R v Lu

[2020] NSWDC 450

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Lu [2020] NSWDC 450

Hearing dates:

22-23 June 2020

Date of orders:

14 August 2020

Decision date:

14 August 2020

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

Full-time custodial order to be served by way of aggregate sentence for 2 years, 10 months. For orders see [83].

Catchwords:

SENTENCING - dangerous driving causing grievous bodily harm - victim impact statements – speeding 100kmph in a 60kmph zone - possible deportation –prior driving offences – submission that onerous parole conditions equivalent to an intensive corrections order – disqualification

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Casella v R [2019] NSWCCA 201

Frlanov v The Queen [2018] NSWCCA 267

Hoskins v R [2016] NSWCCA 157

Karout v R [2019] NSWCCA 253

Kristensen v R [2018] NSWCCA 189

Markarian v The Queen [2005] HCA 25

MaxwellvR [2020] NSWCCA 94

Muldrock v The Queen (2011) 244 CLR 120

R v AB [2011] NSWCCA 229

RvCartwright (1989) 17 NSWLR 243

R v Errington (2005) 157 A Crim R 553

R v Fangaloka [2019] NSWCCA 173

RvFowler (2003) 151 A Crim R 166

RvKhamas (1999) 108 A Crim R 499

RvKhatter [2000] NSWCCA 32

R v Manok [2017] NSWCCA 232

R v McKeown [2013] NSWDC 22

RvWebb (2004) 149 A Crim R 167

R v Whyte (2002) 55 NSWLR 252

Category:

Sentence

Parties:

Regina (Crown)
Qiaochu Lu (Offender)

Representation:

Counsel:
Mr M Hobart SC (Crown)
Mr M Tedeschi QC (Offender)
Solicitors:
The Director of Public Prosecutions (Crown)
Juris Cor Legal (Offender)

File Number(s):

2018/341052

Judgment

1. The offender Qiaochu Lu, born in 1992, is before the court for sentence for two counts of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900, for which the maximum penalty is seven years imprisonment, and one count of cause bodily harm by furious driving contrary to s 53 of the Crimes Act 1900 for which the maximum penalty is 2 years. There are no standard non parole periods for these offences.

2. There were several disputes about the facts upon which I should sentence the offender which were resolved by me at hearing. The facts, at sentence, are as follows:-

1. The offender, originally from China, has been residing in Australia since he was 16 years of age. At November 2018, he was 26 years of age.

2. The offender was the holder of an international driver’s licence. The offender had received infringement notices for speeding offences on nine separate occasions between the period of September 2011 and September 2018.

3. On 30 September 2018, the offender was stopped by police for travelling at approximately 98 km/h in a 60km/h zone. When stopped and spoken to by police, he stated, ‘I think I was only doing 70. I was speeding because I was so hungry’.

4. At the time, the offender was employed at Star City Casino in luxury sales. At about 6:45pm on Sunday 4 November 2018, he finished work at Star City. He drove his partner’s white BMW from his work.

5. Shortly before 7:30pm, he was driving the car in a northerly direction on Victoria Road, Gladesville. There were three lanes, one of which was a bus lane. Similarly, there were three lanes in the other direction, one being a bus lane. The traffic in each direction was separated by a concrete median strip. The traffic at the time was moderate, although light for Victoria Road. Victoria Road is a main thoroughfare of Sydney. The prevailing speed limit for that area of Victoria Road was 60km/h.

6. The offender was travelling in lane 3 of 3 (the lane closest to the median strip). Travelling in lane 1 (the lane closest to the gutter) and in close proximity to the offender’s vehicle, was a white Audi. Both vehicles were travelling well in excess of the speed limit. They both overtook a taxi travelling in the lane between the two vehicles.

7. The offender had commenced a phone call on his mobile phone via Bluetooth.

8. The offender’s vehicle was captured on CCTV from Dan Murphy’s, Victoria Road. The speed of the offender’s vehicle was able to estimated from the footage. It was estimated that the vehicle was travelling at a speed of over 100km/h.

9. At a point just near the intersection of Victoria Road and Westminster Road, approximately 110m further on from Dan Murphy’s, the offender failed to negotiate a left hand sweeping bend and his car crossed to the incorrect side of the road. The bend was also on a slight incline. The vehicle initially impacted with the median strip, causing significant damage to the front offside rim and also causing the tyre to deflate.

10. The phone call that the offender was on continued for a few minutes after the collision. He was seen by a witness to be on his phone following the collision.

11. The Audi kept travelling in a northerly direction and did not stop.

12. At the same time, Mr Michael Macukat was driving his blue Ford Focus in a southerly direction in lane three of three, being the lane closest to the centre of the roadway. Mr Macukat was intending to turn left up ahead. He was travelling at a speed less than the speed limit and was preparing to get into the left hand lane.

13. Ms Caroline Tuyau was driving her brother’s Volkswagen Polo. Her brother, Mr Jean Francois Tuyau, was in the front passenger seat of the vehicle. They were travelling directly behind Mr Macukat’s car.

14. Also travelling in a southerly direction was a Toyota Corolla being driven by Ms Lisa James. Ms James was attempting to change from the right lane (closest to the median strip) into the middle lane. Ms James checked over her shoulder to see if it was safe to change lanes.

15. As the offender’s vehicle crossed the median strip, it impacted with the Ford. It was a side swipe, redirecting the Ford into lane one. The Ford spun around and came to stop facing in the opposite direction to which it had been travelling in lane one (and partially on the gutter).

16. The offender’s vehicle continued, impacting head on with the Volkswagen, forcing it backwards by several metres. The Volkswagen came to rest in the middle lane.

17. The offender’s vehicle rotated anti-clockwise before impacting with the Toyota. Ms James had been looking over her shoulder to change lanes safely and had no time to react to the BMW which was now directly in front of her before impacting it. Both of the vehicles then came to rest. The Toyota came to rest predominantly in the middle lane but partially in lane one (closest to the gutter). The offender’s vehicle came to rest across the middle lane and partially in lane three (closest to the median strip). It was facing towards the middle of the road.

18. Bystanders attempted to assist, and police and other emergency services arrived shortly afterwards. All persons were trapped in their respective vehicles and required assistance to be removed from them, either by bystanders or by emergency services.

19. Mr Macukat, driver of the Ford, was conveyed to hospital. He did not suffer any injuries, other than scratches to his head and arm.

20. Ms Tuyau was conveyed to hospital. She suffered a fractured right forearm, a fractured left ankle, rib fractures, a frontal petechial bleed, lower lumbar spinal damage, a perforation of her bowel and a serosal tear of the transverse colon.

21. Surgery was required to repair the bowel laceration and the fracture to her forearm. A metal plate and eight screws were inserted into her right forearm.

22. The injury to her spine consisted of breaks of the L2 and L3 vertebrae, with the break in the L3 being a ‘burst fracture’.

23. Ms Tuyau was in hospital for about 6 weeks before being moved to a rehabilitation hospital for a further 3 weeks. She then continued rehabilitation as an outpatient.

24. Dr Garett Smith, Bariatric Consultant Surgeon, was of the opinoin that the injuries were ‘severe’.

25. Mr Tuyau was conveyed to hospital. Upon admission, he was hypotensive and tachycardic. His blood pressure continued to fluctuate. Prior to the collision, Mr Tuyau was a paraplegic following an incident in January 2018. As a result of the collision, he suffered injuries to his small intestine and colon. Mr Tuyau also suffered a laceration to his spleen, a pelvic fracture, spinal fractures and a fractured hand. He developed deep vein thrombosis of his lower limb.

26. Surgery was required to repair multiple injuries to his bowel.

27. Mr Tuyau remained in hospital for a total of about 4-5 weeks. The first two weeks were spent in the intensive care unit. He then moved to a rehabilitation hospital until he was discharged on 23 December 2018.

28. Ms James was conveyed to hospital. She suffered a sternum fracture and a spinal fracture as well as bruising on her arm and leg.

29. The offender was also conveyed to hospital for treatment. He was released from hospital on 6 November 2018. He was arrested and conveyed to the police station.

30. He took part in an electronically recorded interview. He admitted to being the driver of the BMW involved in the collision. He said that he remembered driving home from work but had no memory of the collision or any of the events immediately prior to the collision.

31. The offender’s vehicle was later examined. It was determined that there were no mechanical defects or failures with the vehicle which might have been contributing factors to the collision occurring.

32. It is the Crown case that the offender was driving in a manner dangerous:

1. The offender was travelling at a speed well in excess of the legal speed limit; and

2. The offender was travelling on a main Sydney road with a total of six lanes of traffic at a time when there was moderate traffic and it was dusk on a Sunday evening.

Evidence

3. Before me are four exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. Committal documents;

2. Charge certificate;

3. Agreed facts;

4. Criminal history;

5. Custodial history;

6. Traffic history;

7. Victim impact statement of Caroline Tuyua;

8. Victim impact statement of Jean Tuyua;

9. Victim impact statement of Lisa James;

10. Sentencing Assessment Report (SAR) under the hand of Beth Debrezceny dated 28 April 2020;

11. Section 166 Certificate;

12. Google (satellite) map of area (arrows depicting approximate collision location and the approximate location of CCTV from Dan Murphy’s);

13. CCTV footage from 325 Victoria Road ;

14. CCTV footage from Dan Murphy’s, 330 Victoria Road;

15. Dashcam footage from a vehicle travelling in southerly direction;

16. CCTV footage from 375 Victoria Road;

17. Redacted statement of Maryanne Kelly dated 2 October 2019;

18. Redacted statement of Michael Paivia dated 19 March 2019;

19. Redacted statement of Jay Alameddin dated 8 September 2019;

20. Redacted statement of Kerry Florance dated 25 January 2019;

21. Redacted statement of Terry Papapetros dated 25 January 2019; and

22. Statement of Brendan Ford dated 7 September 2019.

4. Exhibit 2 is a bundle of documents tendered by the offender which includes:

1. Character references from:

1. Bob Lee;

2. Melanie Sun;

3. Sara Zhou;

4. Travis Guy; and

5. Yi Wei.

2. Completion of Traffic Offender Program Certificate;

3. Notification of grant of Bridging Visa;

4. Yichen Sun consent to Partner Visa;

5. Receipt of Partner Visa;

6. Employment verification;

7. Psychological report of Ms Megan Godbee dated 9 June 2020;

8. Opal card report; and

9. Uber transactions from 2016 to 2020.

5. Exhibit 3 contains the ambulance records of 4 November 2018.

6. Exhibit 4 is an updating SAR dated 11 August 2020.

Exhibit 1

7. I will now highlight some important elements in the documents which have been placed before me.

8. Ms Caroline Tuyau provided a victim impact statement which was read in court by Sargent Chris Drummond. Ms Tuyau said that as a result of the incident she has suffered from continuing pain, bowel issues and restrictions to her physical capability. She stated that this has impacted her ability to carry out everyday tasks like driving, walking, showering, caring for her disabled brother and enjoying her previous quality of life. Ms Tuyau spoke of the continuing mental and social impacts, as she feels that her personality has changed as a result of the incident. She has constant nightmares which leave her “very frightened to close her eyes”. She has had to leave her employment where she had worked for almost 11 years. This has impacted her financial situation. She recounted the hardship the incident has caused her family, in particular her brother who was already recovering from an accident that had left him a paraplegic.

9. Mr Jean Francois Tuyau provided a victim impact statement which was read by Sargent Chris Drummond. Mr Tuyau stated that prior to the offence he had spent seven months in physical rehabilitation because of an accident that had left him a paraplegic. He had just recommenced employment and had hopes of walking again. However, since the incident Mr Tuyau has been unable to work full-time and has suffered significant physical setbacks to his rehabilitation. Mr Tuyau stated that he now suffers from ongoing pain and bowel issues and has been admitted to hospital on multiple occasions due to complications resulting from the incident. In his letter, he told the court that since the incident, he has been socially isolated, and his mental recovery has been impacted as he often has nightmares and flashbacks of the collision. He also stated that his business has suffered financially, as he was unable to manage it in the aftermath of the incident.

10. Ms Lisa James provided a victim impact statement, which was admitted into evidence. She stated that the offending has had a serious impact on her physical, emotional and psychiatric health. She believes that she will feel the effects for the rest of her life. Since the incident, Ms James has been diagnosed with Post Traumatic Stress Disorder (PTSD) and has experienced depression. She has been socially isolated, and has had a limited capacity to participate in employment. She experiences fearfulness when driving and has had to move homes. Ms James says that these changes have negatively impacted her quality of life, as she struggles to perform day-to-day activities. She fears that she may never “fulfil her potential”.

11. I acknowledge the profound impact that the offending has had on the each of the victims’ lives. Their lives have been forever changed because of the dangerous behaviour of the offender. On behalf of the community, I recognise the ongoing physical and mental harm that this offending has caused. The court hopes that each victim will heal as time passes.

12. The SAR of 28 April 2020 states that Mr Lu has a supportive relationship with his parents and partner. He is currently unemployed and is financially reliant on his parents and partner. While the offender has no prior criminal history, it was noted that he has a history of prior speeding offences which, in Ms Debrezceny’s view, indicates a disregard for road regulations.

13. Mr Lu admitted being aware that he was driving above the legal speed limit on the night. However, he believed he was in control of his vehicle and would be able to reduce his speed. In hindsight, he stated that it was a “stupid” decision to drive above the speed limit. He admitted that he was on the telephone at the time of the offences, but he denied any illegal use of his mobile phone. In terms of insight into the impact of the offending, Mr Lu first identified the impact of his offending on him personally, as it has resulted in him having a criminal record. He stated he regretted his actions and acknowledged the physical and psychological damage his actions caused to the victims and their families. The offender was assessed at a low risk of reoffending according to the Level of Service Inventory-Revised.

14. Evidence was also given by Ms Maryanne Kelly, Mr Michael Paivia, Mr Jay Alameddin, Ms Kerry Florence, Mr Terry Papepetros and Mr Brendan Ford in the form of written statements and oral evidence before me. They provided evidence of the speed at which they believed the car was travelling. Ms Kelly, Mr Alameddin, Mr Papapetros and Mr Ford told the court that they had heard a “loud” car, and each of the witnesses stated that the offender was going “above the speed limit” or travelling “really quick.” Mr Alameddin arrived after the incident and spoke to the offender when he was trapped in his BMW. Mr Alameddin stated that:

‘The driver said: “Oh no what have I done, I’m sorry I’m sorry have I killed anyone”.’

15. CCTV and dashcam footage of the vehicle was played. The videos depicted the offender travelling at great speed.

Exhibit 2

16. Mr Lee worked with the offender, and writes that Mr Lu is very responsible and takes his job seriously. He stated that he was aware of the charges and that the offender has talked to him about the incident. He said that Mr Lu was clearly shaken up and that he is now more appreciative of his friends, family and the fragility of life. The offender told Mr Lee that he is apprehensive about getting behind the wheel again. Mr Lee stated that the incident has been an “influential deterrent” and that Mr Lu is now aware of the consequences of his actions. He stated his belief that it is unlikely that this type of incident would recur.

17. Ms Sun is the partner of the offender. She stated that in the lead up to the incident he had a bad flu, and was still on antibiotics and coughing heavily on the night of the collision. Ms Sun said that the offender is a compassionate and caring person and that they frequently volunteer together to help homeless kittens. She said that Mr Lu is very sorry for his actions and realises that “a brief moment can cause so much tragedy.” She said that he is very concerned about the physical and mental health of those impacted by the incident and that he now understands the importance of road safety.

18. Ms Zhou is a colleague of the offender. She said that Mr Lu is an excellent and responsible co-worker. She stated that following the incident the offender was notably distressed and expressed remorse for his actions.

19. Mr Guy is the former employer of the offender. He stated that both professionally and personally, he has had nothing but positive experiences with the offender. He stated that Mr Lu called him while he was still at the scene of the incident, and that when he later visited Mr Lu in hospital he was emotionally distraught. Mr Lu was regretful and remorseful, and has said that he will follow the road rules.

20. Mr Wei is a friend of the offender. He was the first person to attend him after the incident. He stated that the first thing Mr Lu asked when he could talk was whether the victims were ok. When he was granted bail, Mr Lu wanted to apologise to the victims personally. He believes that Mr Lu has learnt his lesson as he is “now more aware of the harm that he can do.”

21. Mr Lu successfully completed the Traffic Offenders Intervention Program in April 2020.

22. The offender is currently on a bridging visa. He has applied for a partner visa but is still waiting for it to be processed.

23. Ms Godbee interviewed the offender by audio visual link (AVL) on 5 June 2020 for approximately 2 hours. Mr Lu grew up in eastern China and had a positive relationship with his parents. He denied any experiences of abuse or other trauma in his childhood. When he was 16-years-old he migrated to Australia without his parents. He told Ms Godbee that his parents have continued to support him financially and emotionally from China.

24. Mr Lu reported having pain in his knees due to the amount of sport he played in his childhood. He will likely need knee replacement surgery. He sustained an injury approximately 5 years ago when two drug-affected people attacked him on the streets, choking him, pushing his head into a wall and taking his wallet. He also sustained injuries in the motor vehicle collision the subject of these offences. He fractured his lower back and was prescribed medication for pain management. However, because other prisoners ‘stood over’ him for his medication, he stopped taking it. He continues to experience back pain.

16. The offender stated that he consumed one bottle of beer every week or two and that drinking has never been as issue. He denied any other substance abuse or a history of problematic gambling. Socially, he has no difficulties communicating with people, but since his offending he has withdrawn from social media, because it was focused on his love of fast cars and he did not want to be reminded of the collision. He now relies on a smaller circle of supportive people. He has never associated with antisocial peers. He shared an interest in modifying and racing cars with some of his friends. He describes his relationship with his girlfriend as “very stable.”

17. The offender received his first speeding fine in 2011 and received a total of 5 speeding fines before his visiting driver privileges were revoked in 2015. After his privileges were restored he was again fined for speeding on two occasions prior to this offence. He stated that he has always driven modified cars which he believed he could control at high speeds. He also stated that he used to go to a racetrack in Eastern Creek and he believed that this desensitised him to travelling at high speeds. The report states that “he did not think about the potential consequences of speeding for other people, as he was only focused on being caught by the police.” In evidence before me, the offender was adamant that he did not say this to Ms Godbee. Taking into account that the interview was conducted by AVL and that the offender’s English is far from perfect, I accept that this is a mischaracterisation of what the offender said.

18. Throughout the interview, the offender expressed remorse for his offending and he was distressed about the consequences of his actions on the victims. He expressed some frustration about the severity of his bail conditions, noting that he felt “confused” because the collision was not intentional. However, he recognised the need to accept the consequences of his actions, even if it was a prison sentence, as he had caused life-long pain to the victims. After attending the Traffic Offenders Intervention Program, he learned new facts such as speeding being one of the biggest killers on the road. It also improved his confidence about driving in the future. Although he has loved fast cars all his life, he now will only drive unmodified cars in the future.

19. The offender did not report any mental health concerns prior to this offence. He has had no contact with mental health professionals but believes it might be helpful now due to his current distress. Ms Godbee is of the opinion that the offender is experiencing a posttraumatic stress response to the collision. Indicators include: intrusive memories of the collision, imagining events from the perspective of the victims including recurrent thoughts about their pain and suffering, attempts to avoid thinking or talking about the collision, distress at reminders, persistent low moods, feeling disconnected from others, disrupted sleep and the belief that he has “ruined everything”. However, he also expressed a sense of hopefulness, i.e. as he survived the crash, he could now make better decisions in the future. Mr Lu did not report any other significant mental health history.

20. Ms Godbee recommended that Mr Lu engage in individual psychological treatment to process his post-traumatic stress response to the collision. He also requires offence specific treatment to help him challenge his attitude about speeding. She suggested that Mr Lu be referred to a psychologist with forensic experience.

Exhibit 4

30. An updating SAR dated 11 August 2020 also under the hand of Beth Debrezceny was recently provided to the court. The offender is now employed full time as a shop manager for a restaurant. Ms Debrezceny sighted a letter of employment dated 9 June 2020 and a payslip dated 12 July 2020. She confirms the supervision plan of the previous SAR, and notes that he is suitable to undertake community service work.

The offender’s evidence

31. The offender gave evidence before me without the aid of an interpreter on 23 June 2020. He expressed remorse and regret for his offending behaviour. He stated “I cannot express how sorry and shameful I am, to bring the physical damage and mental scars to the victims.” He said that on the day of the offence he was travelling from work and was trying to get home quickly. He had no reason to get home quickly but “was stupid and selfish. I shouldn’t have sped”. Mr Lu stated that at the time he did not respect the law. He did not remember the actual impact as he lost consciousness at the time of the collision. As a result of the offence, he was on crutches for 1-2 months. Mr Lu stated that he did not know that there was another car speeding nearby and did not notice the car. At the time of the incident, he was talking on the phone over Bluetooth to a friend in China. When he regained consciousness he heard sirens and people screaming. He stated that he immediately called his partner and then his manager to tell him that he wouldn’t be able to go to work, as he was injured.

32. As a result of the offence, Mr Lu spent 3 weeks in Silverwater gaol. He stated that it was “like hell”. People came up to him asking for his medication as he was on painkillers. He was then granted bail. He has had to report to police every day and had a curfew from 9 pm to 6 am, later changed to 11 pm to 6 am. He also wears a GPS ankle tracker. These conditions have been in place for approximately 21 months. When asked about the impact of the ankle bracelet, he said that it was difficult, but nothing in comparison to the suffering of the victims.

33. When the offender was 16 years of age he moved to Australia. He initially was on a student visa, and then a bridging visa after that expired. He has been in a relationship with his partner since 2013 and they have applied for a partner visa. Mr Lu wishes to continue to live in Australia as this is his home. He and his partner have talked about marriage. The offender expressed his desire to fix the wrong he has done. He has recently imported 12,000 masks from China to help Australia during the COVID-19 crisis and he has been involved in the adoption of homeless kittens.

34. Mr Lu told the court that he has undertaken the Traffic Offenders Program, and that he has not driven since the offence, even though he still has his licence. He said that he is afraid to get behind the wheel in case he hurts more people. The offender said that this offending has changed how he will drive in the future – he will not go over the speed limit, he will not put other lives in danger and he will be respectful of and responsible to other road users.

35. In cross-examination by Mr Hobart, Mr Lu was asked about viewing the road as a race track and being focused on not being caught by the police, as was recorded in the SAR. Mr Lu stated that he had not said those things, that his English is imperfect and that there had likely been a misunderstanding. I observe that whilst the offender had a good command of the English language, it was far from perfect. Questions needed to be repeated, and he misused words in some of his answers. The offender told Mr Hobart that driving at Eastern Creek and on the streets are totally different. The offender holds a CAMS licence in order to drive at Eastern Creek for which there is no practical driving test. It is obtained by applying online, reading written materials and learning rules. When asked about his previous speeding offences, the offender stated “I was a fool. I was not a good driver. I should not have done it.” Before the offending, he agreed that he had little regard for the road rules when he was driving.

36. Acknowledging the limits of making such a finding based on demeanour, I thought the offender to be a candid witness. He gave some answers against his interest. I accept that he was genuinely remorseful for his actions, a topic upon which he was not cross-examined, and to which I will return.

37. I acknowledge the considerable assistance provided to me by the Crown and Mr Tedeschi on behalf of the offender.

Objective Seriousness

Dangerous Driving

38. The Crown submits that Mr Lu’s moral culpability is high, and that he has demonstrated a clear abandonment of responsibility in the present case, by reason of the fact that he was driving at substantial speed at the time of the collision. It is not in dispute that at the time of collision, the offender was driving at least 40kms per hour over the speed limit. The Crown submits that the assessment of the offender’s moral culpability is relevant to determining whether a custodial sentence should be imposed, as well as to determining the appropriate length of the sentence. Mr Hobart submitted that the assessment of moral culpability was the central enquiry, rather than the subjective circumstances of the case. The Crown submits that as the offender’s moral culpability is high, a sentence of less than two years full-time imprisonment would be inappropriate for each of the two most serious offences and there would need to be some accumulation as there were three victims. Mr Hobart said that two years full time imprisonment is then discounted for the plea of guilty.

39. In R v Whyte (2002) 55 NSWLR 252, the court recognised the discretion given to a judge at first instance but set out a typical case and suggested a guideline penalty. In that case at [214], Spiegelman CJ observed that “a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement.” The greater the degree a driver abandons his responsibility to others on the road, the greater his moral culpability and the more serious the offence, which impacts on penalty. It was suggested that in the usual case a full-time custodial sentence of two years would be appropriate.

40. In Whyte, a frequently recurring case was said to have the following characteristics: a young offender of good character with limited or no prior convictions, death or permanent injury to a single person, the victim is a stranger, that there was limited injury to the driver or his intimates, there was genuine remorse and there was a plea of guilty of limited utilitarian value. Recurring aggravating factors included: the extent and nature of the injuries inflicted, the number of people put at risk, the degree of speed, the degree of intoxication or of substance abuse, erratic or aggressive driving, competitive driving or showing off, the length of the journey during which others were exposed to risk, the ignoring of warnings, escaping police pursuit, the degree of sleep deprivation and the failing to stop. I note that Whyte is a guideline rather than a “tramline”, and not a starting point but a reference point: R v Errington (2005) 157 A Crim R 553 at [40]. I retain a sentencing discretion which must be informed by proper principle.

41. There are some differences and similarities in the present case. As to the characteristics in the frequently recurring case, here the offender is relatively young, there was serious permanent injury to more than a single person and there is genuine remorse. In my view, the offender’s plea of guilty at an early opportunity had real utilitarian value. As to the frequently recurring aggravating factors, here there was speed but no competitive driving, there was no ignoring of warnings, no escaping police pursuit, no failing to stop and there is no evidence of sleep deprivation or intoxication. Mr Tedesechi submitted that the accident is attributable solely to the offender’s momentary miscalculation of what was an appropriate speed in the circumstances of the road at that time. I reject this submission. To travel at great speed over a relatively short distance was, in my opinion, a choice made by the offender. It cannot be characterised as momentary miscalculation.

Aggravating Factors

42. The Crown submits the following factors go to aggravation:

1. The offender has a record of previous speeding offences;

2. The injury, emotional harm, loss or damage caused by the offence was substantial. The Victim Impact Statements set out the physical and emotional pain each victim suffered, and for one of them, significant financial hardship; and

3. The offence was committed without regard for public safety, by speeding on a major public road, passing a number of vehicles at speed, and putting other drivers in danger. The Crown says that although this is an element of the offences charged, it goes beyond that, and was “extremely” dangerous. I do not take into account any ingredient of the offence as an aggravating factor, as that would amount to double counting.

43. It is submitted by Mr Tedeschi, on behalf of the offender, that the only aggravating factors present, so far as Whyte is concerned, are the extent of speed and the extent and nature of the injuries inflicted. I agree with this submission.

Mitigating Factors

44. Mr Tedeschi submitted that the following factors are relevant mitigating factors:-

1. The offender does not have any record of previous criminal convictions, although he has a very poor driving record and in particular for speeding offences;

2. The offender has good prospects of rehabilitation. He will be disqualified from driving for a long period, which will give him a chance for rehabilitation without driving; and

3. He has pleaded guilty at the earliest opportunity.

45. The Crown submits that these offences should be placed at the mid-range of objective seriousness. He submitted that it was not a moment of inattention, as the offender was driving over the speed limit for a prolonged period of time. The offender was also considerably above the speed limit, estimated to be travelling at near 100 kmph in a 60 km zone.

46. Mr Tedeschi submits that the offending was a momentary miscalculation coupled with grossly excessive speed. He submitted that the offending falls between the lower to mid-range of objective seriousness.

47. Mr Tedeschi submits that Mr Lu is otherwise of good character and that he faces potentially catastrophic consequences of imprisonment. He concedes that general and specific deterrence are important, as is a statement of denunciation by the sentencing court. However, he submits that not every error of judgment, no matter how tragic its consequences, demands full-time incarceration. Mr Tedeschi notes the comments of Simpson J (as her Honour then was) in R v Khatter [2000] NSWCCA 32 at [31]:-

There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.

48. As I have said, the offender chose to drive at speed. This was not an emergency situation. Choosing to drive at speed on a commercial road in these circumstances in my view demonstrates an abandonment of responsibility as a driver of a motor vehicle. I find objective seriousness at just below the mid-range for each of the offences. In arriving at this conclusion, I have taken into account the legislative guideposts of the maximum penalties for each offence.

Subjective Circumstances

Plea of Guilty

49. The offender pleaded guilty to all three counts. He did so at the earliest opportunity and is entitled to a 25% discount for the utilitarian value of his pleas.

General Deterrence

50. The Crown submits that general deterrence is of great significance in sentencing for dangerous driving cases. So much is not disputed.

51. In R v Manok [2017] NSWCCA 232 at [78]–[79], Wilson J explained the importance of general deterrence in a sentencing exercise such as the present one, saying that it was “because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle”. The risk that a driver could commit an offence resulting in death or severe injury means that all drivers must be deterred from driving dangerously by the sentences imposed on those who transgress.

Personal Deterrence and Prospects of Rehabilitation

52. The Crown submits that personal deterrence is significant when sentencing for an offence under these sections of the Crimes Act, even where an offender is remorseful and suffers self-punishment as a result of the effects of the offence: R v AB [2011] NSWCCA 229.

53. The Crown accepts that the offender has chosen not to drive since the day of the offending and that his licence will be confiscated for a long period. He further accepts that Mr Lu, while not the youngest offender, is young enough that the community would expect him to change for the better, and that he has good prospects of rehabilitation. He concedes that the offender is at a low risk of reoffending. I note that the offender has successfully completed the Traffic Offender’s programme.

54. In my opinion, taking into account the offender’s driving record, personal deterrence has a role to play in this sentencing exercise. Notwithstanding that comment, I accept that he has good prospects of rehabilitation, and a low risk of re-offending, propositions with which the Crown and Mr Tedeschi agree.

Remorse

55. The offender has shown genuine remorse and significant concern for the physical and mental well-being of those injured from the onset. Mr Alameddin spoke to the offender immediately after the collision when Mr Lu said, “Oh no what have I done? I’m sorry. I’m sorry. Have I killed anyone?” In the report of Ms Godbee and in evidence before me, the offender expressed remorse for his offending and appeared distressed when reflecting on the consequences of his actions on the victims. He has taken responsibility for his actions and has undertaken to change the way he drives in the future. I find that there is ample evidence of his contrition and remorse, a proposition with which both the Crown and Mr Tedeschi agree.

Prior Criminal History

56. The offender has no prior criminal history, although he has a very poor driving record and incurred a number of speeding fines in the years prior to the offending. In cases such as the present, the offender’s lack of criminal history carries less weight.

Possible Deportation

57. The offender is a Chinese citizen who has been residing in Australia since 2008. As he has not yet obtained Australian citizenship, there is apparently a real risk that if a sentence of imprisonment (including an Intensive Correction Order (ICO)) of more than 12 months is imposed, he will be deported to China. Mr Tedeschi accepts that a court will not usually take possible deportation into account as the determinative factor, however he submits that it can be taken into account as one circumstance in a combination of factors in the sentencing exercise. Mr Tedeschi submits that deportation would have devastating consequences for the offender and his future, and would be a punishment disproportionate to the offending. He submitted that possible deportation can be taken into account in 2 ways:

1. That the risk of deportation constitutes extra curial punishment; and

2. That the risk of deportation will cause mental anguish additional to the punishment that an ordinary offender would face.

58. The Crown does not agree that the matter can be taken into consideration as a factor on sentence, and he relies on Maxwell v R [2020] NSWCCA 94 and Kristensen v R [2018] NSWCCA 189.

59. I do not take the offender’s prospect of deportation into account as a factor relevant to sentence. As Johnson J said in Maxwell at [123], (Adamson and Bellew JJ agreeing):

The prospect of deportation is irrelevant to the structuring of a sentence and it is an error to use deportation to determine any aspect of a sentence.

Onerous Bail Conditions

60. Mr Tedeschi submits that the court may take into account that the offender has been subject to onerous bail conditions prior to sentencing. The offender has been on bail and subject to monitoring conditions for approximately 21 months. Mr Lu has a GPS ankle monitor, a daily reporting condition and a curfew condition. Mr Tedeschi submits that these conditions are akin to conditions of an ICO and have amounted to constructive imprisonment. He submits that I should take these “exceptional circumstances” into consideration when calculating the appropriate length of sentence.

60. The Crown submits that the conditions of bail cannot be compared to an ICO and cannot be considered equivalent to custody.

61. Courts in this state have long accepted the proposition that onerous bail conditions may be taken into account at sentence:- see R v Cartwright (1989) 17 NSWLR 243; R v Khamas (1999) 108 A Crim R 499; R v Fowler (2003) 151 A Crim R 166; and R v Webb (2004) 149 A Crim R 167. It is open to a sentencing judge to take onerous conditions of bail into account in assessing sentence, but he is not obliged to do so: R v Webb at [18], and Hoskins v R [2016] NSWCCA 157 at [36].

62. The test of what is “onerous” or “stringent” is discretionary and turns on the facts of each case: Frlanov v The Queen [2018] NSWCCA 267. It is a matter for the sentencing judge to assess the facts of the particular case and determine whether bail conditions the offender was subject to amount to quasi-custody: R v Webb [at [18].

63. Bail conditions requiring an offender to remain at home except when attending his employment, reporting to police or attending court and medical appointments were regarded in R v Webb as not amounting to quasi-custody. In Hoskins v R the sentence was backdated 60 days due to that offender’s onerous bail conditions, namely a residential condition, a daily reporting condition, a prohibition on contact with Crown witnesses and the co-accused, a condition requiring the applicant to pursue employment, a curfew condition between 7 pm and 7 am, and a condition requiring him to present at his front door at the request of police officers to check compliance with the curfew.

64. In this matter the offender gave evidence, upon which he was not cross-examined, about his conditions of bail, which he described as “difficult”. In all of the circumstances I take into account that the offender has been subject to somewhat onerous bail conditions for approximately 21 months as a matter to synthesise on sentence.

Special Circumstances

66. I make a finding of special circumstances taking into account that this will be the offender’s first time in custody, the offender’s relative youth, and that he will require supervision when he is re-integrated into the community. He also requires ongoing review with a psychologist, as he agreed in his evidence.

Totality

67. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.

68. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. Here, on one view, the offending constituted a single episode of criminality. In my opinion, there ought to be some degree of concurrency.

69. I have also considered the principle of proportionality.

Licence Disqualification

70. The offender must be disqualified from driving, as it is a privilege rather than a right, and he has demonstrated disregard for the safety of others using the roads.

Threshold

71. The Crown submitted that the threshold of section 5 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) has been crossed. Mr Tedeschi submitted that it was open for me to find that the threshold has not been crossed, taking into account the fact that he has spent 3 weeks in custody, that he has been subject to onerous bail conditions, and that there is a real risk that he will be deported. In my opinion the section 5 threshold has clearly been crossed. No penalty other than a sentence of imprisonment is appropriate.

Time in custody

72. The offender has spent three weeks in custody referrable to these offences. I take that into account when setting the sentence.

Sentence

73. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community.

74. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

75. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

76. In determining an appropriate sentence I have kept in mind that there are three offences for which the offender is to be sentenced, one carrying a maximum penalty of 2 years imprisonment, and the other two carrying a maximum penalty of 7 years imprisonment.

77. To paraphrase Haesler SC DCJ in R v McKeown [2013] NSWDC 22, this judicial task is particularly difficult. No gaol term can replace another’s health and well-being, and neither can a period of imprisonment return a victim to the place he or she was in prior to suffering the consequences of the offending.

78. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 2 years, 10 months.

79. The offender’s counsel cavilled for an ICO in all of the circumstances. I note that an ICO is available only if the sentence of imprisonment is 3 years or less. It may be made in respect of an aggregate sentence of imprisonment, but the aggregate term must not exceed 3 years: section 68(2) of the Sentencing Act. I must consider whether an alternative to full time custody is appropriate, namely, in these circumstances, an ICO. On this question, I note that the passing of the Sentencing Act has provided for alternative sentencing options in order to provide justice to the community as a whole. For example, in the second reading speech regarding the legislation, the Attorney-General stated:

‘We know from Australian and international research that community supervision, combined with programs that target the causes of crime reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence.’

80. In R v Fangaloka [2019] NSWCCA 173, the court discussed the effect of the competing purposes of sentencing on the consideration of whether a sentence of imprisonment should be served in custody or by way of an ICO.

81. Community safety is the paramount consideration when determining whether to impose an ICO (s66(1) of theSentencing Act, although I have had regard to the recent decisions of R v Pullen [2018] NSWCCA 264, R v Fangaloka , Casella v R [2019] NSWCCA 201 and Karout v R [2019] NSWCCA 253). Taking into account the subjective case of the offender and the purposes of sentencing, I am satisfied that the offender’s risk of reoffending, and therefore the safety of the community generally, is more likely to be addressed within the community rather than in gaol (s66(2) of the Sentencing Act). In arriving at these conclusions, I have considered the provisions of s3A and the relevant common law sentencing principles, along with the other relevant matters referred to in this sentencing judgment (s66(3) of theSentencing Act).

82. As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows:

1. For the first offence of dangerous driving occasioning grievous bodily harm (Caroline Tuyua), I would have imposed a sentence of 18 months after a discount of 25% for the plea of guilty.

2. For the second offence of dangerous driving occasioning grievous bodily harm (Jean Tuyua), I would have imposed a sentence of 18 months after a discount of 25% for the plea of guilty.

3. For the offence of cause bodily harm by furious driving (Lisa James), I would have imposed a sentence of 9 months after a discount of 25% for the plea of guilty.

Orders

83. Mr Lu, please stand.

84. You are convicted of the offences of:

1. Dangerous Driving Occasioning Grievous Bodily Harm contrary to s 52A(3)(c) of the Crimes Act 1900;

2. Dangerous Driving Occasioning Grievous Bodily Harm contrary to s 52A(3)(c) of the Crimes Act 1900; and

3. Cause bodily harm by furious driving contrary to s 53 of the Crimes Act 1900.

85. You are sentenced to an aggregate term of imprisonment of 2 years, 10 months.

86. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 the term of imprisonment is to be served by way of an Intensive Correction Order in the community.

87. The sentence will commence 14 August 2020 and will expire on 13 June 2023.

88. This Intensive Correction Order is subject to the following standard conditions:

1. You are not to commit any offence while subject to this Intensive Correction Order; and

2. You must submit to supervision by a Community Corrections Officer.

89. The following additional conditions apply:

1. A rehabilitation condition requiring you to attend a psychologist once a month for the term of the ICO; and

2. I order you to undertake 500 hours of community service work.

90. You must telephone the Burwood Community Corrections Office within 7 days, that is by 21 August 2020.

91. You are disqualified from driving for 3 years, the disqualification to commence today, 14 August 2020.

92. The backup offence on the 166 Certificate is dismissed.

93. Mr Lu, do you understand the orders I have made?

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Amendments

14 August 2020 - Paragraph 58 altered from "the Crown agrees" to "the Crown does not agree"

Decision last updated: 14 August 2020