R v Radanov
[2013] VCC 1333
•19 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00311
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STANKO RADANOV |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 September 2013 | |
DATE OF SENTENCE: | 19 September 2013 | |
CASE MAY BE CITED AS: | R v Radanov | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1333 | |
REASONS FOR SENTENCE
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Subject: Dangerous driving causing death, dangerous driving causing serious injury
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Rochford SC (Plea) Ms Taylor (Sentence) | Craig Hyland Solicitor for Public Prosecutions |
| For the Accused | Mr D. Goddard | Valos, Black & Associates |
HER HONOUR:
1 Stanko Radanov, you have pleaded guilty before me to one count of dangerous driving causing death and one count of dangerous driving causing serious injury. The maximum penalty for dangerous driving causing death is 10 years imprisonment. The maximum penalty for dangerous driving causing serious injury is 5 years imprisonment.
2 These crimes arise out of a collision which occurred at 9.45pm on 14 August 2011. You were driving a Silver Proton Satria hatch in a southerly direction on the Dandenong-Hastings Road (also known as Western Port Highway) Somerville. You crossed over into the north bound lane and collided head on with a Maroon Nissan Patrol 4WD registered number POV167 driven by Mark Wlodarczyk (the Nissan). Timothy Alexeev (the deceased) was seated in the front passenger seat of your vehicle.
3 The collision occurred approximately 500 metres north of the intersection of Queens Road on Dandenong-Hastings Road, Somerville. At the collision site, Dandenong-Hastings Road runs in a general north to south direction. It is a two lane, two way, undivided road. At the point of the collision, each direction of traffic was defined by double parallel white lines painted in the approximate centre of the road.
4 For vehicles travelling in a southerly direction along Dandenong-Hastings Road, towards Hastings, the road curved to the right. There were a series of black and yellow chevrons erected on the east side of the road, to advise drivers of the curve in the road. On either side of the road there were grassed paddocks and farming properties. There were no street lights erected in the vicinity of the collision scene.
5 It was a clear night without rain. The speed limit on this part of the road is 100 kilometres per hour.
6 The driver of the Nissan, Mark Wlodarczyk, was travelling in a northerly direction down Dandenong-Hastings road at about 90 kilometres per hour. 20 or 30 metres prior to reaching an S bend, Mr Wlodarczyk recalls a steady flow of traffic from the opposite direction, that is, heading south towards him. When Mr Wlodarczyk was on the straight part of road just prior to the bend back to the right, he realized that the headlights approaching him were on his side of the road.
7 You met the deceased at the Lynbrook Hotel earlier that evening. Whilst at the hotel, you drank two stubbies of Corona full strength beer. You left the hotel at about 9.19 pm. You had planned to drive to a friend’s home in Langwarrin, to meet up with a priest who was going to give you a reference. The deceased decided to travel with you to that address.
8 You drove out of the Lynbrook Hotel car park and travelled in a southerly direction on the Dandenong-Hastings Road towards Langwarrin. You missed the turn off at a roundabout and kept going straight. You were looking for a sign that would indicate where you were so that you could make your way to the priest’s house. It was very dark and you had never been on that part of Dandenong-Hastings Road before.
9 At the S bend, you veered onto the wrong side of the road and collided with Mr. Wlodarczyk’s car head on. Mr Wlodarczyk was travelling at 90 kilometres per hour. When your vehicle first commenced skidding, the driver side of your vehicle was 2.8 metres on to the incorrect side of the road and you were travelling at a minimum of 63 kilometres per hour. The passenger side of your vehicle was approximately 1.39 metres onto the incorrect side of the road.
10 Your car slid rearwards to the north before impacting the metal guard rail on the west side of the road and came to rest on the north bound lane facing south west. After impact, the Nissan also continued north and slid across the south bound lane before it rolled over, landing onto its wheels with the driver’s side landing onto the rear passenger side of your car. Mr Wlodarczyk was able to crawl out of the front passenger side window as it had shattered.
11 The passenger in your vehicle died at the scene. Mr Wlodarczyk sustained serious injuries and was conveyed to the Alfred Hospital for treatment. His injuries included a laceration to his forehead, multiple fractures to his upper body which included fractures to his ribs, as well as a fractured ankle.
12 You also sustained serious injuries and were admitted to the Alfred Hospital. Blood and urine samples were obtained and later analysed. An expert opinion was sought from Dr Morris Odell, from the Victorian Institute of Forensic Medicine, as to what impairment, if any, the detected alcohol and drug levels in your blood and urine would have had on your ability to properly control the motor vehicle at the time of the collision. Dr Odell stated that “it is not possible to give a definitive opinion as to whether [your] driving skills would have been adversely affected by the effects of cannabis and possibly also by the effects of alcohol or a rebound methylamphetamine effect at the low blood levels of these substances quoted above.”
13 The facts in this case are very serious. A Victim Impact Statement by the deceased’s sister, Anna Serdzeff,[1] was read aloud in court. She said that the deceased is the third youngest of 12 children in the family and is greatly missed at large family gatherings and that “it always feels as if not everybody has arrived yet, an empty place waiting.” She said that the deceased had left behind 3 children who “were the most important people in his life and he in theirs”.
[1]Exhibit C
14 A statement by Mark Wlodarczyk was also read aloud in court. Mr Wlodarczyk stated that he is depressed and has lost motivation to go out to movies or to have dinner with friends as he used to do regularly before the accident. He is an arborist and since the accident he has not been able to climb trees and has lost his enthusiasm to meet clients or prepare quotes to maintain his business of cutting down trees. His left ankle swells up if he stands for more than two hours. He still gets anxious when driving on roads.
15 I take the contents of those statements into account in determining an appropriate disposition. I accept that the victims of your crime who include members of the deceased’s family have suffered and continue to suffer considerably in the manner described in those statements as a result of your actions.
16 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. witnesses have been spared the ordeal of giving evidence upon your trial.. Further, I take it into account in your favour that you intimated early your intention to plead guilty to these charges. In the circumstances I accept, that in your case your plea indicates remorse for your actions
17 I have been told something of your personal history and your circumstances. You were born on 17 January 1981 and are 32 years old. At the time of the offence you were 30 years old.
18 Your parents were born in Serbia. You come from a disadvantaged background given your intellectual disability and given that your father was in and out of gaol for most of his life and when at home, had a drug abuse problem and was occasionally violent. The last time you saw your father was six years ago when he came over the back fence of your house asking for speed. You swore at him. Some time later, your father was found dead from an overdose.
19 You attended school at Dandenong and then went to a specialist school that specialises in teaching children with intellectual disability.
20 You have a brother and sister. You live at home with your mother and sister.
21 You have admitted before me to prior convictions. There are 28 such convictions, involving 13 court appearances between June 2000 and October 2009. The nature of some of those prior convictions, in particular the conviction for exceeding the speed limit and driving whilst unauthorised, are relevant to my task of sentencing you today. I accept your counsel’s submissions that the convictions for assault and other offences relating to drug and alcohol abuse are dissimilar to the offences for which you are being sentenced.
22 I take into account in your favour the reference dated 23 August 2013 by Father Cedomir Videkanic of the Serbian Orthodox Diocese of Australia and New Zealand. He said that you have a good heart and are willing to help others.[2]
[2]Exhibit 6.
23 Since this accident two years ago, you have stayed at home, stayed out of trouble and have not driven a motor vehicle. The accident in 2011 has been extremely traumatic for you. I accept that you are desperately sad about the death of the deceased who you thought of as a brother. The interview conducted by the police records:
"Tell me more about the relationship with Tim. Tell me how you know him, how long you’ve known him for?"
"I’ve known him all my life. ..I looked at him, literally, like my own brother, and I loved him more than anything. Like, he was the only one that wanted to spend time with me, so I would never ever – ever do anything to hurt him." [3]
[3]Record of interview, question 77.
24 You were also close to the deceased’s family but understandably since the accident you no longer have a relationship with the family.
25 You Instructed your counsel that you have addressed drug and alcohol abuse albeit you do have difficulty with completely abstaining from cannabis.
26 I am, on balance, satisfied that the chances of your rehabilitation are reasonably good provided that you continue to obtain counselling and treatment from Dr Corran.
27 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Moral Culpability
28 Your counsel submitted that all of the commonly seen aggravating features of the offences of dangerous driving causing death and/or serious injury are absent in this case. Dr Odell’s assessment was that it was not possible to say that drugs and alcohol caused the offending. You were not so tired or fatigued that you should not have been driving in the first place. You were not speeding or driving in a hoon-like fashion.
29 The dangerous part of the driving is that you were driving on the wrong side of the road for a moment. However as stated by Mr Wlodarczyk at the committal hearing “He was not on my side of the road for more than, I think, half a second”.[4] You said that the other driver had his high beams on at the time but accepted that your driving was dangerous. Although Mr Wlodarczyk disputes that he was driving with his lights on high beam, your position is supported by the evidence of Stuart Neil Jones, qualified mechanical investigator and Senior Constable of police. He observed that “the high filament was distorted indicating that the high beam was illuminated at impact.”[5] I find on a balance of probabilities that Mr Wlodarczyk’s headlights were on high beam at the time of the collision. Nevertheless your reaction to that circumstance was dangerous and inappropriate.
[4]Depositions p 3.
[5]Depositions p 132.
30 Given all those circumstances, the absence of speed and alcohol and the momentary nature of the dangerous driving, in my judgment your offending was at the lower end of the scale of cases of dangerous driving causing death and serious injury and you have a low level of moral culpability.
Mental Health
31 In R v Verdins[6] the Court of Appeal stated that impaired mental functioning is relevant to sentencing in at least six ways:
[6][2007] VR 269.
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
32 The Department of Human Services has issued a declaration stating that it is satisfied that you are intellectually disabled and are eligible for services under the Intellectually Disabled Persons’ Services Act 1986. [7]
[7]Exhibits 1 and 2.
33 In a report dated 7 August 2013[8], Dr Trevor M Corran, clinical psychologist, diagnosed that you are suffering from post-traumatic stress disorder stemming from grief response to loss of your father six years ago and the loss of your friend (the deceased), and an adjustment disorder with mixed anxiety and depressed mood.
[8]Exhibit 3.
34 Your counsel did not submit that there is any readily identifiable nexus between your offending and your mental health which the Court could have regard to in relation to the first category of Verdins. However, your counsel submitted that the second category is highly relevant because a sentence of immediate imprisonment would be extremely difficult for you given your intellectual disability and your post-traumatic anxiety and depression.
35 I am satisfied on a balance of probabilities that you are suffering from post traumatic anxiety, depression and an intellectual disability. In the circumstances, general and specific deterrence should not be given as much weight as they would ordinarily attract. In this case, the weight to be given to general and specific deterrence is to be sensibly moderated.
36 I accept Dr Corran’s opinion that your mental condition may mean that a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health.
37 I also accept Dr Corran’s opinion that imprisonment is highly likely to have an adverse effect on your mental health. I take these matters into account in sentencing you.
38 The prosecutor in sentencing submissions submitted that the appropriate sentence would be a term of imprisonment but that a wholly suspended sentence is not out of range bearing in mind the lack of speed, alcohol or other outrageous aspects of driving.
39 These offences are without doubt serious offences. In all the circumstances I have no alternative to imprisonment. I propose to record convictions on both counts and sentence you as follows:
· On Charge 1, dangerous driving causing death – to a term of imprisonment of 30 months.
·On Charge 2, dangerous driving causing serious injury – to a term of imprisonment of 18 months.
40 I direct that 6 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. That results in a total effective sentence of 3 years.
41 However, having given the matter a great deal of thought, I have come to the conclusion that because of your low moral culpability, your mental condition, your prospects for rehabilitation and the other circumstances existing in your case, it is a proper exercise of my discretion to wholly suspend the sentence I intend to impose. I therefore direct that the whole of the sentence be suspended for a period of 3 years.
42 You must not, during the period of suspension, commit another offence punishable by imprisonment. If that were to occur, you would be in breach of the terms of the suspended sentence and should expect to be brought back before the court and be ordered to serve the whole of the sentence that was suspended. Do you understand the consequences of breaching the suspended sentence?
43 PRISONER: Yes, I do.
44 HER HONOUR: Do you want to have a word with your counsel?
45 PRISONER: No, it's OK.
46 HER HONOUR: Pursuant to s.89 of the Sentencing Act 1991 I also cancel your licence to drive a motor vehicle and disqualify you from obtaining a licence for a period of two years.
47 Section 6AAA of the Sentencing Act 1991 requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Your plea has saved time, expense and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of four years with a non parole period of 32 months.
48 Mr Wlodarcyk also seeks compensation pursuant to s86(1) of the Sentencing Act 1991 for the losses he has suffered being the cost of the Nissan Motor Vehicle, the motor vehicle bull bar and clothing. Mr Wlodarczyk claims the sum of $18,695 plus interest. There is no dispute as to quantum or as to your culpability for it.
49 Section 86(1) of the Sentencing Act 1991 provides that the Court may order you to pay any compensation that the Court thinks fit. Section 86(2) of the Sentencing Act 1991 provides that if a court decides to make an order for compensation, it may in determining the amount and method of payment of the compensation take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.
50 Your counsel submitted that an onerous compensation order would deter you from obtaining employment and would detrimentally affect your prospects of rehabilitation. You are on a disability pension and live at home with your mother. In his report dated 7 August 2013, Dr Corran stated that you have sometimes been able to undertake simple employment. Taking into account your financial circumstances and the submissions made by your counsel, I order that you pay the sum of $9,600 to Mark Wlodarcyk by way of compensation. I order that this amount be paid by 48 equal monthly instalments of $200, the first to be paid on 21 October 2013 and monthly thereafter.
51 I am going to sign that order. So the terms of the payment will not be included in the terms of the order?
52 MS TAYLOR: They aren’t on the precedent generally because whole sums seemed to be ordered in the main. But your associate can certainly - I think it's probably prudent to type in the instalment arrangement if that can be done.
53 HER HONOUR: Yes, perhaps - if you take a seat. Are there any other matters?
54 MR GODDARD: No, Your Honour.
55 HER HONOUR: Thank you. I have signed that order.
56 MS TAYLOR: Thank you.
57 HER HONOUR: Mr Radanov, you may leave the Dock and I will leave the Bench. Thank you.
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