Director of Public Prosecutions v Megarhiotis
[2019] VCC 1296
•15 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01062
THE DIRECTOR OF PUBLIC PROSECUTIONS
| v |
LAMBROS MEGARHIOTIS
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JUDGE: | HER HONOUR JUDGE BRIMER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2019 (plea) | |
DATE OF SENTENCE: | 15 August 2019 | |
CASE MAY BE CITED AS: | DPP v MEGARHIOTIS | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1296 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – dangerous driving causing death – early offer to plead guilty to the charge found guilty by a jury – remorse shown and acceptance of responsibility for actions
Legislation Cited: Sentencing Act 1991
Cases Cited: DPP v Dalgliesh (a pseudonym) [2017] HCA 41
Sentence: Two years ten months’ imprisonment, non-parole period 14 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie (plea) Mr H. Boyd-Wilson (sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Mr S. Tovey (plea and sentence) | Fayman Lawyers |
1 HER HONOUR: Lambros Megarhiotis, at the commencement of your trial on 17 June 2019 you pleaded not guilty to one charge of culpable driving causing death contrary to s.318 of the Crimes Act 1958. On 21 June 2019 the jury found you not guilty of culpable driving causing death but found you guilty of dangerous driving causing death contrary to s.319 of the Crimes Act 1958. The maximum penalty for the offence of dangerous driving causing death is 10 years’ imprisonment.
2 During your plea a number of exhibits were tendered. I have had regard to all of the exhibits tendered on your behalf. I have also had regard to the written submissions filed in support of your plea in mitigation as well as to the oral submissions made by both counsel.
Circumstances of the offending
3 On Friday, 17 February 2017 you went to your friend, Bill Pagomenos’ house at Imrie Court, Clarinda. Also at the address was Joseph Galea who was with his wife and two children, Savvas Savva and the victim, Efthimios (Matthew) Vassilakis. You had all been friends for many years and the group often met at Bill’s house on a Friday night. Mr Galea and his family left Imrie Court at about 10:30 pm. You offered to give Mr Vassilakis a lift home and you both left the house at about 10:44 pm. You were driving your 2008 model Ford Falcon XR6 turbo sedan. The car was a rear wheel drive and had a six cylinder petrol engine coupled to an automatic transmission.
4 When you left Mr Pagomenos’ house you drove out of Imrie Court and turned left into Davanzo Avenue. You drove west along Davanzo Avenue for approximately 300 m before accelerating hard.
5 At approximately 10:44 pm on Friday, 17 February 2017, you lost control of your car and collided with an electricity pole killing your friend Mr Vassilakis.
6 At the time you lost control, you were travelling at 93 km an hour with the accelerator pedal pushed to 88 per cent. At three seconds before impact the speed of the car was 102.1 km/h. Davanzo Avenue is a two-way residential street with a 50 km/h default speed zone for residential streets in Victoria.
7 At about 10:50 pm Mr Savva received a text message from you stating, 'We’ve been in an accident and I think Matty’s gone.' Mr Savva and Mr Pagomenos drove to the scene. You said to Mr Savva, 'Something came out, I swerved to avoid it and I think my thong got stuck.' You underwent a preliminary breath test for alcohol which returned a negative result. You were taken to hospital and a blood sample was taken. Toxicology results were negative.
The investigation
8 The Restraint Control Module (which I will refer to as the module) from your car was removed and sent to the manufacturer in the USA. It contained information about the speed and acceleration of the car.
9 Police attended the scene. The road was dry, the weather was fine, it was cool, traffic was light and visibility was excellent.
10 Detective Leading Senior Constable Michael Hardiman, a collision reconstruction expert from the Collision Reconstruction Unit attended the scene and conducted an analysis.
11 Detective Hardiman concluded from his analysis and from the data from the module, that you, for some unknown reason, input a right steering manoeuvre resulting in a loss of control. At three seconds before to the collision the vehicle was travelling 102 km/hr.
Offer to plead guilty
12 You offered to plead guilty to dangerous driving causing death some two years ago. An offer to plead guilty to the crime of which you were found guilty by the jury is a circumstance which goes to mitigation of sentence. I accept that your offer to plead guilty bespeaks remorse, contrition and an acceptance of responsibility for your actions. I have had regard to the benefit you would have received had your plea of guilty been accepted both in respect of the utilitarian value of your plea (had it been accepted) and as an indication of remorse.
Pre-sentence detention
13 You have served 29 days of pre-sentence detention to be reckoned as having been served under this sentence pursuant to s.18 of the Sentencing Act.
Prior convictions
14 You have a history of speeding and other offences, but not in the last 10 years. You have no relevant prior history for reckless or dangerous driving.
Personal circumstances
15 You turn 40 at the end of this month. You have two children with your wife Dimitra. Your daughters are five and three years old. You grew up in South Oakley where your parents ran a fish and chip shop until they retired in 2017. You have two younger brothers who work in construction.
16 After leaving high school at 15, you began an apprenticeship as a carpenter which you completed after four years specialising in construction and formwork. You have been employed in this line of work for more than 20 years.
17 You have worked for various companies during this period and are widely respected at work. You have responsibility for a large number of workers and a reputation as a skilled and hard-working individual.
18 You met your wife Dimitra when you were 27 years old. You were married in 2012. Your family survives on your salary and you have a significant mortgage on your house.
19 You have been a regular contributor to your local community, in particular your church. You, together with Mr Vassilakis, Mr Savva, Mr Pagomenos and Mr Galea and your respective families were very close. The impact on this group of friends and family cannot be overstated.
Victim Impact statement
20 Mr Peter Vassilakis, the victim’s brother, read his incredibly moving victim impact statement on your plea. I have had regard to the whole of the victim impact statement. It is clear that Matthew Vassilakis’ death has had a devastating impact on him and his family. Their mother donated her kidney to her son Matthew 10 years ago to save his life. A few years ago after his divorce, Matthew Vassilakis moved back home with his mother and brother, John. He played a significant role in helping their mother care for John who was born with cerebral palsy and needs constant care 24 hours a day. John hasn’t stopped calling for Matthew since the accident.
21 Not long after the accident, Peter Vassilakis resigned from the company he had been employed with for four years. He was unable to concentrate for long periods, lacked motivation and felt depressed. His daughters who were 11 and nine at the time have also been severely impacted by the death of their uncle.
Circumstances and gravity of the offence
22 It was conceded by your counsel that a term of imprisonment is inevitable. The offence is serious as is evidenced by the maximum penalty of level five or 10 years’ imprisonment.
23 Mr Tovey submitted that speed was the central feature of your dangerous driving. You did not, however, maintain that dangerous speed for a prolonged period. In fact, he said, it was momentary. Reaching that dangerous speed coincided with the next event, which was the sudden right hand steering manoeuvre.
24 There is no other rational explanation for this manoeuvre other than that you saw or perceived something to have run out onto the road. It is consistent, in his submission, with the physical evidence and what you said to Mr Savva immediately after the accident, in circumstances where it was highly unlikely that you would have been lying.
25 You were not impacted by drugs or alcohol. The loss of control was not preceded by erratic, showing off, hooning type behaviour. The street was empty of moving cars and pedestrians. You were in a roadworthy car with which you were familiar. Mr Tovey conceded, however, that by reaching that speed, your ability to deal with unexpected events was limited. Such an unexpected event occurred. The catastrophic outcome followed your attempt to evade what you had seen, at the very least what you perceived to have run onto the road.
26 Mr Tovey submitted that the unlikely, unforeseen intervening event to some degree moderates the seriousness of the offending and lessens your moral culpability. He conceded it is not the type of case where the offender’s moral culpability is low, such as where there was momentary inattention. However, it is certainly some distance from the worst category of dangerous driving causing death.
27 Mr Pirrie submitted that in cases such as this one, general deterrence must be given significant weight. A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment, and Mr Pirrie referred to DPP v Neethling [2009] VSCA 11. Whilst sentences must take into account variations in moral culpability, this case ought be categorised as being in the medium or midrange level of objective seriousness. The speed is the significant aggravating factor. The speed limit was 50 km per hour. You were almost flat to the floor in a high powered car. There was residential housing on both sides of the street where people and pets lived. It was dark. You were driving the car shortly after the motor had been rebuilt. You picked the car up at 5.30 pm that evening.
28 Mr Pirrie submitted that there is insufficient evidence for me to make a finding that anything ran onto the road. Your story in that regard changed a number of times; you were looking for answers. Even if something may have come onto the road, that is precisely why the driving was dangerous. The obvious, clear dangerousness was your inability to react if something untoward happened. The danger of losing control was not only to the deceased, but also to other residents who may have been outside their homes.
29 I consider that the evidence supports that you turned the steering wheel suddenly to the right. Given the clear conditions at the time, I accept that it is more likely than not that, at the very least, you perceived something to have run onto the road causing you suddenly to turn the steering wheel to the right. It is also very clear, however, that in accelerating deliberately to such very high speed in a short time on a 50 km per hour limited residential street, you left yourself with no chance to react to something sudden and unexpected. Whilst modifications were made to the car, there was no evidence that they played a causative role.
30 Having assessed the dangerousness of your conduct and your moral culpability by reference to all of your conduct and circumstances of your case, including your personal circumstances, I accept that your culpability is some distance from the worst category of dangerous driving causing death.
Relevant sentencing principles
31 Mr Tovey submitted that your prospects of rehabilitation are excellent. The impact of this event on you has been extraordinary. You are filled with guilt and shame for the damage you have caused. Your remorse was immediate, substantial and is ongoing.
32 At the scene, you showed immediate concern for your friend. You stayed and co-operated with police. You caused an apology to be directed to Mr Vassilakis’ mother and brother. You have written a letter to them, again expressing your remorse. Those close to you have observed a change in your demeanour. You are stressed, withdrawn and overcome with feelings of guilt and remorse. You have struggled greatly under the weight of what you have done.
33 Mr Pagomenos, your brother in law, the brother in law of Mr Savva and at whose house you all gathered before the accident, gave compelling evidence of your changed demeanour. You don’t want to take part in pleasure, you know you are responsible for extraordinary loss. You have never complained about going to gaol, your focus has been on making sure things are in place to support your wife and children.
34 Mr Pagomenos also gave evidence that you are a genuine person who has always put your family first. No one is of lesser or greater importance. You volunteer, making an enormous contribution to the church as a member of the parish. That you have been an honest and kind-hearted, hardworking family man is a theme that is expressed in the many references tendered on your plea. Many of those who provided references were close both to Mr Vassilakis and to you. I have had regard to them all.
35 Mr Tovey submitted that you are a man of the highest character, which should operate to reduce a sentence otherwise to be imposed. You have led a life that any reasonable minded member of the community would regard as positive, productive, honest and valuable. You have made a valuable contribution to society and will likely continue to do so. Your prior appearances in your late teens and early twenties have a minor role in the sentencing calculus. Those offences dried up with the beginning of your relationship with Dimitra.
36 Mr Tovey submitted that this offending is out of character and is highly unlikely ever to be repeated. You now avoid driving whenever possible. You have not replaced the car lost in the collision nor do you have any interest in motorsport anymore. Specific deterrence is essentially eliminated given the impact that these events have had on you.
37 Your offending occurred in February 2017. You first offered to plead guilty almost exactly five months later on 18 July 2017. Your trial commenced in front of a jury on 17 June 2019. Mr Tovey submitted that you have carried the burden of uncertainty for more than two years, you have not offended and you have shown considerable remorse and evidenced rehabilitation. As such, considerations of fairness to you in your present situation should play a dominant role in the determination of what should be done. Mr Tovey submitted that the delay in this case is such that it merits what might otherwise be seen as an 'undue degree of leniency'. Mr Tovey relied on R v Todd [1982] 2 NSWLR 517 at [519] to [520]. It is a mitigating factor beyond the early offer to plead guilty to dangerous driving causing death.
38 Mr Tovey submitted that the burden of your time in custody will be immense. It is your first time in custody and knowing the impact that will have on your children and the financial burden will make gaol more difficult. This combination of unusual and powerful mitigating features means there is room for a substantial degree of leniency and mercy.
Current sentencing practice
39 I am obliged to have regard to current sentencing practice in determining the sentence, though I note the guidance of the High Court in DPP v Dalgliesh (a pseudonym) [2017] HCA 41, that current sentencing practices are one of the many factors that must be taken into account in sentencing. Both Mr Tovey and Mr Pirrie submitted that there is no other case that is comparable or close to being on all fours. Mr Pirrie referred me to Stephens v The Queen [2016] VSCA 121 in support of the proposition that sentences in respect of this sort of offending ought increase over time. I have looked at the Sentencing Advisory Council higher courts sentencing statistics. For the period between 1 July 2013 and 30 June 2018, the median length of imprisonment for cases of dangerous driving causing death was 3.21 years. 33.3 % were for periods between three and four years, and 14.8 % were between two and three years.
40 Every case is different and the court must have regard to the individual circumstances of each case. In respect of this case that includes the particular circumstances of your offending, your personal circumstances and the relevant sentencing principles that arise for consideration. This is what I have done.
41 There is no question that the circumstances of this case constitute an unmitigated tragedy. The intense impact of the offending is clear. You will carry this burden for the rest of your life. It is offending which, as you have accepted, means you will be gaoled. A term of imprisonment is necessary in order properly to denounce your conduct and to deter others who might be minded to speed in such a manner.
42 Imposing a sentence which is just in all of the circumstances involves the balancing of a number of sentencing considerations. The sentence imposed is not the measure of the value of Mr Vassilakis’ life.
43 I accept Mr Tovey’s submission that given the combination of mitigating factors including your offers to plead guilty, your character, your personal circumstances, the circumstances of the offending, your excellent prospects of rehabilitation, and the impact of delay, there exists room for leniency in the sentence to be imposed. I consider that the combination of mitigating factors support the fixing of a non-parole period that will give you the opportunity to serve a considerable part of the sentence in the community on parole.
44 Please stand, Mr Megarhiotis. On the charge of dangerous driving causing death I sentence you to a term of imprisonment of two years and 10 months. I set a non-parole period of 14 months.
45 You have served 29 days of pre-sentence detention to be reckoned as having been served under this sentence pursuant to s.18 of the Sentencing Act.
46 I am required pursuant to s.89(1)(a) of the Sentencing Act to cancel your licence and to disqualify you from obtaining a further licence. I must not specify a period of disqualification of less than 18 months.
47 I order that any licence you hold be cancelled and that you be disqualified from obtaining a further licence for a period ending two years after you are released from custody, whether on parole or on the expiration of your sentence.
48 Mr Boyd-Wilson, I understand there's a s.464ZF order application, and I also further understand, Mr Tovey, that it's opposed.
49 MR BOYD-WILSON: Yes, Your Honour.
50 MR TOVEY: Yes, Your Honour. I'd simply - it's obviously a matter of - the guiding test is one of public interest. Your Honour is well enough familiar with the facts of this case, and I otherwise leave it as a matter for Your Honour.
51 HER HONOUR: Yes. I am not satisfied that in all the circumstances the making of an order is justified.
52 MR BOYD-WILSON: As Your Honour pleases.
53 HER HONOUR: Were there any other matters?
54 MR TOVEY: Nothing to raise, Your Honour.
55 HER HONOUR: Yes, thank you. You may be removed.
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