Director of Public Prosecutions v Ruscoe
[2024] VCC 264
•14 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01923
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON MARK RUSCOE |
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JUDGE: | Harper | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2024 | |
DATE OF SENTENCE: | 14 March 2024 | |
CASE MAY BE CITED AS: | DPP v Ruscoe | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 264 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Culpable driving; negligently causing serious injury; fail to render assistance
Legislation Cited: Sentencing Act 1991, Road Safety Act 1986
Cases Cited:Bugmy v The Queen [2013] 249 CLR 571, Hennessey v The King [2024] VSCA 2, Victorsen v The Queen [2020] VSCA 248 and DPP v Tate [2021] VCC 22.
Sentence: TES: 16 years 3 months imprisonment NPP: 10 years 6 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. J. Warren | Ms. A. Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr. A. Patton | Theo Magazis & Associates |
HER HONOUR:
1Jason Ruscoe, you have pleaded guilty to one charge of culpable driving causing the death of Timmy Rakei, one charge of negligently causing serious injury to Sean Kilmartin and 2 charges of failing to assist after a motor vehicle accident, one in relation to each victim. You have also pleaded guilty to one related summary offence of driving whilst disqualified.
2The maximum penalty for culpable driving is 20 years imprisonment. The maximum penalty for negligently causing serious injury is 10 years imprisonment and the maximum penalty for failing to render assistance after a motor vehicle accident is also 10 years imprisonment. The maximum penalty for driving whilst disqualified is 2 years imprisonment.
Circumstances of offending
3The circumstances of your offending were comprehensively outlined in the Amended Summary of Prosecution Opening for Plea, dated 22 February 2024. I will summarise that offending here.
4At 6.43am and again at 6.51am on Tuesday 9 November 2021, you were captured on CCTV driving a red Holden Commodore sedan while failing to maintain proper lane position on McCormicks Road, Carrum Downs.
5At around 6.55am, you collided with the driver’s side of a Mitsubishi Triton utility work vehicle belonging to Mr. John Kelty, parked in the southbound lane of McCormicks Road, which was displaying its left indicator and had flashing orange beacons on its roof.
6Your vehicle sustained significant damage to the front and rear passenger side in this collision and a steel tube became embedded in the passenger side of your vehicle. You did not stop.
7Shortly after this, you were seen by Tracey McCartney driving along McCormicks Road with your wheels over the white centre lane, driving into oncoming traffic. You swerved back into your own lane within only 10m of her oncoming vehicle.
8At approximately 7.15am, you were driving in the right-hand, eastbound lane of Hall Road, Carrum Downs.
9A maximum speed limit of 70km/h was normally applicable to that section of Hall Road, however at this time, the speed limit along the stretch of road leading up to the point of collision was reduced to 40km/h due to roadworks.
10Timmy Rakei and Shaun Kilmartin were employed by ALTUS Traffic Management as traffic controllers. They were rostered to work together performing traffic control duties on Hall Road.
11Mr. Rakei and Mr. Kilmartin had arrived at the site just after 6am and participated in a safety briefing. Their task on this day was to close the right-hand eastbound lane for digging of the roadway.
12Before they commenced putting signs out, Mr Rakei activated the warning lights on the flashboard on the back of the equipment ute to warn motorists that traffic control workers were in the area. They worked their way along the road towards the roadwork area, putting signage out to advise of the road works.
13The roadwork signs commenced 280m from the point of the collision with a pair of white ’40 ahead’ and yellow ‘road work ahead’ signs bearing orange flags on either side of the roadway.
14Further signage was placed at 210m, 140m and 70m from the point of the collision.
15After setting up the signage, Mr Rakei parked the ute in the right-hand lane of the carriageway and changed the flashboard on the back of the ute to a left arrow sign, to indicate to drivers that they were required to merge left. He and Mr. Kilmartin then commenced removing cones from the rear tray of the ute and placing the cones on the road to taper off the right-hand lane.
16Mr. Rakei moved from the side to the rear of the ute to dislodge some traffic cones while Mr. Kilmartin remained on the passenger side of the ute, towards the rear.
17You were travelling in the right-hand lane of the eastbound carriageway of Hall Road at high speed. You failed to heed any of the warning signs. Travelling at speed, your vehicle struck Mr. Rakei at the rear of the Hilux and in turn, Mr. Kilmartin.
18Mr. Rakei was crushed between the two vehicles and then projected forward by the force of the collision. He came to rest on the bitumen in the right-hand lane. He suffered fatal injuries and died at the scene.
19Mr. Kilmartin was thrown forward by the force of the impact, coming to rest in the left-hand lane. He sustained serious injuries including a broken leg as a result of the collision.
20The Hilux ute was projected forward approximately 17 metres and up onto the centre median strip and forced into a tree which impacted the front of the vehicle.
21Your Commodore continued east in the right-hand lane for approximately 40 metres, before coming to rest with the driver side wheels on the centre median strip. The front of the vehicle was extensively damaged, both the driver and passenger airbags were deployed and the vehicle was disabled.
22A collision reconstructionist estimates that 2.5 seconds before the impact you were travelling between 97 and 105km/h. You did apply the brake, but 0.5 seconds before the collision you were still travelling between 75 and 83km/h.
23You remained in your vehicle for several minutes following the collision. Witnesses observed you using your mobile phone during that time.
24You then exited your vehicle, still speaking on your mobile phone. You looked briefly behind you at the collision scene where Mr Rakei was clearly lying on the road but instead of going to his aid, you walked east along the median strip of Hall Road, away from the collision scene.
25You burnt your clothing later that day at Baxter Park in an effort to distance yourself from your offending.
26On 11 November 2021, at approximately 2:20pm, you were located at a commercial premises in Boundary Road, Carrum Downs, and arrested by police.
27I also note that at the time of the collision you were disqualified from driving a motor vehicle.
Victim Impact
28Timmy Rakei was a much-loved partner, father, friend and colleague. The profound impact of your offending was eloquently expressed in 4 victim impact statements which were read to the court.
29Ms. Tania Boyte, Mr. Rakei’s partner and mother of his daughter Leilani, read her statement to the court, which was accompanied by a number of photos of the family. In it she powerfully described the grief she and her daughter have experienced since the collision.
30Ms. Boyte told the court of learning of Mr. Rakei’s death, having to tell her daughter that her father wasn’t coming home and dealing with the public nature of his death and the unwanted attention it brought. Her daughter still sends Mr. Rakei text messages “asking if he’s okay and if he misses her and tells him that she misses and loves him.” Ms Boyte said “I just cry reading the messages, especially because I know she’s waiting for that message to appear as ‘seen’ and we know that will never happen.”
31Mr. Ben Marsonet, CEO of the Altus Group and Mr. Rakei’s employer of 14 years, spoke to the court on behalf of Mr. Rakei’s colleagues, managers and friends. He provided a real insight into who Mr. Rakei was, a generous, hardworking leader who was kind, compassionate and widely loved. Mr. Marsonet said “He is missed every day and the impact of his passing leaves a whole in the hearts of so many, I am just one of those individuals.”
32I further received a victim impact statement from Katrina Sheriff, a friend and colleague of Mr. Rakei. In it she described the depression she experienced after his death and the struggle of still working in the traffic industry.
33The final victim impact statement was from Mr. Sean Kilmartin, the victim of charges 2 and 4. He described the ongoing trauma of the collision and its aftermath, seeing Mr. Rakei dead on the road while being seriously injured himself. He was confronted with the frightening thought that he was going to die and not be able to see his children again.
34Mr. Kilmartin experiences ongoing effects from the incident and he panics when his children go near a road. He would like to work in a different industry but needs to provide for his family so he remains a traffic controller. Mr. Kilmartin will always be ‘the bloke that was in that accident,’ which brings unwanted attention to him.
35Timmy Rakei was clearly a much-loved man whose death has impacted many people. Nothing this court can say or do can in any way adequately address the loss felt by his family and friends. Mr. Kilmartin has also been forever impacted.
36I must of course be careful not to let the significant impact of your offending on Mr. Rakei’s loved ones and on Mr. Kilmartin overwhelm the sentencing exercise.
Gravity of the offending
37In the 30 minutes prior to the collision, you were driving in a manner that was dangerous and at times failed to maintain proper control of your vehicle.
38In relation to charges 1 and 2 you drove at excessive speed and displayed gross inattention, driving negligently in that you failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.
39In relation to charges 3 and 4, having looked behind your vehicle and seen Mr. Rakei lying on the road after being struck by your vehicle, you ought reasonably to have known that he had been killed or seriously injured.
40It was conceded by your counsel, Mr. Patton, that this was above mid-range offending. I consider it to fall within the high range. This was a grave example of culpable driving and indeed of the other offences to which you plead guilty. Your driving was protracted, irresponsible and appalling.
41You had ample warning that a serious collision was likely, having collided with Mr. Kelty’s vehicle and caused a pole to become embedded in the passenger door of your vehicle, and having swerved onto the wrong side of the road in front of Ms. McCartney’s vehicle.
42You then came upon the first of a number of repeated warning signs of ‘40 ahead’ and ‘workers ahead’ some 280m before the collision. You ignored these and the following warnings and drove through the traffic cones into the ute and the workers. Your conduct was grave and caused the death of Mr. Rakei and the serious injuries suffered by Mr. Kilmartin.
43Your offending was aggravated by you being unlicensed and also by your attempts to conceal your involvement by burning your clothing. Your flight from the scene further impeded police from taking blood samples from you.
Moral culpability
44Your moral culpability is high. You ignored a number of warning signs and travelled at a speed well above the limit applicable to that stretch of road.
45You have a number of driving prior convictions, you had only ten days prior been released on a community corrections order for driving of a similar, yet less grave nature and you had been involved in 2 serious traffic incidents in the 30 minutes preceding the collision.
46I take into account the nature and extent of the injuries inflicted on your victims, the number of people put at risk by your driving and the high speed at which you were travelling. I have also considered the nature of the driving, the length of the journey during which others were exposed to risk and the number of warnings you ignored. These factors all point to very high moral culpability indeed.
Plea of guilty
47You are entitled to a sentencing discount for your plea of guilty. Your plea has significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial and spared the witnesses the ordeal of giving evidence. In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.
48I accept you offered a plea to the charge of negligently causing serious injury pre committal and that should be taken as an early plea. I take this into account. While you indicated a willingness to plead to a lesser charge, I do not consider your plea to charge 1 to have been made at an early stage.
Remorse
49Beyond the acceptance of responsibility inherent in your plea of guilty, there is absolutely nothing before me to indicate remorse on your part. While you have not disputed that you were the driver involved in the collision, you proffer no explanation for your offending, no explanation of how or why it happened and there is no evidence of any insight into your conduct.
Personal circumstances
50You are currently 31 years of age.
51You were born in Melbourne and raised in Langwarrin by parents who separated when you were aged 10. Your father died of a heroin overdose when you were aged 19.
52You have an older brother, an older sister and a younger sister, each of whom has faced their own difficulties in life.
53You had a troubled childhood and recall memories of your parents constant arguing and your mother ejecting your father from the house because of his drug abuse. The police were sometimes involved.
54You were not a strong student at school and made friends with negative peers which impacted on your schooling. You were suspended from school numerous times and eventually left in year 10.
55You began drinking alcohol at the age of 12 and were intoxicated most weekends.
56You first used cannabis at the age of 14 and used daily from the age of 16 or 17. You stopped in your early twenties.
57From the age of 16 or 17, you began smoking methamphetamine on weekends and by adulthood, you were smoking and injecting daily.
58You have also used ecstasy, cocaine and medications such as Alprazolam on occasion. You have used opiates, mainly heroin, since the age of 20 after your father died, using it to “come down” from methamphetamines.
59In prison, you used Suboxone illicitly before commencing Buprenorphine injections.
60You have never been in rehabilitation or had counselling for substance use but have stated that you would consider this.
61You have in the past stated that your offending behaviour has been due to the effect of substance use. You give no such explanation in relation to the instant matter and accordingly I make no such finding.
62You have not worked in the past 7 years, however you have previously obtained work as concreter and in unskilled construction roles.
63You have been incarcerated for all but 52 weeks of the last 11 years. I note that during the times you have been in the community you lived a transient lifestyle and abused substances.
64You were previously in a relationship and have twin sons with whom you are still in contact.
65I received a psychiatric report from Dr. Siva Bala, dated 12 October 2022. It was not written for the purposes of this proceeding and raises matters which you do wish to be ventilated.
66I note you were diagnosed with oppositional defiance disorder as a child, antisocial personality disorder and conduct disorder as an adult and you have an additional diagnosis of substance abuse disorder.
67In custody you have engaged in the rehabilitative courses available to you on remand and have worked in the prison laundry. You receive visits from your family who remain supportive of you.
Sentencing principles and factors
68Mr. Ruscoe, with a driving record as horrific as yours, a tragedy of this magnitude was only a matter of time. Your leaving the scene after seeing Mr. Rakei lying lifeless on the road was cowardly and callous and bespeaks a breathtaking disregard for human life. It was shameful conduct that is difficult to comprehend.
69You were on a Community Corrections Order at the time of this incident, having been released from custody only 10 days prior for driving in a manner dangerous and recklessly endangering life. Your offending is aggravated by the fact you were on a court order at the time.
70Relevantly, you also have a number of other prior convictions for dangerous driving, failing to stop, driving unregistered vehicles and numerous convictions for drug and dishonesty offences. The offending for which you had just been released involved driving on the wrong side of the road at high speed. The unlicensed driving charge to which you have pleaded guilty is your 11th charge of this type.
71You are a recidivist offender with extensive criminal and driving convictions of increasing seriousness. By your driving you have now caused the death of Timmy Rakei, an innocent bystander who was in the wrong place at the wrong time.
72Taking the circumstances of your current offending together with your prior convictions, I consider your prospects of rehabilitation to be poor. I note a number of clean urine screens have been provided to the court, however you are seemingly undeterred by sentences of imprisonment, by the cancellation of your licence and by the prospect of harming others. Hopefully the consequences of this matter will resonate with you.
73There was a 2 month delay in service of the hand up brief and a protracted argument as to claims of privilege, however I do not consider the delay to have been significant or a factor bearing on this matter in any meaningful way.
74I do accept that you were in custody at the tail end of the pandemic and experienced more restrictive conditions than would usually be the case. I moderate your sentence accordingly.
75Culpable driving causing death is a category 2 offence, meaning I must impose a custodial order pursuant to s.5(2H) of the Sentencing Act 1991 unless an exception applies. There is no suggestion by your counsel that such an exception is engaged here.
76Charge 1 is also a standard sentence offence with a standard sentence of 8 years. The standard sentence for an offence is a sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness. I must take the standard sentence into account as one of the factors relevant to sentencing.
77This requirement is to be treated as a legislative guidepost having the same function as the maximum penalty. It does not affect the established instinctive synthesis to sentencing or require or permit two-stage sentencing. I consider the offending in charge 1 to fall well above the mid-range of seriousness for an offence of this type.
78The Court must only have regard to sentences imposed in cases where the standard sentence regime applies. I will return to this shortly.
79I have taken the standard sentence for culpable driving causing death into account as one of the factors to consider in my instinctive synthesis of all the relevant factors in your case.
80Pursuant to s.11A of the Sentencing Act 1991, the non-parole period I impose for a standard sentence offence must be at least 60% of the total effective sentence, unless the court considers that it is in the interests of justice not to do so.
81General deterrence and specific deterrence are of paramount importance. I must send a strong message to those in the community minded to act in the way you have done behind the wheel of a motor vehicle that such conduct is unacceptable and will result in stern punishment.
82I must also try, where previous sentences have failed, to deter you from acting in this way. The consequences of your offending are far reaching. Your victims and their families will continue to suffer, as no doubt will you during the lengthy period of imprisonment I must impose.
83I must, and I do, denounce your conduct and I consider just punishment to be a relevant consideration.
84The need for community protection is very real in a case such as this, in which an innocent bystander has lost his life and another has been seriously injured. Your driving placed numerous road users and workers at grave risk and it is for this reason that I give substantial weight to this sentencing consideration.
85It was conceded by Ms. Warren, for the prosecution, that the principles in Bugmy v The Queen [2013] 249 CLR 571 have general application in your case. I find that your exposure to drug abuse and violence in your childhood renders your moral culpability less than that of an offender whose formative years have not been so marred.
86Neither party provided me with ‘comparable cases,’ rather the prosecutor referred to the individual sentences routinely attracted by offences of this nature. I have considered a number of authorities, including Hennessey v The King [2024] VSCA 2, Victorsen v The Queen [2020] VSCA 248 and DPP v Tate [2021] VCC 22, however none combine the high level of culpability with such an appalling criminal history as seen here.
87I note you have served sentences totalling 204 days whilst on remand. I take this into account in terms of totality.
88I have not considered the conduct constituting charges 3 and 4 as aggravating charges 1 and 2, rather I consider that charges 3 and 4 occurred subsequent to charges 1 and 2 and I have sentenced accordingly.
89I accept that the same conduct gives rise to charges 1 and 2. Charges 3 and 4 also share a factual foundation. I recognise the principle of totality but also the need to acknowledge each victim of each offence.
Disposition
90On charge 1, culpable driving causing death, you are sentenced to 11 years 3 months imprisonment.
91On charge 2, negligently causing serious injury, you are sentenced to 4 years imprisonment.
92On charge 3, failing to assist after a motor vehicle accident, you are sentenced to 3 years imprisonment.
93On charge 4, failing to assist after a motor vehicle accident, you are sentenced to 3 years imprisonment.
94On the related summary offence of driving whilst disqualified, you are sentenced to 6 months imprisonment.
95Charge 1 will be the base sentence.
96I order that 2 years 6 months of the sentence on charge 2, 2 years of the sentence on charge 3 and 6 months of the sentence on charge 4 be served cumulatively on charge one and on each other.
97For the avoidance of doubt, the 6 month sentence on the related summary offence is to be served concurrently.
98That makes a total effective sentence of 16 years 3 months imprisonment.
99I direct that you serve a minimum non-parole period of 10 years 6 months imprisonment before being eligible for release on parole.
100I declare that pursuant to s.18 of the Sentencing Act 1991, you have served a total of 644 days by way of pre-sentence detention, excluding today.
101I direct that pursuant to s. 61(6)(b) of the Road Safety Act 1986, your licence is to be cancelled and disqualified for a period of 8 years. I consider this period to also satisfy the cancellation requirements pursuant to s.89 of the Sentencing Act 1991.
102Pursuant to s.6AAA of the Sentencing Act 1991, I direct that had you not pleaded guilty, I would have imposed a total effective sentence of 19 years 9 months with a minimum non-parole period of 14 years 6 months.
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