The Queen v Drago [2015] VSC 291

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

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

5 It seems that you owned a dog that would bark every time Mr Dockerty went into the backyard. He did not like that fact. It became a source of conflict, and a number of unpleasant exchanges, between the two of you. On one occasion on 21 March 2013, you sprayed him in the face and hit him over the head with a fire extinguisher. You were charged with using a dangerous article and assault, and Mr Dockerty was charged with criminal damage and assault. It was decided that both sets of charges would be dealt with by diversion. Indeed, your charges were dealt with by diversion on 14 November 2013. Mr Dockerty's charges were to be dealt with by diversion on 28 November 2013, but the proceeding was adjourned because of Mr Dockerty's anxiety and depressive disorder.

6 For reasons that I find difficult to comprehend, you seem to have become obsessed with the notion that Mr Dockerty had deceived the court when obtaining the adjournment. You spoke to a work colleague of Mr Dockerty; you carried out surveillance; you complained to the Diversion Co-ordinator at Heidelberg Court; and, at about 3:00pm on 28 November 2013, you complained to a police officer at Northcote Police Station. The police officer you complained to was Acting Sergeant Lee-Anne Meade. Chillingly, you said to her:

Well if you are not going to do your job then I will. But believe me, you are not going to like what I am going to do. And it will be your fault because you won't do your job.

7 On Monday 2 December 2013, at about 4:53pm, you again went to the vicinity of where Mr Dockerty conducted his business. You were seen by a number of people hiding behind cars and surreptitiously photographing Mr Dockerty's premises and vehicle. People became concerned by your behaviour. One of those concerned people told Mr Dockerty that he should have a word to you.

8 At 5:36pm, Mr Dockerty made a '000' call, reporting a man hiding behind a car taking photographs of him. He requested the attendance of police.

9 At about 5:40pm, Mr Dockerty crossed Darebin Road and approached you. The two of you scuffled. One witness saw you kick Mr Dockerty in the groin area then run across the road to your car, a white Volvo, which was parked outside 353 Darebin Road, Thornbury. Mr Dockerty followed, and prevented you from getting into your car.

10 You managed, however, to get into your car on the passenger side. Mr Dockerty struck the front passenger window three times. It is plain that he was angry. He then moved to the front of your car and placed both hands on the bonnet, looking into the car. You had made your way into the driver's seat. I infer that Mr Dockerty's purpose was to prevent you from driving away until police arrived.

11 You moved your vehicle a little forward, then slightly back. It is apparent that you wanted Mr Dockerty to move out of the way, but he did not. Your counsel submitted that you were in fear. I think that is likely. But you were also angry.

12 When Mr Dockerty's hands were still on the bonnet of your car, you suddenly, drove easterly onto the road. You accelerated away, swerving from side to side. The hapless Mr Dockerty was thrown onto the bonnet of the car by your actions, but you continued to drive on. Despite your myopia, you cannot have failed to observe his predicament, or failed to appreciate that your continued driving was exposing him to an appreciable risk of serious injury. Mr Dockerty remained on top of the bonnet for a short time, before falling under the front of your car where he became trapped as you continued to accelerate, while people shouted at you and sounded their horns to try and get you to stop. Your counsel, based on instructions, submitted that you did not know that Mr Dockerty was trapped under your car. I reject that submission. I am satisfied on the evidence of the accounts of various witnesses that you knew that Mr Dockerty was wedged under your car, but that you continued regardless. The prosecutor conceded that I could not be satisfied that you swerved from side to side in an attempt to dislodge Mr Dockerty from under your car. I must accept that this is so. But I am satisfied that you knew Mr Dockerty was trapped, and nonetheless continued to drive.

13 I need not further rehearse eyewitness accounts. They are distressing. Moreover, it is unnecessary to describe in detail what witnesses observed, since much of the relevant incident was captured on CCTV footage, which was played to the court.

14 You pulled over, it seems, after Mr Victor Lesmana drove beside your car, and told you to stop. When you eventually stopped, Mr Dockerty was still alive, in a semi-conscious state, wedged under your car. By the time paramedics arrived at 5:55pm, he was dead.

15 Ford Crescent intersects with Darebin Road - which runs east and west - on its northerly aspect. The centre of the driveway of the premises at 353 Darebin Road is 35 metres west of the centre of Ford Crescent. Police investigations revealed that your vehicle first came into contact with Mr Dockerty about 16 metres to the west of Ford Crescent. Scuff marks continued for over 100 metres from that point, indicating the distance your car had travelled after first coming into contact with Mr Dockerty. When police arrived he was still wedged under your car.

16 I need not pause to describe Mr Dockerty's injuries in detail. The major injuries were multiple fractures and associated bleeding into the right chest cavity. It was likely mechanical compression of the chest further compromised Mr Dockerty's capacity to breathe.

17 A search warrant executed by police on 3 December 2013 located troubling material on your computer showing that you harboured a great deal of animosity for Mr Dockerty. In one document, you set out strategies for the infliction of personal injury - including 'murder' - on Mr Dockerty. The mode of murder involved placing an inflatable or cardboard kangaroo on the road to make Mr Dockerty swerve off the road into a tree. Despite the finding of this material, the prosecution accepts that when you went to Mr Dockerty's work premises you did not intend to cause him physical harm. Rather, the prosecution case is that you assaulted Mr Dockerty, using your car, in circumstances where you felt a great deal of animosity towards him.

18 The species of manslaughter to which you have pleaded guilty is manslaughter by unlawful and dangerous act. By your plea you have acknowledged that you had no lawful excuse - such as self-defence - for performing the acts which brought about Mr Dockerty's death. Furthermore, your plea is an admission that a reasonable person in your position would have realised that, by driving as you did, Mr Dockerty was being exposed to an appreciable risk of serious injury.

19 The 'act' relied upon to found manslaughter is your continuing assault of Mr Dockerty commencing when you drove your vehicle at the deceased, and continuing up to the time that you stopped your car with your fatally injured victim trapped beneath it. Your continuing assault embraced a short distance when your victim was on the bonnet of your vehicle, and the further substantial distance when your victim was dragged underneath your car. Even with your myopia, which Professor O'Day describes in his two reports, you must have been aware that Mr Dockerty was on the bonnet of your car, and that he had fallen beneath it. Driving a motor car - even when fearful or angry - involves greater sensory input than merely eyesight.

20 It must be understood that you have not been convicted of murder. The Director of Public Prosecutions has accepted that when you killed Mr Dockerty, you neither intended to kill him nor cause him really serious injury (or foresaw the probability that death or really serious injury would result). I must - and do - bear that steadily in mind. The crime for which I must sentence you is manslaughter.

21 Nonetheless, I regard yours as a very bad example of a serious crime. By your plea, as I have said, you have admitted that you realised that you were exposing Mr Dockerty to an appreciable risk of serious injury. Indeed, although it must be acknowledged that your subjective intention is not an element of the offence - the mental element being purely objective - based on the evidence of what you did, I am satisfied beyond reasonable doubt that, although you may not have intended to cause serious injury to Mr Dockerty when you first drove into him, at least at the point when he fell under your car and you continued to drive on, your intention was to cause Mr Dockerty serious injury, albeit in circumstances that fell short of the intention necessary for murder (although, it might be thought, not by much). That said, it must be borne steadily in mind, as I have noted, that the prosecution did not seek conviction for - and you have not been convicted of - murder. The sentence that I impose must be one that befits your crime of manslaughter.

22 As best I have been able, I have had regard to current sentencing practices. And bearing in mind the caution that every case must turn on its own facts, I have had regard to sentencing cases which are roughly comparable. Except in a very general sense, however, the facts of those cases do not meaningfully compare with the facts of your case. Thus in Scott,[1] the sentence passed for manslaughter after a plea of guilty was 9 years' imprisonment, upon which a non-parole period of 6 years was fixed. The facts were that, following an altercation at a party, when the applicant was angry and had made threats, he drove on the wrong side of the road, colliding with the victim. The applicant in that case was, however, a youth of 19 years. Similarly, in Saleh,[2] a sentence of 8½ years' imprisonment, with a non-parole period of 6 years, was imposed on a young man of 21 years who swerved his vehicle at a rival group of youths, striking the deceased. He had pleaded guilty. In Borthwick,[3] the appellant, aged 18 years, was convicted by a jury of manslaughter, having faced trial for murder. He was sentenced to be imprisoned for 7½ years, with a non-parole period of 5 years. Finally, in Shahi,[4] the applicant was convicted of manslaughter after a trial, and sentenced to 9 years' imprisonment, with a non-parole period of 6 years. Shahi, a taxi driver, argued with a passenger from a group, who, after alighting from the taxi, threw bottles. The deceased stood in front of the taxi, and Shahi sped up and hit him. Shahi was aged 28 years.

23 As I have said, except in a very general sense, the facts those cases do not compare with yours. Most significantly, with the exception of Shahi, each of the offenders had youth on their side. Manslaughter is a crime which can be committed in ways the gravity of which markedly differ. By its nature, manslaughter may vary from the merely nominal 'to the very confines of murder'.[5] Yours is, as I have said, a bad example of manslaughter.

24 I received a number of victim impact statements, which spoke eloquently of the impact that your crime has had. Thus the victim's brother, Richard Dockerty; his sister-in-law, Alison Dockerty; and his niece, Katherine Alexander; all spoke of the profound effect that your crime has had upon them. I take those statements into account.

25 I also received a number of documents tendered by your counsel in support of the plea made on your behalf. Thus I have read very impressive references provided by Mr John Gosling AO, Mrs Effie Vasiliadis, Mr Leigh Wilson, Mr Andrew Skotnicki, Mr Brian Cork and Dr Michael McKay. They paint a picture of a community-minded and decent individual, who is devoted to his family, who has participated in a deal of charitable work and who is generous with his time, particularly when those around him are in need. Your actions on 2 December 2013 paint a somewhat different picture, of a man with a vindictive streak. Nonetheless, your history shows that you were, up until you committed the offence of manslaughter in December 2013, a man of positive good character. I take your previous blemish-free character into account in your favour. Your good character makes your actions in killing Mr Dockerty all the more difficult to comprehend.

26 Your counsel also tendered, and I have taken into account, several experts' reports. Dr Melyse Jung, Consultant Psychiatrist with Peninsula Health, in a report dated 11 June 2015, reported that you sought help from her service in April 2015, when you were experiencing suicidal ideation. She said that you were thereafter supervised by the Intensive Community Treatment Team. Dr Jung noted that you had been treated by your General Practitioner with anti-depressant medication since 2002. She thought that the improvement in your depressive condition from the time that the dosage of your medication was increased in April 2015 was a source of your improvement.

27 Dr Lester Walton, Consultant Psychiatrist, in his report dated 25 May 2015, describes you as having a profile of obsessional personality traits. He reports that you qualify for a diagnosis of chronic depressive disorder, and he expresses the view that it is not improbable that your depressive condition may have made at least some contribution to your out of character behaviour by eroding your capacity to consistently exercise social judgment. Dr Walton is concerned that your current mental state might deteriorate once you are returned to prison. I take him also to be saying that, because of your significant depression, imprisonment will be more onerous for you than for others.

28 Dr Matthew Barth, Psychologist, in a report dated 11 June 2015, spoke of your depression and suicidal ideation, and of his treatment of you. He spoke of your strong willingness to continue treatment, and your vulnerability if treatment is not maintained.

29 Finally, Mr Patrick Newton, Clinical and Forensic Psychologist, in his very thorough report of 15 June 2015, said that your symptoms and history are indicative of Major Depressive Disorder. He states that your condition is likely to be chronic and refractory, and that you currently suffer persisting symptoms of depression. Mr Newton expects that you will have a relatively lengthy period of adjusting to custody, and that you will have a continuation of more severe depressive symptoms than other prisoners. There is a significant risk of deterioration of your mood. These matters might be assessed, of course, against the background that you were in custody from 8 September 2014 until 23 December 2014, and so have already tasted confinement.

30 I have considered the opinions expressed by the psychiatrists and psychologists. Being fully cognisant of Dr Walton's opinions, there is nothing that would lead me to the view that your mental condition lowered your moral culpability. Indeed, no contrary submission was made by your counsel. At the critical time you were, in my view, actuated by anger and vindictiveness, against a background of antagonism and obsessional preoccupation with the victim and your grievances with him. There is nothing in your mental condition which could lead me not to give full weight to general deterrence. I am, however, prepared to accept that your depressive condition will make imprisonment more burdensome for you than for others, and I will effect some modest moderation of the sentence as a result. I also think it likely that your condition will deteriorate once imprisoned, and I make due allowance for that fact.

31 Mr Drago, you were born in Italy on 15 April 1945, and migrated to Australia when you were eight or nine years old. You are now 70 years of age. Any sentence that I pass must adequately reflect your age, and the need to avoid imposing a crushing sentence (that is, one that destroys the reasonable expectation of any useful life after release). Further, any sentence that I pass must also be proportionate, so that any sentence that I pass is commensurate with the seriousness of your offending.

32 You married in 1971, and you and your wife have four adult children, aged from 38 to 31 years of age. You have five grandchildren. Your mother of 97 years remains lucid. You will feel the impact of imprisonment starkly, knowing that they will be deprived of your company and support, and you, theirs. The final paragraphs of your wife's touching letter, dated 16 June 2015, deal with the anxiety of separation. It is the source of some pathos.

33 You matriculated Year 12, and studied civil engineering at Melbourne University. Thereafter you worked in industrial, aeronautical, hospital, educational and council environments, retiring in 2010. At that stage you were unwell with cancer, which is now in remission.

34 Mr Drago, as I have said, you have been a man of positive good character. You have always worked hard. You are very close to your family. You took an active interest in your children's schooling, and were a member of the Genazzano Fathers' Association and the Xavier Fathers' Association. You have been very active in the community, and, perhaps with one exception, seem to have had excellent relations with neighbours. You have driven a bus for the Sacred Heart Mission, worked on the soup van for the St Vincent De Paul Society and assisted with Riding for the Disabled. Your prospects of rehabilitation are excellent, and the prospect of your further offending is small. Specific deterrence thus has little role to play in the sentence that I must impose.

35 Following your initial arrest, you were at large for some nine months, until being arrested and charged with murder. You then spent 107 days in custody, before being released on very strict and onerous bail conditions. As might be expected of a person of your age without criminal connections, you were isolated in prison. I expect that you will again be somewhat isolated once you commence to serve the sentence that I must impose. I take into account the anxiety of having a Damocletian sword hanging over your head for nine months, and the strict bail conditions which were a significant curtailment of your liberty once you were granted bail.

36 You pleaded guilty at committal on 13 April 2015. I regard that as early. Your plea had a significant utilitarian benefit. I intend to ameliorate significantly the severity of the sentence I intend to impose to reflect that plea. The question of your remorse is more vexed. I am prepared to conclude, however, that you are significantly remorseful for your actions, which have irredeemably tarnished your otherwise blameless life.

37 General deterrence is important. Yours was, as I have said, a bad example of the crime of manslaughter. Your conduct should be denounced in strong terms. Moreover, you need to be appropriately punished for your crime.

38 Your counsel, relying on Boulton,[6] submitted that I might impose a period of imprisonment coupled with a community correction order. I regard your offending as far too serious to permit such a sentence. The suggested disposition would, in the circumstances, be insufficiently punitive.[7] You must be imprisoned for a substantial period, although I have endeavoured to impose the least sentence that I am capable of imposing consistently with the interests of justice.

39 Mr Drago, for the manslaughter of Anthony Dockerty, I sentence you to be imprisoned for 11 years, and I fix the period of 7 years as the period that you must serve before being considered eligible for release on parole.

40 Any driver licence you hold is cancelled, and you are disqualified for a period of 6 years.

41 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have sentenced you to be imprisoned for 14 years, upon which I would have fixed a non-parole period of 11 years.

42 I declare the period of 107 days not including this day be reckoned as served pursuant to this sentence.

[1] Scott v R [2013] VSCA 347.

[2] Saleh v R [2012] VSCA 210.

[3] Borthwick v R [2012] VSCA 180.

[4] R v Shahi [2008] VSCA 281.

[5] Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47, 68 (Windeyer J); Osip v R [2000] VSCA 237; (2000) 2 VR 595, 610 [46] (Batt JA); R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391; Sherna v R (2011) 32 VR 668.

[6] Boulton v The Queen [2014] VSCA 342.

[7] Hutchinson v The Queen (2015) 71 MVR 8 13 [17]; [2015] VSCA 115, [17] (Priest JA).