Director of Public Prosecutions v Kellalea

[2023] VCC 47

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 22-01214

DIRECTOR OF PUBLIC PROSECUTIONS

v

MONICA KELLALEA

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	25 January 2023
CASE MAY BE CITED AS:	DPP v Kellalea
MEDIUM NEUTRAL CITATION:	[2023] VCC 47

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. MacDougall
For the Accused	Ms E. Clark

HIS HONOUR: 

1Monica Kellalea, you have pleaded guilty to one charge of culpable driving causing death.  That crime carries a maximum penalty of 20 years' imprisonment.  You are now 38 years of age.  You pleaded guilty at the earliest reasonable opportunity and indeed, as best as you could, made full admissions to police. 

2This is a situation where I have no doubt that your plea of guilty is accompanied by appropriate remorse and you must also of course get the utilitarian benefit of that plea of guilty. 

3In these times of Worboyes and the workload on the court, such pleas are to be encouraged and you must get a visible benefit for that.  Also in your particular situation, I am well aware of trials such as this, where the allegation is one of amphetamine or methamphetamine use.  That can be very difficult to prove.  You could have chanced your arm and tried to get a dangerous driving causing death out of this which carries a much lesser penalty.  That would have put the family and the friends through an absolutely worthless trial from their point of view, for you to gain a relatively small advantage.  I do regard your plea of guilty as being more valuable where you have declined that opportunity, pleaded guilty and saved the family and friends from that experience.  A summary of the offending, and it will be done in very short compass, is this. 

4At about 4.55 pm on 6 February 2022, you being under the influence of a drug to such an extent as to be incapable of having proper control of a motor vehicle, that being methamphetamine, amphetamine - which I am assuming is metabolised methamphetamine - and GHB, drove your car across the Melba Highway at Murrindindi into the path of an oncoming car.  In doing so, you caused the death of the other car's driver, Melinda Gordon-Addison. 

5You were 37 years old at the time and lived at your home in Healesville with your two children aged 11 and eight. 

6Melinda Gordon-Addison was 57 years old when she died and she was married to Simon Addison.  They had been together for 32 years and married for 28.  They have two sons, Jesse and Kyle, and she was an avid dancer since childhood.  I have read the victim impact statements and I will be referring to that again in a moment. 

7She and her husband had been to a meeting with other Triumph motorcycle enthusiasts and were coming home.  A Mr John Barta was driving and he saw your white hatchback.  He describes your car as drifting, but later stated it moved rapidly over the double white lines to be partially on his side of the road.  He estimated your car was about 30 centimetres over the white line, and indeed, that was supported by the examination done by the Major Accident people later on.

8In response, he braked and steered to the left side of the road.  His van shook and he heard your car drive past.  The driver's side mirror of your car scraped his van leaving a thin white mark.  Behind him, was a Bevan Roodenburg who was driving a Ford Territory.  He had been away for the weekend.  He saw your car drift across into the southbound lane, and made a comment to the other person in the car.  He expected you to correct, but you kept coming.  He saw your car cross the middle of the road, possibly clipping - even though it did clip - Mr Barta's van and continue straight into the path of the deceased lady. 

9I am not going to go into the minutiae of what happened in the seconds before or anything like that.  It is a situation where clearly, as a result of your methamphetamine use, and I will give the details of that in a moment, you have either lost consciousness or become extremely confused.  It is interesting that when these matters involve amphetamine, I think virtually everyone that I have ever had to deal with involved the accused's vehicle being on the wrong side of the road.  Statistically, that is the case.  Scientifically, as I understand it, that is very difficult to prove. 

10After the incident, a blood sample was taken from you.  It was later analysed, showed readings of about 0.84 milligram per litre  of methamphetamine and 0.13 milligram per litre of amphetamine which as I say, I think is probably metabolised methamphetamine, and 13 milligrams of GHB.  I am not going to go through the detail of all that.  Amphetamine is a stimulant, GHB is a sedative and the combination is obviously not a very good one. 

11But in any event, your vehicle struck hers, there was an enormous explosion, it was described as in the Crown opening. As Mr Roodenburg was actually an ICU specialist, an Emergency Specialist doctor, he was unable to do anything to help her.  Mr Barta approached the car and as I understand from the victim impact statements, he was a very, very good friend of Mrs Gordon-Addison and he was talking to her, trying to comfort her, trying to reassure her and he called Mr Addison.  He had the sense or wherewithal, that fearful of the fire, he pulled out the relays and fuses of the car to try and prevent that.  Another person got a rope tying it to the car to prevent it from slipping down the embankment.  Mrs Gordon-Addison was clearly in a very distressed, if not passed away, state at that point in time.  The actions of Mr Barta in my view were extremely courageous.  I do not know if the informant is listening to this, but if there is any sort of public commendation that be given to him for the way he conducted himself through what must have been a dreadful, dreadful experience, I personally think he should be recommended for it.  But in any event, that is just my view.

12Mr Addison arrived at the scene and saw his wife, and I will be reading a tiny bit of his victim impacts later on.  She was deceased.  You were removed from the car, you were treated for injuries that included fractured ribs, vertebrae, a broken femur, fractured pelvis and ruptured bowel.  About a week and a half later, you were transferred to Epworth for further treatment and rehabilitation and you remained there till March of 2022. 

13In this particular situation, there is clearly a significant degree of extra-curial punishment that was indicated during the course of the plea.  One has to be very careful about that because it is indeed self-inflicted.  I do take it into account but am aware of the limitations that are placed upon it.

14You have no, as I understand it, driving prior convictions.  You were on a community corrections order which you had been placed upon by me, for drug-related offending and really the prior conviction confirms your drug use and I will be dealing with that again shortly. 

15It was pointed out very properly by your counsel that there was no evidence of speed beforehand, and there is very little evidence of any of what your car was doing and what must have been, on your counsel's view, about 10 to 15 minutes on the road before the collision took place.  Accordingly, there is no evidence either way as to the level of control you had over the vehicle but I must sentence you simply for being, if I can put it that way, simply for being very much under the influence of amphetamine and whatever came about, the consequences were dreadful indeed. 

16I discussed with Mr Addison about the victim impact statement and I make it very clear that there are eight before me and I have read them all again.  They are a very eloquent and very powerful summary of why general deterrence has to play such a large part in sentencing for this sort of crime.  Specific deterrence, in your situation, I think is of limited purpose.  Denunciation is important and so is punishment.

17I will read briefly from, as I said, the victim impact statement of Mr Addison, and I will be annexing it or incorporating it, actually within my sentencing remarks.  I have made it clear to him, on a personal level, that I will be unable to read portions of because I do not - I think I would become distressed and just embarrass everybody. 

18But all those victim impact statements speak of a very much loved, very lively, very active country woman.  She was involved in the CFA, very much involved in her community, very much involved in dancing.  Clearly, a real contributor to her community and a life-long and very, very dear partner to her husband. 

19Every one of those victim impact statements is done in a very sensible way.  I can say this, that having unfortunately sat in this chair and had to deal with many of these over the years, it is on a very few occasions that you get such quality victim impact statements that do not, in some way or other, seek revenge.  It is a very difficult thing to do and I understand that.  Not one person here has done anything other than describe what a beautiful person she was and how much the loss means to them.  That fact in itself and the quality of the people who made those victim impact statements reassures me about the quality of the lady who has passed away because of your driving.

20I will simply, for those who regard these in some sort of objective way, look at the just one portion of the victim impact statement of Mr Addison and I think this - if I can get through this bit - just indicates to anybody who is treating these in some sort of intellectual way, just what the absolute devastation of it is. 

21Sitting in the country, as I usually do, I had a number of situations where the first person on the scene is a relative, or someone very well known to the deceased, and particularly in the country - it does not happen in the city very often - and particularly in country areas, it is just a devastating result, not only for the people immediately involved, but usually for the entire community as is clearly indicated by the victim impact statements here.

22After Mr Barta had rung Mr Addison, and as he says, had to tell him that she was ill, not dead, as she really was, Mr Addison went to the scene.  The victim impact statement says, 'John', that is Mr Barta:

'John tried to stop me but hell on earth wouldn't have stopped me going to my Min.  The police allowed me to see Min after I explained I had to see her and say goodbye.  How do you say goodbye to the love of your life.  I sat on the side of the road opposite her car for a bit, just looking and trying to comprehend the scene, what was happening, and figure out from the carnage on the road, what happened.  I walked over to Min's car, the car was slightly down an embankment and I found my Min hanging halfway out of the car.  I held her hand, talked to her and told her I loved her, I was going to have to say goodbye.  God, that was hard, looking into her open, staring eyes that were open looking at me, who I'd never see them again, those sparkling, smiling, beautiful eyes, grey in colour, like mine, looked so stark and emotionless when I saw her lying in the car, motionless.'

23Anyone who thinks that culpable driving is just a statistic has no life experience.  That experience that Mr Addison went through and that Mr Barta went through, are, and I will say this openly, incomprehensible to me.  I think only someone who has experienced it, could really understand the depth of despair and the depths of sadness and the sense of loss that such a scene and such a result causes. 

24The situation is, as I indicated, it is serious offending.  I am well aware it is a standard sentencing matter and I will deal with that again in a moment.  A lot of the aggravating features that are sometimes present are not there, as Ms Clark clearly pointed out, and for reasons I think are adequately explained in the overall reasoning, I have taken that into account. 

25I am aware that the standard sentence in this matter is eight years.  I take that into account as one of the factors relevant in the sentencing.  I take into account previous sentences imposed for culpable driving but only after the standard sentence regime came into effect.  I will be stating my reasons for imposing the sentence.  I am referring to - already referred to the standard sentence for the offence, and I am not prepared in this situation, to make these quantifications.  It appears to require judges to say what range, if you like, such a thing falls into.  I have seen worse and I have seen not as bad, but I am not prepared in this situation, I just - the sentence that I will ultimately impose will be slightly less than the standard sentence, but I am not going to sit here and tell Mr Addison where his life-long partner's death fits on a scale.  That is not going to happen. 

26Anyway, I have read all the principles in Brown.  I have taken them all into account and I am sure counsel what I am saying about that and I have taken into account the submissions of each counsel in that regard.  I then look to matters personal in determining what has to be a sentence with a head sentence and a minimum term.  I sentenced you on a previous occasion and I think I can do this in fairly short compass. 

27You have no prior convictions for driving or anything along those lines but unfortunately that is often the case.  Yours is a very difficult situation to deal with as it was last time.  You had an unremarkable life until your early 30s.  You went to school, you were working.  You have always worked and had a good - and very good actually - work record. 

28When you were in your early 30s, you began a series of relationships which clearly were not of benefit to you.  The person that you would be in a relationship with would be using drugs and, as I understand it, and I do not propose to take that any further. 

29You, clearly, at the age of 32, having used cannabis as a kid, but at the age of 32 started using amphetamine and ice and the heavier drugs and you developed a physical addiction that accelerated in severity.  It was dominating your life and that was what was occurring at the time that I sentenced you previously.  You were having episodes of psychosis and other psychological problems and you were using drugs to such an extent that it was causing financial difficulties. 

30When that matter came up - I am well aware of the two children.  I am also well aware of the fact that the sentence I impose will have you kept away from your children for an extended period of time.  And to a mother who does love her children, I have no reason to doubt that, that is a punishment in itself and will make gaol harder for you. 

31But in any event, when you were brought before me last time, you had been making really significant efforts.  You had been with the CISP program on bail.  There had been an extension of that because you were doing very well.  You had managed to by and large avoid the use of drugs.  But since you had been arrested on those matters that I sentenced you for, you have got the assistance of a psychologist.  You were attending regularly through 2020 and 2021.  Your level of functioning was starting to improve. 

32However, at that time, it was said that your recovery from drug use remained at an early stage.  And I was told the treatment reverse risk is significant and is to be avoided if it can be. 

33Verdins did not play a part in all that but in the end, I was persuaded that it was a situation where you were doing well and to incarcerate you would have served no useful purpose.  In any event, as your counsel eloquently explained to me, once that had occurred and you were placed on a community corrections order with some 300 hours of community work, you had been building yourself up for that sentence.  You have been trying to prepare yourself in case you had to go to gaol.  And then after the sentence was imposed, effectively, you dropped your bundle and started using again.  I said at that time, the prospect of your rehabilitation were encouraging.  That has not proved correct but it is what happens sometimes.  But in any event, you lapsed back into the drug use and that drug use in the situation of you driving the vehicle whilst intoxicated has cost a woman her life and a community one of their dearest members.

34In gaol, you have to your credit done well, if such a description exists.  You have been doing courses.  There is a reference put in on your behalf from a Ms Hela Burton who is located at Dame Phyllis Frost.  She says that she has been talking to you.  You have met on a fortnightly basis for counselling support.  You are working within the prison.  She said you have been consistently and actively engaged in the counselling process and that finally you started to share many painful and traumatic experiences from your early years as an adult. 

35You seem to be in some ways at least opening up and that hopefully is of benefit to you.  She points out, and I accept this, that it is a significant grief that you have been unable to see your children.  I take into account that the injuries that you suffered will make gaol harder for you.  There is nothing there that cannot be treated in a gaol.  But you still have pain.  You are still waiting for a further operation.  The medical treatment that you had has been substantial and I do take all those matters into account. 

36The prospects of your rehabilitation - I have really no idea.  That will be a matter between you and the parole board.  I think the risk of you reoffending in this way is utterly dependent upon whether you can cease the use of drugs.  I had taken the view last time that you had progressed very much in that respect after some 20 months in the community and that apparently was not so.  The situation is that I would have thought if you can keep off drugs with no convictions until your mid-30s that you should be able to do so.  That the fact of the matter is that you cannot drive a motor vehicle under any circumstances when you know that you are affected by drugs to this extent.  The community will not tolerate it and general deterrence demands that there be a significant penalty. 

37Insofar as the standard sentence is concerned, as is well aware that it does not interfere with my instinctive synthesis.  Yours is a situation where the actual sentence I impose will be less than the standard sentence. 

38But pursuant to s6AAA, I indicate very clearly that had you not pleaded guilty, had you not had these - the genuine remorse, the sentence would have been in excess of the standard sentence.  I am not aware of any authority which says you are taking standard sentences on a plea of guilty or after a trial.  So this matter traverses the range in that sense. 

39It seems to me that a significant part of the sentencing process is that it has made me reduce or it has caused me to reduce the sentence by some degree is that you did not fight this out and try and get yourself a dangerous drive causing death.  As I have said, I accept totally you were - you expressed remorse to police.  I have read the letter that you have sent to me or through your counsel as I am sure both sides have.  Your remorse and your genuine, I think, understanding of what you have done to these people.  You have at least stopped the process at an early stage where they would not have known what was going to happen and would have had to sit through a trial and would have had to relive it all, would have had to hear all the dreadful details over and over again.  I think in a situation such as this that deserves recognition.  And I take into account all the other matters that I am required to under the Sentencing Act and the common law. 

40Accordingly, on the charge of culpable driving, you are sentenced to be imprisoned for a period of seven years.  I direct that you serve four and a half years before becoming eligible for parole and that will be a matter between you and the parole board and will depend entirely I think on your capacity to indicate that you are not going to use drugs. 

41Just so there is no mistake about what would have happened had you pleaded guilty and been found guilty; but for that plea of guilty, I would have sentenced you to be imprisoned for a period of 11 years with a minimum term of seven. 

42Any licence for driving a motor vehicle is disqualified - sorry, any licence for driving a motor vehicle is cancelled and you are disqualified from obtaining a driver's licence for a period of two years.  Obviously, there will be a much longer period than that before you are able reapply for a licence, and it being a crime which is on the basis of alcohol, there are various factors that are taken into account when that application is made. 

43As it is already said, I am well aware of your not being able to see the children.  Fortunately, you are in a situation where there is good extended family that can look after them.  I am assuming DHS have not become involved.  So that ameliorates that to a certain extent.  But at the end of the day, there is no choice but to give a sentence of that significance for reasons of general deterrence.  Are there any other orders I need to make, Miss MacDougall?

44MISS MacDOUGALL:  I beg your pardon, Your Honour.

45HIS HONOUR:  Any other orders I need to make?

46MISS MacDOUGALL:  Your Honour, declaration of pre-sentence detention.

47HIS HONOUR:  Sorry, yes.

48MISS MacDOUGALL:  I understand that is 281 days.

49HIS HONOUR:  No, no, thank you for that.  Two hundred and?

50MISS MacDOUGALL:  I believe it is 281 days.

51HIS HONOUR:  It is 282 today and there was also - there is one day from the - one day from the other matter.  So I will make it 283.

52MISS MacDOUGALL:  If it please the court.

53HIS HONOUR:  I direct ‑ ‑ ‑ 

54MS CLARK:  Your Honour, it was 280 yesterday so 281 today.

55HIS HONOUR:  All right.  But I will give an extra day for what happened on the previous one which gives you 282.

56MS CLARK:  As Your Honour pleases.

57HIS HONOUR:  Otherwise that is wasted.  So I direct that 282 days be reckoned as having been served under this sentence.

58MISS MacDOUGALL:  I am indebted to my learned friend.

59HIS HONOUR:  Yes, there is no other orders I need to make, Ms Clark?

60MS CLARK:  No, Your Honour.  

61HIS HONOUR:  No, all right.  Thank you for the considerate way in which you have conducted this.  It is appreciated.

62MISS MacDOUGALL:  And Your Honour, I believe there was a disposal order sought.

63HIS HONOUR:  Yes, I think that was given consent to.  I will sign it out the back.  Just send it ‑ ‑ ‑ 

64MISS MacDOUGALL:  If it please the court.

65HIS HONOUR:  We went through that yesterday, did we not?

66MS CLARK:  Yes, not opposed, Your Honour.

67HIS HONOUR:  Yes, when I get them I will sign them. 

68MISS MacDOUGALL:  Thank you, Your Honour. 

69HIS HONOUR:  Yes, all right. 

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