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Drink/Drug Driving

Discussion in 'The Pub' at netrider.net.au started by Justus, Jul 16, 2011.




    WHERE HELD: Mildura
    DATE OF SENTENCE: 11 February 2011


    (Background to incident)

    John Andrew Gangur, you have pleaded guilty before me to two charges of dangerous driving causing serious injury. You have also pleaded guilty to the summary charges of driving with a blood alcohol content exceeding .05 per cent, unlicensed driving, driving an unroadworthy vehicle and driving whilst an illicit substance, namely cannabis, was present in your blood stream. You have admitted prior convictions.

    The facts underlying your offending are as follows. On Wednesday 9 June 2010, you were the driver of a 1990 Ford EA Falcon red sedan which you were driving in a southerly direction on the Calder Highway south of Mildura. The section of the road you were travelling on had two lanes in each direction separated by double white lines. At about 7.25 pm, you had just passed the township of Irymple into an 80 kilometres per hour speed zone travelling south. Witnesses travelling in the same direction in the proximity of Morpung Avenue had been overtaken on the left-hand side by you. They told police that you passed so close to their vehicles they thought you had actually collided with them. They estimated your speed at approximately 130 to 140 kilometres per hour. You continued to drive in the left-hand lane of two lanes travelling south and witnesses told police you were at that time "all over the road."

    They said that you travelled from the left-hand lane into the right-hand lane and then drifted over double lines separating the northbound lanes, that is to oncoming traffic. One witness told police it was like you were trying to stay straight but could not. The road then had a sweeping bend to the right and the southbound lanes merged into a single lane, at which time a 100 kilometre per hour speed zone applied. Witnesses told police you continued to drift all over the road and into the oncoming lane, one witness telling police you were lucky there was in fact no oncoming traffic at the time. You did this a number of times, about four, with approximately half the width of your vehicle in the oncoming lane before you rectified and re-entered your own lane.

    The victim in this matter, Ashley Watters, was driving her vehicle, a Mitsubishi white Lancer sedan, northbound on the Calder Highway at Sunnycliffs. In her car was a passenger, Grant Adams, also a victim at this time and her partner and fiancé. You were on the incorrect side of the road as it approached Ms Watters car just south of Belar Avenue in Sunnycliffs. Ms Watters slowed her vehicle and moved all the way to the left of the solid white line defining the shoulder of the road in an attempt to avoid a collision with you. At about 7.30pm, you collided with Ms Watters vehicle, impacting the front driver's side. This point of impact occurred in the middle of the northbound lane, that is the lane in which Ms Watters was travelling. Her car spun out of control in a clockwise direction, approximately 90 degrees and came to rest off the road in the bushes on the east side of the road. The car came to rest 3.8 metres from the edge of the roadway. Its front driver's door skin and wheel were ripped off in the collision.

    Your car continued on the roadway, arched to the left and collided with a strainer post 16.7 metres from the edge of the roadway. Your car sustained major damage to the front driver's side door. The force of the impact caused the front driver's side wheel back under the floor of the car. Your vehicle came to rest about 30 metres from the point of impact. The front driver's side door of Ms Watters' car was unable to be opened due to the extent of the damage, so Mr Adams pulled Ms Watters into the passenger seat of the vehicle. At this point it was seen that her right leg was swollen and her right ear was severely lacerated, almost severed. Ms Watters remained in the passenger seat of the vehicle until she was extricated from the car by SES and ambulance. All parties were conveyed to the Mildura Base Hospital by ambulance.

    An analysis of a blood sample taken from you was found to contain a blood alcohol concentration of .280 per cent. That sample was also found to contain five nanograms of what is called Delta-9 tetrahydrocannabinol per 100 millilitres of blood, that is traces of cannabis were found in your blood.

    Ms Watters sustained a fractured right femur and lacerated right ear. She was referred to a surgeon and had a titanium rod and four screws inserted in her leg and she received approximately 30 stitches. Tragically at the time of the collision Ms Watters was about 17 weeks pregnant and the day after the collision an ultrasound showed there was no foetal heartbeat. Ms Watters gave birth to a stillborn child on 15 June 2010. Mr Adams sustained a sore ear, bruising to his chest from the seatbelt and a bump on his right shin and he was treated at hospital for tenderness to his ribs and soreness to his neck. He also suffered and this comprises a major part of the serious injury, an aggravation of a pre-existing psychiatric condition and has ongoing depression. You sustained a shattered right foot. At the time of the collision you were not licensed to drive a motor vehicle, you having only previously held a probationary licence.

    On 27 June 2010, your car was investigated by a qualified motor mechanic at the Mechanical Investigating Unit of Victoria Police. It was his opinion that your car would have been classified as being in an unroadworthy condition prior to and at the time of the collision.

    In a record of interview, you told police that whilst the car appeared to be roadworthy, you knew that the front suspension and ball joints were "all shot." You told police you remembered drinking two cans of full strength Melbourne beer from approximately 12pm until 2 pm on the day of the collision at your home before leaving at about 5 pm following an argument with your partner. You told police it was a split decision to leave. You could not recall drinking any alcohol other than the beer. When asked if you thought it was safe for you to drive at the time, you told police that at that stage you were not thinking even though it was the wrong thing to do. You told police that you were clearly under the influence of alcohol and that you did not have a licence. You told police you could not recall anything of the accident. You admitted you did not hold a current driver's licence.

    (Background to personal circumstances)

    I now turn to your personal circumstances. You are 36 years of age and grew up in very difficult childhood circumstances. Your father was a career criminal with serious drug and alcohol problems and your mother came to Australia with her family from Britain when she was 14. At age 16 she gave birth to your sister and two years later to you. By then she had also developed a problem with alcohol. You were raised by your maternal grandparents who moved to the Ballarat area when you were very young. You grew up believing they were in fact your parents. Your grandfather has never worked in Australia and himself had an alcohol problem. You attended Delacombe Primary School on an intermittent basis. You were apparently supervised little by your grandparents. At age nine you discovered through your sister than an occasional visitor to your home was in fact your mother. This had an enormous effect upon you, you struggled emotionally and a year later, aged ten, left home.

    You told psychologist, Ian Joblin, whose report dated 17 December 2010 was tendered on the plea, that for about a year you lived on the streets in Ballarat occasionally staying with friends. You returned twice to live with your grandparents, the second time returning to school and completing Grade 6. You never attended secondary school. According to Mr Joblin you can read the newspapers but prefer not to write. At age 13, you tried living with your father in Melbourne. He had repartnered and had more children and you did not get along with this new family. You soon left but not before he had introduced you to cannabis use. You then tried living with your mother who had moved to the Ballarat area. She had also repartnered and again your stay there was unsuccessful, but in that time she introduced you to alcohol, she by then being a full blown alcoholic. You have had no contact with your father at all since that time and have not seen your mother for 20 years.

    You went on to develop serious problems with alcohol and cannabis. You lived on the streets in the St Albans/Werribee area and at about age 16 came to Mildura, possibly, according to your counsel, with the notion of making a fresh start as a fruit picker. You met up with a man named Scott Chapman, also an itinerant worker, and stayed in a picker's hut with him and began working on blocks in the Mildura area. Chapman was an offender and you became involved in offending behaviour with him.

    In 1995, aged 18, you were convicted in the Melbourne Magistrates' Court on charges of motor vehicle theft, theft from motor vehicle and driving charges and ordered treatment for drug and alcohol abuse and Pleasant View. A condition of the order was that you were not to have contact with Scott Chapman.

    In 1994, the Mildura Magistrates' Court placed you on a 12 month community-based order for theft of motor vehicle and wilfully damaging property. You told Ian Joblin that by this stage you had developed serious problems with drugs and alcohol which interfered with your employment and you would sporadically come to Melbourne and either live with friends or live on the streets.

    In 1995, at age 18, you had formed a relationship with a girl, Tanya, who you lived with for a year, returning to work and the two of you had a daughter, but the relationship then ended. You returned to live with Chapman and became involved in further offending. Your daughter is now 16 and lives with her mother and you have some contact with her.

    Soon after you met Emma, your current de facto partner. You met her in St Albans and the two of you eventually moved back to Mildura, where you have since remained, renting houses and you obtaining seasonal work on blocks in the area. You have been unemployed for some time, presumably because of the injuries you received in the accident. Both you and Emma have seven children aged between five and 14 years.

    You have what Mr Joblin, an experienced forensic psychologist described as "an extraordinary history of drug and alcohol abuse." You have been drinking regularly since being introduced to alcohol by your mother when you were 13. You told Mr Joblin you drink daily and cannot stop once you start. You drink beer and then progress to wine or port, you drink at home or on your own. You told Mr Joblin that alcohol causes you to become aggressive and that your family knows they must be careful of what they say to you when you are drunk because you become angry. Indeed you have assaulted Emma when drunk and you do not drink spirits because of its effect upon you. Apparently your way of dealing with the situation when drunk and angry is to get into your car and drive away and this is what apparently occurred on the day of this terrible incident of 9 June 2010.

    You also smoke cannabis daily and have done so since being introduced to it by your father. You apparently smoke about three to five grams of cannabis per day using a bong, which is a very large habit. You told Mr Joblin if you do not smoke cannabis you become anxious and start drinking. You also told Mr Joblin you have used amphetamines but have not done so for some months before he interviewed you.

    It is Mr Joblin's view that you are a serious alcoholic and he noticed that you had made strenuous attempts at the time you saw him not to drink before travelling from Mildura to Melbourne where the interview with Mr Joblin took place. He said when he saw you, you were shaking and sweaty and told him that before you travelled back to Mildura you would need alcohol to feel normal again.

    I accept that you are addicted to both alcohol and cannabis and have been for many years. You have had no professional assistance for your addictions since the order sending you to Pleasant View, where you told Mr Joblin you only remained for a couple of months. Ultimately at that time you ended up in Pentridge, where you were presumably sent after breaching the order, although there is no mention of this on your criminal record.

    Your offending history continued. Your counsel informed me that because of your alcohol and drug use you have little recall of the various offences. However in April 2000 you were placed on a community-based order for three months for driving offences and a charge of driving with a blood alcohol content exceeding .05 per cent.

    In May 2005, the Mildura Magistrates' Court placed you on a suspended sentence, on a second charge of driving with a blood alcohol exceeding .05 per cent together with charges of driving whilst disqualified, driving without authorisation, using an unregistered vehicle, exceeding the speed limit, using cannabis and cultivating cannabis and fraudulent use of a number plate.

    In 2006, you were gaoled for two months for breaching the suspended sentence, after committing assaults upon your partner, Emma.

    In 2008, you were fined for theft and obtaining property by deception and in 2010 were fined for indecent assault, which incident occurred, you told Mr Joblin, when you touched a woman on the buttocks whilst you were drinking in a hotel.

    Whilst he did not conduct any formal testing upon you, it was Mr Joblin's view that you have a limited intelligence and that your have intelligence problems have been compromised by your use of alcohol and cannabis. He believed your practice of getting drunk and angry and then taking yourself off in a car to avoid difficulties seemed to be a pattern around the time of this offending. You told Mr Joblin that on the morning of 9 June last year you and Emma bought a six pack of beer for you and a six pack of bourbon mix for her. Around lunch time the two of you drank both six packs. You got drunk, became obnoxious and decided to leave. You said you had no recollection of events after that until you woke up in hospital. You do recall Emma tried to get you to eat something before you left but that you would not. You also told Mr Joblin that normally if you were angry and upset you would buy a bottle of wine from the bottle shop and sit by the road and drink it. You are unable however to account for the two and half hours between leaving your home and the collision.

    In your record of interview you told police you left home in Emma's car, which she had owned for four to five months, and that you were aware, having mechanical knowledge and having checked the car mechanically about a week before, that there were problems with the suspension.

    (Impact of your actions)

    You have offended subsequently to being charged with the offences before this court. In mid November your two eldest boys ran away from home. This case attracted an amount of media attention, your elder son accompanying you to court on your first appearance. He was subsequently bullied and taunted over your offending to the point that he dropped out of school where he had previously been doing well. Thankfully, he plans to return this year. Your son, of course, is in no way to blame for your actions and it is extremely sad that a teenage boy should be treated so cruelly by others when he obviously would have been suffering the terrible stress of his father being charged with such appalling offending and it would have been hoped that he would receive sympathy rather than the bullying behaviour that he was then subjected to.

    Obviously also you are going to be sentenced in relation to this and I have no doubt that this case will attract further media attention and I hope that any such report on this case includes something about the suffering that your son has undergone and comments by me that I would hope that that sort of behaviour towards your son would not occur again and that he would attract sympathy and support rather than the damaging attention he has received so far. In any event, apparently your two oldest boys ran away due to the stress surrounding this offending and police were notified and began a search. You became frantic and got into Emma's car to look for them. You were charged with driving whilst disqualified.

    On 10 January 2011, your bail was revoked when you were charged with recklessly causing injury, assault and criminal damage. Your counsel told me you got into an argument with your landlord over an insufficient water supply to your rented house after you had been using both alcohol and cannabis. An argument developed between you and Emma over your approach to the landlord. She threw a bicycle seat at you, you threw it back and hit her on the neck and threw her mobile phone on the roof to stop her calling police. You have remained in custody ever since being charged with those offences.

    You have done nothing since this incident in relation to your cannabis and alcohol addictions, except to continue on with them. Your counsel said Emma has wanted you to attend to them for years and that you, yourself, have felt you needed to do something but had never made the first move. He said your main achievement related to your children. He said that you loved them, had never hurt them and if there were any physical problems it was between yourself and Emma. You also made attempts to hide your cannabis problem and cannabis use from your children. I do note that there was no evidence of any kind tendered in support of this although Emma was present in court, but I do accept that the main achievement in your life has been your attempts to be as good a father as you possibly can be.

    However, your actions have wreaked the most dreadful damage on your victims. Ms Watters suffered multiple fractures to her right leg. As I said, a titanium rod was inserted in her leg from her hip to her knee. She endured terrible pain while she was trapped in the car for an hour before being rescued. Her ear was almost severed and reattached with 34 stitches, also an extremely painful experience for her. She has required ongoing surgery, she has required treatment and physiotherapy, she has a noticeable limp and she cannot walk for more than 500 metres. The timing of this accident was appalling for this young couple. Only four days previously they had become engaged. They were expecting a much wanted child. Ms Watters had planned to join the police force in about a year. The injuries have put an end to these hopes and dreams.

    She and Mr Adams were looking forward to the birth of a much longed for child. They had already endured a previous miscarriage. The child died in the collision and was delivered after a 48 hour labour. The baby was christened and buried. He was named Cameron and this entire incident has just resulted in the most extraordinary emotional and physical damage to Ms Watters. As I hope I have indicated, virtually everything she and Mr Adams had planned for in their lives has been destroyed by this collision.

    The victim impact statement that was tendered on Ms Watters' behalf spoke eloquently of the continued heartbreak and loss, of the physical pain that she continues to suffer and it made for heartrending reading and was unspeakably sad. Her partner, Mr Adams, though less seriously injured physically, was nevertheless traumatised trying to comfort his fiancé who was in tremendous pain before being rescued from the wreck. He as also shattered by the loss of his baby son. He had a pre-existing psychological condition which has worsened and been exacerbated by the events of 9 June 2010. Further, his father was killed in a car accident in 2000 and the trauma surrounding that event has been reignited by he himself being involved in such a serious motor collision. The car owned by Ms Watters and Mr Adams was not insured. In addition to all the other suffering, they continue to bear financial burdens arising from this night, they have had employment troubles, they spoke of having to be supported financially by their families, which is a huge burden for them. They worry about ever being able to pay those moneys back. They both continue to undergo psychotherapy to help them come to terms with the extraordinary loss and injury you inflicted upon them that night.

    The prosecution has submitted that there are a number of aggravating features in this case.

    (1) Before the collision your driving was clearly unbelievably dangerous. You were travelling well over the speed limit. You drifted all over the road, often onto the wrong side of the road.

    (2) The collision with Ms Watters occurred so far into her lane, that even her efforts, because she saw you coming, to pull over to the left and avoid you were to no avail.

    (3) Your alcohol reading was exceptionally high. It is extremely fortunate that no other motorists were injured or indeed killed.

    In regards to the manner of your driving, this is a most serious example of this type of offence. You had no licence, you have been twice before convicted of drink-driving. You have caused the most immense suffering and damage. I accept Mr Joblin's opinion that you are remorseful and this has been underlined by your cooperative record of interview with police and your early plea of guilty, but a more wanton, reckless, dangerous example of driving could hardly be imagined. Nor have you taken any steps at all to address the addiction which led you to behave in this way.


    As I have said, about the only matter your counsel was able to put in your favour was your care for your children. As I reminded him, however, this aspect of your life, which I do accept, is in reality irrelevant for the purposes of sentencing. I may not take family circumstances into account in sentencing a person unless the hardship to be visited upon them by the gaoling of a family member is exceptional and unfortunately that is not so in your case, even though I recognise there will be great hardship and suffering and that you will be greatly missed by your family.

    The courts have made it very clear that when sentencing an offender who has deliberately disobeyed the law, that is has made a conscious decision to drive a car whilst drunk, that the principles of general deterrence, that is a sentence which sends a message out to the community that this behaviour will not be tolerated and will be met with severe punishment is a major task at hand for the sentencing court.

    Further, you must be personally punished for what you have done. I accept that you have had some terrible experiences as a child, that you were not cared for properly, that you turned to alcohol and drugs and that you are addicted to both substances. That is something, however, you also knew and you have never done anything about either problem. As I have said, you have caused the most appalling misery and suffering on each of your victims. Your driving on that night, that dreadful collision, ruined the hopes and dreams of each victim and has left them struggling in their lives financially, emotionally and physically and in a way which will probably affect them for ever.

    I accept the aggravating features which were put forward by the prosecution. In all the circumstances, I accept the prosecution submission that the gravity of your offending must attract an immediate sentence of imprisonment to be served and that it must be a substantial sentence. Further, in all the circumstances, in my view, there should be considerable cumulation in relation to the charges of dangerous driving causing injury. The likelihood of there being more than one person in any car you might have collided with was of course extremely high. The damage you inflicted on each victim was most serious.

    In sentencing you, I take into account your early plea of guilty. I accept, as I have said, you are remorseful for your actions, as shown by your cooperation with police. I accept, as I have said, you had a difficult childhood and that you are a caring father. I do add, however, that you are a father who has not had the insight to address your addictions which have clearly caused a lot of domestic unhappiness and which has now led to the awful trauma for your partner and in particular your children, having to deal with the fact that you are to be gaoled for some time. I therefore sentence you as follows.

    Could you stand up please.

    On Charge 1, you are sentenced to four years' imprisonment.
    On Charge 2, you are sentenced to three years' imprisonment.
    On the charge of driving with a blood alcohol content exceeding .05 per cent, you are sentenced to 12 months' imprisonment.
    On the charge of driving with an illicit substance present in your bloodstream, you are sentenced to three months' imprisonment.
    On the charge of unlicensed driving, you are sentenced to two months' imprisonment.
    On the charge of driving an unroadworthy vehicle, you are fined $500.

    The base sentence will be the sentence imposed on Charge 1, that is four years. I order that two years of the sentence imposed on Charge 2 be served cumulatively to the sentence imposed on Charge 1 and all other sentences. I order that 12 months of the sentence imposed for driving with a blood alcohol content exceeding .05 per cent, that six months of that sentence also be served cumulatively to the sentence imposed on Charge 1 and all other sentences, giving a total effective sentence of six years and six months.

    I order that you serve a minimum term of four and a half years before becoming eligible for parole.

    Has any time been served by way of pre-sentence detention in relation to this charge?


    HER HONOUR: All right. Yes, thank you. Obviously you are disqualified from obtaining any licence for a period of six years. Thank you, take Mr Gangur away please. Yes, thank you, we will stand down.

  2. That's sobering.
  3. Cars......the weapons of the future.
  4. absolutely a terrible tragedy
    ...... but i cant help but think of the impact of the offenders childhood. he was pretty much destined to be a failure. how different things may have been if he didn't find out about his parents till later (or earlier - when it could be accepted as normal)

    still no excuse for his actions, absolute heart wrenching
  5. Of course, people never ride bikes under the influence of drugs or alcohol.....
  6. Yeah, but in my experience, a lot less percentage of motorcyclists ride under the influence compared to cars or trucks. Is it because we take our mode of transport more seriously??
  7. I agree, brownyy, not the least because of the need to be able to balance to start with :LOL:.. I don't think I've ever seen a person riding a bike under the influence of anything, but I don't think we can take such a self-righteous position as to lay all the blame for everything at the feet of cars, or any other source or force, that's all...
  8. im going to say thats because if their stupid enough to ride under the influence. they are stupid enough to do something else on the bike before this to write it or themselves off (easy on a bike - most likely speed related). unfortunately a cage is safer/slower/easier so they get alot more chances
  9. so what does all that mean
    he's back on the road to murder another unborn child in what, 3 years.
    makes me sick.
    personal circumstances. give me a break. he's had an easier life than about 70% of the people on this planet.
    if it was my fiance i'd be there to greet him apon release. as much as i hate to admit it.
    and then even more lives will be ruined.
    would'nt have to be that way if the court had dealt justice initially.
  10. i cannot comprehend people who know they have issue's with blacking out...not remembering what they do when drunk..getting behind the wheel...i dont advocate drink driving however there are countless people who do it within reason...5 or 6 drinks at the pub...understanding they are drunk and tend to drive either at or under the speed limit..and still know if they hit a point where they've drunk so much that they cant honestly tell themselve's that they can operate a vehicle safely...they wont.

    then there's the others...like the stumbler's...that seem to have no control of themselves...and proceed to hop behind the wheel..it's mind boggling...

    regardless of this..i really dont want to turn this into a drink driving thing or a thing about this fella's upbringing ect ect.... the point is...i used to live in mildura for a year or so..with my now fiance'..so as above posted it is a very sobering read..and it scares me to even consider being put in this couples position...i feel immensely sorry for them and hope in time they fall pregnant again after having this incident take away one of the best thing's that a couple could hope for..a child to raise and to become there own family..

    as for the sentence...it is what it is...we're rarely happy with the justice system...98% of the time it's either too little or too much...i would've like to see a few more years added to this as it is ...mind numbing - but there's not much that can be done now.
  11. Oh I think we can be self righteous, I think that's exactly what we can do. I think motorcyclists are at the top of the road user evolutionary tree.

    Power to weight ratios of 1:1. The fastest accelerating machines on the road. Finely tuned high performance vehicles requiring high performance pilots to master them. That is something to feel righteous about, and if only motorcyclists can see it then I guess there is no option but self righteousness. But then it would take a motorcyclist to actually see that.
  12. My view of drink drivers is rather biased as I've had a number of friends injured or killed by drunk drivers.

    Personally, I think if you make the decision to drive under the influence and as a result you have an accident involving another person, the charges should start at attempted manslaughter and go up from there.

    As for Chef's post of

    I disagree. They are the weapon of today. I've had a few cops tell me that if you want to kill someone and effectively get away with it, run them over with your car. Given you aren't speeding, drunk etc, you will pretty well get away with it. Ok, you might loose your licence for a while, but, all things being equal, you won't be doing any gaol time.

    Hornets post

    Shows he doesn't actually understand what Chef was talking about. Of course riders ride under the influence, however, the effect of an out of control bike on other road users is minimal compared to the effect an out of control car.
    • Agree Agree x 1
  13. words can never describle what this young couple suffered no words to mend their broken hearts.i feel guilty every single day as I was the owner of that car.he should of got a hell lot more!!! I could say so much about this idiot but all I know is he is getting out either 6/1/14 or 6/2/14 justice system what justice system
  14. It's also good to read the full statement and get a sense of all the issues the judge must weigh up in sentencing.

    Which is why knee-jerk mandatory sentencing is stupid.
    • Agree Agree x 1
  15. My sister is the same sort of idiot as this guy. Yeah, I know it can be an addiction and she certainly is addicted but I agree with the "you have never tried to do anything about it" stance. She never has. She won't admit it. Somehow the balance is out to me and she gets more from it than the weight of what happens when she is caught and the consequences of the drinking itself such as possibly killing someone, money, effect on the kids, making her brain turn to jelly etc.

    I reckon it needs to be deeply ingrained in people not to drink and drive so that if the time comes that you have had a few and your judgement is out then it is so deep that you don't do it. Either you ingrain that yourself or you come down on those that do it very hard and scare the schit out of them and others that might consider it.

    My sister has been done DUI twice. She has driven over many times. First DUI she lost her license for 18 months. Interlock on (she's in Vic) for a while when she got it back. Then, a few months ago she gets done again (interlock time over). Lost her license for 3 years.

    What schits me is that they might only need to do a "course" when they go to reapply for their license. So, with her there's another 3 years of drinking. Am not saying the course is enough though. I reckon it isn't and obviously wasn't enough for her.

    Now she reckons she will never get her license again. An admission she will always have this "drinking problem". Good thing if she never gets it again. Family just tries to live with the rest of the hassles the drinking causes and the daily calls when she is drunk and on a whinge binge.
  16. How so? 4.5 years from Feb '11 is August 2015...
  17. Went to court for an apeal and won 18months off his sentence
  18. At the appeal the head sentence was reduced from 6y6m to 5y3m which is a reduction of 15 months.

    The non-parole period was reduced from 4y to 3y, and the reason for the reduction was errors in the original sentencing at the County Court.

    John Andrew Gangur v The Queen VSCA [2012]

    Court of Appeal

    Judges: Buchanan, Neave & Redlich JJA
    Date of hearing: 14 May 2012
    Date of Judgment: 27 June 2012
    Judgment appealed from: (Unreported) DPP v JOHN ANDREW GANGUR

    Ground 1 (accepted)

    7. This ground alleges that:

    the learned sentencing judge erred in imposing a sentence of imprisonment for the offence of driving with an illicit substance present in blood when the maximum penalty was a fine.​

    8. Since the Crown concedes that error is shown in this ground, the sentence of imprisonment imposed on this charge must be quashed and the appellant must be re-sentenced.

    9. The maximum penalty for this offence is 12 penalty units. We would resentence the appellant to a fine of $500 for this offence.

    Ground 2 (rejected)

    10. This ground alleges that:

    The learned sentencing judge erred in cumulating 6 months of the sentence on the charge of exceeding the prescribed concentration of alcohol, in circumstances where this amounted to double punishment.​

    11. The appellant submitted that the learned sentencing judge had accepted ‘the aggravating features which were put forward by the prosecution’. This referred to the Crown’s reliance on the appellant’s high alcohol reading as a factor which aggravated the appellant’s culpability for the two charges of dangerous driving causing serious injury.

    12. It was submitted that the appellant was subjected to ‘double punishment’ because, as well as taking account of his alcohol consumption as an aggravating factor in sentencing him for charges 1 and 2, the judge had ordered that 6 months of the sentence imposed on the summary charge of exceeding the prescribed concentration of alcohol should be cumulated on the base sentence of four years’ imprisonment imposed on charge 1.

    13. In his written submission, counsel for the appellant relied on the decision of the High Court decision in Pearce v The Queen. In that case, McHugh, Hayne and Callinan JJ emphasised that the question of whether double punishment had been imposed should not be approached with excessive technicality. They went on to say that:

    To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.​

    14. In addition, the appellant relied on s 51 (1) of the Interpretation of Legislation Act 1984, which provides that:

    Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.​

    15. The issue of ‘double punishment’ was considered by this Court in R v Audino. In that case, the appellant pleaded guilty to (among other things) culpable driving, and the summary offence of exceeding the prescribed blood alcohol concentration. The learned sentencing judge ordered that one month’s imprisonment imposed for the summary offence be served cumulatively to the other sentences. The appellant contended that this amounted to double punishment.

    16. Section 318 (2) of the Crimes Act 1958 describes four situations in which a person ‘drives a motor vehicle culpably’. One of these situations is where a person drives a vehicle ‘whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle’.

    17. In Audino, Maxwell P (with whom Ashley and Neave JJA agreed) observed that the act of driving with excess alcohol in the blood was an element of both the indictable offence of culpable driving and of the summary offence of driving while exceeding the prescribed concentration of alcohol.

    18. On the basis of the passage in Pearce set out above, his Honour held that it would amount to double punishment to sentence the appellant twice for the same act. Thus, in re-sentencing the appellant, the Court did not impose any penalty for that summary offence.

    19. It may be that Audino could have gone further. Arguably, even if there is an apparent overlap between the elements of a summary offence (for example, driving while exceeding the prescribed concentration of alcohol) and the more serious offence (for example, culpable driving whilst under the influence of alcohol), there may be no double punishment if the summary offence was committed prior to the acts necessary to establish the more serious offence. However, that argument may be inconsistent with the proposition in Pearce that double punishment should not be approached with excessive technicality. Further, it is not necessary to express a concluded view on this issue, which was not argued before us.

    20. Although the appellant relied on Audino in his written submission, at both the leave hearing and the hearing of the appeal, he conceded that Audino was not on all fours with the facts of this case, and that the judge had not erred by imposing a sentence of 12 months’ imprisonment on the drink driving offence. However, he maintained his argument that the appellant had been doubly punished because the judge ordered that 6 months of that sentence be served cumulatively on the base sentence.

    21. The appellant correctly conceded that Audino did not assist him. As Maxwell P observed in that case:

    Had it been necessary to decide the question, I would have reached a different conclusion with respect to the summary count of driving while disqualified. There was no common element between that offence and the offence of causing death by culpable driving. Nor, in my view, does any question of double punishment arise merely because the fact of driving while disqualified was treated as aggravating the seriousness of the culpable driving charge. The summary offence was committed immediately the appellant began to drive her car. The fact that she ought not to have been on the road at all, because of a drink-driving disqualification, was separately relevant to the court’s assessment of the culpable driving offence.​

    22. That reasoning requires the rejection of ground 2. The offence of being in charge of a vehicle or driving a vehicle while exceeding the prescribed concentration of alcohol was committed as soon as the appellant took charge of his car (or at the very latest, when he began to drive).

    23. The offence of dangerous driving causing serious injury is created by s 319(1A) of the Crimes Act 1958. That section provides that:

    A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes serious injury to another person is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).​

    24. It is not an element of that offence that the driver exceeded the prescribed concentration of alcohol. The dangerous driving offences occurred after the appellant had committed the summary offence. They were committed when the appellant seriously injured the victims by colliding with their car, while exceeding the speed limit and driving on the wrong side of the road.

    25. It follows that her Honour did not err by cumulating a portion of the 12 month sentence imposed on the summary offence on the base sentence, as well as treating the appellant’s high blood alcohol reading as aggravating his moral culpability for charges 1 and 2. However, as we explain below, the total effective sentence imposed by her Honour did not take sufficient account of the principle of totality.

    Ground 3 (rejeceted)
    Ground 4 (accepted)
    Ground 5 (rejected)

    26. These grounds can be dealt with together. They were as follows:

    3. The sentences imposed on counts 1 and 2 were manifestly excessive, having regard to the circumstances of the offence, the applicant’s remorse, and the extent of the harm caused.​

    4. The total effective sentence offended against the principle of totality as a result of the base sentence (count 1) being too high and too great cumulation being ordered in respect of count 2.​

    5. The learned sentencing judge erred in not taking into account the additional burden of imprisonment borne by the applicant arising from the hardship suffered by his family as a result of his imprisonment.​

    27. The appellant contended that the sentences imposed on charges 1 and 2 were outside the range of sentences reasonably open to the judge, having regard to her Honour’s acceptance of numerous mitigating factors. These included the appellant’s difficult upbringing, his introduction to alcohol and cannabis by his parents, his early plea of guilty and significant remorse, and the additional burden of imprisonment arising from the hardship that will be suffered by the appellant because of his knowledge of his family’s hardship during his imprisonment. It was also argued that the injuries suffered by the victims were serious, but ‘not catastrophic’.

    28. The appellant relied on Table B set out as an appendix to this Court’s decision in R v Towle. Table B describes the sentences imposed for the offence of dangerous driving causing serious injury in the County Court of Victoria and also includes some sentences imposed by the Court of Appeal. The appellant relied upon the fact that the highest sentences imposed by the County Court for an individual counts of dangerous driving causing serious injury were in R v Naumann and in R v Tozer.

    29. In Naumann, a sentence of 3 years’ imprisonment was imposed on an offender who had a previous conviction for driving without a licence. In Tozer, sentences of 3 years and 6 months’ imprisonment were imposed on an offender who had pleaded guilty to two counts of dangerous driving causing serious injury.

    30. As has frequently been observed, care must be taken in comparing sentences imposed for the same offences on other offenders. However, it is fair to note that the sentences imposed on both the dangerous driving charges in this case were at the top of the range, by comparison to the sentences for this offence set out in Table B.

    31. The judge characterised the appellant’s offending as ‘the most serious example of this type of offence’. We agree with that description. The offender’s moral culpability was very high. Although he may have been unable to control his alcohol addiction, he must have been aware of the high risk of driving when he had been drinking. He had a long history of driving offences, including two convictions for exceeding the prescribed concentration of alcohol and one for driving recklessly.

    32. Although neither of the victims suffered paraplegia or brain damage as a result of the collision, throughout her life Ms Watters will be reminded of its occurrence by her leg injuries. The two victims lost their unborn child, and Mr Adams’ psychological condition has been exacerbated as the result of the accident. In our opinion, the sentence, although stern, was within the range of sentences which could be imposed in the circumstances of this case. For these reasons, ground 3 is not made out.

    33. We take a different view of ground 4. In sentencing the appellant, the judge was required to take account of the fact that his driving had injured two people. However, the sentence of four years’ imprisonment imposed on charge 1 was at the top of the range. Having imposed a stern sentence on charge 1, her Honour should not have cumulated two years of the three year sentence imposed on charge 2.

    34. In Towle, Maxwell P referred to orders of cumulation of 50 per cent in both R v Guariglia and in DPP v Solomon, which were made to take account of the fact that there were multiple victims of the culpable driving of those offenders.

    35. In this case, two thirds of the sentence imposed on charge 2 was cumulated on the base sentence. The effect of that cumulation, combined with the order cumulating 6 months of the sentence imposed on the summary charge of exceeding the prescribed concentration of alcohol, produced a total effective sentence which was disproportionate to the appellant’s overall criminality and breached the principle of totality.

    36. Ground 5 complains of her Honour’s failure to take account of the way in which the appellant was affected by his family’s difficulties. The judge referred to the problems experienced by the appellant’s family several times in her sentencing reasons. Although she did not specifically allude to the additional burden of imprisonment which the appellant would suffer as a result of the hardship suffered by his family, we are satisfied that her Honour had regard to this matter.

    37. Because grounds 1 and 4 are made out, the appellant must be re-sentenced. His counsel submitted that in determining the sentences which should be imposed on him, the Court should take account of the fact that he was now serving his term in Loddon Prison. Because his family had moved to Ministry of Housing accommodation in Traralgon, they had difficulties in visiting him and he rarely saw his partner and children. Tragically, the appellant's 16 year old son suffered a brain injury in a car accident after the appellant was incarcerated.

    38. While in prison, the appellant had had clean drug and alcohol tests and was now working as a billet. He was on a waiting list for a course relating to misuse of drugs and alcohol and was studying for a certificate in business.

    39. Finally, the appellant’s counsel submitted that the appellant should receive a longer than usual parole period so that he can be supported in abstaining from alcohol once he is released. Reliance was placed on the psychological report prepared by Mr Ian Joblin, which was provided to the sentencing judge. In his report, Mr Joblin stated that ‘the longer [the appellant] receives supervision at a coercive level, the greater will be the benefit for him, his family and the community’, and it would be very important that on release, [the appellant] is offered assistance to abstain when alcohol and cannabis are again available’.

    40. Having regard to all of these matters, we would re-sentence the appellant as follows: <removed>

    41. This will amount to a total effective sentence of five years and three months’ imprisonment, with a fine of $500 for each of the summary offences of driving with an illicit substance present in blood, and using a vehicle not in a safe and roadworthy condition. We direct that the appellant serve a non-parole period of three years’ imprisonment.

    42. We declare pursuant to s 6AAA of the Sentencing Act 1991 that if the appellant had not pleaded guilty, we would have sentenced him to a total effective sentence of seven years’ imprisonment, with a non-parole period of four years.

  19. #19 ogden, Jan 6, 2014
    Last edited: Jan 7, 2014
    Tragedy is a much misunderstood and overused word. It’s a long time since I’ve read an account about a contemporary event that genuinely warrants its use. Yet, I think this does.

    Consider the bloke: Broken home. Unstable upbringing. Intermittent schooling. Smoking weed at 13. Drinking alcohol not long after. Homeless at 15. Drinking and smoking drugs daily, it would appear.

    Consider this: the brain of a normal, well nourished and healthy person doesn’t stop maturing until around the age of 23. The negative impact of drinking alcohol before 23 is much greater than its negative impact after. The earlier in life you drink, and the harder your drink, the more you wreck your brain's development.

    [Edit: checked my facts. Source is Martin Jackson (Dr Psych, La Trobe) . 24 is the age the brain stops maturing. The safe limit of alchohol until 24 is six std drinks a week! People older than 24 can safely consume 4 std drinks a day without risk of brain injury.]

    One of the cognitive functions that matures during late adolescence is impulse control. This is why teenagers engage in risk-taking activities that they (usually) tend to grow out of in their 20s. One of the key things that alcohol does (and why its so enjoyable to have a drink), is to retard the function on the brain’s frontal lobes, which is the part of the brain responsible for impulse control. That feeling of relaxation and the lowering of inhibitions that comes with a couple of drinks IS this retarding of the function of the brain’s frontal lobes.

    Alcohol does cause brain damage, and you don’t have to drink much before the impact starts. My gf attended an acquired brain-injury conference a while back, and one of the blokes presenting his research reported that four standard drinks a day will get you into the zone where alcohol-induced brain injury starts. The effects are small, but cumulative. The good news, given most of us do drink, and many of us don't limit ourselves to two when we do drink, is that that having two alcohol-free days each week, and thereby giving our liver and brain extended alcohol-free time to recover, goes a long, long way to limiting and repairing this damage. Do this, and it’s not a thing most of us should be worried about.

    But, it sounds like our drink driver in this case was drinking nearly every day from his mid-teens and drinking heavily. This will have destroyed any hope that his brain will have properly developed, especially that part which is responsible for impulse control. What impulse control he may have developed in spite of this will be further retarded whenever he hits the bottle.

    The evidence that this is the case is there in the sentencing report:
    - Has a history of theft (no impulse control)
    - Can’t stop drinking or taking drugs (no impulse control)
    - Gets angry, abusive and violent when drunk (no impulse control)
    - Attempts to deal with his lack of self control by removing himself from the situation, frequently getting into the car drunk, even when the car is not safe to drive... (you get the picture).

    Knowing this, can it honestly be said that this poor, stupid brain-damaged bastard is responsible for his actions? Is locking him up going to achieve anything other than sating the public’s lust for revenge? What good is a holding him up as an example and a warning, when those likely to heed it don't need it, and those who do wont take any notice anyway? Is he likely to come out the other end of his 4.5 years a different man? Does he have any chance of becoming a reformed character? I doubt it. Prison is brutal and brutalising. He’s likely to come out worse.

    At best, the most that can be hoped for by locking him up is that it will help keep others out of harms way… And perhaps that's not insignificant.

    But what about the victims? What about the unborn child he killed, the mother he’s crippled and the father whose sanity he’s compromised?

    The truly awful thing is that these things can’t me measured. No pound of flesh is ever going to be big enough to fill the hole he’s cut through these peoples’ lives. It’s senseless to even try to gauge the gap between the punishment and the effects of his crime. If justice is done in a case like this, it isn’t done for the victims. How could it be? Justice has no relation to the innocent.Justice is either done or not done, and its only relation is to the criminal, never to the victim, whatever pleasure the aggrieved may or may not take in seeing punishment exacted. I wonder if the woman who lost her unborn child has any taste for it?

    This is why I think it’s tragic. Was it random or fated? Is there any difference? Either way, it was going to happen. Sooner. Or later. It was just a matter or time. The inhuman turning of a machine that cuts through human lives. The only thing that wasn’t fated was the identity of the poor bastards he crashed into. They could have been anyone. I wonder if he doesn't sometimes wish if was only himself that he killed? I wonder if he has the capacity for such a thought?

    I’m not even sure there is any sense to be made of it. Think about it and his personal history? At what point could or should an intervention have been made that would have prevented this? What scale could an intervention have taken to be sure of working? Is that a vision of a society we would even want to live in? In which case is locking him up anything less than a pathetic attempt to maintain the illusion that we have any real control over our lives?

    The whole tale is just truly, fucking horrific.

    Thanks to Justus for posting it.
    • Like Like x 1
  20. Refer to [38].


    Yes, from memory, I believe that was the reason for creating the thread.

    No probs mate.

    The question has been raised why only part of a sentence is served cumulatively so I'll answer the Q here instead of replying the PM.

    Crimes (Sentencing Procedures) Act 1999.

    s 55 Sentences for offences generally
    s 56 Sentences for offences involving assault
    s 57 Sentences for offences involving escape
    s 58 Limitation on consecutive sentences
    s 59 Court may vary commencement of sentence
    s 60 Application to Division of interstate sentences

    ss55-60 all provide provisions relating to imposing concurrent and consecutive sentences. When a court sentences the offender for multiple offences, the overall sentence must be just and appropriate to the totality of the offending behaviour.

    At a federal level, you have s 16B Crimes Act 1914, 9AD, 19AE, and 16A(2).

    This forms the basis of the 'totality principle' which has been adopted by the High Court of Australia eg.

    Mills v Regina HCA [1988] at [8]:

    "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it has imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong('); 'when... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all offences'"​

    McHugh J in Postiglione v Regina HCA [1977] said:

    "the Court adjusts the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences"​


    "A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender 'a crushing sentence' not in keeping with his record or prospects."​

    Therefore, the severity of a sentence imposed for multiple offences is not purely linear, and the totality principle is designed to avoid a court imposing a crushing sentence, hence the reason portions of a sentence for one offence is served concurrently with others, instead of cumulatively.