R v Dinh, Khang
[2007] VCC 1
•4 April 2007
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Court ref: CR-06-02044
| THE QUEEN |
| v |
| KHANG DINH |
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JUDGE: | HIS HONOUR CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2007 | |
DATE OF SENTENCE: | 4 April 2007 | |
CASE MAY BE CITED AS: | R v. DINH, Khang | |
MEDIUM NEUTRAL CITATION: | [2007] VCC 1 | |
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Catchwords: CRIMINAL LAW – Sentence – Dangerous Driving causing Serious Injury – youthful offender –car out of control ploughs into a bus stop injuring multiple victims – need to cumulate – section 319 Crimes Act 1958
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Vandersteen | |
| For the Accused | Dr G. Lyon SC |
HIS HONOUR:
1 Khang Dinh, you have pleaded guilty to six counts of dangerous driving causing serious injury and one count of causing injury recklessly. The counts arise out of a single incident that occurred on 23 August 2005 when a vehicle you were driving ran into a bus shelter and injured seven young people who were waiting for a bus.
2 Shortly prior to the accident you had driven backwards and forwards at least four times in front of the bus shelter, which was one of three shelters, at a fast speed with your stereo system blaring loudly. You candidly admitted in a record of interview that you were doing so to attract the attention of the young people and were, essentially, showing off. On the last such pass you lost control of the vehicle due to the speed at which it was travelling and, in attempting to correct the vehicle, you lost control, causing the vehicle to cross to the wrong side of the road and then back again to the correct side but into the bus shelter.
3 You told police that as you rounded the corner immediately before you lost control of the car you were in third gear, the tyres were screeching and you were accelerating the car through the corner. You said that you were trying to bring attention to yourself and were showing off. Leading Senior Constable Trevor Collins of the Major Collision Investigation Unit said that it was apparent to him that heavy acceleration as you exited the curve caused you to lose control of the vehicle.
4 The six young people named in the first six counts on the presentment all received serious injuries. The seventh did not.
5 By far the most is seriously injured was Jessica Price, the subject of Count 2, who was aged 16 at the time and was in the process of using her mobile phone when she looked up to see your car mount the gutter and strike her. She suffered a broken tibia, dislocation of the right hip, which was caused by the loss of approximately one third of the femoral head, a fractured femur, a broken pelvis, fractured ribs and two fractures in her spine. She has had 16 separate surgical procedures involving, amongst other things, the insertion of steel rods into her right leg and steel plates into her pelvis and hip. She has been hospitalised a number of times and may, in the future, require a total hip replacement or a hip fusion. She now requires the use of a forearm crutch and it is believed that she will be so dependent for the rest of her life. In her victim impact statement (Exhibit D), she said that she continued to suffer from pain and discomfort and was not able to walk without the aid of a crutch, cannot ride a bike, run, dance or do any of the usual things that a young woman is able to do. She also has extensive scarring on her back and right calf, scars on her right leg, hip bones, knee, foot and ankle and other disfigurement. She has suffered substantial psychological and emotional damage which has placed stress upon her and her family and causes her to be angry and frustrated. She has nightmares and is concerned about her future and the limited opportunities that she feels life may now hold for her. She feels that she has lost her friends and, to use her words, "I myself have changed as a person. I am not the same and probably never will be again".
6 Ebony Webster, the second most serious injured and the subject of Count 3, said she saw the vehicle coming towards her and her next memory was that her whole body was numb and she had lost consciousness. She awoke to find herself lying on a pole with her left leg under the exhaust of the vehicle. She spent two days in extensive care at the Royal Children's Hospital. She suffered nine broken ribs, a lacerated kidney and liver, a punctured right lung, burns to her left leg and lacerations to her arms, legs and back. In her victim impact statement (Exhibit F), she said she continues to suffer nightmares and flashbacks and she becomes emotional when she hears the sound of screeching brakes. She missed two months from school and had to take tutoring over the Christmas holidays to catch up with her studies. She still undergoes physiotherapy and other therapies for her injuries.
7 Jason McClain woke to find himself trapped under the front driver's side wheel of the car. He suffered a laceration to the right temple and abrasions and lacerations to the top of the pelvis and waist, hands and forearms. He had lacerations to the back of his right hand which required suturing and a fracture of the left shin. He has had three operations on his left leg and steel rods have been inserted. In his victim impact statement (Exhibit C), he said that he had suffered depression to the extent that he had attempted suicide on two occasions. He said that he is now easily irritated and is angry with himself and his friends. He still has pains in his leg.
8 Eden Ashworth is the subject of Count 4. She was aged 13 at the time. She suffered cuts to her legs and arms, some mild tenderness to the back of her skull, glass shards in her legs and arms and bruising. In her victim impact statement (Exhibit G), she stated that she had suffered emotional trauma and is unable to sleep some nights because of nightmares. She said she did not feel safe around roads and has constant visions of the accident and the friendships that have been lost because of the accident. She said that she is unable to stand at the bus stop because she fears it will happen again and feels compelled to stand across the road from the bus stop for this reason.
9 Jessica Marchetti was struck by glass and fell, hitting her head on the ground. She suffered a cut to the left side of her head and heavy bruising to her right leg, both elbows, right hip and both kneecaps. In her victim impact statement (Exhibit H), she complained of constant headaches and flashbacks and frightened by the sound of squealing car brakes.
10 Samantha Coats received bruising to the ribs and a large cut under her chin which required 16 sutures. In her victim impact statement (Exhibit I), she complains that she is still afraid of the bus stop where the accident occurred and is frightened of cars that skid and speed. She is constantly reminded of her injury because people ask her about her scar which is visible on her chin. She now complains about being teased because of it.
11 Lindsay Randle was 14 at the time. He suffered tenderness to the lower ribs and over the left upper quadrant of the abdomen. There was no victim impact statement from him, but he did say he occasionally lost sleep thinking about the incident.
12 It is clear that there has been a substantial variety of injuries suffered by these young people. All but the last two of whom appeared in court supported by their family and friends. For some, I am reasonably confident that their memories and injuries will fade. For some, there will be a constant reminder, possibly for the rest of their lives. I have no doubt that Jessica Price will continue to suffer from her injuries. Dr Nathan Serry, consultant psychiatrist, provided a medical report dated 13 September 2006 (part of Exhibit E). He noted with respect to Jessica Price that she appeared to be putting on a brave front. He said there were residual post‑traumatic anxiety and phobic features and she suffered from an adjustment disorder with anxiety, depression and features of traumatisation. He noticed that while she was advantaged by what he described as her "robust nature", he observed that she had suffered extremely severe injuries and that there would be long term consequences. He said that she would likely be left with "long‑standing occupational, domestic, social and leisure impairment and she will require ongoing medical treatment for injuries, treatment for her pain and may well need monitoring in relation to depression".
13 Each of the charges to which you have pleaded guilty carries a maximum penalty of five years. At first glance it would appear that the maximum sentence is somewhat inadequate when death and serious injury may result, but for the reasons that I shall shortly explain, it becomes apparent that the offences to which you have pleaded guilty are not as serious as some others that might have properly applied in your case.
14 Mr Vandersteen, who appeared to prosecute, conceded that in the circumstances of this case a sentence of detention in a youth training centre was within the range of sentences properly open to me. By doing so, Mr Vandersteen conceded, given the Crown's view, that a sentence of three years' detention was within the range of sentences properly open to me.
15 Dr Lyon SC, who appeared for you, conceded that a sentence of imprisonment was inevitable, but argued that having regard to your age it was appropriate for such a sentence to be served by way of youth training. He also submitted that if I was of the view that a sentence greater than one which could be accommodated in a young training centre was necessary, that I should either suspend that sentence or ensure that a suitably low minimum term was imposed.
16 He relied upon the fact that you had pleaded guilty at an early point in time, that you are now still only 20 years of age, have no prior convictions, and are truly remorseful. He pointed to the fact that you were cooperative with the police, making full admissions about your culpability, and have commenced a process of rehabilitation in the community and that I should be satisfied that you have strong prospects for rehabilitation. He produced a number of impressive character references and called two barristers who had assumed the roles of mentor to you arising out of their involvement with Rotary and the Vietnamese community in Collingwood. Both spoke eloquently of your acceptance of responsibility for these dreadful injuries and were of the opinion that you were genuinely remorseful for what had occurred.
17 In a report dated 2 February 2007 (Exhibit 3), Shane Wall, consultant psychologist, noted that you had become increasingly isolated and are afraid that people will recognise you as the driver. He was of the opinion that you were genuinely remorseful notwithstanding the fact that he also found you initially, at least, had not fully accepted the seriousness and the dangerousness of your conduct. Although you have not personally written to each of the injured parties I accept that you have a desire to do so. I was told that at the scene you attempted to assist the injured parties, but were taken into custody by police to avoid the possibility of an incident occurring as there were a number of people expressing quite hostile intentions towards you at the scene. You were subsequently advised by a friend that it might be inappropriate to communicate by letter with your victims having regard to the tense atmosphere that had been created.
18 You live with your parents and two brothers in Westmeadows. Your family operate a clothing manufacturing concern and you work with them. Although you are a director of the company, you work essentially as a delivery person, and your father controls the business. I understood from the various reports that you do not enjoy a particularly good relationship with him. He had expectations for you that have apparently not been realised.
19 You are in a stable relationship with a 22 year old woman. Neither she, nor your parents came to court on your plea for fear that their presence might inflame a fairly sensitive situation in the court where the various victims and their families were present in numbers. It is regrettable, although perhaps understandable, that this dynamic has prevented your family from supporting you in court. You and your family have sensed the heat of intense media and community interest in the outcome of these proceedings.
20 You were close to your paternal grandparents, both of whom passed away recently, and you had a caring role with respect to them. Their death had a profound effect upon you.
21 I do not propose to relate in detail the character references that were tendered on your behalf. It is clear that you have the support of friends and the community and, in particular, your church. The references speak of you as a sensitive, caring and responsible young man and of your feelings of shame and remorse.
22 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of materials, such as the seriousness of the offence, your culpability for it, your personal circumstances, and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
23 In the case of youthful offenders, and you are a youthful offender within the meaning of s.3(1) of the Sentencing Act 1991, I am required, if I am satisfied that the total sentence to be imposed upon you is no more than three years' imprisonment, to consider incarcerating you in a youth training centre rather than in the adult prison system. This is so because the incarceration of a young person in the adult prison system carries with it a real potential to cause damage to the person and ultimately to the community. It is the case that youthful offenders should not be ordered to be incarcerated in the adult prison system unless there are powerful reasons for doing so.
24 Notwithstanding the fact that injuries to multiple victims have arisen from a single course of driving conduct I am obliged to give separate recognition to each of the victims by cumulating some part of each sentence, whilst at the same time having regard to the principles of totality. In order to achieve this balance I am required to moderate individual sentences so that accumulation does not produce a sentence which is excessive in all the circumstances.
25 Ordinarily when dealing with offences of culpable driving and reckless conduct endangering life those who take life, or who put life at risk through grossly irresponsible driving, can expect to receive heavy penalties influenced by the sentencing principle of general deterrence.
26 You have pleaded guilty to offences contrary to s.319 of the Crimes Act, a relatively new offence, having been created in June 2004 to meet what was seen as a gap between culpable driving, which carried a maximum penalty of 20 years and dangerous driving which carried a maximum penalty of two years. There is as yet little by way of sentencing practice to inform a sentencing judge.
27 The learned authors of the Victorian Sentencing Manual state that:
"This offence attracts a maximum penalty of five years' imprisonment and is triable summarily. When charged alone it may be expected that it will generally be prosecuted in the Magistrates' Court, though this may not be the case in offences involving death rather than serious injury".
And further:
"The low maximum penalty and the significantly reduced threshold of culpability when compared with the s.318 offence [culpable driving] are matters that must be taken into account in determining the gravity of any examples of this offence. However, the severe consequences of the offence, especially, but not only where death has resulted, mean that it cannot be treated as a minor infringement".
28 It is sadly the case that young people, particularly young men, are attracted to speed and risky behaviour with motor cars. There has been a spate of cases recently where serious injury and death have flowed from what is properly described as hoon behaviour involving young men driving in demonstrably dangerous situations as a form of sport or contest ‑ a show of bravado.
29 The dangerous use of motor cars can and does produce disastrous consequences for innocent victims, as is evidenced in this case. Some of your victims will carry the scars of your conduct long after any sentence I impose will have been served and long forgotten. Had one or more of them died, the consequences for you might well have been far more serious, you might have been facing a charge of culpable driving which, as I said, carries a maximum penalty of 20 years.
30 Your counsel rightly acknowledged that only a sentence of imprisonment would be appropriate and I should say that I do not believe that it would have been appropriate for me to wholly or even substantially suspend it had I been of the view that detention in a youth training centre was not open to me. As it transpires I was satisfied that the total sentence I would impose was one that was no more than three years and according it was open to me to consider a young training disposition.
31 I have sought and obtained a report from the Department of Human Services. Mr Gene Bell, the Court Advice Officer who prepared that report, noted that inexperience and immaturity were obvious features of your offending and in his opinion your remorse and regret for what happened were both deep and genuine. He believed that you had very good prospects of rehabilitation and that the risk of you reoffending was low. He found that you fitted all the criteria stipulated in s.32 of the Sentencing Act 1991 and, accordingly, were deemed suitable as a candidate for a young training centre order.
32 I propose to act upon his recommendation.
33 As I have said, the maximum penalty applicable for each of these offences is five years' imprisonment. That maximum must be reserved for the worst case scenario, one involving death and committed by an adult with prior convictions for traffic or other offences. Here I must take into account the fact that you are a youthful first offender and that although some of the victims have suffered very serious injuries none fortunately were killed. I also take into account your early plea of guilty, your genuine expression of remorse and your good prospects of rehabilitation.
34 You will be convicted on each count and sentenced on each of Counts 1 to 6 inclusive to 18 months' detention and on Count 7 to 12 months' detention.
35 I order that one month of each of the sentences imposed on Counts 2 to 7 be served cumulatively upon each other and upon the sentence imposed upon Count 1, making a total effective sentence of 24 months detention.
36 Pursuant to s.89 of the Sentencing Act I cancel any drivers licence that you hold and disqualify you from obtaining any licence for a period of 24 months.
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