Director of Public Prosecutions v Kanyi
[2025] VCC 879
•25 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-01524
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERIC KANYI |
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JUDGE: | His Honour Judge Palmer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 June 2025 | |
DATE OF SENTENCE: | 25 June 2025 | |
CASE MAY BE CITED AS: | DPP v Kanyi | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 879 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Negligently causing serious injury – Recklessly engaging in conduct that placed another person in danger of serious injury – Breach of an alcohol interlock condition – Person in charge of vehicle exceed prescribed blood alcohol content within three hours of driving a vehicle – gross negligence – driving highly intoxicated by alcohol and traces of cannabis – catastrophic injuries to victim – childhood distress – Bugmy – alcohol abuse – third offence involving high blood alcohol content – efforts made toward rehabilitation – remorse
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Road Safety Act 1986 (Vic)
Cases Cited:Harrison & Rigogiannis v The Queen (2015) 49 VR 619; DPP v Barry [2017] VSCA 344; Abbott v The Queen [2021] VSCA 149; Cook v The Queen [2021] VSCA 293; Byast v The Queen [2021] VSCA 344; DPP v Thompson [2016] VCC 302; DPP v Radalj [2018] VCC 2165; DPP v Jones [2019] VCC 935; DPP v Tuliau [2022] VCC 1961; Bugmy v The Queen (2013) 249 CLR 571; DPP v Herman [2021] VSCA 160; Hurst v The King [2023] VSCA 286; R v Verdins (2007) 169 A Crim R 581.
Sentence: 6 years imprisonment with a non-parole period of 3 years; loss of license for four years; alcohol exclusion order.
6AAA: Nine years imprisonment with a non-parole period of five and a half years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Stephanides | Office of Public Prosecutions |
| For the Accused | Ms B Johnston | Emma Turnbull Lawyers |
HIS HONOUR:
Circumstances of offending[1]
[1] The detailed circumstances of offending are set out in the Summary of Prosecution Opening upon Plea (7 May 2025, Exhibit P1). I have also viewed the dashcam and CCTV footage referred to in the opening: Exhibits P2 and P3. I have read and taken into consideration Prosecution Submissions on Sentence (6 June 2025); Defence Outline of Submissions for Plea (11 June 2025, Exhibit D1); Patrick Newton, Confidential Psychological Assessment (26 May 2025, Exhibit D2); and the other tendered material.
Eric Kanyi, on the evening of Saturday 10 February 2024, you met with your friends Elphas Kamuren and Patrice Lumumba at the home of Mr Kamuren’s elder sister Sheilah. You were subject to zero alcohol and interlock conditions, but drove to Ms Kamuren’s home in a Kia Rio hatchback belonging to your partner, Natalie Mizzi. It was not fitted with an interlock.
After you had been there for some time the three of you decided that you would go to your house to drink. Ms Kamuren thought that you were intoxicated and tried to get you to stay. Mr Lumumba was also concerned that you were unfit to drive. Despite that, the three of you left in the Kia, with you driving. At some point you picked up another friend, Ian Nganga.
At approximately 10.37 pm, the Kia was recorded – by the dashboard and rear view cameras of a car belonging to Abir Chowdhury – on the Monash Freeway approaching Springvale Road. I have viewed the ensuing footage, and you were driving in a highly erratic, alarming and dangerous fashion: speeding up (beyond the speed limit), slowing down, tailgating, cutting across lanes (sometimes directly in front of another car), and struggling to stay on a straight line.
At approximately 11.22 pm, the Kia is recorded – by a CCTV camera installed on a house in Barter Crescent in Forest Hill – driving at high speed north along that street. Barter Crescent is a single lane residential no-through road. You drove to the end of the street, and turned around. You can be heard and then seen driving at high speed back down Barter Crescent. Just after the Kia goes out of view, there is a loud bang. That was you crashing into a parked car. Police estimate that at the moment of impact you were travelling at approximately 74 km/h (in a 50 km/h zone).
Local residents heard the crash, and called 000. You were injured and one of your passengers pulled you out of the car. Mr Kamuren had been sitting behind you, not wearing a seatbelt. One of the police officers saw what he believed to be his brain exposed. His injuries were life-threatening. At one point, Mr Kamuren’s sister Sheilah was asked whether she wanted to switch off his life support system. She chose not to.
A sample of your blood was taken approximately two hours after the crash: it showed a blood alcohol content (BAC) reading of 0.288%, and traces of cannabis.
You have pleaded guilty to two indictable offences:
a.Negligently causing serious injury (to Mr Kamuren), contrary to section 24 of the Crimes Act 1958, the maximum penalty for which is 10 years imprisonment (this charge relates to your driving on Barter Crescent); and
b.Recklessly engaging in conduct that placed or may have placed another person (namely, Mr Nganga, Mr Lumumba and other road users) in danger of serious injury, contrary to section 23 of the Crimes Act 1958, the maximum penalty for which is 5 years imprisonment (this charge relates to your driving on the Monash Freeway).
You have also pleaded guilty to two related summary offences:
a.Breaching your alcohol interlock condition, contrary to section 50AAD of the Road Safety Act 1986, the maximum penalty for which is two years imprisonment; and
b.Having, within three hours of driving, a BAC over the prescribed limit, contrary to section 49(1)(g) of the Road Safety Act 1986, the maximum penalty for which is 18 months imprisonment.
Objective seriousness and moral culpability
Your offending, on the first charge, was extremely serious.[2] Your driving was grossly negligent:
a.You chose to drive while highly intoxicated, in breach of your zero alcohol and interlock conditions, and in disregard of Ms Kamuren’s warnings;
b.You drove at high speed down a relatively narrow residential street;
c.Your driving on Barter Crescent was not an isolated instance of dangerous driving (as is shown by the footage of you driving on the Monash Freeway);
d.Your level of intoxication was such that you were incapable of having proper control of a car; and
e.The cannabis in your system would have compounded the effects of the alcohol.
[2] See Harrison & Rigogiannis v The Queen (2015) 49 VR 619; and DPP v Barry [2017] VSCA 344 at [62]
Short of actually dying, it is also hard to imagine anything worse than the catastrophic injuries suffered by Mr Kamuren, which have caused him global, significant and permanent deficits:[3]
a.He requires full time nursing care;
b.He is unable to speak, and can only communicate through eye gaze at a yes or no card;
c.He cannot use his mouth and has to be fed by a gastric tube;
d.He has ongoing spasticity and is unable to use his arms or legs;
e.He is incontinent;
f.He suffers from regular seizures;
g.Both the seizures and the medical management of the seizures further reduce his functioning; and
h.His condition is unlikely to improve.
[3] See the additional evidence of Mr Kamuren’s occupational therapist, Joanne Coleman (27 May 2025), and speech therapist, Clare Douglas (22 April 2025).
Sheilah Kamuren has also been terribly affected by your crime.[4] So, no doubt, have other members of Mr Kamuren’s family. For Ms Kamuren, the stress of carrying responsibility for Mr Kamuren and their family back in Kenya has been enormous. At times she has been unable to sleep, and has even felt suicidal. She has had to work longer hours to pay for all the expenses that are not covered by the TAC. She worries that the care she gives to Mr Kamuren may mean that she will never be able to marry or have children of her own.
[4] Sheilah Kamuren, victim impact statement (23 May 2025).
I also consider your driving in the second charge (on the Monash Freeway) to be a reasonably serious example of the offence of conduct endangering other persons:
a.As already noted in relation to the first charge, your level of intoxication was such that you were incapable of having proper control of a car and the cannabis in your system would have compounded the effects of the alcohol;
b.It was not an isolated act of dangerous driving, but persisted for an extended period of time;
c.It was part of an even longer period of time when you were driving while intoxicated,[5] which ended with the crash that caused serious injury to Mr Kamuren;
d.Your driving appears to be almost deliberately dangerous and threatening towards other drivers, such as Mr Chowdhury; and
e.You endangered a large number of people, including both other road users and your own passengers.
[5] Albeit, there is no evidence as to what your driving was like other than during the part recorded by Mr Chowdhury, and you are not charged or being punished in relation to that longer period of driving.
It is obvious that general deterrence, just punishment and denunciation are important sentencing purposes for offending of this kind. Your counsel also accepts that the seriousness of your offending demands a substantial term of imprisonment with a non-parole period. This is consistent with current sentencing practice.[6]
[6] The parties referred me to, and made submissions about, Abbott v The Queen [2021] VSCA 149; Cook v The Queen [2021] VSCA 293; Byast v The Queen [2021] VSCA 344; DPP v Thompson [2016] VCC 302; DPP v Radalj [2018] VCC 2165; DPP v Jones [2019] VCC 935; and DPP v Tuliau [2022] VCC 1961. I have considered, and taken into account, all of these decisions, obviously giving greater weight to the decisions of the Court of Appeal.
I have taken the conduct on which the second charge is based into account in determining the seriousness of the first charge; I have also taken the conduct on which the two summary offences are based into account in determining the seriousness of each of the indictable offences. I therefore need to be careful to avoid double punishment.
I will do this by ordering that the sentence for breach of the interlock condition be served concurrently with the sentence for charge one, and that the sentence for breach of the zero alcohol condition be served substantially concurrently.[7] However, charge two is based on distinct offending from charge one and therefore requires some additional, separate punishment; I will therefore order some cumulation as between those two charges.
[7] I will order a small amount of cumulation because of the fact that this is your third drink driving offence, confirming the need for specific deterrence for this kind of offence.
Personal circumstances and subjective matters
You were born in Kenya in 1993. You are now 32 years old. You grew up in a poor area of Nairobi, but were given government funding to attend a secondary boarding school. You were suspended several times but as you matured your behaviour improved and by the middle years of your schooling you were made school captain and won awards for badminton and poetry.
In 2007 there was major political upheaval in Kenya. You and a friend were hiding from the violence on the balcony of an apartment building when your friend was struck in the neck by a stray bullet and died. You suffered further distress when your uncle, who suffered from depression, killed himself. I accept that the trauma of these events continues to affect you and give that weight in the sentencing process. [8]
[8] Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrman [2021] VSCA 160 at [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); Hurst v The King [2023] VSCA 286 at [65]-[71] (Macaulay and Whelan JJA).
You came to Australia in 2013 and studied for a qualification in disability care. You worked in disability care until your clearance was revoked as a result of your recent offending. Since then, you have been working as a machine operator in an aluminium factory, which is much less well paid. You have permanent residency of Australia, but not citizenship.
You have a problematic relationship with alcohol. You were convicted of drink driving offences in 2015 and 2016, both charges involving high BAC readings (0.193% and 0.167%, respectively). You also drove while disqualified in 2016. Although you have no other criminal history, your history of drink driving offending and your disregard of your alcohol and interlock conditions means that there is a need for specific deterrence.
You have been with Ms Mizzi since 2014, and you have two sons: Huey (aged nine) and Haze (who is almost two). Both have special needs to some extent. You are the bread winner for your family. Your relationship with Ms Mizzi broke down in 2018 due to an escalation in your drinking (after an ex-girlfriend had also suicided), and you spent some time homeless.
Since your arrest, you have made significant efforts towards your rehabilitation. You completed a men’s behaviour change program and a substance dependence and addiction program.[9] You have completely stopped drinking and using other substances. You have attended 17 sessions with a psychologist. Perhaps for the first time, you are facing the fact that alcohol changes you into a different and irresponsible man.
[9] Divine Living Solutions, two certificates of completion (26 June and 6 May 2024, Exhibit D3).
You are genuinely and deeply remorseful for your offending and the impact it has had on Mr Kamerun and his family. [10] You have continued to work to support your own family. Your colleagues, mental health workers, family and Ms Mizzi’s family all speak highly of your character.[11] Given all this, I am confident that you have excellent prospects for rehabilitation.
[10] See letter of Eric Kanyi (1 June 2025, Exhibit D5).
[11] See bundle of character and letters (Exhibit D4).
I accept that you have an anxiety disorder which will make prison weigh more heavily on you; and that prison is likely to worsen this condition. [12] I accept that your concern about your family, and about your possible deportation at the end of your sentence, will also make your time in prison weigh more heavily on you.
[12] R v Verdins (2007) 169 A Crim R 581 (limbs 5 and 6).
You pleaded guilty at the earliest reasonably opportunity and thereby saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty. Your plea confirms your willingness to accept responsibility for your offending and your remorse. I will reduce your sentence because of your plea.
Despite these factors in mitigation, the seriousness of your offending is such that you must serve a substantial term of imprisonment. I will, however, seek to support your pathway to rehabilitation by setting a non-parole period that may give you the opportunity of earlier release.
Orders
If you had not pleaded guilty, I would have sentenced you to nine years imprisonment, with a non-parole period of five and a half years. Because you pleaded guilty, I am instead imposing the following sentence:
a. On the charge of negligently causing serious injury, I convict you and impose a sentence of five years imprisonment (this is the base sentence).
b. On the charge of conduct endangering persons, I convict you and impose a sentence of two years imprisonment, eleven months of which are to be served cumulatively on the base sentence.
c. On the charge of breaching your interlock condition, I convict you and impose a sentence of six months imprisonment, to be served concurrently with the base sentence.
d. On the charge of exceeding the prescribed BAC, I convict you and impose a sentence of nine months imprisonment, one month of which is to be served cumulatively on the base sentence.
e. This makes for a total effective sentence of six years imprisonment.
f. I order that you serve three years of your sentence before you become eligible for parole.
g. I declare that you have already served 34 days of your term of imprisonment as pre-sentence detention.
h. I cancel your driving licence and disqualify you from obtaining a further licence for a period of four years.[13] I declare that the offences were committed while under the influence of alcohol which contributed to the offending;[14] and order that the court records the level of alcohol found to be present in the sample, namely 0.288 grams per 100 millilitres of blood.[15]
[13] Road Safety Act 1986, ss 50(1) and (1A); and Sentencing Act 1991, s 89(1).
[14] Sentencing Act 1991, s 89C.
[15] Road Safety Act 1986, s 49(7).
i. I make an alcohol exclusion order for two years commencing from your release from custody.[16]
[16] Sentencing Act 1991, ss 89DD and 89DE. I am satisfied of all of the matters set out in s 89DE(1), including that Mr Kanyi has not previously been the subject of an alcohol exclusion order.
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