Director of Public Prosecutions v Gatens
[2022] VCC 484
•11 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARY GATENS |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 April 2022 | |
DATE OF SENTENCE: | 11 April 2022 | |
CASE MAY BE CITED AS: | DPP v Gatens | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 484 | |
REASONS FOR SENTENCE
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Subject: Dangerous driving whilst being pursued by police, recklessly exposing an emergency worker to risk by driving.
Sentence: 6 months imprisonment, 3 years Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Malik | |
| For the Accused | Mr P. Gordon |
HIS HONOUR:
1 Zachary Gatens, you have pleaded guilty to three charges contained in indictment L10786962, together with three related summary charges.
2 Dealing with the indictable charges, these all relate to offending by you on
27 March 2020.
3 Charge 1 is a charge of dangerous driving whilst being pursued by police. The maximum penalty for this offence is imprisonment for three years.
4 Charges 2 and 3 are each charges of recklessly exposing an emergency worker to risk by driving. The maximum penalty for each of these offences is imprisonment for 10 years.
5 Summary Charge 7 is a charge of driving a motor vehicle in an dangerous manner. The maximum penalty for this offence is imprisonment for two years and/or a fine of 240 penalty units.
6 Summary Charge 9 is a charge of failing to stop a motor vehicle after an accident where property was damaged. For a first offence, the maximum penalty is 14 days' imprisonment or a fine of five penalty units.
7 Finally, Summary Charge 10 is a charge of driving whilst unlicensed. The maximum penalty for this offence is a fine of 60 penalty units or imprisonment for six months.
8 As you can see from the maximum penalties prescribed by the Parliament, it regards offending of this kind seriously. In passing sentence I must have regard to the maximum penalties as one factor in arriving at an appropriate sentence.
9 When you pleaded guilty you also admitted prior convictions from four previous court appearances in the Magistrates' Court between 2012 and 2016. Some of those prior convictions are for offences of violence. I was also provided with details from VicRoads of your driving history. In 2019, you were dealt with in the Colac Magistrates' Court for exceeding 100 kph and driving whilst disqualified. In 2018, you received an infringement for driving with a blood alcohol content exceeding .05. In 2014 and 2015, again in the Colac Magistrates’ Court you were dealt with on three charges of driving whilst licence suspended. In June 2014, you were dealt with for driving a motor vehicle in excess of the 80 kph speed limit by driving at more than 45 kph over that speed limit.
10 You have a very poor driving record. One that bespeaks very little regard for the road laws. Your poor driving record and prior convictions are relevant factors in the sentencing of you, because the sentence imposed needs to have regard to specific deterrence.
11 The circumstances of your offending are summarised in a summary of prosecution opening dated 19 September 2021. That document was read to the court by the prosecutor Mr Malik. Your counsel Mr Gordon accepted that the prosecution summary was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you. In those circumstances it is not necessary that I here set out in detail, all of the facts but do so only in an abbreviated way.
12 These sentencing remarks should, however, be read with what is set out in more detail in the summary.
13 At about 5.00 pm on the day of offending, you were pulled over by police whilst driving your car in Colac. A breath test showed you had alcohol in your blood and you were driving without a licence. You were released to be charged on summons.
14 Later that evening police observed a red Holden Utility identical to the one you were driving earlier in the day. The vehicle was being driven at a fast rate of speed. Because of the way the vehicle was being driven, police accelerated the vehicle they were in to attempt to obtain the registration of your vehicle. You continued to accelerate away and over steer. Police activated the police lights and siren but you continued to drive away at a fast rate of speed.
15 When you drove over the railway tracks on Cants Road in Colac your vehicle became airborne and you appeared to momentarily lose control of it. Police at that point terminated their pursuit. Police continued to watch your vehicle as you drove away and you turned your tail lights on and off. This was presumably to try to avoid detection.
16 In attempting to obtain the registration of your vehicle, police incorrectly recorded the sequence of your registration as RZJ 031 instead of RJZ 031 which had been recorded by the police earlier in the day.
17 A little while later in the evening, police were patrolling in Elliminyt when they again observed your vehicle. Police took up a position behind you where they observed you turn off the lights to your vehicle and you indicated to turn right, but instead you turned left at speed and you drifted onto Harris Road. Police activated lights and siren to again attempt to intercept you. You turned left onto Queen St at speed, and you were seen to lose control of your vehicle and when you attempted to correct the position of the vehicle you oversteered it and then understeered it whilst directly in front of the police vehicle. The police were able to observe you and your physical features and what you were wearing. (Charge 1, dangerous driving whilst being pursued by police).
18 Police drove the police vehicle to intentionally collide with your vehicle to prevent you driving any further. The collision resulted in your vehicle spinning 45 degrees and it travelled backwards and became momentarily bogged. Police exited their vehicle and when approaching you in your vehicle, you regained traction and travelled directly towards the police vehicle and you collided with it trapping one of the police officers torso and legs between the police vehicle and the driver’s door of your vehicle. (Charges 2 & 3, reckless exposure of police officer to risk by driving).
19 You then continued to drive away at speed. You were observed to lose control and spin 180 degrees before stalling with the rear tyres on the adjoining nature strip. Police ran towards your vehicle in an attempt to arrest you, but you managed to re-start your vehicle and drive off at a fast rate of speed. At that point police abandoned attempts to arrest you. (Summary Charge 7, dangerous driving. Summary Charge 9, failing to stop after an accident).
20 Police later correctly verified the registration of your vehicle and checks showed you were again unlicensed to drive. (Summary Charge 10, unlicensed driving).
21 This is clearly serious offending of this kind for which your moral culpability is high. By driving away from police at fast rates of speed and at times losing control of your vehicle, you placed not only yourself but also other road users, especially the pursuing police in danger. Although there is no suggestion here that other roads users were directly affected by your driving, the risk to other road users is always high. You were clearly intent on getting away from the police even when they were clearly pursuing you and when you were cornered. As I said on the plea, the job of being a police officer dealing with members of the public is always a difficult one. They should not have to put up with drivers like you who recklessly place their lives and safety in danger by use of a motor vehicle. Your history shows you are prepared to drive in complete disregard for the law.
22 Clearly the sentencing principles of deterrence both general and specific, denunciation and protection of the public and just punishment have to be fully taken into account in sentencing you. The sentence needs to send a clear message to others that might behave as you have whilst driving a vehicle, that if they do so, they will likely go to prison. I must also take into account all of the matters in mitigation advanced on your behalf, and your prospects for rehabilitation.
23 You were arrested and interviewed on 29 March 2020. You were generally cooperative with police and made a number of admissions. When asked your reason for offending you said 'stupidity' and 'alcohol', 'scared' and 'adrenaline'.
24 You have pleaded guilty to the charges. Although you did not indicate that you would plead guilty at the earliest opportunity but after committal, I nevertheless treat you for sentencing purposes as having pleaded guilty to the charges at the earliest opportunity.
25 By pleading guilty you have saved the time and costs of a trial.
26 Your pleas of guilty to the charges are especially important in the present environment where this court is faced with a considerable backlog in criminal trials because of the COVID-19 pandemic. By pleading guilty you have not contributed to that backlog and you are entitled to a significant reduction in sentence for having done so.
27 By pleading guilty to each of the charges, you have accepted responsibility for your offending and you have advanced the administration of justice. For that you are entitled to, and will receive, a reduction in sentence, and this will be reflected in the overall sentence of each of you that I will soon impose. Your pleas of guilty also signify remorse for this offending which I have taken into account.
28 You were released on bail on the 30 March 2020 and you have served three (3) days in custody by way of pre-sentence detention.
29 Your counsel Mr Gordon, filed with the court an outline of his submissions in writing. He conceded at the outset that this offending involved you in a dangerous and serious incident with police. He accepted that the sentencing principles that I have set out above apply in the sentencing of you.
30 He submitted that all of the sentencing principles could be achieved in this case by not sending you to prison but by the imposition of a community corrections order with both punitive and therapeutic conditions.
31 The prosecution submitted that because of the seriousness of your offending, the appropriate range of sentencing required a disposition with an immediate term of imprisonment imposed.
32 I have concluded that the purposes of sentencing in this case can only be achieved by the making of a combination sentence, that is by imposing an immediate short term of imprisonment and making a community corrections order with therapeutic conditions designed to assist you to rehabilitate yourself.
33 You were aged 26 at the time of offending and you are now aged 28 years. You are still relatively young. You have pleaded guilty at the earliest opportunity and in the midst of the COVID pandemic, and you have not before been to prison. You have good family support and you have not reoffended, it being now more than two years after this offending. You have been on strict bail conditions, all of which I have taken into account.
34 Provided you receive proper counselling for drugs and alcohol I think your prospects for rehabilitation are reasonable. I accept that you have had this matter hanging over your head for more than two years and that this has been a burden to you and that you have had time to reflect on what you did.
35 I received in evidence a very good letter from your mother who told me that you are remorseful for your conduct and I accept that you are (Exhibit 2). I also received a letter from Benjamin Hall for whom you have worked as a concreter (Exhibit 4). Mr Hall speaks very favourably of you.
36 You were born and raised in Colac and attended schools locally. After leaving school you completed a certificate in construction, and later a certificate in agriculture and concreting. You are now in full time work as a concreter but plan to also complete a certificate in barbering. You are in a committed relationship of five years standing.
37 I have acknowledged above the value of your guilty pleas. Your counsel submitted that your pleas have particular value in this case because without them the police would have had difficulty proving your identity. For the reasons expressed by me on the plea, whilst I understand the way in which that submission is put I do not place any weight on it. The police would easily have identified you as the offender. Had you gone to trial on that issue, a jury would have easily convicted you.
38 You have had difficulties with the use of drugs and alcohol. In 2019, you sought treatment at Habitat Therapeutic near Geelong where you were admitted to a 90 day treatment program. You completed the program but relapsed upon release (Exhibit 3).
39 I was told and accept that since this offending you have continued to participate in Narcotics and Alcoholics Anonymous. I was told you are presently drug free.
40 Mr Gordon correctly submitted that a court must satisfy itself that no other sentence is appropriate before imposing a term of imprisonment. This is known as the principle of parsimony. He submitted that because you are still relatively young and because you are trying to rid yourself of drugs that the making of a community corrections order with punitive and therapeutic conditions is a better sentencing disposition here instead of sending you to prison.
41 As I have said, I will impose a combination sentence. Your offending is far too serious, and your prior convictions for similar driving offences are far too relevant, as to not send you to prison. I think a term of imprisonment must be imposed here to properly address the sentencing principles of general and specific deterrence.
42 I have had you assessed for the making of a community corrections order and you have been assessed as being of high risk of reoffending but as suitable for the making of such an order.
43 On Charge 1, dangerous driving while pursued by police, you are convicted and sentenced to a term of imprisonment of three (3) months.
44 On each of Charges 2 and 3, dangerous driving while pursued by police, you are convicted and sentenced to a term of imprisonment of six (6) months.
45 On Summary Charge 7, dangerous driving, you are convicted and sentenced to a term of imprisonment of three (3) months.
46 On Summary Charge 9, failing to stop after an accident, you are convicted and sentenced to a term of imprisonment of seven (7) days.
47 On Summary Charge 10, unlicensed driving, you are convicted and sentenced to a term of imprisonment of three (3) months.
48 This makes a total effective sentence of six (6) months, imprisonment.
49 In addition on each of Charges 1, 2 and 3 in the indictment, I make a community corrections order with conviction for a period of two (2) years with the following conditions and to commence upon your release from prison, that you undergo programs for treatment and rehabilitation from drugs; that you undergo programs for treatment and rehabilitation from alcohol; that you undergo programs for treatment and rehabilitation for your mental health; that you undergo programs to reduce reoffending; that you undergo supervision from Corrections.
50 For the purposes of s6AAA of the Sentencing Act 1991, had you not pleaded guilty to the charges I would have imposed a total effective sentence of two and a half years' imprisonment, and I would have fixed a minimum term of twenty months' imprisonment before which you would have been eligible for release on parole.
51 I declare that there has been three days pre-sentence detention already served of the sentences passed this day and I direct that three days be reckoned as having been served, be entered into the records of the court and be deducted administratively.
52 The offences in Charges 2 and 3 are serious motor vehicle offences within s89 of the Sentencing Act 1991. Any licence you hold to drive a motor vehicle is cancelled, and you are disqualified from holding a licence to drive a motor vehicle for a period of two (2) years.
53 HIS HONOUR: Now, Mr Gatens, the effect of all that is, that you'll be commenced to serve a term of imprisonment today for a period of six months. And then upon your release, you'll be released on a community corrections order with those conditions, that I've just read out. Now, I can only make that order if you agree to undergo the community corrections order, do you agree to do so?
54 OFFENDER: Yes, I do, Your Honour.
55 HIS HONOUR: Very well. Mr Gordon, could you approach your client and have him sign the community corrections order please?
56 MR GORDON: Of course, Your Honour. Thank you.
57 HIS HONOUR: Mr Gordon, do you have any questions arising out of those sentencing remarks?
58 MR GORDON: No, Your Honour.
59 HIS HONOUR: Mr Malik?
60 MR MALIK: No, Your Honour, thank you.
61 HIS HONOUR: Very well, would you take Mr Gatens into custody, please. Adjourn the court.
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