The Queen v Da Costa [2014] VSC 458

Supreme Court of Victoria|2014-09-17|Before: LASRY J

CRIMINAL LAW - Sentence - Pleas of Guilty - Culpable driving causing death - 3 charges - Negligently causing serious injury - 3 charges - One count of reckless conduct endangering life - Connection between the conduct and drugs - Collision after sustained period of extremely dangerous driving - Built up area - Driving against traffic control signals - Speed in the vicinity of 120 km/h - First victim pedestrian crossing lawfully - Other victims in vehicle proceeding lawfully - Remorse - Lack of memory and explanation for the driving.

**1 Nei Lima Da Costa, this is a difficult sentence for me to impose on you for several reasons. There is, first, the tragedy that has afflicted the families and friends of those whose deaths you caused. There is then the tragedy which afflicts those you seriously injured. And, there is the tragedy of all this for you. In only a few seconds, and after the use of methylamphetamine over some days, you have done something which has affected the lives of dozens of people including you and your family. The motor vehicle has long been an intrinsic part of our lives but remains inherently dangerous when so dramatically misused. For you and these people it is now a symbol of tragedy.

2 On 17 March 2014 at committal proceedings in the Magistrates' Court and then on 11 April 2014 in this Court, you pleaded guilty to the seven charges in the indictment that has been filed. That indictment includes three charges of culpable driving causing death, three charges of negligently causing serious injury and one charge of reckless conduct endangering life. These charges are the result of nothing less than a massive tragedy in the late evening of Sunday 12 January 2014 when three people were killed, three others seriously injured and one other's life was endangered as a result of your driving of a motor vehicle. This was no sudden lapse on your part. This catastrophe occurred after 14 kilometres of horrendously fast and reckless driving.

3 The maximum penalty for culpable driving causing death is 20 years. The maximum penalty for negligently causing serious injury is 10 years, as is the maximum penalty for reckless conduct endangering life.

4 In addition you have pleaded guilty to an unrelated summary matter of exceeding the speed limit on an earlier date. For doing that by a margin of in excess of 45 kilometres per hour, which you were, the maximum penalty is 20 penalty units or $2,816.00 coupled with a cancellation of your licence to drive a motor vehicle.

5 On 10 June 2014, I heard an opening and submissions from the senior Crown prosecutor, Mr Tinney, and from Mr Dane on your behalf in relation to the sentences that should be imposed upon you for your conduct and it is now my responsibility to impose those sentences.**

**6 On 12 January 2014, at about 8.08pm, you drove your vehicle, a hired Kia Cerato hatchback, into the Crown Casino car park at Whiteman Street, Southbank. During the preceding days you had used methylamphetamine although the precise quantity you had taken is not clear. You later said you had not slept for two days. In the casino car park you stopped your vehicle near the exit boom gate and remained there for some three hours while you were apparently sleeping. At about 11.18pm, you were spoken to by a casino official. He asked you to move away from the area. You said you were tired and were just having a nap. There was some discussion about whether you should be driving. You then left that area at about 11.23pm.

7 You were then observed by several people as you drove from Crown Casino along Queens Road toward the intersection where this terrible collision occurred. Witnesses on Queens Road observed you at 11.25pm driving at a high speed with the lights of your vehicle apparently on high beam. On Dandenong Road, you were seen to be driving erratically in and out of traffic as well as changing from lane to lane as you approached the traffic lights at Chapel Street. At the intersection of Dandenong Road and Glenferrie Road you failed to stop at the red light applicable to you. Near the intersection of Tooronga Road, you were again seen driving through the intersection on a red light, narrowly missing a collision with other vehicles.

8 At the intersection of Dandenong Road and Belgrave Road in East Malvern a speed camera was activated as you went past and your speed was recorded as 122 km/h at 11.34pm. As you passed Chadstone shopping centre, still travelling at an extraordinary speed, a bystander who saw you predicted you would kill someone.

9 Shortly after that, you were approaching the intersection of Dandenong Road and Warrigal Road. You were still travelling in an easterly direction. Anthony Parsons, aged 45, being followed by his wife Susan, was standing on the northern side of the Princes Highway intending to walk south when the pedestrian lights facing him turned green. That having occurred he walked across the first of the eastbound lanes of the Princes Highway. As he stepped onto the second of four eastbound lanes he was struck by your vehicle at 11.35pm. Your vehicle was driving into the intersection against a red light, and the evidence indicates that the light had been red for at least 18 seconds before you entered the intersection. As you entered the intersection, you were recorded as travelling at a speed of 120 km/h. Police calculations as part of the investigation concluded your speed was somewhere between 118 and 124 km/h. The legal speed limit in that area is 80 km/h.

10 Mr Parsons was struck by your vehicle and he was thrown just over 52 metres to the eastern side of the intersection. There is a CCTV video of what happened next which I have watched. It is terrible and captures the death of Mr Parsons in graphic detail. The video is in real time but the speed of your vehicle and velocity with which Mr Parsons is thrown by it to the other side of the intersection are extremely confronting. The intersection, being a major and busy one, was very well lit. There is no sign of any evasive action by you prior to striking Mr Parsons. If you were paying any attention to what you were doing you must have seen that he was in your path.

11 Mr Parsons suffered terrible injuries including the severing of his right lower arm. He either died upon impact with your vehicle or shortly afterwards as a result of the injuries that he received. By the time his wife Susan, who can be seen in the video, had realised that something terrible had happened, she was confronted with the news that her husband was dead. Having struck Mr Parsons, your vehicle continued into the intersection narrowly missing a number of cars but colliding at right angles with the driver's side of a silver Ford sedan, being driven by Menelaos Menelaou. His vehicle was travelling in the left hand lane of the southbound carriageway of Warrigal Road. Your vehicle lifted off the ground as it struck that vehicle and then came into contact with the front passenger side of a grey Ford vehicle being driven by a witness, John Young, who was in the right lane of the southbound carriageway of Warrigal Road.

12 The first Ford you collided with contained five people. They included Savvas Menelaou aged 67, and his wife Ismini Menelaou aged 59, who were the rear centre and rear driver's side passengers in that vehicle. The vehicle was being driven by their son Menelaos Menelaou. The other two people in the vehicle who were seriously injured were Elias and Maria Mesaritis. Maria Mesaritis was the sister of Ismini Menelaou. Those in that Ford had been at a wedding of a family friend in Oakleigh and a later reception at Taylors Lakes.

13 The force of that impact caused the Ford to rotate during which the rear of the car struck a light pole on the centre median strip of Dandenong Road.

14 Andrew Campbell is a medical practitioner who by chance witnessed the collision and went to assist. He went to the Ford to find that Elias Mesaritis was out of the vehicle and extremely concerned for his wife. The driver was seriously injured and wedged in his seat. Mr Menelaou in the rear driver's side seat was by this stage likely deceased. Mrs Menelaou, also in the rear of the vehicle, likewise was not responsive. They were not able to be revived. The other three occupants were seriously injured and each of Maria Mesaritis, Menelaos Menelaou and Elias Mesaritis were taken to hospital.

15 At the scene of the collision and in the aftermath, you were out of your vehicle and being treated by ambulance officers. When asked by a witness what had occurred you claimed to be travelling at 80 km/h and when you saw a turning vehicle you applied the brakes but could not stop. You later told a paramedic you did not know how fast you were going although when told the speed limit was 80 km/h you said you must have been doing that speed. You must have known that could not have been true.

16 While you were being treated, police administered a preliminary breath test to you, which was negative. You had not been consuming alcohol. You told police who had carried out that test that at the time of the collision you were travelling at 80 km/h. Because you had a suspected broken collarbone you were taken to the Royal Melbourne Hospital for treatment and a blood sample was taken from you at the hospital, which again revealed a negative result for alcohol. However, that blood test revealed methylamphetamine in your system at a concentration of 0.07 mg/litre and amphetamine at a concentration of 0.03 mg/litre. You also had in your system a substance known as metoclopramide, which is an anti-nausea medication. You were discharged the following day.

17 In relation to the drugs found to be in your system, Dr Maurice Odell from the Victorian Institute of Forensic Medicine described the levels as being quite low. However, he also concluded that any concentration of these drugs is likely to produce symptoms that are inconsistent with safe driving. Dr Odell thought that your behaviour was not consistent with a fatigue-related crash or somebody falling asleep while driving but rather concluded that your relatively low blood concentration of methylamphetamine was more suggestive of a fluctuating state or rebound fatigue from the use of stimulants in the preceding day or two. Whilst he could not be certain to what extent the drugs contributed to your behaviour, he was of the view that the circumstances suggested that you were adversely affected by those drugs at the time of the collision and I accept that conclusion. Your counsel told me you had been using 3 points a day for several days prior to this collision and that you had a drug addiction to various drugs over some 10 years. Dr Odell said that any concentration of this drug in the human system will be inconsistent with safe driving.

18 In relation to each of the three deceased, Anthony Parsons, Savvas Menelaou and Ismini Menelaou, their deaths were medically determined to have been caused by the injuries sustained in the collision with your vehicle.

19 Charges 4-6 concern the injuries you caused to Menelaos Menelaou, Elias Mesaritis and Maria Mesaritis.

20 Menelaos Menelaou suffered extremely serious injuries and, as a result, spent two weeks in intensive care at the Alfred Hospital. He sustained extensive fractures and other serious life threatening injuries which the prosecutor outlined and which I will not repeat. His quality of life in the future is seriously affected. Without the extensive medical treatment that he had those injuries would have been fatal. At the Acquired Brain Injury unit at the Epworth Hospital he underwent a rehabilitation programme and further treatment both for his injuries and complications arising from them. He was discharged to the care of his family more than three months after the collision.

21 His rehabilitation is expected to continue for an extended period concerning his cognitive, psychological and physical issues. The detail of that treatment and prognosis is in the report of Dr Sandra Farquharson which became exhibit F in this case.

22 Elias Mesaritis was fortunate to have suffered less serious injuries. He suffered fractures and lacerations to a kidney and his liver. He had two days in hospital but it is predicted that his quality of life will be diminished in the future. Despite the short time in hospital, his injuries were severe and life threatening. He still suffers pain and is under the care of a psychologist who treats him for post traumatic stress disorder.

23 Maria Mesaritis was in hospital for 12 days with very serious fractures and other significant injuries. Her injuries were severe and "highly life-threatening" with long term consequences. She had intensive care and management and notwithstanding that, her quality of life will be severely adversely affected in the future. She is undergoing a full rehabilitation programme and it is thought that she has a mild traumatic brain injury. She was hospitalised in one form or another for just under two months.

24 Mrs Parsons, who is the victim of charge 7, was not injured physically but endured the awful experience of seeing her husband's life swept away before her eyes and was within a few feet of losing her own life.

25 The prosecutor tendered a number of victim impact statements. They were as follows:

David Hall - a work colleague of Anthony Parsons in the UK;

John Richard Scutt - a work colleague of Anthony Parsons in the UK;

Peter Gill - the brother in law of Anthony Parsons;

Maria Menelaou - The wife of Mario Menelaou, daughter of law of Ismini and Savvas Menelaou.

Menelaos Menelaou - the son of Ismini & Savvas Menelaou and nephew of Maria and Elias Mesaritis

Christina Mesaritis - the daughter of Maria and Elias Mesaritis and the niece of Ismini & Savvas Menelaou;

Dimitra Mesaritis - the daughter of Maria & Elias Mesaritis and niece of Ismini & Savvas Menelaou;

Effie Menelaou - the daughter-in-law of Ismini & Savvas Menelaou;

Jim Mitroklis - the son of Ismini & Savvas Menelaou;

Eleni Chrisostomou - the niece of Ismini & Savvas Menelaou;

Kiriakoula Batsis - the niece of Ismini & Savvas Menelaou;

George Panagiotou - the driver of a vehicle just ahead of the vehicle collided with; and

Michael J Kenny - a witness to the driving prior to the collision.

These documents, some of which were read to the Court by the prosecutor and some of which were read by others or by the individuals themselves, serve to remind all of us of the devastation that affects the surviving victims of a tragedy like this and the families of all the victims. The effect of this collision will be felt by those who survived it, their families and the families and friends of those who died, for the rest of their lives. Of course, nothing that happens in this Court can change the loss and suffering those people have felt and will continue to feel, but they have been heard. I have taken those victim impact statements into account in determining the sentence that should be imposed on you.

26 To the extent that this disaster can be linked to your use of methylamphetamine, the community should take careful note. To the extent to which this collision highlights the extreme danger of the use of this drug, the community likewise must take note. The drug known as "ice" and its effects now represent a significant social problem. It must be confronted by the community with an effective social strategy. Criminalising and punishing its manufacture and use is only a small part of the solution. People of your age and younger must be effectively persuaded of the risks in "ice" use. That drug is at the basis of far too much of the work of this Court and, I confidently predict, the work of the County Court and Magistrates' Court.**

**27 You are presently aged 30 years having been born on 26 January 1984. You are of Brazilian nationality. You have a 12 year old daughter in Brazil who resides with your parents and until this incident and your arrest you were supporting her financially. Your education was completed at the age of 18 years.

28 In 2006 and 2008, you travelled to Europe and, on the second of those trips, you met your Australian wife Katherine Hone in England. You were married in Brazil in 2010. You emigrated to Australia in April 2012 and your permanent resident status was finalised in October 2013. You have a second daughter, Isla, who was born on 4 November 2013. You have a brother who lives in Switzerland, and your parents reside in Brazil. Your employment in Australia includes working as a parking valet at a restaurant and factory work.

29 You now accept that you have a drug problem and were misusing them.

30 You have no criminal convictions although your driving history includes a traffic infringement notice on 18 June 2012 for exceeding the permitted concentration of alcohol. On that offence your blood alcohol concentration was between 0.07% and 0.099%. Accordingly, your licence was cancelled and you were disqualified from obtaining a licence for a period of 6 months. You were only to be re-licensed by order of a Magistrate.

31 Further, as part of that history, on 27 April 2013 at 8.27pm, a vehicle driven by you was detected by a speed camera in the Burnley Tunnel as travelling at a speed of 130 km/h. The alleged speed was 127 km/h. You were therefore 47 km/h over the speed limit of 80 km/h. As part of this sentence and by agreement I will deal with you for that offence. That offence occurred some 8 months before these matters but demonstrates that you were by no means averse to travelling at extremely high speed on public roads. Of course I cannot speculate whether you drove like that on other occasions when you were not detected, but this matter demonstrates a previous willingness by you to drive in an extremely dangerous manner. You were spoken to by police about that matter a few weeks later and whilst admitting you were the driver, you offered what could only be described as an inadequate excuse or explanation for your conduct.

32 On 5 June 2014, Professor James Ogloff prepared a report about you. He had spoken to you in custody on 5 May 2014 for some two and a half hours. From reading the report of Professor Ogloff, I am persuaded that you have genuine remorse for what occurred but you remain unable to explain why it occurred. Your lack of memory may be attributable to the effects of the trauma you caused. According to Professor Ogloff you did not have any pre-existing difficulties with your mental state such as a personality disorder or similar condition. You do not display any anti-social characteristics. You now have some signs of depression as a reaction to your circumstances.

33 On 12 May 2014, your parents wrote a letter addressed to me expressing the stress and trauma they feel as to what you have done. Your brother also wrote. Your parents express an understanding that you must be dealt with for these matters. Your wife also wrote to the Court describing the consequences of this case for her. Your father in law also wrote and described your acceptance of your circumstances and an intention to make the best you can of your time in custody.

34 On your behalf, it was properly conceded by Mr Dane that this was a very serious example of the offence of culpable driving and of the offences of negligently causing serious injury and reckless conduct endangering life.

35 The reason why your offending occurred in the way that it did was something that, on your instructions, Mr Dane could not tell me. You claim to have no memory of the events of 12 January 2014. To a degree Mr Dane sought to explain your conduct by your consumption of methylamphetamine. He noted that although the concentration of that drug in your blood was low, you have been a user of it and the low level may be consistent with a sustained period of use in the days prior to this collision. I am satisfied that your consumption of that drug was a contributing factor to your conduct but that your conduct was also entirely conscious and deliberate. That is the most aggravating feature of what you have done.

36 There is no question that you pleaded guilty to these charges at the earliest opportunity. That stands to your credit as an immediate acceptance by you of responsibility for what occurred. That has also alleviated the most difficult experience for family and friends of the victims in this case by expediting the process. There is of course a utilitarian value as well. From a reading of Professor Ogloff's report to which I earlier referred, I have little doubt that you have significant remorse for what you have done. Indeed, your lack of memory of the detail of the event is explicable by the traumatic effect that the collision had on you despite your lack of any serious injury.

37 You are still young and even after your release will have a significant portion of your life ahead of you. I have taken that into account. In all likelihood your prospects for rehabilitation are good providing that your use of drugs does not relapse. Professor Ogloff describes your prospects of offending in the future as low given your attitude and lack of offence history.

38 You are, as Mr Dane submitted, a foreign national in this country and no doubt you will find being in custody quite difficult for that reason alone. That custody will interfere with your ability to maintain relationships with your child in Brazil and your child here in Australia.

39 The driving you engaged in over a significant distance before the horrific collision at the intersection of Dandenong Road and Warrigal Road was perhaps an indication that something catastrophic was going to occur. It was inevitable that if you maintained that manner of driving along busy roads in a built up area, as you did, death and serious injury would result. You are not charged in relation to that part of the narrative but it is part of the background to the charges you do face and demonstrates why your offending is so culpable.

40 The three culpable driving charges were put by the Crown on the basis of recklessness under s 318(2)(b) of the Crimes Act 1958 (Vic), alleging that you consciously and unjustifiably disregarded a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from your driving.

41 Your actions on this night were not part of any momentary lapse of attention as sometimes occurs when a serious motor vehicle incident happens. This shocking collision occurred after the sustained period of driving at life threatening speeds that I have described. The collision occurred a little after 11.30pm on a January evening when you must have realised there would be people and vehicles containing people in the vicinity of this major intersection and the earlier roads on which you had travelled. That is a particularly aggravating feature of what you did. The law says that there are a number of factors which will aggravate the seriousness of a driving offence causing death or serious injury.[1] Many of them apply to you. Apart from the realisation that there would be people in the vicinity of your driving exposed to serious risk, the following are also relevant:**

Extent and nature of the injuries inflicted;
Number of people put at risk;
Degree of speed;
Degree of intoxication or of substance abuse;
Erratic [or aggressive] driving;
Length of the journey during which others were exposed to risk;
Ignoring of warnings; and
Degree of sleep deprivation.

**42 You were alone in the car. However, every time you entered an intersection against a red signal you were ignoring the warning implicit in that signal that if you did not stop there would likely be a serious collision. Indeed, the driving that caused these three deaths and seriously injured three people occurred when you entered the intersection at an absurdly high speed at least 18 seconds after the traffic control signal applicable to you on Dandenong Road had changed to red. The intersection with Warrigal Road is one of the busiest intersections in the Melbourne metropolitan area. It carries a high volume of traffic in multiple lanes. Your driving was bound to cause a catastrophe and it did. There is no explanation from you for what you did and I am left to consider whether your consumption of drugs is in some way an explanation for your conduct. I have no doubt that it contributed to your state of mind but you made a deliberate choice to drive like this over a significant distance.

43 The consequences of your actions were devastating. I respectfully agree with the prosecutor that each of these charges of culpable driving is at the upper end of the range of seriousness. I have, as I am required to, considered current sentencing practices in relation to the offences to which you have pleaded guilty. Each of them is a very serious example of the particular offence. In addition this is, of course, a case where general deterrence becomes very significant. The offence of culpable driving and the related offences are obviously very serious matters in that they involved, in the former case, the taking of life by your recklessness as well as, in the latter case, the infliction of serious injury on others and the endangerment of one other person. The community must understand that such conduct will bring substantial punishment and you, likewise, must be deterred from any repeat of this conduct.

44 This is, of course, a case where the legal principle of totality is significant. That requires me to impose on you a total effective sentence after aggregation of the sentences on each individual count that is just and appropriate for the total criminality involved in your actions.[2]

45 Looking at the totality of your conduct it is difficult to contemplate driving offences more serious than yours. You had been using methylamphetamine in the lead up to the driving. From your earlier conduct you appeared to be fatigued. However, your driving prior to the collision was over a distance of some 14 kilometres and was consistently extremely dangerous without any regard to the safety of other motorists or pedestrians. You travelled at extreme speed and in breach of several traffic control signals.

46 The reason why you drove your vehicle in the manner you did is connected with your earlier consumption of methylamphetamine coupled with your deliberate decision to drive in the way I have described.

47 I accept Mr Dane's submission on your behalf that your conduct was one course of impulsive and unplanned conduct. However, the entirety of that conduct lasted over a significant distance and was therefore extended and deliberate rather than momentary.

48 I take into account your relative youth, your reasonably good prospects for rehabilitation and the significant consequences of serving a substantial prison term in Australia for you and your family both here and in Brazil.

49 Pursuant to s 87P of the Sentencing Act 1991 (Vic), I note that each of charges 1-6 on the indictment are serious driving offences. Pursuant to s 89C(1) of the Sentencing Act, I do find that these offences were committed while you were under the influence of a drug, in particular methylamphetamine, and that that contributed to the offences.

50 Having considered the matters I have described, you are sentenced as follows:

On charge 1 - a charge of culpable driving causing the death of Anthony Parsons, you are sentenced to be imprisoned for a period of ten years;

On charge 2 - a charge of culpable driving causing the death of Savvas Menelaou, you are sentenced to be imprisoned for a period of ten years;

On charge 3 - a charge of culpable driving causing the death of Ismini Menelaou, you are sentenced to be imprisoned for a period of ten years;

On charge 4 - a charge of negligently driving a motor vehicle which caused serious injury to Menelaos Menelaou you are sentenced to be imprisoned for a period of 5 years;

On charge 5 - a charge of negligently driving a motor vehicle which caused serious injury to Elias Mesaritis you are sentenced to be imprisoned for a period 3 years;

On charge 6 - a charge of negligently driving a motor vehicle which caused serious injury to Maria Mesaritis you are sentenced to be imprisoned for a period of 4 years; and

On charge 7 - a charge of recklessly engaging in conduct that placed Susan Margaret Parsons in danger of death you are sentenced to be imprisoned for a period of 5 years.

I direct that eighteen months of the sentences on each of charges 2 and 3, 11 months of the sentence on charge 4, 6 months of the sentence on charge 5, 8 months of the sentence on charge 6, and 11 months of the sentence on charge 7 be served cumulatively with the sentence on charge 1.

That results in a total effective sentence of 16 years imprisonment. I direct that you serve a period of 11 years before you become eligible to apply for release on parole.

In addition, I direct that on each of charges 1 to 6, your licence to drive be cancelled from this day and you be disqualified from obtaining any such license for the balance of your non-parole period. I further direct that all such cancellations be served concurrently.

On the summary charge of exceeding the speed limit on 27 April 2013 you will be convicted and fined $1,000.00. On this charge any licence you hold is cancelled for a period of two years. That period of cancellation is to be served concurrently with the period specified on charges 1-6 on the indictment.

I have determined that your pre-sentence detention is a period of 248 days including this day and pursuant to s 18 of the Sentencing Act 1991 (Vic) I declare that such period is to be reckoned as a period of imprisonment already served under this sentence.

51 Pursuant to s 6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these offences, the sentence I would have imposed on you would have been a total effective sentence of 18 years with a minimum of 13 years to be served before you were eligible to apply for release on parole.**

[1] See DPP v Neethling [2009] VSCA 116.

[2] See Postilgione v R [1997] HCA 26; (1997) 189 CLR 295 and Pilgrim v The Queen [2014] VSCA191.

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