted sleep and nightmares and flashbacks in relation to Mr Chow. He is anxious and depressed and requires psychological assistance.
30 Clearly, your offending this day has had a significant impact on your victims and their families.
31 As to your personal circumstances I was provided with a report dated 26 April 2021, from Michael Billick, Clinical Psychologist, Exhibit 3. A letter from your mother, Exhibit 2. Letters from you Exhibit 5. Bundle of material relating to completion of courses as part of prisoner education whilst on remand, Exhibits 4 and 6. I take all of that material into account.
32 You are currently aged 21 and are a young offender. You are the eldest of seven children. Your siblings are aged 19, 17, 13, 10, and twins aged three. You were all born in Australia. Your mother was born in Turkey and your father in Lebanon.
33 You completed Year 11 and had various jobs during that time in hospitality. However, your father became ill and you were unable to continue either work or school.
34 You reported a reasonably happy early childhood, however as you approached adolescence you became more aware of family violence between your parents. At one stage, your mother took you and your siblings to Shepparton, and on another occasion interstate, though invariably you all returned.
35 You, yourself were also subjected to physical abuse by your father. Despite this you were close to him, as he was able to maintain some order in the otherwise chaotic household. When you were aged about 12, your father was incarcerated for domestic violence related offending. At this time you went to live with your grandparents. This was for a period of about three months, you then returned home when he was released.
36 You became conscious of the extent of both of your parents' drug use and consequential impact on either of their ability to parent. Additionally, the domestic violence continued.
37 When you were 18, your father was diagnosed with cancer. His condition deteriorated rapidly and he required full-time care. He was confined to a wheelchair and needed assistance with all daily and personal tasks. Your mother was his primary carer and focused all her energy on that role, neglecting you and the other children. Additionally, there were significant financial issues and the basic care needs of all the children were not being met.
38 Shortly after your father died, your mother left the house for a number of weeks, leaving all of you behind, effectively abandoning you and your siblings, including the twins who were then aged one. You were unable to continue school or work. Four of your siblings were placed in the care of the Department.
39 You at this time, aged about 19, tried to get the care of those siblings, so the family could remain together. You attempted to organise the house and encouraged your mother to fight for the children. However, by about October or November 2019, you realised your siblings would not be returned. You did not seek any form of grief counselling or psychological assistance after your father's death or the breakup of the family unit. Rather you turned to drugs as a coping mechanism.
40 Your drug use, by the time of your offending was entrenched. Once aware of the robbery at your home, your actions were impulsive, motivated by fear, adrenalin and a disregard for your own life as well as that of others. When you realised you were being followed by police you panicked. You had been awake all the night before and used ice. You were unable to think clearly, but knew if you were caught, that you would be breaching your bail and were likely to end up in gaol.
41 It is unsurprising given this history of exposure to domestic violence, parental abuse and their drug use, your father's illness requiring a high level of care, and periods of abandonment by your mother, that Mr Billick describes you as parentified from a young age. You took on the responsibility of the care of your siblings, being the eldest child of parents who were seemingly incapable of carrying out that role in a functional manner.
42 It was in this context that you turned to drug use, shirking those responsibilities, mixing with anti-social peers and engaging in criminal conduct. Your disadvantaged and neglected background is relevant to the sentencing exercise.
43 Mr Billick opined:
'From a psychological perspective there were psychosocial areas of
disadvantage. Ms Laz described chronic neglect in the context of a parent or substance abuse. She was required to navigate a seemingly chaotic environment. She experienced low socio-economic circumstances and resided in a high crime area. She reported becoming a parentified eldest child to the detriment of her emotional stability and personal development. She did not attain appropriate supports to address her difficulties. She described a history of internalised emotional distress, grief, self-harm, withdrawal and substance misuse. The catalyst to her involvement in offending, appears to be the death of her father and deterioration of her family units. Ms Laz has experienced significant grief and pessimism and has maladaptively engaged substance abuse as a coping mechanism. Her use of substances has brought her in contact with anti-social acquaintances and further destabilised her life.'
44 Your counsel submitted that your drug use and your contextual situation was such that you perceived all aspects of your life thus far were hopeless, and that those matters, or your predicament at that time, explained your offending. It does however, clearly not excuse it.
45 As to your criminal history, you have no prior convictions, though you appeared in court in September 2019, and were required to enter an undertaking. This was breached and you received a fine. You do have a prior driving offence of speeding and lost your learner's permit to drive.
46 You currently have a number of outstanding matters. Those charges relate to dangerous driving, drugs, theft, burglary and bail offences. All but one of these relate to allegations occurring after the removal of your siblings in November 2019.
47 It is troubling that the circumstances giving rise to some of these outstanding matters, are similar examples of dangerous driving and conduct threatening the safety of other road users. In respect of some of this alleged offending you were remanded in custody on 24 August 2020, for two weeks, but then granted bail.
48 You reverted quickly to drug use again. You were remanded on 24 October 2020, and have been in custody since then, this being your first extended period in custody. Having remained offence free up until you were about 19, you have rapidly become involved in very serious criminal offending.
49 You have pleaded guilty to these matters at the earliest opportunity. There is a utilitarian value in the plea, particularly given the COVID situation, and the impact that has had on the court and the administration of justice in this state.
50 Your plea has facilitated the course of justice and is illustrative of your acceptance of responsibility for this offending. None of those who witnessed your out-of-control driving and the horrific scene in the aftermath, were required to relive that experience in giving evidence.
51 Your plea is consistent with remorse. I was informed by your counsel of your reaction in viewing the video footage of the collision and reading the material in the victim impact statements. As contained in your letters to the court, and on my own observations of your overall presentation during the course of the plea, I accept you have a high level of remorse for your conduct.
52 Your moral culpability and objective gravity of your offending was high. Your counsel conceded your conduct whilst on bail and driving unlicensed in a stolen car, the way in which you did, amounted to serious examples of each of the offences.
53 In respect of Charges 3 and 4, you went through a red light at the intersection, were speeding, were drug affected to the extent you could maintain control of the car, were fatigued, were an inexperienced driver and were using your mobile phone. The combination of these features properly supports a characterisation of your offending as very serious.
54 In respect of Charge 2, throughout the entire period, excluding the driving conduct which forms the basis of Charges 3 and 4, you drove at very high speeds, at one point double the speed limit. You entered intersections against red lights on 17 occasions. You failed to give way and drove on the incorrect side of the road. Your conduct placed numerous other road users, your passenger, pedestrians and members of the police force a significant risk.
55 These people were going about their own personal business or acting in the course of their professional duty and should not have been exposed to such danger. You drove in this manner continuously for about 45 minutes and covered a distance of approximately 70 kilometres. Your driving which culminated in colliding with a police car, was extremely dangerous and demonstrated a complete disregard for the safety of others.
56 In respect of Charge 5, it would have been obvious that you were responsible for the significant impact with the scooter and pedestrian. Your actions in continuing to drive, demonstrated a callous disregard for the welfare of your victims, and constituted a gross breach of your duty as a driver to remain at a scene and provide the assistance you could.
57 As to your rehabilitation prospects, you have been in custody since your arrest. Whilst on remand you have engaged in courses to further your education. Prior to the offending, you had never sought any assistance for your drug use or other issues.
58 I was informed you have been on a waiting list for about nine months to receive psychological treatment and help in respect of your upbringing, flashbacks and nightmares in respect of this episode, and also in relation to your drug issues.
59 Your counsel submitted you had strong rehabilitation prospects. This was so given, (1), you had not used drugs since you were remanded, a period of approximately 15 months; (2), your rapid escalation of criminal conduct was over a short period of time; (3), this is your first extended period in custody and it has allowed you to reflect on your conduct and the horrendous impact it has had on others; (4), you now recognise the need and are willing to engage in psychological counselling; and (5), you have engaged in numerous courses as part of prison education, whilst on remand, and you are on a wait list for drug and alcohol counselling and to see a psychologist.
60 It was submitted that you are unlikely to find yourself in a similar environment to that which you were in at the time of your offending, where your life had spiralled out of controlled, drug use was prominent and you were experiencing feelings of hopelessness in respect of your future.
61 The prosecution submitted your rehabilitation prospects were guarded. That you have serious driving offences outstanding, allegedly committed on 18 January and 24 August 2020. You have had a long-term drug problem, for which you have not received any treatment or counselling. It was submitted your prospects were contingent upon your ability to engage in treatment as necessary, and remain abstinent from drug use when released from custody.
62 I consider your rehabilitation prospects to be reasonable, but clearly dependant upon you addressing your drug use and remaining abstinent. I accept you understand the need for you to be assisted for both that and other psychological issues, and that you have attempted to do so whilst on remand, though you have been waitlisted for relevant treatment.
63 I take into account the situation concerning COVID-19, insofar as it has and still continues to impact on conditions in custody. I was also informed that you were placed in protective custody and have been housed as such in the prison since September this year. Your conditions in custody are more onerous given that situation.
64 General deterrence is the principal sentencing consideration for serious driving offences. The message must be that whoever is driving a car, whether that is a youthful offender or not, the community will not tolerate driving under the influence of alcohol or drugs, or driving at very fast speeds.
65 The tragic consequences of your behaviour graphically demonstrate the need for ongoing deterrence of similar conduct. Denunciation, protection of the community, and just punishment are also important. Specific deterrence has a lesser role to play given your limited criminal history and rehabilitation prospects.
66 You are a youthful offender, which is a matter I take into account, though it is well recognised that the seriousness for this kind of offending and need for general deterrence, must result in factors such as youth being afforded less weight in the sentencing synthesis, than it ordinary would.
67 Further, I accept you have endured a difficult and traumatic background involving you being subjected to domestic violence and exposure to your parents dysfunctional relationship and drug use. Your parents failed to provide appropriate and basic care for you and your siblings and at some stages, especially upon your father's illness and death, your mother abandoned the family unit.
68 You took on responsibilities for your siblings at a young age and I accept your moral culpability for this offending must be viewed through the disadvantaged upbringing and background that you have endured. The effect on you of this background and disadvantage, is to be accorded weight along with other sentencing considerations.
69 I am required to take into account the standard sentence of eight years. That figure should be treated as a legislative guidepost and does not affect the instinctive synthesis approach to sentencing.
70 The standard sentence indicates the appropriate sentence for an offence which falls into the category of mid-range seriousness. That assessment is made having regard to only the objective factors, bearing on the seriousness of the offence and without reference to factors personal to you.
71 I was provided with some comparable cases in respect of all the offences, including for culpable driving, which in respect of that offence, had been imposed after the introduction of the standard sentence scheme and I take those into account.
72 I have considered principles of double punishment and recognise that aspects of the conduct constituting Charge 2 do not aggravate the circumstances of Charges 3 and 4. All of the charges relate to a single prolonged incident with multiple different aspects. I have considered the principles of totality given the number of charges, including the effect of s16(1A)(e) relating to offending whilst on bail.
73 Nobody benefits from this kind of offending. You will spend the remainder of your young adult years in custody. A family has lost their son. All as a consequence of your drug ingestion and dangerous driving that followed, which could be described as irresponsible and self-indulgent conduct.
74 In respect of Charge 3, culpable driving causing death, you are convicted and sentenced to a term of imprisonment of nine years. In respect of Charge 4, negligently causing serious injury you are convicted and sentenced to a term of imprisonment of three years. In respect of Charge 1, theft of a motor car, you are convicted and sentenced to a term of imprisonment of one year. In respect of Charge 2, dangerous driving while being pursued by police, you are convicted and sentenced to a term of imprisonment of three years. In respect of Charge 5, failing to stop and render assistance, you are convicted and sentenced to a term of imprisonment of two years. In respect of Charge 6, possession of drug dependence, you are convicted and sentenced to a term of imprisonment of one month. In respect of each of the summary offences, you are convicted and sentenced to a term of imprisonment of one month each.
75 Section 11A sets out considerations relevant to fixing a non-parole period for a total effective sentence, that includes a standard sentence offence.
76 I am required to impose a non-parole period of at least 60 per cent of the total, unless I consider it is in the interest of justice to impose a lesser period. I consider it is in the interest of justice to impose a non-parole period a little less than 60 per cent.
77 In respect of Charge 3, that is nine years that is the base sentence. Six months of the sentence imposed on Charge 4, 18 months of the sentence imposed on Charge 2, and six months of the sentence imposed on Charge 5 will be cumulatively, giving a total effective sentence of 11 and a half years. I set a non-parole period of six and a half years.
78 Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a sentence of 14 and a half years with a non-parole period of nine and a half years.
79 In respect of Charge 3, I make a finding the offence was committed whilst you were under the influence of drugs, which contributed to the offence. It is mandatory under the Act you are disqualified from obtaining a licence for at least two years in respect of Charges 3 and 4 and for a period at my discretion in respect of Charge 1.
80 I make the following orders in respect of your licence. You are cancelled and disqualified from obtaining a licence in respect of Charge 3 for seven years, Charge 4, two years, Charge 1, three months, that makes it a total disqualification period of seven years.
81 What is the presentence detention please?
82 MR HODGEMAN: The pre-sentence detention is 396 days, not including today's date.
83 HER HONOUR: All right, I declare 396 days presentence detention. Is there any other matters I need to address?
84 MR HODGEMAN: Yes there is. There's an ancillary order of a disposal order sought in regards to Charge 6 for the possession - - -
85 HER HONOUR: Yes, all right.
86 DEFENCE COUNSEL: That's not opposed Your Honour.
87 HER HONOUR: All right, I'll make that disposal order, if that can be provided I will sign that. Anything else?
88 MR HODGEMAN: No, Your Honour.
89 HER HONOUR: All right, thank you.
90 DEFENCE COUNSEL: No, Your Honour, may it please the court.
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