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Pan v The Queen

Pan v The Queen

Case [2020] VSCA 42 10 March 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0081

YADONG PAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	EMERTON JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2020
DATE OF JUDGMENT:	10 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 42	First revision: 25 March 2020
JUDGMENT APPEALED FROM:	DPP v Pan [2019] VCC 360 (Judge Mullaly)

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CRIMINAL LAW – Application for leave to appeal against sentence – Pleas of guilty to dangerous driving causing death and dangerous driving causing serious injury – Applicant unwittingly drove through stop sign at cross-intersection on country road, colliding with vehicle with right of way, killing other driver – Applicant’s passenger seriously injured – Total effective sentence of three years and four months’ imprisonment with non-parole period of two years – Whether judge erred in failing to find, or to give any weight to fact, that intersection contributed to cause of collision and thereby reduced applicant’s moral culpability – Evidence of serious accidents at same intersection prior to and after applicant’s collision – State acknowledged intersection ‘notorious’ and in need of significant safety improvements – Intersection since improved – Error established – Moral culpability lower than implicitly found by judge – Whether judge erred in failing to find that applicant’s Google Maps GPS on mobile telephone affixed to dashboard failed to display impending intersection or other road – No such error established or, in any event, any such error of no consequence – Application granted – Appeal allowed – Strong mitigating factors – Applicant resentenced to total effective sentence of two years and four months’ imprisonment with non-parole period of twelve months – Spanjol v The Queen (2016) 55 VR 350; George v The Queen [2017] VSCA 152.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr B Newton	Dribbin & Brown Criminal Law
For the Respondent	Miss M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON JA:

I agree for the reasons given by Croucher AJA that, in light of the expert evidence, when assessing the applicant’s moral culpability for the offending, the judge was required to consider and give weight to the poor road design and layout conditions as a causal contributor to the collision that killed the other driver and badly injured the applicant’s passenger. The judge failed to do so, with the consequence that the applicant must be resentenced having regard to the impact of the poor road design on his moral culpability. The unchallenged expert evidence was that the intersection was especially dangerous and invited precisely the kind of tragedy that in fact occurred. The State government has since moved to reduce the danger posed by the intersection by installing a roundabout.

I do not accept that any failure of the Google Maps navigational system was a causal contributor to the collision, again, for the reasons given by Croucher AJA.

Leave to appeal should be granted and the appeal allowed on grounds 1(a) and 1(b) in the notice of appeal. I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pan v The Queen

Details

AGLC: Pan v The Queen [2020] VSCA 42
Case: [2020] VSCA 42
Decision Date: 10 March 2020

CaseChat Overview and Summary

In the matter of Pan v The Queen, the appellant sought leave to appeal against his sentence following pleas of guilty to dangerous driving causing death and dangerous driving causing serious injury. The applicant inadvertently drove through a stop sign at a cross-intersection on a country road, resulting in a collision with a vehicle that had the right of way. The incident resulted in the death of the other driver and serious injury to the applicant’s passenger. The applicant was sentenced to a total effective term of imprisonment of three years and four months, with a non-parole period of two years. The applicant argued that the trial judge erred in not recognising or adequately considering the intersection's contribution to the cause of the collision, which would have diminished the applicant's moral culpability. The applicant also contended that the judge erred in not recognising that the Google Maps application on his mobile phone failed to display the impending intersection or other road signs.

The court identified two primary legal issues. First, whether the trial judge erred in not recognising or giving appropriate weight to the fact that the intersection contributed to the cause of the collision, thereby reducing the applicant’s moral culpability. Second, whether the trial judge erred in not recognising that the Google Maps application on the applicant's mobile phone failed to display the impending intersection or other road signs. The court held that the judge indeed erred in not recognising or giving weight to the intersection's notorious nature and its contribution to the cause of the collision. This error reduced the applicant's moral culpability. However, the court found no error in the judge's failure to recognise the issue regarding the Google Maps application, as any such error would have been inconsequential. The court allowed the application for leave to appeal and remitted the matter to the sentencing judge for resentencing. The appeal was allowed, and the applicant was resentenced to a total effective term of imprisonment of two years and four months, with a non-parole period of twelve months.

The court's decision was influenced by the significant mitigating factors presented, including the intersection's notorious nature and the applicant's otherwise unblemished record. The case highlights the importance of considering all relevant factors in assessing moral culpability and the sentencing process. The court's decision also underscores the need for judges to thoroughly evaluate all aspects of a case, including the potential impact of technological aids such as GPS applications, on the circumstances leading to an offence.

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