Director of Public Prosecutions v Janson
[2021] VSC 298
•4 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0023
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIEN RUSSELL JANSON |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 May 2021 |
DATE OF SENTENCE: | 4 June 2021 |
CASE MAY BE CITED AS: | DPP v Janson |
MEDIUM NEUTRAL CITATION: | [2021] VSC 298 |
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CRIMINAL LAW – Sentence – Manslaughter – Plea of guilty – Unlawful and dangerous act – Offender grabbed steering wheel of moving car, causing it to swerve into oncoming lane, into path of oncoming motorcyclist – Early plea – Genuine remorse – Lengthy criminal history – Longstanding drug abuse – Some prospects of rehabilitation - Sentenced to 9 years’ imprisonment, with a non-parole period of 6 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Dickie | Ms A Hogan, Solicitor for Public Prosecutions |
| For Mr Janson | Dr T Alexander | Nelson Brown Legal |
HER HONOUR:
Damien Russell Janson, you have pleaded guilty to the manslaughter of Jake Smith on 20 May 2020.[1]
[1]The maximum penalty for manslaughter is 25 years’ imprisonment.
You killed Mr Smith after you grabbed the steering wheel of the vehicle in which you were the front seat passenger, causing it to veer onto the wrong side of the road, directly into the path of Mr Smith, who was riding a motorbike coming from the opposite direction. The collision occurred about 10 minutes after an aborted drug transaction in Bacchus Marsh, between you and Mr Smith’s friend, Brodee Sutton.
You had met Mr Sutton about six months earlier, when you were both in prison. About one week before the offence, you contacted Mr Sutton, wanting to buy drugs from him. He initially declined, but you contacted him repeatedly, asking for MDMA. On 20 May 2020, Mr Sutton eventually agreed to sell you an ounce of MDMA for $1,200; he arranged to meet up with you in Bacchus Marsh to complete the sale.
Those arrangements were made while Mr Sutton was with a group of friends, at a social gathering at Jake Smith’s house in Werribee. Present at the gathering were Mr Smith and his girlfriend, Tegan Smith; Joshua Pathe and his girlfriend, Colby Taurima; and Trent McLeod. Mr Sutton invited the others to join him in travelling to Bacchus Marsh, where he was going to meet you.
Although Mr Sutton had agreed to sell you an ounce of MDMA, in fact he only had about half a gram in his possession at the time. So he packaged up some kitty litter in a black plastic zip lock bag. Mr Pathe and Mr McLeod, and possibly some of the others at the house, were aware that Mr Sutton planned to rip you off, by selling you the bag of kitty litter.
Mr Sutton’s group travelled together from Werribee to Bacchus Marsh. Mr Smith and Mr McLeod were riding motorbikes, following Mr Sutton and the others, who were travelling in Mr Sutton’s gold Toyota Camry sedan.
That day, you had been at your Pentland Hills home, where you were living with your family. Around 6pm, you were joined by your friend, Matthew Langeweg, who had dropped by to see you after visiting family in the area. You and Mr Langeweg had a few drinks with your brother, Dylan.
Mr Sutton originally arranged to sell you the drugs at your house. However, on the way over from Werribee, he changed his mind. He called you and arranged to meet you at the 7-Eleven service station on Main Street, Bacchus Marsh, which was a short drive from your house.
You did not have a driver’s licence, so Mr Langeweg agreed to drive you to the service station. You asked Dylan to join you too. The three of you left your house around 6:45pm, with Mr Langeweg driving you in his Mitsubishi Triton ute.
A couple of minutes later, Mr Sutton’s group arrived at the service station. He parked his car in the car park, near the gas tanks. Mr Smith and Mr McLeod parked their motorbikes nearby.
Mr Sutton and Mr Pathe stayed at the car, waiting for you to arrive. Mr Smith and Mr McLeod stayed with their motorbikes, and kept away from Mr Sutton’s car. A service station customer described Mr Smith and Mr McLeod as trying to hide in the shadows.
Ms Smith and Ms Taurima went inside the store, and bought various items. At one point, when Ms Smith approached her boyfriend, Mr Smith, to hand him a Slurpee, he told her she was not supposed to know him.
Just before 7pm, Mr Langeweg drove his ute into the service station, with you and your brother inside. You got out and walked over to Mr Sutton’s Camry. You were carrying a set of scales, and got into the rear passenger door of the car. Mr Sutton went and sat in his driver’s seat.
You seemed agitated. Mr Sutton was concerned that you did not have the funds he expected. You asked Mr Sutton to drive off, because you were uncomfortable conducting the transaction at the service station.
Mr Sutton called Ms Smith and Ms Taurima over to the Camry, and drove off after they got in. You phoned your brother and asked him to follow the car you were in. Mr Sutton’s car and Mr Langeweg’s ute drove about one kilometre along Main Street, before parking outside a farm supplies business.
You and Mr Sutton argued in his car over the drugs. You wanted to see the drugs, which he said were in the black, taped-up bag, but Mr Sutton refused without being given the cash. At some stage, Mr Sutton asked you to give him a $50 note to scoop powder onto the scales; you did so. You both behaved aggressively. You produced a screwdriver. Mr Sutton told you to fuck off, and pointed a knife at you. You got out of the car, but persisted in asking for drugs. You struck the Camry with part of your screwdriver, as they drove off.
As Mr Sutton drove off, Mr Smith and Mr McLeod drove past on their motorbikes, and followed him. You later told your brother that one of the motorbikes had tried to swerve at you.
You returned to Mr Langeweg’s ute, and sat in the front passenger seat. You said “I think these fuckers ripped me off 50 bucks. Go right, I want to catch up with them.” Mr Langeweg drove off, following your directions, in an attempt to catch up with the other group. However, after a few minutes, it seemed that you had lost them; so you told him to head home. Mr Langeweg turned and started driving towards your place.
By coincidence, the two groups met up again a few minutes later on Woolpack Road, Maddingley, driving in opposite directions. Mr Sutton was driving the Camry downhill and southwards, followed by Mr Smith and Mr McLeod on their motorbikes. Mr Langeweg was driving northwards and uphill.
Mr Langeweg saw the lights of the oncoming car, and then the motorbikes, but did not recognise them; you did. You quickly and unexpectedly reached over with your right hand and grabbed the steering wheel, pushing it to the right. Mr Langeweg tried to stop the wheel from turning, but your grip was too strong. Your actions caused the ute to veer to the right, and onto the wrong side of the road.
The ute collided with Mr Smith and his motorbike in the southbound lane of Woolpack Road. The ute had slowed down slightly, after Mr Langeweg had taken his foot off the accelerator and tried to apply the brakes.
The collision happened so quickly that Mr Smith did not have time to react. After being struck, he was thrown over the top of the ute, and 15 to 20 metres into the bush. His motorbike was smashed to pieces. Mr Smith sustained multiple and extensive injuries, from which he eventually died, despite resuscitation efforts.
Mr McLeod immediately stopped his motorbike. Once he realised something had happened, Mr Sutton did a U-turn and returned to assist.
Upon impact, the ute’s airbags deployed, and its windscreen smashed. Mr Langeweg was pushed forward, knocking his head on the roof. His hands were pushed off the steering wheel. The ute rolled down the hill, away from the collision. You told Mr Langeweg to keep driving, but he said he couldn’t see. You kept your hand on the steering wheel, guiding the car. He told you he was not going to keep driving, and was going to stop.
When the ute stopped outside a farm, about 500m north of the collision scene, you told Mr Langeweg to report his car stolen and leave the scene. He refused to do so. Concerned only for yourself, you ran off into the nearby paddocks, leaving your friend and your brother in the ute.
Mr Langeweg was extremely distressed and called his ex-partner, who lived nearby. She drove to the ute, picked up both Mr Langeweg and Dylan, and drove them back to the collision scene. Police and paramedics had arrived by this stage, and were attempting to resuscitate Mr Smith.
Mr Langeweg was arrested and taken into custody for interview; he was later released. Police also interviewed your brother.
On 22 May, you handed yourself in to police.
You were initially charged with murder, and have been in custody since then. As a result of negotiations with the prosecution, you pleaded guilty to manslaughter by unlawful and dangerous act, after the murder charge was dropped.
I turn to consider the seriousness of your offending. You deliberately took control of a moving vehicle, causing it to move to the wrong side of the road, into the path of an approaching motorbike. A reasonable person in your position, doing what you did, would have realised they were exposing the motorbike rider to an appreciable risk of serious injury. This was not an example of loss of control of a vehicle amounting to negligence.
You are not being punished for deliberately colliding the ute with Mr Smith; that would be far more serious offending. However, you are being punished for deliberately swerving the vehicle into Mr Smith’s path, on the wrong side of the road. The terrible risks involved in you doing that are self-evident, and led to a person’s death.
It is clear that you were angry and aggrieved at losing $50 to Mr Sutton, and not getting hold of the drugs you were so keen to buy. That caused you to instruct Mr Langeweg to follow the Camry, presumably to engage in some sort of confrontation with Mr Sutton when you caught up with him. You only called off the pursuit when it became apparent that you had lost the other group.
When you came upon the other group by chance, some minutes later, you acted immediately and impulsively. You grabbed the steering wheel with such force that the driver was unable to correct the vehicle’s course. The ute was a large, dangerous object, moving at almost 50 km per hour at the point of impact. Although you only held the wheel for a couple of seconds, given how close the approaching motorbike was, that was sufficient time to result in the fatal consequences which followed.
After you hit Mr Smith, you made no attempt to stop or assist him, or call for help. On the contrary, in a selfish, cowardly gesture, you ran away, leaving your friend and your brother to face the consequences of your actions.
You only handed yourself in two days later, after the police had interviewed witnesses and were looking for you.
I accept that your judgment may have been clouded by your lack of sleep, and ‘ice’ use, over previous days, but those are not mitigating factors.
Not only did you take Mr Smith’s life, your actions have also had a terrible effect on his family. Moving victim impact statements were provided by Mr Smith’s parents, his brother and sister-in-law.
Jake Smith was only 23 when he died. He was the middle of three sons of Leanne Davey and Jamie Smith. Although Jake’s parents had separated, he remained close to both of them. Their youngest son, Tyson, had been tragically killed in an accident some years earlier. Losing a second son and brother, at such a young age, has been absolutely devastating for Jake’s family.
They are grieving for him, and the senseless way in which he died, in various ways, ranging from anger to profound sadness and despair. Jake’s family loved him, and are struggling to imagine life without him. His brother, Trent, is devastated that he was unable to attend Jake’s funeral, to carry his coffin and help support his parents.
There is nothing this court can say or do that will bring back Jake Smith, or heal the grief and pain caused by these events. The sentence I am going to impose is not a reflection of the worth or value of Mr Smith’s life; rather it is a reflection of the large number of factors which judges are required by law to take into account, only one of which is the victim impact statements.
You were born in March 1989, and are now 32 years old.
You grew up, and have lived most of your life, in Werribee and Bacchus Marsh. You grew up in a loving and caring family home, with your parents and two brothers.
When you were about 10 or 11, you were diagnosed with ADHD, for which you took medication until you were about 16. You started mixing with anti-social peers, and had your first interaction with the criminal justice system when you were 12.
You started using cannabis and alcohol when you were around 16. Within a couple of years, you were a daily user of cannabis, and an occasional user of ice, MDMA and GHB. At the time of this offending, you were unemployed, and using cannabis and ice on a regular basis.
You started working at the family’s butcher shop after you left school at the age of 17. You later worked at a few other butcher’s shops. At various times during your twenties, you worked in plastering, concreting and demolition businesses, and were living independently.
You have been single for the past four years, and have no children.
Your parents separated about five years ago, but you have maintained a relationship with both of them, as well as with your older and younger brothers. Their continuing support will be important for your rehabilitation, upon your eventual release from custody.
You have a long history of adult criminal offending, beginning in 2008, when you were 19; much of it seems to be related to your life as a drug user. This is your most serious offending to date.
Your numerous driving offences include charges of dangerous and careless driving, as well as driving without a licence or whilst disqualified.
You also have multiple convictions for drug possession offences. You have regularly been given community based orders, and ordered to attend alcohol and drug counselling as part of those orders.
You have shown little regard for court orders, having been brought regularly before the courts for failing to comply with them, and for breaching bail.
For six years beginning in late 2011, you did not appear before the courts. However, it is not clear whether you were still using drugs during that period.
Your first sentence of imprisonment was imposed in December 2017, when you were sentenced to six months’ imprisonment for multiple offences, including recklessly causing injury and false imprisonment. A further sentence of imprisonment was imposed in October 2019, together with a 12 month community correction order. It is an aggravating feature of your current offending that you were still serving that community correction order when you killed Mr Smith.
You were assessed for the purposes of sentencing by Mr Jeffrey Cummins, a forensic psychologist. In his report, dated 20 April 2021, Mr Cummins described you as being moderately depressed and mildly anxious, arising out of the situation you are now in. He assessed you as presenting a moderate risk of reoffending, with your major risk factors including substance abuse, antisocial behaviour, and drug using relationships. Given the reasons for this offending, he recommended that you participate in a comprehensive anger management program, as well as substance abuse treatment.
In late November 2020, you first indicated your willingness to plead guilty to manslaughter. Negotiations took place over several months as to whether you would plead on the basis of manslaughter by criminal negligence, or by unlawful and dangerous act. On 11 February 2021, you were committed by way of straight hand-up brief. You formally pleaded guilty to manslaughter in this court on 5 March 2021. The prosecution accepts that this is an early plea.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your guilty plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Because of your plea, witnesses, victims and their family and friends, have been spared what would have been a very traumatic trial for all concerned.
In addition to any remorse which is implicit in your plea, you have shown remorse in your comments to family, friends, and to the psychologist, Mr Cummins. Your remorse is compounded by the fact that it was only after the event that you learned that the person you killed was someone you had been friends with at school.
That said, this is not the first time you have expressed great remorse, and resolved to address the psychological problems that contributed to your offending. In February 2018, psychologist Carla Ferrari prepared a report for sentencing purposes, for a large number of offences committed on different dates during 2017. She said you had acknowledged your need to engage in psychological intervention, to try to resolve various issues and learn how to better regulate your emotional state (especially your impulsive, reckless behaviour). However, there is no evidence to suggest you took any steps to follow that up. Nor does Mr Cummins’ report give particular confidence that you are now ready, willing and able to address your problems.
The fact that you managed to stay out of prison for a six year period in your twenties means that you do have some prospects of rehabilitation. However, your prospects are linked with you addressing your substance abuse and behavioural problems.
Balancing as best I am able the competing considerations laid down in the Sentencing Act1991, and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment of 9 years. I fix a period of 6 years as the period you must serve before you become eligible for parole.
Had you not pleaded guilty, I would have sentenced you to 11 years’ imprisonment, with a non-parole period of 8 years.
Further, I declare that the period to be reckoned as already served under this sentence is 378 days, not including today’s date. I direct that there be noted in the records of the court the fact that such a declaration was made and its details.
Because you were an unlicensed driver at the time of this offence, I will disqualify you from obtaining a driver’s licence or permit for a period of seven years from today’s date.[2]
[2]Sentencing Act 1991 s 89(1) and 89B.
I also make a finding that this offence was committed while you were under the influence of a drug, which contributed to your offence.[3]
[3]Sentencing Act 1991 s 89C(1).
I have already made the disposal order sought by the prosecution.
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