Director of Public Prosecutions v Mancev
[2013] VCC 1357
•8 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01376
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE MANCEV |
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JUDGE: | His Honour Judge Parsons | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11, 12, 18, 20, 23 and 24 September 2013 | |
DATE OF SENTENCE: | 8 October 2013 | |
CASE MAY BE CITED AS: | DPP v Mancev | |
MEDIUM NEUTRAL CITATION: | [2019 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Borg | OPP |
| For the Accused | Mr S. Robertson | Montello Lawyers |
HIS HONOUR:
1 Luke Mancev, you have pleaded guilty before me to one count of dangerous driving causing death. The matter was listed before me on 10 September 2013, at which time I was informed there was an objection to the speed alleged and the calculations with respect to that matter as set out in Exhibit 1, which is the summary of prosecution opening for plea.
2 A number of police officers were called and gave evidence of the observations they made at the scene of the collision and subsequently with regard to the car and its condition. Detective Senior Constable Janelle Meagan was called by the prosecution as an expert witness with respect to collision reconstructions, and in her opinion:
"When the Ford first commenced skidding, the vehicle was travelling at a minimum of 134 kilometres per hour. When the vehicle impacted the pedestrian, the vehicle was travelling at between 61 kilometres per hour and 65 kilometres per hour."
3 The defence relied upon the evidence of Mr Carter who is a chartered professional engineer and made submissions reflecting upon evidence in the depositions. Mr Carter's qualifications are set out at p.18 of his report. In his opinion:
"The initial speed of the subject vehicle prior to emergency braking was between 80 kilometres per hour and 91 kilometres per hour."
4 I am satisfied beyond reasonable doubt that the speed at which Mr Mancev was travelling at the relevant times is as stated by Detective Senior Constable Meagan. I am of this opinion for a number of reasons:
(1) I am satisfied that Detective Senior Constable Janelle Meagan is significantly more qualified in the area of collision reconstruction and has a much greater range of experience and expertise in that area than does Mr Carter. She has attended many such scenes and conducted many collision reconstructions in which she has made estimations of the speed at which vehicles were travelling at various times.
Mr Carter's experience is limited to performing such a reconstruction on one previous occasion in the mid-1980s. His experience in the area of accident reconstruction is limited to attending a course conducted by Sergeant Bellion of the Major Collision Investigation Unit over a five-day period.
(2) I accept the evidence of the police officers who measured the skid and/or scuff marks on the evening. In my opinion, the relevant length of those marks is as stated by Detective Senior Constable Meagan, and that it was a distance of 77 metres. Insofar as Mr Carter utilised and acted upon any other and lesser length of skid or scuff marks, I reject both his calculations and the reasons he gave for them.
The police observations were made on the evening and immediately after the collision. Mr Carter relied upon the photographs. I disagree with his contention "the skid marks are continuous black striations which are consistent with the wheels being locked up". It is inconsistent with the observations and expert evidence from experienced police who assessed and measured the marks on the road that evening.
(3) I accept the evidence of the police that the skid scuff marks are evidence of ABS braking. I find that the ABS brakes were working on the evening, and I make that finding on the basis of the evidence of the police, and particularly the observations of the police with respect to the tyre marks on the road which revealed patterns consistent with the fact that the ABS brakes were working at the time.
Extensive testing by Senior Constable Booth and Detective Senior Constable Meagan found no fault with the vehicle's ABS braking. I do not accept Mr Carter's contention expressed at p.8 of his report: "The skid marks evident in the police photographs are definitely not ABS skid marks."
(4) I find that the tyres were appropriately inflated at the time, and disagree with the submission or contention that one of the tyres was underinflated at the time of the collision. I do so for the reasons advanced by the police officers and particularly the informant and the expert witness.
(5) With respect to various calculations made by Detective Senior Constable Meagan and the differences between those made by her and the reasons for them, and those of Mr Carter and the reasons for them, I prefer Detective Senior Constable Meagan's calculations and the reasons which she expresses for utilising them, and the manner in which she utilised them.
Insofar as Mr Carter has utilised different figures and different calculations, I reject those calculations and the conclusions that flow from them. I particularly reject the calculations made by Mr Carter which utilise a different friction coefficient from that adopted by Detective Senior Constable Meagan for the reasons explained by Detective Senior Constable Meagan.
5 With respect to the submissions made concerning the observations of the non-police witnesses on the evening, I agree with the submission of Ms Borg that the evidence of the police on the evening and their analysis is to be preferred. Mr Robertson's analysis of the evidence in Exhibit E is not accepted. I prefer and adopt the analysis of the evidence of the expert police observers from which to understand what happened prior to and at the time of the collision.
6 With respect to the background of this matter, on Friday 1 April 2011 at approximately 10.20 p.m. a collision occurred involving a motor vehicle driven by you, Luke Mancev, and a pedestrian in Taylors Road, St Albans, resulting in the death of that pedestrian, Mr Jovanco Bogoevski. In your vehicle at the time were two friends, Dragolej Anderson seated in the front passenger seat, and James Howard seated in the rear seat behind Anderson.
7 At the time you were 20 years of age. You held a probationary motor car licence issued on 6 February 2009, and you were driving your brother's vehicle. Prior to the collision occurring you had been travelling at a high speed in a westerly direction along Taylors Road on the way to collect a third friend from nearby Kings Park.
8 The deceased had spend much of that day consuming alcohol. Just prior to the collision he decided to walk across Taylors Road to a bottle shop. He crossed the road, I find, approximately 15 metres west of the pedestrian lights when he was struck by your vehicle.
9 Impact occurred in the right lane of three westbound lanes and resulted in him receiving fatal injuries. I find you applied emergency brakes and skidded through the intersection before impacting the deceased on the front bumper, bonnet and windscreen of your car. Following the impact the vehicle continued skidding until it reached its resting position.
10 A post-mortem of the deceased revealed that he had 0.26 grams per 100 millimetres of blood ethanol level, and also present in his blood at the time was an amount of tetrahydrocannabinol and a drug normally prescribed for depression.
11 The background to your driving on that night and the observations made by others is fully set out in Exhibit 1, which is the summary of prosecution opening on plea, but I think it appropriate to summarise those matters. On Friday 1 April 2011 at about 7 p.m. your brother handed you the keys to his car and asked you to drive him to a friend's house at Maidstone. Your brother had purchased the vehicle four weeks earlier and it was only the second time you had driven it.
12 You drove the vehicle to the nearby Highpoint Shopping Centre where you met up with Anderson, Howard and another person. At 9.21 you rang your brother and he told you he would catch a taxi home. You, Howard and Anderson all then drove to Anderson's house where you stayed for 45 minutes watching television.
13 At 10.11 p.m. you called another friend and it was agreed that you would then drive in your brother's car to that other friend's house, pick him up and then all four of you would drive to Mount Macedon for something to do. You then left the address in St Albans and drove along Taylors Road in a westerly direction towards Kings Park, with Anderson seated in the front passenger seat and Howard in the rear seat behind Anderson.
14 You then increased your speed as you approached the traffic lights at the entrance of the Keilor Downs Shopping Centre. As you approached the lights at speed you observed the deceased walking across Taylors Road and you applied the brakes heavily, skidding through the intersection, before striking the deceased in the right-hand lane. The force of the impact threw the deceased a distance of approximately 21 metres where he landed on the grass median strip. Various witnesses made observations at the time.
15 Following the collision you immediately stopped the vehicle and attended to the pedestrian. On the arrival of the emergency services you clearly identified yourself as the driver. You were arrested and conveyed to the Keilor Downs Police Station for questioning.
16 As I have stated earlier, Detective Senior Constable Janelle Meagan of the Major Collision Investigation Unit attended the scene and conducted a formal collision reconstruction. I accept and act upon her stated conclusions that at the time your vehicle began to skid pre-impact it was travelling at a minimum speed of 134 kilometres per hour, and at the time of the impact with the pedestrian your vehicle was travelling at a speed of between 61 kilometres per hour and 65 kilometres per hour. The speed limit along Taylors Road is signposted at 70 kilometres per hour.
17 When you were interviewed in relation to the collision circumstances, you stated you were driving along Taylors Road when a pedestrian appeared in your lane in front of your car, and you slammed on the brakes as hard as you could and skidded about a second before the impact.
18 You stated that you were aware that the speed limit was 70 kilometres per hour, and you described your speed at the time of the collision as "more than average" and "10 to 15 kilometres over the speed limit". You stated you did not believe your driving was reckless or negligent and that it was not your fault, adding the pedestrian came out of nowhere and you did not mean to hit him, it was just an accident.
19 Clearly the aggravating aspect of this offence is the speed at which you were travelling prior to the collision with the deceased. You were travelling at a speed very close to double the prescribed maximum in that area.
20 There is a victim impact statement in this matter which I have read and taken its contents very much into account in determining an appropriate disposition. The deceased had been in a relationship with Ms Ledney for seven years. He had four children, and the circumstances of his relationship was carefully and sensitively set out in the victim impact statement. The tragedy was that she was present at the scene of the accident, and the consequences of that are made very clear in her statement. It is also clear that the consequences of the loss of the deceased to her have meant ongoing difficulties that she is now suffering and presumably will go on to suffer for some time.
21 There was a further victim impact statement provided by Ms Violet Liberatore, who was Mr Bogoevski's sister, and who speaks of her own feelings and also the fact that Mr Bogoevski had four children and three grandchildren who must know life without their father and their grandfather.
22 As was pointed out by Mr Robertson who appeared on your behalf, there are a number of mitigating factors. Firstly, you have pleaded guilty and you are entitled to have that fact taken into account in your favour, and I do so. The community has by your plea - notwithstanding that an aspect of it was contested - been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial, and I can tell you the sentence I intend to impose is less than would have been imposed had you been found guilty after a trial.
23 Further, I take into account in your favour the circumstances of your plea, as helpfully outlined in the chronology which is Exhibit 8. That chronology sets out the relevant matters with respect to the passage of the various hearings since 1 April 2011. I act on the basis that the chronology actually sets out the relevant matters as they have occurred over time.
24 Clearly you were very quickly apprehended in the circumstances and you made a record of interview with the police. I have no doubt that in your case your plea does indicate remorse for your actions, and indeed you have expressed that remorse to a number of people over the last two and a half years.
25 I have seen something of your personal history and your circumstances, and indeed I have a number of reports made available to me which have supplemented those materials. I note particularly Exhibit 8, the report of Dr Aaron Cunningham and Associates dated 9 September 2013; the report of Dr Sullivan, a forensic psychologist, dated 8 October 2013; and Exhibit C, a letter from Bernadette Nugent, manager of counselling and support services of the Road Trauma Support Services Victoria, dated 9 September 2013.
26 You are now 22 years of age and you were born in Victoria. Your mother and your father raised you in St Albans and you have one brother. Your parents divorced when you were aged eight, and you then lived with your mother and brother in Preston, the family moved into Commission accommodation. Your father then gained custody of you and your brother, and you have continued to live with your father since. It is clear your father has been very supportive of you throughout your life, and he has remained present in court during the proceedings.
27 You have described your mother to Dr Aaron Cunningham as an alcoholic. When you were aged 10 your mother was hit by a car. You were later told that your mother had been suicidal at the time and had jumped in front of the car whilst intoxicated. You state that you love your mother but do not see her regularly. You continue living with your father and your brother in Hillside, and your father is employed as a carpenter.
28 With respect to your education and vocational history, you attended Preston Primary School, St Albans Primary School, and then Essendon Keilor College, until you completed Year 12 at Copperfield College. You completed an electrician's apprenticeship at Victoria University and then continued your work as an electrical apprentice. You are close to completion of that apprenticeship which is normally four years.
29 With respect to your mental state assessment, it is clear that you suffer anxiety about this court case, and you have felt depressed and guilty after the offending behaviour. It was Dr Cunningham's view that you present with symptoms of anxiety in the context of your court hearing, and you present with sleep disturbance, worry and difficulty concentrating. You were assessed to be in the average range of intelligence.
30 Doctor Cunningham also interviewed your father. Your father supported your account of your background. It is clear that your father noted that you had been deeply upset and distressed after the death of the deceased. It was Dr Cunningham's conclusion that from the psychological perspective you would benefit from a disposition that facilitated your rehabilitation. So much of course cannot be gainsaid. There is no doubt, as he suggests, that a term of imprisonment will negatively affect you by separating you from the protective factors of employment and family support, as well as exposing to you to the negative influences that are inevitably found in the prison system.
31 There is an earlier report from a forensic psychologist, Dr Sullivan, which I have also read, and finally there is Exhibit C from Ms Nugent, which notes you had 11 telephone counselling sessions between April and July 2011 with a counsellor who no longer works with her organisation, but you presented with symptoms that were commensurate with a traumatic response as a result of what you had been through, and those symptoms included flashbacks, recurring thoughts and images of the incident, anxiety, sadness, and often feelings that you were on alert.
32 In addition to those reports and the exhibits which include the plaque which you prepared, which I have marked as Exhibit D, I had the advantage of the evidence of various character witnesses. It is clear from their evidence that you now present very differently from the person you were prior to the incident. Witnesses such as Mr Tony Dogan, whose son knows you well, noticed a change in you after the accident and said that you were remorseful for what had happened.
33 Your old school teacher Mr Dale Moore noticed a similar change in you, saying that your demeanour had changed significantly. Similarly Mr Steven Gangur, who had known you for 10 years, said that you have "lost the spark and not the same as before, that you were shattered and remorseful". He said that you want to become involved in the community and pay back, that is your intention when it is all over.
34 Your aunt gave evidence, saying that your mother does not know about this matter, and in the circumstances I can understand the reluctance of the family to advise her. She also says that you have been significantly changed since the accident.
35 After Mr Zoran Anderson gave evidence, your father gave evidence. He said that prior to the accident you were a decent, respectful person and a happy go lucky young woman, and that after the accident you have become a completely different person. He said your remorse is genuine and profound, and that you have lived with this matte for two and a half years.
36 There have been no subsequent matters and you have been in no further trouble since that matter. I am on balance satisfied the changes of your rehabilitation are very good. Clearly once you are released from prison, the hope is that you will complete your apprenticeship and go on to a life free from any further troubles with the criminal law, and I expect that to be the case.
37 However, what is most significant in this matter is in addition to the personal matters to which I have referred, including the question of rehabilitation, I must take into account such matters as deterrence and especially general deterrence, which is of considerable importance in a case such as this, involving as it does a very significant speed at which you were travelling prior to the collision with the pedestrian which resulted in his death. I do not find specific deterrence to be of such great significance in the circumstances, as I have no doubt this experience will moderate your driving for the rest of your life.
38 I must also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your reoffending, which I find to be modest in view of all the matters to which I have referred, particularly the profound impact that this matter has had on you in the past two and a half years.
39 The matter of the two and a half years delay I have no doubt has caused you anxiety, which you have expressed to various experts and been evidence to the various witnesses. Further, you have utilised the passing of that time to effect your rehabilitation. Both of these matters weigh heavily in the sentencing balance and is taken into account by me in your favour as I am directed by the relevant sentencing authorities.
40 I have read the recent decision of R v. Plater & Arthars (2013) V.S.C.A. 258 with respect to the issue of delay and the reasons for it in light of the matter set out at Exhibit 8. It seems to me that the matters of concern in that case do not apply to you, given your employment of an expert witness, and I have no doubt that took some time. I have not reduced the significance of the delay as a mitigating factor on the basis, the speed at which you were travelling is a matter you have sought to pursue, albeit over some time.
41 I was provided with a number of decisions of the courts with respect to the applicable law, given the increase in the penalty for this offence in recent times. I notice the decision of the Court of Appeal in Vernon Board v. R (2013) V.S.C.A. 190, in particular where Maxwell ACJ said at paragraph 34, and I quote:
"Decisions of this court establish the following principles relevant to sentencing in cases such as these:
1. The driver's moral culpability must be taken into account, together with the 'objective dangerousness' of the driving.
2. A person who drives dangerously, knowing of a risk associated with his driving, will (other things being equal) be adjudged more blameworthy than one who drives in the same dangerous manner without that knowledge.
3. The court's assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.
4. General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury. The importance of care in driving, given the risks associated with dangerous or careless driving, underpins the need for sentences to be imposed which will deter others from following a similar course of driving dangerously."
42 I was also referred to the case of DPP v. Jensen (2011) 31 V.R. 222, a decision of Neave JA. In this decision Her Honour referred to the case of DPP v. Neavling (2009) 22 V.R. 466, where the Court of Appeal referred with approval to the factors relevant to the seriousness of a particular offence of dangerous driving as set out by the New South Wales Court of Appeal. There are 11 factors identified which are set out and noted by Her Honour in paragraph 48 of that judgment.
43 I am also guided by the principles outlined by the Court of Appeal in Neavling, particularly at paragraph 30 where the court referred to the principles enunciated by Neave JA in DPP v. Oates (2007) V.S.C.A. 59, and stated, and I quote:
"(1) General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.
(2) A person who kills or injuries another whilst driving dangerously is likely to receive a significant term of imprisonment.
(3) The sentence which is imposed must take into account variations in the moral culpability of the person responsible.
(4) A custodial sentence will usually be appropriate for this offence, except in cases where the offender's level of moral culpability is low."
44 The Court of Appeal also described a number of factors which may aggravate the seriousness of a particular offence of dangerous driving causing death, and that included the extent and nature of the injuries inflicted, the number of people put at risk and the degree of speed.
45 There is no doubt in your case that the speed at which you were driving is the very essence of this offence. You were travelling at a very high level of speed and that has resulted in the death of a pedestrian. You were at a speed which was almost double the applicable speed limit. There can be no doubt that 134 kilometres per hour is a very dangerous speed to travel in a built-up area. Clearly the gravity of the offence calls for an immediate term of imprisonment to reflect the applicable sentencing principles, particularly general deterrence. Yes, if you would stand please, Mr Mancev.
46 On Charge 1, dangerous driving causing death, you are convicted and sentenced to three years' imprisonment. I direct that you serve a period of 15 months' imprisonment before being eligible for parole. I declare that 14 days of pre-sentence detention be reckoned as already served on this sentence, and that such declaration be entered in the records of the court.
47 Pursuant to the provisions of s.6AAA I am required to state the sentence that I would have imposed but for the plea of guilty, and accordingly I indicate that if it were not for the plea of guilty I would have convicted and sentenced you to a period of four and a half years' imprisonment with a non-parole period of three years.
48 I understand I am also to make an order with respect to your licence, and due to the level of your speed on the occasion your driver's licence is cancelled, and you are disqualified from driving or obtaining a licence for two years from today. Yes, thank you, Mr Mancev, you can be seated. Yes, is there anything further?
49 MS BORG: No, Your Honour.
50 HIS HONOUR: Mr Robertson?
51 MR ROBERTSON: No, Your Honour.
52 HIS HONOUR: Yes, thank you. I will adjourn for five minutes whilst the jury assembles for the next matter.
PRISONER REMOVED
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