Director of Public Prosecutions v Flamenco

[2024] VCC 1377

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-23-01832

DIRECTOR OF PUBLIC PROSECUTIONS

v

MIGUEL FLAMENCO

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2024
DATE OF SENTENCE:	30 August 2024
CASE MAY BE CITED AS:	DPP v Flamenco
MEDIUM NEUTRAL CITATION:	[2024] VCC 1377

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Dangerous driving causing death – No prior criminal history – High level of remorse – Low moral culpability – Very positive prospects of rehabilitation.

Legislation Cited:      Crimes Act 1958 s 319(1); Sentencing Act 1991 ss 5(2H), 5(2H)(e), 6AAA, 89(2).

Cases Cited:Director of Public Prosecutions v Lombardo [2022] VSCA 204; Peers v The Queen [2021] VSCA 264; Director of Public Prosecutions v Browne [2023] VSCA 13.

Sentence:                  Community Correction Order for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C Parkes	Office of Public Prosecutions
For the Accused	Ms Z Broughton	Stary Norton Halphen

HIS HONOUR:

Introduction

1Miguel Flamenco, you have pleaded guilty to one charge of dangerous driving causing death contrary to s 319(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment.

2You have no prior criminal history.

Circumstances of the offending

3A summary of prosecution opening was tendered on the plea and may be summarised as follows:

4You were 62 years of age at the time of the offending. You held a full Victorian Driver Licence. You lived with your wife, Odenis Flamenco in Tallangatta Valley. Your mother, Maria Flamenco lived in Cooranbong, in New South Wales.

5In March 2022, your mother visited you and your wife in Tallangatta Valley. She stayed at your home for a number of days, including the evening of 22 March 2022.

6On the evening of 22 March and into 23 March 2022, you set your alarm to wake at approximately 1:00am. This was so you and your mother could observe a funeral of a family member which was taking place in Panama via Zoom. You awoke and joined the link for the funeral before going back to sleep for the remainder of the night. You were awake for approximately 90 minutes.

7On Thursday 24 March 2022, you, your wife and your mother left your home to travel into Albury to have dinner and go for a walk. You left home in a white 2012 Subaru XV station wagon. The Subaru was registered in your wife’s name. You were driving, your wife was seated in the front passenger seat and your mother was seated in the rear passenger seat, behind your wife.

8Both passengers were wearing their seat belts. The weather was fine and clear and the road was dry.

9Your wife and mother conversed in the Subaru for about 10 minutes before your mother fell asleep in the back seat. Your wife also fell asleep in the passenger seat at some stage after that.  

10At approximately 2:30pm, the Subaru was travelling west on the Murray Valley Highway at Bonegilla. The highway is a two-lane, two-way bitumen road, running in a general north-east to south-west orientation. The roadway is separated into two lanes with a continuous white line applicable to traffic travelling in a north-east direction and a continuous broken white line applicable to traffic travelling in the south-west directions. There is a single tactile rumble strip running along the centre lines. The road is bordered with white painted fog lines, beyond is a short bitumen shoulder, grassed embankment and paddock. The highway at the collision scene has a speed limited of 100 kilometres per hour.

11As the Subaru came over a slightly elevated crest on the road, it drifted across the eastbound lane, left the roadway and travelled onto the grass embankment.

12Diana Nobbs was driving her car about 10 car lengths in distance behind the Subaru. She lost sight of the Subaru as she descended down a dip in the road, but then observed it ‘flash across the road from left to right’ as she drove up out of the dip.

13Your wife woke up when the Subaru had left the road and was travelling on the grass embankment. She saw a concrete power pole about two metres in front of the car as the car was about to hit the pole. You were trying to control the car.

14The Subaru then collided with the power pole and came to a stop.

15Your wife did not recall the point of impact but woke up again to the sight and smell of smoke. She saw that the passenger airbag had been deployed. She undid her seatbelt, opened the passenger door and got out of the car. You also got out of the car. Your wife opened the rear passenger door and saw your mother, Maria Flamenco slumped towards the middle seat. Your wife tried to talk to your mother, however she did not move or speak.

16You asked your wife, ‘how’s Mum?’ Your wife told you that she thought your mother was dead. You became very distressed, put your hands on your head and said ‘what have I done to mum’.

17A number of people travelling on the Murray Valley Highway saw the Subaru on the side of the road and stopped to assist. None of them witnessed the collision itself.

18Sharyn and Greg Nankervis had been travelling east on the Murray Valley Highway in separate cars. They saw two cars stopped on the roadside, as well as the Subaru against the concrete pole. Mr and Mrs Nankervis pulled over and approached the Subaru. You and your wife were both out of the vehicle. They observed your mother in the rear passenger seat, slumped towards the middle seat, with her seatbelt still on.

19Mr and Mrs Nankervis saw that you were on the phone to emergency services. The 000 operator instructed you to take your mother out of the car, which you, your wife and another male did together. You commenced CPR on your mother until paramedics arrived and took over. Maria Flamenco was unable to be revived and died at the scene. Paramedics also assisted your wife.

20Police arrived at the scene and had a conversation with you which was recorded on Senior Constable Iliff’s Body Worn Camera. SC Iliff cautioned you and asked you what had happened. You stated that you ‘got asleep’ and closed your eyes and hit the pole. You said you were tired, but ‘not too much’. You said you thought you were telling your wife you were going to stop because you were getting sleepy. You said you had slept from 10:30pm to 7:30am the night before the collision and did ‘not really’ feel tired that day.

21Police conducted preliminary breath and oral fluid tests on you which produced negative results. Later at 4:20pm, a blood sample was taken from you. The sample was later analysed and no alcohol or drugs were present.

22You and your wife were taken by ambulance to Albury Base Hospital.

23Your wife, Odenis Flamenco, underwent CT scans for her neck, chest and abdomen. She was transferred via Air Ambulance to the Alfred Hospital in Melbourne. She was found to have suffered the following injuries:

(a)   bruising over the right clavicle and tenderness over the right chest wall;

(b)   bruising over the back of the right hand;

(c)   bruising over the right shin;

(d)   tenderness on palpation over the mid to lower thoracic spine;

(e)   fractured right ribs 1 to 6 with an overlying haematoma;

(f)    a small right pneumothorax;

(g)   fractured left ribs 1 to 2 with overlying haematoma; and

(h)   an undisplaced fracture of the anterior sternum.

24Your wife’s injuries were managed conservatively, and she was discharged from hospital on 31 March 2022. You did not suffer any injuries.

25At 5:44pm on 24 March 2022, members of the Major Collision Investigation Unit attended the scene and conducted an investigation into the collision.

26Photographs and a video recording were taken of the scene.

27A collision reconstruction was conducted by Detective Senior Constable Yuxing Zhao. He opined as follows:

(a)   ‘… the Subaru was travelling westbound on Murray Valley Highway at approximately 89 km/h when it deviated right across the eastbound lane of the road. The Subaru entered the grass embankment of the eastbound lane and travelled west along its base before impacting a power pole and coming to rest. The impact speed was approximately 55 km/h – 68 km/h’; and

(b)   ‘I was unable to determine why the Subaru veered off the road. There was no evidence to suggest the vehicle was out of control during the 5 seconds before the crash. However, there appeared to be a lack of active operation to the vehicle in that period of time’.

28On 28 March 2022, an external post mortem examination was performed by Dr Hans de Boer of the Victorian Institute of Forensic Medicine. Dr de Boer found that Maria Flamenco died as a result of multiple injuries sustained in the collision.

29On 3 May 2022, the Subaru was examined by Senior Constable Brett Gardner of the Collision Reconstruction and Mechanical Investigation Unit. His examination did not reveal any mechanical fault or failures with the vehicle which would have caused or contributed to the collision.

30On 30 March 2022, you were interviewed by police at Glen Waverley Police Station with the assistance of a Spanish interpreter. The prosecution opening summarises a number of your answers however you stated the following:

·that all of a sudden you had a micro sleep and thought to yourself ‘I’m driving, I have to be alert’;

·it happened a second time, and you thought ‘I have to stop and wake up my wife so she could keep driving’;

·you were thinking about that when you all of a sudden you had a third miro sleep;

·that the micro sleeps happened one after the other very quickly; and

·that you went into the bush and the car kept going. The movement woke you and your wife up.

31Following the interview, you were released pending further investigation by police. You were later charged.

Nature and gravity of offending

32Dangerous driving causing death is, by its nature, a serious offence as it involves the death of a human being. The seriousness of the offence is also reflected in the maximum penalty set by Parliament, being 10 years imprisonment, and its classification as a Category 2 offence requiring a term of imprisonment to be served unless a statutory exception can be established.

33In this instance, on your own admission you had experienced two microsleeps in close proximity before the third microsleep resulted in you drifting across the opposite lane onto the grass embankment ultimately hitting a concrete pole. It is of relevance that although the microsleeps happened in quick succession, you had an awareness of the first and second micro sleeps after each occurred prompting you to say to yourself that you ‘had to stop’.

34It is in my view your awareness of the microsleeps and your fatigue that elevates this offending from being in the lower range. That is, the objective dangerousness of your driving is not at the lower level. The circumstance of fatigue like that which occurred in this instance, resulting in a collision, is not uncommon. Once recognised, the driver should take steps to avoid the risk of falling asleep – a matter which you turned your mind to at the time. However it is also the fact that the offending does not have any other aggravating features such as speed, being affected by alcohol or drugs, or using a mobile device.

35As to your moral culpability it was submitted on your behalf that it falls towards the lower end which was accepted by the prosecution. In all the circumstances I accept that your moral culpability is low.

36While there were no victim impact statements tendered on the plea, it is self evident that the incident that resulted in the loss of your mothers life has had a significant impact on the family which is reflected in the many references provided to the court on your behalf.

Personal circumstances

37You are 65 years old. You were born in El Salvador in 1959. You moved to Australia in 1996 and moved to Melbourne in 2008. English is your second language.

38You are the fourth child in a sibship of five. You describe your childhood as very happy in a family home that was filled with laughter and music. You state that you had a close relationship with your mother and that your family was involved with the church from an early age.

39You left home when you were 19 and moved to Costa Rica where you studied and obtained a Bachelor’s degree in Religion. You became a pastor in 1982 and until 1996, spent a considerable time serving as a Field Pastor in El Salvador and Panama. Your two brothers are also pastors.

40You married your wife in 1983. You have adult two sons who are both currently members of the Australian Defence Force.

41In 1996, you were invited by the Spanish Church of South Australia to live and work in Adelaide, which you did for a period of 11 years. In 2008 you moved to Melbourne and continued to serve as a Field Pastor at the Victorian Conference for the Seventh-day Adventist Church.

42You have served as a minister for over 35 years.

43In 2018, you retired as a pastor to move closer to your parents who moved to Sydney in 1989 to flee the El Salvadorean civil war. You relocated to Tallangatta and commenced work as an office cleaner. You have continued to engage with this employment since the collision.

44A bundle of 21 character references were tendered on the plea. Many of the references are from members of the church community and describe your devotion and empathetic care for your congregation. It is evident from these references that you are a cherished member of this community.

45Each reference tendered on the plea is also a testament to your good nature. You are described as a gentle and caring person who has endured significant distress and loss as a result of the accident. In that regard the references also convey your genuine remorse. In your wife’s reference she describes your devotion to her as she recovered from her injuries, asking her for forgiveness and conveying to her how sorry you were that your mother had passed away as a consequence of your conduct.

Sentencing considerations

46I first take into account your plea of guilty. This matter came before me initially as a case conference which ultimately resulted in a sentence indication hearing. You accepted the sentence indication and pleaded guilty to the single charge on the indictment. Your plea has saved the court considerable time and the expense of a trial and importantly, has spared witnesses, including members of your family, from having to give evidence.

47As to remorse, it is clear from the references tendered that you have expressed a high level of remorse in causing the death of your mother and the injuries to your wife. However, you expressed to the writer of an assessment report for a community correction order that ‘your conscience is free’ because it was ‘an accident’. In that respect it appears you do not have appropriate insight into the fact that your conduct was indeed a criminal act. Nonetheless you have accepted responsibility for the accident and your plea has facilitated the course of justice by bringing the matter to a conclusion.

48Turning to your prospects of rehabilitation. You come before the court at age 65 with no prior criminal history. You a person of otherwise high integrity and character and you enjoy the ongoing support of you family and community. In all the circumstances in my view your prospect of rehabilitation are extremely positive.

49General deterrence is the paramount sentencing consideration in this instance. Your experience of fatigue and microsleeps is a common phenomenon particularly for those driving on country roads. It has been the subject of a number of educational campaigns by road safety authorities. For that reason, others must be reminded of the fact that fatigue can result in devastating consequences for those involved, and punitive consequences for those who do not respond to fatigue resulting in dangerous driving. As to specific deterrence, in the circumstances it only need carry limited weight in the sentencing calculus.

50Turning to s 5(2H) of the Sentencing Act 1991 (‘Sentencing Act’), Ms Broughton who appeared on your behalf relied on the exception as provided in s 5(2H)(e) - that there are substantial and compelling circumstances that are exceptional and rare that justify not making an order for an immediate term of imprisonment. Ms Broughton submitted that a number of matters taken in combination satisfy the exception including your low moral culpability, your remorse, your ongoing grief at causing the death of your mother with whom you were very close, your enduring family support, your lack of prior history and the concession of the prosecution that the exception is able to be established in the circumstances.

51As noted by the court in Director of Public Prosecutions v Lombardo,[1] the phrase ‘substantially compelling circumstances which are exceptional and rare’ refers to circumstances that ‘are wholly outside the ordinary factors typical of the relevant offence, in this case dangerous driving causing death’.

[1] [2022] VSCA 204, [71]-[72].

52In considering these matters I have also considered the authorities of Peers v The Queen[2] and Director of Public Prosecutions v Browne.[3]

[2] [2021] VSCA 264.

[3] [2023] VSCA 13.

53Ms Parkes who appeared on behalf of the Director of Public Prosecutions, submitted that in all the circumstances the exception under s 5(2H)(e) has been established.

54I too am of the view that the exception has been established in this instance. As such I had you assessed for a community correction order, and you have been found suitable. While all community correction orders are punitive in nature, in my view the principle of general deterrence calls for a specific punitive special condition which will be unpaid community work.

Sentence

55Mr Flamenco, would you please stand.

56Miguel Flamenco, on Charge 1, dangerous driving causing death you are convicted and sentenced to a community correction order for a period of 2 years. In addition to the standard conditions, you will be required to complete 200 hours of unpaid community work over the course of the order.

57Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 14 months with a non parole period of 9 months.

58Pursuant to s 89(2) of the Sentencing Act, as the charge is a serious motor vehicle offence, any driver licence you hold is cancelled, and you are disqualified from obtaining a further one for a period of 18 months from today.