Director of Public Prosecutions v Duff
[2025] VCC 599
•14 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-01585
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v SILIVA DUFF |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 May 2025 | |
DATE OF SENTENCE: | 14 May 2025 | |
CASE MAY BE CITED AS: | DPP v Duff | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 599 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentence
Catchwords: Culpable driving by gross negligence. Plea of guilty after case conference and sentence indication. Plea in circumstances where arguable defence to charge. Mid-range example of offence. Standard sentence. Comparable cases. Serious victim impact. Offender with background of deprivation, trauma, substance abuse and prior criminal history. Guarded prospects for reform. Limited application of Verdins. Application of Bugmy.
Legislation Cited: Crimes Act1958, Criminal Procedure Act 2008, Sentencing Act1991, Road Safety Act1986
Cases Cited:R v Whyte (2022) NSWLR 252, R v Stephens [2016] VSCA 121, Weineger v R [2003] HCA 14, McGrath v The Queen [2018] VSCA 134 DPP v Borg [2016] VSCA 53, R v Musumeci, unreported NSW CCA. , DPP v Neethling [2009] VSCA 116, Brown v The Queen [2019] VSCA 286, Karam [2024] VSCA 164, R v Pajic (2009) 23 VR 527, Marrah [2014] VSCA 119, Bugmy [2013] HCA 37, Verdins (2007) 16 VR 269, Hennessey v The King [2024] VSCA 2, Victorsen v The Queen [2020] VSCA 248, Phongthaihong v The Queen [2021] VSCA 317, Rakatau v The Queen [2021] VSCA 76, DPP v Tate [2021] VCC 22, DPP v Grayden [2020] VCC 275, DPP v Kent [2020] VCC 991, DPP v Gray [2021] VCC 30, DPP v Bratherton [2020] VCC 1461, DPP v Tsigeletos [2022] VCC 1165, DPP v Castle [2020] VCC 937, DPP v Evans [2022] VCC 1135, DPP v Egel [2022] VCC 645, Pan [2022] VSCA 98, DPP v Spottiswood [2021] VSCA 146, Power v The Queen (1974) 131 CLR 623, R v Novakovic(2007) 17 VR 21, Koukoulis v The Queen [2020] VSCA 19
Sentence: 6 years 10 months with a non-parole period of 4 years 2 months
PSD 623 days.
Licence cancelled for 5 years.
S.6AAA declaration; 8 years 8 months with a non-parole period of 6 years 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic (plea and sentence) | Office of Public Prosecutions |
| For the Accused | Mr P. Morrisey SC | Melasecca Zayler Barristers and Solicitors |
HIS HONOUR:
INTRODUCTION
1On 2 March 2023,[1] Hayley Dienjes was the front passenger in a Mitsubishi 380 sedan that you were driving, Mr Duff. She suffered fatal injuries as a result of a collision you had with a concrete road barrier. You have pleaded guilty to culpable driving causing her death because of your gross negligence. That charge carries with it a maximum penalty of 20 years' imprisonment. It is a standard (not mandatory) sentence, and the standard sentence applicable is eight years. [2]
[1]Contrary to s319 (1A) Crimes Act 1958.
[2]It is also a category 2 offence pursuant to the Sentencing Act 1991 meaning unless special circumstances exist that are exceptional and rare, the court must impose a term of imprisonment, not in combination with a community corrections order. No such reasons were advanced in this case. It also has a mandatory license disqualification for at least 24 months.
2Your plea of guilty follows a sentencing indication hearing in May of 2024. I indicated then that should you plead guilty to the charge of culpable driving, I would sentence you to not more than six years and 10 months' imprisonment. [3] You initially rejected that indication and elected to take the matter to trial.
[3]Consistent with the way an indication is to be expressed under s.207 of the Criminal Procedure Act 2008 (CPA).
3Your life is one shaped by deprivation and trauma. You have a history of offending and drug abuse. I was provided with further psychological material on your behalf that underpinned and informed what was, in effect, a renewed sentence indication hearing in January of this year. I indicated once more that, should you plead guilty to the charge of culpable driving, I would sentence you to not more than six years and 10 months' imprisonment.
4You were arraigned and pleaded guilty, which is a matter I have accorded a great deal of weight, as I will make clear in due course.
5I want to make it perfectly clear at this early stage of these reasons; I am acutely aware that this sentence cannot, and will not, return things to the way they once were before Ms Dienjes death. Nothing can.
6The sentence I am going to impose is one of six years and 10 months' imprisonment, and I will declare that you serve at least four years and two months before being even eligible for parole.
7These reasons are designed to make it plain to those many people who have an interest in this case and have been so deeply and profoundly affected by the events of March 2023, how I arrive at the sentence that I have imposed.
OFFENDING
Background [4]
[4]Taken substantially from the Summary of Prosecution Opening (SPO) for plea 1 May 2025, Exhibit A.
8You were 39 at the time of the offending and were living in Wyndham Vale. Hayley Dienjes was 28 and lived in Point Cook.
Driving
9The fatal collision occurred just after 1.00 pm on Thursday 2 March 2023 at the top of the city facing off ramp from the Princes Freeway, which created a T-intersection with Forsyth Road.
10Some five minutes before the collision, an unmarked police Toyota HiLux left the Werribee police station with four officers on board.
11Whilst travelling near the Hoppers Crossing railway station, police observed the Mitsubishi overtaking their HiLux on the left before merging sharply across two lanes, without indicating, to end up in the far-right lane, and in so doing, travelled very close to other cars in those lanes.
12Both vehicles entered the Princes Freeway, where the speed limit was 100 kilometres an hour. The police vehicle was driving at the speed limit, but officers observed the Mitsubishi zig-zagging between all lanes, cutting off cars to merge, forcing other vehicles to take action to avoid a collision and travelling much faster than the general flow of traffic.
13At one point the Mitsubishi ended up being 'boxed in' behind other vehicles, so the HiLux was able to almost move alongside that vehicle. Police activated the lights and sirens on the HiLux and moved in the middle lane in an attempt to position themselves behind the car that you were driving.
14Despite the police car having its lights and sirens activated, you made no attempt to stop or pull over.[5] Rather, as the traffic opened up, it began to swerve in and out of lanes without indicating and then accelerated to an estimated speed of no less than 130 kilometres an hour.
[5]This was originally said to be related summary offence (RSO) of fail to stop a motor vehicle on Police direction under s.64A(1) of the Road Safety Act 1986. This charge is not persisted with by the Crown.
15Police turned off the lights and sirens and determined not to pursue the Mitsubishi. As they lost sight of the car, they decided to return to their designated job, which involved attending an address in Truganina. I do not sentence you on the basis that this was in fact a police pursuit.
16Other road users observed your car moving between lanes and driving in a way that was jerky and not fluid in the way one might expect a car to be travelling smoothly with traffic.
17The Mitsubishi entered the Princes Freeway at the Forsyth Road off-ramp. It travelled up the single lane, which split into three, one left hand turning lane, one right hand turning lane and one middle lane from which vehicles could turn either left or right.
18At the top of the exit ramp where it makes a T-intersection with Forsyth Road, the traffic lights were red. There were several cars waiting for the lights to turn green so they could enter Forsyth.
19You crossed over the left-hand white fog line and onto the left bitumen shoulder next to a concrete barrier. Your car then mounted the concrete median, just prior to the traffic lights, and passed between a car sitting in the far-left hand turning lane and the traffic pole over the pedestrian footpath corner.
Collision
20The facts concerning the collision are as follows.
21The Mitsubishi continued straight through the intersection against the red light, veering slightly to the left before colliding with a concrete barrier which divided the north and south-bound lanes on Forsyth Road.
22Several people in vehicles at that intersection were spoken by police.
23Chris Mussared was in the centre lane waiting to turn left, with one vehicle in front of him and one to his left-hand side. He was listening to music when he heard a massive roar of an engine, like it was flat on the floor, and within two seconds he turned his head to the left and saw a white Mitsubishi at approximately 10 o’clock in his vision go in between the concrete barrier on the left-hand side and the car that was next to him. He saw it hit the barrier with another two to two and a half seconds with a lot of force and spun around almost 180 degrees.
24Robert Stoate was closest to the intersection with a red sedan in the left lane next to him. He saw the Mitsubishi drive past on the left of the red sedan, and drew the conclusion it had been travelling on the embankment or footpath to get around the red car, saw the Mitsubishi slam into the concrete barrier on the opposite side of the road and rebound off.
25Jacqueline Curtis (Lessing) was driving northbound on Forsyth Road at or about the speed limit. She saw the Mitsubishi go straight across her path just avoiding hitting her car, and in her words was travelling at 'an insane speed'. She pulled over beyond the intersection, up onto the left-hand footpath, and observed the Mitsubishi had spun around after bouncing back off the barrier and ended up in the middle of the road.
Police arrival
26The HiLux arrived at the scene roughly 20 to 30 seconds after the collision. They pulled up, and members exited the vehicle to assist. Ms Dienjes was observed in the front passenger seat with blood on her forehead.
27Observing smoke coming from the Mitsubishi and oil spilling from under the engine, Officer De Oliviera unbuckled her and lifted her out of the Mitsubishi and dragged her to the corner of the intersection. He tried to keep her awake, but she was going in and out of consciousness, mumbling occasionally with her eyes rolling back. She lost consciousness completely. Police valiantly commenced CPR until paramedics arrived. Paramedics took over, using a defibrillator. It was too late, Ms Dienjes could not be revived and died at the scene.
Investigation
Mechanical analysis of the Mitsubishi
28Upon examination of the vehicle, 'localised flat spots' were located on both rear tyres. This would suggest that the handbrake may have been applied on a single occasion. The examiner concluded that whilst the braking system was found to be in working condition, there was evidence that the vehicle may have had brake fade, which, if experienced just prior to the collision, may have contributed to the collision. I will return to the significance of this evidence in a moment.
Collision Expert Analysis
29Collision expert Jenelle Hardiman assessed the scene within three hours of the collision and opined that:
(a) the bitumen road at the scene was in very good condition with no damage or faults which could have contributed to the collision;
(b) the speed limit on the off-ramp was 60 kilometres an hour;
(c) at the intersection there was a raised concrete median at the end of both road shoulders;
(d) when the Mitsubishi first commenced skidding, it was travelling at a minimum of 66 kilometres an hour and a maximum of 79 kilometres an hour;
(e) the Mitsubishi travelled about 35 and a half metres between the start of skidding (observed on the road) and the impact with the barrier;
(f) the driver side tyres were on the bitumen for the entire length of the skidding;
(g) any use of the Mitsubishi’s handbrake to slow the vehicle down could be best estimated as commencing about 10 metres before the first notable skid mark;
(h) any use of the handbrake would have commenced around 45 metres prior to the impact with the concrete barrier.
(i) as the Mitsubishi travelled across the median at the end of the shoulder, the passenger side wheels were under emergency braking and the tyres were locked;
(j) prior to impact the tyre marks began to curve which is consistent with the Mitsubishi having commenced rotation as a result of left steering input;
(k) at the point of impact with the concrete wall, the Mitsubishi was travelling at about 70 kilometres an hour; and
(l) following impact the Mitsubishi travelled about eight metres back towards the off-ramp and had rotated nearly 180 degrees.
Blood analysis
30You were removed from the vehicle by the SES and fire rescue. You were transported by ambulance to the Royal Melbourne where you were treated for your injuries. At the same time a blood sample was taken which was given to the police.
31Your blood sample was subsequently analysed by a forensic toxicologist and an approved analyst. Those results confirmed that you had .27 milligrams per litre of methylamphetamine and .03 milligrams per litre of amphetamine in your blood at the time of the collision.
Opinion of Dr Jason Schrieber
32The blood sample analysis that I have just mentioned, as well as additional evidence collected in the course of the investigation, was forwarded to drug impairment expert Dr Jason Schrieber from VIFM. [6]
[6]See Depositions statement p150, See also committal transcript p318.
33He proffered an opinion that:
(a) the methamphetamine in your body was likely to impact your driving;
(b) your risk-taking, erratic and dangerous driving demeanour can be attributed to the impairing effects of methamphetamine; and
(c) the measured level would have prevented you from having proper control of the car.
34Though this evidence was one point relied on by the Crown in proof of a separate or alternative head of culpability, [7] that position was sensibly resiled from in favour of recognising the fact that you had methamphetamine in your system, which was a relevant factor in my consideration of the extent of your negligence.
[7]Under s.318(2)(d) that you were driving while under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.
35This plea proceeded on the basis that intoxication had not been quantified. It plays a part in the assessment of gross negligence under s318(b) Crimes Act but does not found a separate or alternative basis under 318(9).
36Because of the way in which the evidence fell at the committal with respect to Dr Schreiber, his evidence did not appear to be capable on its own of establishing that you were driving while under the influence of a drug to such an extent as to being incapable of having proper control of the motor vehicle.
37Mr Morrissey of senior counsel in his submissions for the case conference, [8] made a strong case for the exclusion of his evidence if the matter proceeded to trial, noting that:
(a) Dr Schreiber had not seen or examined you;
(b) Dr Schreiber operated on a contentious factual scenario which was said simply could not be accepted by a jury. He did not deal, for instance, with scenarios outside the 'amphetamine impairment' one. Part of that is:
(i)the brake-fail scenario that I am about to come to arising on the prosecution's own case and demonstrated by witnesses Guilieri[9] and Hardiman;[10]
(ii)and/or the potential police pursuit scenario (real or perceived).
[8]Exhibit 1: Defence submissions at Case Conference 18 March 2024 (as part of general case conference submissions) and Exhibit 2: Defence submissions at Case Conference re Dr Jason Schreiber 27 March 2024 (submissions specifically on this topic).
[9]See Depositions statement p140, See also committal p308.
[10]See Depositions statement p94, See also committal p318.
(c) Each provides an alternative explanation for your driving outside the 'amphetamine impairment scenario' and neither can be excluded.
38Put simply by Mr Morrissey, it was said that:
(a) his evidence, namely Dr Schreiber, was of a general sort about what may or may not occur if a driver had amphetamine in their system and did not appear to be tied to the accused’s actual driving on this occasion;
(b) was best categorised as a quasi-medical opinion, one that could not be found by a jury; and (building on the issue of brake failure that I am about to come to)
(c) there was no evidence drug use contributed anything to the brake failure.
39The Crown did not concede the point, but in my view there was a respectable challenge to be made about the admissibility of this body of evidence altogether, which would have changed the complexion and strength of the Crown case.
40I assess the value of your plea of guilty in light of the challenge that could have been made against the admission of Dr Schrieber’s opinion at trial.
Gravity of instant offending
41I will begin by saying that whatever personal qualities you possess (and you do appear to possess very positive qualities) they failed you on this day. You made choices that were weak, selfish and thoughtless and those choices cost Ms Dienjes her life.
42You have thus acknowledged that your driving falls short of the standard of care a reasonable person would have exercised and involved a high risk that death or serious injury would result. My assessment of the dangerousness of a person’s driving is informed by the extent to which a risk it created. The extent of the risk includes both the likelihood that something will go wrong and the extent of the harm which will arise if it does.6
43The Crown says that you were grossly negligent through combination of factors: [11]
(a) your erratic driving prior to the collision evidences a certain danger and lack of care – that is to say that your poor driving at the time of the fatal collision was not a mere momentary aberration;
(b) your speed, even if not terribly over the speed limit at the time of the collision, was simply too fast for the onramp;
(c) considered as one episode, you did not change from being an erratic driver into a reflective cautious one once you got to the ramp;
(d) you were driving an unfamiliar vehicle where you ought to have been more cautious, not less;
(e) you did not brake quickly enough; and
(f) your drug use negatively impacted on your driving and decision-making.
[11]See R v Whyte (2022) NSWLR 252, see also R v Stephens [2016] VSCA 121.
44It is for those reasons the Crown submit that the offending is at the mid-range of offending for offences of culpable driving, aggravated by you being on bail at the time. [12]
[12]No charge was pursued in relations to this separate offence under the Bail Act 1977, but rather I was take into the fact you were on bail in the fashion outlined above, and again when assessing your prospects.
45You concede that your driving was grossly negligent, as I said, because when you drove up the ramp:
(a) you drove above the speed limit (albeit at a moderate level);
(b) you drove on the inside lane; and
(c) you were to some extent affected by drug metabolites.[13]
[13]Again, I confirm that the plea proceeds on the basis that intoxication has not been quantified.
46Mr Morrissey relies on the following known facts though to contextualise and understand the offending:
(a) you and the deceased were travelling on the Princes Highway;
(b) the vehicle was loaned to you on the previous day;
(c) its characteristics were likely unknown to you;
(d) these included unusually worn or patchy brakes, of which you were unaware;
(e) you did have amphetamine in your blood system;
(f) it cannot be proved to the criminal standard that you drove off from a perceived police pursuit, given the police officer’s own evidence at the committal;
(g) even so, you drove at speed at points over the next two to three kilometres;
(h) some kilometres along the highway, you exited to the left;
(i) you drove off the offramp, proceeding along your lane in a straight line prior to brake failure;
(j) you exceeded the 60 kilometres per hour speed limit. Officer Mehigan suggests the minimum speed of 66 kilometres an hour;
(k) your car suffered unexpected brake failure some 50 metres or more out from the collision;
(l) despite an effort to turn left, the vehicle reached the crossroad at some speed;
(m) your vehicle crossed the intersection, crashing almost head-on into the concrete barrier; and
(n) Ms Dienjes was killed.
47The Crown do not necessarily accept that there was brake failure, merely that it could not be excluded.[14] Your counsel says that the above account really is the only coherent narrative that makes sense of all of the known facts. That is said as it is inherently improbable that you did not brake at all, or you did not see the stationary cars ahead, or appreciate they were stationary for that matter, or that your first recourse to braking was via the hand brake.
[14]Supported it seems by the evidence of SC Guileri as I alluded to above.
48That is a logical narrative and is one where the brakes on the car that were not yours failed. It was submitted by Mr Morrissey that the above frames my findings, submitting the plea on the basis of negligence on a combination of features and not one based on intoxication or impairment.
49By your plea of guilty, of course, you disavow reliance on a 'causation' argument, and/or an argument that your driving, however poor, was not linked to a crucial matter – the brake failure.
50Mr Morrissey adopted the prosecution’s moderate, and I add, accurate categorisation of your offending on the plea. I do not agree with your counsel’s contention that was made earlier at the sentence indication hearing that because of the foregoing reasons this driving fits comfortably at the bottom, or at least the lower reaches of the scale of seriousness for culpable driving, where sentences imposed appear to be in the range of five to six years, for instance, by way of head sentence. I would not go that far, and this sentence is designed to reflect that finding.
51There are aggravating features, such as the following, that mean it does not fall to be considered in the way that Mr Morrissey invited me to:
(a) you were on a court order at the time;
(b) you were drug-affected (the presence of drugs in the car upon your arrest is not a relevant feature of the plea, however); and
(c) you have been before the courts on numerous occasions, including for driving-related matters.
52I will return to the gravity of the present offending in due course when dealing with the standard sentencing regime that applies to this case.
Case history
53The matter proceeded in the following convoluted and complicated way:
DATE EVENT 30 March 2022 Earlier drug and dishonesty offending occurred
Originally charged as trafficking large commercial quantity9 February 2023 Bailed 2 May 2023 Offending 19 May 2023 Committal Hearing (focusing on mechanical and other issues concerning the collision) Case conference 15 May 2024 SIH application 17 May 2024 SIH given 6 June 2024 SIH rejected
Matter set down for hearing25 June 2024 SIH by Judge Gwynn 3 July 2024 Sentenced by Judge Gwynn to 6 months imprisonment and fine for drug, dishonesty and firearm offences
433 days reckoned as served22 November 2024 Application to revisit SIH 29 January 2025 Arraigned and pleaded guilty to culpable driving 2 May 2025 Plea and sentence 14 May 2025 Sentence
623 days PSD54Suffice to say, by today, on 14 May 2025, you have spent 623 days in pre-sentence detention in relation to this matter alone, though I am conscious you have served another sentence as well in the interim.
Victim impact
55Victim impact statements have been prepared by the Dienjes family members and her best friend. They were provided the day before the plea. They are heartbreaking. Your offending has had a catastrophic effect on Hayley’s family, and I want to spend some time detailing the eloquent, dignified, and moving victim impact statements, as the impact that this offending has had on each of them is a highly relevant matter.
56Ms Dienjes’ mother, Rhonda[15] conveyed the devastating effects and impacts that the loss of her daughter has had on her. She recounted the experience of having Ms Dienjes very early in her life and how bringing her into the world shaped all of the decisions that she made afterwards. Her daughter's positive personality and academic prowess were a justifiable source of pride for her mother.
[15]Exhibit B: VIS Rhonda Macheras, dated 23 April 2025 (Hayley’s mother).
57The relationship that Ms Dienjes shared with her sisters individually exhibited how loving and supportive she was as a person. She would protect her sisters. She was their cheerleader, an endless source of support for them.
58Rhonda wished to make it clear the efforts that her daughter was making to improve her life. She sought to make clear that the media coverage of her death would not define her daughter as Ms Dienjes’ life was so much more than this harrowing event.
59Rhonda makes it clear that the effect of losing a child has on oneself cannot be explained effectively in words, but that it is a loss felt each day. She explained that she no longer participates in once cherished holidays, as her daughter’s absence makes them too painful.
60Before losing her daughter, Rhonda was an active business owner and worked part-time in the public service. This loss has left her with brain fog and cognitive difficulties, which have led her to nearly step back entirely from work. Further, coming to view court matters related to her daughter’s death led her to have to drive the same path her daughter took in her final moments, causing unimaginable distress. The legal process has been a taxing one on her as she has had to put her life on hold to navigate dates that she needed to attend. Further, the experience she had when dealing with Victoria Police’s procedure was difficult, as minimal insight could be shared during the ongoing investigation about her daughter’s final moments.
61Adrian, Ms Dienjes’ father,[16] described the relationship he shared with his daughter when she was young, and how fulfilling being a father was for him. He shared the difficulty he experienced in the decrease in contact he had with his daughter as she entered her later teenage years, which persisted up until her death.
[16]Exhibit D: VIS Adrian Dienjes dated April 2025(Hayley’s father).
62The last conversation he had with her involved him sharing his desire to see her more. He also shared the impact that his loss has had on his ability to work, as he understandably struggles to balance the mourning process with the demands of daily living. This is a feature of grief seen across each of the victim impact statements. He feels robbed of the chance to share in monumental life events, which Ms Dienjes will never get the opportunity to experience.
63Manuel, Ms Dienjes’ stepfather,[17] who has asked to be referred to as her father, and I will endorse that wholeheartedly, I can assure him it is evident in every way that he was a father, painted a similar picture of grief. He told the court of his experience as a truck driver and the re-traumatisation he experiences when he is frequently required to drive through the underpass where Ms Dienjes crashed. He has difficulty when recalling the experiences he shared with his daughter while driving around together when she was young. Manuel is anguished over the experiences he and his family will never get to share with Ms Dienjes, such as celebrating birthdays or welcoming children into the family. He explained that he struggles most with watching his wife and daughters lost in pain and grieving.
[17]Exhibit C: VIS Manuel Macheras 25 April 2025 (Hayley’s step-father).
64Aimee, Ms Dienjes’ sister,[18] talks of the sorrow she feels knowing she will not have the opportunity to share milestones with her sister. This black cloud threatens to overshadow moments that should be filled with pride and joy.
[18]Exhibit G: VIS Aimee Macheras (Hayley’s younger sister).
65Danielle, another of Ms Dienjes’ sisters,[19] wrote of the bond she shared with her sister and the crushing reality of Ms Dienjes’ passing and the way it intrudes on her daily life. She explained that her sister was her place of safety, reassurance and a source of joy. She told the court of her sister’s love of music and performance. She now struggles to hear a song or melody without feeling sick with grief.
[19]Exhibit E: VIS Danielle Dienjes (Hayley’s younger sister).
66Danielle experiences anguish at the realisation that her sister will no longer grow old with her, and similarly to the other statements shared, she will not get to enjoy milestones that siblings should share, such as bringing a niece or nephew into the world. Ms Dienjes only had the privilege of meeting one of Danielle’s two children, however, it was shared that she was a loving and present aunt. The anger and frustration over the circumstances of her sister’s needless death are palpable in Danielle’s words. She is left to live with the devastating experience of losing a sibling.
67Carly, another sister,[20] described the unique bond she shared with her sister. She described her sister as a protector and supporter; a relationship so close that the loss of it has led to the destruction of other relationships since her passing, as they could not compare with that of a sister. The loss of her sister has had a profound, all-encompassing impact on her life, negatively altering her experience with the world around her.
[20]Exhibit H: VIS Carly Marcheras (Hayley’s youngest sister).
68Carly shared the harrowing recount of the lead-up to her sister’s passing. She explains taking her sister to Werribee the day before her death and describes the unshakable feeling that more could have been done by her to circumvent this tragedy. Carly further anguished over the experiences that Ms Dienjes will never have the opportunity to enjoy, such as getting married or having children. These experiences have been robbed from her, and the loss is felt in every moment.
69Kyesha, Ms Dienjes’ best friend[21], told the court of the life-altering impact her friend’s loss has had on her. She shared the deep state of depression that she was plunged into by this grief. She has not yet been able to re-engage with the life that she once enjoyed, which she explained is what Ms Dienjes would have wanted her to do. The friendship was an incredibly close one with many memories that now feel tainted by grief.
[21]Exhibit F: VIS Kyesha Dawson (Hayley’s best friend).
70Kyesha told the court of the warm traditions that she shared with Ms Dienjes and the comfort that she felt with her. The isolation that accompanied Kyesha’s mourning process is entirely unenviable. A picture has been painted of a monumental loss that will be felt throughout every milestone reached in Ms Dienjes’ absence.
71I pause to repeat what I have already said; nothing can ever return things to the way they were before for Hayley’s family, she was much loved and has left an unfillable void now that she has been taken from them.
72The sentence I impose comes from undertaking an analysis of many legal factors. Our High Court says I have to translate the complexity of the human condition and human behaviour into mathematics of units of punishment expressed in periods of time.[22]
[22] Weineger v R [2003] HCA 14; 212 CLR 629 at [24] per Gleeson CJ McHugh, Gummow, Hayne JJ.
73The length of any punishment that I impose (measurable of course as it will be in years and months) is not representative of the life of Ms Dienjes. Her life simply cannot be valued in that way. To do that does her no justice. Her life was priceless, and her loss immeasurable.
MATTERS PERSONAL TO THE ACCUSED
74In addition to the oral submissions made on your behalf at the sentence indication hearing and the plea, your personal circumstances have been gleaned by my close reading of the following:
(a) the written submissions filed at your sentence indication hearing, [23]
[23]Exhibit 3: Outline of submissions on sentence indication hearing 10 May 2024, and Exhibit 4: Submissions regarding Mr Duff’s personal factors 13 May 2024.
(b) a report from Ms Carla Lechner,[24]
(c) the reasons for sentence of His Honour Judge Wraight,
(d) the reasons for sentence of Her Honour Judge Gwynn,
(e) the letters in support from your younger brother Salesi, [25]
(f) the report of Mr Luke Armstrong,[26]
(g) the letter of Leonie Morgan,[27]
(h) the letter of Merilyn Duff, [28]
(i) the letter of Stanley Dryden, [29]
(j) the letter of Monica Shaw,[30]and
(k) the letter of Daniel Merriweather. [31]
[24]Exhibit 5: Report of Carla Lechner, 5 July 2019.
[25]Exhibit 9: Letter of Salesi Leveni, undated, and Exhibit 10: Letter of Salesi Leveni 25 April 2025.
[26]Exhibit 6: Report of Armstrong 30th October 2024.
[27]Exhibit 11: Letter of Leonie Morgan 26 January 2025.
[28]Exhibit 13: Letter of Merilyn Duff 25 January 2025.
[29]Exhibit 12: Letter of Stanley Dryden 24 April 2025.
[30]Exhibit 17: Reference of Monica Shaw 1 May 2025.
[31]Exhibit 18: Letter of Daniel Merriweather 2 May 2025.
Biographical details
75You are now 38. Your mother, Leonie, is Koori and your father was of Tongan heritage. You grew up in the commission flats in Port Melbourne and the Rowville area. Your parents separated when you were two or three years of age, and you only had very limited contact with your father. You have four half siblings on your mother’s side and three half siblings on your father's side.
Education and employment
76You attended three primary schools and two secondary schools, largely related to your family having to relocate numerous times. Your mother re-partnered a number of times after her relationship with your father, and the family home was one in which both you and your mother were the victims of family violence, particularly once your siblings had left.
77Your formative years were difficult, and one in which you faced considerable adversity.
78Your brother Salesi’s letter comments on the abuse and violence that both he and you were exposed to when you were young, and how you were never able to feel safe.
79Upon leaving school, you commenced but did not finish a real estate course. You began working as a casual labourer in a factory. At the time of speaking to Ms Lechner, it is estimated that you had worked about 50 per cent of the time since leaving school, with the longest job that you had had being one for about 18 months in a factory.
80You suffered a number of workplace injuries around 2010 and now have a metal plate in your hand.
81From 2012 to 2015, you had some work in the music industry.
Drug use
82It was after your workplace injury that you began to abuse alcohol and amphetamine-based substances.
83The murder of your brother James in 2014, in what was described as a 'drug deal gone wrong', exacerbated your drug use. This matter was not prosecuted until 2018, which continued your distress at that event. Your father died the same year from a brain tumour.
84Your brother, Salesi, confirms just how deeply you were affected when James was murdered. Salesi sees this event as the catalyst for your escalating drug use and contact with the criminal justice system, and this would appear to be supported by the material before me.
85Ms Lechner’s report would indicate that you presented with stimulant use disorder and symptoms of PTSD, resulting from the loss of your brother. Your use of drugs was to regulate your negative emotions.
86You did a residential drug rehabilitation program in 2018, but it would appear that you returned to drug use.
87You are a father. Your child is about 16. You maintain a good relationship with your ex-partner, Ruby, and have been able to see each of them while you are in custody.
88You have been in a relationship with Monica for some 15 years, but have no children together, and I am told that this is a supportive relationship.
89Your family, your brother, particularly, supports you and can offer you the stability and purpose of employment in the construction industry upon release.
90The references provided on your behalf speak of someone who is full of potential but troubled, and certainly well-loved and supported, even still.
Prior criminal history
91Your prior criminal history spans some 15 court appearances between 2005 and 2020.
92Your history started with driving offences which included charges of driving while disqualified, exceed PCA, using an unregistered motor vehicle and speeding. Such offences litter your criminal history overall.
93You also have a history of dishonesty, which includes offences of obtaining financial advantage by deception, theft, obtain property by deception, handle stolen goods and dealing with property being the proceeds of crime.
94You have a history including drug trafficking, drug cultivation and drug possession and weapons possession, and now for being a prohibited person possess a firearm.
95You have had breaks in your offending history, and it would appear that history escalated since the death of your brother.
96Your history also demonstrates difficulty that you have had complying with court orders, as you have a recorded history for offences against the Bail Act and contravening community corrections orders.
97You received your first prison sentence in August 2019 by Judge Wraight of this court. It took place in the Koori Court. You were dealt with for offences of obtaining property by deception, obtaining financial advantage by deception, handling, attempt to obtain financial advantage by deception and committing an indictable offence while on bail. Judge Wraight sentenced you to 18 months' imprisonment with 12 months to be served before being eligible for parole. That was, as I said, your longest sentence to date.
98You maintain an interest in your Koori heritage. I am told that you completed parole before this present offending was committed.
99You received a further four months of imprisonment from Broadmeadows Magistrates Court in January 2020 for a range of offending, including offences of dishonesty, drug possession, weapons and a breach of CCO.
100Whilst not a prior conviction, you were also dealt with for drug offences, dishonesty offences and weapons offences in 2024 by Judge Gwynn. In 2022, you were found with $50,000 cash and a quantity of drugs, a Mercedes that was the property of proceeds of crime, as well as four motorcycles. Police also found a shotgun, and you were a prohibited person. You were on bail, having served 11 months or so on remand for that matter, for only months in relation to this matter at the time you killed Ms Dienjes.
101It is fair to say that specific deterrence has a real role to play when sentencing you.
102I am told that you were living in Wyndam Vale and endeavouring to keep in contact with your child. In a frank submission, Mr Morrissey conceded that you tried in the community to remain drug-free but failed.
103Whilst not to be punished for your criminal history a second time, it is relevant in assessing your moral culpability, the weight to attach to specific deterrence, denunciation, and the need for community protection. It is also a mechanism in which I can assess your future prospects, which, at this stage, would appear to be somewhat guarded.
MATTERS OF SENTENCING PRINCIPLE
Culpable driving
104There is an ongoing need to send the message to the community that the community will not tolerate driving in such a way as to take the life of another. The consequences of such conduct, such as the case here, are catastrophic. General deterrence is therefore often the principal consideration in sentencing for an indictable driving offence,[32] as notions of denunciation and adequate punishment are. Put simply, there is a premium upon human life, and general deterrence is an important factor in sentencing for this offence, and so much was accepted by your counsel.
[32]McGrath v The Queen [2018] VSCA 134.
Standard sentencing regime
105The standard, I repeat, not mandatory, but standard sentence for culpable driving is eight years, and this is a numerical guidepost for courts when sentencing for specified offences. It is a guidepost, not unlike the maximum penalty.[33]
[33]The regime also deals with the setting of non-parole periods, which I will come to later, once matters that concern such a decision have been canvassed.
106In relation to the standard sentence scheme which applies, the court may have regard to the following approach outlined in Brown v The Queen.[34]
(a) The period specified as the standard sentence is the sentence for an offence that, taking into account only objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness.[35]
(b) In determining the objective factors, a court must not consider the personal circumstances of the offender.
(c) The key requirement when a court is dealing with a standard offence is that it must take the standard sentence into account as a relevant sentencing factor. As with the maximum, the standard is a legislative guidepost; it does not affect the instinctive synthesis, nor does it permit a 'two-stage sentencing' process or otherwise affect the matters a court may or must consider when sentencing.[36]
(d) Finally, a court should not start the sentencing process by determining whether a standard sentence should be imposed and then working its way up or down from that sentence depending on factors of mitigation or aggravation.
[34][2019] VSCA 286.
[35]Sentencing Act 1991 s.5A(3).
[36]Some important matters have come into sharper focus since I gave the SIH. I am mindful of the comments of Forrest JA in Karam [2024] VSCA 164 ‘The sentencing indication was given under s 207 of the Criminal Procedure Act 2009. The only effect such an indication can have upon the sentence subsequently to be passed by the sentencing judge is found in s 209 of the Act – that is to constrain the sentencing judge from imposing a more severe sentence than the maximum total sentence indicated. The sentence indication is not an opening bid for future negotiation, nor is it a benchmark for additional deductions at the plea hearing. Not only is this approach tantamount to two stage sentencing and incompatible with the instinctive synthesis approach, but there are also strong public policy reasons why this approach must be eschewed. Canny defence practitioners may hold back one or more mitigating factors for the second hearing (I interpose that I am not suggesting Mr Morrissey SC did that here). The sentence indication process was never intended to be treated in this way. Beyond placing a ceiling on the overall sentence that can be imposed, it has no relevance to the instinctive synthesis of the sentencing judge. It should be observed that his Honour was well aware of the danger of two stage sentencing in the manner now advanced by the applicant, and astute to avoid it.’
107The court must give reasons for imposing the sentence, any non-parole period fixed under the Act that is shorter than that which is specified under s11A(4) (in this case, which would be 60 per cent of the head sentence), and state how the sentence imposed relates to the standard sentence.[37] This requires me to identify facts, matters and circumstances bearing upon my judgment as to the appropriate sentence. I have determined that your case calls for a sentence below that of the standard, but not significantly so.
[37]Sentencing Act s.5B(5).
108I emphasise, the standard sentence is just one of many factors I am to consider under s5(2) of the Act, many of which pull in different directions. It does not represent a starting point for a sentence from which I add or subtract depending on various factors in aggravation or mitigation, as the case may be, and I have not done so here.
Current sentencing practices
109While each case must of course be assessed on its own facts and circumstances, other sentences may be of assistance in guiding the court where such cases bear similar features or where they deal with relevant sentencing principles.
110I have familiarised myself with current sentencing practices for the offence of culpable driving since the introduction of the standard sentence regime, and I have done so with a reference to the expansive case collection collated by the Judicial College[38] and in reference to the Sentencing Snapshot No. 275, [39] where the latter suggested that the average sentence for this offence was seven years 10 months in 2022. The bulk of the sentences fell between seven and 11 years over the period 2017 to 18, to 2021 to 22. Non-parole periods fell most often between five to seven years and the median sentence was eight years and three months.
[38]See case collection of Court of Appeal decisions provided by the Judicial College at 2.1.1 (focusing on those sentences that fall within the standard sentence category).
[39]Snapshot number 275 of June 2023.
111I referred to the Judicial College summaries containing cases at the highest end of gravity where individual sentences for culpable driving were 12 years, to the lowest end of the range which was short of four years YJC in the case of a young offender, or one year in the case of an adult.
112Non-parole periods imposed and their relationship with the head sentences varied equally as much, as one might expect.
113I was referred to a number of cases by the Crown that have some similarities to the case or are said to be comparable:[40]
[40]Though they were furnished with the Crown sentencing submission at a time where it was still alleged that both heads of culpability existed.
(a) Hennessey v The King [2024] VSCA 2
(b) Victorsen v The Queen [2020] VSCA 248
(c) Phongthaihong v The Queen [2021] VSCA 317
(d) Rakatau v The Queen [2021] VSCA 76
(e) DPP v Tate [2021] VCC 22
(f) DPP v Grayden [2020] VCC 275
(g) DPP v Kent [2020] VCC 991
(h) DPP v Gray [2021] VCC 30
(i) DPP v Bratherton [2020] VCC 1461
(j) DPP v Tsigeletos [2022] VCC 1165
(k) DPP v Castle [2020] VCC 937
(l) DPP v Evans [2022] VCC 1135
(m) DPP v Egel [2022] VCC 645
(n) DPP v O’Brien [2023] VCC 505
114Counsel, I will not read them out verbatim, but I will note that I did consider those cases. They are all cases concerned with the sentencing of offenders for culpable driving as standard offences, having been dealt with between 2020 and 2024. All of the cases I mentioned proceeded as a plea of guilty, that is to say, they did not follow a trial.
115Four of the 14 cases were dealt with on appeal, with the balance being decisions of this court. Individual sentences ranged from 12 years in the case of Hennessy to six years and eight months in the case of O’Brien.
116The circumstances of the offenders’ driving in those cases varied from those who were profoundly intoxicated, one had a seizure, others were sleep deprived and intoxicated, others still were driving stolen cars at very high speeds in built-up areas. They involved cases of multiple casualties (or instances of serious injuries as well), conduct endangering offences of others, failing to stop and assist after a collision, for instance. The presence of other associated offending being dealt with at the same time as the culpable driving obviously put that offending in a different complexion.
117Their personal circumstances varied widely too, from young offenders to old. Most had criminal histories of varying degrees of recency and relevance. Some offenders had a constellation of matters to call on in mitigation by way of Verdins or Bugmy, for instance, but not all. They all enjoyed varying degrees of family or societal support. At least one was facing deportation after sentence.
118It does not appear to me that any of them pleaded guilty to the charge of culpable driving where the evidence was in a similar state as to what it is here, attracting the benefit of the plea of guilty that you will be the beneficiary of in this case.
119I have approached the use of statistics and other cases with caution. They do not involve a de facto exercise in applying parity. They are informative and instructive, but I do not consider that they set the outer limits for the exercise of my sentencing discretion.
Plea of guilty
120Your plea of guilty, though not as early as it could have been, has had a meaningful role to play in this exercise.
121As I referenced earlier, there is a reasonable hypothesis consistent with innocence that a jury could entertain with the above facts, that your driving was neither criminally negligent, and perhaps not dangerous, if a jury could not exclude the causative aspect of unexpected brake failure in this instance. [41]
[41]It is conceivable a jury would have convicted you of the dangerous driving causing death under s.319 Crimes Act, which carries a maximum of 10 years imprisonment.
122Put another way, you were not inevitably, in my view, going to be convicted of culpable driving, and I take the view that perhaps it was natural for you to equivocate for a period of time as to what course to take in those circumstances.
123Your plea relieves the Crown of the burden of proving negligence, even though parts of the evidence against you may have been problematic for them in that regard.
124So, seen that way, the plea has a number of benefits:
(a) It is valuable in itself, ultimately saving court time and public resources.[42] The utilitarian value of your plea is notable;
(b) That it reflects remorse;
(i)There are sources in the material or places where you express remorse; it is your letter of apology to the Dienjes family that best shows you are capable of reflection and articulate expression of contrition.[43]
(ii)That it is offered despite a genuine and unusual potential defence arising from the unexpected brake failure of an unfamiliar car. The strength of the Crown case has no bearing on the assessment of (and reward for) the utilitarian value of a plea of guilty in these circumstances but rather does goes to the issue of remorse, and this is a plea of guilty where I consider the evidence on the charge of culpability to be potentially troublesome in terms of proof. An additional discount is warranted on that basis.[44]
[42]I should add the human saving to the Dienjes family too.
[43]Exhibit 14: Letter of apology from Siliva Duff undated.
[44] R v Pajic (2009) 23 VR 527, 532.
Deprivation
125Your personal history, as sketched out by your brother and set out in Ms Lechner’s report, is sympathetic. You expanded on those matters that you told Ms Lechner to Mr Armstrong. The way that you expressed your personal history to Mr Armstrong sheds greater light on the true horrors of your formative years.
126It is clear that your early life was characterised by routine and brutal violence, to you and to your mother, whose partners were always, it seems, violent. Your life was characterised by unpredictability, instability and loss. You developed as an emotionally disturbed, anxious young man. Your proclivity for intoxication and offending behaviour is easily understood in that context.
127Moreover, your counsel relies on the mitigating effects of your PTSD symptoms, which emerge as a result of a collection of traumas, chiefly the murder of your brother in 2014, but also the loss of other anchors around that time, namely relationships and employment.[45]
[45]See report of Mr Armstrong. This is one of the reasons that I accept that your drug use is not mindless ‘pleasure seeking for its own sake’ but rather the result of something more tragic, requiring escape from trauma
128These matters add depth and context to the PTSD from which you suffer. The original traumas and the effect of later traumatic events constitute a significant mitigatory matter when considering mercy and moral culpability, they add detail to the sad and traumatic life that you led as a child and again as an adult. They explain your drug-affected life at the time of offending, a matter relevant to rehabilitation.
129Your diagnoses of relevance are traumatic and abusive childhood, ongoing PTSD arising from childhood and adult traumas, and DSM-5 disorders, namely, dependent personality disorder and stimulant use disorder.
130Your chaotic background raises the application of the principles in Marrah[46] which I will read.
'Circumstances of deprivation, abuse and other societal disadvantage occurring during an offender’s formative years are more than matters of just historical significance to the administration of justice. The effects of such societal disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantages precede the commission of crime and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say an offender's societal disadvantage has the same mitigatory relevance for all the purposes of punishment, it may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and recognise the community’s disapproval of the offending.'
[46][2014] VSCA 119, referencing Bugmy v The Queen [2013] HCA 37 [44]) at [16]
131All of those principles apply in this case.
Verdins
132Mr Morrissey put that your misfortunes frame your offending, and it would be speculative to find a substantial causal link which requires speculation in the way contemplated by Verdins. [47]
[47]Verdins (2007) 16 VR 269.
133Your difficulties found a submission that your drug use and negligence on the fatal day owe much to your particular human frailty, given that you appear to be a naturally anxious and troubled individual, rather than carelessness or arrogant selfishness.
134Nevertheless, he says that two limbs of Verdins that do apply that are relevant to you in moderating sentence to a slight - and I emphasise 'slight' degree - are Limbs 5 and 6.
(a) With respect to Limb 5: the existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on you than it would another person in normal health.
(b) With respect to Limb 6: where there is a serious risk of imprisonment having adverse effects on the offender’s mental health, it will be a factor tending to mitigate punishment.
135Ms Malobabic, on behalf of the Director, agreed that the propositions I have just mentioned have modest application.
136Of course, there has been a benefit to you being incarcerated. The development of remorse in custody is a benefit to you personally, but the environment is damaging in and of itself, given your history. You will clearly need ongoing specialised treatment for the foreseeable future to deal with the profound issues that face you.
137In that light, it is submitted on your behalf that general deterrence may be softened somewhat, your rehabilitation remains important and both punishment and specific deterrence can be tempered. I have attempted to duly moderate my sentence for those reasons.
Prospects for rehabilitation and community protection
138There is an obvious question about your capacity to reform.
139Although you have repented of offending behaviour and drug use before, you have nevertheless resumed drug use and offended again. When you do, it seems you represent a danger to others, in this instance, road users.
140This is the Marrah or Bugmy paradox and is reflected in your prior court appearances, as well as in your collapse into offending in this case.
141After you serve a number of years in custody, it is hoped that you will at least leave prison sober for a long time and somewhat older, wiser and specifically deterred.
142I accept that you are well supported by family and maintain relationships with your mother, ex-partner, son, current partner and a number of siblings. You have reasons and motivations to reform inside and outside of prison, but age and your history are not on your side.
143Mr Morrissey said you have genuine 'good' prospects. I ought to give consideration to the efforts that you have previously made and might be expected to make again to live a productive and decent working life, and to be a decent parent and community member to those you love. You were well supported by family and friends on the plea, which is reflective of the investment others have in you and your reclamation. They have been there for you, of course, before, but the fact that they persist with you is important - your brother, as I said, can employ you.
144In light of your background of trauma and drug use, it was submitted that a shorter non-parole period and longer eligibility period for parole can permit the various sentencing factors can be balanced.
145I cannot go as far as Mr Morrissey urged me here. Your prospects are guarded; that is not a euphemism for 'poor' or 'extinguished'. Even though there are a number of matters that permit me to take an optimistic view of your rehabilitation prospects that otherwise may be the case, they do have to be considered with a realistic sense of caution.
Non-parole period
146Section 11A(4)(c) of the Act provides that:
(4) Unless the court considers it is in the interests of justice not to do so, the court must fix a non-parole period of at least—
…
(c) Sixty per cent of the relevant term, if it is one less than 20 years.
147It was submitted that it would be in the interests of justice to fix a non-parole period of less than 60 per cent of the total head sentence to be imposed. That phrase is not identified or defined in the Act and nor does it appear to be a threshold issue to be cleared by the accused proving 'exceptional circumstances', for instance.
148It is submitted in this case that when considered properly the value of the plea and peculiar matters personal to you, should be central to the consideration of the 'interests of justice' of a non-parole period in this instance, allowing me to go below the 60 per cent figure here, if I wished.
149Counsel for the Director rightly pointed to your poor history on supervisory orders and observed that there was nothing really compelling about your circumstances that would warrant a greater disparity between head sentence and minimum term than that which the section already permits.
150By way of an example as to how the issue has been treated in other courts, in Pan[48] the Court of Appeal considered 11A(4)(c) of the Act in the context of a Crown appeal where the sentencing judge imposed a non-parole period which was 66.7 per cent of the head sentence, not the 70 per cent which the Act contemplates for murder. In that case, the judge was moved to impose a lesser non-parole period, not least of all because of the accused’s youth, his plea and the length of the head sentence. That is to say, quite different and more potent matters warranted such a disparity between the head sentence and the minimum term that are absent here. [49]
[48][2022] VSCA 98.
[49]See also DPP v Spottiswood [2021] VSCA 146, [41].
151I have had regard to the provisions of 11A(4)(c) in this case and the above cases. I have also had regard to the broader considerations that inform the setting of a non-parole period to provide for mitigation of punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires he must serve having regard to all of the circumstances in this case.[50]
[50]Power v the Queen (1974) 131 CLR 623; [1974] HCA 26.
152I have concluded that the non-parole period of close to 60 per cent of the head sentence is warranted in this case as it properly reflects the minimum term justice demands you serve before being eligible for release on licence. That does not mean automatic release.
153This period pays due regard to your guarded prospects for reform whilst maintaining appropriate weight to be given to the necessary and important countervailing factors when sentencing.
SENTENCING SUBMISIONS
154In a thorough and careful way, Mr Morrissey submitted that through your plea in mitigation, a sentence that deals with deterrence, punishment and denunciation needs to be balanced with your tragic history and unique issues. A sentence needs to be constructed in such a way (because of your record) to nurture the good in you and does its best to tame the bad.
155Ms Malobabic relied on the written submissions furnished by the Crown[51] and emphasised, quite rightly, the gravity of this matter, the catastrophic effects it has had on Ms Dienjes family and friends and the fact it was committed by you, an individual who has offended before and has squandered opportunities afforded in the past by the court to reform.
[51]Exhibit J: Submissions on sentence.
SENTENCE TO BE IMPOSED
156I now come to the portion of my remarks where I formally pass sentence on you, Mr Duff, though I have told you already what that sentence would be.
157I sentence you to six years and 10 months, that is 82 months' imprisonment, and I declare that you serve at least four years and two months, that is 50 months, before you will be considered eligible for parole. [52]
[52]Representing 61% of the head sentence.
158That represents 64 per cent of the head sentence.
ANCILLARY ORDERS
Pre-Sentence Detention
159You have been in custody since the offending date but served a 180-day sentence during this period. Pursuant to s18 of the Sentencing Act, I declare that you have served 623 days by way of pre-sentence detention in relation to this matter alone and such a declaration will be entered into the records of the court.
Section 6AAA
160The law requires me to state but for your plea of guilty what sentence I would have imposed. But for your plea of guilty, I would have sentenced you to eight years and eight months' imprisonment with a non-parole period of six years and four months before being eligible for parole. [53]
[53]Representing 73% of the head sentence.
Licence
161Pursuant to s89(1) and (2) of the Sentencing Act, if you held a driver's licence or permit and you have been found guilty of the offence that you have pleaded to, I must cancel your licence or permit and disqualify you from obtaining another one for at least the minimum, in this case 24 months.
162The prosecution also seeks a finding be made pursuant to s89C of the same legislation, that the offence was committed under the influence of alcohol or a drug which contributed to the offence, and for reasons that should be self-evident, I make that finding.
163I have set the disqualification period at five years. Your driving history is poor. You represent a danger to other road users, especially if you relapse into drug use.
164I have attempted not to unduly hamper your prospects on parole when and if you are released, but regrettably you will be disqualified for a substantial period of time when and if that happens - that is unavoidable. That period of disqualification starts now, meaning at best you would not be eligible for relicense, if ever, until 2030.[54]
[54]I have had regard to the principles in R v Novakovic(2007) 17 VR 21, and Koukoulis v The Queen [2020] VSCA 19, when arriving at this period.
165Finally, I will deal with the question of remitting other related charges back to the Magistrates Court for hearing at a future date, and I will liaise with the parties via my associates via email.
166I have typed my own reasons; you can see that they are not perfect, and I reserve the right to clarify some of the expression and typing. But can I stress; they are not for further distribution, they are for the purposes of you following the sentence and being able to debrief your client, Mr Morrissey, and family and friends, and your instructors, Ms Malobabic. Are there any other orders that I need to make.
167MS MALOBABIC: No, Your Honour.
168MR MORRISSEY: No, Your Honour.
169HIS HONOUR: Can I thank counsel for their considerable assistance. I will leave the bench.
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