Director of Public Prosecutions v Durkan
[2020] VCC 1816
•19 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted |
Case No. CR-20-00155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
MARTIN DURKAN
---
JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 October 2020 | |
DATE OF SENTENCE: | 19 November 2020 | |
CASE MAY BE CITED AS: | DPP v Durkan | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1816 | |
REASONS FOR SENTENCE
---
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Parkes | Office of Public Prosecutions |
| For the Accused | Mr M. Thomas | Milides Lawyers |
HER HONOUR:
1 George Kodogiorgos was 32 years old and, like you, Martin Durkan, a motorcycle rider who was part of a loose group known as the Melbourne Street Riders.
2
On 15 July 2018 at about 9.45 at night, he, you and a number of other Melbourne Street Riders left a restaurant in Tullamarine, rode along Mickleham Road, and then on to the Tullamarine Freeway, city bound. You and
Mr Kodogiorgos pulled out in front of the rest of the group and drove at dangerous speeds, engaging in an activity described as ‘gesturing’ with your bikes. That is, slowing down and speeding up, passing each other, and weaving in and out of traffic, at times passing between cars in their lanes. At times your bikes were very close to each other and, at other times, one pulled ahead of the other before the one behind accelerated to catch up and pass. You, Martin Durkan, were performing what has been described as ‘wheel stands’ or ‘monos’, that is, lifting the front wheel of your motorcycle off the ground as you travelled at speed. The two of you continued riding in this fashion along the whole of the Tullamarine Freeway, across the Bolte Bridge and to the south-eastern suburbs/Burnley Tunnel exit ramp on the West Gate Freeway.
3 For much of that journey the speed limit was 100 kilometres per hour. At various toll points your speed was recorded at up to 160 kilometres per hour, and Mr Kodogiorgos’ at up to 151. Your average speed between toll points was often in excess of 150 kilometre per hour. Where the speed limit reduced to 80, your speeds reduced somewhat but were still well in excess of the speed limit.
4 It is acknowledged that the two of you were involved in a mutually competitive style of riding at excessive speed, and by your conduct each of you was spurring the other on.
5 As you approached the exit ramp towards the eastern suburbs, Burnley Tunnel exit from the Bolte Bridge, you, Martin Durkan, were just ahead of George Kodogiorgos. You were both still travelling at excessive speed, well over the speed limit, and well over the 70km/h advisory sign for the curve of the exit ramp. You successfully negotiated the sweeping left turn onto the exit ramp.
6 Mr Kodogiorgos, then travelling at a speed of about 100km/h, did not. He continued straight ahead and collided with the concrete barrier marking the right, outer edge of the exit ramp. He was thrown from his bike, struck a steel signpost, and fell 8 metres from the freeway platform to the embankment below. He died at the scene from the multiple injuries he sustained.
7 You did not see him collide with the barrier and you continued along the West Gate Freeway. At some stage you became aware that he was not behind you or had not caught up with you and you stopped on the side of the freeway for what you later estimated to be one to two minutes. In fact, CCTV footage reveals that it was 33 seconds. That is probably immaterial. You stopped and waited, he did not arrive, and you continued. You rode off, again travelling at excessive speed, weaving in and out of traffic, and performing wheel stands. There were red flashing lights throughout the tunnel, indicating that the right-hand lane was closed for roadworks, and the speed limit in the tunnel was reduced, as a result, to 60km/h. You ignored the lane closure signs and the speed signs, rode at excessive speed and did so for some considerable distance in the closed right-hand lane. Your speed throughout the tunnel averaged 123.5km/h.
8 Having left the tunnel and exited the freeway at the Burnley Street exit, you travelled on to a restaurant in Chapel Street where you met up with some friends, including some of those who had left the restaurant in Mickleham Road with you. When asked where Mr Kodogiorgos was, you told them you did not know where he was and that you had lost him. You said that you had stopped and waited for him at the tunnel and you added, 'Maybe he got lost, had an accident, I’m not sure'.
9 You became aware from media reports the following day what had happened, that is, that Mr Kodogiorgos had struck the barrier and been killed. Police reviewed the CCTV footage from the freeway, the Bolte Bridge, the exit ramp to the West Gate Freeway, and the tunnel. In addition to revealing the speed and manner of your driving, it could be seen that the number plate was not displayed on your bike. They ascertained your identity by speaking to the other riders and you were arrested the following day. By then, you had replaced the number plate on your bike.
10 Examination of Mr Kodogiorgos’ bike after the collision did not reveal any mechanical defect which could account for his failure to take the turn, and collision with the barrier at the exit ramp. The reason for the failure to take the turn is not able to be ascertained.
11 It is as a result of this that you have pleaded guilty to one charge of dangerous driving causing death, and, in respect of your driving through the Burnley Tunnel, a related summary offence of dangerous driving.
12 The charge of dangerous driving causing death is put on the basis that your dangerous driving played a significant causative role in the dangerous manner in which Mr Kodogiorgos rode his motorcycle. That is, that your driving was a substantial and operative cause of his death, although it was not the immediate or proximate cause. It is acknowledged that the manner in which Mr Kodogiorgos rode his motorcycle was a significant contributing factor to his death.[1]
[1]Arpaci v The Queen [2020] VSCA 81; Spanjol v The Queen (2016) 55 VR 350
13 A very moving victim impact statement was presented to the court by Penny Kodogiorgos, Mr Kodogiorgos’ mother, on behalf of herself, her husband and her daughter. She described her son as a family-oriented man with a heart of gold. She says that her heart has been broken and her world has changed forever as a result of his death.
14 She describes her grief as unbearable and recounts her attempts to conceal it, so as not to upset the people around her. She is still not able to go into his bedroom or even to the side of the house where his bedroom was located.
15 She does not blame you for the collision. Like so many grieving families mourning the loss of someone whose life is cut short by a senseless and avoidable episode of dangerous driving, she expresses a desire that her family’s grief may serve as a reminder for everyone to be safe whilst driving or riding.
16
Although your driving was not the immediate or proximate cause of
Mr Kodogiorgos’ death, the features that make it a substantial and operative cause are, of themselves, of a high level of objective seriousness.
17 You were riding a high-powered motorcycle, at very high speeds, well in excess of the speed limit, on busy major roads, at night. The dangerous driving which ultimately resulted in Mr Kodogiorgis’ death extended for about 15 kilometres. You wove in and out of traffic and drove between cars in their lanes at those excessive speeds. You repeatedly performed a dangerous manoeuvre, high-speed wheel stands or monos on that major motorway in that traffic. Your manner of riding was not only dangerous in itself but can properly be characterised as encouraging and assisting Mr Kodogiorgos to drive in an equally dangerous manner. The riding placed many other road users over that considerable distance at risk. Your role in encouraging Mr Kodogiorgos’ driving in that like manner added to the risk posed to yourselves and to other road users.
18 The replacement of your number plate on your bike by the time you were arrested, indicates, as you acknowledge, its absence on the night was to avoid detection by speed and toll cameras. This indicates that the manner of driving was not spontaneous, but something that had been contemplated by you before you went out that night.
19 When considering the objective seriousness of the related summary offence of dangerous driving, again excessive speed over a considerable but lesser distance, on a major roadway, in fact in a tunnel, weaving in and out of traffic and driving between cars in their lanes at those excessive speeds, and doing wheel stands, also at that those excessive speeds, feature. In addition, there is the driving well in excess of the speed limit in an area where a reduced speed limit applied by reason of roadworks and driving in a lane closed for roadworks. Therefore, the risk to other road users is added to the risk to any road workers who may have been in the vicinity.
20 In other words, this is not case where the objective dangerousness of the driving in respect of either charge is at a low level. Many of the features commonly identified as aggravating or adding to the seriousness, or marking the seriousness of an already serious offence of dangerous driving causing death or dangerous driving, are present here.
21
Having said that, it is also clear that whilst these features point to your moral culpability being high, nonetheless the weight to be given to your moral culpability must be moderated. That is because although your driving was a substantial and operative cause of the death, the manner in which
Mr Kodogiorgos rode his motorcycle was a significant contributing factor and the immediate or proximate cause of his death.
22 The appalling manner of your driving on this night, which indicates a reckless disregard for the safety of others and for adherence to the road safety rules, which all drivers and riders are bound by, stands in stark contrast to the evidence of what was properly described by Mr Thomas in his excellent plea as evidence of your excellent prior character.
23 Dr Barth, who assessed you for the purposes of the plea, described you as a prosocial and sensitive man who aspires to solid personal standards of conduct and is generally a conventional and conscientious person who espouses prosocial personal values. This is borne out by the wealth of impressive materials presented on the plea.
24 You are now 51. You were 48 at the time, and you have no criminal convictions. You grew up in western Sydney. Your childhood appears to be unremarkable in the sense that you grew up in a happy family, although your parents ultimately separated, but it would appear cordially. Your childhood was not blighted by poverty, deprivation, neglect, substance abuse or mental illness. You were not subject to or exposed to violence or abuse in the home. You left school in Year 10 and completed a fitting and turning apprenticeship. At 31, as a mature age student, you undertook and ultimately completed, with honours, a marine science degree.
25 You are not married, you have no children, and you have been in a stable relationship for the last three years. You are involved in the care and support of your partner’s teenage child. An impressive set of testimonials from what appears to be a wide circle of friends and acquaintances across your adult life, testify to the high regard in which you are held, and to the profound effect on you of the appreciation of your involvement in, and contribution to, the death of Mr Kodogiorgos.
26 You are a long-time motorcycle rider, fully licensed, and despite the evidence of your riding on this night, have only three traffic infringements against your name. All three are for travelling at excessive speed. One, for exceeding the speed limit by more than 40km/h, which carried eight demerit points as well as a $700 fine, the other two for being more than 20km/h but less than 30 km/h over the speed limit, each carrying $250 fines and four demerit points. Those traffic infringements, though, are all more than 10 years old.
27 You are clearly an intelligent man, with a consistent history of engagement in meaningful paid employment and volunteering in fields that make a significant contribution to the betterment of the community.
28 Your volunteer work is varied, longstanding and impressive. As a young man you became involved with the Blacktown Youth Services Association, contributing your time and often your own personal resources and money to projects to assist young people to engage in meaningful recreational pursuits, and to obtain experience to provide them with references to better equip them for work. You developed an interest in tropical marine stingers and engaged in research for James Cook University, the Australian Research Council and surf lifesaving. You worked as a safety officer for university orientation programs for international students. Given that you are a mature age student, that was a particularly helpful and meaningful thing to do. For Biosecurity Queensland, you worked as a volunteer and community engagement officer and you have refereed community sport over many years.
29 So far as your paid work is concerned, you have worked for extended periods in your jobs. After completing your fitting and turning apprenticeship you worked driving heavy equipment for some considerable time. Since then and since undertaking your university studies and graduating, you worked for extended periods for Biosecurity Queensland, as a field and scientific officer involved in the eradication of invasive species, for the World Mosquito Program as a research and technical officer and research assistant in a program which ultimately succeeded in eradicating dengue fever from North Queensland, and you are now employed and have been for some time by archaeological excavations, working in Aboriginal cultural heritage sites.
30 The truly impressive testimonials from a range of people with whom you have worked or provided volunteer services in these fields, paint a consistent picture of a person with a genuine commitment to public health and social justice, and to the important projects in which you were involved, to a person who is a team worker, a hard-working and committed person who fostered good relationships and engaged well with community workers and with the broader community, and who had displayed what was described as impressive sensitivity and understanding of the importance of cross-cultural relationships with Indigenous communities when handling sensitive artefacts and materials in archaeological work.
31 The brevity of this summary of those testimonials from those fields, those who know you personally, those with whom you have been engaged through volunteering, and those with whom you have worked, should not be taken as in any way devaluing their importance or the weight that I give to them. That so many people with experience, qualifications and standing in the community, academics, people in positions of authority in the range of your public and private sector employers over your working career, as well as those you have had contact with you throughout your extensive volunteer activity, speak with one voice is truly impressive and something of which you should be, and no doubt are, rightly proud.
32 The picture of your character, borne out by the volunteer and employment testimonials, is borne out again by the personal testimonials and again, they were very impressive in their number, breadth and detail.
33 As I said to Mr Thomas in the course of the plea, it is difficult to reconcile the person described so consistently and so highly in those testimonials with the person who drove in the manner you did on this night, displaying such irresponsibility and apparently antisocial attitudes.
34 You are entitled to considerable credit, and considerable reduction in the sentence otherwise appropriate by reason of this truly impressive past character. This is earned good character, not good character obtained simply by putting your head down and not doing anything bad, but because you have actively done good things.
35 Your guilty pleas also entitle you to a reduction in the sentence otherwise appropriate. The matter resolved to a guilty plea during the committal proceeding. At that stage the prosecution withdrew reliance on a charge of culpable driving which had initially been laid. In those circumstances I treat your guilty pleas as pleas entered at the first reasonable opportunity.
36 I accept the pleas of guilty are properly also to be treated as evidencing remorse, and that really supports the other evidence of remorse that was presented by Mr Thomas, in particular, the observations of the friends and associates who provided the testimonials. They, in themselves, provide powerful evidentiary support for the observations and professional opinion of Dr Barth.
37 I accept as truthful and genuine the expressions of remorse quoted in the testimonials and in Dr Barth’s report. I am satisfied that, in the circumstances, specific deterrence is not a significant factor.
38 I also accept the submissions of Mr Thomas that the timing and circumstances of the entry of your guilty plea, before the Court of Appeal had delivered its decision in Arpaci, and in circumstances where you might have thought, and been advised that you had reasonable prospects of acquittal, by reason of the relatively novel basis for criminal liability relied on, is further evidence of remorse and again gives your pleas of guilty considerable weight for their utilitarian value.
39 As is often the case in driving causing death cases, there has been a considerable delay between the death and the laying of charges, and the ultimate hearing of the plea. I accept that the delay is not of your making and that you have carried the added burden of having these charges unresolved for over two years and that too is a matter properly to take into account.
40 In addition, I take into account the added burden in this COVID-19 environment in which we are living and that there is an additional weighting to be given to advancing the interests of justice by the entry of a guilty plea in circumstances where you have been advised that imprisonment is likely. That fortifies, too, my acceptance that the plea is evidence of remorse, because you entered your pleas and had your plea heard in circumstances where you knew that there is an additional burden of imprisonment over and above the ordinary burden of imprisonment brought about by reason of COVID-19 restrictions.
41 Since Victoria has been confronted with the threat of COVID-19, conditions have been more onerous for prisoners than they normally are. All face-to-face family visits and all face-to-face programs have been suspended. Although family visits and most programs are continuing in online form, there is not quite the same reach and coverage that there was and time out of cells is often more limited. The fear of exposure to or coming down with COVID-19 is real for everyone in our community. It is more so for someone living in a confined community like a prison, where people are unable to make the choices that those of us in the broader community can make about how best to protect and isolate ourselves, and I accept that, in the circumstances, and despite the commendably successful efforts made so far by Corrections to prevent the spread of COVID-19 within the prison system, the fear of what might happen if it does find its way there, and the inability to have control over the ways to protect oneself, add to those other burdens of imprisonment brought about by reason of COVID-19. They are all proper matters to take into account. So too is the mandatory quarantine upon reception.
42 Despite all these powerful and impressive factors that count in your favour, and the weight that must be given to reducing your moral culpability, by reason of your driving being that significant causative, but not immediate and proximate cause of death, the objective dangerousness of the driving is such that in my view no sentence other than one requiring a term of imprisonment immediately served, is appropriate.
43 General deterrence and denunciation, in my view, require it, notwithstanding those impressive personal circumstances. In my view, deterrence and denunciation cannot be given proper weight in the sentencing mix without the requirement to serve some term of imprisonment. In some senses it is even more so when one considers that your truly impressive character should have made you more aware than others less fortunately circumstanced of the danger of your conduct in itself and of the danger in encouraging Mr Kodogiorgos to ride as he did and to assume the risks that he did.
44 In his report, Dr Barth quotes you as saying, 'I am responsible. We were doing silly shit and he died because of it. If we didn’t decide to do it George would still be here. Every time I drive past the spot where the collision occurred, it is a constant reminder of my actions'.
45 Dr Barth continued:
Mr Durkan is burdened by a sense of guilt for the collision. He accepts responsibility for the event and is burdened by a self-punitive inner dialogue. Whilst his acceptance of responsibility is considered a positive indicator on his part, it has also resulted in persistent feelings of shame which has adversely impacted his moods… Mr Durkan is a man who is experiencing emotional turmoil and remorse for his involvement in the matter. While symptoms have not progressed to the point where he suffers a formal psychological disorder, he has clearly been deeply affected by the collision and continues to manifest a degree of emotional distress which requires ongoing treatment.
46 These observations, together with Mr Kodogiorgos’ mother's plaintive plea for people to take care on the roads, are stark reminders of the impact of driving such as that in which you engaged that night. It is to be hoped that this, together with the penalty that the law requires and the sentence that I impose on you today, does serve to deter other riders who are tempted to ride as you did that night. No matter what punishment is imposed today by conviction and loss of liberty, the personal toll for Mr Kodogiorgos’ family, and for you and those who know and care for you, is enduring and immeasurable. Sadly, the grief and loss was avoidable. Let this be a reminder and a warning to others that no father, mother or sister should have to suffer the grief that Mr Kodogiorgos’ family do. No other rider should take the risk of bearing the burden of guilt and loss of liberty and reputation which is the consequence for you. I hope it is a lesson.
47 I am particularly struck by the way you have accepted responsibility and have not sought to sheet the blame solely to Mr Kodogiorgos. You have understood and accepted your role without seeking to offset it. Again, that together with all of the other matters that I referred to confirms the view I formed, and the soundness of the submission made by Mr Thomas, that your prospects for rehabilitation are excellent.
48 I have carefully considered whether to impose a combination sentence and ultimately, I have come to the view that this is not a case where such a sentence is appropriate. There are no underlying psychological, psychiatric, behavioural or substance abuse issues which help explain the offending, or which are necessary to address in order to reduce your prospects for reoffending or encourage your rehabilitation. In other words, the rehabilitative conditions of a CCO are not necessary to address the underlying causes of the offending or to encourage rehabilitation and, in my view, the punitive, denunciatory and deterrent purposes of sentencing must involve a component of imprisonment and therefore do not require the additional punitive component of a CCO.
49 Having said that, I have taken into account the matters that count so powerfully in your favour and the finding about your moral culpability, and have reduced the sentence that might otherwise be thought to be appropriate for such driving considerably and have allowed for a considerable gap between the head sentence and the non-parole period. In my view, both the head sentence and the gap between it and the non-parole period are properly to be weighted in this case to reflect those mitigatory matters including your reduced moral culpability.
50 Mr Durkan, could you now please stand?
51
Martin Durkan, on the charge of dangerous driving causing death and the related summary offence of dangerous driving, you are convicted. On
Charge 1, dangerous driving causing death, you are sentenced to be imprisoned for a period of two years, and on the related summary offence of dangerous driving, to be imprisoned for a period of six months. I direct that three months of the sentence on the related summary offence be served cumulatively upon the sentence on the charge of dangerous driving causing death.
52 That makes a total effective sentence of two years and three months and I fix a period of 12 months as the time that you must serve before being eligible for parole.
53 All licences held by you are cancelled in respect of both charges and you are disqualified from obtaining a further licence for a period of three years.
54 I make the forfeiture order sought and I declare, pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty I would have sentenced you to total effective sentence of four years and six months with a non-parole period of three. I emphasise, however, Mr Durkan, your sentence is two years and three months with a 12 months' non-parole period.
55 There is no pre-sentence detention.
- - -
0
3
0