Director of Public Prosecutions v Malou

[2025] VCC 787

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not  Restricted
 Suitable for Publication

Case No. CR 24-01907

DIRECTOR OF PUBLIC PROSECUTIONS

v

MONYPING MALOU

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2025, 6 June 2025
DATE OF SENTENCE:	12 June 2025
CASE MAY BE CITED AS:	DPP v Malou
MEDIUM NEUTRAL CITATION:	[2025] VCC 787

REASONS FOR SENTENCE
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Subject: Criminal law - sentence 

Catchwords: pleas of guilty to one charge of conduct endangering life and one charge of causing injury recklessly; pleas of guilty to summary charges of exceed PCA, unlicenced driving and driving an unregistered car – driving at speed on wrong side of exit from highway – collision with truck and injury to occupant – serious offending posing great danger to road users - blood alcohol reading 0.281 – aged 18 at time of offending – now aged 23 – drug and alcohol issues – need for therapy – refugee family – born in refugee camp- anxiety, intergenerational trauma, borderline personality disorder – emotional and psychological vulnerability – educational aspirations - reasonable prospects for rehabilitation -  

Sentence:                  6 months imprisonment, 12 month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Mr S. Thomas	Pascoe Criminal Law

HER HONOUR:

1Monyping Malou, you have pleaded guilty to one charge of conduct endangering life and one charge of causing injury recklessly. The maximum penalties for these offences are 10 years and five years' imprisonment respectively.

2You have also pleaded guilty to three related summary offences, driving while exceeding the prescribed concentration of alcohol, for which the maximum penalty is a fine of 20 penalty units, unlicensed driving for which the maximum penalty is a fine of 60 penalty units or six months' imprisonment, and driving an unregistered vehicle, for which the maximum penalty is a fine of 25 penalty units for a first offence.

3On 12 May 2025, I heard an application made on your behalf for the case to be remitted back to the Magistrates' Court for hearing.  I refused that application, and consequently you were arraigned, with the plea commencing that day, then adjourned part-heard to 6 June 2025 for further psychological material to be obtained.

The offending

4On 19 November 2021, when you were aged 18, you were driving a Holden Commodore at about 2.10 am, in Ballarat Road, Caroline Springs. You had two passengers with you. You had no driver's licence at the time, and the car was unregistered, the registration having expired about two months previously.

5You left Ballarat Road and entered the east-bound exit ramp instead of the entry ramp, and then drove west on the Western Freeway in the east-bound lanes against the flow of traffic.

6The road conditions were dry, and visibility was average, but there were no street lights in this section of the highway, which is two lanes in either direction, and has a 100 kilometre per hour speed limit.

7You accelerated to a speed greater than this as you approached the exit of the Western Highway to Ballarat Road.

8A Mercedes Benz truck was being driven in the centre lane heading east by Brian Barton.  When he saw you approaching in the Commodore in the centre lane, he tried to drive the Mercedes to the left-hand emergency lane, to avoid a collision.

9However, he was unable to do so, and your car collided with the front right side of his truck, approximately 700 metres from the Ballarat Road exit ramp.

10The impact spun the Commodore around as it continued west-bound against the traffic, continuing to spin until it stopped against the wire barrier on the side of the emergency lane, 44 metres away from the point of collision.

11The Mercedes truck also spun around, the impact ripping the rear axle out, and the truck coming to rest 34 metres from the point of impact.

12A short time later another truck driver came upon the scene, avoiding the damaged vehicles and stopping near the Commodore.

13You were found slumped over the wheel in the driver's seat, while one of the passengers was across the front seat with his upper body in the rear seats.

14A third person, also a passenger from the Commodore, was walking on the median reserve.

15At about 2.30 am the police arrived, and fire services and paramedics attempted to remove you from the car.  You were able to be freed by about 2.40 am and were taken to hospital by ambulance. Barton was also taken to hospital and was assessed with a head laceration and abdominal bruising.

16Upon investigation police found your car was wholly in the middle lane and travelling west against the traffic when it collided with the truck, which was then straddling the middle and left lanes. There were no tyre marks on the road from either vehicle prior to impact, indicating that neither vehicle was braking or out of control before the collision sufficiently to cause the wheels to lock.

17The airbag control module of the Commodore recorded that there was no braking immediately before the collision and the speed of the car was a steady 128-130 kilometres per hour in the three seconds before impact.

18A sample of your blood taken at 3.35 am that morning was analysed, resulting in a reading of 0.281 per cent. You were not detained in custody and could not be located for interview after that.  Charges were filed on 11 November 2022 and you were arrested on 29 January 2023 and bailed to appear on 24 July.  On that day you failed to appear in court and a warrant of apprehension was issued. You were arrested again on 29 December 2023 and bailed to appear on 9 May 2024.

19

On that date the magistrate uplifted the case to the indictable stream due to the seriousness of the offending.  You were bailed to 14 May 2024 for a filing hearing, and several committal case conferences took place after that, including one on

23 August for the prosecution to consider a plea offer.

20On 1 November 2024 when you were unrepresented, a committal hearing took place, by way of straight hand-up brief, with a plea of not guilty.  It was resolved on 18 December 2024, and the delay since then occurred in the context of the application for remittal to the Magistrates' Court.

Gravity of the offending

21

In written submissions dated 5 May 2025, Mr Thomas on your behalf submitted that the seriousness of the conduct was mitigated by several factors. The first is the relatively short duration of the driving at a time of night when there few road-users and so the danger to others was minimised.  However, the statement of

Mr Ellul, the other truck driver, indicated that there were several vehicles heading east, as he was, but in a different lane. He also saw 'brake lights and cars going everywhere' as he put it, 'taking evasive action' just before he pulled up.[1]

[1] Statement of Gregory Ellul dated 19 November 2021 at [5]

22Mr Thomas also submitted that the driving occurred in an isolated context, in that there was no pattern of so-called 'hooning' behaviour or competitive driving, nor was there any other criminality either before or after the offending driving.  Finally, the injuries sustained by Mr Barton were not at the upper end of the range of severity.

23

On the occasion of the initial hearing, Mr Pickering referred to the report of

Dr Hardiman, a police officer whose work is to analyse, reconstruct and report on vehicle collisions and accidents.  Her report  describes her examination of the scene and the vehicles involved.  Her description of the damage to the Commodore as being extensive, in combination with a photograph of the car, is telling, and leaves one to marvel at your survival and that of the front seat passenger.

24The truck fortunately sustained only minor damage to the cabin, but major damage to the driver side tray. The rear axle and the fuel tank were torn away from the truck and had come to rest on the road. The indications of damage to the front corner of the driver's side, and of side-swipe damage to the truck suggest that Barton had been able to turn at just the right moment to avoid a worse collision.

25The very nature of this unpredictable, dangerous driving makes it serious, and feared by other drivers as a risk they may be able to do nothing to avoid, no matter how carefully or defensively they might drive.

26For this reason alone, there can be little room for debate about the importance of general deterrence in driving offending such as this, which is a serious example of it, and the sentence should reflect this as far as possible.   

Personal background and circumstances

27You are now aged 23, and at the time of the offending you were 18, as I said earlier. You have no criminal history, although since being charged with these offences you were found guilty in 2023 of one driving-related matter, which occurred around the same time as the current offences, and for which you were fined without conviction, with your licence cancelled for 12 months.  That said, you have been on bail for, I think, three and a half years without being in any other trouble with the law.

28If this matter had been dealt with earlier, you could have been eligible for a Youth Justice order such as youth detention, but that is no longer available given that you are older than 21.  You must now be sentenced as facing adult prison instead, but your youth remains an important mitigating factor.

29It was submitted by Mr Thomas that you have good prospects for rehabilitation. You have pleaded guilty at a very early stage, and expressed remorse, in that you told Ms Matthews that you felt bad about it, for the injured man, and that you should have got your passengers home safely. You also explained this in similar terms to the Corrections officer who assessed your suitability for a Community Correction Order.  That attitude is a positive indicator of good prospects for rehabilitation. You are entitled to a discount on your sentence for the plea, for having avoided a trial with the expense and inconvenience involved.

30You completed high school, despite disruption to your secondary education caused by the family moving here from interstate, and you have a good work history.  You have family support and stable accommodation in the family home. I have been provided with references from people who know you well, and they speak highly of you as a good person. Your youth justice worker in particular says you are making a sincere and determined effort to turn your life around.

31Although your history of drug and alcohol abuse is significant, it began relatively late and so, according to the view of psychologist Pamela Matthews, it might be more amenable to therapeutic intervention.[2]

[2] Psychological report of Pamela Matthews dated 14 March 2025 at [175] - [176]

32Ms Matthews assessed you in March 2025, although her report is dated 2024.  I was also provided with an addendum report dated 22 May 2024, but both dates have now been corrected and they should read 2025.

33The addendum report notes that there had already been a significant delay in hearing the 2021 offending, and that following the slightly later offending there was no treatment intervention which she regarded as having been a lost opportunity.

34Returning to the earlier report, Ms Matthews took a detailed history of your early life, noting your birth in a refugee camp in Kenya during the civil war between North and South Sudan. Your father died shortly after you were born, and you were raised by your mother and uncle, with eight siblings. The family came to Australia in 2005 when you were aged two.

35You completed high school in 2020 during the COVID pandemic, having had to contend with online learning, which you found difficult.  During high school you worked in various customer service jobs.  Since leaving school you have worked in warehousing, and more recently as a labourer, but you would like to take on further studies at TAFE, in logistics.  You described having difficulties concentrating at school, that you would often get to work late, and that these days you become easily distracted.

36According to Ms Matthew’s report [3] you began using alcohol at the age of 20 or 21, and you described your current consumption as 'quite bad', that is, a bottle of wine a day until recently, when you ceased drinking altogether.  However, you opened up to the Corrections officer who assessed you last week, saying weekend drinking and withdrawal symptoms are still a problem. In your late teenage years you used cannabis, but you stopped this.

[3] Ibid page 3  line 79

37You have described struggling with depression on and off, sometimes retiring to your room and not coming out for days.

38Tests administered by Ms Matthews revealed that disturbing traumatic events in the past continue to cause you distress and episodes of anxiety.  Other indicators noted by Ms Matthews led her to conclude that you are likely to be impulsive and reckless, interfering repeatedly with effective social or occupational functioning. She stated that you acknowledge that you have major difficulties in your life and functioning, and you perceive that you have an acute need for help in dealing with these problems.[4]

[4] Ibid [136]-[137]

39Her diagnosis was generational trauma, which she explained as referring to the transmission of trauma's psychological and emotional effects from one generation to the next, potentially impacting descendants even if they did not directly experience the initial trauma.[5]

[5] Ibid [139]-[142]

40Ms Matthews' further diagnosis was borderline personality disorder, with indications of at least moderate impairment, manifesting in a poorly developed and unstable self-image, associated with self-criticism and dissociative states under stress,[6] as well as a list of other manifestations including impulsivity and risk-taking.

[6] Ibid [151]-[153]

41Ms Matthews regards your use of alcohol as being so problematic as to be diagnosed as a disorder. She considers you would benefit from a referral to Foundation House for counselling and support services.  She considers that your depressive features would likely worsen if you were incarcerated.

42While Ms Matthews did not elaborate upon this, her earlier report makes clear that a strong element of emotional and psychological vulnerability underlies your behaviour, and this, combined with your youth, reinforces the suggestion that prison could worsen your condition, thereby making it more burdensome than for others.  She added in her recent report that you are unlikely to manage stressful situations without considerable mental health support, and that imprisonment would be such a situation.

Sentencing issues

43It was not submitted that the psychological conditions from which you suffer played any part in the offending, in the Verdins sense, but Mr Thomas submitted that that aspect is relevant to your experience of imprisonment, by the application of limbs 5 and 6 of the Verdins case.

44This was addressed by Mr Pickering, who viewed Ms Matthews' report as falling short of identifying intergenerational trauma in your case, given the apparently short time she spent with you, and the lack of any inquiries made of family members.  In this regard, I note Ms Matthews' extensive experience and the link she made between your observed symptoms and the family background, allowing me to conclude that her diagnosis is likely to be well-based and therefore reliable.

45Mr Pickering submitted that there is little in Ms Matthews' reports to demonstrate the basis for Verdins limbs 5 and 6 to be enlivened.  Mr Thomas acknowledged this but submitted that her description in the addendum report of your difficulty in managing stressful situations such as prison, enables this conclusion to be reached.

46Mr Pickering submitted that you have not engaged in psychological counselling as is now recommended by Ms Matthews, who herself noted that an earlier opportunity had been lost.  For this reason there can be less confidence in your rehabilitation.

47Mr Pickering added the concern arising from the diagnosis of borderline personality disorder, causing at least moderate impairment, that this is not a treatable condition and there is nothing to indicate how your situation is going to improve.

48Mr Pickering conceded that you have taken a practical step towards engagement in treatment through Junubi Wyndham, which is a community support group, a program funded by the government to support African Australians of South Sudanese background.  You have engaged with that service positively, and you are now actively involved in mentoring younger members of the community.

49My conclusion as to your prospects for rehabilitation is that they are likely reasonable. You have the support of your family, with community support. You have capacity and willingness to work, and indeed to become qualified. The key is going to be effective counselling and treatment to deal with your alcohol use and your rather fragile psychology. The structure of a Community Correction Order may help provide these needs.

50The prosecution submission as to sentence is that a prison sentence is warranted, but a combination sentence would be within the appropriate range. It was submitted that the extremely serious driving offences and the need for punishment and general deterrence should be balanced against the factors leading to leniency.

51The defence submission as to sentence is that a non-custodial sentence is within range, and that prison should be avoided. Mr Thomas' submission relied on several mitigating circumstances including your youth, your lack of previous convictions and your psychological vulnerability.  As I said earlier, you do have a subsequent court appearance for what would appear to be some quite serious driving offences committed at around the same time as the current offences. You were fined without conviction. You also have a pending matter arising out of circumstances of being found drug and alcohol affected, and assaulting an emergency services worker, in February 2023. That matter is listed for hearing, likely to be in the form of a sentence indication.

52Since February 2023, you have not been in any further trouble, and have taken some steps towards bettering yourself, but as Mr Thomas put it, this is a fragile trajectory and prison might upset this progress.  He submitted that community protection would best be served by avoiding imprisonment.

53Mr Thomas submitted that in determining sentence I should take into account that you were also injured in the collision, and that represents a modest degree of extra-curial punishment and I do take that into account.

Sentence

54Mr Malou, you have been assessed as suitable for a Community Correction Order, as you know.  I shall impose that order to include both indictable charges, as part of a combination sentence and I shall explain that in a moment.

55I sentence you to six months' imprisonment for Charge 1, and four months' imprisonment for Charge 2, to be served concurrently with each other.

56For the summary charges you are fined as follows.  For Charge 8, exceeding the prescribed concentration of alcohol, $750, for unlicensed driving, $300, and for driving an unregistered car, $200.

57Any licence you hold, I don't believe you do, but if so, it is cancelled, and you are disqualified from obtaining a further licence or permit for 28 months. That is in line with the alcohol reading of 0.0281 per cent.

58The Community Correction Order will begin when you are released from custody and will last for 12 months.  You will be under supervision and must perform 100 hours of unpaid community work.  Any hours you spend taking part in programs will be credited against those hours.

59You must undergo testing and treatment for alcohol abuse.  You must have testing to see if you are suitable for mental health programs and you will be required to take part in a road trauma awareness program.

60When you are asked to sign the Community Correction Order, you will see that you will be asked to go to the nearest corrections office to your home, which will be Werribee - Werribee Correctional Services which is at 87 Synnot Street, Werribee, and you will need to go there within two working days of your release from custody.  Do you agree to be bound by the provisions of that Community Correction Order, Mr Malou?

61OFFENDER:  Yes.

62HER HONOUR:  All right.  Finally, if you had pleaded not guilty to these charges, I would have sentenced you to 12 months' imprisonment with a non-parole period of six months.

63MR THOMAS:  As Your Honour pleases.

64HER HONOUR:  Mr Thomas, do you want to have a look at the order before - - -

65MR THOMAS:   If I could, Your Honour, yes.  Thank you.

66HER HONOUR:  Are there any other matters?  Yes.  Are there any custody management issues you would like me to raise to put on the order, Mr Thomas?

67MR THOMAS:  Given the issues that he has with alcohol, withdrawal might be an issue, Your Honour.

68HER HONOUR:  And first time in custody.

69MR THOMAS:  First time in custody, relative youthfulness and I'm just thinking about his mental health.  It probably doesn't qualify as a custody management issue, but certainly withdrawal from alcohol and first time in custody.

70HER HONOUR:  Yes, all right.  Thank you.

71MR THOMAS:  Your Honour, my learned friend's assisting me.  If the Pamela Matthews' reports could be provided to Corrections.

72HER HONOUR:  Certainly.

73MR THOMAS:  Then that might assist with his management in custody.

74HER HONOUR:  Yes.  I will make sure that happens.

75MR THOMAS:  Thank you, Your Honour.

76HER HONOUR:  Would you like a moment to speak to your client?

77MR THOMAS:  I'll see him downstairs.

78HER HONOUR:  You will see him downstairs, all right.

79MR THOMAS:  Yes.

80HER HONOUR:  I will give him the opportunity to say goodbye to his family.

81MR THOMAS:  Thank you, Your Honour.

82HER HONOUR:  All right.  I will leave the Bench, but my staff will just stay here for a few moments.

83MR THOMAS:  As Your Honour pleases.

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