DPP v Lim [2018] VCC 2166

In sentencing you for the standard sentencing offence of culpable driving causing death I must take the standard sentence of eight years' imprisonment into account as one of many factors relevant to the sentencing of you.
So far as I am aware, there have been no other standard sentences imposed for the offence of culpable driving causing death since the standard sentencing provisions were introduced into the Sentencing Act 1991.
The second charge is a charge of possession of a drug of dependence methylamphetamine for which the maximum penalty is a fine of not more than 30 penalty units or imprisonment for one year or both.
The third charge is of possession of a drug of dependence cannabis L for which the maximum penalty is a fine of not more than five penalty units.
On the hearing of the plea you also pleaded guilty to two summary charges, and agreed to those summary charges also being dealt with by me in this court. Those charges were driving whilst disqualified for which the maximum penalty is 240 penalty units or imprisonment for two years, and committing an indictable offence, namely culpable driving, whilst on bail for which the maximum penalty is 30 penalty units or three months' imprisonment.
The circumstances of your offending are set out in a prosecution opening which was filed as Exhibit A. The summary was read to the court by the prosecutor Mr Rochford QC who appeared with Ms Churchill. Your counsel Mr Phillips accepted that the prosecution opening was accurate and forms a proper basis upon which I can proceed to sentence you for these matters. In those circumstances it is not necessary that I here set out again what is in the prosecution summary and I refer to the facts in an abbreviated way. These sentencing remarks should, however, be read with what is set out in more detail in the summary.
On 15 February 2018, you stayed with a friend the previous evening, you had breakfast and smoked the drug Ice. You borrowed a Holden Rodeo vehicle belonging to the father of your friend after telling him you held a license to drive, which was false. In fact you were disqualified from holding a license and this fact aggravates your offending.
You dropped your friend off at her mother's house in Lysterfield. Later, whilst driving through the intersection of Wellington Road and Braeburn Parade in Rowville, at the entrance to the Wellington Village Shopping centre, you failed to observe that traffic ahead of you had stopped. You swerved suddenly to the left. Your vehicle then travelled into the entry lane to the shopping centre, then crossed over a traffic island, and then two further traffic lanes and another medium strip and an exit lane, before colliding with a stationary Mitsubishi Lancer vehicle being driven by the deceased. The impact caused her death. She was doing nothing more than obeying the law having stopped her car at a red light.
Later investigation showed there was no evidence of braking or steering by you as your vehicle travelled across the various lanes of Braeburn Parade. The estimated speed of your vehicle at impact was between 77 and 81 kph. There was no mechanical fault found with the Holden Rodeo which may have contributed to the collision occurring.
You left the scene of the collision for a short time but returned not long afterwards when you were arrested. A preliminary drug test was positive. A later blood test showed your blood contained .019 mg/l methamphetamine and .50 mg/l to amphetamine. (Charge 1)
You were found in possession of a small amount of cannabis (Charge 3) and methamphetamine (Charge 2).
The prosecution of you on the charge of culpable driving proceeds on the basis that you drove your car negligently. That is, in driving your vehicle you failed unjustifiably, and to a gross degree, to observe the standard of care which a reasonable person would have observed in all the circumstances. You failed to keep a proper look out ahead of you. You failed to take safe evasive action. You drove the vehicle whilst disqualified and after having used a drug of dependence and/or whilst sleep deprived or suffering from driver fatigue. These facts are clearly made out on the evidence. I accept the prosecution submission that your offending is a serious example of culpable driving negligently for which your moral culpability must be objectively assessed as being high.
At the time of the collision you had been disqualified from driving (Summary Charge 3), and you were on bail on a charge of theft of a motor vehicle (Summary Charge 4)
You have pleaded guilty to the charges, and that is to your credit. By your pleas of guilty you have saved the time and costs of a trial and you have saved the victims or their families from having to give evidence reliving these events. By your pleas of guilty you have admitted responsibility for your crimes, and you have facilitated the administration of justice. You indicated a plea of guilty to the charges at committal mention. I treat you as having pleaded guilty at the earliest opportunity. Because you have pleaded guilty at the earliest available opportunity you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.
I accepted into evidence four Victim Impact Statements from the mother, partner, brother and aunt of the deceased. The Victim Impact Statements were read to the Court. What comes through from all of the statements is that the life of a decent hard working young woman with a loving partner and family who was admired and loved by all has been lost impacting on many lives. The deceased's partner has had his life turned virtually upside down by your actions in causing the collision. Each of the victims has suffered a profound sense of needless at your hands. Pursuant to s.5(2)(daa) of the Act in sentencing you I must have regard to the impact which your offending has had on the deceased's family, relatives and close friends. In passing sentence I have done so.
Your counsel Mr Phillips filed with the court a helpful outline of argument which I marked as Exhibit 1 on the plea. He added to that outline today. He accepted that your offending in Charge 1 was very serious and that the consequences are tragic. He acknowledged that the Victim Impact Statements show this to have been the case. In his written outline and in his submissions Mr Phillips accepted the factual basis upon which the prosecution proceeds against you.
Your counsel's submissions concentrated on your personal history and it is to that I now turn. You were born in Malaysia and you will turn 34 years of age in four days' time. Your parents separated when you were aged about three years. You resided with your father in Malaysia until you were about 13 years of age when you then moved to Australia to live with your mother and step-father.
You attended secondary school in Melbourne leaving after Year 11. You then commenced an apprenticeship as a chef in an Italian Restaurant, and you completed this apprenticeship. Assisted by your mother and step-father you purchased a home in Noble Park where you resided with your then girlfriend. However, you began using drugs and you gambled in the result you lost your home.
On 25 November 2011 you were injured in a car accident. You suffered multiple serious injuries including injury to the brain which required extensive neurosurgery. You suffered Post Traumatic Amnesia for several months before this accident and have no recollection of it. You were hospitalised because of the injuries for about a month and you then had three months in a rehabilitation hospital.
In early 2012 you returned to live with your mother and step-father. By 2013 you had recovered sufficiently to travel overseas with your step-father.
By 2014 you were again using drugs and you distanced yourself from your mother and step-father. You have not been employed since the accident in 2011.
When you were arraigned you admitted a significant number of prior convictions and traffic infringements. Commencing in August 2012 aged 28 you have had seven previous court appearances and on the 2 October of this year you had another court appearance in the Magistrates' Court at Ringwood for offending in August of 2017. You are presently undergoing a sentence of five months' imprisonment imposed on the 2 October for offending that involved driving without a licence, drugs and theft of a motor vehicle. I must take this sentence into account as being relevant to the issue of totality. Your criminal history records prior convictions for numerous offences including driving at a speed dangerous, exceeding the speed limit by 45 kph, theft of motor vehicles, reckless conduct endangering serious injury and driving whilst disqualified.
Also, Vic Roads records indicate that between April 2003 and October 2016 you have received 22 infringement notices for exceeding the speed limit whilst driving, many by significant margins. Interestingly, five of these infringements occurred before 2011. On a single day on 29 December 2013, you received seven traffic infringement notices, four of which were for exceeding the speed limit by at least 30kph or more.
Clearly your driving record is appalling and you should not have been driving on the day that you offended.
I received into evidence on the plea two neuropsychological reports from Martin Jackson dated 24 August 2018 and 12 December 2018. The later was received by the court today. He saw you in prison for that purpose and conducted psychological testing. Mr Jackson opined that you suffered a severe to profound traumatic brain injury in November 2011 from which you have made a remarkable recovery which has left you with cognitive behavioural impairments. Testing showed you have a full scale intelligence quota of 85 putting you in the Low Average Range. He thought your cognitive and behavioural impairments affect your ability to think clearly and make calm and reasoned decisions and appropriate judgments and control your emotions and faculties. These were exacerbated at the time of offending due to the fact you were under the influence of the drug Ice.
In his report Mr Jackson said at p.16:

It is difficult to argue with that proposition in general terms. Mr Phillips submitted that because of this evidence I should find that your moral culpability for the offending in Charge 1 should be regarded as having been reduced because of your brain injury and resultant cognitive impairment. Mr Rochford argued that I should reject this submission. He submitted the evidence does not establish a causal link between your brain injury and cognitive impairment with the grossly negligent manner by which you were driving at the time of the offending. This is especially so when it is acknowledged that you were affected by the drug Ice at the time of driving. It is acknowledged that drivers affected by Ice have an impaired ability to control a motor vehicle.
I accept the submissions advanced by Mr Rochford. I cannot decide whether it was the drug Ice that contributed to your offending, or your cognitive impairments. Whilst your cognitive deficits and drugs may have had some bearing upon your decision to drive in the first place on the day you offended, it is not at all clear to me how your cognitive deficits affected your ability to drive a vehicle in a proper manner once you were behind the wheel. I note that in his latest report Mr Jackson acknowledges that your cognitive deficits would not have affected your ability to drive the vehicle.
Further, in my view Mr Jackson is addressing his opinion to your offending behaviour overall since 2011, and not so much this specific offence of culpable driving by negligence. In my view your moral culpability for this offending is not to be regarded as having been reduced because of your brain injury and consequent cognitive impairments.
Mr Jackson also gave the opinion that your cognitive impairments are likely to affect your ability to cope in prison, and he thought you were at risk of harm from other prisoners such that any sentence you serve will be more burdensome for you than for most other prisoners. Appropriately, Mr Rochford conceded that I must take this into consideration in fixing an appropriate sentence, and I have done so.
Mr Jackson was of the opinion that because of your brain injury and consequent cognitive impairments any sentence imposed is unlikely to act as a deterrent to you and you are at high risk of returning to drug use and further offending. It is clear that your history of offending has involved both drug use, and problems associated with your brain injury in 2011 and consequent cognitive impairments. Your criminal history aligns both to the time when you commenced using drugs, and to the 2011 accident and its consequences. You were using drugs before your accident in 2011. Absent drugs, I think your prospects for rehabilitation would improve. In my opinion absent proper treatment for your drug problem, your prospects for not re-offending are bleak. I do not accept that it is futile having proper regard to specific deterrence in your case. In my view the sentence I impose must have regard to specific deterrence having regard to your history of offending involving drug use since 2011.
I accept that you have expressed appropriate remorse for your offending. This is evidenced in the report of Mr Jackson, and in a reference from your step-father which I received into evidence as Exhibit 3. I received a further letter from your step-father today, which I added to that exhibit.
You are a permanent resident of Australia. I accept that upon release from prison you are at risk of deportation back to Malaysia. As you have no remaining relatives in that country I accept that whilst in prison this factor will weigh heavily upon you again making your time in prison more burdensome. In passing sentence I have also taken this into account.
The sentence I impose upon you for this offending must reflect the application of deterrence (both general and specific), and it must properly denounce your offending. In all of the circumstances, it was not suggested that I should sentence you other than to a term of imprisonment.
On Charge 1 culpable driving causing death you are convicted and sentenced to a term of imprisonment of 8 years.
On Charge 2 possession of a drug of dependence methylamphetamine you are convicted and discharged.
On Charge 3 possession of a drug of dependence cannabis L you are convicted and discharged.
On the summary charge of driving whilst disqualified you are convicted and sentenced to a term of imprisonment of one month.
On the charge of committing an indictable offence whilst on bail you are convicted and sentenced to a term of imprisonment of one month.
The sentence I have imposed on Charge 1 is the equivalent of the standard sentence. In arriving at my sentence I have had full regard to all of the matters above, and I have weighed the need for the sentence to reflect deterrence (both general and specific) and denunciation and I have also had regard to the fact that because of your acquired brain injury and cognitive impairments you will be more vulnerable in prison and will find your time in prison more burdensome. I have also had regard to the fact you may face deportation upon release and this will weigh on your mind whilst in prison. Having identified and considered what I consider to be the relevant factors in assessing the appropriate sentence, including the serious nature of your offending and your high degree of culpability against your plea of guilty and expressions of remorse, I have formed the opinion that the sentence I have imposed is the appropriate sentence in all of the circumstances.
In sentencing you on the summary charges I have fixed only nominal sentences, and I have not accumulated them in any way to the head sentence. I have taken the facts that found those charges into account as aggravating factors in arriving at a proper sentence on Charge 1 and I have avoided double punishment for these matters.
Pursuant to s.89 of the Sentencing Act 199_1_ any licence that you may hold to drive a motor vehicle is cancelled. In my view the public needs protection form you so far as is possible. You are disqualified from obtaining a licence to drive a motor vehicle for life.
I direct you serve a minimum term of five years' imprisonment before being eligible for release on parole.
I declare there has been 229 days pre-sentence detention, and direct that

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