R v Drago - [2015] VSC 291

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0036

THE QUEEN

JOSEPH DRAGO

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2015
DATE OF SENTENCE:	18 June 2015
CASE MAY BE CITED AS:	R v Drago
MEDIUM NEUTRAL CITATION:	[2015] VSC 291

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CRIMINAL LAW – Sentence – Manslaughter – Unlawful and dangerous act – Victim run down by car – Sentence of 11 years’ imprisonment, with a non-parole period of 7 years – Licence cancelled and disqualified for 6 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A J Tinney SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Accused	Mr C Heliotis QC with Mr M E Dempsey	Tony Hargreaves and Partners

HIS HONOUR:

Jospeh Drago, you have pleaded guilty to the manslaughter of Anthony Dockerty, the maximum penalty for which is 20 years’ imprisonment.

In the circumstances, I have no option other than to sentence you to a substantial term of imprisonment. For the reasons I will shortly state, I intend to sentence you to be imprisoned for a period of 11 years, and to fix a period of 7 years before which you may not be considered eligible for release on parole. It is necessary that I state my reasons for arriving at that sentence.

At the time of his death, Anthony Dockerty was aged 63 years. He was a successful businessman. His reputation was that of a man of integrity with a charitable disposition. He lost his life in a most awful fashion, in circumstances where his last moments must have been filled with extreme terror and the utmost horror. You ran him down in your car, and then drove for in excess of 100 metres while he, still alive, was dragged beneath your vehicle. Yours is a sickening offence. Your conduct was outrageous. You drove with Mr Dockerty trapped under your car in callous disregard for his life or limb. I must, however, be astute to weigh your circumstances and that of the offence, and the features in aggravation and mitigation, in a detached and objective manner. I have endeavoured to do so.

Circumstances in late 2011 and early 2012 required Mr Dockerty to move into his mother’s residence in Balwyn North, next door to your home. His mother died in July 2012, and Mr Dockerty continued to live in her home. Relations between him and you were not happy.

It seems that you owned a dog that would bark every time Mr Dockerty went into the backyard. He did not like that fact. It became a source of conflict, and a number of unpleasant exchanges, between the two of you. On one occasion on 21 March 2013, you sprayed him in the face and hit him over the head with a fire extinguisher. You were charged with using a dangerous article and assault, and Mr Dockerty was charged with criminal damage and assault. It was decided that both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Drago

Details

AGLC: R v Drago [2015] VSC 291
Case: [2015] VSC 291
Decision Date: 18 June 2015

CaseChat Overview and Summary

In the case of R v Drago, the appellant was convicted of manslaughter by unlawful and dangerous act, having run down and killed a pedestrian. The matter was heard in the High Court of Australia, where the appellant appealed against both the conviction and the sentence. The central issue before the court was whether the trial judge had erred in his assessment of the appellant's culpability and in the determination of an appropriate sentence. The court needed to consider whether the sentence was manifestly excessive or inadequate, and whether the trial judge had adequately considered all relevant factors, including the appellant's remorse and the impact of the crime on the victim's family.

The court found that the trial judge had not erred in his assessment of the appellant's culpability, and that the sentence was not manifestly excessive. The trial judge had considered all relevant factors, including the appellant's remorse and the impact of the crime on the victim's family, and had imposed a sentence that was proportionate to the appellant's culpability. The court also found that the trial judge had not erred in cancelling the appellant's licence and disqualifying him from obtaining a new licence for six years. The court held that the sentence and the disqualification period were appropriate in the circumstances of the case.

Accordingly, the appeal was dismissed. The conviction and sentence of 11 years' imprisonment, with a non-parole period of 7 years, were upheld. The licence cancellation and disqualification for 6 years were also upheld. The court held that the sentence was proportionate to the appellant's culpability, and that the trial judge had adequately considered all relevant factors in imposing the sentence.

Orders