CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - culpable driving causing grievous bodily harm

Crimes Act 1900 (ACT) s 29(4)

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 33

R v Barton [2016] ACTSC 162

R v Nachouki (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 17 September 2013)

R v Ogle (No 2) [2018] ACTSC 126

R v Woods [2017] ACTSC 17

1. On 2 October 2018, the offender pleaded guilty to the single count in an indictment dated 20 February 2018. The charge is one of culpable driving of a motor vehicle by negligently causing grievous bodily harm to Ms Bach Tuyet Thi Tran.

2. The offence of culpable driving causing grievous bodily harm is contrary to s 29(4) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 10 years' imprisonment.

3. The accident occurred at the intersection of Belconnen Way, Lathlain Street and Catchpole Street on 17 April 2017. The speed limit along Belconnen Way, the road on which the offender was travelling, is 80 km/h.

4. The intersection is governed by traffic lights. The offender drove through the intersection against a red traffic light and travelling at about 10 km/h in excess of the speed limit. Her vehicle, a Toyota Camry collided with a Toyota Corolla being driven by Ms Tran. Ms Tran had emerged from Catchpole Street in accordance with a green traffic light.

5. The accident occurred at about 5:15 pm. The offender was on her way home from work. She was distracted and clearly not concentrating on either her speed or the traffic lights that were ahead of her.

6. Ms Tran was seriously injured. Her injuries included a punctured lung leading to a haemopneumothorax, other lung injuries, fractured ribs, fractures to her right arm and wrist, a duodenal perforation (a potentially life-threatening condition), fractures of the transfer's processes from L1 to L5 and a number of pelvic fractures.

7. Ms Tran required emergency surgery and spent about a week in the Intensive Care Unit at Canberra Hospital. During this time she suffered respiratory failure and also contracted a hospital-acquired gastro-intestinal infection. I will return to her current state below.

8. The offender was born in Temora in New South Wales in 1992. She is a single woman and works as a travel consultant. After completing Year 12 she commenced a degree in Environmental Science and Tourism Management at the University of Canberra.

9. The offender has no criminal record and does not use or abuse alcohol or illicit drugs. The Pre-Sentence Report says there is a low risk of general reoffending and that the offender recognises that her behaviour was wrong and that she has caused considerable harm to the victim and the victim's family.

10. This is a tragic case, firstly because of the hurt and harm caused to the victim but also because it requires punishment of a normally law-abiding person who over a few short seconds slipped into a careless manner of driving.

11. Roads are a very dangerous place. Accidents involving motor vehicles inevitably result in serious injuries. Motor vehicles are becoming ever more complex and traffic conditions ever more congested. While the act of negligence is on one view a minor distraction from appropriate attention, it is at the same time the possible trigger for a catastrophic accident as has occurred in this case.

12. The extent of the tragedy, both to Ms Tran and her family, is highlighted in the Victim Impact Statements. Ms Tran describes the extensive pain she suffered and the long course of treatment she endured. At one stage she "lost all hope" and disconnected the cannulas in her arms and the oxygen tube connected through her nose. She said she "waited to die". Fortunately, a nurse arrived in time to save her. She was in hospital for three months.

13. Ms Tran is still very anxious when in a motor vehicle. She said her "days are filled with physical pain, anxiety, depression and insecurities about my disability as a result of the accident". She says she can no longer assist her children and grandchildren and she feels like a burden on her family. She has significant scarring which affects the clothing that she wears. She will need further surgery in the future.

14. Mr Tam Phan is the eldest son of Ms Tran. In his Victim Impact Statement he describes the distress felt by the family in having "to witness the unimaginable pain and suffering that my mother had to go through". He also describes the effects on his own children and on himself.

15. Mr Nhan Phan is another son of Ms Tran. He came to Canberra immediately after the accident and spent three weeks with his mother at her bedside. He had to leave his wife to care for their four children.

16. Ms Kate Phan is a daughter of Ms Tran. She gave an overall statement of the effects on her mother:

My mother was happy and strong. She was strong enough to beat cancer and she was only beginning to have her life back. In Ms Fountain's failure to take due care, she grievously injured my mother and she changed our lives forever. My mother will be in pain physically and emotionally for the rest of her life. It pains me to watch my mother suffer and I will never have an untroubled night sleep for the rest of my life.

17. There is a Victim Impact Statement from Ms Nguyen, who is Ms Tran's eldest daughter. She describes the effects on her mother both on a daily basis and the limitations on her capacity to travel. She also describes the impact on her and her own family. She describes the offender as a "reckless and dangerous killer, a criminal". One can certainly understand the bitterness held by Ms Nguyen but her description of the offender is obviously incorrect.

18. As a general statement a Victim Impact Statement is an important document in the sentencing process. It enables the court to hear first-hand the effects the criminal conduct has had on the victim. It also tells the offender what the ramifications of his or her conduct have been. In driving matters it sends a message to the public of the very important need for care on the roads. In addition, a Victim Impact Statement assists in providing some of the information that a court is obliged to take into account, for example in looking at the loss and damage caused by the crime in accordance with s 33(1)(e) of the Crimes (Sentencing) Act 2005 (ACT).

19. But there are some things that a Victim Impact Statement is not. In particular, it is not a clarion call for revenge nor is it an instruction to the court on what an appropriate sentence should be.

20. A common theme in the five Victim Impact Statements is the assertion that the offender has not shown any remorse. This seems to have arisen from the period of time that elapsed before she entered the plea of guilty. This is understandable. There is also the suggestion that liability in a civil claim was not admitted for some time. This decision may have been influenced by the offender's insurer.

21. I think the offender has expressed remorse. The Pre-Sentence Report says that she has not made any attempt to minimise her conduct and she has acknowledged the effects of her offending on Ms Tran and Ms Tran's family. I have also noted the psychologist's letter in Exhibit 1.

22. The nature of the negligence in this matter distinguishes it from most of the authorities involving similar offences. As usual it is difficult to find another case with very similar facts. In R v Nachouki (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 17 September 2013), the offender pleaded guilty to one count of culpable driving causing grievous bodily harm. Burns J imposed a sentence of imprisonment but the facts of the case show that the offender was driving with a blood alcohol reading about four times in excess of the legal limit. The case is clearly distinguishable from the present facts.

23. In R v Woods [2017] ACTSC 17, another sentence imposed by Burns J, the offender received a sentence of 15 months' imprisonment but it was to be served by way of an Intensive Corrections Order. Also in that matter the offender, who had no criminal record, was driving with a very high concentration of alcohol in his blood.

24. In R v Barton [2016] ACTSC 162 I sentenced the offender to a term of imprisonment of 18 months. The facts, however, are totally different and involved a person driving in a manner designed to avoid police apprehension. At the time of the accident the offender was travelling at about 130 km/h in an 80 km/h zone.

25. In accordance with the obligations on the Crown I was properly referred to the decision of Mossop J in R v Ogle (No 2) [2018] ACTSC 126. Applying [36] and [37] I assess the objective seriousness of this matter as about medium.

26. The plea was entered three weeks before the trial. This has obviously been a source of distress to the victim and her family who have perceived it as an indication as a lack of remorse. This perception is understandable but does not affect my conclusion of remorse on the part of the offender.

27. Although the plea was late it does have a utilitarian value which results in a discount of approximately 15%.

28. General deterrence is important because all drivers must be aware of the horrific results that can emanate from a moment of inattention. In addition, it is important to take into account the objects and principles of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). The considerations in s 33 are also important. Section 10 says a sentence of imprisonment should only be imposed as a last resort.

(a) In relation to Count 1, culpable driving causing grievous bodily harm (CC 2017/10680), the offender is sentenced to 18 months' imprisonment (reduced from 20 months) commencing from today and ending on 25 May 2020.

(b) The above term of imprisonment is suspended with immediate effect upon the offender entering into a Good Behaviour Order for a period of 24 months and comply with her obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and further that she accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or her delegate for 24 months or such shorter time as the Director-General decides and further on condition that she carry out 250 hours of community service within the 24 months of suspension.

(c) The offender is disqualified from driving for a period of 24 months pursuant to s 62 of the Road Transport (General) Act 1999 (ACT).

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.