Director of Public Prosecutions v Wangman; Director of Public Prosecutions v Russell
[2024] VCC 58
•6 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-21-01912
CR-21-01913
Indictment No. C2014006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIAN WANGMAN |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| TYSON RUSSELL |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October, 28 November 2023 | |
DATE OF SENTENCE: | 6 February 2024 | |
CASE MAY BE CITED AS: | DPP v Wangman; DPP v Russell | |
MEDIUM NEUTRAL CITATION: | [2024] VCC | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Category 2 Offence Sentencing Act 1991 (Vic)- no exception under s5(2H)(a)-(e)
Legislation Cited: Road Safety Road Rules 2017; Sentencing Act 1991
Cases Cited:Worboyes v R [2021] VSCA 169; the Director of Public Prosecutions (DP)P) v Currie; DPP v Daniels (a pseudonym) (2021) 65 VR 61; Spangol v R (2016) 55 VR 350; R v Franklin [2009] VSCA 77; Harrison v R; Rigogiannis v R (2015) 49 VR 619; McGrath v R [2018] VSCA 134; Director of Public Prosecutions v Gany (2006) 163 A Crim R 322; Brown v R (2019) 59 VR 462; DPP v Drake [2019] VSCA 292
Sentence: Wangman – total effective sentence of 7 years 9 months imprisonment with non-parole period of 5 years 2 months imprisonment; 6AAA declaration – 9 years 4 months imprisonment; 162 days pre-sentence detention reckoned as served.
Russell – total effective sentence of 6 years 10 months imprisonment with non-parole period of 4 years 6 months imprisonment;465 days pre-sentence detention reckoned as served.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | Office of Public Prosecutions |
| For Damian Wangman | Mr A. Patton | Sarah Pratt & Associates |
| For Tyson Russell | Ms M. Brown | Hannebery Law |
HER HONOUR:
Introduction
1Damian Wangman and Tyson Kenneth Russell, you have each pleaded guilty to one charge of culpable driving causing death, which carries a maximum penalty of 20 years’ imprisonment.
2Mr Russell, a related summary charge was uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to that charge, namely, failing to provide name and address after a motor vehicle accident, which carries a maximum penalty of 80 penalty units or eight months’ imprisonment.
3The circumstances in which you came to commit those offences are set out in the summary of prosecution opening for plea dated 8 December 2023 (Exhibit 'A'). The prosecution also relied upon:
(a) Dashcam footage (Exhibit 'B').
(b) Map of roadway (Exhibit 'C').
(c) Victim impact statement of Theressa Nero, dated 5 October 2023 (Exhibit 'D').
(d) Victim impact statement of Lyn Awty, dated 5 October 2023 (Exhibit 'E').
4And I will now receive and mark into evidence submissions for plea re Wangman dated 15 November 2023 as Exhibit F.
5In addition to matters developed in oral argument, Damian Wangman, your counsel relied on:
· Outline of plea submissions dated 4 October 2023 with annexed sentence indication submissions (Exhibit 1);
· Report of Dr Aaron Cunningham dated 25 July 2023 (Exhibit 2);
· Bundle of character references (Exhibit 3);
· Case plans for Lachlan Wangman and Isabella Wangman (Exhibit 4).
· Report of Dr Shane Richardson dated 9 February 2023 (Exhibit 5).
· KFC Norlane CCTV footage which I will now receive and mark as Exhibit 11.
· Supplementary plea submissions dated 21 November 2023 – I will now receive and mark as Exhibit 12.
· Letter from Amanda Mainey – receive and mark as Exhibit 13.
· Letter from Chantelle McKendry and Erin Cassar, Lara Primary School, dated 16 November 2023 (Exhibit 14).
· Email from Mr David Simpson, assistant principal, Bannockburn P-12 College dated 21 November 2023 (Exhibit 15).
· Shake Counselling support letter (Exhibit 16).
· Letter from Natisha McKernan (Exhibit 17).
6In addition to the matters developed in oral argument, Mr Russell, your counsel relied on:
· Outline of Plea Submissions dated 4 October 2023 (Exhibit 6).
· Psychological Report of Professor Jennie Ponsford dated 28 May 2008 (Exhibit 7).
· Psychological Report of Marlese Bovenkerk, forensic psychologist dated 2 October 2023 (Exhibit 8).
· Reports of Dr Samantha Kelly dated 12 August 2007 and 12 April 2007, including Southern Cross Medical Centre notes and neurological report of John Waterson dated 28 November 2006 (Exhibit 9).
· Bundle of references (Exhibit 10).
· Record of interview which I will now receive and mark as Exhibit 18.
7I have had careful regard to all exhibited documents and have viewed the tendered videos, as well as having regard to the matters addressed in the days of the oral hearing of the plea in mitigation of penalty.
Circumstances of your offending
8At about 4.00pm on Wednesday 14 October 2020, you, Mr Wangman, met up with your uncle, Craig Wangman, at the St Helens Boat Ramp in North Geelong. You consumed a can of Canadian Club while you were there.
9You left the St Helens Boat Ramp as the driver and sole occupant of a 2001 orange Holden Commodore SS VX sedan, and you proceeded west along Swinburne Street before stopping in traffic at a red light at the intersection of Swinburne Street and Melbourne Road at approximately 5.19 pm. Your uncle Craig was travelling directly behind you.
10A witness, Tony Coles, was stationary in his vehicle, two cars in front of you. Mr Coles’ vehicle was fitted with a front and rear dashcam which were both operating and recording at the time.
11As the traffic lights changed to green, you, Mr Wangman, made a right-hand turn and entered Melbourne Road. After entering the right lane you accelerated heavily causing the rear tyres to spin and lose traction with the bitumen road surface. Your uncle Craig, who had followed you onto Melbourne Road, later stated: “Damian turned hard into the right lane … he gave it a bit of acceleration, a bit of a squirt.”
12Another witness, Hamish Moore, who was stopped in his vehicle at a red light in Melbourne Road, later stated: “I saw an orange VW Holden sedan with a hood scoop turn right from Mackey Street in front of me. The driver 'gassed' it a bit, doing a burnout and 'kicking out' the back of the car out to the left.”
13Another witness, Tegan Johnstone, who was also stopped in her vehicle at the same red light in Melbourne Road, stated: “as I was sitting there I saw a bronzy, orange coloured car drive from the side street of the intersection …. The car then did a burnout in the intersection as it turned right into the main road I was on. The engine was really loud, as were the tyres that were spinning, and this caused a lot of smoke to come from the tyres.”
14Your burnout was captured on the rear dashcam fitted to Mr Coles’ vehicle.
15Following the burnout you continued north in the right lane of Melbourne Road, heading towards Norlane.
16Ahead of you, Mr Wangman, you, Mr Russell, at the time the sole occupant of a 2016 silver Holden Commodore SS VF Series 2 station wagon, entered Melbourne Road from the service road at Collopy Street and proceeded north in the left lane in the station wagon.
17At the same time, you, Mr Wangman, accelerated heavily past Mr Coles’ vehicle. As you, Mr Wangman, drew level with the station wagon, you braked momentarily before revving the engine. The driver’s side front window of the station wagon and the passenger side front window of the sedan were both fully down. The two of you knew each other as friends. A street race ensued with you both travelling at high speeds north along Melbourne Road at Norlane.
18Craig Wangman, who was still travelling behind you, Mr Wangman, on Melbourne Road, stated: “I saw a bit of smoke from Damian’s car accelerating, he was pumping the accelerator, making the car go faster. He was giving it a tap on the accelerator a few times … before it goes up the hill.”
19Almost immediately, you, Mr Wangman, accelerated heavily again, causing the engine and exhaust to roar. You, Mr Russell, responded immediately, and also accelerated heavily to keep up with you, Mr Wangman, as you both proceeded up the incline of Melbourne Road.
20Mr Coles later stated: “I observed both vehicles accelerate together north on Melbourne Road over about 200 metres. It appeared the gold Commodore backed off a bit but the silver Commodore just kept going. I was doing 80 kilometres per hour and both were easily pulling away from me.”
21Mr Moore stated: “As the road straightened out the VX was travelling in the middle lane and it got to the bottom of the hill. The driver of the VX then 'gassed' it, the car was loud and he 'kicked it' hard. I would say he was going over a hundred kilometres an hour. He was pulling away from me really fast.”
22The two of you passed witness David Keck. Mr Keck later stated: “I saw through my left window and then my windscreen two vehicles absolutely fly past me. It was a combination of hearing them and seeing them fly past. It happened so quick I thought, 'Jesus Christ'. As they went past me, I felt that the station wagon was just in front of the orange sedan, it all happened so fast.”
23Witness Roger Roba, who was working security in the Gatehouse of the Ford factory, heard the vehicles approaching. He stated: “I heard the loud noise and the roar of car engines which was different to a normal engine noise in that it was so loud, it was a real accelerating and grunting V8 sound. I could hear that it was two cars, it sounded like one was trying to outdo the other one and they were speeding.”
24At 5.21 pm, whilst you were both travelling at speed, you both approached the top of a slight incline on Melbourne Road.
25At the intersection of Surrey Street your victim, Maxwell Awty, then aged 78 years of age, turned left from Surrey Road into Melbourne Road into your path, Mr Wangman.
26Almost immediately, the front of your sedan, Mr Wangman, impacted severely with the front driver’s side door of Mr Awty’s Ford, causing the Ford to spin several times before it came to rest further north along Melbourne Road.
27You, Mr Wangman, continued past the Ford and came to rest facing west on the western side of the nature strip of Melbourne Road and, you, Mr Russell, slowed and turned off post-collision. As a result of the collision, Mr Awty received life-threatening injuries and he was conveyed by air ambulance to the Royal Melbourne Hospital. His condition deteriorated before he passed away on Thursday 22 October 2020. This is the offending referable to each of your charges of culpable driving causing death.
28You, Mr Wangman, were arrested at the scene of the collision before you were conveyed to hospital for treatment.
29You, Mr Russell, left the collision scene without providing your details to police. Your employer recognised the station wagon that you had been driving in a media release on 15 October 2020 and police were notified and you were arrested on 16 October 2020.
30As a result of the collision your sedan, Mr Wangman, sustained extensive damage to the front. Senior Constable Brett Gardner from the Victoria Police Mechanical Inspection Unit inspected the sedan after the collision. No mechanical fault was identified that would have caused or contributed to this collision.
31Senior Constable Gardner observed that:
“The vehicle was fitted with an eight-cylinder engine, coupled to an automatic transmission. The engine was fitted with a non-original supercharger and air intake system…The fitment of this type of component …is to increase the power output of the engine above the manufacturer’s specifications…The modifications would allow the vehicle to accelerate and increase its speed faster than a standard derivative of the same vehicle.”
32The station wagon that you had been driving, Mr Russell, was registered to a Paul Loughnan, the proprietor of Loughnan Holdings, where you had been employed as a workshop manager for six years. This station wagon was fitted with an 8-cylinder engine at the time of the collision. Fortunately, the wagon sustained no damage as of course it had not been physically involved in the collision.
33Melbourne Road, Norlane, at the location of the collision, is a two-way bitumen road with four lanes for northbound traffic, three lanes for southbound traffic, and as we are all aware, is the major arterial road between Melbourne and Geelong. The road surface was in good condition at the time of the incident. Between the intersections of Collopy Street and the Boulevarde the opposing lanes were divided by a raised grass and treed median strip. The road ran in a general north-to-south direction.
34The outer edges of the road are joined formed concrete gutters. On both east and west sides of the road there were grass nature strips and footpaths that ran parallel to the road. At this location Melbourne Road is a straight road and has a signed speed limit of 80 kilometres per hour.
35The road was surrounded by commercial and retail businesses on the western side and the former Ford factory on the eastern side.
36At the time of the collision the road was dry, traffic was light, the weather was fine and visibility was good.
Police attendance, investigation and interviews
37Constables Jake Andrews and Dale Kellas were at a nearby reserve called Seagull Paddock on the western side of Melbourne Road on an unrelated matter. Constable Andrews later told police that whilst they were there, they heard very loud engine and exhaust noises and he recognised the exhaust noise as a V8. He observed at the top of the hill past McDonalds, first, a silver VE Commodore wagon, then an orange VX Commodore sedan, which appeared to be drag racing. Constable Kellas also heard a loud noise and observed the sedan driving north at a fast rate of speed past McDonalds.
38As a result of their proximity to the scene they attended the collision immediately. Constable Andrews went to the aid of the victim who was trapped in the driver’s seat of the Ford. He attended to Mr Awty, whom he described as being “in a bad way” with blood running down his face, and as he was struggling to breathe, Constable Andrews removed his dentures.
39Other emergency services arrived and freed the victim from the Ford.
40Constable Kellas activated his body worn camera and spoke to you, Mr Wangman, who was in the vicinity of the sedan showing signs of damage, and you confirmed that you were the driver of that car. You stated: “…yeah I’ve just come down here, I know - I was driving like an idiot…Oh, I was with me mate and he’s raced me…And I’ve put a boot into it, he put a boot into it and then I’ve come out and then that car’s come miles out and then – yeah, it was just too late.” Craig Wangman heard you tell police: “I’m in the wrong.”
41You, Mr Wangman, were then conveyed to the Geelong Hospital by ambulance for treatment and were placed under arrest.
42You, Mr Russell, were captured on Constable Kellas’ body worn camera standing near you, Mr Wangman, whilst Constable Kellas spoke to Mr Wangman. A short time later, you, Mr Russell, left the immediate scene and were seen entering the KFC store purchasing two bottles of Mountain Dew then walking out and returning to the collision scene where you spoke with you, Mr Wangman, and with police members.
43You later called prosecution witness, Nathan Robertson, and told him that you saw the accident, you stopped, then went home. As I have mentioned, you left the scene without providing any of your details to police and this is the subject matter of your summary charge of failing to provide name and address after accident.
44You again called Mr Robertson and you told him that you had hidden the car and when he asked why you would do something like that you changed and said you would pull it back out.
45You, Mr Russell, called your employer, Paul Loughnan, who later told police: “I received a phone call from an employee, Tyson … [Tyson] said 'I saw my mate in there … he gave it a bootful or gutfull … an old guy pulled out of KFC and his mate cleaned him up.' I said, 'were you involved in the accident?' He said 'no'. I said, 'why are you ringing me?' He said, 'I just wanted to let you know because it’s your car'.”
46The following day Mr Loughnan saw a news feed regarding the collision and became aware that the police were looking for a late model silver wagon seen drag racing and leaving the scene of an accident and he went and spoke to you and confronted you, saying: 'I need to speak to the police, and you need to as well.' When he asked you if you were speeding or drag racing you adamantly denied it.
47At approximately 7.40 pm on the day of the incident, investigators from the Major Collision Investigation Unit arrived at the collision scene and commenced an investigation. The scene was filmed, photographed, measured and scanned. A CCTV canvass was conducted in the vicinity of the collision and footage of the collision was obtained from an internal camera at KFC on the corner of Melbourne Road and Surrey Street and further CCTV was obtained of the wagon leaving the collision scene from a camera at Norlane Tyres at 21 Baldwin Avenue, Norlane. Mr Coles later gave police the SD card from the dashcam.
48On Thursday 15 October 2020, you, Mr Wangman, were released from hospital and conveyed to the Geelong police station for interview. You admitted buying the sedan “like that” with a supercharger and on the relevant day you “came out onto the highway and give it a bit.”
49After being shown a video excerpt of the wagon and the sedan from Mr Coles’ dashcam, you, Mr Wangman, made the following comments:
“'I was already in front of him, so I’ve just put the boot into it.
That’s sort of what I said, I was givin it a boot up the hill.
Sort of the car it was going, then I’ve sort of revved it a bit and we sort of both took off and had a little race really, which shouldn’t have happened.”
50On 15 October 2020 as a result of the information provided by Mr Loughnan, your employer, Mr Russell, police attended at Mr Loughnan’s work premises and the wagon was located and photographed.
51On Friday 16 October 2020, you, Mr Russell, attended the Waurn Ponds police station and at 8.26 pm you were interviewed by police. During the interview you made several admissions:
· When asked about the station wagon you were driving you stated: “It’s a Commodore SS wagon…6.2 litre.”
· When asked about your observations and actions whilst driving you stated: “I saw the orange car which is a friend of mine, Damian. He knows my car and he’s sort of seen me…he gave it a bit of a stab going up to McDonalds… and then the collision’s occurred between Damian and the older gentleman.”
· After being shown a video excerpt of the wagon and the sedan from Coles dashcam you agreed that your driving was careless and dangerous and admitted that your actions were “stupid, poor, shit-house and absolutely terrible.” When asked if you thought your driving contributed to the collision, you stated: “possibly, you know, yeah possibly.”
· When asked if you spoke with a police member at the scene after the collision you stated: “I stood around at the scene there for a while, … and I said, 'do I need to be here?' and he said 'no', and I jumped in the car and left.”
· When asked if at any stage you discussed with the police member at the scene that you witnessed the collision you stated: “No, I didn’t. Like I said I was pretty rattled from the events.”
· When further asked about your involvement in the collision and if you had given your details to police, you stated: “No I didn’t. It didn’t trigger to me until I got home.”
52Detective Senior Constable Melanie MacFarlane, a collision reconstructionist attached to the Victoria Police Reconstruction Unit, attended the scene at about 7.15 pm on the day of the collision and she concluded that your vehicle, Mr Wangman, was travelling north on the Princes Highway, Norlane, at between 130 to 139 kilometres per hour when it collided with Mr Awty’s Ford Focus, which was then travelling east across the Princes Highway from Surrey Street at between 23 to 25 kilometres per hour.
Effect on the victim
53As a result of your offending, you both killed Maxwell Awty.
54I received victim impact statements in this case from Mr Awty’s wife, Lyn Awty, and his daughter, Theressa Nero. Each author has spoken of the profound loss and grief that you have caused them. It is difficult to do justice to the way in which that loss is articulated without reading directly from the statements themselves and therefore that is what I intend to do.
55Lyn Awty, Mr Awty’s wife, told me:
“The night of the accident my husband decided to go out and get us a treat since we had been in lockdown for so long.
This life changing event was when Maxi left at 5 pm and told me I would be back in 20 min as the take-away outlets were only around the corner. By 6 pm I knew something had happened and by 7 pm I was still waiting for his return and praying that he was alright until I received a knock at the door.
I looked at the clock and it was well after 8 pm and as I couldn't open the door I called out come in, it was the police and what they had to say changed by life forever. I went blank trying to process the words that were coming out of their mouths.
In my head he only went around the corner to get something nice for dinner!
I have cried myself to sleep too many times to count thinking if only I said this, I said that.
My full-time care is not by choice, I never had the chance to make the decision, the decision was made for me.
The years have been hard since the loss of my dear husband, my best friend, my carer. I have suffered from severe depression during the impact of losing Maxi. It's been quite hard coming to terms with losing him and being placed in a nursing home the day after his horrific accident.
It was Covid and I wasn't even allowed to see him, as if I had left the nursing home I was at risk of not being able to return. So my children had the huge responsibility to drive to the hospital every day to be by his side. The information was being fed back to me day after day by phone and all I was thinking of was will he survive this.
When I was told he wasn't going to survive my heart was broken. I was never going to be able to see him or say goodbye and tell him how much I loved him in his final moments. This is something I feel really guilty about - I have had no closure. I have so many regrets that I now have to live with.
My final farewell to Maxi was at his funeral with only the immediate family being allowed to be there - it was really tough as his family were in an uproar as they couldn't say their goodbyes. Due to my disability my children bear the brunt of trying to sort out my finances and my life.
My children had to sell the family home to pay for my full-time care.
I never had the opportunity to go through our possessions, our memories of our home that I shared with Maxi.
Everything was packed up or thrown away due to the fact I had nowhere to put my possessions as I now live in this tiny room.
So now each day I live in the past with my thoughts and memories looking at his picture on the wall and wishing he was still here with me today.
My life has changed and not for the better. My new home is a nursing home spending time with strangers in a dementia ward with not a familiar face in sight, the days are very long laying in my bed 24/7. Not very often leaving my bed or room I believe I have the sentence and lead a very lonely existence.
I will never be cared for the way Maxi had cared for me, with his love and compassion I was able to cope with life.
Life without my soul mate is heart breaking. He was the love of my life and I'm still in mourning, the loss of this wonderful man that was taken away from me.”
56Theressa Nero, Mr Awty’s daughter, told me of you causing her father to leave this earth due to his horrific injuries which then necessitated her having to place her mother into fulltime care the day after the accident happened, which has led to her having to watch her mother’s emotional struggle with the fact that she could not see her husband. She told me: 'His last moments will never leave me, he died alone with no family with him. I still suffer from the recollections and nightmares of the last time of seeing him on this earth.'
57She has said that the emotional roller coaster ride that she has been on has taken an emotional and mental toll on her and she has needed to sell her parents’ home to pay for her mother’s fulltime care, which has collectively taken a huge toll on her.
58You have: 'Taken his life away. They have taken the life of my father, my children’s grandfather and my grandchildren’s great grandfather. Yes, our lives are forever changed. We are still living with the trauma and life will never be the same.'
Pleas of guilty and timing
59The matter proceeded in the indictable stream of the Magistrates Court with witnesses cross-examined at committal and you were committed to stand trial in this court on 2 September 2021. The matter was managed to trial readiness and was listed to commence on 22 August 2022, which was adjourned on your application, Mr Wangman. The matter was then relisted for trial to commence 28 August 2023.
60On 7 August 2023 I provided an indication as to the likely sentence that would be imposed if each of you pleaded guilty to the proceeding charge in your case, Mr Wangman, and charges in your case, Mr Russell. Each of you accepted this indication in the short period following and accordingly on the date that the trial was scheduled to commence, i e 28 August 2023, you were arraigned and the trial hearing was vacated.
61In each of your cases this is a late plea of guilty, however, you have saved the witnesses the stress and inconvenience of needing to testify, which is also of benefit and convenience to the justice system. I take the utilitarian benefits of your pleas into account in mitigation of sentence. This was of special importance and significance in the era in which those pleas were entered where the effects of the Covid‑19 pandemic continued to linger upon the listing of trials.[1] Moreover, I consider that each of your pleas is accompanied by remorse, which is a topic to which I will return, and I also mitigate sentence on that basis as well as in reflection of the utilitarian benefit of your pleas.
[1]Worboyes v R [2021] VSCA 169 at [39]
Personal circumstances
62Mr Wangman, at the time of your offence you were thirty-three years of age and you are now thirty-six. You are the eldest of six children born to parents who raised you in Lovely Banks. Your father worked in demolition before suffering a workplace accident when you were aged eleven. Your mother works in aged care but has also been a stay-at-home caregiver. Your parents drank but they did not abuse you in anyway.
63You left home when you were twenty to live with your partner and two children were born to this partnership; a son aged twelve and a daughter aged eleven, before you separated from this partner nine years ago. You share custody of those children. You have been with your current partner for the past seven years and you have a child now aged three, and your partner also has three teenage children.
64I have received a letter from Lara Primary School in respect of your daughter and I understand that your incarceration occasionally impacts on her ability to be happy and present with her learning in the classroom. I have also received an email from the assistant principal of your eldest daughter’s school and I understand that she struggles to maintain expected work standards and outcome of schooling. Your son has been referred for counselling and I have received a report from his counsellor, who says that your son’s anxiety has seen a steady decline since you have been incarcerated. In the view of that counsellor your son’s development and emotions have been compromised as a result of not having a father figure in his life.
65Your former partner has written me a letter and tells me that your son as ADHD, ODD and ASD. She tells me that your son is hardly sleeping and is anxious about how his dad is in prison and his school attendance has declined. He now receives additional support from a support worker, as well as the counselling, to which I have referred.
66You attended Lovely Banks Primary School and North Geelong Secondary College where you did not pass Year 12 of VCAL due to non-attendance.
67You then worked in labouring and truck driving, but you have not worked over the past three years. Prior to that you had a tow-truck business, but I understand you could not maintain that business on your bail conditions. Until the point you were remanded in custody you received Centrelink payments and your partner became the family breadwinner whilst you cared for the children you share.
68Until you were remanded in custody you were a heavy drinker and I am told that your drinking escalated following your crime.
69I have received a bundle of references from your friends who describe you as hardworking, reliable and honest. They also speak to your remorse about the event, which, as I have noted above, I have taken into account in mitigation of sentence. You have appeared before the court on more than ten occasions, the first dating back to February 2008 when a wholly suspended sentence was imposed for your offences of drive in a manner dangerous and drive whilst suspended and you were also fined on a second drive-while-suspended charge and exceed speed-limit charge. Your suspension appears to have resulted from a traffic infringement notice for a speeding offence occurring in May 2007.
70In September 2009 you appeared before the Geelong Magistrates Court for exceed prescribed concentration of alcohol and you were fined $500. A conviction for driving whilst disqualified followed a court appearance in October 2010 and you were again placed on a suspended sentence. In July 2011 you committed the offence of attempting to commit indictable offence and you were convicted and fined. Property offences followed in August 2012 and you were convicted and placed on a community correction order.
71In July 2014 you were placed on a further community correction order for a further offence of driving whilst disqualified. One of these community correction orders was subsequently breached in June 2015. On that occasion you were fined for charges of intentionally damage property, breach alcohol interlock condition and drive without one 'L' plate displayed.
72In August 2015 you again faced the Magistrates Court and were placed on a further community correction order for offences of exceeding the speed limit by 45 kilometres per hour or more and drive at a speed dangerous.
73I have the benefit of a psychological assessment and report prepared by Dr Aaron Cunningham and he has carried out empirical testing on you. Dr Cunningham observes that you were previously prescribed ADHD medication but ceased this medication about six years ago. In his view you do not present with a mental illness and are suffering symptoms of depression and anxiety connected to your anxiety about potential sentence and outcomes. Dr Cunningham observes your distress at the prospect of being unable to support your family if incarcerated and I am prepared to note and take into account that the fact of your incarceration as a result of killing Mr Awty has weighed upon your children, which, in turn, hangs upon your conscience, and I attach mitigation of sentence in reflection of that fact.
74A period of time well exceeding three years has passed since the commission of your offence and this cannot be attributable to your behaviour, instead it reflects Mr Russell’s failure to appear in accordance with his bail undertaking and the impact of Covid-19 restrictions upon the smooth commencement of trial. I take into account this delay between commission of offence and imposition of sentence in mitigation of penalty as urged upon me by your counsel.
75Mr Russell, at the time of your offences you were 34 years of age and you are now 37. You were raised in Doveton, Victoria, the youngest child in a sibship of two. You have a close relationship with your father and an 'all right' relationship with your mother with whom you no longer have contact. Your parents separated when you were 18 years of age.
76You have had two long-term intimate relationships, the first for several years, ending when you had an accident in 2006, to which I will return, and the second, a three-year relationship which ended in 2021. A more casual recent relationship ended by reason of your heavy abuse of drugs. You do not have any dependents.
77You left school midway through Year 11 and you subsequently completed a four-year automotive apprenticeship and then you were unfortunately involved in serious motor vehicle accidents in 2006 and 2011, which meant that you did not participate in the workforce until 2012. You have been consistently employed from that time until the time of your offending.
78I have been told that in your 2006 motor vehicle accident you experienced severe injuries, including a head injury, fractures to the wrist, two vertebrae and pelvis, and intra-abdominal injuries to your colon, left kidney and spleen. This meant an extensive period physically recovering in the Victorian Rehabilitation Centre was necessary and in a neuropsychological assessment 17 months after the accident you displayed impairment in the areas of information processing, recall of verbal information and sustained attention.
79You continue to experience chronic pain in custody and I afford mitigatory weight to that factor.
80I have received a number of character references on your behalf and your friends and colleagues describe you as a man who is kind, honest and trustworthy, a good friend, reliable and remorseful, to which, as I have indicated, I have afforded mitigatory weight.
81You have appeared before the court on six occasions, including findings of guilt in 2004 for property offences, for which you were, without conviction, placed on a community-based order. Further property offences followed in September 2004 for which you were fined with conviction, and in November 2007 on offences of traffic a drug of dependence and possess amphetamine, you were placed on a suspended sentence.
82In April 2011 you were fined, with conviction, on a charge of fail oral fluid test within three hours of driving and in December of that year a traffic infringement notice followed for exceeding the speed limit by 25 kilometres per hour or more.
83In May 2014 you were placed on a community correction order for charges of driving whilst disqualified, careless driving, fail drug blood test within three hours of driving, exceed speed limit by 45 kilometres or more, failing to answer bail and unlicensed driving, and were convicted and fined for offences including driving whilst disqualified in October 2014.
84I have the benefit of a psychological assessment and report from Marlese Bovenkerk and she has told me not only of the details of your 2006 motor vehicle accident, but she also notes that in 2011 you were involved in another serious motor vehicle accident after you nodded off while driving, after having been awake on methamphetamine for a few days. Your car hit a tree travelling approximately 130 kilometres per hour and the car was not fitted with airbags. You spent a month or two in the brain injury ward at the Epworth Hospital and were told that you had sustained another brain injury.
85As a result of your first motor vehicle accident you reported that your mental health was significantly impacted by reason of the necessity of coming to terms with your circumstances. This has traumatised you and you were negatively portrayed in the media. You attended six sessions of counselling and unfortunately in 2012 attempted suicide. You are currently treated with the antidepressant Avanza.
86Since killing Mr Awty you continue to experience flashbacks of the accident, particularly images of the victim in his car with you having apparently observed the victim while remaining at the scene of the accident without disclosing your involvement or name or address, the subject of your related summary offence.
87You have told Ms Bovenkerk that you experience some distress by reason of having been in the motor vehicle accidents yourself.
88I also have the benefit of an assessment and report from Professor Jenny Ponsford, clinical neuropsychologist. Though this report dates back to 2008 it assists me somewhat with its indicative finding that you sustained an acquired brain injury following your first accident. To Ms Bovenkerk the changes of your functioning, including memory loss, poor concentration and increased irritability, were consistent with an acquired brain injury, though against this she notes your ability to hold employment as a workshop manager for a number of years up to the point of your offending.
89Ms Bovenkerk administered empirical testing and concluded that your symptoms were indicative of clinically significant post-traumatic stress disorder and consequential brain and mood functioning.
90I note that your custodial environment will weigh heavily upon you as a result of your symptoms of post-traumatic stress disorder and acquired brain injury and I attach mitigatory weight to that fact.
The issue of the victim’s contribution to the collision
91In this case issue was taken by each of your counsel with the factual and legal question whether the victim may have contributed to his own death by his failure to give way to your grossly negligent driving, which might allow for modest mitigation of sentence. The prosecution disputes this issue as a matter of fact and law.
92As I have previously noted at the time of the incident, Mr Wangman, your car was travelling at 130 to 139 kilometres per hour in a zone where the speed limit was 80 kilometres per hour. Mr Awty was travelling between 23 to 25 kilometres per hour. I have CCTV of the scene taken from a number of different angles, to which I have referred when summarising documents exhibited.
93In the case of Director of Public Prosecutions (DPP) v Currie; DPP v Daniels (a pseudonym),[2] the Court of Appeal considered two Director’s appeals against sentences imposed on each accused by Judge McInerney and Judge Brookes of this court respectively. The reasoning in the Director’s appeal against Mr Currie’s sentence is relevant to my consideration of the issues.
[2](2021) 65 VR 61
94In the facts of that case, at 7.55 pm one evening, Mr Currie was driving his sedan at high speed, up to 168 kilometres per hour, along a road in Oakleigh East. Three of his friends were passengers in that vehicle. At the same time as Mr Currie was hurtling towards a particular intersection, the victim was driving his Nissan Skyline sedan along a road which was perpendicular to Mr Currie’s journey, and he pulled out into the road ahead of Mr Currie resulting in a massive collision. The victim’s vehicle burst into flames and he was killed instantly and one passenger died and the other two passengers sustained significant injury. Judge McInerney had found that the decision of the Court of Appeal in Spangol v R[3] applied in the circumstances of the case, i e, that given the victim was facing a give-way sign in his journey into the road ahead of Mr Currie, had he looked to the right, he would have seen Mr Currie’s car on the road or at least the front light thereof. His Honour was prepared to make a finding on the evidence that the victim failed to fulfil his obligations under the regulation requiring that he give way and accordingly that his manner of driving was, on the balance of probabilities, an additional factor outside the control of the offender, which was a materially contributing cause of the victim’s death.
[3](2016) 55 VR 350
95Accordingly, Judge McInerney found that while this did not affect the gravity of the offending or Mr Currie’s culpability it could be taken into account in reduction of sentence.
96That judge continued by observing that the Court of Appeal had found in Pan v R that:[4]
'None of that is to say that a judge would not be entitled on a given set of facts to conclude that even where a contribution had been established, there should be little or no reduction in moral culpability.
…
Such a situation might arise where for example the offender’s serious breach of the proper conduct of the vehicle on the roadway was so flagrant that his moral culpability was unaffected by the external contributing cause — or perhaps in truth, the external contribution was rendered meaningless in the face of the offender’s behaviour.'
[4][2020] VSCA 42 at paragraph [89]; cited in Director of Public Prosecutions (DP)P) v Currie; DPP v Daniels (a pseudonym)at paragraph [168]
97Judge McInerney there concluded, albeit the finding made as to the victim’s contribution, that such was overwhelmed by the gross negligence of Mr Currie and therefore the finding would only operate to allow a modest reduction in sentence.
98The Court of Appeal held, in the Director’s appeal against Mr Currie’s sentence, that there was some force in the proposition that the victim did not fail to give way to Mr Currie’s vehicle in circumstances where Mr Currie was travelling at a grossly excessive speed. However, that had been an argument raised by the prosecution and rejected by the learned sentencing judge and the court was unable to conclude that the finding that the victim failed to give way at the intersection was not open.
'… It might be thought by some to be harsh, and other sentencing judges may have come to a different conclusion. In our view, however, the finding was at least open to the judge and there is no basis for setting it aside.'[5]
[5]Director of Public Prosecutions (DP)P) v Currie; DPP v Daniels (a pseudonym) (supra) at paragraph [178]
99The court cited its own decision in Spangol with approval, that is, in cases of the kind under consideration in Mr Currie’s appeal and in this case the court cited:
'… if an offender is able to establish that there was an additional factor outside the offender’s control which was also a material cause of the relevant injury or death, there may be a reduction in the penalty to be imposed on the offender 'within the sound limits of the sentencing judge’s discretion'. This principle does not necessitate the passing of any moral judgments on the victims of crime for the purpose of arriving at sentence. As expressed by the court in Spangol it is a principle which causes issues of causation.
…
… The precise scope of Spangol will be determined on a case-by-case basis as those cases arise. … .'[6]
[6](Ibid) at paragraphs [180]-[181]
100I have omitted footnotes. The citation is Currie at 180 to 181.
101In this case the prosecution disputes that Mr Awty contributed to the collision. Having seen the CCTV footage tendered by the prosecution, especially that taken from KFC Norlane, in my view there is little doubt that Mr Awty’s car stopped for a period of time to allow for other cars travelling, apparently within the speed limit, to pass, before making the decision to turn. Certainly, it is an obligation of drivers such as Mr Awty to take steps to avoid a collision. However, in the circumstances in which Mr Awty found himself, i.e., the time of day, the flow of ordinary traffic at the busy strip of road between the Geelong CBD and Corio and the reasonable inference that oncoming drivers were not travelling at a speed grossly in excess of the speed limit, I have reservations about characterising his failure to avoid the accident as “an additional factor outside the control of [each of you] which was a materially contributing cause of his death”. Nor am I willing to conclude, as your counsel, Mr Wangman, has urged upon me, and find that Mr Awty’s manoeuvre was a matter beyond each of your control and awareness.
102But, rather than undertaking an analysis of the style performed by Judge McInerney in sentencing Mr Currie, I elect, within my discretion, to take a holistic view of the circumstances I have described. Mr Awty made a split-second and ill-fated decision to pull into Melbourne Road at the exact moment that the two of you were engaged in gross negligence of the type that I have carefully described and will continue to analyse. By reason of this significant negligence, you had both opted out of the shared responsibility and capacity to guard against seriously injuring or killing another road user. Mr Awty died in those circumstances, and I am conscious of, and take these matters into account, but decline to pass the various causes and relative contribution in this exercise.
Objective seriousness of the offending; moral culpability
103Mr Wangman and Mr Russell, you have each pleaded guilty to a charge of culpable driving causing death. Mr Wangman, your very significant negligence lies in you driving a high-powered motor vehicle whilst exceeding the speed limit, mainly by driving 130 to 139 kilometres per hour in a 80-kilometre-per-hour zone, leading to the collision which killed Mr Awty. Mr Russell, your very significant negligence lies in you racing Mr Wangman at high speeds. You, Mr Russell, were not directly responsible for killing Mr Awty, instead your choice to race Mr Wangman indirectly caused his death. You were both travelling in a heavily trafficked area and it was a time of day where there were many other drivers on the road, many of which I have observed in watching the CTTV footage from KFC Norlane. If you both had observed proper standards of driving you would not have caused Mr Awty’s death, as he was able to be seen clearly.
104Mr Russell, having caused Mr Awty’s death, you were obliged to provide your name and address to police, and you failed to do so.
105I observe that a significant number of aggravating factors commonly involved in cases of this nature are absent in your case, such as some level of intoxication or substance abuse, ignoring warnings, escaping police pursuit, sleep deprivation, and driving during a period of suspension or disqualification.
106Your shared decision to race was a spontaneous and ill-fated one, quickly ending in disaster. Mr Wangman, you were the instigator of the race, but you, Mr Russell, responded immediately and in kind.
107You have each heard how your behaviour has affected, not just your direct victim, but others who have lost their beloved relative. Your actions were self-centred and idiotic and have left many with a legacy of trauma from this loss.
108I am well familiar with the statements of principle in cases like yours.
109In R v Franklin, Warren CJ stated:
'Cases of culpable driving continue to come too frequently before the courts. What is so striking about these cases is that one moment in time can have such devastating consequences. … .'[7]
[7] [2009] VSCA 77 at paragraph [12]
110I consider that your offending is serious and your moral culpability is high. In making the latter finding, I have regard to each of your issues with compliance with the road rules, evidenced by repeated appearances before the court for driving offences.
Purposes of sentencing
111In cases of this nature the need for general deterrence is high. In order words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour.[8] I must give significant emphasis to this objective of sentencing, as well as to the need to denounce your behaviour and to punish each of you for your offending. I must also impose sentences that specifically deter each of you from acts of further illegal driving, given your history of driving offences.
[8]McGrath v R [2018] VSCA 134 at paragraph [68]; Director of Public Prosecutions v Gany (2006) 163 A Crim R 322 at [35]
112I have some concerns about each of your prospects for rehabilitation given each of your histories of poor compliance with obligations with respect to driving, but here I interpolate that for each of you this is a very significantly more serious infraction than previously. Mr Wangman, in your case you have family support and the support of a friendship group, you have shown yourself to be a good worker, and carer and you have undertaken vocational courses while on remand. And Mr Russell, in your case, you have prospects of returning to your previous employment as a manager, and having regard to this support and apparent appreciation of the salutary effects of this, each of your first periods in custody, I am prepared to infer that you have fair to good prospects for rehabilitation from your temptation to drive illegally, and given each of your appreciations of the consequences of your actions, that you are most unlikely to commit a further act of causing serious injury or death. I intend to impose a long period of parole eligibility on each of you pursuant to this finding.
Sentencing submissions and relevant sentencing principles
113The offence of culpable driving causing death is a Category 2 offence under the Sentencing Act 1991 (Vic). A term of imprisonment must be imposed upon you unless one of the exceptions in s5(2H)(a) to (e) can be established. None of the exceptions apply.
114The standard sentencing regime applies in your case to the offence of culpable driving causing death and the standard sentence for this offence is eight years’ imprisonment.
115The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. In considering the impact of standard sentencing on your case, I have considered the decisions, inter alia, of Brown v R,[9] and DPP v Drake.[10] In particular, when sentencing for a standard sentence offence, I must take the standard sentence into account as one of the factors relevant to sentencing. This requirement, therefore, is to be treated as a legislative guidepost having the same function as the maximum penalty, it does not allow the standard sentence to be viewed as a starting point, it does not affect the established 'instinctive synthesis' approach to sentencing, nor does it require or permit 'two-stage sentencing' and does not otherwise affect the matters which I may or must take into account in sentencing.
[9](2019) 59 VR 462
[10][2019] VSCA 293
116Pursuant to s5A(2)(b) of the Sentencing Act, having regard to current sentencing standards in relation to the standard sentence offence, I can only pay regard to sentences previously imposed where culpable driving was the subject of a standard sentence scheme. I am of course familiar with those sentencing standards.
117After careful reflection, I will indicate that while I agree with the prosecution contention as to the characterisation of the seriousness of this example of that offence, the sentences that I am about to impose in respect of each of you, Charge 1 is less than the standard sentence. I have had regard to the application of s11A of the Sentencing Act relating to the calculation of a minimum period before parole eligibility.
118It was appropriately conceded by each of your counsel that I am confined to a sentence involving a head sentence and minimum period before parole eligibility. Mr Russell, I have been mindful of the totality principle of sentencing in structuring my sentence, including in respect of the orders for cumulation and also to the parity principle of sentencing as urged upon me by your counsel.
119Culpable driving causing death is a 'serious motor vehicle offence' under s87P of the Sentencing Act, and I must disqualify you from driving for a period of at least 24 months, and in this case it will be much longer having regard to the purposes of sentencing.
120As I have mentioned each of your pleas of guilty was entered at a time when the court system in Victoria was experiencing significant impediments as a result of the unfortunate effects of the Covid-19 pandemic, and as I have mentioned, there was a significant utilitarian benefit in you entering pleas of guilty to the proceeding charges.[11]
[11]Worboyes v R (supra)
Sentences
121I now impose the following sentences:
· Mr Wangman, on your charge of culpable driving you are convicted and sentenced to imprisonment for seven years and nine months, and I order that you serve five years and two months before parole eligibility.
· Mr Russell, on your charge of culpable driving, you are convicted and sentenced to imprisonment for six years and eight months. On your related summary offence of fail to provide a name and address after motor vehicle accident, you are convicted and sentenced to four months’ imprisonment, two months of which I order be served cumulatively upon the sentence imposed on your indictable charge. This results in a total effective sentence of six years and ten months and I order that a period of four years and six months be served before parole eligibility.
· Each of your licences is cancelled and you are both disqualified from obtaining a licence for ten years from today.
Section 6AAA Sentencing Act 1991 declaration
122Mr Wangman, was it not for your plea of guilty in this case, if this matter had run to trial and resulted in a guilty verdict, I would have imposed a head sentence of nine years and three months’ imprisonment.
123Mr Russelll, were it not for your pleas of guilty, if this matter had run to trial and resulted in a guilty verdict, I would have imposed a head sentence of eight years and two months’ imprisonment.
124Mr Wangman's pre-sentence detention calculation is how many days please, Mr Patton?
125MR PATTON: I apologise, Your Honour, 163 including today. So 162 - - -
126HER HONOUR: And to Ms Brown? Now there was a message for me with it.
127MS BROWN: 466 days, Your Honour.
128HER HONOUR: Was it not 465, excluding today.
129MS BROWN: Sorry, that's correct. So excluding today, 465.
130HER HONOUR: Thank you. We will lose the video link this minute, so it may be that you will need to book appointments to speak to your clients. But having said that, are there any ancillary orders for me to make? Any further matters for you to raise?
131MS BROWN: Your Honour, can I just confirm that the non-parole period for Mr Russell is four years and six months.
132HER HONOUR: Correct.
133MS BROWN: Thank you, Your Honour.
134HER HONOUR: Yes, anything else.
135MR PATTON: Nothing from me, Your Honour, thank you.
136HER HONOUR: Yes, thank you. Mr Pirrie?
137MR PIRRIE: No, Your Honour.
138HER HONOUR: Adjourn sine die please.
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