Director of Public Prosecutions v Kirwood
[2025] VCC 1320
•8 September 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-25-00241
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN KIRWOOD |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2025 | |
DATE OF SENTENCE: | 8 September 2025 | |
CASE MAY BE CITED AS: | DPP v KIRWOOD | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1320 | |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Culpable driving causing death; Negligently causing serious injury; Childhood trauma; High blood alcohol; Post-traumatic stress disorder; Attention Deficit/Hyperactivity Disorder
Legislation Cited: Crimes Act (Vic) 1958, Sentencing Act (Vic) 1991
Cases Cited:DPP v Dalgliesh (a pseudonym) [2017] HCA 41 - Bugmy v The Queen [2013] HCA 37; Marrah v The. Queen [2014] VSCA 119; DPP v Herrmann [2021] VSCA 160; Ale v The King [2025] VSCA 92; Wilson v The King [2023] VSCA 276; Hurst v The King [2023] VSCA 286; Sabbatucci v The Queen [2021] VSCA 340; Hu v The King [2025] VSCA 60; R v O’Neill [2015] VSCA 325; R v Engert (1995) 84 A Crim R 67; R v Verdins [2007] VSCA 102; R v Barci and Asling (1994) 76 A Crim R 103; R v King [2011] VSCA 69; Brown v The Queen [2019] VSCA 286
Sentence:Term of imprisonment of 8 years 8 months, Non-parole period of 5 years 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Johnston | Office of Public Prosecutions |
| For the Accused | Mr M. Weinman Ms E. Casey | Senia Law |
HIS HONOUR:
1Darren Kirwood, on 9 March 2024, Kylie Doak visited her ex-husband in hospital in Geelong. He was in hospital having survived a near-fatal motor vehicle collision some months earlier. Ms Doak took her daughter, Rachel Doak, with her to see her injured father. Rachel suffers twin difficulties of an intellectual disability and autism. She relied very significantly on her mother.
2The two women left Geelong late in the evening, with Kylie Doak driving back to their home in Deans Marsh. At around 10 pm, Ms Doak was driving in a southernly direction along the Deans Marsh-Winchelsea Road. As she drove in a perfectly safe and orthodox way around a sweeping bend near
Ingleby Road, you Mr Kirwood were driving in the opposite direction.3You drove onto the wrong side of the road, well into Ms Doak's lane, hitting her car head on. Kylie Doak died shortly after the collision. Her daughter Rachel was seriously injured. To understand how you came to be driving so badly I need to go back to earlier in that evening.
4You had been at a wedding in Lorne and drinking strong spirits through the afternoon and early evening. Your plan had been to sleep in your car. However, in your state of intoxication and with a sense of not being accepted by old friends, you made a catastrophically bad decision not to stay overnight but to drive home towards Geelong.
5You were observed, by other drivers travelling in both directions, to be driving erratically, putting yourself and other road users at risk. In particular, by not staying on your side of the road while negotiating the many bends. The road you took from Lorne, that is the Lorne-Deans Marsh Road, travels up the hill known as Benwerrin to the Mount Sabine Road before mainly descending down towards the township of Deans Marsh. The uphill and then the road to Deans-Marsh is winding with many blind corners. Two witnesses who drove behind you from Lorne for some time saw you constantly driving into the opposite or wrong lane, sometimes as far over as to be in the dirt on the wrong side of the road. You were seen to hit a reflector pole on the wrong side of the road. You were inconsistent in your driving speeds also indicating erratic driving behaviours.
6One of the drivers was so concerned that he called Triple 0 to report your risky driving. As it turned out, the first police who arrived at the collision scene were en route to intercept you as a consequence of the Triple 0 call. Unfortunately, they were not able to intercept you before the tragedy unfolded.
7Prior to the fatal collision, you had a very near miss with another driver heading towards Lorne for the night. This driver was well aware of the dangers of winding country roads and was driving well below the 80-kilometre speed limit. He had seen your headlights approaching. You then took the blind corner veering onto the wrong side of the road, causing this driver and his passenger great fear as he applied emergency braking, pulling as far as he could to the side of the road. You corrected back onto your side of the road just in time so as to avoid a head-on collision.
8With this near tragedy, you did not stop and reconsider whether it was best not to drive or to try to drive onwards to Geelong. Rather you drove on in the state you were in, a further 20 kilometres or so through Deans Marsh and onwards towards the main Princes Highway. Again tragically, you did not drive in a safe manner; rather near Ingleby Road you again crossed over onto the wrong lane colliding with Ms Doak's car. Your car was well onto the wrong side of the road, a distance of over 2 metres from the centre line. In other words, this was no minor fault in keeping to the correct side of the road. The need to be cautious and stay on your correct side of the road was emphasised, as it were, by there being double solid lines between the lanes going around the curve.
9You gave Ms Doak no chance, coming onto her around the bend on her side of the road. There was no braking detected before impact from either her vehicle or yours. The impact set an alarm off in Rachel Doak's phone, and sent a warning to Rachel's NDIS carer, a Miss Callahan. Miss Callahan called Rachel who was injured, dazed, confused and trapped in the car. Miss Callahan remained on the phone to Rachel giving her much-needed comfort for no less than the next one hour and 20 minutes, while Rachel was extracted from the car and transported to hospital with serious internal injuries.
10I mention this, because of the sheer selflessness and compassion shown by
Ms Callahan who could hear in the background the laboured and indeed last breaths of Kylie Doak. Ms Callahan also contacted Rachel's Auntie, Kylie's sister, Sylvia Doak, who went to the hospital to assist. I will speak shortly of Sylvia Doak's compelling victim impact statement.11As noted, the police who were already heading to intercept you arrived at the scene. Prior to that a civilian, Ms Freeman, gave great help and comfort to those who were injured and Ms Kylie Doak. She also spoke with you. Paramedics did all they could in transporting Kylie towards the Winchelsea football ground to meet with the helicopter but sadly, Kylie Doak died upon route.
12You, Mr Kirwood, were distraught and agitated, wishing you had died and asking the police to kill you. Your blood alcohol content was ultimately analysed, resulting in a level of 0.166 being discovered - that is over three times the legal limit. Also found in your blood was the drug Venlafaxine, which you were taking for ADHD or depression. I will refer to that again briefly later.
13The injuries sustained by Rachel Doak were serious, as defined in our
Crimes Act.[1] Her injuries were summarised as a long 19-centimetre laceration to her forehead, deep enough to be through to bone level; bruising and laceration under her right eye; abrasions and bruising to her right arm, right thigh, left groin and both hands; fractures to two right side ribs, and bruising and pain in her abdomen and left shoulder.[1]Crimes Act (Vic) 1958, s.15.
14These latter injuries and Rachel's complaints of pain caused the emergency surgeon to conduct first exploratory keyhole surgery. What I followed, as a result of what was found, was significant lower bowel emergency surgery to remove a necrotic section of her bowel, arising because the blood supply to her lower bowel had been cut off. During surgery other tears were found to the area where her large and small bowels joined, and to her colon.
15Whilst under sedation from the bowel surgery, a plastic surgeon also repaired the long deep laceration to her forehead. Rachel Doak was kept in hospital for 10 days.
16Before I turn to her victim impact statement, I wish to refer to the victim impact statement of Sylvia Doak, Kylie's sister and Rachel's Aunt. There are aspects of that victim impact statement that give context to what was written by Rachel.
17In her victim impact statement Sylvia describes her sister as, 'My lifelong best friend'. She spoke of the trauma of going to the hospital to identify her body and then telling her family, her brother, her parents and Kylie's children what had occurred and the fact that Kylie had died. She also had to deal with Rachel's serious injuries and, in particular in the context of Rachel's difficulties, combining that with the fact that her mother had died.
18She also explained that Rachel and her sister Melissa from that point lived with her. Kylie's son Paul wanted to continue to live at the family home on the farm and the family did what it could to support him. But neither of the girls felt able to go back to their home with Kylie no longer being there. Rachel was even giving away or throwing out belongings to distance herself from memories connected to the life of her mother.
19Both Melissa and Rachel struggled to visit her parents, their grandparents, who lived just across the road from the farm. They were finding the whole process of going close to their home where Kylie lived overwhelming and confronting. She goes on to explain that Rachel had a formal diagnosis of autism and neurodiversity as a teenager. For many reasons, Melissa has never been formally diagnosed but she does have significant neurodiversity and is on the autism spectrum and struggles with many facets of her life.
20Melissa lost her mother and her best and perhaps only friend that day. Rachel, in particular, felt displaced and struggled to find her place and create her very necessary routines and spaces. So what occurred was over the past six months since she wrote the victim impact statement, Rachel transitioned to supported and independent accommodation with the help of the NDIS. She explains that due to Rachel's complex nature, she's never really able to blend with spaces and environments; it is either one or the other. And that means in the current situation, she is not able to live independently from the family and stay in touch with the family simultaneously. The glue there in effect, I interpret, was
Kylie Doak.21So, the family are devastated and miss Rachel terribly and hope that she will be reunited with them one day. Melissa is terribly depressed. She lives with Sylvia, isolates herself in her room, goes to work, comes home, does not engage, and is not willing to talk to her or anyone about the accident or her mother. There is significant support being provided to her.
22Sylvia herself suffers terribly on an emotional level since her sister died. She is on antidepressants, she fears going to sleep, she has intense nightmares, struggles to wake up, is constantly tired. She runs a small business and it suffered financially but had the support of the community. And she says,
'I have changed a lot within myself. While I no doubt appear to be picking up the pieces, being strong and supporting everyone in the family and close friends and the daycare families and so on.'
She says;
'Actually I feel very disconnected. I feel like I'm just going through the motions most of the time. Genuine happiness eludes me.'
23She says she has never seen her brother cry so much and never seen her father with such sadness in his eyes. Her mother's faith is able to assist her. She concludes that Kylie and she were always close. There was never a day where they did not get in touch with each other in some way, shape or form. They shared so much as parents of their children growing up. She cherished that very much and now it is passed.
24Rachel, in her victim impact statement, writes that her life has changed dramatically since the accident, more so since the start of 2025. She felt in January of 2025 an urge to escape and live somewhere else with less memories of her mother and 'not having her with me everyday provoking memories of the car accident that took her away.' So she transitioned to supported living in Geelong.
25She has difficulty sleeping, with being disturbed with nightmares. She was able to do some things that she enjoyed; volunteering at an op shop in the past, but that is not able to be done now albeit it is a future goal, but she cannot commit to it. So too was her plan to learn how to drive, and she was embarking upon that. She feels now that she will never be able to achieve that goal. She speaks about being out of the house and how it causes triggers for her. She cannot walk alone and requires support to leave the house. She has never been great at crossing roads but that is now almost impossible, with great anxiety being provoked. She has anxiety attacks weekly, rendering her unable to leave the house.
26If people speak to her, she just often completely shuts down. She finds things frightening and she does not know how to cope with things apart from putting on her earphones and listening to music. She finds any transport difficult even if it is public transport, things are crippling for her. She wants to just freeze and not move. To explain she says,
'The trauma and grief of the accident and the loss of my mother is almost impossible. I have not only mental scars but daily reminders by physical scars. I cannot put into words what this looks like to others, but the impact on me daily has changed my life forever.'
27She hopes that things will get better. She speaks about not being able to engage socially with people.
'At times when I did return home to visit Sylvia and my grandparents, the travel there was extremely challenging.'
28She did not feel secure and is not able to undertake, either physically or mentally the trips to re-engage, either by car or train, with her family.
29The crimes of culpable driving and negligently causing serious injury in the course of driving are self-evidently serious offences. That is made clear by the maximum terms Parliament has fixed for the crimes being 20 years and
10 years respectively. Further, Parliament in recent years has designated culpable driving as a standard sentence offence. Thus, a further statutory guidepost exists for culpable driving being eight years for an example of culpable driving at the mid-range by reference to the objective factors. I will say more of the standard sentencing regime shortly.30Also, Parliament has designated culpable driving as a category 2 offence, meaning that in the circumstances of this case, a gaol sentence is the only option. What is plain enough is, given the law has always given utmost value to the sanctity of life, a crime where an offender ends the life of another person is a most serious crime. That being well understood I need to assess how serious was your example of this crime. The task is fundamentally assessing what you did. It is not so much about the absence of factors evidenced in other examples of this crime or ones that could be imagine.
31Foremost in assessing the gravity of what you did is your very high blood alcohol content. This level of 0.166 elevates the seriousness of your crimes. It is not the highest reading that has come before the courts, but it is in the upper echelons. You were plainly too affected to drive on any road, much less the very taxing roads from Lorne to Deans Marsh and then beyond towards Winchelsea.
32This leads to the next serious factor which was your erratic and risky driving as evidenced by the other drivers, especially the near miss, or near head on collision coming around a blind corner before Deans Marsh.
33Your driving was such that it caused another responsible driver to call Triple 0 to try and get you intercepted. As I say, unfortunately you were not intercepted before the risk became a reality. The point to be understood is that you too, even in the midst of your intoxicated state, should have woken up to yourself as to how dangerously you were driving. So often in these courts we hear intoxicated drivers say, 'I thought I was okay' until their drunkenness causes tragedy.
34You had a number of real-life warnings before the final tragedy unfolded. Those being the warnings of going on the wrong side of the road as you went up the Deans Marsh Road, going so far as to be in the dirt on the wrong side of the road, on a winding mountain road at night, hitting the reflecting poles on the wrong side of the road and then finally, the near miss. Your failure to properly respond to these ongoing and increasingly powerful warnings before going onto the wrong side of the road killing Kylie Doak and seriously injuring Rachel Doak, make your crimes the more grave.
35You did, before you went to the wedding, appreciate that enjoying the wedding with some alcoholic drinks would mean driving home was not appropriate. You catered for this by having a mattress in your car. You could have and should have taken this option, even at worst, a short distance from the wedding, given the unfortunate social dynamic that seemed to have emerged. While many of these factors go to your moral culpability as well, it seems to me as to the gravity of your offence, it is well open for me to see it in the mid-range.
36Your counsel submitted that a finding that your offending was in the mid-range was accurate and appropriate. Prosecution submitted that it was above the mid-range, but in the end, I do not think there was a great deal of difference between the parties.
37As with so many, if not all crimes arising from death and/or serious injury on the roads, this offending, this death of the much loved
Kylie Doak and the serious injury to her already vulnerable child Rachel Doak, was entirely avoidable. The Parliament, successive governments, the courts, the police, road safety agencies have, for decades, stressed the danger and the antisocial nature of drink driving.38It is both bewildering and frustrating that you, as an intelligent man with a job such as yours in Corrections which gave you a broad appreciation of the dire consequences of drink driving causing death and serious injury, could get in your car to drive on those roads so affected by alcohol and drive in the appalling way you did, until the almost inevitable tragedy occurred.
39As to whether there is anything in your own circumstances that lower what, at first blush, would establish a very high level of blame worthiness, I will defer this until I have considered salient aspects of your personal history. As is well known and articulated by our High Court in the important sentencing decision of Dalgliesh,[2] I must, in addition to assessing the circumstances of your offending, also factor in the circumstances of you as the offender.
[2]DPP v Dalgliesh (a pseudonym) [2017] HCA 41.
40You are now 33. You were born, raised and have remained in the Geelong area your whole life. Your childhood was a traumatic one. I have read the psychological reports from your treating psychologist and the respected medico-legal psychologist, Mr Cummins. I have read your counsel's insightful submissions on this topic and most importantly, I have heard your authentic account in your own evidence given on your plea. Thus, I do not need to descend into the raw details of what your father did to you and your family, as for sentencing purposes it is the impact of your childhood trauma on the sentencing process that matters most.
41I have, via your evidence, been left in no doubt that your father's alcohol fuelled violence and cruelty left a significant psychological mark on you. The level of intensity, the regularity, and the protracted nature of the violence inflicted on your mother, sister and you was appalling and profound.
42There are two probably interconnected sentencing principles that flow from the fact of the violence and frightening childhood upbringing. First is that spoken of by the High Court in Bugmy[3], and later in our Court of Appeal decisions of Marrah,[4] Herrmann[5] and many others. In your case, what was said by the Court of Appeal in Ale[6] in May of this year has relevance, as well as what was said in Wilson.[7]
[3]Bugmy v The Queen [2013] HCA 37.
[4]Marrah v The. Queen [2014] VSCA 119.
[5]DPP v Herrmann [2021] VSCA 160
[6]Ale v The King [2025] VSCA 92
[7]Wilson v The King [2023] VSCA 276
43What was said was that in applying these principles, it is necessary to recognise that the effects of profound childhood deprivation do not necessarily diminish with the passage of time and repeat offending. In every sentence, it is necessary to give full weight to an offender's deprived background. Consistently with these propositions, conduct by an offender pointing towards a prosocial outlook for example, periods of gainful employment or commitment to education, will not necessarily prevent the application of the Bugmy principles. Further, there is nothing in Bugmy requiring that childhood deprivation be profound, before a sentencing Judge considers whether deprivation might be relevant to the assessment of moral culpability.
44In Wilson, it was said that notwithstanding the dysfunctional and traumatic nature of the applicant's upbringing in early years, he nevertheless managed to obtain an education for himself and be engaged in gainful employment which very much stands to his credit. However and contrary to the proposition relied on by the sentencing Judge, the applicant's achievements in that respect did not have the effect of precluding the application or the principles stated in Bugmy.
45In your case, you have through resilience managed to establish a very good working history and work ethic, together with a law-abiding prosocial attitude. Your childhood deprivation did not lead, as it often does, to a lack of a moral compass or impulsive or offending behaviour that mirrors what occurred in that upbringing. Quite to the contrary in your case. Thus in the case of Hurst[8] in 2023, the Court of Appeal said the following, citing the important decision of Sabbatucci[9]. What was said was:
‘Deprivation will not, however, always result in amelioration of sentence. The sentencing judge must evaluate the extent to which past disadvantage has featured in the offender's upbringing and impacted the course of their life.
As this court said in Sabbatucci v The Queen:
"Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case, falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in anyway explanatory of the offending.’
[8]Hurst v The King [2023] VSCA 286, para 69
[9] Sabbatucci v The Queen [2021] VSCA 340, para 6
46What becomes important for sentencing considerations is what factors childhood deprivation impact upon. In some instances, the impact can be connected to the offending so as to warrant a reduction in the level of moral culpability. In other instances, the circumstances are such as to warrant a more general application, essentially ensuring that childhood trauma is considered as permitting a higher level of compassion or a more merciful sentence. It was however expressed in terms of levels of moral culpability in Bugmy when the High Court said:
'The circumstances of an offender having been raised in a community surrounded by alcohol, abuse and violence, it may mitigate sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.'
47In Herrmann[10] the Court of Appeal said:
'The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such nexus.'
[10]DPP v Herrmann [2021] VSCA 160, para 45
48As Victoria Legal Aid pointed out in their submission as amicus curiae:
'The impact of disadvantage is complex, multi-layered, non-linear and not easily diagnosed or measured.'
49Thus the court in Herrmann[11] concluded:
'It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in offender's formative years.'
[11] Ibid, para46
50In your circumstances, it is clear your childhood trauma has contributed or is the commencement of your post-traumatic stress disorder complex. That condition has been exacerbated by workplace attacks and threats while you were working in a high security prison as a prison officer. In light of what was a relentless, violent upbringing and the development of your complex post-traumatic stress disorder, I have no difficulty in concluding those factors are relevant to sentencing.
51The circumstances of the offending are such that it cannot be said there is a clear causal connection to the offending; that is, your complex post-traumatic stress disorder has a clear causal connection to the offending. Your counsel did not submit that there was such a nexus. The impact of your deprived upbringing is of a general kind. In my view, that can relate to your moral culpability in lowering the level of denunciation and thus punishment. The same effect is achieved if I emphasise what the Court of Appeal said in Herrmann at paragraph 46 which I have referred to. That is, it is the mark of a humane society that I take into account the circumstances of your childhood trauma. So in my view, all of your childhood trauma warrants a more compassionate sentence than might otherwise be the case.
52To expand upon your personal circumstances, especially with regard to your employment; you struggled through school to Year 10; you moved into warehouse and retail jobs sticking with those jobs as you got them, so as to help your mother financially at your young age as she finally was able to leave your father. This is very much to your credit.
53You moved into working with Corrections Victoria in 2017 when you were in your mid-20s. As you explained in your evidence before me, it was a taxing and thorough engagement process to become a prison officer. You were, over the years that you served as a prison officer well regarded, indeed highly regarded and you were selected thus for the emergency response group within Corrections based at Barwon Prison. This involved you in high conflict situations with many volatile, violent and intractable offenders.
54You were promoted to the level of senior prison officer. You remained employed until June of 2025 when your upcoming plea resulted in termination of your job and your career. It is relevant that there has been significant extra curial punishment already in the form of the loss of your career. I have factored that into the sentencing calculations.
55In the psychological reports of your treating psychologist and the
medico-legal report, and as given in evidence by you, there have been significant threats and assaults upon you while you worked as a prison officer. The considered psychological evidence establishes that you have a diagnosis of complex post-traumatic stress disorder arising, as I have mentioned, from childhood trauma and also from workplace violence and threats. Also that is now added to by the trauma you experience because of this offending, and you realising that you have taken the life of a much-loved woman and seriously injured her daughter and as you realise what the consequences will mean.56In addition to this diagnosis and as a consequence of your lengthy treatment, 123 psychological sessions over three years, you were referred to an expert psychiatrist who diagnosed you with ADHD. That diagnosis led to appropriate ADHD medication. That drug was found in your system via the toxicology reports following the collision. The presence of this drug seemed at first to take on more significance than it deserved. The Prosecution initially contended that to drink while taking the medication was unwise. In the end the truth of the matter is, which was acknowledged by the Crown ultimately, to drive at all after drinking so much was the reprehensible conduct whether there was ADHD medication involved or not.
57In my view, the evidence of the Prosecution expert as to the ADHD medication maybe exacerbating the effect of alcohol, does not establish a connection between your dual diagnoses of ADHD and complex post-traumatic stress disorder and the offending. That is not a pathway in my view to establish a connection. However your mental health problems in and of themselves and especially because, particularly, the post-traumatic stress arises from you suffering assaults and threats from prisoners, means you will, in my view, no doubt find prison more onerous than someone without your mental health problems and where they came from.
58Also, I consider in your circumstances there is a risk that your mental health conditions, depression, anxiety, post-traumatic stress disorder may deteriorate. These factors do to a degree, mitigate the overall penalty.
59Your counsel submitted your mental health warrants amelioration of the primary sentencing purpose of general deterrence. Counsel's submission was that because of your mental ill health, there ought be a moderation from the full and heavy weight of general deterrence. It was accepted that general deterrence is the primary sentencing purpose in cases of this nature. Your counsel referred to the important Court of Appeal decision of Hu[12], in April of this year, which dealt with this concept of offenders impaired mental functioning at the time of offending or at the time of sentencing reducing the weight to be given to the sentencing purpose of deterrence to others.
[12]Hu v The King [2025] VSCA 60
60What your counsel submitted was that there was a nexus between your impaired mental functioning; that is, your complex post-traumatic stress disorder and ADHD and the crime. However, if this was not established, your counsel submitted that the nature and severity of your impaired mental functioning was such that the community would not be comfortable with you being used as a vehicle for the full weight of general deterrence. That is, that general deterrence ought be suitably moderated.
61The Prosecution contended to the contrary, referring to the decision in Hu and in O'Neill[13] in contending that what was important was an assessment of the nature and severity of any impaired mental functioning which in your case prosecution submitted was modest. The second factor was that it is necessary to consider any realistic connection between the impaired mental functioning and the offending, and analysis on that would lead to a conclusion that an offender's appreciation of the wrongfulness of the conduct was compromised by the impaired mental functioning.
[13] R v O’Neill [2015] VSCA 325
62In this case there was, so the Prosecution submitted, no realistic connection, but more importantly your impaired mental functioning did not operate in any way to compromise your understanding of the wrongfulness of your conduct. That is a submission that in my analysis is accurate. The third point is one that I had perhaps over emphasised in a more simplistic approach than that adopted by your counsel and the prosecutor. And that is that the impaired mental functioning must be of a kind leading the community to recoil if the offender with that impaired mental functioning was used as an example to others. The prosecutor referred to the judgment in O'Neill as cited in Hu[14], where it was said,
'There must be an established evidentiary basis for moderating the principles of general deterrence in a particular case. For that to occur it is not sufficient that the offender suffer a particular mental impairment. There must be proper, and informed, consideration of how that impairment might have either materially diminished the capacity of the offender to reason appropriately at the time of the offence concerning the wrongfulness of his or her offending, or [and I give emphasis to this] of how the offender's condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing. '
[14]Hu v The King [2025] VSCA 60, para 65
63The Court of Appeal in Hu[15] referred to this aspect of O'Neill as it has been articulated and as it was articulated by Justice Allen in Engert in these terms. What was said was the following:
'We note that there might be a residual set of cases where, even in the absence of realistic connection or causal link between the disorder and the offending, the relevance of general deterrence might be modified.'
[15] Ibid, para 72
64So much was recognised in O'Neil and in the New South Wales Court of Criminal Appeal in R v Enger[16]t. In Engert, Justice Allen said this:
'Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally maybe such that to sentence him with the full weight given to general deterrence might have no impact at all on others. Human sympathy would say, "Well you would not expect him to get the same sentence as someone else".'
[16]R v Engert (1995) 84 A Crim R 6, page 72
65In the end, your counsel submitted that you with your impaired mental functioning, that is post-traumatic stress arising from your exposure to childhood trauma and exacerbated by the violence in prison, was of a severity in nature that would lead the community to not be comfortable if you were used as the vehicle for the full weight of general deterrence. As I indicated, the Prosecution contended that, given the overall dimensions or nature of your impaired mental functioning and your capacity to leave a prosocial exemplary adult life, the community would be comfortable if the full weight of general deterrence operated in your case.
66In my view, while all your circumstances including your childhood trauma and subsequent post-traumatic stress disorder and its exacerbation, they are all important and do mitigate as I have stated already. They are not of the nature and severity now at sentencing, with respect to the matters raised in O'Neill, Hu and Verdins[17], such that there needs to be a moderation of the weight to be given to general deterrence. In my view, the community would not see it as repugnant to the underlying sense of humanity if you were sentenced like most others in your circumstances. That is the sentence is used to send yet again, the court's message that if you drink and drive and take a life and cause serious injury, then years of imprisonment await.
[17]R v Verdins [2007] VSCA 102
67Apart from your mental health issues, you have physical injuries arising from the collision that continue to cause difficulty and will in the immediate future while you are incarcerated. The injury you sustained was to your right ankle. You ultimately had a right ankle fusion in surgery performed on 4 July 2025, that significantly reduced your mobility. You had a mobility aid when you appeared for the plea and gave evidence. There will be likely some ongoing difficulties and loss of range of movement. This is a mitigatory factor, notwithstanding you were the cause of your injuries. In this respect I refer to what the Court of Criminal Appeal said in Barci and Asling[18] in 1994, and the Court of Appeal in
R v King[19], a culpable driving case in 2008.[18]R v Barci and Asling (1994) 76 A Crim R 103
[19]R v King [2011] VSCA 69
68It is conceded that you will be appropriately managed in custody. That said, I do consider some mitigation attributed to the fact that gaol will be harder because of your physical difficulties.
69As I have said, custody will be harder because of your employment, or previous employment as a prison officer. I have received a letter from Ms Jennifer Hosking and a verbal update from her. She is an assistant commissioner at Corrections. The letter indicated how you will be managed. The decision she will make is to have you at the protection prison where those like you, police officers and prison officers, are kept. That place, or the decision to put you there can only be made upon you being sentenced. There will be some apprehension up until that point.
70I note you did 11 days on remand without incident as I understand, but this stress to you remains a factor, however it appears there is amelioration of risks to your safety which are being, or likely to be well managed.
71It is important to note that just prior to commencing as a prison officer, you formed an important relationship. You married in 2018 and your son was born in 2020. Your marriage faltered just prior to the offending. The wedding was in fact one of the first social functions you attended without your previous partner. You were drinking more in this period. Notwithstanding the offending and the end of the relationship, your previous partner remains very supportive of you. Mainly because of your dedication to being a good father to your child.
72She wrote after outlining all the consequences of your offending on you and her and your son, the following:
'Despite everything, Darren has remained a deeply loving, dependable, and hands on father. He has also been an essential support to me, especially given my history of post-natal depression, bipolar disorder and borderline personality traits. He was a steady presence in our home, and even since our separation, he continues to play that vital role. His relationship with our son, as well as his stepchildren is strong and irreplaceable.'
73Others who know you best also wrote and spoke of your commitment to your son and your desire to do all you could to provide a stable upbringing of the kind you did not have. The grandparents of your son, that is your in-laws, Ms Beaumont wrote:
'Most importantly, Darren is a devoted and loving father to his son. Their bond is incredibly strong - His son looks up to him and confides in him, sees him as his best friend and greatest role model. The though of Darren's absence is heartbreaking to all of us. I have already witnessed [your] son's distress in his attempts to make sense of what is happening through recent counselling. He'll miss his dad more than words can express. [She goes on] I have also watched my daughter struggle deeply with the prospect of Darren not being around. He's a great friend and the person she has relied on most for the care and upbringing of [your] son. Darren is an essential co-parent and emotional support for her, and the impact of his absence will be profound for both of them.'
74Your father-in-law describes your greatest strength being your love and commitment that you show to your son. He expresses how you are so close and how you provide essential emotional support, guidance and care. He says, you are not a part-time parent. You are present, hands on and deeply engaged in every part of his life. Your absence from his world will be heartbreaking. It would leave a void that none of the others can fill no matter how hard they try.
75Equally concerning he says, is the impact on his daughter. She faces significant personal challenges over the years and you have been the stabilising presence. He is not only a co-parent but a reliable source of emotional support and strength. He wrote ‘I worry for her wellbeing without him being there to help raise their son.’
76After you separated from your first wife, you commenced a relationship with your current partner who you met through work. She remains supportive. She wrote a powerful testimonial outlining the significant stress of the incidents in prison before the collision as well as the heavy toll this offending and its consequences have had on you. She wrote of your considerable efforts and leadership at the prison, in particular through devising training programs for the staff to manage high risk environments. She also wrote of your strong bond with your son. One that will be very painful to deal with while imprisoned. Also of note is your eternal love and engagement with her children. She wrote of the great impact on you of this offending. She expressed it this way.
'Since the accident Darren has had continuous nightmares and finds himself unable to sleep most nights. Darren is consistently mentally, physically and emotionally exhausted most days and struggles to get out of bed due to his severe depression. He's had many moments of pure anguish where he has had crippling panic and anxiety attacks. Darren rarely leaves the house since the accident, only for school drop off, pick up, medical appointments. [She wrote that] I can say that in all the time I have known Darren he has been hardworking, honest and trustworthy with compassion and a big heart. He prioritises others.'
77She also spoke of your strong bond with your son and how you only ever wanted to be the best for him. He was your top priority and you endeavour to give him the best care physically and mentally. She emphasises how emotionally stressful it will be for each of you and he when you are separated.
78It is plain to your current partner, and in fact to the very many family friends and workmates who wrote to the court, and I read each of their testimonials, there are too many to quote here, but they all emphasised your deep remorse. It was a feature of every letter.
79But beyond what others who know you have reported to the court in their letters about your remorse, you yourself took the rare step in Victoria of giving evidence to express your remorse. You wrote a letter to the victim's family and to Rachel Doak. I saw you turn to those who were in court to speak directly to them of the pain and sorry you caused, and how deeply sorry you were for that. This was contrition in its true sense. You were not expressing regret for your predicament. You were authentic in telling them how ashamed and broken you are by what you did.
80I have not been as completely convinced of the remorse of an offender as I am of your remorse. I hope more who are remorseful or say they are will take the decent step of saying so to the court and to the victims directly and under oath and face any cross-examination that might come. Unlike other jurisdictions, it is rare in Victoria thus the weight to be accorded to your remorse is in my view to be greater than in almost or if not all other cases. In cases of this kind remorse of the kind you expressed is important to victims and to the community. So it is clear, to quote from your letter, you wrote:
'I am writing to express my profound and most sincere apologies for my reckless actions that directly caused the tragic accident that took the life of Kylie Doak and the serious injuries sustained by
Rachel Doak on the night of Saturday, 9 March 2024. I have been writing this for quite some time and still can't find the words to adequately convey the magnitude of my sorrow and regret for the irreparable pain and suffering I have caused. I take full responsibility for my actions that day. Driving while intoxicated was reckless and inexcusable. Since the accident I've been consumed by guilt and shame for my actions. Each day I wake up and wish I hadn't gone to the wedding at all, gave someone else my keys, or that I'd died instead and Kylie and Rachel made it out unharmed. [You conclude] I am truly deeply and wholeheartedly sorry.'
81Your plea of guilty is also important and saved valuable resources. It too was an expression of taking responsibility.
82I have no doubt you will resume your lawful ways after completing your sentence. The need to facilitate your rehabilitation is not great as you will remain on that lawful trajectory as part of your own character and relying on your own resources upon your release. This approach, or what I say in this regard, does not undervalue your rehabilitation or your good character. The sentencing purpose in this field is to establish conditions that facilitate rehabilitation. Those conditions for you would be release on parole. When and whether you are granted parole of course is for others, not the court. However, Parliament has intervened with respect to parole for this standard sentencing offence. I am required to impose 60 per cent of the head sentence for a total effective sentence involving a standard sentencing offence, unless it is in the interests of justice to impose a lower non-parole period.
83Your counsel's primary submission was to achieve a non-parole period lower than 60 per cent of the head sentence. Prosecution contended that there was no warrant for that course. The Court of Appeal in Brown[20] has given guidance to sentencing judges for standard sentencing offences and I have ensured that I have adopted the methodology outlined in Brown, including by ensuring the sentence is one that is the product of my instinctive synthesis of all relevant factors. As noted, the objective factors lead me to the view that your offence is at the mid-level of the range of seriousness. That does not lead to a particular sentence but leads to a careful consideration of the standard sentence of eight years' imprisonment.
[20]Brown v The Queen [2019] VSCA 286
84There has to be proper acknowledgement of the fact there were two victims. Thu, a portion of the sentence for the negligently causing serious injury to Rachel Doak, will be cumulative upon the sentence for the culpable driving.
85I have ensured that the sentencing purposes of denunciation and deterrence to others have been given due weight. They are important. I have had regard to the impact on Rachel Doak and upon the wider family as victims of this, arising from the death of Kylie Doak.
86I have not overlooked the need for some compassion and mercy given your personal history and circumstances, your past good character, your job as a prison officer and the loss of that career, and your ongoing mental health problems and in particular your deep and abiding remorse.
87Notwithstanding Parliament's requirement for the crime of culpable driving being the only option available is imprisonment, it still remains a grave step to gaol someone like you, and thus I have given anxious consideration to all aspects of the sentence, its length and that of the non-parole period.
88As to your non-parole period, in the end while your circumstances cause me to moderate from what I would ordinarily do, thus having moderated the non-parole period still is at a level that is around the 60 per cent mark, not below. There is in my view, no requirement of justice to set a non-parole period lower than that set out in the statute. The period of the non-parole period is what justice requires for incarceration for the offences that you committed.
89Doing the best I can, the sentencing for the culpable driving is one that is under but not by much at all, the standard sentence. As I said, it is an example at the mid-level or thereabouts and thereafter there are many other factors in the whole instinctive synthesis process. Whichever way that this is announced of course, the sentence are in terms of years and months and is not to be seen as somehow the evaluation of the life of Kylie Doak or the injuries caused to Rachel Doak. Ms Doak's life was invaluable to her family and will be forever.
90The sentence I impose is what justice requires. To you, it will seem a harsh term of imprisonment, but the community and Parliament require that I impose a stern sentence which involves years of imprisonment. You will lose good years however I do hope that you are granted parole so you can resume your lawful ways.
91For committing the crime of culpable driving, you are sentenced to a term of imprisonment of seven years and four months.
92For committing the crime of negligently causing serious injury you are sentenced to a term of imprisonment of three years.
93I order that 16 months of the sentence imposed on the negligently causing serious injury be cumulative upon the sentence imposed for the culpable driving. That gives a total effective sentence of eight years and eight months, or a hundred and four months. I fix a non-parole period of five years and three months. You have served 11 days in custody and I declare that this is part of the sentence that I have just imposed. I will ensure that this is entered into the records of the court so that prison authorities are left in no doubt you have done 11 days.
94I indicate to you that had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of 11 years and six months with a non-parole period of eight years and six months.
95Your licence has to be impacted and thus I cancel your licence and disqualify you from holding a licence for driving in Victoria for three years. That is operative from today. Is there anything further required?
96MR JOHNSTON: Contribution order.
97HIS HONOUR: Yes. I make the declaration under the Sentencing Act.
98MR JOHNSTON: Your Honour pleases.
99HIS HONOUR: I think it's s89C.[21]
[21] s.18C Sentencing Act (Vic) 1991
100MR JOHNSTON: Capital C.
101HIS HONOUR: Is that right? That this offending there was a contribution of alcohol. So I make that declaration, entered into records of the court. There's nothing else that flows from that. Thank counsel for their considerable assistance and to the families who have attended and showed great dignity in difficult circumstances. I'll leave the court.
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