Director of Public Prosecutions v Gatelein

[2018] VCC 1736

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00389

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELISABETH GATELEIN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2018
DATE OF SENTENCE:	25 October 2018
CASE MAY BE CITED AS:	DPP v Gatelein
MEDIUM NEUTRAL CITATION:	[2018] VCC 1736

REASONS FOR SENTENCE
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Subject:

Catchwords:  Conduct endangering persons – negligently causing serious injury – intoxication – remorse – general deterrence – protection of the community – exceptional case of third-party circumstances – complex personal circumstances - mercy

Legislation Cited:
Cases Cited:  Markovic v R [2010] VSCA 105
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H Bate	Office of Public Prosecutions
For the Accused	Mr A Marshall	Peter Lunt Lawyers

HIS HONOUR:

1Elisabeth Anne Gatelein, you have pleaded guilty to one charge of conduct endangering persons, contrary to s.23 of the Crimes Act 1958. The maximum penalty for that offence is five years' imprisonment. You have also pleaded guilty to one charge of negligently causing serious injury, contrary to s.24 of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment.

2You pleaded guilty following a hand-up brief committal, and negotiations between your legal representatives and the prosecution.  Whilst your plea was not at the earliest opportunity, I nevertheless accept that it is evidence of remorse in your case and it has spared the community and witnesses the burden of a criminal trial.  I have taken your plea into account in your favour in mitigation of sentence.

3You have no prior convictions, subsequent convictions, or outstanding charges.

4A prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows –

5On 10 January 2017, at approximately 3 pm, you were driving your vehicle in Boneo Road, near Cape Schanck on the Mornington Peninsula.  Your seven-month-old daughter was in the vehicle with you.  Your driving was extremely erratic and exposed other road users to grave danger.  You were heavily intoxicated and also under the effect of anti-depressant medication.

6As a result of your driving, other road users were alarmed and persuaded you, using their horns and lights, to pull over.  You were obviously heavily intoxicated when they then observed you.  Those other road users then persuaded you to allow them to drive your car to your destination in Balnarring, approximately
20 km away.

7You arrived there at your parents-in-laws' home, and the persons who had intercepted you then departed.  After lunch, for reasons that escape me, your parents-in-law allowed you to drive home.  They must have been aware of your level of intoxication, as it was apparent to the other road users who had intercepted you.

8On the Nepean Highway in Dromana, at approximately 6.05 pm, you were again driving erratically and dangerously.  At the point where the highway becomes a single lane, you collided head on with a trade vehicle driven by Mr Raymond Cooper.  Photographs tendered in evidence during the course of the plea depict the severity of that impact.

9Mr Cooper suffered extensive injuries, requiring hospitalisation and surgery. 
As at October 2017, he had not been able to return to his work as a pool installer and mechanic.  I have not received a Victim Impact Statement from him, but no doubt, his injuries have caused him significant trauma.

10You too suffered extensive injuries and were hospitalised for two-and-a-half months. 

11A blood sample taken from you at 10 pm that day recorded your blood alcohol concentration as .235 per cent.  Expert evidence in the matter reveals that at the time of the collision, at about 6.05 pm, you already would have been at least .274 per cent, and when you were driving at 3 pm, your reading would have been approximately .3 per cent.  On any view, these are extremely high readings.

12You were interviewed by police on 1 May 2017 and have no recollection of the collision, the day in question, or how you came to be so heavily intoxicated.

13It is plain from this summary that your offending may be properly described as extremely serious, and it was fortunate that no-one was killed.

14General deterrence is a significant sentencing consideration in cases such as this, as is the protection of the community.  I must also denounce your dangerous and criminal driving.

15You were born in the United States of America on 6 February 1976, and are now aged 42.  You migrated to Australia with your partner after having met him in the United States in 2015 so you could be near his aging and unwell parents, the parents you visited in Balnarring on the day in question.

16You have one child, Elanora, who was born on 31 May 2016.  She is now aged two years and approximately six months.  She suffers from Aicardi syndrome, an extremely rare neurological disorder.  Tragically, this means that her life expectancy is somewhere between 8 years and 18 years.  She requires continual treatment and support, and no doubt poses continual challenges to you.

17It is accepted by the Director of Public Prosecutions in your case that this is an exceptional case of third-party circumstances, namely the circumstances of your daughter.  Accordingly, the principles set out by the Court of Appeal in Markovic v R [2010] VSCA 105, are engaged in your case.

18Your disabled daughter is dependent upon you, and her life expectancy is relatively short.  For that reason, mercy is engaged in your case by reference to the principles I have referred to. 

19I also accept that imprisonment would have a profoundly traumatic effect upon you by reason of the separation from your daughter.

20Your personal circumstances are also complex.  The evidence discloses that you suffer from ongoing alcohol dependency and you require ongoing treatment for this.  You also suffer from post-trauma epilepsy and require medication for it, following physical attacks upon you some years ago in the United States.

21You have the support of your partner.  However, he is employed as a chef at the Flinders Hotel and works irregular hours.  The carer provided by the TAC assists you with your daughter during the day, but not in the evening.

22I have received in evidence a medical report from your treating general practitioner, who expresses the following opinion:

"In summary, from my medical point of view, and if we momentarily ignore the alleged culpability of Elisabeth's accident, I can honestly say that Elisabeth has had the most complicated medical, surgical and social issues of any of my thousands of patients in the past few years.  I make this statement aware of its gravity.  I cannot think of another person who has done it tougher.  For her to recover whilst trying to care for a severely disabled child is again testament to her strength and ability."

23I have also received in evidence a body of character material that speaks highly of you, and two psychological reports that disclose that you have undertaken psychological treatment to address your underlying trauma and causes of your alcohol dependency.

24I have no doubt that yours is an exceptional case, apart from the circumstances surrounding your daughter, and in my opinion the purposes for which this sentence is to be imposed ought be met by the imposition of a Community Correction Order. 

25I have had you assessed by Corrections Victoria for that purpose, and I have received in evidence from them a report disclosing that you are suitable for such an order.

26In a result, the sentence of the court is as follows.

27On the two charges before the court, you are convicted and released on a Community Correction Order for a period of two years on the usual core conditions.

28I further order the following special conditions:  that for the period of the order, you be under the supervision of a corrections officer, and you undertake treatment and rehabilitation in respect of alcohol dependency.

29I further direct that you appear at this court on 26 February 2019 at 9.30 in the morning for judicial monitoring.

30Do you agree to enter an order in those terms?

31OFFENDER:  Yes, I do, Your Honour.

32All licenses held by you are cancelled, and you are disqualified from obtaining a driver's license in the state of Victoria for a period of two years.

33But for your plea of guilty, I would have imposed a Community Correction Order for a period of three years.

34I do not propose to make a forensic sample order in the circumstances of this case.  You are a mature woman with no criminal history, and in my opinion, it is not in the interests of justice for me to do so.

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