The Queen v D'Angelo [2014] VSC 522

2 It is now my responsibility to sentence you for the offence of manslaughter. On 7 October 2014 I heard submissions from the prosecutor, victim impact statements and a plea on your behalf from your counsel. The maximum penalty for manslaughter is 20 years' imprisonment.**

**3 On Wednesday 27 March 2013, just before midnight, the deceased man Wade Vandenberg visited his friend Richard Flower. He spoke to Flower about his need for a replacement differential for his VL Holden Commodore. Flower told him he knew where such a vehicle was stored and it was contemplated that they would steal it for parts. Flower knew where the car was because a couple of days earlier he followed it to your premises in Bostock Court, Thomastown. He did that because he intended to later steal the vehicle and use it for spare parts.

4 The result was that the deceased man, Richard Flower, and another man, Jay Tennant, went to premises at 17 Bostock Court, Thomastown with the intention of stealing the particular vehicle. That address is where you conducted your panel beating and restoration business. For some time, as a result of financial necessity, you had been living at the premises. Your living quarters were upstairs, and the window of your living quarters overlooked the street. Those windows had been substantially blacked out.

5 So, in the early hours of 28 March 2013, the three men I have referred to, together with a young woman named Karni Bagdas, went to Bostock Court, Thomastown. They drove around the court and then parked the car around the corner from your premises. Ms Bagdas remained in the car while the other three men went to the front gate of your premises.

6 Mr Flower was a prosecution witness. To the extent that there is conflict between his account of what occurred and yours, it is enough to say that in my opinion Flower was not an impressive witness. Flower said that having parked their car he took some bolt cutters and went with Vandenberg and Tennant to the gate of the premises with the intention of stealing the VL Commodore behind the gate. The mesh gate was locked with a chain and padlock. Flower said Jay Tennant stood to his right and Wade Vandenberg stood to his left. The only noise he heard was a dog barking in the premises next door, but he could not see anything else. It was raining at the time. As he closed the bolt cutters to cut the chain on the gate he heard what he described as a 'big bang', and he turned around and looked at Wade Vandenberg. He saw that Vandenberg had a wound to his head and was bleeding. Flower said that he did not see any lights on in the building where you were and did not hear anyone yelling. In your evidence, you said that on realising the three men were trying to break into your premises, among other things you did, you turned on the light and yelled at the three men at the gate. Flower said if he had heard someone yelling they would have left straight away. Be that as it may, I am in fact satisfied you did turn on the light and yell in a way to make your presence known. Perhaps due to the barking dog and the fact that it was raining it was not heard.

7 It was clear that Vandenberg had been fatally wounded by the discharge of your rifle. Flower immediately decided there was nothing he and Tennant could do to assist him and they left. Flower said he went to a phone box and rang 000 to tell them what had happened. Having done that he then went home.

8 The other surviving would-be burglar was Jay Tennant but he did not give evidence at your trial. As I understand it, that was because the prosecution apparently concluded that he was not reliable.

9 Although you did not call an ambulance, as the prosecutor noted, at 2:34 am, you rang 000. In the course of that call you said:

Well, what's happened is I've stayed at my shop tonight working on a customer's car. I've slept here tonight. I've woken up by noise and that, I've had a look and there's three guys at the gate. Um, I've just got my .22 or my 22, I haven't known what to do. I've panicked. I've just fired a shot and I don't know, there's a guy on the ground there at the moment.

10 Police attended. By that stage Mr Vandenberg was deceased and in all likelihood had died when he was shot. The police began their investigation. Subsequently, you participated in both a record of interview as well as a re-enactment of the event at the scene. You described what you had done and why you had done it in detail. At your trial you gave sworn evidence and were cross examined. In summary you described the following.

11 You said that on 27 March 2013 you were working during the day and consuming a very large amount of marijuana and alcohol. It is clear that you had a significant problem with both of those drugs. Apart from a large amount of alcohol, all you had eaten during the day was two slices of pizza in the evening. I will return to the amount of alcohol you were drinking, but you estimate that in a period of 11½ hours you consumed something of the order of 39 to 42 stubbies of beer. You also consumed marijuana from the morning until the evening, possibly as many as 35 bongs.

12 You said that at about 12.30am you went to bed, woke up and had further marijuana, and then went back to bed.

13 You said that at about 2.15am you woke to hear the dog next door barking and looked out and saw a vehicle come into the precinct of your workshop. More marijuana was consumed, and on your account that brought the total to as many as 54 to 68 bongs in the 24-hour period.

14 Sometime later you looked out the window and saw three men standing at the front gate of your workshop. They were not men that you knew. You said you heard the gates moving and correctly concluded they were doing something to the gate to gain entry. At the time it was raining. Your view of the three men was partly obscured by a lemon tree, and you assumed that one of the men, being Flower, was trying to cut the lock. Your view was that once the gate was cut then the three men could have entered the premises under the roller door because it was open a bit.

15 Having seen the men, you said you turned the light on in the room where you had been sleeping and took up a .22 firearm from the gun safe that you had at those premises. That required the gun safe being opened with a set of keys, which were on the coffee table, and you described the magazine for the firearm and two rounds being on top of the gun safe. You said that as you took the gun out, which you had in your left hand, you then clipped two bullets which had been loose, into the magazine. You then went to the window and opened the curtain. At that stage, whilst you knew that two rounds were in the magazine, you said you did not believe that the gun was actually loaded. Your belief was that the chamber was empty and that the gun would not fire without it being bolted. You were wrong about that. It appeared you had left a live round in the chamber from the last time you had used the gun for hunting.

16 In your evidence you described opening the window and moving the curtains to get the attention of the three men. You said you hoped they would see the light on in your premises and see you standing at the window with a gun in your hands and would desist from trying to break into the premises. I am satisfied you did turn on the light. You then described the way you held the firearm, with the butt against your shoulder, but you did not look through the scope or sight on the firearm. You said you wanted to get their attention and hopefully they would disappear. You gave the following piece of evidence:(p 356)**

1. Did you, when you were doing this, were you thinking through what you would do if they didn't, they saw you and they didn't take off?
2. Yes, I did think of that. That's why I tried to scream first. If they still see me and they wanted to come through, then I would have pulled the bolt and fired a warning shot.

Q. Where did you intend to fire the warning shot?

1. At the back of the white Commodore. There's an empty piece of concrete in that area.

Q. Did you ever intend to shoot any of the three men?

A. Not at all, no, I didn't intend to do that, no.

**17 You then described screaming out and trying to get the attention of the three men but observed no reaction from them to the noise you made. You said that the second time you were about to scream again, having taken a deeper breath, and the gun went off. The discharge of the firearm resulted in the bullet striking the deceased and causing his death.

18 After the shooting you then tried to ring your brother, and he told you to ring the police, which you did. What you knew was that of the three men two had gone and the third was lying deceased on the footpath outside your premises. You then waited until the police arrived and co-operated with them.

19 Your offending is obviously serious. Having been aware that your premises were being broken into, the obvious thing to have done was to use your mobile phone to ring 000 and get urgent police assistance. You had a phone that was working because you later used it. Instead you reached for a loaded firearm and, intoxicated by alcohol and marijuana, pointed that firearm out the window. A tragedy was highly likely. Obviously your conduct was unlawful and very dangerous. However, it is relevant to note that the circumstances came to you while you were asleep in your bed - you did not seek the tragic confrontation that occurred. I accept that you were frightened and your actions were the product of a feeling of panic.**

**20 The prosecution filed ten victim impact statements from the following people affected by the crime you committed:

• Patricia Vandenberg, mother of the deceased, Wade Vandenberg.

• Richelle Vandenberg, sister of the deceased, Wade Vandenberg.

• Leah Thorpe, aunt of the deceased, Wade Vandenberg.

• Meghan Jacobs, aunt of the deceased, Wade Vandenberg.

• Mollie Vandenberg, sister of the deceased Wade Vandenberg.

• Molly Vandenberg, grandmother of the deceased Wade Vandenberg.

• Robyn Kelly, aunt of the deceased, Wade Vandenberg.

• Ryan Jacobs, cousin of the deceased, Wade Vandenberg.

• Emma Smith, cousin of the deceased, Wade Vandenberg.

• Kathryn Sandiford, aunt of the deceased, Wade Vandenberg.

21 Several of these statements were read to the Court by the person concerned. Others were read to the court by the prosecutor. Each statement sets out, usually in emotional detail, the tragic consequences of the death of Wade Vandenberg. Clearly he was loved by his family and will be sadly missed by both them and his friends. The fact that his death was so avoidable in so many ways makes his death all the more tragic. I have taken these victim impact statements into account in determining the sentence I will impose on you.**

**22 You are to be sentenced for the offence of manslaughter which, as I have already said, attracts a maximum penalty of 20 years' imprisonment. Manslaughter is, of course, a serious offence. A young life has been lost and his family and friends have been significantly affected.

23 This is manslaughter by unlawful and dangerous act, and there is no question that the prosecutor Ms Hassan is correct when she pointed to the folly of you resorting to a firearm when you believed your premises were being broken into instead of using the phone to ring 000. Further, you took a firearm, which was at least prepared, and in fact, loaded, to the window with an intention of at some stage firing a warning shot.

24 You were a conscientious recreational shooter, and must have realised, even given the amount of alcohol and marijuana you had consumed, that what you were doing was extremely dangerous, as well as being unlawful. You well knew that no reasonable person should ever point a gun at another person and pull the trigger, even if you believed that the gun had not been bolted. The proper thing for you to do in those circumstances was to ring the police and obtain assistance, and the evidence in this case demonstrates that that assistance would have been quite quickly available to you.

25 I agree that even on your own evidence your conduct is objectively serious. I do not agree, however, that your conduct could be classified as in the high range of seriousness for the offence of manslaughter whatever such a classification may mean.**

**26 You are now aged 39, and the youngest of four brothers. One of your brothers gave evidence during the course of the trial and gave evidence on your plea, and has demonstrated a supportive and responsible attitude towards you.

27 Your education was in Thomastown at the Lalor Technical School where you completed Years 7 and 8. Your interest was in motor vehicles. At the age of 17 you commenced an apprenticeship with Mr Del Romano, at Auto Trade Body Works in Thomastown.

28 The business you were running at the time of these incidents was called 'Old School Restorations'. Your particular interest was in the restoration of older vehicles and you concentrated on producing quality restorations, several of which, including one that I was shown, have been featured in motoring magazines.

29 Despite your problems with both marijuana and alcohol, it seemed you were a conscientious worker and clearly very committed to the business that you ran. As a result of this offence you have lost that business and, effectively, you have lost everything. You had not married and do not have children.

30 The report presented to the Court by Stephen Gault, clinical psychologist and dated 12 September 2014, demonstrates that you have a significant problem with both alcohol and cannabis. You began consuming both of those things at the age of 17, and according to Mr Gault you meet the criteria for a diagnosis of alcohol use disorder and cannabis use disorder, which are both in remission because you have been in custody since your arrest for these matters in 2013. Mr Gault suggested that part of the reason for the consumption of this level of alcohol and cannabis was to reduce your anxiety levels.**

31 You pleaded guilty to the charge of manslaughter. You have expressed remorse on a number of occasions, including in your evidence at your trial. I do not have any doubt that you are more than willing to take responsibility for the fact that you caused Wade Vandenberg's death and that you recognise the consequences of his death for members of his family. You told Sister O'Shannassy from the Catholic Prison Ministry that you were distressed by the consequences of your actions and that what occurred was not something you intended or wanted to happen.

**32 All the indications are that your prospects of rehabilitation are favourable. Indeed, as Mr Faris submitted on your behalf during the course of the plea and as I have earlier mentioned, this was a situation where the crime that you committed came to you, rather than you going out and looking to commit such a crime. Whilst it is entirely appropriate to condemn the way you acted in the early morning of 28 March 2013 by reaching for your firearm rather than the telephone, and doing so in circumstances where you had consumed a very large amount of alcohol and marijuana, nonetheless I am satisfied that the risk of you committing any further offences upon your release from custody are very low indeed.

33 In my opinion, you were an impressive witness in the course of the trial, and I concluded, having watched you give evidence and be cross-examined by the prosecutor Ms Hassan, that you were doing the best you could to tell the truth about what occurred. In addition, you have no prior convictions and thus are a person of good character. Despite your abuse of alcohol and marijuana you appear to have worked hard and developed a skill of which you can be proud. In addition, there is evidence given during the plea of the willingness of your brother and your former employee Mr Del Romano to assist you in relation to accommodation and employment upon your release. You told Sister O'Shannassy that you have reflected on what you have done and resolved to do what must be done to deal with your alcohol problem. She found your demeanour to be polite and courteous. Overall, I regard your prospects as very positive.**

**34 The prosecutor was correct to submit that general deterrence has significance in this case. The idea that a person who is heavily intoxicated would choose a firearm rather than the phone as a first option to protect themselves is something the community must realise is likely to result in tragedy and, if it does, in significant punishment. Specific deterrence is less significant. I am satisfied you are well and truly aware of what you have done and the stupidity of your actions. I am not concerned that there is any significant risk that you would repeat this conduct.

35 Having taken all of these matters into account, including the circumstances of your offending, your plea of guilty, your obvious remorse, lack of prior convictions and very good prospects of rehabilitation I have concluded that for the manslaughter of Wade Vandenberg you should be sentenced to a period of 8 years' imprisonment with a non-parole period of 4 years and 6 months.

36 It will be seen that there is a significant gap between the head sentence and the non-parole period, which in your case is appropriate given that I regard your future prospects as very good. I encourage you to maximise your opportunities as best you can whilst in custody and after you are released. Much will depend on you dealing effectively with your alcohol and cannabis addictions.

37 Pursuant to s 18 of the Sentencing Act, I declare that 567 days, not including today, be reckoned as served under this sentence being in the form of pre-sentence detention.

38 Pursuant to s 6AAA of the Sentencing Act, I am required to indicate the sentence I would have imposed but for your plea of guilty. Had you not pleaded guilty to manslaughter the sentence I would have imposed would have been a sentence of 10 years' imprisonment with a non-parole period of 7 years.

39 Finally, I have already pronounced the forfeiture and disposal orders sought by the Crown and to which you consented.**

[1] See (R v Prasad (1979) 23 SASR 161; R v Smart (Ruling No 5) [2008] VSC 94)