R v Lu

Case [2022] VSC 258 20 May 2022

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0140

THE QUEEN	Crown
v
ZHUOHUI LU	Accused

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JUDGE:	Fox J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2022
DATE OF SENTENCE:	20 May 2022
CASE MAY BE CITED AS:	R v Lu
MEDIUM NEUTRAL CITATION:	[2022] VSC 258

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CRIMINAL LAW – Sentencing – Dangerous driving causing death – Date of offence 18 August 2018 – Plea of guilty – No prior convictions – No subsequent matters – Low objective gravity – Low moral culpability – Convicted and sentenced to a three year Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Mahady with Ms S Clancy	Office of Public Prosecutions
For the Accused	Ms P Marcou with Mr T Brown	Markotich Lawyers

HER HONOUR:

Mr Lu, you have pleaded guilty to one charge of dangerous driving causing death. The maximum penalty for this offence is ten years’ imprisonment.

The offending

On the evening of Saturday 18 August 2018 at approximately 6:20pm, you were driving your white Toyota HiAce van home from work. In the course of your journey, you drove down Williams Road in Blackburn North and turned left into Springfield Road. The applicable speed limit is 60 kilometres per hour. Approximately 220 metres along Springfield Road is a traffic light controlled pedestrian crossing, situated near Primrose Street.

The victim in this matter, ten year old Jack Power, had been attending a family party nearby in Blackburn North. Jack, his six year old sister Stephanie, and their 12 year old friend, Brina, had left the party with permission and walked to the local supermarket. They were walking home from the supermarket when the fatal collision occurred.

The children reached the pedestrian crossing on Springfield Road and Brina pressed the button to activate the pedestrian lights. They waited until the pedestrian light turned green before starting to cross the road. Brina was holding Stephanie by the hand, and the two of them were walking slightly ahead of Jack. As they crossed, Brina looked and saw your van approaching the crossing. She realised that you were not stopping and yelled at Stephanie to run, pushing or pulling her so they were both running to the other side of the road. You, due to inattention, had failed to react in time to the vehicle traffic lights, which were red at the time of the collision. You applied emergency braking prior to the pedestrian crossing, but skidded through the crossing.

Jack Power was struck by the front passenger side of your vehicle. As he was struck, his head hit your windscreen and his body hit the front bull-bar. Your van did not have ABS braking, and the tyres were locked due to your emergency braking prior to you entering the pedestrian crossing. Brina and Stephanie looked back and saw that Jack was lying on the road at the back of your van. They started screaming, and fortunately, people from a nearby house…

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 R v Lu

Details

AGLC: R v Lu [2022] VSC 258
Case: [2022] VSC 258
Decision Date: 20 May 2022

CaseChat Overview and Summary

The case of R v Lu involved the defendant, Lu, who was charged with dangerous driving causing death following an incident on 18 August 2018. Lu pleaded guilty to the charge, and the court accepted this plea. Notably, Lu had no prior convictions and there were no subsequent matters arising from the incident. The court was tasked with determining an appropriate sentence given the circumstances of the case.

The primary legal issue before the court was to assess the appropriate sentence for Lu's offence of dangerous driving causing death. The court considered various factors, including the objective gravity of the offence, Lu's moral culpability, and the circumstances surrounding the incident. Given that this was Lu's first offence and considering the mitigating factors presented, the court needed to balance the need for deterrence and denunciation with the need for rehabilitation and proportionality in sentencing.

The court deliberated on the objective gravity of the offence, which was deemed to be low, and Lu's moral culpability, which was also assessed as low. These factors, combined with the absence of prior convictions, led the court to determine that a custodial sentence was not necessary. Instead, the court opted for a three-year Community Correction Order, which was considered suitable for the rehabilitation of the offender while adequately addressing the community's need for safety and justice. The court's decision reflected a balanced approach, considering both the need for punishment and the potential for Lu's rehabilitation.

The final orders of the court were that Lu be sentenced to a three-year Community Correction Order. This sentence was designed to provide Lu with the opportunity for rehabilitation while also ensuring that the community's interests were protected. The court's decision was influenced by the low objective gravity of the offence, Lu's lack of prior convictions, and the overall circumstances of the case.

Orders