Director of Public Prosecutions v Koutsogiannakis

[2024] VCC 1078

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised Not Restricted Suitable for Publication

Case No. CR-23-01380

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER KOUTSOGIANNAKIS

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JUDGE:	HER HONOUR JUDGE HOGAN
WHEREHELD:	Melbourne
DATEOFPLEA HEARING:	2 July 2024
DATEOFSENTENCE:	22 July 2024
CASEMAYBECITED AS:	DPP v Koutsogiannakis
MEDIUMNEUTRALCITATION:	[2024] VCC 1078

REASONS FOR SENTENCE

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Subject:

Catchwords:              Offender convicted following trial on one charge of theft of a motor vehicle, one charge of theft of registration plates, one charge of dangerous driving causing death, one charge of failing to stop after a motor vehicle accident and one charge of failing to render assistance after a motor vehicle accident – offender drove stolen car displaying stolen registration plates and collided with an electric bike ridden by the victim, whose body travelled 45 metres before it came to rest – victim suffered serious injuries, including a fractured cervical vertebrae resulting in his death – dangerous driving comprised evidence of high speed of the vehicle driven by the offender shortly prior to the collision, offender being disqualified from driving at the time, offender failing to comply with a red traffic control signal against which he entered the intersection at a speed between 82 and 87 kilometres per hour in an 80 kilometre zone and collided with the victim – offender failed to stop after the collision and failed to render assistance -offender drove approximately 20 kilometres from the scene of the collision and engaged in post-offence incriminating conduct by setting the vehicle he had been driving at the time of the collision on fire and fleeing the scene

–lengthy prior criminal history for driving, dishonestly and drug offences

–  subsequent criminal history for driving, dishonesty, drug offences – offender continues to deny offending – poor prospects of rehabilitation at the present time.

Legislation Cited: Crimes Act 1958 (VIC), and Sentencing Act 1991 (VIC).

Cases Cited:Khoa Minh Le v the Queen [2021] VSCA 220, Grewal v The Queen [2011] VSCA 331, Director of Public Prosecutions v DJK [2003] VSCA 109, DPP v Browne [2023] VSCA 13, DPP v Weybury [2018] VSCA

120, Vasileski v the Queen (2018) VSCA 7, Stephens v the Queen

(2016) 50 VR 740.

Sentence:Total Effective Sentence is 7 years and 10 months’ imprisonment with a non-parole period of 5 years and 3 months.

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APPEARANCES:Counsel  Solicitors

For the DPP  Ms D Caruso (For Plea)  Office of Public Prosecutions Ms D Shivakumar

For the Accused  Mr P Skehan (For Plea) Mr Abdul Taleb

Theo Magazis Solicitors

HER HONOUR:

1Peter Koutsogiannakis, following a trial you have been convicted of one charge of theft of a motor vehicle (Charge 1), one charge of theft of registration plates (Charge 2), one charge of dangerous driving causing death (Charge 3), one charge of failing to stop after a motor vehicle accident (Charge 4) and one charge of failing to render assistance after a motor vehicle accident (Charge 5). Each of these five charges carries a maximum penalty of 10 years’ imprisonment.

2At the trial the sole issue for determination by the jury was the identity of the person who committed these offences. In the light of the jury having convicted you on all charges, it is pertinent to append to these sentencing remarks the Summary of Prosecution Opening (amended) dated 6 June 2024 for the trial, along with Exhibit “LL” at the trial, admissions of fact by you pursuant to s184 of the Evidence Act made on 5 June 2024.

3The essential facts of your offending are as follows:

At approximately 4.31am on 5 January 2022, you were one of four males inside a white HiAce van which attended a private underground carpark of the Madison Apartments at 91-93 Tram Road, Doncaster. Two males got out of the van, but one returned to it, as the other walked around the carpark. A police car arrived in the street opposite the entrance to the carpark, at which point the van left the carpark. Police attempted to intercept the van, but it left from the scene. The remaining male in the carpark stole a red coloured 2010 Holden Cruze Sedan registration number ending 592 belonging to Ms Angela Chiavaroli (“the stolen car”), in the glove box of which was a Medicare and Health Care card in her name. The male driving the stolen car left the carpark some nine minutes or so after the white van had first arrived.1 This is the basis of Charge 1, theft of a motor vehicle, which was put to the jury by the prosecution on the basis of you being complicit

1. CCTV footage of the carpark, Exhibit “Q” at the trial

with the other three males who arrived in the van. Your co-offenders are alleged to have been Andrew Rocca-Davis, Siale Fatai and Ashley Fuller.

4Between approximately 5.15am and 5.30am on 5 January 2022, registration plates ending 313 were stolen from a 2014 red Holden Cruze sedan whilst it was parked outside a property on Erli Court in Blackburn. The registration plates and this vehicle belonged to Ms Sarah Dornseiff. The registration plates on Ms Dornseiff’s vehicle were replaced with those from the stolen car. This is the basis of Charge 2, theft, of which the jury found you guilty.

5At approximately 5.58am, on 5 January 2022, you were alleged to have driven the stolen vehicle displaying the stolen registration plates to the residence of a friend, Andrew Rocca-Davis, at 11 Andover Court in Hampton Park.2 At 8.07am, the white Toyota HiAce van (which earlier had been present at the carpark shortly before the stolen car was driven from it), was seen travelling together with the stolen car away from the area of Rocca-Davis’s home.3 The stolen car was seen, again, travelling away from the vicinity of Rocca-Davis’s home at 5.48pm, and again, at 11.17pm that day, and returning at 11.20pm.4 In the early hours of the following morning, 6 January 2022, at approximately 3.10am, the stolen car was seen leaving the vicinity of Rocca-Davis’s home and then returning at 3.42am.5 When I say “seen” I am referring to wat was depicted on multiple pieces of CCTV footage tendered at your trial.

6Later CCTV footage, at approximately 4:11am on 6 January 2022, shows the stolen car being driven out of Rocca-Davis’s street (Andover Court), then travelling north on Strong Drive and east onto Warana drive.6 A witness, Mr Munday, described driving along Kilberry Boulevard at around this time. He stated that, shortly before he turned left into Pound Road, a red car passed him at a very fast

1. CCTV footage, Exhibit R from the trial.

2. CCTV footage, Exhibit R2 from the trial.

3. CCTV footage, Exhibits R3, R4, R5, R6 from the trial.

4. CCTV footage, Exhibits “R7” and “R8” from the trial

5. CCTV footage, Exhibits “R9”, “R10”, “R11” and “R12” from the trial.

rate of speed on his righthand side. He estimated the speed at approximately 100 kilometres per hour, having previously had experience in racing cars. He stated that, by the time he reached the roundabout to travel west into Pound Road, the tail lights of that red car were just disappearing over the crest in Pound Road (That crest is shortly before the intersection between Pound Road and Hallam Road, where the collision occurred which is the subject of Charges 3, 4 and 5 of which the jury has found you guilty).

7More CCTV footage shows the stolen car travelling along Pound Road at approximately 4:11:47.7 The driver of that car, which the jury has found to be you, then drove it through a red light at the corner of Pound and Hallam Roads approximately 14 seconds after that light had turned red.8 You drove it across that major intersection, where Mr Manapori, had just crossed a zebra crossing from the south western corner of the intersection, stood on a concrete traffic island to activate the green pedestrian light, and, after pedestrian light turned green, had begun to ride his electric bike north across Pound Road. You struck Mr Manapori with the front passenger side of the stolen car whilst travelling at a speed estimated to be between 82 and 87 kilometres per hour.9 The passenger side of the stolen car was apparently somewhat over the line between the middle and righthand westbound lanes of Pound Road. At the point of impact, Mr Manapori was 6.9 metres across the southern side of Pound Road.10 His body came to rest some

45.2 metres away, near the southern footpath.11 His bike ended up 48.7 meters away.12 His backpack landed on the road further west, and the battery from his electric bike was found some 76 metres away in the front yard of a house on Pound Road. Mr Manapori died on the side of the road from injuries received from the impact. The basis of Charge 3, dangerous driving causing death, is your conduct of speeding on Pound Road after overtaking Mr Munday shortly before the

1. Exhibit “S”

2. Evidence at trial of the informant, Detective Thomas, trial Transcript (“TT”) p426.

3. Evidence at trial of Detective Hardiman, Collision Reconstruction expert, TT76,99.

4. Ibid “TT” p66-68 and 74-76 together with Exhibit “C”.

5. Ibid TT p65 and 76.

6. Ibid TT p 64.

collision, entering the intersection against a red light, failing to keep a proper lookout, and travelling at 82 to 87 kilometres per hour (in an 80 kilometre zone), when you should not have been driving, at all because you had been disqualified from doing so some four months earlier on 9 September 2021.

8The time of the collision was estimated by the informant, Detective Thomas, to be

4.12.52am. Dashcam footage from a vehicle on the north-western side of the Pound and Hallam Road intersection showed that the stolen car struck Mr Manapori and continued west on Pound Road without stopping. The impact between the stolen vehicle and Mr Manapori and his bike was clearly of great magnitude and no driver could have failed to realise that he had struck someone, as indicated by the severe injuries suffered by Mr Manapori, the fact that his body became airborne and the very mangled state of his bicycle, which was virtually folded in half. You did not stop and you did not render any assistance. Instead, you drove some further 20 kilometres to Brentwood Reserve in Glen Waverley where, by 4.38am, you had apparently set the stolen car alight. There was dashcam footage of a man, said to be you, fleeing from the scene of the ignited vehicle.13 Your failure to stop is the basis of Charge 4, and your failure to render assistance is the basis of Charge 5, of which the jury have found you guilty.

9At 8.30am on 6 January 2022, police put out a media release calling for witnesses or anyone who might have dashcam footage or other information that could assist police in relation to the fatal hit-run collision.14 Once police became aware that the ignited vehicle was the same vehicle which had struck Mr Manapori and was also the stolen car, a second press release was put out at 4.03pm on 6 January 2022 appealing for witnesses, and it attached a still image of the man fleeing the scene of the ignited vehicle.15 Approximately an hour and a half after the second press release, your solicitor, Ms Thea Milides, telephoned Detective Sergeant Roslyn Wilson of the Major Collision Investigation Unit, indicating that she was

1. Exhibit “U” and Exhibit “V”, a still photograph from the dashcam footage tendered at the trial

2. Exhibit “BB” tendered at the trial

3. Exhibit “CC” tendered at the trial

representing a client who wished to speak to police in relation to the Hampton Park hit-run. After making enquiries, Detective Wilson made an appointment for you to come into Melbourne West Police Station that evening around 7.30pm or 8.30pm, but you did not turn up.

10On the following day, 7 January 2022 at 2.00pm, police put out a third media release appealing for the driver of the fatal hit-run to come forward, and, again it attached the still photograph taken from the dashcam footage showing the man fleeing the scene of the ignited vehicle.16 One hour later, your solicitor, Ms Milides, contacted the Major Collision Investigation Unit to advise that you would attend Melbourne West Police Station at 4.00pm that day. At 4.22pm you attended. Detectives Merrett and Thomas went out to the foyer, where you had taken a seat. The evidence of Detective Merrett was that, as they approached, you rose to your feet and put your hands up on either side of your body as though you were surrendering. You then volunteered “I couldn’t live with myself” in response to which Detective Merrett stated, “What do you mean” and you responded “The crash”. He described you as emotional, as though you were experiencing a stress reaction. He stated, “You’re here now”, to which you responded “It’s a weight off my shoulders, I wanted to come last night, I just couldn’t.” This evidence was corroborated by Detective Thomas and not challenged by your counsel at trial. The jury was shown CCTV footage of you then being taken into the custody area and placed in handcuffs and told that you were under arrest in relation to the fatal collision. That footage shows you being totally compliant and making no protest that the police had in any way misunderstood that you were the offender, as distinct from some person who had simply come in to assist to give information about what he knew about the collision.17

11A Record of Interview was commenced, in which you declined to adopt what you had said to the Detectives in the foyer of the police station, claiming “I’m not sure.

1. Exhibit “DD” tendered at the trial

2. CCTV footage tendered as Exhibit “EE” at the trial

Like I – like I said to you, I – I’m – I had a Valium prior to walking into it, into there, so – yeah, hmmm.”18 When the Detectives endeavoured to have you clarify what you meant, you shrugged and stated “well I – I – I’m here, so pretty much … try and get closure to somebody’s family … I’m here – to try and maybe hopefully get closure to somebody's family.”19 As is your legal entitlement, you declined to answer police questions stating “I can only – I can only … say what I’ve been advised from the lawyers.”20When the Detectives stated that you were going to be charged with dangerous driving causing death, you nodded, and when they enquired as to whether you wanted to comment on the charge, you answered “just like I – just like I said – said before about the family …”.21 When asked by the Detective “Was the word closure? Is that the word you” you answered “No, like – like condolences as well and …”.22

12At the trial, the prosecution relied upon your statements in the foyer of the police station and in the Record of Interview as admissions made by you against interest. The prosecution also relied upon the conduct of setting alight the stolen car as post-offence incriminating conduct.

13As previously mentioned, the sole issue in the trial was one of identity. You had not provided a version of events in your Record of Interview. Nor did you give evidence in the trial. Both of these courses of action, obviously, are your legal entitlement.

14The prosecution relied upon a substantial quantity of circumstantial evidence which was placed before the jury. It comprised:

·CCTV footage of the underground carpark from which the stolen car had been taken and evidence from its owner, Ms Chiavaroli.

1. Answer to question 39 in the Record of Interview, Exhibit “GG” at the trial

2. Answers to questions 42 and 43 in the Record of Interview, Ibid

3. Answer to question 49, which is of course your legal right

4. Answer to question 77 in the Record of Interview

5. Answer to question 80 of the Record of Interview

·Evidence relating to the stolen registration plates ending 313, from their owner, Ms Dornseiff.

·Expert evidence from a forensic scientist Ms Rebecca O’Sullivan, that a partial single profile of DNA extracted from the stolen number plate on the front of the stolen car was analysed and evaluated to be 100 billion times more likely to be from you than not, and that this provides extremely strong support for the proposition that you were the source of that DNA.

·Evidence relating to a mobile telephone number ending in “803” known to be used by you.

·Evidence relating to another mobile phone number ending in “615”, the SIM card for which had been purchased late on the evening of 7 January 2022 at the 711 store close to Andrew Rocca-Davis’ address, at which store two transactions on your Commonwealth Bank account had taken place on 6 January 2022. The SIM card had been purchased using Ms Chiavaroli’s Health Care/Centrelink identity cards, which had been in the stolen car. This “615” number was subsequently shown to be in the mobile telephone handset in which your earlier known “803” number had been used. On 23 January 2022 this handset, with the SIM card for the “615” number inside, was found by police in a car in which you were present, together with other items of your property.

·Evidence relating to your bank accounts, which showed your relevant contact numbers, being both the “803” number and, subsequently, the “615” number. Also, the evidence of previously purchases which had been made using your Commonwealth Bank account at the same 7-Eleven store near Rocca- Davis’s home where the SIM card for the “615” number was later purchased.

·Expert evidence relating to the signals between the mobile phone network and the “803” phone used by you leading up to and subsequent to the

removal of the stolen car from the underground garage, the theft of the registration plates, at various times in proximity to Rocca-Davis’s home, and, after the collision, moving north-west to the time and area where the stolen car was set alight.

·Expert evidence that signals between the mobile phone network and the mobile phone numbers of the other suspects relating to the stolen car, namely Rocca-Davis, Fatai and Fuller, had remained stationary in the Hampton Park, Murrumbeena and Clayton South areas respectively following the time of the collision.

·Evidence from Mr Munday, who stated that the red car overtook him at high speed shortly before the collision occurred, and a great deal of CCTV footage relating to movement of the stolen car in and around Rocca-Davis’s address prior to and leading up to the time of the collision.

·Evidence of calls from Rocca-Davis’s phone (a mobile phone number ending in “480”) to your “803” mobile phone, which had gone through to voicemail very shortly after the collision had occurred.

·Evidence from the two civilians who were first on the scene after the collision about what they observed, and from police who arrived on the scene at

4.27am on 6 January 2022, together with evidence concerning paint flecks and broken pieces of a fog-light assembly at the scene which matched the stolen car.

·Evidence from several police officers and experts concerning the scene of the collision, together with expert evidence from Detective Hardiman, a collision reconstruction expert.

·Alleged possible similarities between the still image extracted from dash cam footage of a man fleeing from where the stolen car had been ignited (the image being at 4.52.37) on 6 January 2022, and CCTV footage, as well as

still images extracted from it, of when you attended Melbourne West Police Station on 7 January 2022 at 4.22pm.23

·Alleged admissions made against interest made by you at Melbourne West Police Station on 7 January 2022 and, also, the burning of the stolen vehicle, relied upon as post-offence incriminating conduct.

15The prosecution also relied upon a number of admissions of fact by you which comprised Exhibit “LL” at the trial.

16In my view, this was a strong circumstantial case against you. Clearly the jury rejected a number of hypotheses which were put forward by your counsel, namely, that your mobile phone may have been left in the stolen car; that there could have been some other unknown driver of the car; that you may have been a passenger in the car while Rocca-Davis was driving, but Rocca-Davis got out soon after the collision and you took over the driving of the car and subsequently set the car alight to help your friend; that you had been a passenger and someone else who had been at Rocca-Davis home had been driving; and that the person who had been the driver had fled from the scene of the ignited car by a different route from that taken by the person alleged to be you fleeing from the scene.24

17You are presently aged 30 years, having been born in October 1993. You were aged 28 years at the time of the offending for which I must sentence you. You come before the Court with a significant prior criminal history. It particularly relates to driving, dishonesty and drug offences for which you have been before Magistrates’ Courts on a number of occasions since your first appearance before a court on 2 September 2013, now almost 11 years ago.

18Prior to this offending, you had six convictions for theft of a motor vehicle and a substantial number of convictions for other dishonesty offences, including burglaries, thefts from shop, thefts from motor vehicles and handling or retaining

1. Exhibits “FF” and “HH”.

2. As shown in the still image tendered as Exhibit “V”.

stolen goods. Some of these dishonesty offences involved registration plates which had been stolen. Your prior history also includes six offences of driving whilst authorisation was suspended and three offences of driving whilst disqualified, as well as driving whilst unlicensed and failing to comply with the conditions of a licence. In addition, you have convictions for failing a drug blood test within three hours of driving, speeding, driving on a single continuous line-painted island and dangerous/negligent driving whilst being pursued by police. You clearly have a history of use of illicit drugs as reflected in many convictions for possession of drugs, as well as a conviction for trafficking. You have convictions for other antisocial conduct, such as intentionally damaging property, recklessly causing injury and common law assault. You also have convictions for weapons offences and committing indictable offences whilst on bail.

19Prior to the offending for which I must sentence you, you had breached rehabilitative dispositions by way of a Community Correction Order on five occasions. Further, only a little over three months earlier, at Dandenong Magistrates’ Court on 9 September 2021, you had been sentenced to a total effective term of one year and eight months’ imprisonment. This sentence was for a significant number of dishonesty, drug, assault and contravention of bail offences. Of this term of imprisonment, 523 days was reckoned as time served. Thus, it would appear that you were released from custody at some time in December 2021, only a week or two before the offending for which I must sentence you.

20Tendered as Exhibits “A” to “E” at the plea hearing were summaries of some of your prior offending25. These demonstrate that, from the time you first held a probationary licence, you have shown very little respect for the privilege of holding a licence, scant regard for road rules and the safety of others, and repeated dishonesty by stealing cars and petrol, and offending involving stolen registration

25 Summaries were redacted to remove details of charges which had been withdrawn at hearings of a consolidation of charges in the Magistrates Court.

plates. Your counsel Mr Skehan stated that you obtained your driver’s licence on your 18th birthday, in October 2011. A certificate from the Department of Transport pursuant to s84(1) of the Road Safety Act, indicates that your first of many offences of driving whilst authorisation was suspended was committed on 11 August 2014. This indicates that, prior to the expiry of three years as a probationary driver, you had already had your licence suspended for accruing demerit points. Your pattern of lawless behaviour is illustrated by the following examples of your prior offending:

(a)On 30 December 2014, you were found driving an unregistered vehicle whilst your probationary licence had expired, and you appeared drug affected. You appeared for this offence and many other offences committed in 2014 and 2015 at Dandenong Magistrates’ Court on 25 January 2016. On that day, you were convicted, amongst other things, of failing a drug test within three hours of driving26, six charges of driving whilst your authorisation was suspended,27 two charges of exceeding the speed limit by more than 10 kilometres per hour but less than 25 kilometres per hour28, two charges of using an unregistered motor vehicle, and possession of illicit drugs. 29 You were placed on a 12 month Community Correction Order, which you later breached.

(b)On 22 February 2016, police observed you driving erratically on Warrigal Road, Malvern East. When they tried to intercept you, you performed an illegal U-turn on Warrigal Road and accelerated away. Other police members then positioned vehicles to block your way and, as you tried to evade the blockade, you collided with the rear of a police divisional van, which stopped your vehicle, but you then fled on foot.30 At Dandenong Magistrates’ Court on 27 July 2016, you were convicted of dangerous/negligent driving whilst being pursued by police, driving whilst disqualified, contravening bail,

1. Apparently committed on 1 August 2015

2. See Victoria Police Criminal History report dated 10 July 2024.

3. Apparently committed on 11 August 2014

4. This is related to offences on 11 August 2014

5. Part of Exhibit “B”, summary of offending in which the informant is Laidlaw.

committing an indictable offence whilst on bail, using methylamphetamine and possessing cartridge ammunition. Also, contravention of the Community Correction Order made on 25 January 2016 was found proven and varied. Again, you were sentenced to a Community Correction Order for a period of

12 months which you breached and for which you were charged. Such contravention was found proven on 3 July 2018.

(c)On 2 July 2017, whilst disqualified from driving, you drove a stolen grey Volkswagen Golf vehicle into the 7-Eleven petrol station at Hallam, filled it up with $45.84 of petrol, and drove off without paying. You were charged with theft from a shop, driving whilst disqualified and other offences. Three months later, on 25 October 2017, you were found accessing the boot of a white Range Rover, which had been stolen a week earlier, and you had possession of the keys. You were charged with the theft of that vehicle, as well as the other offences.31 At Dandenong Magistrates’ Court on 3 July 2018 you were convicted of these and quite a number of other offences, including trafficking in 1,4 Butanediol and possession of illicit drugs. You were sentenced to an aggregate of 180 days’ imprisonment together with a Community Correction Order for 18 months, which you subsequently breached.

(d)On 23 July 2018, you were driving a grey Audi A4 station wagon, which had been stolen during an aggravated burglary earlier that month and to which was affixed stolen registration plates. You and two others drove to the Coles Express in Dandenong, filled the vehicle with $72.00 worth of petrol, and drove away without paying. You were unlicensed to drive. At Dandenong Magistrates’ Court on 19 December 2018, you were convicted of theft of a motor vehicle, possession of suspected stolen goods, unlicensed driving, theft, possession of drugs, going equipped to steal and another theft of motor

1. Part of Exhibit B, summary of offending in which the informant is McStephney.

vehicle charge. You were sentenced to be imprisoned for a period of six months.32

(e)Between January 2021 and June 2021, you committed some 30 offences for which you appeared at Dandenong Magistrates Court on 9 September 2021. They included unlicensed driving, three thefts of motor vehicles and thefts/handling/retention of registration plates, drug offences and many others. You were convicted and sentenced to a total effective sentence of 1 year and 8 months imprisonment, to which I have previously referred.

21After committing the offences on 5 and 6 January 2022, of which the jury has found you guilty, less than three weeks later, on 23 January and 27 January 2022, you committed further offences. Subsequently, you committed more offences in July and August 2022. At the plea hearing, the prosecution tendered material in relation to this subsequent offending in January 2022 and in July and August 2022.33 An updated Victorian Police Criminal History Report for all of your offending was tendered as Exhibit G.

22The essence of your subsequent offending in January 2022 is as follows:

(a)On 23 January 2022, police observed a stolen Mazda, displaying false registration plates, perform an unsafe manoeuvre on the road. This involved the driver trying to skip a queue of vehicles which were lined up at the boom gates of a level train crossing in Brighton. Police pulled up beside the Mazda, which you were driving, and indicated that, once the boom gates had cleared, you needed to pull over. You nodded in response and police activated the flashing lights of their vehicle. You indicated as though to pull over, but then veered back into the right lane. Soon after, you veered through a break in the median strip and continued travelling on the incorrect side of South Road

1. See Exhibit “C”, summary of offences in which the informant is Hupfeld, and Victorian Police Criminal History Report, noting that a number of charges mentioned in the summary were withdrawn.

2. Subsequent to the plea hearing, on 12 Jul 2014, the prosecution provided a summary in table form of your prior and subsequent offending: “MFI-C”

at a fast rate of speed. Due to the extreme risks, police did not attempt to pursue you further.34

(b)Later on 23 January 2023, you were seen driving the stolen Mazda at a fast rate of speed east on the Princes Highway in Malvern East. You entered the intersection with Darling Road via the bus lane, against a red light. You then collided with a black Toyota Camry sedan driven by Chamila Middeniyage, who was turning right from the other side of the intersection on a green arrow. There were no skid marks or other tyre marks on the road to indicate that you had attempted to brake. The stolen Mazda which you were driving then struck a pole and came to a stop. You and your front passenger, Saile Fatai, fled from the collision scene on foot.35 I here interpolate that, in the stolen Mazda vehicle which had been driven by you, police located a mobile phone headset containing the SIM card for the “615” number to which I have previously referred as being part of the evidence at your trial. The SIM card had been purchased by you at the 7-Eleven in Hampton Park on the evening of 7 January 2022 some hours after you had been released following a record of interview in relation to the matters for which I must sentence you. Also in that stolen Mazda vehicle were a significant number of items of property which had been stolen from burglaries, namely, three laptops and 191 packets of cigarettes, as well as a variety of other stolen goods, and house breaking implements.

(c)Police ultimately caught up with you four days later on 27 January 2022 after they observed you and a co-offender, Harris, sitting in a stolen dark grey Volkswagen Golf sedan in the Chadstone Shopping Centre carpark. The Golf sedan had no registration plates attached. Your co-offender drove the Golf sedan and parked in a driveway in Warrigal Road, Malvern East. You

1. Charge 4, theft of a motor vehicle, and Charge 5, failing to stop on a police direction and driving whilst disqualified of which the offender was convicted at Moorabbin Magistrates Court on 17 June 2022.

2. Charges of driving in a manner dangerous and failing to stop after an accident for which the offender was convicted at Moorabbin Magistrates Court on 17 June 2022.

got out of the vehicle and crouched down. You stole registration plates from a nearby parked Hyundai Venus wagon and attached the stolen registration plates to the Golf sedan driven by your co-offender. You then met up with another co-accused, Ashley Fuller, who was driving a red Nissan Navarra utility, which had been stolen on an earlier date and which was displaying New South Wales registration plates (also stolen on an earlier date). Your two co-offenders ultimately left in the stolen Volkswagen Golf vehicle, whilst you left driving the stolen Nissan Navarra utility, first to one address and then to the address of Fuller at Unit 4, 22 Knight Street, Clayton South. A short time later, police entered that address and arrested you, Fuller, Harris and your sister, Tina Koutsogiannakis (who, at the time, was the intimate partner of Fuller).

(d)You appeared at Moorabbin Magistrates’ Court on 17 June 2022 in relation to the offending which I have just described.36 You were convicted of theft of motor vehicle, failing to stop vehicle on police direction, driving whilst disqualified, driving in a manner dangerous, failing to stop a vehicle after an accident, negligently dealing with proceeds of crime, dishonestly receiving stolen goods, two charges of theft from a motor vehicle, theft, driving whilst disqualified, dishonestly undertake retention of stolen goods, possessing housebreaking implements and possessing GHB. You received an aggregate sentence of 140 days’ imprisonment, with 141 days presentence detention reckoned as served. Your licence was cancelled, and you were disqualified for a period of 12 months.

23The essence of your subsequent offending in July and August 2022 offending is as follows:

(a)On 15 July 2022, you stole $70.00 of petrol from the Ampol service station at Mount Waverley. On that same day you drove whilst disqualified. On 11

1. Note: An email from the Office of Public Prosecution dated 1 July 20224 erroneously refers to the date of this hearing as 22 June 2022: See exhibit MFI-B

August 2022, you stole two sets of registration plates belonging to Skoda, a 2015 Volkswagen Touareg station wagon belonging to Tyrone McCarthy, diesel fuel valued at $67.26 from the 7-Eleven at Carrum Downs, and, also, were found to have retained stolen registration plates ending 554. Again, on that same day you drove whilst disqualified.

(b)On 27 August 2022, another motorist, Mr Seifried, observed you erratically driving a black Audi A4 sedan whilst travelling west on the Burwood Highway. You were merging lanes, without indicating, and tailgating vehicles. He called 000. You then turned left to travel southbound on Blackburn Road in Burwood East, but stopped in the left lane blocking all traffic. Mr Seifried pulled up behind you. You got out of the Audi and came up and tapped on Mr Seifried’s window with a mobile phone and were very aggressive and yelled at him. The D24 operator advised Mr Seifried to leave the area for his own safety, which he did, but you followed him into Ray Road and pulled in front of him, blocking his path. You, again, got out of the Audi and approached Mr Seifried’s vehicle, but this time were armed with a chrome coloured two foot long spanner. You tapped it on the bonnet of Mr Seifried’s vehicle and then approached his door in a highly aggressive manner, stating “I’m gonna fuck your car up. Don’t follow me. Why are you following me?” Mr Seifried then reversed away from you and parked in an area opposite Ray Road where he could still observe you.

(c)After Mr Seifried departed, you pulled into a driveway for approximately 10 seconds and then reversed out and collided with an oncoming brown Nissan X-Trail vehicle driven by its owner, Mr Nadarajah. Also present in the vehicle were his two daughters and his wife, who suffered swelling and pain to her left shoulder, arm and hand necessitating attendance at hospital and a period of time with the arm in a sling and time off work. Your collision into this vehicle caused such damage that the vehicle was written off. When Mr Nadarajah stated that he was going to call police, you attempted to drive off in the Audi

vehicle, but Mr Nadarajah blocked his vehicle in front, preventing you from doing so. You were observed to be agitated and your eyes to be darting. Witnesses described you as having the look of someone who was on ice. You then caught sight of Mr Seifried watching you and became enraged. You took the large chrome two foot long spanner from the Audi and approached Mr Siefried, who attempted to walk away from you as you yelled that you were going to get him and asked where his vehicle was. You then struck a tree with the spanner and returned to the Audi vehicle and threw the spanner into the back seat before getting into the drivers seat. You revved the engine loudly and, as you drove off, yelled to Mr Siefried, “Where is your car? I’m going to T-bone it, smack it up.” You were disqualified from driving at the time of this protracted offending.

24Several attempts were made to locate you and urge you to hand yourself into police. Finally, on 20 September 2022, you attended Knox Police Station. You were interviewed and either denied the offending or gave “no comment” answers (as is your legal entitlement). When police searched you, they found two zip lock bags in your underwear. These contained 7 Xanax pills, 23 Diazepam pills, 4 Valium pills and three plastic wrap piles of orange suboxone tablets.

25On 22 March 2023, you appeared at Ringwood Magistrates’ Court on a consolidation of charges for your offending between 15 July 2022 and 27 August 2022. You were convicted of three charges of possessing a drug of dependence (prescription drug), one charge of possessing a prohibited weapon, two charges of theft from a shop, three charges of driving whilst disqualified, one charge of theft from a motor vehicle, one charge of dishonestly retaining stolen goods, one charge of theft of a motor vehicle, one charge of unlawful assault and one charge of careless driving. You were sentenced to an aggregate sentence of seven months’ imprisonment, with a period of 183 days presentence detention reckoned as already served.

26Mr Koutsogiannakis, clearly, it is no part of my task to punish you, again, for offending for which you have already been punished. However, you have a truly appalling record for repeatedly committing offences of dishonesty, seriously bad driving, disregarding the authority of police who try to ensure safety on the roads and flagrantly disobeying the law which requires you to have a licence to drive. Your persistent offending prior and subsequent to 5 and 6 January 2022 is relevant as an indicator of your moral culpability, your prospects of rehabilitation, the need to protect the community and the need for the weight to be given to specific deterrence in sentencing you.37

27Within a short time of having caused the death of Mr Manapori whilst driving a stolen car bearing stolen registration plates, disobeying road rules and being disqualified from driving, you again offended with more dishonesty offences involving thefts of cars and registration plates, dangerous driving and careless driving causing collisions, and fled from the scenes of collisions. This would be likely to shock the conscience of members of the community in that it demonstrates a grave affront to the standards of reasonable, decent behaviour expected by our society.

28Your offending prior and subsequent to the serious offending for which I must sentence you involves a total of eight thefts of motor vehicles, six occasions of driving whilst authorisation was suspended, eight occasions of driving whilst disqualified, three occasions of unlicensed driving and, also, charges of careless driving, dangerous/negligent driving whilst being pursued by police, dangerous driving, exceeding the speed limit, failing a blood test for drugs within three hours of driving, failing to stop after an accident and failing to stop on police direction. You have shown yourself to have a sense of entitlement devoid of any moral qualms when it comes to the property of others and the safety of others on the road.

1. Khoa Minh Le v the Queen [2021] VSCA 220 at para 25.

29Despite multiple attempts to address your offending by rehabilitative conditions attached to Community Correction Orders, even with judicial monitoring, you have failed to do anything about the criminal lifestyle which you have led for in excess of a decade. You have been undeterred by sentences of imprisonment and reoffended soon after being released. You were clearly undeterred by having been responsible for Mr Manapori’s death, and your offending subsequent to the dreadful offending by you on 6 January 2022 indicates a lack of remorse for what you have done.

30Charge 1, theft of Ms Chiavaroli’s motor vehicle, was a deliberate and premeditated theft committed by you, whilst complicit with three others. It involved a brazen trespass into a private underground carpark in the early hours of the morning. The carpark was beneath the apartments of residents who were entitled to expect that it would be a secure place to leave their cars. It is apparent from your criminal convictions prior to 5 January 2022 that stealing vehicles was an offence with which you were familiar and that it was often accompanied by theft of registration plates from another vehicle, which would be put on the vehicle which you had stolen.

31The ownership of a car is a much valued commodity in our society upon which people rely for a multitude of essential everyday activities. The impact of the theft of Ms Chiavaroli’s car is very plain from the Victim Impact Statement made by her on 28 June 2024.38 She was a single person who had been adversely affected by the restrictions imposed due to the COVIV-19 pandemic and was trying to survive on casual work as a relief music teacher. Her family had helped her by funding the purchase of the car which you stole. Inside that car, she had all the essential teaching resources for her music teaching work, which she had compiled over some time, as well as other personal possessions including personal identity cards. As there was a set of spare keys in the car, her insurer decline to reimburse for theft of her car. As the keys to her apartment were attached to the spare car

1. Exhibit “J”

keys, she needed to replace the locks on her apartment. She estimates her financial loss to be in the order of $20,000. She stated that what should have been a relaxing summer holiday time for her was highly distressing, as she absorbed the shock of her car being stolen, then learned in the news that it had been involved in a hit-run collision, and feared identity theft because of the personal items she had left inside the car, as well as being concerned about security issues in her apartment block. After the theft of her car, she had to use public transport in order to get to work. She stated that, as a result of your crime, she has been left hypervigilant and feeling guilty towards her elderly relatives who had put their funds towards purchasing the car in the first place. The shock and inconvenience occasioned to Ms Chiavaroli are understandable and foreseeable consequence of the theft of her car and its contents. These are the types of consequences to which you have never bothered to pay heed, either before or after this offending.

32Charge 2, theft of Ms Dornsieff’s registration plates is more than just the theft of pieces of metal on which letters and numbers are impressed. Registration plates are the crucial identifying feature of a car, as you are well aware. They are an indicator that a compulsory third party insurance premium has been paid by the owner. This premium funds the compensation paid to victims of road accidents by the Transport Accident Commission. Theft of registration plates causes obvious inconvenience to their owner, as it is illegal to drive a car without them being attached, as you are well aware. Stealing registration plates and attaching them to a stolen car is devious behaviour, deliberately aimed at hiding your dishonest crimes and trying to avoid detection. It is something in which you have repeatedly engaged as an experienced and remorseless criminal.

33I turn now to Charge 3, dangerous driving causing death. You, of all people, should have been aware that you should never have been behind the wheel of a car, at all, because you were disqualified from driving at the time of the collision and, indeed, had been disqualified on numerous prior occasions. As previously mentioned, Mr Munday gave evidence at the trial that the red car, which the jury

has found you to have been driving, had overtaken him doing approximately 100 kilometres per hour in a suburban street in Hampton Park, and, after you turned into Pound Road, you very quickly disappeared from his sight. You were not charged with speeding at this particular time, but it was relied upon by the prosecution as part of the circumstances indicating that you were driving in a manner dangerous, as it was a very short time prior to the collision. Unlike either Mr Munday or Mr Manapori, you were not on your way to work to earn an honest living. Why you needed to drive so impatiently, overtaking and speeding at 4.11am on 6 January 2022, only you can know. It is apparent from your criminal history that speed limits, obeying road rules and generally driving safely to ensure that you do not harm others, are not matters with which you concern yourself.

34The evidence before the jury was that, at the time of the collision, the road surface of Pound Road was in good condition, the weather was clear, the visibility was good and the intersection with Hallam Road was well lit. It is plain from the evidence at trial, particularly the dashcam footage of the collision scene,39 that the view of this major intersection, as you approached it on Pound Road travelling west, was very good. Detective Hardiman, the collision reconstruction expert, stated that your path to the intersection and beyond was on a decline.40 The section of road upon which you were travelling before entering the intersection had three lanes for traffic continuing to travel straight ahead to the west, two lanes for traffic turning right (north) into Hallam Road and a slip lane for traffic turning left (south) into Hallam Road. Diagonally across the intersection for traffic travelling east along Pound Road the configuration of lanes was identical. On the western side of the intersection, where the collision occurred, there were three lanes for traffic going straight ahead and this was identical on the diagonal side of the intersection for traffic travelling east. In other words, this was an intersection,

1. Exhibit “T-2” at the trial

2. Trial transcript 62

which at any time, could have accommodated a significant volume of vehicular or pedestrian traffic coming from multiple directions. It was a major intersection.

35It was early in the morning, 4.12am, when the collision occurred and the dashcam footage shows that there were not many vehicles on the road. This is all the more reason why you should have seen Mr Manapori as you approached the intersection, had you been keeping a proper lookout. There was no evidence of anything which would have obscured your view of Mr Manapori, who was straight ahead of you. Had you been keeping a proper lookout as you approached the intersection, it should have been readily apparent to you that the light facing you was about to turn to red and had, in fact, turned red some 14 seconds prior to you entering the intersection. It should also have been readily apparent that the green pedestrian light facing Mr Manapori had become operative. Detective Hardiman and Detective Thomas both gave evidence that the traffic control signals were all in working order. Further, Detective Hardiman stated that, when the green pedestrian light which was applicable to Mr Manapori, is in operation, it is accompanied by an audible tone. He described the tone as being “quite loud, so obviously people with vision impairment know that they have a green man and it is safe to cross the road”. 41

36Detective Hardiman described the scuff mark left by the bicycle tyre which marked the point of collision, but stated that there were no signs of tyre marks from the car to show that it had braked or taken evasive action. As previously mentioned, Mr Manapori had travelled 6.9 metres from the concrete traffic island on the southern side of Pound Road towards the central concrete median strip before he was struck by the car. Detective Hardiman pointed out the position of the scuff mark, which was just before the dividing line for the third lane which Mr Manipori was about to cross. Given that the bitumen surface of the road was good, visibility was good, and that a mechanical examination of the stolen car did not reveal any obvious

1. TT 63

mechanical fault which might be responsible for the collision.42 there is simply no reason why this collision should have occurred had you been keeping a proper lookout and paying heed to your obligations as a driver to obey the road rules, rather than selfishly, thoughtlessly, impatiently and tragically rushing into that intersection at 4.12am, oblivious to the welfare of Mr Manapori who was crossing the road right before your eyes. Given the overall circumstances and the fact that you were disqualified from even driving a car, I regard this as a serious example of the offence of dangerous driving causing death for which your moral culpability is high.

37In relation to Charges 4 and 5, the failing to stop offences, you cannot have failed to notice the substantial collision with Mr Manapori. The impact left very obvious damage to the driver’s side front of the stolen car you were driving, as well as leaving fragments from the fog light assembly, other pieces of debris and red paint flecks at the scene, whilst Mr Manapori was thrown into the air and ultimately came to rest 45.2 metres from the point of the impact. His bike was thrown 48.7 metres from the point of impact. Detective Hardiman described how its rear wheel had basically folded up under it and the front forks and handlebars were all twisted and the rear tyre and rim were buckled. Mr Tucker, who was the second person on the scene, described it as a crumpled mess.43

38It was left to Mr Phyland, the first person on the scene, and Mr Tucker, who arrived soon after, to see the dreadful impact of the collision upon Mr Manapori, whom you left to die in the gutter when it would have been obvious to any reasonable person that Mr Manapori would, at least, have suffered serious injuries. Your failure to stop after the collision (Charge 4) and your failure to render any assistance after the collision (Charge 5) show a callousness towards a fellow human being which is despicable. As I have said, your moral culpability for this offending is high. Consistent with the jury verdict, which plainly rejected your

1. Statement of Senior Constable Pearce read to the jury, TT109-112.

2. Mr Darren Tucker’s evidence at trial, Transcript 48

counsel’s hypothesis that someone other than the driver of the stolen car had set it on fire, I am satisfied beyond reasonable doubt that you tried to hide the evidence of your grave offending by this devious act of vandalism. You are not to be sentenced for that act, as it is not the subject of any charge, but it does show a person who appears to have a distorted sense of morality, a person governed by a concern solely for himself.

39Mr Makaro Manapori was riding his bike to work when you collided with him and caused his death. He was 58 years old and lived with his family nearby in Hampton Park. A Victim Impact Statement made by his great niece, Ms Mauranja Pita, on 1 July 2024 was read to the Court at the plea hearing by the prosecutor, Ms Caruso, and tendered as an exhibit.44

40Ms Pita described the mental and physical toll that your actions have taken on the whole family. She wrote of the shock, pain and anger after the extended family of Mr Manapori were woken by police knocking at the family residence at 5.45am on 6 January 2022 to advise that he had been killed in a hit-run collision. She described the awful task of telling her seven year old brother that Mr Manapori, his best friend, was dead. She stated that she wished you were there to see that little seven year old boy spiral, try to scratch the pain out of his chest, and gasp for air as he cried, stretching out his neck like he was being strangled by pain. She wished you were there when they had to hold him so tight and lie to him about why his best friend had gone to heaven. She stated that you do not understand the mental damage you have caused to her family and herself, and asked, “What if it had been your family member?” She stated you need a long time to think about the stupid choices that landed you in this situation, but no sentence can ever bring back her great uncle.

41Ms Pita expressed the hope that somewhere in your heart you will tell the truth about how you came like a thief and stole her great uncle from them all. She stated

1. Exhibit “J”

“I have forgiveness waiting for you when you are ready to tell me and my family how sorry you are”, but, given your cowardly actions, she knows she will be holding onto this forgiveness for the rest of her life. She stated that, as a Christian family, they have prayed away their anger and pray that God will be with you as you serve your sentence, but they are still praying for healing of the trauma which you have left them to suffer. She stated that Mr Manapori was a man much loved by the Cook Island community. He helped others and donated to charities. She stated that they are a family of love and faith, and you have taken from them a loving member of the community, a best friend and uncle, great uncle and, most importantly, a man of God. She concluded: “You took him while he was on his own and alone but … there is an army of people who will hold his memory forever and for ever carry the name of, Makaro Manapori”.

42There is nothing that this Court can say or do to restore the precious life of Mr Manapori which you have taken so needlessly and so dangerously. No sentence given to you can ever assuage the grief of Mr Manapori’s family. However, as I commented during the plea hearing, your previous appalling driving record and failure to learn from repeated offending, rehabilitative dispositions by way of repeated Community Correction Orders and even terms of imprisonment, made it only a matter of time before you would kill someone because of your attitude of having such scant regard for the law and the welfare of others.

43The charge of dangerous driving causing death is one which involves such a serious breach in the proper management and control of a vehicle by a driver that it poses a real risk of danger to other members of the public. You created a risk of harm which is not a fair or necessary road risk. The likelihood of a collision was very high, given the way you were driving, as was the seriousness of any likely injuries if a collision did occur. A car travelling through a red light in excess of 80 kilometres per hour which collides with a law-abiding cyclist, who has a green pedestrian light in his favour and no expectation of the danger about to befall him, carries with it a grave risk of serious injuries or death.

44Time and time again over many decades, the Transport Accident Commission has run a hard-hitting advertising campaign to try to bring home to drivers their responsibility on the roads and the inherent dangers of not paying attention, travelling at speed, not obeying road traffic rules and not being very aware of the potential harm that can be caused to other road users by those who do not pay heed to such factors. As I have previously stated, you, of all people, should have been acutely aware on 6 January 2022 about the obligations of a driver. You had been in so much trouble with the law in the past, yet here you were, again, driving without proper regard to those responsibilities and, again, being behind the wheel of a car when you were disqualified from driving. Not only is your moral culpability high, but your culpability for this particular offending is high. On any proper assessment, your driving was very dangerous. Your rush, your thoughtlessness and your speeding through a red light into a well-lit intersection where Mr Manopori was plainly visible, was such a selfish, immature way to drive.

45In sentencing you, this Court must denounce your conduct. This means that the court must have regard to the moral sense of the community and its expectation of appropriate punishment. The court must also place emphasis on general deterrence. That means that, in sentencing you, the Court must send a message to others who may be inclined to be foolhardy drivers and who do not take the privilege of holding a driver’s licence seriously, that the community will not tolerate the alarming number of deaths caused by appalling driving like yours and they will be appropriately punished. The point of general deterrence is to try to prevent other tragedies on the road from dangerous driving like yours.

46At the plea hearing held on 2 July 2024, your counsel, Mr Skehan, began by announcing that you still maintain that you were not the driver of the stolen car on

5 and 6 January 2022. Nevertheless, Mr Skehan submitted that you had expressed “some remorse” a short time after the collision when you attended Melbourne West Police Station. If you did have “some remorse” it was short-lived Remorse involves, at least, acknowledging the fact of your offending and

expressing contrition for the harm that it has caused. Whilst you may have walked into the Melbourne West Police Station intending to confess your wrongdoing, you did not do so, and ran a contested committal for 2 days and a trial for 10 days on the basis that you were not the person who committed any of the five offences on the indictment. Whilst contesting a committal and running a trial are your legal entitlement, and the fact of running a trial will not always mean that remorse is absent, it is problematic to find remorse when you continue to deny your wrongdoing. Further, your serious subsequent offending, by driving a car repeatedly in breach of the law, is inconsistent with remorse. Your persistent acts of dishonesty and danger to other road users were only brought to an end when police finally arrested you in September 2022 and you were remanded in custody. This was a necessary step for the safety of the community.

47Although you ran a contested committal and trial, your counsel urged that you should be given credit for the utilitarian benefit of having made 23 admissions of fact pursuant to s184 of the Evidence Act45 at the trial, which resulted in a shorter trial than would otherwise have been the case. Quite a number of the admitted facts were easily able to be proven by the prosecution, and the signed admission of facts was only made by you on 5 June 2024, some six days before the jury was ultimately empanelled on 11 June 2024. Nevertheless, I accept that this course of action by you did result in a shortening of the trial, which had an initial estimate of 20 days. In that sense, you have spared the time of some witnesses and court resources, which is in your favour.

48Mr Skehan stated that you were born in Dandenong and are the older of the two children of your parents. Your parents separated in 2009, by which stage you were approximately 15 or 16 years of age. Notwithstanding that your parents apparently had had a difficult relationship before separation, each of them and your sister remain supportive of you. Your father, mother, or sister, and sometimes all three of them, were present in Court to support you during the trial and at your plea

1. Exhibit “LL”

hearing. However, no family member, or anyone else, has provided any reference on your behalf to help give the court insight into your character or psychological state.

49You apparently completed VCAL at Hallam Secondary College, and Mr Skehan stated that during your teenage years, you were an accomplished football player. Apparently, you played in the firsts division for the Endeavour Hills team until you started using drugs.

50In the very brief outline of sentencing submissions filed on your behalf46 it is stated that, in October 2015, you had been a “victim of three armed home invaders”. However, Mr Skehan did not elaborate, at all, upon this in the oral plea, and, the prosecutor, Ms Caruso, submitted that there is no evidence that such an incident was ever reported to police. Indeed, no psychological report was tendered on your behalf, even though it is apparent from your criminal record that you have been a long-time user of various illicit drugs, (methylamphetamine, amphetamine, MDMA, GHB and prescription medication) and, in 2018, you were convicted of trafficking in 1,4-Butanediol. Mr Skehan made it clear soon after the jury’s verdict that he would not require time to obtain a psychological assessment of you and the plea hearing took place one week after the verdict. Only you can know the reason why the court has not been assisted by a psychological report, as would be common in matters of this seriousness.

51Mr Skehan told the Court that your father is a qualified motor mechanic who undertook a course in car air conditioning. You shared his interests and had hoped to go into business with him. Mr Skehan stated that, in November 2015, when you were in your early twenties, your father was sentenced for trafficking in drugs to a period of four years’ imprisonment with a non-parole period of two years and eight months. He submitted that this had a big impact upon you and, by 3 July 2018, you found yourself sentenced to your first term of imprisonment of 180 days (which

1. Marked for identification – “1”

was, effectively, time served). I here interpolate that the records of the County Court show that, although your father had been remanded in custody for 125 days from November 2015 to February 2016, he was not actually sentenced to the term of imprisonment and non-parole period mentioned by your counsel until 13 April 2018. By that date, you were 24 ½ years old. According to your criminal record, at Dandenong Magistrates’ Court on 3 July 2018, a combination sentence was imposed and 196 days was reckoned as time already served under the sentence. This means that you had been in custody since approximately December 2017, prior in time to your father being sentenced on 13 April 2018.

52Whilst your father’s lifestyle which resulted in him being convicted of trafficking in drugs may have had an adverse influence upon you, the lack of tendered references or any psychological assessment of you, makes it difficult to draw any conclusion on this matter. It is unclear how much contact you had with your father after your parents separated in 2009. In any event, your criminal record shows you to have had your first court appearance at Dandenong Magistrates’ Court on 2 September 2013 (at which stage you were 19 years of age). Prior to your father first being remanded in custody in November 2015 and you had already lost your probationary licence prior to 11 August 2014 through accruing demerit points. You are now 30 years old, and no evidence was tendered to the Court of you having any work history whatsoever, save for an assertion from the Bar table that you had “started work experience with friends” in carpentry or electrics but “only stuck at each trade for one or two months and never got into it”. What is apparent is that according to your counsel, you started using illicit drugs at age 18, and by your mid-20’s, you were using a number of points of methylamphetamine daily, as well as GHB.

53The main focus of the plea on your behalf was that, after you were remanded in custody on 20 September 2022, you had been targeted by custody authorities for random urine screens. Seven results of analysis of urine samples provided by you between 18 October 2022 and 24 August 2023, were tendered as Exhibit “1” on

the plea. These showed negative results for illicit drugs, save that, from 21 December 2022 onwards, there has been a positive result for the presence of Buprenorphine, which your Counsel stated has been prescribed for you whilst in custody. Mr Skehan stated that there were no results subsequent to those tendered, as you have been transferred to a unit known as “The Lodge” at Marngoneet Correctional Centre, and no further urine screens had been undertaken.

54The court was provided with eight certificates for completed courses run by Caraniche in Drug, Emotional and Relationship Management between 23 November 2022 and 1 March 2024.47 Mr Skehan submitted that this education had helped you to learn that illicit drug use can be replaced by cooking, attending the gym and football, and that you had been engaging in all these activities at Marngoneet. In particular, you are one of nine prisoners in Flinders Lodge and you have shown leadership by being the person who orders the food for the unit and cooks most of the meals. This involves a budget of $441.00 per week. Tendered as Exhibit “4” was a sample spreadsheet dated 16 June 2024 prepared by you for the food requirements of the residents in Flinders Lodge.

55Four certificates from Box Hill Institute relating to courses undertaken by you in 2022 and 2023 were also tendered.48 These include a course in Initial General Education for Adults and a Certificate II in that same subject, a Certificate II in Skills for Work and Vocational Pathways and a Certificate III in Cleaning Operations. Mr Skehan stated that you are keen to engage in education, and had become what he described as “a voracious reader”, having read 7 volumes of “Game of Thrones”. He stated that you have also completed a First Aid Course, for which the certificate has not yet been awarded. In addition, this year, you have been enrolled in a Business Education Course at Box Hill Institute which essentially involves education in the keeping of ledgers, records of cashflow,

1. Exhibit “3”

2. Exhibit “2”

invoices and GST requirements. You apparently, aspire to go into some sort of business on your own account when you are released from custody.

56It is to your credit that you have been utilising your time in custody in a positive way. However, you have been using drugs with regularity for a long time. Your criminal record shows that a dishonest disregard for the property of others and driving badly have become a way of life for you. You have failed to take advantage of five Community Correction Orders and have not changed your ways after serving terms of imprisonment. It would be wrong of this Court to say that you have no prospects of rehabilitation, but you currently present as a 30 year old who has lead a feckless, self-indulgent, lawless lifestyle and been a repeated menace to the community. You have no work history of any substance and appear not to have achieved anything of a positive nature since you began taking illicit drugs at the age of 18 years. Ingrained anti-social behaviour like yours can be very difficult to change. Your prior and subsequent offending, coupled with your refusal to accept responsibility for this offending, cause me to find that, at the present time, your prospects of rehabilitation are poor. You have a great deal of work to do on yourself, including having an honest look at your standards of morality, which appear to be significantly deficient. Your behaviour in the past is that of a person who has been wasting his life and harming others by leading a selfish, immature and a drug-focussed lifestyle. There is no material which attracts application of the principles in R v Verdins49 or Bugmy v The Queen50. The court has not been given any pertinent insight into your personality or character except for what is apparent from your criminal record.

57Your counsel has conceded that the only appropriate sentence appropriate to reflect the gravity of the offending of which the jury has found you guilty is a term of imprisonment with a head sentence and non-parole period.

1. R v Verdins & Ors [2007} VSCA 102

2. Bugmy v The Queen [2013] HCA 37

58I am conscious that the charges of failing to stop after the collision and failing to render assistance after the collision essentially comprise overlapping conduct in that the same facts are relied upon to support each charge. Hence, it is important not to sentence in a way that involves double punishment.51

59There is nothing that has been put before the Court at the plea hearing which in any way mitigates the seriousness of your actual offending, given that you continue to assert your innocence.

60A history of persistent, unrepentant offending, like yours, causes deep disquiet in our community, whose members are heartily sick of the fear created by the anti- social behaviour of lawless drug addicts and of having their cars stolen and of people being seriously injured or killed by thoughtless, dangerous driving. The court must recognise the nature and significance of the offences of which the jury found you guilty. The community expects its values to be upheld and the courts to appropriately punish such wrongdoing. If the criminal justice system does not acknowledge the harm that you have caused from the perspective of victims, then that system risks failing those victims and could well aggravate their distress.52 Against these considerations must be balanced factors relating to an offender which mitigate penalty. In your case, there has been very little put to the Court, but I take into account the utilitarian value of your admissions of fact, which reduced the length of the trial, and the steps that you seem to be taking to improve your health and education and make some contribution to the running of your unit whilst in custody.

61A person who causes the death of a human being while driving dangerously should expect to receive a significant term of imprisonment, particularly where it is a serious example of that offence, and your moral culpability is high. I am conscious that, since this offending, you have spent time in custody by way of the 141 days imprisonment pursuant to the Moorabbin Magistrates’ Court order on 17 June

1. Grewal v The Queen [2011] VSCA 331, Page 19, Paragraph 43

2. See Vincent JA in Director of Public Prosecutions v DJK [2003] VSCA 109

2022, and a further seven months in custody pursuant to the order of the Ringwood Magistrates’ Court made on 22 March 2023. The balance of your time since being remanded in custody on 20 September 2022 has been spent on remand and I am aware that it is the longest period yet that you have served in custody. Totality is a relevant consideration to ensure that the ultimate sentence imposed is proportionate to the overall gravity of your offending.

62In arriving at the sentence I intend to impose I have had regard to current sentencing practices. However, I am mindful of the concern expressed by the Court of Appeal in Stephens v the Queen about the failure of courts to adequately reflect the seriousness of the offence of dangerous driving causing death, as indicated by the increased statutory maximum penalty in 2008, the inadequacy of current sentencing practices and the need for an increase.53 This concern has been reinforced in subsequent cases such as Vasileski v the Queen54, DPP v Weybury55and DPP v Browne.56It is trite to say that no two cases are the same and every sentence must be determined upon the facts of the particular case. I have already stated why I find this to be a serious example of dangerous driving causing death with high moral culpability on your part.

63The maximum sentences of 10 years which apply to each of the offences for which I must sentence you, is an indication of their seriousness. In addition, parliament has reflected community concern about the prevalence of dangerous driving causing death by legislating it to be a Category 2 offence under the Sentencing Act and mandating that a sentence of imprisonment must be imposed for it (other than one combined with a Community Correction order) unless an offender can establish one of the exceptions in s5(2H)(a) to (e). No such exception has been argued to exist in your case.

1. (2016) 50 VR 740

2. [2018] VSCA 7

3. [2018] VSCA 120

4. [2023] VSCA 13

64Convictions upon charges 1, 3, 4 and 5 each attract mandatory periods of disqualification from holding a licence.57 As I have said, the holding of a licence is a privilege, not a right. It carries with it an expectation that the holder of such a licence will conduct himself like a responsible adult with appropriate observance of the law and due care for other road users. Since you first obtained your probationary licence 13 years ago, you have demonstrated repeatedly that you do not respect that privilege. In other words, you have shown behaviour which is not consistent with that expected of a responsible adult. In these circumstances, I consider that you should be disqualified from driving for a substantial period of time.

65On Charge 1, theft of a motor vehicle, you are convicted and sentenced to a term of 18 months imprisonment.

66On Charge 2, theft of registration plates, you are convicted and sentenced to a term of 8 months imprisonment.

67On Charge 3, dangerous driving causing death, you are convicted and sentenced to a term of 5 ½ years imprisonment.

68On Charge 4, failure to stop after a motor vehicle accident, and Charge 5 failure to render assistance after a motor vehicle accident, you are convicted and sentenced to an aggregate term of 18 months imprisonment.

69The base sentence is 5 ½ years imprisonment imposed on Charge 3.

I order that 12 months of the sentence imposed on Charge 1, 4 months of the sentence imposed on Charge 2, and 12 months of the aggregate sentence

1. Upon conviction on charge 1, theft of a motor v vehicle, the court must disqualify an offender for such a period as specified by the Court: s 89(4) Sentencing Act; upon conviction on Charge 3, dangerous driving causing death, the court must disqualify an offender for not less than 18 months: s89(2) Sentencing Act; and upon conviction on each of Charges 4 and 5, the failure to stop charges, the court must disqualify an offender for 4 years; s61(6)(a) Road Safety Act.

imposed on Charges 4 and 5 be served cumulatively upon the base sentence and upon each other.

70The total effective sentence is thus 7 years and 10 months imprisonment. I direct that you serve a period of 5 years and 3 months before becoming eligible for parole. I declare a period of 466 days as time already served.

71On Charge 1, 3, 4, and 5, I order that all licences to drive be cancelled and you be disqualified from obtaining a licence for an aggregate period of 10 years from today.

72Upon your conviction on Charges 1, 2 and 3, I order pursuant to section 78(1) of the Confiscation Act 1997, the forfeiture to the State of the property referred to in the Schedule, and further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. In essence, the items to be forfeited are a collection of debris from the scene of the collision, a SWANN security system DVR, the registration plates ending 313 which you stole, DNA swabs and blood swabs and items found when you were arrested including, stationary, some tools and some prescription drugs, as well as some items of your clothing.

73Upon your conviction on Charge 1 and 3, I order pursuant to s33(1) Confiscation Act that the property referred to in the schedule be forfeited to the minister, namely, a Samsung Phone and Charger, an Optus Mobile Phone, two iPhones, an Oppo Mobile Phone, and the Medicare card and Health Care card of Angela Chiavaroli.

Indictment no. N12755218

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL JURISDICTION

Court reference: CR-23-01380

THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

PETER KOUTSOGIANNAKIS

SUMMARY OF PROSECUTION OPENING (Amended)

Date of document:  6 June 2024

Filed on behalf of:  The Director of Public Prosecutions Prepared by:

Abbey Hogan

Solicitor for Public Prosecutions 565 Lonsdale Street

Melbourne Vic 3000

Solicitor’s code: XXXX

Telephone: (03) XXXX XXXX

Direct: XXXX XXX XXX

Reference: Dharshi Shivakumar

Background

1. The accused is charged with theft (2 charges), dangerous driving causing death, failing to stop after a motor vehicle accident and failing to render assistance after a motor vehicle accident.

1. The charges arise out of a motor vehicle collision that occurred at approximately 4:15am on the 6th of January 2022 at the intersection of Pound Road and Hallam Road in Hampton Park. The collision caused the death of Makaro Manapori.

1. The accused was 28 years of age at the time of the alleged offences (DOB XX/XX/93) and lived in Endeavour Hills. He was not licensed to drive a motor vehicle. His Probationary (P2) Driver Licence disqualified at the time of the alleged offending.1 (Admission of fact 7)

1 Exhibit 51 – Certificate under Section 84(1) of the Road Safety Act 1986 (cancelled by the Dandenong Magistrates’ Court on the 9th of September 2021 and he was disqualified from obtaining any licence for a period of 6 months)

1. Makaro Manapori was 58 years of age at the time of his death (DOB XX August 1940). He was a factory worker and lived with his family in Hampton Park.

1. During the period of the alleged offending, the accused was using mobile phone XXXX XXX XXX (mobile handset IMEI 35223385208289).2

The Collision Scene

1. The collision occurred at the intersection of Pound Road and Hallam Road in Hampton Park.3

1. At the location of the collision, Pound Road is a six lane, two-way bitumen road that runs in a general east west direction. Pound Road intersects with Hallam Road in the form of a cross- road, which is controlled by traffic lights.4

1. To the west of the intersection on Pound Road, the east and west bound lanes are separated by a raised concrete centre median. The three adjacent lanes are separated by painted white broken lines and bordered by rolled concrete gutters on both sides.5

1. A slip lane provides access to Pound Road for traffic that is travelling in a northerly direction on Hallam Road. Outside the guttering on both sides of the road are grassed nature strips, concrete footpaths, and residential premises.6

10.This footpath continues around the corner at the intersection on the western side of Hallam Road.7

2 pp 344.1 to 344.44 and Notice of Additional Evidence dated 12 April 2024 – Supplementary Report of Dr Matthew Sorrell; Notice of Additional Evidence dated 6 March 2024 – Statements x 25 of Raymond Chang and Optus EBM statements x 149.

3 pp 229 to 276; Photographs of the scene; Video recorded walk through of the scene; Aerial map

4 Ibid 5 Ibid 6 Ibid

11.Pound Road is essentially straight and had a ~4-5% downgrade from the intersection towards the west.8

12.There is a zebra pedestrian crossing between the footpath on the south western corner of the intersection and the traffic island for pedestrians wanting to cross Pound Road on the western side of the intersection.9

13.The speed limit for west bound traffic is 80 kilometres per hour.10

14.At the time of the collision, it was dark and conditions were clear. The road was dry. The intersection was well lit by street lighting.11

Circumstances of Alleged Offending

15.At approximately 4:31am on the 5th of January 2022, the accused and three unidentified male associates attended the underground carpark of the Madison Apartments at 91 to 93 Tram Road in Doncaster. They were driving a white Toyota Hiace van.12 (Admission of fact 1 (save for that it was the accused))

16.The accused and the three males parked in the entrance of the carpark. Two of the males got out of the van and gained access to the carpark in which the residents’ vehicles were parked. One of the males walked through the carpark checking vehicles whilst the other returned to the van.13

17.A Victoria Police divisional van stopped and attempted to intercept the van. The three males saw police and fled in the van. The van was not intercepted. (Admission of fact 3)

8 Ibid

9 Ibid

10 Ibid 11 Ibid 12 pp 112 to 113; Exhibit 17: CCTV footage from 91 Tram Road, Doncaster; pp 344.1 to 344.44; Exhibit 34: Event based monitoring data

18.Meanwhile, the fourth male gained entry to a red coloured 2010 Holden Cruze sedan (registration XXX 592) belonging to Angela Chiavaroli. He located a spare key in the glove box to steal the vehicle. Also in the glovebox were two bank cards, a Medicare card and health care card in the name of Angela Chiavaroli. He then drove around the carpark eventually exiting via the roller door and driving away from the scene.14 (Admission of fact 4) (Charge 1 – Theft)

19.At approximately 5:15am, the accused removed registration plates XXX 313 from a red coloured 2014 Holden Cruze, parked outside X Erli Court in Blackburn. (Admission of fact 5 (save that it was the accused)) The stolen registration plates belonged to Sara Dornseiff. The accused replaced the plates with registration plates XXX 592, which had been removed from the stolen 2010 Holden Cruze.15 (Charge 2 – Theft)

20.At 5:59am, the accused drove the stolen Holden Cruze displaying the stolen number plates to an associate, Andrew Rocca-Davis’ home at XX Andover Court in Hampton Park. (That Rocca-Davis lived at this address is admission of fact 20) The vehicle was captured on CCTV footage driving in Warana Avenue and Strong Avenue before turning into Andover Court.16

21.Further movements of the accused in the vicinity of Rocca-Davis’ home were captured by the CCTV camera as follows:17

5 January 2022

(a)  at 8:07am, the Toyota van and Holden Cruze are depicted travelling north on Strong Drive and west onto Warana Drive;18

14 pp 89 to 92; Exhibit 17: CCTV footage from 91 Tram Road, Doncaster

15 pp 93 to 94; pp 344.1 to 344.44; Exhibit 34: Event based monitoring data

16 pp 344.1 to 344.44; Exhibit 34: Event based monitoring data; Exhibit 18, Clip 18.1: CCTV footage from Warana Avenue, Hampton Park 17 pp 344.1 to 344.44; Exhibit 34: Event based monitoring data

(b)  at 5:48pm, the Holden Cruze is depicted travelling north on Strong Drive and east on Warana Drive;19

(c)   at 11:17pm, the Holden Cruze is depicted travelling east on Warana Drive;20

(d)  at 11:20pm, the Holden Cruze is depicted travelling west on

Warana Drive, south on Strong Drive, and west into Andover Court;21 6 January 2022

(e)  at 3:10am, the Holden Cruze is depicted leaving Andover Court, travelling north on Strong Drive and east on Warana Avenue;22

(f)    at 3:42am, the Holden Cruze is depicted travelling west on

Warana Drive, south on Strong Drive and west into Andover Court;23

(g)  at 4:11am, the Holden Cruze is depicted leaving Andover Court, travelling north on Strong Drive and west on Warana Avenue.24

22.At about 4:05am, Makaro Manapori left his home in Hampton Park riding his electric bicycle (“e-bike”). (Admission of fact 8) He started riding to Hallam where he was due to start work at 5:00am. He was wearing a black coloured jumper, light blue coloured pants, a light blue and white helmet and was carrying a backpack. It was dark and the headlight on the front of his bike was turned on. He travelled on the western side of the road.25

23.At about 4:11am, the accused drove the Holden Cruze from Rocca-Davis’ home in Andover Court, Hampton Park, north on Strong Drive and east onto Warana Drive.

19 Exhibit 18, Clip 18.3: CCTV footage from Warana Avenue, Hampton Park

20 Exhibit 18, Clip 18.4 and 18.5: CCTV footage from Warana Avenue, Hampton Park

21 Exhibit 18, 18.6: CCTV footage from Warana Avenue, Hampton Park

22 Exhibit 18, Clip 18:7: CCTV footage from Warana Avenue, Hampton Park

23 Exhibit 18, Clip 18:8: CCTV footage from Warana Avenue, Hampton Park

24 Exhibit 18, Clip 18:9: CCTV footage from Warana Avenue, Hampton Park

25 Exhibit 18, Clip 18.9: CCTV footage from Warana Avenue, Hampton Park; Exhibit 19: CCTV footage from Warana Avenue, Hampton Park; Exhibit 20: CCTV footage from Warana Avenue, Hampton Park.

He then drove north on Kilberry Boulevard and northeast onto Pound Road. His movements were captured on CCTV cameras at properties on Warana Drive.26

24.Witness Stephen Munday was driving his motor vehicle on Kilberry Boulevard towards Pound Road. As he was approaching Pound Road intending to make a left hand turn, he was overtaken by the accused who was travelling at high speed. Mr Munday made the following observations:27

As I was about to turn, I was overtaken on the right by a fast-moving car. The car came flying around the side of me and turned left into Pound Road and accelerated towards the roundabout which is a few hundred metres up the road.

At the roundabout the car went left and continued onto Pound Road. The car was really going quick and would have been pushing 100, maybe 120 km/h. I think it was a red coloured car and it continued onto Pound Road after turning left at the roundabout.

I also went up to the roundabout and turned left to continue along Pound Road. The car was travelling really quickly and the last I saw of it was the tail lights disappearing out of sight over the hill crest in the distance towards Hallam Road.

25.The accused continued driving at high speeds west along Pound Road. His driving was captured by a CCTV camera at a house on Rivergum Rise in Hampton Park.28

26.Meanwhile, Mr Manapori was approaching the south corner of the intersection of Pound Road and Hallam Road. The traffic control signal facing traffic travelling in both directions on Pound Road turned red as Mr Manapori neared the corner. When he reached the corner, he stopped his bicycle and pressed the pedestrian crossing button intending to cross to the other side of Pound Road. He then started riding within the crossing across Pound Road.29 (Admission of fact 8-11)

27.The accused reached the intersection and was facing the red traffic control signal. He did not stop and drove through the intersection against the red signal He then collided with Mr Manapori within the pedestrian crossing in the middle lane of Pound Road. (Admission of fact 12 save that it was the accused) The Holden Cruze struck

26 Ibid

27 p.95 28 Exhibit 21: CCTV footage from Rivergum Rise in Hampton Park

Mr Manapori with such force that he was thrown off his bicycle approximately 45 metres west onto Pound Road. He came to rest on his back in the southern edge of the road.30 (Charge 3 – Dangerous driving causing death – conduct referred to in paragraphs 22 to 26)

28.The collision was captured on dash camera footage from a vehicle parked facing east outside 121 Pound Road, approximately 145 metres west of the intersection.31

29.After colliding with Mr Manapori, the accused did not stop the motor vehicle, nor did he render any assistance to Mr Manapori. Charge 4 – Failing to stop after a motor vehicle accident and Charge 5 – Failing to render assistance after a motor vehicle accident) (That the vehicle did not stop is admission of fact 12)

30.Other motorists stopped at the scene and assisted Mr Manapori, who was gravely injured and showing no signs of life. Calls were made to 000.32

31.At approximately 4:27am, police arrived at the scene.33

32.Paramedics arrived and performed CPR on Mr Manapori, however he was unable to be revived and was pronounced dead at the scene.34

33.Meanwhile, after failing to stop or render assistance, the accused continued driving west on Pound Road. As a result of the collision, the vehicle had damage to its front passenger side headlight, bonnet and bumper.35 He drove onto the South Gippsland Freeway and Monash Freeway to Glen Waverley.36

34.At about 4:39am, the accused drove into Brentwood Reserve on Maylands Crescent in Glen Waverley. He parked the Holden Cruze in the carpark on the southeast corner of the reserve, approximately 50 metres from the carpark entrance.37

30 pp 229 to 276

31 p.149; 152 to 153; Exhibit 22: Dash camera footage

32 pp 101 to 105; 106 to 107

33 pp 146 to 147; 148; 151

34 Ibid 35 pp 229 to 276 36 pp 344.1 to 344.44; Exhibit 34: Event based monitoring data

35.The accused then ignited a fire inside of the vehicle. The fire spread and engulfed the entire vehicle. The accused then fled the scene on foot.38 (That the Holden was lit on fire and is the same vehicle that struck the deceased is admission of fact 15 and 17)

36.Dash camera footage from two vehicles parked on Maylands Crescent captured the accused setting fire to the vehicle and fleeing the scene. One of the cameras shows the accused running west down Maylands Crescent and turn into Balmain Street. He then turned around and ran east back down Maylands Crescent past the camera. He was wearing black shorts, a white t-shirt and dark coloured jumper. The footage shows his mobile phone illuminated in one of his hands.39

37.Witness Chris Warr, a nearby resident, observed the Holden Cruze on fire and called

000. He also recorded a video of the fire on his mobile phone.40

38.Local police and firefighters attended the scene. The fire was extinguished.41

39.Photographs were taken of the scene.42

40.Attending police were not aware that the Holden Cruze had been involved in a fatal collision. They arranged for the vehicle to be towed to a secure tow yard, Nationwide Towing in Noble Park.43

Police Investigation

41.At about 6:00am, members of the Major Collision Investigation Unit (“MCIU”) attended the scene and conducted an investigation into the collision.44

38 Ibid

39 Ibid

40 pp 109 to 111; Exhibit 24: Mobile phone footage

41 pp 109 to 111; 154 to 156; Exhibit 24: Mobile phone footage

42 p.155

43 p.155; 157

44 pp 308 to 313; 314 to 316; 317 to 319; 330 to 344

42.Photographs were taken and video recorded walk through conducted of the scene.45

43.Debris was strewn throughout the collision scene. Police seized a number of items from including:46

(a)a plastic fog light bezel fragments;47

(b)a headlight cover fragment;48

(c)red paint flecks (x 4);49

(d)a chrome fog light surround.50

44.A collision reconstruction was conducted by Detective Leading Senior Constable Michael Hardiman. He opined as follows: 51

Based on the available physical evidence located at the collision scene, when the Holden Cruze collided with the cyclist, the vehicle was travelling between 82 km/h and 87 km/h. At impact, the cyclist was within the pedestrian crossing on the west side of the intersection riding north. The Holden was partially in the centre of three west bound lanes and partially in the right of three west bound lanes of Pound Road. I am unable to determine whether the vehicle was travelling across two lanes, was in the process of changing lanes intentionally or whether the driver had swerved due to the cyclist across his path. The Holden Cruze examined at the Victoria Police Forensic Services Centre displayed damage that could be consistent with being involved in a collision between a bicycle and vehicle.

45.Detective Leading Senior Constable Hardiman consulted Holden Australia regarding the plastic fog light bezel fragments found at the collision scene. Holden advised that they were fragments from a plastic fog light bezel for a 2010 Holden Cruze sedan.52

46.At 10:40am, the MCIU investigators determined that the collision and fire involving the Holden Cruze were linked.

45 Ibid

46 p.318

47 Exhibits 5 and 13; Photographs of the scene

48 Exhibit 6; Photographs of the scene

49 Exhibits 7, 8, 10 and 11; Photographs of the scene

50 Exhibit 9; Photographs of the scene

51 pp 229 to 276

52 Ibid

47.At about 10:55am, Detective Senior Constable Samuel Spooner attended Nationwide Towing. He took a series of photographs and a GoPro video of the Holden Cruze.53

48.On the 7th of January 2022, Leading Senior Constable Amy Olin of the Victoria Police Crime Scene Group, conducted an examination of the Holden Cruze. Leading Senior Constable Olin took a series of photographs and made observations regarding the damage to the vehicle. Swabs were taken from the vehicle and paint samples were taken.54

49.Leading Senior Constable Olin conducted a comparison of items found at the collision scene and the damage to the vehicle. Leading Senior Constable found that a broken fragment of plastic found at the scene once formed part of the headlight assembly casing of the Holden Cruze.55

50.The swabs taken from the vehicle were submitted for DNA analysis. A partial single source DNA profile was found on the front registration plate. The DNA evidence was found to be 100 billion times more likely if the accused was the source.56

51.On the 23rd of February 2022, Emily Apelgren, a Senior Forensic Officer in the Chemical Trace Unit at the Victoria Police Forensic Services Centre, compared paint samples taken from the Holden Cruze and paint flecks collected at the collision scene. Ms Apelgren also compared Mr Manapori’s bicycle with paint samples found on the bumper of the Holden Cruze. She made the following findings:57

It is my opinion that there is very strong support for the contention that there had been an impact between the black, battery operated bike (Item 48) and the bumper of the ‘Maroon Holden Cruze’ (Item 45) which resulted in a cross transfer of paint layers from the bumper of the Holden Cruze to the bike and from

the bike to the bumper. This finding is further supported by the strong association established between recovered paint chips at ‘yellow 43’ (Item 27) and ‘yellow 44’ (Item 28) and the paint from the bonnet of the Holden Cruze.

53 pp 324 to 325

54 pp 191 to 194  55 Ibid 56 Notice of Additional Evidence dated 3 April 2024 – Statement of Rebecca O’Sullivan

52.A Traffic Signal Operation Report was obtained from the Department of Transport by police. The report indicated that the traffic signals were operating correctly at the time of the collision.58

53.On the 7th of January 2022, an external post mortem examination was performed by Dr Yeliena Barber of the Victorian Institute of Forensic Medicine. Dr Barber found that Makaro Manapori suffered from multiple injuries. He died as a result of an upper cervical spine fracture sustained as a result of the collision.59 (Admission of fact 18)

54.On the 24th of February 2022, the Holden Cruze was examined by John Kelleher, Forensic Officer at the Victoria Police Forensic Services Centre. Mr Kelleher made the following findings:60

I concluded that the cause of the fire was the ignition of the combustible material in the passenger compartment, probably on the off side, possibly but not necessarily on the back seat, although there may have been more than one point of ignition.

The severity of the damage raised the possibility that flammable liquid had been present, but none was detected in preliminary testing. This may mean flammable liquid was not present, or that it was present but had burnt or evaporated to below the detectable level.

The source of ignition was not determined, but the area of origin suggested that ignition by an electrical fault was unlikely. Direct ignition, by a match or a cigarette lighter, was in my opinion the most likely source of ignition.

55.On the 10th of March 2022, the Holden Cruze was examined by Senior Constable Daniel Pearce of the Collision Reconstruction and Mechanical Investigation Unit. The examination was limited due to the damage caused to the vehicle by the fire, however Senior Constable Pearce found that there were no faults, failures or conditions that could have caused or contributed to the collision.61

Cell Tower Evidence

58 p.143; Exhibit 50: Traffic Signal Operation Report

59 pp 78 to 88 60 pp 181 to 182

56.The prosecution alleges that the accused was in possession of his mobile phone XXXX XXX XXX (mobile handset IMEI 35223385208289) at all relevant times between the 5th and 6th of January 2022. Expert evidence will be provided by Dr Matthew Sorrell, Senior Digital Forensics Consultant regarding the movements of the mobile handset.62 He will give evidence about the records and the use of the mobile phone.

57.Dr Sorrell produced a series of maps and a corresponding table of connections. Dr Sorrell opined that the handset was utilising mobile cell towers which placed it in the vicinity of each relevant location between the 5th and 6th of January 2022 as follows63

5 January 2022

(a)Tram Road in Doncaster (Charge 1) – between 4:31am and 4:46am.

(b)Erli Court in Blackburn (Charge 2) – between 5:13am and 5:31am.

6 January 2022

(c)Intersection of Pound Road and Hallam Road in Hampton Park (Charges 3, 4 and 5) – 4:12am.

(d)The service travelled northwest from the intersection of Pound Road and Hallam Road in Hampton Park to Marylands Drive in Glen Waverley between 4:14am and 4:28am.

It is noted by Dr Sorrell that the vehicle would have been travelling at high speeds (average speeds of between 133 and 140 kilometres per hour) in order for it to travel from the collision scene to Brentwood Reserve in the time frame.

Media Releases

58.At 8:35am on the 6th of January 2022, Victoria Police’s media unit published a media release titled “Police investigate Hampton Park hit-run fatality”.64

62 pp 344.1 to 344.44 and Notice of Additional Evidence dated 12 April 2024 – Supplementary Report of Dr Matthew Sorrell; Notice of Additional Evidence dated 6 March 2024 – Statements x 25 of Raymond Chang and Optus EBM statements x 149.

63 Ibid

64 Notice of Additional Evidence dated 14 September 2023 – Statement of Megan Stefanec dated 13 September 2023

59.At 4:03pm, the media unit publishing a media release titled “Witness appeal following Hampton Park fatal hit-run”. The release included a still image of the dash camera footage of the accused running down Maylands Drive after setting fire to the Holden Cruze.65

60.At 2:26pm, the media unit published a media release titled “MCIU appeal for driver to come forward following Hampton Park fatal hit-run”. The release included a still image of the dash camera footage of the accused running down Maylands Drive after setting fire to the Holden Cruze. The release stated (inter alia) that:66

Detectives have released footage of the man who failed to stop at the scene and left in a red 2010 Holden Cruze Sedan which was later found destroyed by fire in Glen Waverley.

The vision released shows the alleged driver walking and running down the street and the red sedan in the vicinity of where the car was dumped in Glen Waverley.

He was last seen in Maylands Crescent then in Balmain Street.

Detectives are appealing for the driver to come forward and to those in the community who may also have information to call Crime Stoppers.

Accused Hands Himself into Police

61.At approximately 5:33pm, a solicitor from Mildes Lawyers, Thea Mildes, telephoned the MCIU. Ms Mildes spoke to Detective Sergeant Roslyn Wilson and advised them that she represented a client that wished to surrender themselves to police in relation to the Hampton Park hit and run collision.67

62.At approximately 5:36pm, Detective Sergeant Wilson contacted Detective Acting Senior Sergeant Paul Lineham and advised him of the conversation with Ms Mildes. Melbourne West Police Station was nominated as the station for the accused to attend.68

65 Ibid

66 Ibid

67 pp 321 to 322

68 p.326.1

63.At approximately 5:40pm, a further telephone conversation occurred between Ms Mildes and Detective Sergeant Wilson. Arrangements were made for the accused to attend between 7:30pm and 8:00pm. Ms Mildes stated that her client was “Peter Koutsogiannakis”.69

64.Further arrangements were made with Melbourne West Police and Ms Mildes, however the accused did not attend that evening.70

65.At about 3pm on the 7th of January 2022, the MCIU were contacted again by Ms Mildes who advised that the accused would attend that afternoon.71

66.At 4:22pm on the 7th of January 2022, the accused attended West Melbourne Police Station. His arrival and movements at the police station were captured on CCTV cameras. He was wearing a navy coloured jumper, white coloured t-shirt and black coloured shorts and was carrying a backback. This clothing matched what he was wearing at the time of setting fire to the Holden Cruze and fleeing the scene.72

67.The accused waited in the foyer of the police station in order to meet with members of the MCIU. Detective Senior Constable Heath Thomas and Sergeant Cameron Merrett approached the accused in the foyer.73

68.As they approached the accused, he stood up and raised his hands. Sergeant Merrett had the following conversation with him:74

Sergeant Merrett                   Peter is it?

Accused  Yeah.

Sergeant Merrett then pointed towards the custody entry of the police station.

Sergeant Merrett                   Just come this way for me.

69 Ibid

70 pp 326.2 to 326.3; 333 to 334

71 p.334

72 pp 160 to 161; 311 to 313; 334; Exhibit 25: CCTV footage from Melbourne West Police Station

73 p.311 to 313; 334; Exhibit 25: CCTV footage from Melbourne West Police Station

74 Ibid

Accused  I couldn't live with myself.

Sergeant Merrett                   What do you mean?

Accused  The crash.

Sergeant Merrett observed that the accused appeared visibly upset.

Sergeant Merrett                   You are here now.

AccusedIt’s a weight off my shoulders. I wanted to come last night I just couldn't.

Sergeant Merrett                   That's ok you're here now. This should help you feel better.

69.This interaction was captured by CCTV cameras, however there was no sound.75

70.The accused was arrested and his clothing was seized for forensic testing.76

Record of Interview

71.After his arrest, the accused was interviewed.77

72.When interviewed, he:

·     when asked about the discussion he had with Sergeant Cameron Merrett in the foyer of the police station, he said “Well, I - I - I'm here, so pretty much................................................................................................ try and

get closure to somebody's family” and “I'm here to - to try and maybe hopefully get closure to somebody's family”.78

·     when asked if he wanted to say anything in answer to the charge of dangerous driving causing death, the accused stated “Just like I - just like I said - said before about the family … No, like - like condolences as well and---------------------------------------------------------------------------- ”79

75 Ibid

76 p.335

77 p.312; 334 to 335; 348 to 362

78 Q&A 42 to 43, p.356

79 Q&A 77 to 81, p.360

73.At the conclusion of the interview, the accused was released pending further enquiries by police.

Events that Followed

74.At 11:43pm on the 7th of January 2022, the accused obtained a new Optus sim card with phone number XXXX XXX XXX (615 number) from 7-Eleven on Pound Road in Hampton Park. He had previously visited this store and purchased items on the day of the collision.80

75.The number became active at approximately 12:01am on the 8th of January 2022. The accused registered the mobile phone in the name Angela Chiavaroli, who was the owner of the stolen Holden Cruze. The accused used the two bank cards, a Medicare card and health care card that were in the vehicle when he stole it to register the phone. The accused used this new number to replace his existing mobile phone (XXXX XXX XXX) (803 number) that had become inactive prior to handing himself into police.

Phone and bank Evidence linking the accused to the 803 phone and 615 number.

76.On 8 November 2021 the accused told Senior Constable Patrick Gurry that his number was XXXX XXX 803 when asked. (Admission of fact number 19)

77.Police obtained the accused’s bank statements for his Commonwealth and Bendigo Bank accounts. The Commonwealth Bank account has the 615 number listed as his phone number. The Bendigo account has the 615 number as the account recovery up to 23 January 2022. The 803 number is up to 16 January 2022.

78.Phone number XXXX XXX 803 was being used consistently in IMEI 35223385208289 between 15 December 2021 until around just after 3pm on 6 January 2022 (the day of the collision) it is then only used once on both 8 and 13th January 2022. Those records

show that the one phone number (803) was being used in a single handset. (EBM check)81.

79.On 6 Jan 2022, Andrew Rocca Davis called the 803 number on 3 occasions, namely

3:17am, 3.27am and 4:15am utilising phone number XXXX XXX 480. (That XXXX XXX 480 was utilised by Rocca-Davis is admission of fact 21)

80.A further check via Optus shows the that the 803 number and the 615 number were both used in a different handset (IMEI number 86741904116680). This handset was not recovered by police.

81.In combination with Dr Sorrell’s evidence the prosecution case is the accused was using the 803 number at least from 8 November 2021 until after the collision when he used Angela’s credentials to register the 615 number.

82.On the 23rd of January 2022, the accused was in a vehicle in Malvern. In that vehicle the following items were located

·a bottle of medication with a label in the name of “Peter Koutsogiannakis”;

·a Bendigo Bank UP card in the name of “P Koutsogiannakis”;

·a purple coloured Samsung mobile phone (IMEI number 359461652844840) containing SIM card for mobile number XXXX XXX 615.  (Admitted fact 22)

83.The prosecution case is that combination of the bank statements, the checks and telling police about the 803 number demonstrates that the one person was using both numbers and that was the accused.

84.On the 27th of January 2022, the accused was located by police and arrested at his sister Tina Koutsogiannakis’ home. He was later charged.82 The accused was located in a bedroom by police. In that same bedroom police photographed a Medicare Card in the name of Angela Chiavaroli. In the kitchen police photographed a Health Care card in the name of Angela Chiavaroli. (Admitted fact 23). The prosecution case is that this is the ID the accused used in order to register the 615

81 Dr Sorrell

number. It also links him back to the stolen Holden that was involved in the fatal collision.

85.On the 28th of January 2022, Detective Senior Constable Brandon Levin from the MCIU attended XXX Knight Street in Clayton South. He spoke to the accused’s sister, Tina Koutsogiannakis. He seized a Medicare card and Health care card in the name of Angela Chiavaroli. Both cards were in the glovebox of Ms Chiavaroli’s Holden Cruze when it was stolen.83

Admissions

86.The prosecution will be seeking to rely on the statements made by the accused to police when he handed himself in and during the Record of Interview as implied admissions as to his involvement in the collision.

Incriminating Conduct

87.The prosecution relies on the accused lighting the car on fire as incriminating conduct. A notice has been filed.

Dangerousness

88.The accused was disqualified from driving at the time of the collision. Pursuant to s.319(1B) of the Crimes Act 1958, it is to be presumed, in the absence of evidence to the contrary, that he drove in a manner that was dangerous to the public having regard to all the circumstances of the case if it is established that at the time of the driving he was knowingly or recklessly in contravention of s.30 of the Road Safety Act 1986. It is an offence under s.30 of the Act to drive whilst disqualified.

89.The prosecution alleges that the accused was driving whilst disqualified either knowingly or recklessly. Moreover, it is alleged that the accused drove in a manner that was dangerous to the public by:

(a)driving at excessive speeds leading up to the collision;

(b)entering an intersection against a red traffic control signal;

(c)driving whilst exceeding the speed limit at the time of the collision, namely between 82 and 87 kilometres per hour in an 80 kilometre per hour zone.

Deanna Caruso

Brian Bourke Chambers Trial Prosecutor