Director of Public Prosecutions v Gangur, John Andrew

[2011] VCC 84

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MILDURA

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS
v

JOHN ANDREW GANGUR

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	11 February 2011
CASE MAY BE CITED AS:	DPP v. Gangur, John Andrew
MEDIUM NEUTRAL CITATION:	[2011] VCC 84

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. O'Doherty
For the Accused	Mr G. Tellefson
HER HONOUR:

1          John Andrew Gangur, you have pleaded guilty before me to two charges of dangerous driving causing serious injury. You have also pleaded guilty to the summary charges of driving with a blood alcohol content exceeding .05 per cent, unlicensed driving, driving an unroadworthy vehicle and driving whilst an illicit substance, namely cannabis, was present in your blood stream. You have admitted prior convictions.

2          The facts underlying your offending are as follows. On Wednesday 9 June 2010, you were the driver of a 1990 Ford EA Falcon red sedan which you were driving in a southerly direction on the Calder Highway south of Mildura. The section of the road you were travelling on had two lanes in each direction separated by double white lines. At about 7.25 pm, you had just passed the township of Irymple into an 80 kilometres per hour speed zone travelling south. Witnesses travelling in the same direction in the proximity of Morpung Avenue had been overtaken on the left-hand side by you. They told police that you passed so close to their vehicles they thought you had actually collided with them. They estimated your speed at approximately 130 to 140 kilometres per hour. You continued to drive in the left-hand lane of two lanes travelling south and witnesses told police you were at that time "all over the road."

3          They said that you travelled from the left-hand lane into the right-hand lane and then drifted over double lines separating the northbound lanes, that is to oncoming traffic. One witness told police it was like you were trying to stay straight but could not. The road then had a sweeping bend to the right and the southbound lanes merged into a single lane, at which time a 100 kilometre per hour speed zone applied. Witnesses told police you continued to drift all over the road and into the oncoming lane, one witness telling police you were lucky there was in fact no oncoming traffic at the time. You did this a number of times, about four, with approximately half the width of your vehicle in the oncoming lane before you rectified and re-entered your own lane.

4          The victim in this matter, Ashley Watters, was driving her vehicle, a Mitsubishi white Lancer sedan, northbound on the Calder Highway at Sunnycliffs. In her car was a passenger, Grant Adams, also a victim at this time and her partner and fiancé. You were on the incorrect side of the road as it approached Ms Watters car just south of Belar Avenue in Sunnycliffs. Ms Watters slowed her vehicle and moved all the way to the left of the solid white line defining the shoulder of the road in an attempt to avoid a collision with you. At about 7.30 pm, you collided with Ms Watters vehicle, impacting the front driver's side. This point of impact occurred in the middle of the northbound lane, that is the lane in which Ms Watters was travelling. Her car spun out of control in a clockwise direction, approximately 90 degrees and came to rest off the road in the bushes on the east side of the road. The car came to rest 3.8 metres from the edge of the roadway. Its front driver's door skin and wheel were ripped off in the collision.

5          Your car continued on the roadway, arched to the left and collided with a strainer post 16.7 metres from the edge of the roadway. Your car sustained major damage to the front driver's side door. The force of the impact caused the front driver's side wheel back under the floor of the car. Your vehicle came to rest about 30 metres from the point of impact. The front driver's side door of Ms Watters' car was unable to be opened due to the extent of the damage, so Mr Adams pulled Ms Watters into the passenger seat of the vehicle. At this point it was seen that her right leg was swollen and her right ear was severely lacerated, almost severed. Ms Watters remained in the passenger seat of the vehicle until she was extricated from the car by SES and ambulance. All parties were conveyed to the Mildura Base Hospital by ambulance.

6          An analysis of a blood sample taken from you was found to contain a blood alcohol concentration of .280 per cent. That sample was also found to contain five nanograms of what is called Delta-9 tetrahydrocannabinol per 100 millilitres of blood, that is traces of cannabis were found in your blood.

7          Ms Watters sustained a fractured right femur and lacerated right ear. She was referred to a surgeon and had a titanium rod and four screws inserted in her leg and she received approximately 30 stitches. Tragically at the time of the collision Ms Watters was about 17 weeks pregnant and the day after the collision an ultrasound showed there was no foetal heartbeat. Ms Watters gave birth to a stillborn child on 15 June 2010. Mr Adams sustained a sore ear, bruising to his chest from the seatbelt and a bump on his right shin and he was treated at hospital for tenderness to his ribs and soreness to his neck. He also suffered and this comprises a major part of the serious injury, an aggravation of a pre-existing psychiatric condition and has ongoing depression. You sustained a shattered right foot. At the time of the collision you were not licensed to drive a motor vehicle, you having only previously held a probationary licence.

8          On 27 June 2010, your car was investigated by a qualified motor mechanic at the Mechanical Investigating Unit of Victoria Police. It was his opinion that your car would have been classified as being in an unroadworthy condition prior to and at the time of the collision.

9          In a record of interview, you told police that whilst the car appeared to be roadworthy, you knew that the front suspension and ball joints were "all shot." You told police you remembered drinking two cans of full strength Melbourne beer from approximately 12 pm until 2 pm on the day of the collision at your home before leaving at about 5 pm following an argument with your partner. You told police it was a split decision to leave. You could not recall drinking any alcohol other than the beer. When asked if you thought it was safe for you to drive at the time, you told police that at that stage you were not thinking even though it was the wrong thing to do. You told police that you were clearly under the influence of alcohol and that you did not have a licence. You told police you could not recall anything of the accident. You admitted you did not hold a current driver's licence.

10        I now turn to your personal circumstances. You are 36 years of age and grew up in very difficult childhood circumstances. Your father was a career criminal with serious drug and alcohol problems and your mother came to Australia with her family from Britain when she was 14. At age 16 she gave birth to your sister and two years later to you. By then she had also developed a problem with alcohol. You were raised by your maternal grandparents who moved to the Ballarat area when you were very young. You grew up believing they were in fact your parents. Your grandfather has never worked in Australia and himself had an alcohol problem. You attended Delacombe Primary School on an intermittent basis. You were apparently supervised little by your grandparents. At age nine you discovered through your sister than an occasional visitor to your home was in fact your mother. This had an enormous effect upon you, you struggled emotionally and a year later, aged ten, left home.

11        You told psychologist, Ian Joblin, whose report dated 17 December 2010 was tendered on the plea, that for about a year you lived on the streets in Ballarat occasionally staying with friends. You returned twice to live with your grandparents, the second time returning to school and completing Grade 6. You never attended secondary school. According to Mr Joblin you can read the newspapers but prefer not to write. At age 13, you tried living with your father in Melbourne. He had repartnered and had more children and you did not get along with this new family. You soon left but not before he had introduced you to cannabis use. You then tried living with your mother who had moved to the Ballarat area. She had also repartnered and again your stay there was unsuccessful, but in that time she introduced you to alcohol, she by then being a full blown alcoholic. You have had no contact with your father at all since that time and have not seen your mother for 20 years.

12        You went on to develop serious problems with alcohol and cannabis. You lived on the streets in the St Albans/Werribee area and at about age 16 came to Mildura, possibly, according to your counsel, with the notion of making a fresh start as a fruit picker. You met up with a man named Scott Chapman, also an itinerant worker, and stayed in a picker's hut with him and began working on blocks in the Mildura area. Chapman was an offender and you became involved in offending behaviour with him.

13        In 1995, aged 18, you were convicted in the Melbourne Magistrates' Court on charges of motor vehicle theft, theft from motor vehicle and driving charges and ordered treatment for drug and alcohol abuse and Pleasant View. A condition of the order was that you were not to have contact with Scott Chapman.

14        In 1994, the Mildura Magistrates' Court placed you on a 12 month community- based order for theft of motor vehicle and wilfully damaging property. You told Ian Joblin that by this stage you had developed serious problems with drugs and alcohol which interfered with your employment and you would sporadically come to Melbourne and either live with friends or live on the streets.

15        In 1995, at age 18, you had formed a relationship with a girl, Tanya, who you lived with for a year, returning to work and the two of you had a daughter, but the relationship then ended. You returned to live with Chapman and became involved in further offending. Your daughter is now 16 and lives with her mother and you have some contact with her.

16        Soon after you met Emma, your current de facto partner. You met her in St Albans and the two of you eventually moved back to Mildura, where you have since remained, renting houses and you obtaining seasonal work on blocks in the area. You have been unemployed for some time, presumably because of the injuries you received in the accident. Both you and Emma have seven children aged between five and 14 years.

17        You have what Mr Joblin, an experienced forensic psychologist described as "an extraordinary history of drug and alcohol abuse." You have been drinking regularly since being introduced to alcohol by your mother when you were 13. You told Mr Joblin you drink daily and cannot stop once you start. You drink beer and then progress to wine or port, you drink at home or on your own. You told Mr Joblin that alcohol causes you to become aggressive and that your family knows they must be careful of what they say to you when you are drunk because you become angry. Indeed you have assaulted Emma when drunk and you do not drink spirits because of its effect upon you. Apparently your way of dealing with the situation when drunk and angry is to get into your car and drive away and this is what apparently occurred on the day of this terrible incident of 9 June 2010.

18        You also smoke cannabis daily and have done so since being introduced to it by your father. You apparently smoke about three to five grams of cannabis per day using a bong, which is a very large habit. You told Mr Joblin if you do not smoke cannabis you become anxious and start drinking. You also told Mr Joblin you have used amphetamines but have not done so for some months before he interviewed you.

19        It is Mr Joblin's view that you are a serious alcoholic and he noticed that you had made strenuous attempts at the time you saw him not to drink before travelling from Mildura to Melbourne where the interview with Mr Joblin took place. He said when he saw you, you were shaking and sweaty and told him that before you travelled back to Mildura you would need alcohol to feel normal again.

20        I accept that you are addicted to both alcohol and cannabis and have been for many years. You have had no professional assistance for your addictions since the order sending you to Pleasant View, where you told Mr Joblin you only remained for a couple of months. Ultimately at that time you ended up in Pentridge, where you were presumably sent after breaching the order, although there is no mention of this on your criminal record.

21        Your offending history continued. Your counsel informed me that because of your alcohol and drug use you have little recall of the various offences. However in April 2000 you were placed on a community-based order for three months for driving offences and a charge of driving with a blood alcohol content exceeding .05 per cent.

22        In May 2005, the Mildura Magistrates' Court placed you on a suspended sentence, on a second charge of driving with a blood alcohol exceeding .05 per cent together with charges of driving whilst disqualified, driving without authorisation, using an unregistered vehicle, exceeding the speed limit, using cannabis and cultivating cannabis and fraudulent use of a number plate.

23        In 2006, you were gaoled for two months for breaching the suspended sentence, after committing assaults upon your partner, Emma.

24        In 2008, you were fined for theft and obtaining property by deception and in 2010 were fined for indecent assault, which incident occurred, you told Mr Joblin, when you touched a woman on the buttocks whilst you were drinking in a hotel.

25        Whilst he did not conduct any formal testing upon you, it was Mr Joblin's view that you have a limited intelligence and that your have intelligence problems have been compromised by your use of alcohol and cannabis. He believed your practice of getting drunk and angry and then taking yourself off in a car to avoid difficulties seemed to be a pattern around the time of this offending. You told Mr Joblin that on the morning of 9 June last year you and Emma bought a six pack of beer for you and a six pack of bourbon mix for her. Around lunch time the two of you drank both six packs. You got drunk, became obnoxious and decided to leave. You said you had no recollection of events after that until you woke up in hospital. You do recall Emma tried to get you to eat something before you left but that you would not. You also told Mr Joblin that normally if you were angry and upset you would buy a bottle of wine from the bottle shop and sit by the road and drink it. You are unable however to account for the two and half hours between leaving your home and the collision.

26        In your record of interview you told police you left home in Emma's car, which she had owned for four to five months, and that you were aware, having mechanical knowledge and having checked the car mechanically about a week before, that there were problems with the suspension.

27        You have offended subsequently to being charged with the offences before this court. In mid November your two eldest boys ran away from home. This case attracted an amount of media attention, your elder son accompanying you to court on your first appearance. He was subsequently bullied and taunted over your offending to the point that he dropped out of school where he had previously been doing well. Thankfully, he plans to return this year. Your son, of course, is in no way to blame for your actions and it is extremely sad that a teenage boy should be treated so cruelly by others when he obviously would have been suffering the terrible stress of his father being charged with such appalling offending and it would have been hoped that he would receive sympathy rather than the bullying behaviour that he was then subjected to.

28        Obviously also you are going to be sentenced in relation to this and I have no doubt that this case will attract further media attention and I hope that any such report on this case includes something about the suffering that your son has undergone and comments by me that I would hope that that sort of behaviour towards your son would not occur again and that he would attract sympathy and support rather than the damaging attention he has received so far. In any event, apparently your two oldest boys ran away due to the stress surrounding this offending and police were notified and began a search. You became frantic and got into Emma's car to look for them. You were charged with driving whilst disqualified.

29        On 10 January 2011, your bail was revoked when you were charged with recklessly causing injury, assault and criminal damage. Your counsel told me you got into an argument with your landlord over an insufficient water supply to your rented house after you had been using both alcohol and cannabis. An argument developed between you and Emma over your approach to the landlord. She threw a bicycle seat at you, you threw it back and hit her on the neck and threw her mobile phone on the roof to stop her calling police. You have remained in custody ever since being charged with those offences.

30        You have done nothing since this incident in relation to your cannabis and alcohol addictions, except to continue on with them. Your counsel said Emma has wanted you to attend to them for years and that you, yourself, have felt you needed to do something but had never made the first move. He said your main achievement related to your children. He said that you loved them, had never hurt them and if there were any physical problems it was between yourself and Emma. You also made attempts to hide your cannabis problem and cannabis use from your children. I do note that there was no evidence of any kind tendered in support of this although Emma was present in court, but I do accept that the main achievement in your life has been your attempts to be as good a father as you possibly can be.

31        However, your actions have wreaked the most dreadful damage on your victims. Ms Watters suffered multiple fractures to her right leg. As I said, a titanium rod was inserted in her leg from her hip to her knee. She endured terrible pain while she was trapped in the car for an hour before being rescued. Her ear was almost severed and reattached with 34 stitches, also an extremely painful experience for her. She has required ongoing surgery, she has required treatment and physiotherapy, she has a noticeable limp and she cannot walk for more than 500 metres. The timing of this accident was appalling for this young couple. Only four days previously they had become engaged. They were expecting a much wanted child. Ms Watters had planned to join the police force in about a year. The injuries have put an end to these hopes and dreams.

32        She and Mr Adams were looking forward to the birth of a much longed for child. They had already endured a previous miscarriage. The child died in the collision and was delivered after a 48 hour labour. The baby was christened and buried. He was named Cameron and this entire incident has just resulted in the most extraordinary emotional and physical damage to Ms Watters. As I hope I have indicated, virtually everything she and Mr Adams had planned for in their lives has been destroyed by this collision.

33        The victim impact statement that was tendered on Ms Watters' behalf spoke eloquently of the continued heartbreak and loss, of the physical pain that she continues to suffer and it made for heartrending reading and was unspeakably sad. Her partner, Mr Adams, though less seriously injured physically, was nevertheless traumatised trying to comfort his fiancé who was in tremendous pain before being rescued from the wreck. He as also shattered by the loss of his baby son. He had a pre-existing psychological condition which has worsened and been exacerbated by the events of 9 June 2010. Further, his father was killed in a car accident in 2000 and the trauma surrounding that event has been reignited by he himself being involved in such a serious motor collision. The car owned by Ms Watters and Mr Adams was not insured. In addition to all the other suffering, they continue to bear financial burdens arising from this night, they have had employment troubles, they spoke of having to be supported financially by their families, which is a huge burden for them. They worry about ever being able to pay those moneys back. They both continue to undergo psychotherapy to help them come to terms with the extraordinary loss and injury you inflicted upon them that night.

34        The prosecution has submitted that there are a number of aggravating features in this case.

(1) Before the collision your driving was clearly unbelievably dangerous. You were travelling well over the speed limit. You drifted all over the road, often onto the wrong side of the road.

(2) The collision with Ms Watters occurred so far into her lane, that even her efforts, because she saw you coming, to pull over to the left and avoid you were to no avail.

(3) Your alcohol reading was exceptionally high. It is extremely fortunate that
no other motorists were injured or indeed killed.

35        In regards to the manner of your driving, this is a most serious example of this type of offence. You had no licence, you have been twice before convicted of drink-driving. You have caused the most immense suffering and damage. I accept Mr Joblin's opinion that you are remorseful and this has been underlined by your cooperative record of interview with police and your early plea of guilty, but a more wanton, reckless, dangerous example of driving could hardly be imagined. Nor have you taken any steps at all to address the addiction which led you to behave in this way.

36        As I have said, about the only matter your counsel was able to put in your favour was your care for your children. As I reminded him, however, this aspect of your life, which I do accept, is in reality irrelevant for the purposes of sentencing. I may not take family circumstances into account in sentencing a person unless the hardship to be visited upon them by the gaoling of a family member is exceptional and unfortunately that is not so in your case, even though I recognise there will be great hardship and suffering and that you will be greatly missed by your family.

37        The courts have made it very clear that when sentencing an offender who has deliberately disobeyed the law, that is has made a conscious decision to drive a car whilst drunk, that the principles of general deterrence, that is a sentence which sends a message out to the community that this behaviour will not be tolerated and will be met with severe punishment is a major task at hand for the sentencing court.

38        Further, you must be personally punished for what you have done. I accept that you have had some terrible experiences as a child, that you were not cared for properly, that you turned to alcohol and drugs and that you are addicted to both substances. That is something, however, you also knew and you have never done anything about either problem. As I have said, you have caused the most appalling misery and suffering on each of your victims. Your driving on that night, that dreadful collision, ruined the hopes and dreams of each victim and has left them struggling in their lives financially, emotionally and physically and in a way which will probably affect them for ever.

39        I accept the aggravating features which were put forward by the prosecution. In all the circumstances, I accept the prosecution submission that the gravity of your offending must attract an immediate sentence of imprisonment to be served and that it must be a substantial sentence. Further, in all the circumstances, in my view, there should be considerable cumulation in relation to the charges of dangerous driving causing injury. The likelihood of there being more than one person in any car you might have collided with was of course extremely high. The damage you inflicted on each victim was most serious.

40        In sentencing you, I take into account your early plea of guilty. I accept, as I have said, you are remorseful for your actions, as shown by your cooperation with police. I accept, as I have said, you had a difficult childhood and that you are a caring father. I do add, however, that you are a father who has not had the insight to address your addictions which have clearly caused a lot of domestic unhappiness and which has now led to the awful trauma for your partner and in particular your children, having to deal with the fact that you are to be gaoled for some time. I therefore sentence you as follows. Could you stand up please.

41        On Charge 1, you are sentenced to four years' imprisonment.

42        On Charge 2, you are sentenced to three years' imprisonment.

43        On the charge of driving with a blood alcohol content exceeding .05 per cent, you are sentenced to 12 months' imprisonment.

44        On the charge of driving with an illicit substance present in your bloodstream, you are sentenced to three months' imprisonment.

45        On the charge of unlicensed driving, you are sentenced to two months' imprisonment.

46        On the charge of driving an unroadworthy vehicle, you are fined $500.

47        The base sentence will be the sentence imposed on Charge 1, that is four years. I order that two years of the sentence imposed on Charge 2 be served cumulatively to the sentence imposed on Charge 1 and all other sentences. I order that 12 months of the sentence imposed for driving with a blood alcohol content exceeding .05 per cent, that six months of that sentence also be served cumulatively to the sentence imposed on Charge 1 and all other sentences, giving a total effective sentence of six years and six months. I order that you serve a minimum term of four and a half years before becoming eligible for parole.

48        Has any time been served by way of pre-sentence detention in relation to this charge?

49        MR O'DOHERTY: No.

50        HER HONOUR: All right. Yes, thank you. Obviously you are disqualified from obtaining any licence for a period of six years. Thank you, take Mr Gangur down please. Yes, thank you, we will stand down.

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