R v Tran

[2020] VCC 1882

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE
CRIMINAL JURISDICTION Revised
Not Restricted
Suitable for Publication

Indictment No. L1120852
CR-20-00845

THE QUEEN

v

HUNG TRAN

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2020, 20 November 2020
DATE OF SENTENCE:	27 November 2020
CASE MAY BE CITED AS:	R v Tran
MEDIUM NEUTRAL CITATION:	[2020] VCC 1882

REASONS FOR SENTENCE

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CRIMINAL LAW – Early Plea – Dangerous driving causing death – Significant victim impact – Deceased speeding – Momentary misjudgement by the offender – Victim material contributing cause to the accident – Remorse – Heavy weight of the mandatory license cancellation – No prior convictions – Weak Crown case – Lower level of moral culpability – Crimes Act 1958 s319(1) – Spanjol v The Queen (2016) 55 VR 350 – Guseli v The Queen (2019) 277 A Crim R 156, applied – DPP v Worboyes [2020] VCC 1099, discussed.

SENTENCE – 8 months imprisonment – Sentencing Act 1991 s3(1)(ea), s6AAA, s89 – DPP v Zam [2020] VCC 283 – DPP v Menich [2020] VCC 808, considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Lewis	Ms A. Hogan, Solicitor for Public Prosecutions
For the Accused	Mr B. Newton	Dribbin & Brown Lawyers

HIS HONOUR:

1Christopher Daniel Elston was a much loved son, father to a young daughter, and brother to two sisters. He was described as a free spirit. His death caused profound grief and distress to his family. He died aged 37, just after midnight on 21 August 2019 as a result of an accident where your driving, Mr Tran, contributed significantly, or to use another phrase, your driving was a substantial and operative cause of the accident that resulted in his death. At the time he was riding a motorcycle. You have pleaded guilty to dangerous driving causing death as a result of that event.[1] The maximum penalty is

[1] Contrary to s 319(1) of the Crimes Act 1958

10 years' imprisonment.

Circumstances of Offence

2My findings on the circumstances that gave rise to the death of Mr Elston are as follows. You, Mr Tran, worked as a driver for a company operating at the Epping wholesale market. You had a licence to drive a heavy rigid truck. On 20 August 2019 you commenced work at about 8.30 pm and had picked up the truck from Deer Park where it had been serviced. Your duties involved the moving of fresh produce. At approximately 10.40 pm you were driving in a southerly direction on Badayla Road, which runs around the perimeter of the market. You intended to turn right into a car park which led to some storage sheds. The road is a single carriageway with double lines marking the middle of the road and two lanes marked on each side of the double line. The speed limit is 40 kilometres an hour.

3Mr Elston was riding his motorcycle in a northerly direction along the same road. His headlight was operating. As the two vehicles converged you made a right turn across his carriageway in front of his motorcycle. He attempted to avoid your truck. He braked, the motorcycle dropped to its side, skidded and collided with the front of the driver’s side of the truck. Both the motorcycle and the Mr Elston came to rest near the front of the truck on the roadway. The truck was straddling the centre dashed line of the northern carriageway. Mr Elston was conscious and breathing. An ambulance was called.  He was taken to hospital but died soon after midnight upon arrival.

4The police undertook an investigation of the collision. A blood sample was taken from you and it showed no presence of drugs or alcohol. The truck had no mechanical issues. The reconstruction based on the skid marks left by the motorcycle led to the Victoria Police expert, Officer McFarlane, concluding that the motorcycle was travelling at a minimum of 37 to 48 kilometres an hour when Mr Elston applied the emergency brake causing the motorcycle to drop onto its side, and to slide some 8.85 metres before colliding with the front driver side of the truck that turned across its path. The collision was captured by two CCTV cameras.

5You were interviewed by the police on 5 September 2019 and said to the police:

'…I was driving into the market, and the market’s rules there is that you can only drive 40 kilometres an hour, so you can’t drive faster than that. And I was driving slowly, and I made a turn, yeah, ah, there was – I was driving slow, but there was a motorbike. I saw a motorbike that was driving very, very fast. And, so I hit the brakes and so did the bike, but he couldn’t brake fast enough or so easily, and then stopped in front of my truck, but I did not hit him'.[2]

[2] ‘Prosecution Opening on the plea,’ dated 19 August 2020 Exhibit A on the plea.  

6You maintained the motorcycle was travelling too fast.

Expert Forensic Reports

7Subsequent to the first plea hearing and at the suggestion of the Court, a further investigation was commissioned by the defence, and undertaken by an expert forensic engineer, Dr Shane Richardson.[3] He is highly experienced in reconstructing accidents and was able to draw from the CCTV footage the following conclusions:

'It is the Author’s considered opinion that:

1. Mr Elston on his motorcycle was traveling at approximately
80 kilometres per hour  (or twice the posted speed limit) immediately prior to leaving an 8.85 metre skid mark;

2. If Mr Elston had been traveling at the speed limit (i.e. 40 kilometres per hour) and perceived the hazard at the same point (i.e. 39 to 53 metres prior to the 8.85 metre tyre mark), Mr Elston would have stopped before impacting into Mr Tran’s truck;

3. Mr Elston’s actions to ride at twice the posted speed limit contributed to the collision and the severity of his injuries;

4. The Author accepts if Mr Tran had not turned in front of Mr Elston on his motorcycle, the collision would have also been avoided'.[4]

[3]‘Report of Shane Richardson 15 November 2020 and 6 page annexure.’ Exhibit 9 on the plea.

[4] Ibid p. 27

8His report was also critical of the analysis undertaken by the police on the basis that Officer McFarlane had not taken into account in her speed analysis, the change in velocity of Mr Elston due to the impact with the truck. He was also critical of the conclusion by Officer McFarlane that the application of rear brakes of the motorcycle caused instability. He was of the view that it is most likely that there was also the application of the front brake that led to the instability of the motorcycle before the collision.

9His report was perused by two police witnesses. Mr Schearwood, analysed the CCTV footage and obtained similar speed calculations to that of Dr Richardson. He noted that the speeds calculated were average speeds and it was not possible to determine when or where acceleration or deceleration had taken place.

10Officer McFarlane also considered Dr Richardson’s report and essentially did not contradict the speed calculations, but disputed his conclusions about changes in velocity due to impact. She also disputed his conclusions about circumstances in which the motorcycle may have lost vertical stability.[5]

[5] ‘Notice of Additional Evidence’ dated 18 November 2020, Exhibit I on the plea.

11Both experts were the subject of cross-examination at the adjourned plea hearing. Dr Richardson maintained his position in relation to the speed that he calculated from the CCTV footage. He also maintained his conclusions as to the loss of stability of the motorbike under emergency braking conditions, including the use of the front brake which, in the hands of an inexperienced rider, can cause loss of stability with the rider going over the front of the bike.

12There was also little difference between the experts as to the perception response times of a motorcyclist. Mr Newton submitted in his final address that the propositions of Dr Richardson that I have referred to above have been made out, and I agree.

13At the end of the cross-examination there was little difference in the conclusions of the two experts in their respective fields, but overall I found Dr Richardson’s evidence cogent and accept it without reservation.

Assessing Moral Culpability

14In the light of the expert evidence as to the circumstances of the accident, it is necessary to reach conclusions as to your moral culpability for this accident.

15The learned Crown prosecutor, Mr Lewis, put that your culpability was above the lowest level on the basis that on the straight stretch of road this incident  could not be described to be the result of momentary inattention as you had a number of seconds, up to 10, to observe the headlight of the motorcycle before executing the turn.[6]

[6] ‘Prosecution Sentencing Submissions’ 15 September 2020, Exhibit H on the plea, [4].

16He further put that as a driver of a truck, due to its size, this calls for even greater vigilance.

17As a general proposition I accept the need for extra vigilance when driving a truck, however, in this particular case you had your indicator on and slowed down to execute the turn.

18This was not, I find, a momentary inattention case. Rather, it was a case of momentary miscalculation of synthesis of the speed of the motorcycle and the distance available to execute the turn across the opposite carriageway. To use another term, it was a case of mis-judgment, which I find was contributed to in this circumstance by the speed of the motorcycle, which was travelling at double the applicable speed limit, directly towards you, making assessment of speed difficult.

19I am satisfied from the evidence of Dr Richardson that had Mr Elston been travelling at the speed limit then, when your vehicle intruded across his path, he most likely would have been able to avoid the collision, or at the very least the collision would have been at a much lower impact speed.

20It follows from this that the conduct of Mr Elston in the circumstances was, I am satisfied, also a material contributing cause of the accident and his death.

21While on the authorities such as Spanjol[7] and Guseli[8] this does not reduce your moral culpability for the offending, it does require a reduction in sentence.

[7]Spanjol v The Queen (2016) 55 VR 350

[8]Guseli v The Queen (2019) 277 A Crim R 156

22Overall, I place your moral culpability for this offending in the lower range. Then, on the principles of Spanjol, a reduction in sentence is called for.

23Your Council also referred to another decision of Worboyes[9] where the victim in a case of reckless conduct endangering serious injury, had been injured when present at an illegal hooning event.

[9]DPP v Worboyes [2020] VCC 1099

24In accordance with the principles in Spanjol, the court allowed a modest reduction in sentence.

25During the plea the issue of the fact that Mr Elston was found to have traces of methylamphetamine and cannabis in his blood was raised. The learned Crown prosecutor noted, however, that there was no evidence as to the impact that this may have had on his conduct or reaction times, and in those circumstances I have no regard to it. The real issue was his speed.

Victim Impact Statements

26I turn now to the victim impact statements.  No sentence of the court can bring back Mr Elston. The impact of his death must, however, is recognised as part of the sentencing process.

27On the plea, victim impact statements were read by Mr Elston’s mother, Lorraine Joy Di Carlucci,  his two sisters, Nicole Elston and Melissa Jane Elston, and by Holly Broadbridge, on her own account and as the mother of Mr Elston’s daughter, Skye.

28I just want to read a couple of extracts from some of these victim impact statements.  They were very moving.  Ms Di Carlucci says:

'Then there is the anger, something I fight every day, something I feel myself being lost in.  I feel Christopher's death has deprived me of my right as a mother to have my son in my life.  I'm so empty but also so angry you will no longer be able to be with us to share things with us, even to have more children, fall in love, watch his daughter grow into the amazing person I know she'll be.  It will be someone else's right to give her away at her wedding, to watch her have her own children, to watch him grow old, to be here to share things with me, with us.  That right has been taken away from him and me.  Sometimes I'm so angry I feel like my heart will burst from my chest.  I just want to scream and rant'.[10]

[10] Exhibit E on the plea.

29She then goes on to talk about how her relationships with her family have changed. She has become more reclusive. She discusses how her relationship has frayed with her eldest daughter:

'I can't find the peace or ability to even try to make that relationship whole again'.

30Then there is the constant fear whenever her younger son leaves home in the car, about whether he will be all right.  Similarly with her husband.  She only goes to work to keep up her sanity.  She works with children and she needs to continue to do that to survive.  She mentions that she lost her own brother some months after this death and she concludes her VIS saying:

'This young man I speak of is my son, Christopher Daniel Elston, still young in years, young of heart and now forever young.  Someone who mattered.  A piece of my heart and soul went with Christopher that night, gone forever, never to feel complete again'.

31And then she ends it by providing a very moving poem.  I will read one or two verses:

'We didn't get to say goodbye, to just see one more smile, to say, you know, I love you, son, and have us talk a while, but they were always our parting words, I always felt your love.  Now we'll have to keep that close and feel it from above'.

32His sister, Nicole, also gave a victim impact statement.  She talks about:

'Recurring and overwhelming motions that I feel in relation to my brother's death has meant that a normal life for me will never be normal again'.[11]

[11] Exhibit G on the plea.

33She has a feeling of numbness, found herself drinking more just to clear her mind:

'And just as I close my eyes, praying I can have a proper sleep for a first time since my brother's death.  I am struck down once again by my anxiety and thoughts'.

34She says:

'They tell me as time goes on things will be better but it has been over a year now and nothing has changed, due to the constant thought of his death playing on my mind.  I have become extremely dissociated with many of my friends as I've been unable to communicate normally and whenever my brother is mentioned I completely shut down.  I love you, Christopher, and I will never stop missing you'.

35Another sister, Melissa Jane Elston, also had a victim impact statement read out by the prosecutor, and she says:

'I will never forget the day we lost Christopher.  The day and events are etched permanently in my mind.  He was an amazing human.  The day and events are etched permanently in my mind where they will remain until the end of my time.  I watch my mum losing a part of herself.  I'm now hypervigilant every time I drive.  I'm worried I'm going to be in an accident, where I just used once to enjoy the sound of a motorbike's engine, motorbikes now terrify me'.[12]

[12] Exhibit C on the plea.

36She talks about the difficulties of the funeral and then talks about the impact on the loss of Christopher on Skye, his daughter:

'I witnessed firsthand the effects, what it's like for a little girl not to have her dad in her life every day with my girls.'

37She scrutinises herself as a mother and as an auntie. She talks about grief being such a terrible thing.  Her statement concludes:

'Words cannot describe the pain and sorrow I feel the day we lost Christopher and we'll continue to feel for the rest of our lives. We'll never be the same.  We can never hug him again, tell him we love him and how special he is'.

38Holly Estelle Broadbridge, who was the mother of Christopher's daughter, Skye, also filed a victim impact statement, saying she is absolutely heartbroken and that:

'I have to watch my daughter grieve in a way that no child has to.  I have experienced distressing feelings of anxiety, particularly around driving my own car.  I'm learning to control my anxiety through personal research into exposure therapy'.[13]

[13] Exhibit D on the plea.

39She says:

'The crime has made me feel extremely fearful of my own life because it has proven to me that your life can be taken at any given moment.  I'm fearful that something will happen to me and as a result would leave my daughter without any parents'.

40She goes on about the additional financial burden and the impact on her own mental health and her friendships, and then she filed a further victim impact statement about the impact on Skye, the daughter who is now six or seven, how she leaves a spare seat when they have their weekly meal together, how Skye gets very emotional when one of her friends says that their dad brought them something, and in the plea there was mention about a visit to school on father's day, which caused further distress for Skye:

'When I think of things that Skye will miss out on in the future, never have her dad when she graduates, goes to university'.

41So again, the impact on Skye is evident.  There is a beautiful photo there in the material and how she has withdrawn on things that used to make her happy.

42The statements as a whole show the love that all the family members had, of his great character and his love for his daughter. All that is lost as a result of his death, and their loss remains with them.  As I said previously, nothing the Court can say, unfortunately, can bring back Mr Elston.

Matters in Mitigation

43I turn now to matters in mitigation that are set out in the comprehensive submission by your counsel.[14]

[14]“Defence Submissions’ dated 14^th September 2020, Exhibit 2 on the plea,

44The first matter is your personal history, which is a classic and moving successful Vietnamese refugee story. You were born in 1957 and are now
aged 63.

45You were born in rural poverty in Vietnam, the middle child of three boys. Your father worked as a truck driver but left the family home when you were aged eight. Your mother farmed a small garden plot and worked full-time and long hours, taking fruit and produce to the major market in Saigon city. Your schooling was rudimentary and you left school at age 11 to assist your mother and brother to survive.

46When you were aged 17 you obtained a job as a truck jockey and continued that until you were 22.  At that stage you married a local girl and your first son was born in 1978 and a second son was born in 1981.

47After the end of the Vietnam war, social and economic upheaval was such that your family decided to seek to have one of its members move to Australia. A people smuggler was retained and you managed to get to a refugee camp in Malaysia, where you remained there for three years, eventually becoming a deputy camp manager. You were able to be sponsored by a community group in Melbourne to come to Australia, notwithstanding that your father was in Australia but provided no support, and you were estranged from him. You arrived in Australia in 1986 and you were able to secure employment on the assembly line at the Toyota factory in Port Melbourne. In 1988 you became a citizen and you were able to put in place actions to sponsor your wife and two sons to come to Australia. You were reunited with your family in November 1989, after a separation of six and a half years and moved into a property in Yarraville. In July 1990 you suffered a work injury and were only able to continue on light duties and ultimately took a redundancy package from Toyota. Your third child, a daughter was born in 1992. She still lives with you and your wife and has full-time employment. 

48During the 1990s you struggled to secure alternative employment due to your continuing back problems. You were eventually able to obtain a truck driving licence and in 2001 obtained a part-time position at the Victoria Market, then at the wholesale market in a full-time capacity. You worked for two years for a company at that market, and I note a very good reference from a director of that company.[15] You then obtained employment with your current employer, another company operating in the wholesale market industry at the new location, and again a very good reference has been supplied and tendered.[16]

[15]‘Letter from Mr Chen’ dated 28 August 2020, Exhibit 4 on the plea.

[16]‘Fresh Mix Product Reference’ dated 4 September 2020, Exhibit 8 on the plea.

49Your history since you arrived in Australia is one of participation in the workforce, building and supporting a family, generally being a good citizen and supporting the family back in Vietnam, and is one of which you can be immensely proud. You have three adult children in the workforce.

50With that background it is therefore no surprise that you come before this court with no prior convictions, and as indicated in the reference from your current employer and a previous employer, you have a very conscientious attitude to workplace safety.

51Other matters put in mitigation on the plea which go in your favour was your early plea to the offence. I regard this as very significant. A committal was not required. You cooperated with the police at the scene and in the record of interview. The community and the family was spared the need for a contested committal.

52The plea was entered at the earliest opportunity. I give it significant weight as facilitating the course of justice and taking responsibility for your conduct. Contrary to the submission of the learned Crown prosecutor, having regard to the further information as to the speed of Mr Elston, the plea was entered in the face of a prosecution case that could not be regarded as strong. It thus makes a major contribution to facilitating the course of justice and is further evidence of remorse.

53I also accept that you are remorseful for your conduct and give it weight.

54Upon conviction for this offence, your licenses must be cancelled and you must be suspended for a minimum period of 18 months from driving. This is an additional punishment on you. You have been driving for some years and are effectively the family breadwinner. The loss of your licence, your age, your lack of occupational qualifications, your physical condition (having a prior back injury), and your limited grasp of English, all means that you will be at a very significant disadvantage in the labour market following any term of imprisonment. Thus the mandatory licensing disqualification will weigh very heavily on you.

55Your good work record in the past, your lack of prior convictions, and the contents of the references tendered on your behalf, indicate that I must regard your prospects of rehabilitation as very good.

56A further matter relevant to sentencing is the effect of the pandemic on conditions in prison. Personal visits have been suspended and you have been limited to weekly Zoom calls with your wife and daughter. Your sons have not been able to participate in these calls as they have not been able to get registration with the authorities.

57Since your remand you were required to undertake 14 days' quarantine and you have subsequently been transferred to the high security Barwon Prison with restricted movement and activities. At your age and with your limited English, the restricted availability of programs, and until recently the risk of contracting the virus, makes any term of imprisonment more onerous and I take that into account.

Purposes of Sentencing

58The 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 factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victims. 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.

59In sentencing I must have regard to the maximum penalty, along with the circumstances of the offending and your antecedents.

60In sentencing you, as a result of amendments to the legislation that commenced in 2018, this offence is a Category 2 offence under the Sentencing Act 1991 that requires the court to impose a sentence of imprisonment under section 5(2H)(e) unless there are substantial and compelling circumstances that are exceptional and rare. A combination sentence of imprisonment and a community corrections order is not available.

61Following the plea hearing I raised with the parties whether they wish to address the court on whether the present circumstances might meet the very high barrier in sub-section 2H(e) for a non-custodial sentence. Your counsel did not seek to argue the point and so this may be set aside.

Sentencing Submissions

62I now turn to consider sentencing submissions, and in particular, comparable cases that were brought to my attention.

63The offence of dangerous driving causing death can occur in a wide range of circumstances.

64In sentencing for this offence comparable cases, which are themselves not precedents, do, however, provide important signposts for considering a sentencing range for any particular offence because the objective circumstances can often be closely compared. Comparable cases, however, are apt to mislead, as some involve offending committed before the offence became a Category 2 offence, calling for a mandatory sentence of imprisonment. The personal circumstances of the relevant accused will also be different.  In the recent past some cases of lower level culpability for this offence have been dealt with by way of a non-custodial disposition. Notwithstanding the change in the legislation, the learned prosecutor accepted, however, that these earlier cases are of assistance.

65I was referred to the case of Zam[17] where the court imposed a sentence of six months' imprisonment followed by a two-year Community Corrections order for an offence involving a fatal collision between a vehicle and a motorcycle where the moral culpability of the driver was held to be in the lower range but not at the lowest level. The sentence was imposed after a trial on a 30 year old migrant without prior convictions. Your counsel put that the offending here was at a lower level. I agree.

[17]DPP v Zam [2020] VCC 283

66I was also referred to a decision Menich[18] where the driver failed to observe or intuitively assess the light sequence and thus failed to keep a proper lookout. The offending was held to be indicative of a level of culpability of being at the higher end of low. There was a collision between the driver and a motorcyclist, who was speeding as he approached the intersection in breach of the road rules when lane filtering on a motorcycle. His conduct was found to be a material contributing cause of his own death. In that case the court was sentencing as a Category 2 offence and imposed a sentence of 18 months imprisonment with a non-parole period of 12 months. The prosecution accepted that this was a comparable case.

[18]DPP v Menich [2020] VCC 808

67As I have indicated, previous cases merely provide signposts. In sentencing for this offence the categorisation of the offence as a Category 2 offence[19] shows that the legislature puts a high premium on life and requires that considerations of general deterrence and denunciation will be given significant emphasis over personal factors in sentencing for this offence. Considerations of proportionality and parsimony still have salience, however.  A non-custodial sentence can only be imposed, as I have indicated, in exceptional and rare circumstances, which the parties agree are not applicable here.

[19] Pursuant to s3(1)(ea) Sentencing Act 1991 (Vic).

68Here, considerations of general deterrence must be given significant weight. A signal must be sent to all drivers that constant vigilance is required and instances of dangerous driving causing death will be met with society’s ultimate criminal sanction.

69Denunciation has somewhat less weight here as the deceased’s conduct was also a material contributing factor. Specific deterrence, given your prior good record has little weight. Your prospects of rehabilitation are very good.

70Putting all these matters together in a sentencing calculus, including the need to vindicate the interests of the family of the deceased, is difficult, and I have  anxiously considered the matter.

71Could you please stand? 

Sentence

72The sentence of the court is as follows:

73On the charge of dangerous driving causing death you were sentenced to eight months' imprisonment.

74I declare you have served 72 days pre-sentence detention.

75All licenses you hold under the Road Safety Act 1986 (Vic) are cancelled and you are disqualified from driving for a period of 18 months from 16 September 2020.[20]

[20] Pursuant to s89 Sentencing Act 1991 (Vic)

76I declare that had you not pleaded guilty I would have imposed a sentence of 12 months' imprisonment with a non-parole period of eight months.[21]

[21] Pursuant to s6AA Sentencing Act 1991 (Vic)

77So, Mr Tran, I have ordered that you serve a sentence of eight months' imprisonment.  I have declared you have already served 72 days of that sentence.  I have cancelled your licences and you are disqualified from driving for 18 months, backdated from 16 September 2020.

78Are there any other matters, Mr Lewis?

79MR LEWIS:  No, Your Honour.

80HIS HONOUR:  Mr Newton?

81MR NEWTON:  No, Your Honour.

82HIS HONOUR:  I want to thank the interpreter.  I want to thank counsel for their assistance in this plea, their instructing solicitors and thank the family for their participation on the plea and on today.

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