DPP v Ng

[2016] VCC 1565

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

AT GEELONG
CRIMINAL JURISDICTION

CR 16-01496

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDY NG

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	12 October 2016
CASE MAY BE CITED AS:	DPP v Ng
MEDIUM NEUTRAL CITATION:	[2016] VCC 1565

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr K.J. Doyle
For the Accused	Mr J. D. Singh

HER HONOUR:  

1On 16 May this year, five young Singaporeans, university students or recent graduates, began a rock climbing holiday in the Grampians.  Eight days later, the lives of three of them were changed forever.  At the end of the day of climbing you Andy Ng were driving a rented SUV along an open road.  As you approached an intersection, you failed to see a give way advisory sign, and the give way sign and white painted lines facing you at the intersection itself.  You drove straight through the intersection, and collided with a car driving on the intersecting road with right-of-way.  Two of your rear seat passengers, Valerie Chu and Rachael Ch’ng were thrown from the car, suffering life-threatening injuries.  You were unharmed, as were your other two passengers and the driver of the other car.

2       Ms Chu and Ms Ch’ng survived, but suffered life changing injuries.  For Ms Chu her injuries can properly be described as catastrophic. And you find yourself before the court, in a country other than your own, at the age of 24, having never been in trouble before, having been by all accounts a model son, student and citizen,  to be sentenced for two charges of dangerous driving causing serious injury; offences which carry a maximum term of imprisonment of five years.

3       You were travelling at or slightly under the speed limit of 100 km/h.  So was the driver of the other car. Testing revealed that you had no alcohol or drugs in your system. There is no suggestion that you were fatigued, or distracted. There was no showing off, or erratic or aggressive driving.  The driver of the other car, a teacher about the same age as you was driving home from school. She too was unimpaired by drugs alcohol or fatigue, was driving within the speed limit and also not engaged in any show off, erratic or aggressive driving.

4       The collision occurred in daylight hours along a long flat stretch of road. The weather was clear and the roadway dry.  The give way advisory sign is 154 m short of the intersection.  To the side of the road, as you approached the intersection, and abreast of the advisory sign was a bank of mounded earth, which may well have obscured your view of traffic travelling toward the intersection on the intersecting road.  There were the usual give way white lines painted at the intersection as well as the give way sign.  The road you were travelling on, the Wonwondah/Dadswell Bridge Road and the road the other car was travelling on, the Northern Grampians Road, are both two-way bitumen roads with one lane in each direction, gravel shoulders and a single white line down the centre.  The give way signage, including the advisory sign and road markings are the standard universal markings. They are typical secondary country roads with typical intersections.  They ran through farmland or bushland.  There were considerable distances between intersections on each road.  They did not carry much traffic.  They are what people familiar with roadways in this state would consider to be ordinary country roads, ordinary country intersections and ordinary and all-too-familiar markings indicating who has right-of-way and who must give way.

5       For a Singaporean National, unaccustomed to driving in countryside like that around the Grampians, or on open roads like these, these were unfamiliar road conditions.

6       You simply failed to see the advisory sign and the give way sign itself and, it would appear, to see or appreciate the significance of the white lines at the intersection.  You told police you noticed the car travelling along the intersecting road but thought you had right-of-way.  Acting on that belief you continued into the intersection, at most decelerating slightly. There were no skid marks indicative of sudden, heavy braking.

7       Both cars were in excellent mechanical condition. No mechanical defect, or worn or faulty tires contributed in any way.

8       This then is dangerous driving characterised by a failure to see or heed the give way advisory sign over 150 metres short of the intersection, the give way sign itself and the white line markings at the intersection, by a relatively young driver, whose inexperience in driving in such road conditions may well have contributed to the failure to see and heed the signs, to slow down as he approached the intersection even if he thought he had right-of-way and the failure, even if he thought he had right of way, to do anything other than slow down a little, once he saw the other car approaching the intersection.

9       Had you seen the give way advisory sign, you would have had sufficient time to slow down so as to approach the intersection with caution and to stop at the white lines allowing the car with right-of-way to clear the intersection before you entered it.  Had you registered the give way sign itself ahead of you as you approached the intersection and the white lines, you would have been able to stop and give way.  This is not a moment of inattention, a failure once at the intersection to register the give way sign, the white line and the oncoming car, but a failure to miss three separate warnings; the advisory, the white lines and the give way sign itself.  All were able to be seen at a distance that would have given you sufficient time to stop.

10     Although the paramedic who attended the scene believes it is a dangerous intersection and on the material before me this is not the first time there has been a collision at that intersection, it is nonetheless well and sufficiently signposted.  An attentive driver is given more than sufficient opportunity to note they face a controlled intersection ahead; to slow down and to satisfy him or herself there are no cars on the intersecting roadway before entering the intersection.

11     It is clear in cases of dangerous driving causing death or serious injury that general deterrence must be given considerable weight, and that a custodial sentence will usually be appropriate, except in cases where the offender’s level of moral culpability is low.  In DPP v Neethling[1] the court adopted the identification of a series of factors which may aggravate the seriousness of a particular offence, already previously adopted by the Court of Appeal in DPP v Oates[2]. They were based on the decision of the New South Wales Criminal Court of Appeal in R v Whyte[3]. Relevantly to the circumstances of this case the factors are - I will use the numbers identified in Neethling and Whyte: 

[1][2009] VSCA 116 at [13]

[2][2007] VSCA 59

[3][2006] NSWCCA 75

(i) the extent and nature of the injuries inflicted;

(ii) the number of people put at risk;

(iii) the degree of speed; and

(viii) ignoring of warnings.

12     The other aggravating features identified by the court in Neethling are not present here. There was no excessive speed, intoxication or substance abuse, sleep deprivation, erratic or aggressive driving, competitive driving, showing off, extended period of exposure of others to risk, escaping police pursuit or failing to stop when directed to do so, or after the collision.

13     It can be seen from these lists that both the objective dangerousness of the driving and the driver’s state of mind are relevant to the assessment of the seriousness of the driving and the degree of moral culpability of the driver.That was itself confirmed in Neethling.

14     In Neethling, the court made it clear that a driver’s youth and inexperience in driving were not necessarily mitigating features which reduce the driver’s culpability for what occurred.  Inexperience in driving in the particular conditions is an indicator of a need to take more care, rather than an excuse for failing to take care.  Paraphrasing, or applying what the court said in that case to the circumstances of this case,  an inexperienced driver - and that is in the context of this case - inexperienced in driving on Australian country roads - must realise that his inexperience creates risks for himself, his passengers and other road users.

15     In Neethling the court referred to the failure to see road markings when they were clearly visible in the photographs taken later as demonstrative of the fact that the driver did not take sufficient care.  I would add that in the circumstances of this case, those observations apply to the failure to see the advisory sign and the give way sign at the intersection, not just the white give way signs painted on the roadway itself at the intersection.

16     In DPP v Janson[4] the Court of Appeal found that it was incorrect to characterise a period of approximately 10 to 11 seconds during which a driver did not pay attention to the signage on the road (in that case resulting in his failure to see the traffic lights applicable to him change from green to amber then to red) as a very short period of inattention. Mr Janson was driving a truck, a prime mover and trailer on a major road in a built-up area in the known vicinity of controlled intersections.  He was travelling at approximately 70 km/h, under the speed limit and the court noted that at that speed his vehicle would have covered approximately 195 metres from the time the light turned amber.

[4][2011] VSCA 19

17     The court found that any reasonable driver in Mr Jansen’s position would be bound to realise that to drive his truck in the manner that he did involved a serious breach of the proper management or control of the vehicle; that it was potentially dangerous to other members of the public who might at the time be upon or in the vicinity of the roadway; that it created a considerable risk of serious injury or death to members of the public; and that that risk significantly exceeded the risk ordinarily associated with being on or near a highway.  The court found that a lapse of attention of some ten seconds duration amounted to “a most remarkable failure to keep a proper lookout” and that the nature and gravity of the offending was to be assessed accordingly.  The court found error in characterising the driving as I, as the sentencing judge in Janson had done, as being at the low end of the dangerous driving scale.

18     Of course you were driving an SUV not a heavy truck, but you were driving at a greater speed, on a stretch of road unfamiliar to you, and in driving conditions, that is, open secondary roads in rural Victoria, unfamiliar to you.

19     Although it is abundantly clear that you intended and foresaw no harm to the passengers in your car, the occupant of the other car or any other road users,  this is indeed a case of failure to see something that you should have seen, in circumstances where there was no impediment to your seeing the advisory sign, the give way sign and the painted lines, when driving within the speed limit but at a high speed, in a rental car unfamiliar to you, on a road unfamiliar to you and in driving conditions unfamiliar to you.  In my view, the objective gravity of the offending, and your circumstances make this medium not low-level offending.  I find your moral culpability falls into the medium to low range; not at the lowest end of the range.

20     Valerie Chu, the first of the two victims and the subject of Charge 1 is like you, 24 years of age.  She had graduated with first class honours in chemistry from the National University of Singapore.  According to the victim impact statement provided by her mother, she had made the Dean’s list on five occasions for achieving the highest grade in her year and was awarded the university gold medal for being the top student in her science cohort during her final year.  She had been accepted into medicine at Duke/NUS, and was due to start her medical studies in July 2016.

21     Valerie Chu suffered a serious head injury, and serious spinal and lower body injuries.  She is left with a severe traumatic brain injury, and has been rendered paraplegic.  She sustained a T3 spinal cord injury resulting in paralysis below the level of her chest.  The prognosis for further recovery of muscle power and sensation below the level of her spinal cord injury is very poor. She also sustained complex pelvic fractures for which she is still being treated and as of July those fractures were still being maintained with an external fixation device. She is significantly physically disabled.

22     According to a report provided by Dr Caroline McFarlane, the rehabilitation specialist at the Alfred Hospital Acquired Brain Injury Rehabilitation Centre in July of this year, patients with a spinal cord injury are at risk of many complications including respiratory tract infections, pressure areas on the skin and urinary tract infections. She requires hands-on physical assistance with all aspects of mobility and personal care.  Dr McFarlane said that means she requires two people to assist her at all times.

23     Since July she has been transferred from the ABI Rehabilitation Centre to the Royal Talbot Rehabilitation Centre.  She has significant cognitive deficits.  In addition to her cognitive deficits and her physical injuries she is severely depressed as she contemplates the difference between what her life promised before this and what her future now holds.  According to her parents in their victim impact statements, since been confronted by the realisation that she will not walk again she has had suicidal thoughts, has stopped communicating, cries a lot and has lost interest in pursuing any activities that might give her some companionship or stimulus.

24     The nature and extent of her injuries have meant that she has had to remain in Melbourne for medical treatment.  Her father has come to Melbourne and remains with her, her mother has remained in Singapore, working to support remainder of the family.She is the fourth of nine siblings, many of whom are still at school or undertaking further studies.  Her mother is therefore limited both financially and by reason of family care responsibilities in the times that she can travel to Melbourne to be with Valerie. Valerie is not yet well enough to be repatriated to Singapore.  Whilst here as I understand it, the cost of her care is met by the TAC. It is unclear whether she would be able to continue to receive the same care at public cost were she to return to Singapore. Hence the prospect for her of isolation from her family and the need for her parents to divide their time between her and her other siblings is an added uncertainty and impact upon them.

25     So far as Rachel Ch’ng is concerned, both her legs were broken, as was her pelvis and five ribs. She suffered a punctured lung and a torn spleen. She has required multiple surgical procedures both orthopaedic and for the internal injuries she suffered.  She was able to be repatriated to Singapore at the beginning of August but her path to recovery is far from over. She is now out of a wheelchair and able to use crutches to walk, although only for short periods, and she suffers considerable pain. She still has pins in her legs, and one leg is now shorter than the other. She has considerable scarring on her body, and her confidence and concentration are impaired. She too was a university student. She has been unable to return to her studies and has had to drop her second major.  Her capacity to return to study and to obtain employment appear at this stage to be significantly more limited than her capacity before she was injured.

26     There has clearly been a significant emotional and financial toll not only on these two victims but on their families. There has been a need for family members to be in Melbourne since the collision to support their daughters.  The families have experienced loss of income associated with their requirement to be in Melbourne and their inability to work.  Rachael Chng’s father also reported that there has been a significant financial drain on the family since Rachel has been repatriated to Singapore because of the need for them to pay for her medical and rehabilitative assistance  in Singapore. 

27     Coming back then to the other matters identified in Neethling, that I must take into account,it is clear that the devastating and life changing injuries to both victims add to the assessment of the objective gravity of the offending.

28     Neither Ms Chu nor Ms Chng were wearing seat belts. I was told that it is customary in Singapore for back seat passengers not to do so.  Whilst the failure to wear seat belts may have added to the severity of the injuries suffered by these two victims -they were each thrown from the car -that does not operate so as to reduce your moral culpability or the objective seriousness of the offending.

29     Dealing with the risk to other road users, I note that you had two other passengers in your car.  Hence there were three other people who were put at peril by your driving; your other two passengers and the driver of the other car.  Fortunately for them, like you, they sustained no or only the most minor of injuries. Similarly the driver of the other car, the young schoolteacher, has been fortunate to avoid any significant or lasting injury.

30     I said at the start of these reasons that the consequences of this collision were life changing for three people; that is not only for Ms Chu and Ms Chng, but also for you. You are 24 years old, a young man of exemplary character and high academic achievements. You had just graduated from NUS with a Bachelor of Engineering with Honours and Distinction, was and were about to start a dream job for a young engineering graduate. You had been offered employment with Micron, one of the top five semiconductor companies in the world, and you were due to start in August of this year.  You come from a close and loving family. Your parents are well and gainfully employed, your only sibling, an older sister is like you, well-educated, a university graduate and has a good history of responsible employment.

31     You did well at school both academically and in leadership positions. You chaired your school's National police Cadet Corps, were selected to enter Officer Cadet School during your compulsory national service, and from your late school years had been involved in rock climbing, you were the vice-captain of your school team, and team manager of the men’s rock climbing team at University.

32     A truly staggering number of testimonials has been provided.  As Mr Singh said in his submissions, they display a number of common themes. They describe you as being an outstanding young man, and speak of your courtesy, discipline, kindness, hard work, sense of responsibility and enormous potential to contribute to the community in the future.  They come from an extraordinarily wide range of people:  immediate and extended family, the other passengers in the car, friends of yours from school, university cadets, national service and rock climbing, contemporaries of your parents who have been family friends and seen you grow up, schoolteachers with whom you have maintained contact. Many are clearly people themselves of standing in the community, and hold responsible positions. They include a police officer, the vice principal of a school, other teachers, and people in senior and responsible positions in government and in Singaporean and International corporations across a range of endeavours including banking, big Pharma, electronics and engineering.

33     Consistently with the descriptions of your character in these testimonials, you come before the court as a young man with no previous convictions in this country or in Singapore.

34     In addition to speaking of your good character and reputation and the regard in which you are held by those who know you, the testimonials also speak of your deep remorse for what has happened. You too have written a letter expressing your distress and remorse and which I accept as genuine and heartfelt. I was struck by the evidence of your frequent visits to the hospitals where your two friends had been taken,the courage to do that and of your sad but respectful acceptance of the requests of your two friends and their families that you stop visiting, once they were made aware of the extent and impact of their injuries, and the manner in which they were sustained. Your remorse and the understandable reactive depression that you have suffered as a result of the appreciation of the consequences of this day are also supported by the opinions expressed in the report of the psychologist Mr Staios.

35     I accept that you will never be the same person that you were before and that you will carry the burden of responsibility for these devastating consequences for your friends for the rest of your life.

36     You remorse is evident too from the manner in which you have cooperated with the police and the court proceedings.  From the outset, when interviewed by the police you have been cooperative. You pleaded guilty at the earliest opportunity.  Your plea of guilty is entitled to considerable weight.  The utilitarian value is high.  You spared the victims and the other people in the cars and the paramedics and others who attended the scene, the ordeal of having to prepare for a hearing, to relive the events and to recount them in evidence.  Your pleas have saved what would have been the considerable cost and expense of a trial, and has enabled these proceedings to come on much faster than otherwise would have occurred.  The speedy resolution of this matter may be of some assistance in helping Ms Chu and Ms Chng and their families focus on their recoveries, rather than worrying also about the outcome of these proceedings.

37     I am satisfied on the basis of the materials placed before me that it is highly unlikely that you will ever come before the criminal justice system again for like offending or for that matter, for any other type of offending.  I accept that your prospects for rehabilitation should be characterised as excellent.

38     At the age of 24 and having regard to your background and circumstances I accept that I should treat you as a young offender.  That is, is someone for whom the prospects for rehabilitation ought be rewarded and encouraged, and given more weight in the sentence that might apply to a person who is older or who has not used the time up to the age of 24 as well and conscientiously as you have. 

39     Because you are a Singaporean National, the time awaiting plea and sentence has been particularly difficult for you.  You came here on a tourist Visa, and have had to remain in this country until the hearing.  That means that you have been essentially alone without the support of family and friends, but for one relative here.  You have been burdened not only by your inability to work whilst here to support yourself but by the knowledge of the burden it has placed on your parents to support you whilst you have been here awaiting sentencing and to pay for your not inconsiderable legal costs. I take into account in your favour that that has been a burden for you and that you carry the burden of responsibility for the strain it has put on your parents as a result. 

40     The authorities that I have already quoted make it clear that in all but the most exceptional of cases, the sentence for a charge or charges of dangerous driving causing death or serious injury must involve a component of imprisonment.  That is because of the needs of denunciation, general deterrence and just punishment and the value placed on human life.  In this context this means the value placed on a life which has been catastrophically and irrevocably changed, as Ms Chu’s was, as well as a life taken away entirely.  The authorities also make it clear that in that context good character counts for less than it might in other cases.

41     Determining the sentence appropriate for you is made more difficult because of the limited sentencing options available to me.   As a Singaporean National, your tourist Visa on which you came, as I said, did not enable you to work.  You were not allowed to leave the country. Your Visa has now expired and you are now on a criminal justice visa. That ensures that you remain amenable to the jurisdiction of the court until the time of sentencing.  However a criminal justice Visa does not permit you, once sentenced, to remain at liberty and serve a sentence in the community.  Once sentenced, if you are not sentenced to a term of imprisonment, your criminal justice visa expires and you will have to leave the country.  If arrangements are not made for you to leave voluntarily, you will be deported.  Any non-custodial sentence therefore is incapable of being performed or is unenforceable. That means a community corrections order is not a viable option as you will not be able to remain in the community and serve it.  If a fine were thought to be a sufficient penalty for this offending, it is unenforceable.  There is no enforcement mechanism to compel payment of it, or to compel conversion of it into unpaid community work, or to allow you to perform unpaid community work in conversion of a fine or to serve a term of imprisonment in default of payment of fine once you have left the country.

42     Similarly, an undertaking to be of good behaviour, if that were thought to be appropriate is also meaningless, as again you would be outside the jurisdiction of the court.  Thus the only option open to me which is capable of being performed or enforced for an offence of this gravity is the imposition of a term of imprisonment, imposed in the knowledge that you will have to leave immediately upon release or be deported.  It is clear from what I have said that I do not consider a fine, even were it enforceable and even were it a  substantial one, to be a sufficient or adequate penalty for this offending.

43     Had you been an Australian citizen or resident, I would have considered a sentence involving a component of imprisonment followed by a community corrections order to be the appropriate disposition.  I would have factored a considerable portion of the punitive element of the sentence into the CCO, by way of the imposition of a considerable number of hours of unpaid community work.  Regardless of your right to stay in this country, I had formed the view, notwithstanding your exemplary character and excellent prospects for rehabilitation, that the objective gravity of the offending and finding of your moral culpability associated with that, fell within the mid to low range and therefore that no sentence other than one involving a term of imprisonment was appropriate. 

44     I note that you had, before appreciating that you would not have a right to remain in this country and serve a sentence in the community, contemplated undertaking additional studies here so that you could use your time fruitfully whilst serving a sentence in the community. I take that again as further evidence of the assumption by you of responsibility for your conduct and your attempts to make the best and the most of the way to serve your sentence and to make reparation.

45     In addition to the other matters I have taken into account in your favour, I accept that imprisonment will be more onerous for you because you have no criminal history.  A terms of imprisonment would mean that you would be experiencing imprisonment for the first time, and because by serving a sentence in Australia you will be isolated from family and friends.  Those matters also operate to moderate the sentence otherwise appropriate to be imposed.

46     I have been deeply concerned about the fact that it is your resident status or rather absence of Australian resident status which precludes you from a sentencing option which is available to Australian residents and which otherwise would have been the most appropriate sentencing option for you.

47     In my view, the inability for you to be able to serve your sentence in the community or part of it by way of a community correction order means that non-Australian residents in your position are treated unequally, differently from those who have citizenship or the right of residence.  It therefore does not conform with the requirement to treat all people who come before this court equally.  I must impose a term of imprisonment that I consider appropriate in all the circumstances and fix a non-parole period appropriate in all the circumstances knowing that if and when you are granted parole you will be required to leave the country, voluntarily if you can negotiate it, or otherwise by way of deportation.

48     Had a CCO in combination with a term of imprisonment been an enforceable and therefore available sentencing option, the sentence I would have imposed would have factored a considerable part of that punitive element of the sentence into the CCO.  I do not consider in the circumstances that I should require you to serve a minimum term of imprisonment of greater length than the time I would have required you to serve had I been able to impose a CCO as well as a term of imprisonment, and had I been able to fix part of the punitive element of the sentence as part of the CCO.  Of course I cannot determine whether you will be granted parole or when you are, but I do not consider that you should be precluded from consideration for eligibility for release upon parole for any period longer than the term I would have required you to serve before being released on a CCO even if you had been required to do some of your punitive sentence under the CCO.

49     It follows that there will be a considerable disparity between the head sentence which must reflect denunciation, general deterrence, just punishment and the value of human life, the objective gravity of the offending and your moral culpability and the non-parole period which properly must take into account your youth, your exemplary good character, the depth and genuineness of your remorse, the hardships you will suffer by reason of imprisonment and isolation, and as a first-time prisoner and the circumstances which preclude you from being able to serve the balance of your sentence by way of CCO. 

50     I propose to impose a higher sentence on Charge 1 to reflect the more serious injuries suffered by Ms Chu and to impose a partial, modest but partial cumulation in respect of the sentence on Charge 2, that relating to Rachel Ch’ng, to reflect the fact that there were two victims. Of course, I am required by law to cancel all licences held by you and to disqualify you from obtaining any further licence for a period of 18 months - although for you that is academic it is nonetheless an order that must be made.

51 I am also required to make a declaration under s.6AAA of the Sentencing Act of the sentence that I would have imposed had you not pleaded guilty. So, it is important when you hear me pronounce the sentence that it is the sentence that I actually tell you is imposed on you that is the sentence to be served, not the one that I would have imposed had you pleaded not guilty and been found guilty of the charges.

52     Andy Ng, can you now please stand?  On the two charges to which you have pleaded guilty, you are convicted.  On Charge 1, you are sentenced to be imprisoned for a period of 21 months.  On Charge 2, you are sentenced to be imprisoned for a period of 15 months and I direct that three months of that be served cumulatively upon the sentence on Charge 1.  That makes a total effective sentence of two years.  I direct that you serve a period of six months before being eligible for parole.  There is no pre-sentence detention.

53 I declare pursuant to s.6AAA that but for your pleas of guilty I would have sentenced you to be imprisoned for a period of four years and fixed a non-parole period of two years.

54     Do the orders I have pronounced reflect the sentences I imposed?

55     MR DOYLE:  Yes, Your Honour.

56     HER HONOUR:   Mr Ng, I must remain on the Bench whilst you are in the dock and before you are removed.  Given that your family have come from Singapore and that I am now sentencing you to a terms of imprisonment, I will remain on the Bench whilst your mother and sister come and speak to you to say goodbye. 

57     VOICE: (from the body of the court):  Thank you.

58     HER HONOUR:   I will stand down.

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