Director of Public Prosecutions v Menich

[2020] VCC 808

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02155

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMILY MENICH

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2020
DATE OF SENTENCE:	9 June 2020
CASE MAY BE CITED AS:	DPP v Menich
MEDIUM NEUTRAL CITATION:	[2020] VCC 808

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – One charge of drive in a manner dangerous causing death – Failure to observe or intuitively assess the orange and the red light - Early indication of acceptance of responsibility for accident and causing death – no prior convictions –  Victim a material contributing cause of the of the accident – Imprisonment and loss of licence.

Legislation Cited: s3(1)(eb), s5(2H), s5(2H)(a)-(e), s5(2HC), Sentencing Act 1991 (Vic) – s151A, 151B Road Safety Rules 2017.

Cases Cited:R v Stephens [2016] VSCA 121- DPP v DJK [2003] VSCA 109 -Spanjol v The Queen [2016] VSCA 17 – Guseli v The Queen [2019] VSCA 29 – Pan v The Queen [2020] VSCA 42 – Arpaci v The Queen [2020] VSCA 81 – R v Verdins [2001] VSCA 102 – Markovic v The Queen [2010] VSCA 105 – DPP v Peka [2020] VSCA 140.

Sentence:Convicted and sentenced to 18 months imprisonment with a non-parole period of 12 months. Licence is disqualified and cancelled for a period of 18 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Glynn	Office of Public Prosecutions
For the Accused	Ms C. Gomez-Vazquez	Victoria Legal Aid

HIS HONOUR:

1Ms Emily Menich stands before the Court having pleaded guilty in indictment number K12427581 to driving in a manner dangerous which caused the tragic death on 30 November 2018 of Mr Roberto Iachin.  Mr Iachin was 51 at the time, and was on his way home when he was so impacted.

2The seriousness of this offence is indicated by the maximum penalty prescribed by Parliament, which is ten years' imprisonment.  The collision occurred at the intersection of Thomas Street and Nepean Highway in Brighton East, at approximately 11:30 at night.

3The weather was fine, the intersection well lit.  The tragedy of such crimes is demonstrated by the victim impact statements provided to this Court.  Ms Emily Manuele, her daughters, Marisa and Sarah, the deceased's sister and nieces, and in addition Mr Glynn read the victim impact statement of his mother, Ms Anna Iachin, and friend, Lisa Holmes.

4Clearly Roberto was a very important and well-loved person within the family.  The family grieving has been profound.  The family, and indeed his friend, gave to the Court in a very restrained manner detailed statements which demonstrated, in some length, their love, thoughts and memories of Roberto.

5Insofar as this crime is concerned it is important to recall that the offence of dangerous driving causing death was in fact created in 2004.  The Attorney-General said at the time that the new offence would fill a gap between two existing offences, namely culpable driving causing death and the summary offence of dangerous driving.

6To establish the new offence the Minister said:

'The prosecution will not be required to prove criminal negligence which is required to prove culpable driving causing death, rather the prosecution will have to prove the accused drove at a speed or in a manner dangerous to the public having regard to all the circumstances of the case and by doing so caused the death to another person.'

7Again, demonstrating the concern that Parliament has, originally the offence of dangerous driving causing death and serious injury was contained in one provision with the same maximum penalty of five years' imprisonment.  In 2008 these two offences were separated into two provisions with different maximum penalties, the more serious offence, of which I am dealing with here, has a maximum penalty of ten years.

8Such pain as has been demonstrated here, for the loss of
Mr Iachin, by his family is exactly why the Government introduced this crime. The experience of the Courts is that persons guilty of this crime will usually receive a custodial sentence, except where their culpability is low (See R v Stephens [2016] VSCA 121, [20]).

9Of course due to amendment to the Sentencing Act 1991, to which I will refer, such now applies as the legislative intent of the Parliament, except where the offender can meet the exceptions detailed in s.5(2H)(e) of the Act.  Clearly crimes such as this call for a sentence which signifies the recognition by society of the nature and significance of this crime and a public attribution of responsibility for the wrongdoing of the perpetrator, in this case, Ms Menich  (See the comments of the Court of Appeal in DPP v DJK [2003] VSCA 109, [18]).

10Given the particular circumstances surrounding this crime the attainment of the appropriate sentence has been no easy task.  Sixteen days before
Mr Iachin lost his life amendments were made to the Sentencing Act which classified this crime as a category 2 offence (s3(1)(eb) of the Act of such definition). Pursuant to s.5(2H) of the Sentencing Act, a person who commits such an offence must be imprisoned, unless the offender satisfies s.5(2H)(e) of the Act that exceptional and rare circumstances exist, whereby such an order is not justified.

11Section 5(2HC) of the Act details mandatory considerations for this Court being sub-s.(a), (b) and (c), and ss5(2I) details further matters for this Court to have regard to. The submissions made by Ms Gomez-Vazquez were to the effect that such exceptional circumstances are made out. In the alternative, the prosecution submitted that in the totality of circumstances the high burden upon the defence has not been established.

Circumstances of The Accident: -

12That therefore brings me to the circumstances of the accident.  Having analysed the material tendered on the plea by the prosecutor, and the submissions of Ms Gomez-Vazquez on this topic, I find as follows:

a)Ms Menich entered the intersection on a red light.  Upon the evidence of
Mr Thomas, Exhibit L, Ms Menich's car drove into the slip lane off Nepean Highway, the right lane of such, and continued on at 'a normal speed' north until it turned across Nepean Highway;

b)Before Ms Menich made such turn she had travelled towards an orange light applicable to her at the intersection, which light had a span of three seconds.  (See paragraph 7 of Exhibit A, the Prosecution Opening);

c)Ms Menich must have entered the southbound section of the intersection against a red light.  Such comes from the fact that the lights to southbound traffic had been green for four seconds before the collision (See paragraph 11 of Exhibit A). Prior to that light turning green there is an all red period of 3.5 seconds on both lights, that is the light which governs Ms Menich's right hand turn, and the lights governing southbound traffic;

d)If one peruses the dashcam footage of Mr Davis (see Exhibit N) cars were stopped in each of the southbound lanes.  (See his statement also).  Such is confirmed by each of the drivers and the passengers of the cars.  (See the statements in Exhibit L.)  None of the cars impeded the path of
Ms Menich's turning car before the collision;

e)Prior to the collision Mr Iachin had lane filtered between the left hand land and the second lane from the kerb in the southbound section of the
Nepean Highway;

f)Given the distance created between Mr Iachin after the Centre Road intersection and Mr Davis, Mr Iachin must have been judging the light sequence.  Such is demonstrated from a perusal of the dashcam video, given Mr Davis was 40 to 50 metres back from the lights when they changed.  Consistent with the evidence of the cars at the lights Mr Iachin accelerated through such lanes;

g)The speed limit of the southbound traffic in normal conditions on
Nepean Highway is 80 kilometres per hour.  However, when lane filtering there is a limit of 30 kilometres per hour (See Road Safety Rules 2017 151A).  Of course it must at all times be safe to road filter (See Road Safety Rule 151B).

Objective Culpability: -

13I then come to my findings as to culpability.  

a)Ms Menich's failure to observe, or intuitively assess, the orange and red light before this accident was clearly a failure by her to keep a proper lookout, as she is obliged when driving, especially at an intersection which she states in her record of interview she knew well.

b)Such failure to keep a proper lookout amounted to a serious breach, which was potentially extremely dangerous to the southbound traveller on
Nepean Highway, as it proved tragically to be. 

c)In the totality of the circumstances the actions of Ms Menich are certainly not momentary, and are indicative of the level of culpability as submitted by the prosecution at being at the higher end of low.

d)The submission of Ms Gomez-Vazquez that Ms Menich may have mistook the green lights applicable to traffic travelling north as applying to her, is I find speculation. In fact, if it was correct such only goes to highlight the lack of attention, for some unknown reason, that Ms Menich was displaying as to her driving on that night. 

e)I accept the prosecution submission that the objective dangerousness of the driving was high (see paragraph 4 of the Prosecution Submissions) and that the objective culpability of Ms Menich for this crime on this night was not low.

Mr Iachin’s Driving: -

14The four cars stationed at the lights were able to avoid the car driven by
Ms Menich.  Mr Thomas said, having at all times observed Ms Menich's car and the fact that she was moving slowly towards him, that he could not move off as he would otherwise have hit her.  The car in which Mr Cefala was located, just took off as Ms Menich’s car past, and indeed thereafter rolled past the collision.  In regards to the Birds, Mrs Bird said that no cars had moved prior to the collision and Mr Bird confirms this.  Mr Papodopoulos said that his car had just moved, but not into the path of the right turning car.  In fact his car stopped after the accident, but still north of the point of the accident.

15Having looked at the dashcam, the statements of the four persons at the intersection are confirmed.  Why they did not move off when they had a green light, for such a period, is very difficult to understand.  Given that it was 11:30 at night one assumes that as soon as you get the green light you move.  However, there must have either been an actual sighting or a perception of danger from Ms Menich's car which led to the cars having not moved off prior to the accident, or alternatively it simply demonstrates how quickly a period of seven seconds passes in real time.

16Mr Iachin, I find on the balance of probabilities, entered the intersection within the relevant speed limit, but in breach of his obligation not to exceed 30 kilometres per hour when lane filtering.  I therefore reject the prosecution submission in this regard, that is that Mr Iachin had no role to play in the circumstances of this accident.

17I find this for the following reasons:

i.Those parked at the lights felt that Mr Iachin had travelled past them at speed.  Firstly Mr Thomas states that the motorcycle was travelling at a high pitch, it was accelerating pretty quickly.  The accident was like a small explosion.  Mr Cefala says, 'The motorcycle went past pretty quick, the collision was a real loud bang.  The cyclist flew five to 10 metres in the air.' Mrs Bird says she heard the sound, the motorcycle was travelling at speed.  He came, to use her words, 'quick and loud.  There was a huge impact sound.'  Mr Bird said ‘he sped through the intersection at what I assess at 60 to 70 kilometres per hour.'  Mr Papodopoulos said that the motorbike was travelling fairly quickly. 

ii.The photos tendered, Exhibit K, demonstrate a heavy impact into the car.  See in particular Photos 38 to 42 and the resultant damage to the bike as demonstrated by Mr Hay's statement which has been formally - this part of his statement anyway - tendered this morning. I want to read what he says as to such damage: 'The frame had snapped at the front of the fuel tank.  The faring was smashed, the front rim was shattered, the fuel tank was deformed, the front radiator had been pushed in, the exhaust had been deformed and broken on the rear, the lid to the rear storage compartment was missing, the instrument cluster was dislodged and the faring on the right-hand side was missing.'

iii.There was no evidence of braking by the bike.

iv.Mr Hay, in his reconstruction, as I said, Exhibit M, notes that Mr Iachin travelled 17.4 metres after impact.  Such a distance is calculated, without taking account of the speed lost due to the collision.  As a result he concludes that the speed of the motorcycle at collision was approximately 50 kilometres per hour.  As explained by him, at deposition p.112, when taking into account the speed loss, which must have happened to the bike upon hitting the car and the windscreen, the above estimate of speed must be seen as a minimum.

v.In coming to the above conclusion, I do take into account, Mr Glynn's submissions,  as to the difficulties of estimates when cars are parked and a bike is passing, and of course, as Mr Glynn submitted, the actual acceleration capacity of the bike itself. 

18Given my determination as to Mr Iachin's speed and the breach of s.151A and B of the Road Safety Rules, I find that his driving did result in two important circumstances relevant to this collision.  Firstly, Mr Iachin's actions frustrated the purpose of the regulations at the intersection.  At the speed at which he travelled his ability to observe what was going on the intersection was limited both by such speed and the cars on each side of him, in particular, in this instance, by the three cars to his right.  Also, had he been travelling, at the mandated speed for such filtering, he may well have been able to break and potentially avoid the catastrophic result of the accident, in that even with the impact its degree may have been considerably lessened. Further, albeit my findings as to Ms Menich’s culpability, she may well have avoided a collision with the bike as she did with the four parked cars, albeit, as I have said, fortuitously. 

19Hence I find on the balance of probabilities, the cyclist's manner of driving was an additional factor, outside the control of the offender, which was a material contributing cause of Mr Iachin’s death, see Spanjol v The Queen [2016] VSCA 17, [5]. Again, for the reasons set out above, I reject the prosecution submission in this regard.

20As said in Guseli v The Queen [2019] VSCA 29 [69], such additional material cause does not affect the gravity of the offending or Ms Menich's culpability: 'however, it can be taken into account in reduction of sentence'. If I can be so bold, I prefer this approach to that of Croucher AAJ in Pan v The Queen [2020] VSCA 42 [86], that such additional material cause would have compelled a significant reduction in moral culpability.

21It should be said that the Court remarked in Guseli v The Queen [2019] VSCA 29, [67], that the precise scope of the second limb of Spanjol is yet to be fully determined, however, in the particular circumstances of this case, unlike for example in Arpaci [2020] VSCA 81, [251] – [254] and Guseli itself, [70] - [76], I find that a significant reduction in sentence is warranted as a result of this finding.

Plea of Ms Menich: -

22Coming then to the plea of Ms Gomez-Vazquez on behalf of Ms Menich.  Tendered firstly was her submission, Exhibit 1 of 8 May 2020.  Exhibit 2 were Ms Menich's employee statements of service detailing her excellent work at the MOIRA Youth Disability and Family Organisation.  Exhibits 3 to 7 were a number of supportive and significant character references, essentially by work colleagues from the MOIRA organisation.

23Given the issue as to the child in this matter, I do want to read from the statement, firstly, of Mr D’alton, which was Exhibit 6.  He notes that Ms Menich was a dedicated mother to the elder daughter, Cienna.  He notes Charlie's behavioural issues, and to date that there has been no formal diagnosis.  He notes that Ms Menich has come to terms that she was to blame for the accident and the circumstances that have resulted there from, and her trauma as a result. Finally at his last paragraph he says this:

'I understand there is a possibility of Emily serving time for this offence, however, I believe Charlie would be the main person to suffer in this matter.  He relies heavily on his mum and if she were removed from day to day life, his behaviour and anxiety would decline.  He has been known to express feelings of depression himself, which is not common in children aged seven year old'. 

24He then talks about his own employment. 

25In addition her daughter Cienna Wilkins provided Exhibit 7.  She confirms the extreme remorse that her mother has felt as a result of the death of Mr Iachin.  She states this, 'if Mum was to go to gaol, the impact on us would emotionally impact on us for the rest of our lives'. She speaks of the tough childhood her own mother had and talks of the issues of COVID-19 restrictions and the impact of that. 

26I will just stop and reconnect, we have lost WebEx.  Yes, I am sorry.  I did not really earlier acknowledge the family, although I have spoken of your submissions here.  I am sorry, you have just gone out and  I understand you can all hear?  Yes, you are all mute but you can hear.  I was just finishing the testimonial of Sienna Wilkins and finally she said:

"It's my sincere hope that the Court takes this letter into deep consideration for the health and wellbeing of all effected by this tragic event'.

27In addition, as I have already said today, has been tendered as Exhibit 10, a letter that confirms that Mr D’alton plans to move into the house if Ms Menich is gaoled and help Cienna with attending to and the raising of the child. 

28Insofar as the plea was concerned, it was pointed out that Ms Menich was 35 at the time of this accident.  She is now 37.  She has no priors whatsoever and has lived obviously a hardworking life.  She has had some difficulties in her upbringing and has done pretty well considering that.  Coming to a Court at this stage in her life without any priors, she is entitled to expect as merciful a sentence as is possible.

29I accept that despite the time it took for Ms Menich to understand and accept her role as the major contributor to Mr Iachins death, that she now expresses general remorse.  All of the references speak to such in particular the ones I have read, but also her work references. 

30There is no submission as to exceptional hardship in regard to the family's concern as to Charlie as envisaged in the Markovic [2010] VSCA 105. However, given the disruption that a prison sentence will produce, I accept that the principles in Verdins 5 and 6 will apply to this sentence. Indeed it would be inhumane for this Court not to understand the trauma for Ms Menich of being separated from her young son, in the circumstances that I have just referred. In addition to that, as referred to by the psychologist report, Mr Pragnaratne, [40]:

'Clearly she will suffer from the circumstances of being separated from her son and not being able to assist him as she would normally be able to do.

31As I say Exhibit 10 now details the arrangements that will be made.  I also take into account, not only the comments of her daughter, but the submissions made by Ms Gomez-Vazquez as to the particular difficulties of this time with the COVID restrictions. That those restrictions will not only cause stress to
Ms Menich herself, but clearly be further distressing because there are in place restrictions as to visits, that is physical visits in regard to all of her family. As I can best understand it, those restrictions will be for the foreseeable future, although of course there is contact available by way of phone.  However, I accept all of those issues in regard to the COVID-19 problem.

32I also accept the personal circumstances set out on behalf of Ms Menich as detailed in [9] to [12] of the submission. 

33In determining the appropriate sentence I take into account the early plea.  I accept that it is utilitarian.  I accept that it demonstrates that there has been acceptance by Ms Menich of her culpability and role. That her plea serves justice and has saved the Iachin family from having to go through the trauma of a trial.

34I also accept the proposition put that one can be positive as to the rehabilitation of Ms Menich, given her excellent prior character. 

35I then come to the submissions as to the rare and exceptional circumstances required to alleviate this Court from having to impose a prison sentence. Unfortunately after close consideration, I reject the submission that upon the totality of the circumstances referred to, in particular, in [24] (a) to (k) of Ms Gomez-Vazquez's submission, such establish the exception under s.5(2H) of the Sentencing Act.

36I note also that in considering those circumstances, as I have said earlier today, I added my finding as to the additional material cause of death.  As the Court of Appeal recently stated DPP v Peka [2020] VSCA 140 the hurdle created by the Parliament is very high. To use their words in [51], such that is not often surmounted. Albeit as a result of this finding, a term of imprisonment is therefore inevitable, as the Court said in Peka and as I confirm here, the operation of this section is as intended by Parliament to be harsh.  Unfortunately for Ms Menich, given my finding it is the intent of Parliament that this harsh provision does operate in this case, I refer to [52] of Peka.

37In coming to sentence, I want to acknowledge the Iachin family and the restrained manner in which they have addressed the Court, in their loving comments about their relative Roberto Iachin. But, as you all have demonstrated, no sentence which I pronounce today will bring back Roberto. 

38On the basis of all the matters submitted to me by both counsel, my finding as to the dangerousness of Ms Menich's driving, my findings as to her moral culpability, the additional material cause of the collision, being Mr Iachin's own driving of the motorcycle, and further in consideration in cases such as this of the importance of the principle of general deterrence, denunciation and punishment, I then come to sentence Ms Menich.

39Ms Menich if you would stand please.  On the charge of dangerous driving causing the death of Roberto Iachin, I convict you and sentence you to a period of imprisonment of 18 months'.  Pursuant to s.11, I order that you must serve 12 months before you are released on parole.  I am also required to cancel your license and disqualify you from obtaining any other license for 18 months. Of course in determining your sentence I have taken this additional aspect into account. 

40It is probably very difficult for you to understand anything I am saying to you at the moment, but Parliament does require me to tell you that had you not pleaded guilty, I would have sentenced you to a period not of 18 months, but to a period of 24 months.  I do not think I can say anything further in satisfying Parliament. 

41Yes.  Either counsel want to say anything about those matters?

42MS GOMEZ-VAZQUEZ:  No, Your Honour.

43MR GLYNN:  No, Your Honour.

44HIS HONOUR:  Yes, thank you, Ms Menich can be taken away.  Good luck, Ms Menich. 

45Yes, can I thank both counsel for their assistance in this case.  It might have been obvious but I did not find it an easy case.  Yes.  I should also thank the family if they are still listening.  I thought your comments considering the death of Roberto were very restrained and responsible.  Thank you.

‑ ‑ ‑