R v Tran
[2009] VCC 867
•2 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-09-00057
| THE QUEEN |
| v |
| DUY TRAN |
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JUDGE: | HER HONOUR JUDGE HANNAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 2 July 2009 | |
CASE MAY BE CITED AS: | R v Tran | |
MEDIUM NEUTRAL CITATION: | [2009] VCC 867 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown | |
| For the Accused | Mr G. Georgiou |
HER HONOUR:
1 Duy Tran, you have pleaded guilty to one count of culpable driving contrary to s.318 Crimes Act. The maximum penalty for this offence is 20 years' imprisonment. Further you have pleaded guilty to one count of negligently causing serious injury contrary to s.24 Crimes Act. The maximum penalty for that offence is ten years' imprisonment. Further you have consented to the uplifting of a summary charge of driving a vehicle without an approved alcohol interlock device, being the holder of the licence subject to an alcohol interlock condition. The maximum penalty for this offence is four months' imprisonment or a fine not exceeding 30 penalty units. The circumstances of your offending are as follows:
2 On 1 November 2008 you met a group of friends at the Springvale McDonalds store on the corner of Springvale & Heatherton Roads. This group included Sandra Kong and Hai Nguyen, as well as a number of other young people, most of whom were aged about 19. Ms Kong and Mr Nguyen had arrived at the store in a vehicle driven by Leng Lo. Whilst at McDonalds, the males in the group pooled some money to buy a slab of beer from a nearby liquor store. The males, including you, consumed an unknown quantity of beer before the group departed that area and drove to the city to attend the Eve Nightclub. Leng Lo drove his Nissan Skyline with Sandra Kong and Hai Nguyen as his passengers. Others in the group travelled to the city in two other vehicles. You were not driving at this time.
3 Once in the city the group realised that there would be long delay to gain entry to the Eve Nightclub, and it was decided that you would go to Chasers in Chapel Street instead. The group arrived at that location at about midnight. You and your friends remained at Chasers until it closed about 3 am. In the course of the night the seven males in the group consumed a large quantity of alcohol and were all similarly affected. You all drank a variety of spirits, including a drink called "Long Island." Sandra Kong was not drinking on the night and the other girls in the group only had a few drinks. However none of the females held a licence.
4 After leaving Chasers you all went to the car park where the three cars were located. Leng Lo did not want to drive his car as he was a probationary licence holder and had a zero blood alcohol limit applicable to him. I note that he had a BAC of .21. You offered to drive his car and he accepted your offer. You left the car park with you driving the vehicle, Leng Lo was in the front passenger seat, and the two victims were the rear passengers. After leaving the car park you travelled along Chapel Street to Dandenong Road and then in a south-easterly direction along Dandenong Road. As you drove towards Malvern other motorists observed you accelerating quickly in short bursts but not so that you exceeded the speed limit. Witnesses then observed your car stationary at traffic lights at the corner of Dandenong & Hawthorn Roads. Your vehicle was in the left-hand lane. Shortly after that intersection there is an S-bend in Dandenong Road and a railway overpass in the middle of the
S-bend. That section of Dandenong Road has three lanes for traffic travelling in either direction with a raised concrete median strip dividing traffic. The speed limit applicable in that section is 70 kph. When the lights turned green, you revved the engine and caused your rear wheels to spin without gaining traction for about two seconds. Once the wheels gained traction your car took off quickly and by the time you got to the railway overpass a witness estimated the speed of your vehicle to be about 90 kph. After you came out of the S-bend you lost control. You oversteered the vehicle to the right before overcorrecting to the left. This caused the vehicle to rotate in an anticlockwise direction and its wheels to clip the curve causing it to roll, roof first, into a tree.
5 Sandra Kong died as a result of multiple injuries to her head, chest and abdomen sustained in the collision. The injuries suffered by Hai Nguyen included a mild closed head injury, a fracture to the base of his skull, a fractured jaw, a fractured right scapula, lacerated spleen and liver, a traumatic thoracic aorta pseudo aneurism, for which a stent was inserted and three fractured ribs. He also sustained damage to the retina of both eyes which caused him to suffer blurred vision. Mr Nguyen was admitted to and remained at the Alfred Hospital until 19 November 2008, when he was transferred to the Victorian Rehabilitation Centre. He was discharged on 9 January this year, but continued to receive treatment as an outpatient. Mr Nguyen is reported to be recovering well, apart from still suffering blurred vision in both eyes, such that he is prevented from driving a motor vehicle.
6 An accident reconstruction expert estimated that your vehicle was travelling at a minimum of 95 kph when you oversteered to the right. After the collision you were conveyed to the Royal Melbourne Hospital for treatment of minor injuries. At 5.45 am a blood sample was taken from you and when analysed you were found to have a blood alcohol reading of .21. At the time of the collision you were a licensed driver but your licence was conditional. Your licence only permitted you to drive a car installed with an approved interlock alcohol device and with a zero blood alcohol limit. The vehicle you were driving was not so fitted.
7 The Nissan Skyline was subsequently mechanically examined, which did not reveal any defect or fault which caused or contributed to the collision. The model that you were driving was assessed as having "exceptional" handling qualities. You had driven the vehicle on one prior occasion two weeks earlier in the context of the owner seeking to have you do some mechanical work upon it.
8 I regard these matters as serious examples of this type of offending. Your conduct cannot be described other than as outrageous. The manner in which you were driving combined with your blood alcohol level and speed, in the circumstances of this case, made disaster virtually inevitable. You showed no regard for other road users or your passengers. Conduct of this type on our roads is unfortunately not rare. People who engage in conduct of this type must understand that significant penalties will result in appropriate circumstances. That being said, you have from the start taken responsibility for your decisions and actions. You have never sought to blame others and have instructed from the beginning that it was your act of stupidity. You made admissions and entered your plea at the earliest opportunity. Through your mother you have sought to apologise to the deceased's family.
9 I accept that when you went out that night you had no intention of driving and that it was a spur of the moment decision to offer to drive in your impaired state. Unfortunately the scenario is all too common. No-one anticipates the result and that is part of the problem. What happened was a tragedy from any perspective.
10 Tendered as Exhibit B were two victim impact statements, the first from the mother of deceased, Khon Kong, and the second from Mr Hai Nguyen. I have read those statements and had regard to them to the extent that they are relevant and admissible for my purposes in sentencing you today. It is clear that Ms Kong's family have suffered greatly and continue to do so. The depth of their grief is easily understood, and it can only be hoped that the passage of time will assist to make what has occurred somehow more bearable.
11 Mr Nguyen suffered multiple serious injuries as a result of your conduct. Even now the physical sequelae is ongoing, and as regards his eyes, it seems it may never fully resolve. You have impacted his life physically, emotionally and financially. You will live the rest of your life with the knowledge that your conduct cost one life and seriously damaged another. The effects have rippled through the lives of the victims' families. The burden will be a heavy one and it should be so.
12 You have admitted the contents of a further presentment which discloses three appearances before the criminal courts. On 25 November 1989 upon charges of theft and going equipped to steal being found proven, you were placed on a bond to be of good behaviour. On 7 February 2006 you were without conviction fined $500 upon charges of failing to state name and address, hindering police and drunk being found proven. Most recently on
24 March 2006 upon charges of .05 and unregistered being found proven, you were fined a total of $900. Your licence was cancelled and you were disqualified from obtaining a licence for 18 months. Upon being relicensed an alcohol interlock condition was placed upon your licence, which was current at the date of your offending, because although eligible you had not made application to have that condition removed.
13 You are now aged 27 having been born on 22 March 1982 in Ho Chi Minh City. Shortly after your birth your father came to Australia as a refugee, making the perilous journey that so many did by boat. You migrated with your mother and two older brothers when you were two on 26 September 1984. Your father initially found work in factories, but was then able to commence a successful thread importation business. Your mother worked as a seamstress. Your parents marriage was apparently difficult and marred by your father's excessive drinking. Your parents separated when you were 14 and you continued living with your mother. You have had ongoing regular contact with your father and maintain a good relationship with both parents. Your father has now remarried. As I have said, you have two older brothers, they are both in full time employment.
14 Upon arriving in Australia you attended Coomoora Primary School in Springvale and Coomoora High School in Year 7. In Year 8 the family moved to Keysborough and you attended Chandler Secondary College from Years
8-11. You were described as a well behaved, polite student. After completing work experience with New Way Kitchens in Year 11, you were offered an apprenticeship which you accepted. You completed two years of that apprenticeship. Following that you had a number of short term unskilled jobs through an agency in Dandenong. In 2004 you worked full time for Honda Wreck, where you developed skills in mechanics and dismantling of cars. You started working on your own cars and subsequently the cars of friends and acquaintances. In 2006 you returned to agency work for a short time, before starting your own automotive repair business in a friend's garage. You were operating that business at the date of this offending, but you have not worked since the night these events occurred.
15 When you were 20 you commenced a relationship with a woman named Chino. There are two children of that relationship now aged seven and two. The relationship has been unstable and you have separated on numerous occasions. There have apparently been ongoing issues in relation to many matters including finances. In recent times you have returned to live with your respective mothers, but you still have access to your children and report a good relationship with them. When not with your partner, you unfortunately like to attend venues and drink with your friends, although I note there have been periods of abstinence which it seems failed when personal issues came to the fore. Your counsel conceded that you were at the time of this offending a regular weekend binge drinker.
16 Subsequent to the incident which brings you before the court, I am told that your life has changed dramatically. You have stopped going out, you report separating from your partner for good, and spending most of your time in your room, although as I have said it seems you continue to have contact with your daughters. You have been abstinent from alcohol.
17 Mr Ives says that you feel unbearable shame, ignominy, guilt and unworthiness. You told him that you are not a fit person to participate in society. Your brother told Mr Ives that you have in effect lost interest in life and become a hermit.
18 You have been diagnosed with depression and there has been one incident of self harm involving you taking an overdose of prescribed medication in March 2009. You have ongoing intrusive thoughts and flashbacks as regards what occurred. You believe that you deserve to be punished and have it seems in effect commenced that process yourself.
19 A report from Mr Bob Ives, psychologist, was tendered as Exhibit 1. You saw him for the purposes of assessment and report on 25 June this year. Intellectual testing revealed an IQ of 93. Mr Ives assessed you as a somewhat sensitive, immature person, still very dependent on your mother. He says that you have found your inability to sustain your relationship with Chino difficult and this has contributed to your increased drinking. He says that since this incident you have experienced intense remorse and guilt in addition to post traumatic stress disorder. He notes your ongoing depression which has required pharmacological intervention and led to a suicide attempt. Mr Ives says that you are in a very parlous and fragile emotional and mental condition and in need of specialised psychiatric treatment, supplemented by sustained and co-ordinated psychological counselling.
20 Three references were tendered as Exhibit 2. Sean Taylor has known you since childhood, as has his mother, Karen Taylor. Sean's wife, Teresa Vo has known you for some ten years. All attest to your remorse, its manifestations and their faith in you in the future. It is clear they are surprised that you find yourself facing sentence before this court, as your conduct was out of character for the man they all know. I note that your mother, father, two brothers and a number of friends have attended court upon your plea. The support you have in that regard will be of benefit as regards your rehabilitation and future direction.
21 Your counsel has pointed to a number of matters you are entitled to have taken into account in mitigation, firstly your plea of guilty. You have by your plea spared the witnesses the ordeal of giving evidence, you have saved the community the time and expense of a trial, you are entitled to have those matters taken into account in your favour and I have done so. I accept that in your case your plea is properly used as evidence of your remorse which was, in my view, expressed immediately and on an ongoing basis. It is clear that you regret your actions and not just the situation you now find yourself in. You have a limited prior history and have never been sentenced to any term of imprisonment. You are still a relatively young man and thus the community has a real interest in your rehabilitation. Your prospects in that regard are, in my assessment, good, and at least in part manifest having regard to your continuing abstinence from alcohol, your reaction to this offending, the support of your family and friends, and I note the relationship with your daughters which will no doubt provide additional impetus in this regard.
22 I take into account your post offence psychological state and in particular the assessment of Mr Ives, to which I have already referred, and have come to the view that as a result of your current condition you will experience the term of imprisonment I will impose this day more harshly than a person without your deficits.
23 Your counsel quite rightly conceded that the only disposition open to this court is an immediately servable term of imprisonment, but urges this court to consider a long period of parole. The Crown concur in saying that the only disposition open to this court is an immediately servable term of imprisonment. The prosecutor submits that the appropriate range is a head sentence of between seven and nine years, with a minimum of between four and a half and six years. Your counsel submits that the upper end of this range is excessive.
24 Mr Tran sentencing is of course a balancing exercise and I have approached my task on that basis. As well as those matters personal to you to which I have referred, I must take into account other relevant sentencing considerations. Your sentence must manifest the community's denunciation of your conduct and impose just punishment. General deterrence is of particular importance in matters such as this. I must seek to deter not only you but others who would engage in such conduct. I regard this sentencing consideration as having significant weight in the sentence I will impose this day. Specific deterrence is also relevant, noting that you have a prior matter for exceeding the prescribed concentration of alcohol. However the sequelae of this offending has, in my view, acted as a deterrent and is likely to continue to do so.
25 I have considered how the sentences should relate to each other, and have had regard to and applied principles of totality and proportionality in coming to a view as to the appropriate orders in relation to concurrency and cumulation. I have determined that there should be some moderation and some cumulation so the total effective sentence reflects the totality of your criminality. In my view it is appropriate that there be some cumulation between the counts, albeit that in the particular circumstances of your case it is appropriate to order lesser cumulation than might otherwise be the case, having regard to the fact that the counts are founded upon the same conduct. You are convicted and sentenced as follows:
26 Count 1, culpable driving, six years.
27 Count 2, negligently causing serious injury, three and a half years.
28 On the summary offence of driving without an approved alcohol interlock device, you are convicted and fined $800.
29 I direct that 14 months of the sentence upon Count 2 be served cumulatively with the sentence upon Count 1, making a total effective sentence of seven years and two months. I direct that you serve a minimum of four years and two months before becoming eligible for parole. I direct that one day be reckoned as served. I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to a total effective sentence of nine and a half years with a non parole period of six and half years.
30 As regards your licence, I note that you are not permitted to drive as a condition of your bail in relation to these matters, however no s.51 notice was ever served. In a global sense the punitive element of loss of licence has to that extent been satisfied. Given your usual employment, a licence will play an important part in your rehabilitation, which is not only in your interests but those of the community. Given what I have already stated as regards your level of remorse, I do not think there is a high risk of you re-offending, and it is, in my view, justified in your case to make orders which will enable you to apply to be relicensed upon your release upon parole. Disqualification is of course mandatory on the count of culpable driving. Accordingly on Count 1, pursuant to s.89(1) Road Safety Act, your licence is cancelled, you are disqualified from obtaining a licence for a period of three years commencing this day.
31 Would counsel just check the cumulation please?
32 COUNSEL: Yes, certainly.
33 HER HONOUR: Thank you.
34 COUNSEL: Yes, Your Honour.
35 HER HONOUR: Nothing further?
36 COUNSEL: No, Your Honour. If Your Honour pleases.
37 HER HONOUR: Thank you. Remove the prisoner please. Stand down.
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