Cultural competence exercise

The relevant facts are as follows: Mr Choi pleaded guilty on 2nnd of July 2016 in the District Court at Brisbane to one count of dangerous operation of a motor vehicle causing grievous bodily harm pursuant to s.328A(4) of the Criminal Code. The matter then proceeded immediately to sentencing. The offence was committed at approximately 645am on the12th of January 2015 when Mr Choi was driving his 1970 XY Ford Falcon sedan along Rhode Street in Beenleigh. It is not disputed that he was travelling at a speed slightly slower than the marked speed limit of 60 km/hr at the time of the incident. The Traffic Investigation unit investigated the scene. The vehicle was inspected by members of the Traffic Investigation unit and found to have defective brakes and the 4 tyres on the car were very worn with the front right hand tyre showing the steel belt. He returned a zero BAC. The court found that while driving along Rhode Street, he had looked down towards his mobile phone which was sitting on the front passenger seat and had begun to ring. He picked up the phone to see what number was registering and then looked back up to see that the traffic lights at an intersection had turned amber and that a car immediately in front of him in the left hand lane had stopped at the lights. In an attempt to avoid a collision with this car he swerved his own vehicle over towards the footpath. His vehicle mounted the footpath and skidded, colliding with a 15 year old boy (the complainant) walking home from soccer training. It is not in dispute that the collision occurred as a result of Mr Choi’s inattention. The boy suffered a broken collar bone, had the index finger of his left hand severed, dislocated right elbow and spent two weeks in hospital, during which time he also required skin grafts to one arm. Mr Choi has the following prior convictions: 1. Possession of a dangerous drug (methylamphetamine) 2010 – 100 hours community service 2. Wilful damage (breaking the window of a neighbour’s house) 2009 - $450 fine and ordered to pay $385 restitution 3. Exceeding the speed limit by more than 40km’s but less than 60 kms. Immediately following the accident, Mr Choi got out of his own car and gave first aid to the injured boy. He used his mobile phone to call 000 and waited with the boy until the ambulance arrived. In that time he had retrieved the severed finger and wrapped it in a clean handkerchief in case there was a chance for surgeons to later reattach it. He was able to stem the flow of blood from the wound caused by the loss of the finger until the ambulance arrived. He expressed significant remorse at the scene and when police arrived he cooperated fully, but was unable to give them some details that he thought might be important, due to his lack of English fluency. For example – he had been unable to explain to them that the reason that his brakes were defective is that he has been unable to afford to have them fixed as he pays a significant component of his salary as child support for two children who live with his estranged wife who had accompanied him to Australia. He tried to explain to police that he was aware that the tyres were worn and needed replacing. He had in fact intended to cease driving the vehicle and make use of only public transport but that the accident had occurred before he was able to act on this decision. While the boy was in hospital, Mr Choi wrote to both the boy and his parents to apologise for his carelessness in mounting the footpath with his vehicle. That letter was handwritten and in quite poor English, with numerous errors of spelling, punctuation and grammar. The day of the collision was his youngest child’s birthday and Mr Choihad been expecting a call from the child’s mother to let him know whether she would agree to him visiting the child at her home to deliver a birthday present. When his mobile phone rang, he wanted to check whether it was her number registering on the screen and that if it had been he would have pulled off the road to take the call. The Sentence Hearing Mr Choi’s native language is Mandarin Chinese. He was self-represented at court which he entered the guilty plea, but has obtained a local solicitor to act for him at sentencing. He is 26 years of age and has lived in Australia since 2007, having worked in odd jobs since his arrival in the Australia. Although he speaks English well enough to engage in everyday conversation, and to cope with the communication needs for his employment, he is not a fluent speaker. While preparing for the sentence hearing, his solicitor considered that Mr Choi’s English was of a good enough standard that he could take instructions from him. Although the solicitor spoke no Chinese he had no trouble obtaining basic information from his client, such as when he’d arrived in Australia, what work he did and what his previous convictions were for. Mr Choi was not too concerned about what sentence he was likely to receive - as in his native province in China, these sorts of offences were very common and usually resulted in a modest fine and some compensation to be paid to the complainant (although he did not communicate this to his solicitor). The solicitor was aware that Mr Choi had a very modest income and that having no Legal Aid funding, his client would be unable to afford a Chinese interpreter. The solicitor was aware that there was some authority to the effect that the court could direct the Crown to pay for an interpreter, but assumed that this would only apply to criminal trials where juries were involved. Although Mr Choi provided the solicitor with a copy of the letter he had written to the boy and his parents, the solicitor was of the view that it was in such broken English that it would be of little use in mitigation and so did not seek to tender it or refer to it. The District Court judge sentenced Mr Choi to 12 months imprisonment, to be suspended after six months with an operational period of three years. The judge explained what the conditions of a suspended sentence were and the potential consequences of breaching those conditions. When he asked if Mr Choi understood these details, Mr Choi nodded vigorously and replied “Yes, yes, Very much”. His solicitor felt that this was sufficient indication that his client comprehended the orders. As a result of receiving this custodial sentence, Mr Choi he will be unable to make child support payments during that time. The mother of the children is unemployed and lives on a social security pension. It is also highly likely that he will be dismissed from current employment. The likelihood of him obtaining similar employment in Queensland given the downturn in the building construction industry is minimal. CRITIQUE QUESTIONS 1. Given what we are told about Mr Choi’s English language proficiency, would an interpreter have been required at the sentence hearing? Be sure to give reasons for your answer. 2. Did the solicitor seem to have a sound understanding of the law in relation to the provision of interpreters in criminal proceedings in Queensland courts? 3. Did the judge and the solicitor have any obligations in relation to explaining the sentencing order(s) to Mr Choi? If so, to what extent do you think they complied with those obligations and what might the consequences be for the offender if they did not? 4. Given what we know of the facts, do you believe that these sentence proceedings were fair to Mr Choi? Be sure to give reasons for your answer. Why is this question of significant legal importance in relation to the availability of an interpreter at the sentence hearing? 5. Did the solicitor make the correct decision in not seeking to use the letter written by Mr Choi as a factor of mitigation? Why or why not?