Prosecution v Accused

3 Manslaughter is a category 2 offence under the Sentencing Act 1991 ('the Act').[2] I am therefore required to impose a custodial sentence, unless an exception under the Act applies.[3] It has not been submitted on your behalf that I should do anything other than impose a term of imprisonment and set a non-parole period.

4 Late in the evening of 3 September 2023, you were driving a white Hino truck registered to your employer. You were not licenced to drive a car. You drove to a car park at 2 Frederick Street, Doncaster, which belonged to Hansen Technologies. That car park was opposite your apartment complex. You manipulated the boom gate so that you could enter.

5 Your movements were captured on CCTV and watched by a night shift employee of Hansen Technologies, Mr Declan Clinch. Mr Clinch called Mr Row, who also worked for the company and was the nominated building contact. Mr Clinch informed him of the Hino's presence and asked whether police should be called. Mr Row told Mr Clinch that he would be there shortly.

6 At approximately 11.20pm, Mr Row's Holden Commodore entered the car park and stopped behind the Hino. A short time later, the Hino reversed towards and collided with the Holden, damaging it. The Hino then left the car park, with Mr Row in pursuit.

7 The Hino approached the intersection of Frederick Street and Doncaster Road. Before both cars reached the intersection, the Hino again reversed towards the Holden. The Holden reversed to avoid a collision but continued pursuing the Hino.

8 At 11.23pm, Mr Row called 000 to report what he believed to be an attempted burglary at his workplace and the subsequent damage to his car. Mr Row indicated that he was following the person but could not see their registration and was not getting too close, as he thought they might ram his car again.

9 At 11.24pm, you made two calls to your brother, Eugenio Costanzo, which were both unanswered. You then made a 50 second call to your mother, Ninette Placentino. During that call, you spoke to your brother, as well as your mother's partner, Timothy Alexopoulos (also known as 'Foti'). An associate of the group, James McKenzie, was also present. After the call ended, you drove to your mother's address in Red Hill Terrace, Doncaster East. The three men came out on to the street.

10 Shortly after, the two cars drove north up Andersons Creek Road towards Red Hill Terrace and your associates.

11 Mr Row remained on the phone to police, updating them as to his location and telling them that the driver of the Hino had 'arranged for people to come out onto the road'. My understanding is that it is not alleged by the prosecution that you, in fact, organised for your associates to come out on the road.

12 The Hino pulled up outside number 1 Red Hill Terrace, and the Holden stopped a short distance behind. You were captured on CCTV exiting the Hino and moving towards the Holden. Mr McKenzie also approached the Holden from the driver's side. He had a piece of temporary fence steel gate in his hands. He placed the metal gate in front of him, partially blocking the car. He yelled 'what the fuck are you gonna do?' while approaching the Holden.

13 At 11.31pm the Holden accelerated forward and drove off, colliding with Mr Alexopoulos, who was flipped over the bonnet. Your brother ran after the Holden on foot. You ran to Mr Alexopoulos. Mr McKenzie yelled at you, saying that you had 'brought this shit here' and 'did this to Foti'. You became agitated and had to be restrained by Mr Alexopoulos, who told you to 'leave it'.

14 You then ran back to the Hino and drove off in pursuit of the Holden, with your brother also in pursuit on foot.

15 Although the 000 call line remained open, Mr Row did not respond to police from the time of his collision with Mr Alexopoulos.

16 Mr Row continued down Andersons Creek Road and turned into Tidcombe Crescent. He stopped the Holden 144 meters from the intersection. The headlights were on, and he was parked on the left hand side of the street.

17 You continued to pursue Mr Row in the Hino, with the headlights off. After turning the corner where the Holden was parked, the Hino collided with Mr Row, who was standing beside the Holden's rear driver's side door, crushing him between the two vehicles. The evidence of a collision reconstruction expert is that Mr Row was pushed along the side of the Holden between the two vehicles before falling to the ground. The speed you were travelling at when you struck Mr Row could not be determined.

18 Following the collision, you continued forwards, before coming to a halt and reversing. You then left the scene and returned to 1 Red Hill Crescent.

19 Meanwhile, at 11.32pm, your mother had placed a call to 000 to report that Mr Alexopoulos had been hit by a car. As a result, two police officers attended the residence after you had returned to the home.

20 You told the attending police that you were driving your work truck with Mr Alexopoulos when you were tailgated by a Holden Commodore with several passengers. You said that when you arrived at your destination, Mr Alexopoulos got out and stood in front of the Holden to confront the occupant, before the Holden accelerated and hit him, launching him into the air. You said that the Holden had followed you from a job site on Doncaster Road.

21 You spoke with Mr McKenzie, a former police officer, about the likely police investigation, including examination of any paint transfers between the two vehicles. You subsequently spray-painted parts of the front and passenger side of the Hino.

22 Mr Row's body was not discovered until 5.40am the following day by a civilian witness. He was found lying next to the front right wheel of the Holden. The car headlights were on, and much of the right side of the car was smashed.

23 An autopsy revealed Mr Row's cause of death was multiple injuries sustained as a pedestrian in a motor vehicle accident. Most of his injuries were on the right side of his body. The pathologist's opinion is that Mr Row would have died shortly after the impact, due to a combination of a reflexive cardiac arrhythmia and blood loss.

24 You were interviewed by police on 7 September 2023 and gave an account of events. You denied driving the Hino after the Holden collided with Mr Alexopoulos and denied any involvement in Mr Row's death. You suggested it was in fact Mr McKenzie driving the Hino during the incident on Tidcombe Crescent.

25 You were arrested and re-interviewed on 24 March 2024 and subsequently charged.

26 I want to first say something about the impact of your actions on Mr Row's family. When considering your sentence, I have had regard to a victim impact statement prepared by the deceased's sister, Denise Row. In that statement, Ms Row describes the profound grief shared by Mr Row's family, close friends, colleagues, and the community. Ms Row has struggled to accept the loss of her brother to a senseless crime. Your actions have resulted in the death of a highly respected man who had, as Ms Row says, earned the right to enjoy his retirement plans after many years of hard work.

27 There is nothing I can say or do that will lessen the grief suffered by Mr Row's loved ones. The sentence I impose is not a reflection of the worth of his life. It cannot be. Rather, it reflects the large number of factors which judges are required by law to consider, only one of which is the impact on victims.

28 You are to be sentenced on the basis that you engaged in criminally negligent actions which resulted in Mr Row's death. Your plea of guilty to manslaughter was entered and accepted on the basis that you did not target or deliberately run over Mr Row. Rather, your criminality was to be found in circumstances where you drove in pursuit of Mr Row in the Hino, with lights off, through winding streets, for the purpose of confronting Mr Row. Speed is not a particular of negligence in this case.

29 The prosecution submitted that your conduct was a grave falling short of the duty of care you owed Mr Row and created a substantial degree of risk, making it a serious example of the offence of manslaughter by criminal negligence.

30 It is accepted by the prosecution that even though Mr Row attended the carpark of Hansen Technologies believing there was a burglary, there was no attempted burglary by you. It was also conceded that the reason you reversed into the Holden in the carpark is not relevant to your offending.

31 You were not directly involved in Mr Row's collision with Mr Alexopolous. It is open on the facts to infer that you would have been in a highly agitated state and upset, given what you had witnessed. It was in this state that you commenced your pursuit of the deceased.

32 The situation immediately prior to your collision with Mr Row was a highly dynamic one. It appears you did not have a plan of any kind when you got back into the Hino and set off in pursuit of Mr Row.

33 The prosecution submitted that you deliberately drove the Hino truck in pursuit of Mr Row with the headlights off. It is contended that your choice to drive with the headlights off was consistent with your decision to pursue and eventually confront Mr Row, and that this would be achieved by making the truck less apparent to Mr Row. It was conceded on your behalf that you may have deliberately turned off the headlights, but have no recollection of whether you did so. Ultimately, this issue is of no real moment. The criminal negligence is established simply by the headlights being off during the pursuit.

34 For completeness, I am unable to say whether you deliberately pursued the deceased with your headlights off.

35 Your pursuit of the Holden lasted approximately one minute. This cannot be described as a prolonged pursuit, as contended by the prosecution.

36 It is submitted on your behalf that just prior to the collision, you rounded the bend and did not expect the Holden to be stationary towards the middle of the road, and did not expect Mr Row to be out of the car and towards the centre of the road. It was not disputed that Mr Row's Holden was stationary some distance from the curb at the point of impact, and that Mr Row was at a point even further towards the centre of the road. It is submitted that you were unable to avoid the collision and you are still uncertain which part of the Hino impacted with Mr Row. The prosecution did not assert that your actions were deliberate or that you could have avoided the collision with Mr Row. I accept the evidence supports the inference that you were unable to avoid the collision with Mr Row.

37 You reversed back, but then panicked and fled the scene. It is submitted that, contrary to the prosecution opening, the Hino did not collide with the Holden when you reversed. The prosecution conceded that this fact is not relevant to your offending, but rather, what is relevant is that you fled the crime scene without rendering assistance to Mr Row, who you knew had been struck by the Hino.

38 It was submitted on your behalf that an assessment of your degree of moral culpability is informed by a number of factors:

(a) At no point did you form an intention to harm Mr Row;

(b) Your criminally negligent conduct took place while you were in a state of agitation and distress, having witnessed Mr Alexopoulos being struck by Mr Row's car;

(c) Your offending is not indicative of any general or enduring antisocial attitude;

(d) The criminally negligent conduct took place for less than one minute at most;

(e) There was an absence of aggressive intent; and

(f) The collision with Mr Row took place while he was standing towards the middle of the road, and you could not avoid him. That is, you did not go out of your way to specifically impact Mr Row.

39 The pursuit lasted no more than one minute. You were not expecting Mr Row to be on the road, and you could not avoid colliding with him. Your criminally negligent conduct is the pursuit of Mr Row for the purpose of confronting him, not driving with intent to collide with Mr Row.

40 Your plea of guilty to the charge of negligent manslaughter is an acknowledgement of the fact that your conduct as a driver fell so short of the standard of care that a reasonable person would have exercised, and involved such a high risk of death or really serious injury, that it deserves criminal punishment.

41 Your counsel submitted that, in all the circumstances, your offending was objectively at the lower end of the spectrum of seriousness for negligent manslaughter.

42 You chose, for whatever reason, to pursue Mr Row in the Hino. You were agitated and upset. You had the choice not to pursue him and could have stopped anytime in the minute before the fatal collision. Despite being a man of mature years at the time of your offending, you can provide no explanation for your conduct.

43 Considering the unpremeditated nature of your offending and the absence of aggressive intent, I do not consider the objective nature and gravity of your offending to be at the higher end of the spectrum. This, of course, does not diminish the fact that any offence involving the loss of life is inherently a gravely serious offence. These comments equally apply to my assessment of your moral culpability.

44 I now turn to your personal circumstances. You were 33 years old at the time of the offending. You are now 35.

45 You grew up in Watsonia with your parents and your brother, Eugenio. Your parents divorced when you were about 18 years old. You remain close with your mother and she continues to support you. You no longer have a relationship with your father.

46 You attended a local secondary school, but struggled and experienced learning difficulties. After completing Year 8, you moved to a flexible learning school and completed VCAL in 2005.

47 You have worked in a number of general labouring jobs since finishing school. In 2012, you were engaged by John Holland to work on the Western Highway Project. You moved to a caravan park just outside of Ballarat to be closer to work, which coincided with the time your drug use became problematic. In 2014, you returned home to work for your mother's temporary fencing business and did so up until your remand.

48 You were in a long-term relationship with your former partner, Amadea. Your relationship was marred by drug use and violence. You were made subject to several family violence intervention orders in favour of Amedea. Your son was born in 2018. He now lives in Brisbane with Amadea and her family. You have had no contact with your son since he was about 2 years old, which has caused you significant grief.

49 You began seeing psychiatrist Dr Kah-Seong Loke in 2015. Dr Loke diagnosed you with mild to severe amphetamine use disorder, amphetamine-induced mood and psychotic disorders, gambling disorder and personality issues. In 2019 you undertook a residential rehabilitation placement and an allied outpatient transition program in Sydney. You have participated in a men's behavioural change program and a parenting after separation course. While many of these interventions appear to have been court-ordered, your compliance in some sense indicates that you recognise the need to address your drug use and the personality issues that appear to be linked to your offending.

50 You have remained abstinent whilst in custody. You are currently working as a kitchen billet, which suggests that prison authorities have placed a certain level of trust in you. You have also acquired various 'tickets' in construction work. I accept that you are doing well in prison and have begun to consider how you might improve your life. To that end, you plan to live with your uncle, Ferdinando Metallo, upon your release. Mr Metallo provided a letter to the Court indicating his commitment to support your rehabilitation by offering a stable and nurturing environment upon release.

51 Your criminal history dates to 2016, when you were 26 years old. It includes driving offences, property damage, repeated contraventions of family violence intervention orders and court orders, and several convictions for unlawful assault.

52 While your drug use did not contribute to the present offending, your counsel submitted that it underlies your criminal history. Indeed, there appears to be a correlation between the onset of your heavy drug use and the commencement of your criminal offending.

53 You were initially charged with murder, and I accept that would have made your initial period in custody more onerous.

54 Further, you were involved in an incident at work in November 2023, prior to your arrest. In the course of your work, a metal pole hit the lower part of your jaw, resulting in bilateral mandible fracture. After surgical treatment it was recommended that you receive therapy and counselling and follow up management with a dentist and plastic surgery team. Due to your arrest in March 2024, you did not receive the latter treatment and have not received any subsequent treatment while in prison. I accept that your inability to address your medical needs has made your time in custody more difficult.

55 I take into account, in your favour, your plea of guilty and the stage in the proceedings at which your plea was entered.

56 You only contested the charge of murder. On 12 March 2024 following a contested committal, you made an offer to plead guilty to a charge of culpable driving causing death, which was rejected. A case conference was held in August 2024 and on 10 April 2025, you offered to plead guilty to a single charge of manslaughter by criminal negligence. The offer was accepted, and you were arraigned on 29 April 2025.

57 I consider your plea of guilty was entered at the earliest reasonable opportunity after the prosecution accepted the matter could resolve to manslaughter by criminal negligence.

58 The plea is of considerable utilitarian value. It has avoided the need for a lengthy trial involving many witnesses.

59 Whether or not your plea of guilty is indicative of true remorse was a contested matter at your plea hearing.

60 You accept that you lied to police about your involvement in Mr Row's death almost immediately after the collision and again in your police interview. Further, you sought to implicate Mr McKenzie in the fatal collision. You attempted to conceal the Hino's involvement in the collision by spray painting parts of it.

61 Finally, and most disturbingly, you callously fled the scene knowing that you had collided with Mr Row and made no attempt to render any assistance to him. I make it clear that you are not to be sentenced for failing to stop and render assistance to Mr Row. However, your conduct after the collision is a relevant matter to consider in relation to your remorse. It is evident that, while there may have been an element of panic in your conduct, you were not remorseful at the time.

62 Your conduct when the police arrived at your mother's home and in the police interview tends to confirm this contention. Your actions did you no credit at all. You did not tell the truth in your police interview and worse still, tried to blame someone else. You did not express any regret about the fact a person had died.

63 I do, however, accept that your plea of guilty is an indication that you now feel a degree of remorse for your actions. I take that remorse into account in your favour. I hope that having heard Denise Row's victim impact statement, you understand the devastating effect of your criminal conduct on her and Mr Row's family and friends, and that in time, that remorse will continue to develop.

64 I have had regard to the relevant Sentencing Snapshots for manslaughter[4] and culpable driving causing death.[5] I note that the maximum penalty for culpable driving causing death is 20 years' imprisonment,[6] but 25 years for manslaughter.

65 Further, the parties referred me to several sentences for manslaughter by criminal negligence.[7] I have found the cases of some assistance, but as always, each case turns on its own unique facts.

66 The Act relevantly provides that 'a court must not impose sentence that is more severe than that which is necessary to achieve the purpose for which the sentence is imposed'.[8] This reflects the common law principle of parsimony. I have applied this provision when considering the appropriate sentence in this case.

67 You are to be sentenced for the serious crime of manslaughter. I accept that your crime was committed in very particular circumstances: it was entirely unpremeditated and without any intention at all to cause injury, much less death, to a person. That does not mean, of course, that it was not serious.

68 To my mind, just punishment, denunciation and general deterrence are important sentencing considerations in your case. The sentence must make it perfectly clear that the Court deplores this sort of dangerous conduct. Agitated and distressed, you decided to pursue Mr Row intending to confront him. Nothing good was ever going to come of your conduct. You did this behind the wheel of the Hino truck, in the dark, and in suburban streets. It was simply stupid and reckless. The community must know that individuals will be held accountable for poor consequential thinking and impulsiveness leading to such grave outcomes. Your sentence must be such as to bring it clearly home to others who might be minded to act similarly that such behaviour will not be tolerated. At the time you got back into the Hino, you were not in any danger and had no good reason to take matters into your own hands. You had other options, but made the worse possible choice.

69 As for specific deterrence, the sentence must make clear to you as an individual that you must never again behave in this fashion.

70 On the one hand, your age and your prior convictions cause me to have some reservations about your prospects of rehabilitation. Your prior offending is not of the same kind or gravity as this offending. Nevertheless, it is concerning given the nature of the offending, including repeated contraventions of family violence orders and assaults. I accept that your prior criminal offending commenced relatively late in your life and in the context of drug use. You are doing well in prison. You are now 35 years old and have strong family support. Given the particular nature of your offending and the other factors I have mentioned, I consider that your prospects of rehabilitation are good. In determining the appropriate sentence, I have borne in mind, as far as is possible, the desirability of fostering those prospects.

72 Balancing, as best I am able, the competing considerations required by law and having regard to the matters I have just discussed, I sentence you to imprisonment for five years.

73 I order that you serve three years before becoming eligible for parole.

74 I have imposed a less severe sentence than I otherwise would have because you pleaded guilty to this offence. Pursuant to s 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to six and a half years with a non-parole period of four and a half years.

75 I declare that you have served 477 days of pre-sentence detention, not including this day.

76 Because your offending is a serious motor vehicle offence as defined by the Act,[9] and you were not licenced to drive a motor vehicle at the time, I am required to disqualify you from driving a motor vehicle for a period of no less than 24 months.[10] Accordingly, I disqualify you from driving for 24 months, commencing today.

77 The prosecution also make application for a disposal order in respect of a number of items, which is, in part, opposed. As I have already raised with the parties, I intend to hear argument on that application on a later date.

[1] Crimes Act 1958 (Vic) s 5.

[2] Sentencing Act 1991 (Vic) s 3(1).

[3] Ibid s 5(2H).

[4] Manslaughter Sentencing Snapshot No. 274, June 2023.

[5] Culpable Driving Sentencing Snapshot No. 275, June 2023.

[6] Crimes Act 1958 (Vic) s 318.

[7] R v Sharif [2020] VSC 226; The Queen v Sheen [2016] VSC 235; R v Scott [2012] VSC 514; The Queen v Saleh [2012] VSC 120. I note that each of these sentences were imposed prior to the increase in maximum penalty for manslaughter.

[8] Sentencing Act 1991 (Vic) s 5(3).

[9] See Sentencing Act 1991 (Vic) s 87P - "serious motor vehicle offence" means - (a) manslaughter arising out of the driving of a motor vehicle.

[10] Sentencing Act 1991 (Vic) ss 89(1)(a), 89(2)(b).