Director of Public Prosecutions v Varapodio

[2024] VCC 1240

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00679

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINCENT VARAPODIO

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Bendigo
DATE OF HEARING:	8 August 2024
DATE OF SENTENCE:	14 August 2024
CASE MAY BE CITED AS:	DPP v Varapodio
MEDIUM NEUTRAL CITATION:	[2024] VCC 1240

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Dangerous driving causing death.

Legislation Cited:      Crimes Act 1958 (Vic) s 319(1); Road Safety Act 1986 (Vic) s 55BA; Sentencing Act 1991 (Vic) ss 5(2H), 6AAA.

Cases Cited:DPP v Neethling [2009] VSCA 116; R v Whyte [2002] NSWCCA 343; 55 NSWLR 252; R v Verdins (2007) 16 VR 269; R v Musumeci [1997] (Unreported, New South Wales Court of Criminal Appeal, 30 October 1997); Stephens v The Queen (2016) 50 VR 740; Peers v The Queen (2021) 97 MVR 379; [2021] VSCA 264.

Sentence:                  Convicted and sentenced to two years and six months’ imprisonment; non-parole period of 18 months; licence disqualification for 24 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Plummer	Office of Public Prosecutions
For the Accused	Mr M. Habib	Kate Freshwater Lawyers

HER HONOUR:

Introduction

1On 22 September last year, Paul Hangan had lunch at the Kyabram Club. He was riding his Harley Davidson home when a driver coming the other way failed to see him and turned right into his path, killing him instantly.

Charges and maximum penalties

2Vincent Varapodio, you have pleaded guilty to one charge of dangerous driving causing death.[1] This charge carries a maximum penalty of 10 years’ imprisonment.

[1]Crimes Act 1958 (Vic) s 319(1).

Factual Summary

3On your plea a prosecution opening was tendered, and I briefly summarise parts of it here.

4Just before 3.00 pm on 22 September 2023, you finished your shift at a work site near Nanneella. You drove your Nissan Navara east on Webb Road.

5Paul Hangan was driving west on Webb Road on his Harley Davidson; he was going home after having lunch with a friend. He was 67.

6You approached the intersection of Webb Road and Winter Road, to turn right towards Winter Road. This point of Webb Road was a flat two-way, two-lane road running essentially east-west. Opposing directions of traffic are divided by a broken white line, and the outer edges of the road bordered by white fog lines. This point of Webb Road was slightly curved towards the north, but the line of sight approaching the intersection to Winter Road was unhindered.

7The speed limit was 100 kilometres an hour.

8A sign warning of a T-intersection ahead was posted 237 metres west of the intersection with Winter Road.

9The road you were turning onto, Winter Road, was also a two-way, two-lane road running northwest-southeast, joining Webb Road from a skewed T-intersection.

10You made a right-hand turn onto Winter Road, cutting the corner as you did so.

11You turned into the path of Mr Hangan’s motorbike. Your car struck him in the middle of the westbound lane of Webb Road.

12The front and left side of the Harley Davidson took the primary impact.  Mr Hangan was thrown from the motorbike, he struck the rear passenger side of your car and came to rest on the eastbound lane of Webb Road.

13He died at the scene.

14Your vehicle rotated 180 degrees, and came to a stop facing northwest on Winter Road.

15You were uninjured; you extracted yourself from your car and called your boss, Jamie Thomson. You told him 'I’ve had an accident; I think that I’ve killed a guy.' When Mr Thomson arrived on the scene, you told Mr Thomson 'I didn’t see him, I just didn’t see him.'

16Within minutes, Jim Hornsby came across the collision on Webb Road. He parked his truck across the road to block any traffic and asked you if you were okay. You also told Mr Hornsby that you 'didn’t see him.' Mr Hornsby called emergency services.

17At 3:00 pm paramedics declared Mr Hangan to be deceased.

18You were also assessed by paramedics at the scene; you were taken to Echuca Hospital for observation and treatment for shock.  

19Police accompanied you to the hospital and you consented to providing a sample of your blood.[2] You were discharged a short time later.

[2]Road Safety Act 1986 (Vic) s 55BA.

Arrest and investigation

20Later that night, you were arrested and taken to Echuca police station where you exercised your right to silence.

21The results from your blood sample indicated that you did not have any alcohol or illicit substances in your system at the time of the accident; post-mortem blood samples taken from Mr Hangan indicated the same results for him.

22Subsequent investigations confirmed that at the time of the accident you held a current, multi-combination driver’s licence, and Mr Hangan held a current Victorian rider licence. The Nissan and the Harley Davidson were both registered, yours was a work car.    

23Police from the Major Collision Reconstruction and Investigation Unit inspected the Nissan and the Harley Davidson and found that neither of them revealed 'any faults, failures or conditions that could have caused or contributed to the collision'.

24The collision scene was analysed.

25This is an excerpt from that analysis:

a) 'The Nissan commenced the right turn from eastbound Webb Road towards the southeast bound Winter Road at a low to moderate speed immediately before its collision with the Harley Davidson.'

b) 'The motorcycle collided with the Nissan at approximately 70 kilometres per hour.'

c) 'The Nissan commenced the right turn onto Winter Road pre-maturely.'

d) 'There was no evidence at the scene to suggest that either vehicle was travelling at an excessive speed as they approached the intersection.'

26At your plea the prosecution submitted that your driving on 22 September 2023 was dangerous because you:

·        failed to keep a proper lookout while having a clear and uninterrupted view of the road;

·        you failed to observe, and failed to give way to, the oncoming motorcycle (which had its headlight operating); and

·        that you cut the corner onto the right-hand turn, directly into the path of the oncoming motorcycle. 

27This gives rise to the only charge on the indictment, Charge 1, dangerous driving causing death.

28You had only been driving for five to seven minutes before the collision. There is no suggestion that speed, fatigue or mobile phone use played any part in your driving.

Prior criminal history

29You have a brief but somewhat relevant criminal history. In October 2010, you were given a suspended sentence for the offences of driving while suspended and failing to give way.  I will return to the circumstances of that case later in these reasons.

Nature and gravity of offending

30It was conceded by your counsel, sensibly, that this was not, in objective terms, an example of the lowest form of offence gravity; this was not a pure case of 'momentary inattention'.  You had time to observe the motorbike coming from the other direction; it had its headlight on. Your failure was more than momentary.

31You said immediately afterwards: 'I didn’t see him, I just didn’t see him.' I accept that that is right. You did not see him, but you ought to have.

32You cut the corner which put you on the wrong side of the adjoining road; turning at the appropriate point might have made for a different result in terms of you registering Mr Hangan’s approach.

33That said, there was no speeding, or any other form of aggravation present.

34I must also give close attention to the degree of moral culpability of your driving.[3] It was conceded on your plea that your moral culpability is informed by your driving history.  

[3]DPP v Neethling [2009] VSCA 116 [33] quoting R v Whyte [2002] NSWCCA 343; 55 NSWLR 252, 286 [205].

35Your driving history is poor, and reflects upon, and elevates, your moral culpability for this offence.

36First, you have two very old court appearances (1988 and 1989) for driving while your licence is suspended and driving at excessive speed. I set those aside. But on 26 October 2010, you were dealt with in the Shepparton Magistrates’ Court for driving while your licence was suspended and failing to give way at an intersection.  I was told on your plea that the consequence of your driving on that occasion was that the cyclist you struck while failing to give way lost her life. I am conscious of the need not to treat that event as a prior conviction for dangerous driving causing death, because that was not the charge that was prosecuted.

37Initially, it was submitted that yours was 'not a history that showed regular disregard for road safety.' This caused the prosecution to tender your VicRoads demerit point record.   

38It is a record of your poor regard for the road rules. Between 1995 and 2023, it records 19 separate occasions of your driving at an excessive speed, and one occasion of ‘improper overtaking’.

39Finally, when you were on bail for this offending you were detected by police driving at an excessive speed.  This provoked an application for a revocation of your bail, and that was refused.

40Obviously, the post offence speeding is not to be treated as a prior conviction by me.

41However, your driving record from before your offending in this case informs the sentencing process in these ways:

·        It elevates the moral culpability of your failure to keep a proper lookout and failure to see the motorcyclist coming in the other direction in this case;

·        It elevates the need for specific deterrence in this sentence; and

·        It elevates the need for the protection of the community in this sentence.

42Your driving record after this offending also informs the need for specific deterrence, community protection and my assessment of your prospects of rehabilitation.

43Mr Habib, who appeared for you on your plea, submitted that speed was not a feature of the objective circumstances in this case, so that feature reduces the impact of those demerit point matters, which were records essentially of driving at excessive speed.

44However your driving history is characterised, it sheds some light on the person who was driving east on Webb Road that day.

45I find the objective gravity of your offending to be on the low to mid-point on a scale of similar offending. I find your moral culpability sits somewhat above that, by reference to your history. I am also conscious of the need not to be overwhelmed by that history and the need to avoid re-punishing you for matters past.

Impact on victims

46Your victim, Paul Hangan, was spoken of with great warmth and affection in the victim impact statement read by his friend, Ms Simone Ricco.

47Listening to Ms Ricco’s statement, I had a strong image of Mr Hangan as a man and as a friend. He lived in the Rochester caravan park where Ms Ricco had a unit too. He was kind, gentle, worked hard in his day, and was a non-judgmental listener. He was thoughtful: the kind of person who would put your heating on if he knew you were on your way, and ask for a text when you got home safely.   Ms Ricco describes herself as being a better person for having known him, and describes too how painful the loss of her dear friend has been for her.  He lost his life too early and so pointlessly.  

48I take into account Mr Hangan’s loss of his life, and Ms Ricco’s loss too in fixing this sentence.

Personal circumstances

49You are 55 years old; at the time of your offending you were 54.

50You have been married to Pauline for 30 years.  You have two adult children, Carly and Mason. Your family, friends and work colleagues have remained supportive of you throughout these proceedings.

51You were raised in Mooroopna in Victoria by your mother and father. Your mother is 77 and suffers from diabetes.  Your father passed away in 2014. You are the middle child; you have an elder brother and a younger brother.

52On your plea your counsel submitted that your childhood was not marred by substance abuse or family violence. Growing up, your parents ran a milk bar and worked in orchards. However, relationships within your family were complicated by the revelation of a personal matter in relation to your father.  As a consequence, you had no contact with your father for 18 years prior to his death.

53You attended secondary school at North Shepparton College until Year 10, before pursuing a panel beating apprenticeship. You began working for an earthmoving company, and then purchased your own excavator, which allowed you to subcontract to Goulburn Murray Water, and for local families. You have run this business for the entirety of your adult life.

54I note that you have no history of drug or alcohol abuse. Your health is somewhat complicated, however, by your Type II diabetes, cardiomyopathy and hypercholesterolemia, for which you are medicated.

Psychological evidence on plea

55A report authored by Ms Rebecca Fakhri, psychologist, was tendered.

56Ms Fakhri diagnosed you with a major depressive disorder and a post-traumatic stress condition. In her opinion, these conditions will make imprisonment significantly more onerous for you than a person without those conditions. I put aside the psychologist’s opinion that certain Verdins[4] limbs are engaged; I find there is some imprecision in the opinion as to the source and manifestations of the symptoms of your distress. I do accept, though, that you experience severe anxiety and have been, and are, extremely distressed, and that the result of these symptoms will increase the burden of your imprisonment. I set aside the need for formal diagnosis to mitigate your sentence on the basis of these matters.

[4]R v Verdins (2007) 16 VR 269.

57I do not accept that there is cogent evidence that your condition will worsen as the result of your incarceration. 

Matters in mitigation

58You entered a plea of guilty at an early stage and that is a very important feature in mitigation of your sentence. No witnesses were cross-examined; it indicates your early acceptance of responsibility for what you did. In fact, from the first calls to your employer, you stated very plainly what it was that you had done and you never shied away from it.

59Moreover, you entered pleas of guilty in the full knowledge that the law would operate in only one way, and that once you were sentenced you would be incarcerated. You unequivocally submitted to that process. You lived under that shadow for some time, and I take that into account.

60Your wife Pauline wrote of how much she and the rest of your family rely on you for support and stability, and for financial and practical matters. They will struggle without you.  This cannot be taken into account in mitigation per se, according to authority, and I will return to this in a moment.   

61At 55 years old this is your first time in gaol;  I have no doubt that you will find that environment very distressing, and the knowledge of your family’s difficulties while you serve your sentence will amplify that distress, and cause you very considerable anguish. I take that into account.

62A letter from your treating doctor confirms that you suffer from a range of health conditions.  They are being successfully managed with medication at the moment, but will make you slightly more vulnerable in the harsh prison environment.

Remorse

63It is difficult to square completely the accounts of your deep remorse with your driving history and of your conduct of yourself on bail. I accept that you have expressed profound remorse to others and display all, or almost all, the marks of someone who blames himself utterly. It also appears that you have not always been able to connect that remorse with your own conduct, specifically with your driving conduct.  

64I accept you are remorseful, profoundly so, for what you did. The character references all speak to those feelings as observed by family and by colleagues.  And I also find in order for you to rehabilitate you need to forge that remorse into more responsible driving. I am confident that you can do that.

Prospects of rehabilitation

65You were able to present in Court a range of powerful character references from colleagues who are also friends. Their letters attest to their affection for you, their efforts to help you, and their determination to 'stand by you' as mates to get you and your family through this part of your life.

66I take your very good character into account; it is also clear, however, that courts are required to tread warily in showing leniency for good character in cases such as this one.[5] I will not allow those matters to distract me from the other roles for this sentence.

[5]DPP v Neethling (n 3) [28].

67I am confident that the experience of custody and this sentence, along with your strong work ethic and the loyalty and affection of your family and friends, all combine to give you excellent prospects for your rehabilitation.

Sentencing purposes

68It is said that the real substance of dangerous driving causing death is not just the dangerous driving, it is the dangerous driving in association with the taking of a human life.[6]

[6]Ibid quoting R v Musumeci [1997] (Unreported, Hunt CJ at CL, McInerney and Hulme JJ, New South Wales Court of Criminal Appeal, 30 October 1997) 4-5.

69General deterrence must be given considerable weight in sentencing for dangerous driving; this sentence should resonate through the community and cause people to drive more consciously of the risks for themselves and for others.

70You must also be punished for what you did. I have already said that there is some role for specific deterrence in your sentence. 

Statutory considerations

1The cases of Stephens v The Queen and Peers v The Queen,[7] are authorities for the proposition that, ordinarily, a prison sentence will be imposed for the offence of dangerous driving causing death.

[7](2016) 50 VR 740 (‘Stephens’); (2021) 97 MVR 379; [2021] VSCA 264 (‘Peers’).

2Now, however, this principle is given expression in the legislation: dangerous driving causing death is a Category 2 offence, and pursuant to s 5(2H) of the Sentencing Act 1991[8] this Court has to impose a sentence of imprisonment, and not one in combination with a community corrections order. No submission was made that your case fell into any of the very narrow exceptions to the operation of that rule.

[8](Vic) (‘Sentencing Act’).

3It was conceded that a head sentence with a non-parole period is the only sentence appropriate in the circumstances.

Sentencing practices

4I am obliged to sentence you in the context of current sentencing practice for dangerous driving causing death. I was given a table of comparable cases and I have considered them. Several of them, though, involve sentences that are no longer legally available to me. I have considered a range of sentences, no case is quite like yours, but I sentence you in that landscape.  

Licence

5I will order the cancellation of your licence, slightly in excess of the minimum of 18 months. Your licence is cancelled for 24 months from today.

Disposition

6Vincent Varapodio, on Charge 1, dangerous driving causing death, you are convicted and sentenced to two years and six months' imprisonment.

7I direct that you serve a minimum period of 18 months before becoming eligible for parole.

Pre-sentence detention

8I declare that you have already served six days pursuant to this sentence.

Section 6AAA

9Further, pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty but been found guilty after a trial, I would have imposed a head sentence of three years and eight months with a non-parole period of two years and nine months.

10Mr Plummer, have I missed any orders.

11MR PLUMMER:  No, Your Honour. 

12HER HONOUR:  I return now to the applications from the media.  My inclination is to release the prosecution opening and the indictment.  I have summarised parts of the victim impact statement in a way that I think is sufficient for fair and accurate reporting and the same applies to the defence submissions.  Does anyone seek to be heard on the proposition that I release the indictment and the prosecution opening?

13MR PLUMMER:  No, Your Honour.

14HER HONOUR:  Mr Habib, do you seek to be heard?

15MR HABIB:  No, Your Honour.

16HER HONOUR:  All right.  Counsel, thank you for your assistance.  That completes this case.

17MR HABIB:  As the court please.

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