Director of Public Prosecutions v Mudiyanselage

[2025] VCC 559

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

CR-24-01755

DIRECTOR OF PUBLIC PROSECUTIONS

V

SHIVANTHA DESHAN BANDARA MAHANTHE MUDIYANSELAGE

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JUDGE:	HER HONOUR JUDGE BRECKWEG
WHERE HELD:	Melbourne
DATE OF HEARING:	8 April 2025
DATE OF SENTENCE:	7 May 2025
CASE MAY BE CITED AS:	DPP v Mudiyanselage
MEDIUM NEUTRAL CITATION:	[2025] VCC 559

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence

Catchwords:              Culpable driving causing death – Dangerous driving causing serious injury - Category 2 Offence – High blood alcohol – Speeding – Younger offender – Standard sentence - Early plea of guilty - First time in custody – Very good prospects of rehabilitation - General and specific deterrence.

Legislation Cited:         Sentencing Act1991 (Vic) ss 5A(2)(b), 11A, 87P; Crimes Act 1958 (Vic) ss 318(1), 319(1A); Road Safety (Drivers) Regulations 2019 (Vic); Road Safety Act 1986 (Vic) s 18(1).

Cases Cited:Hennessy v The King [2024] VSCA 2; Buckley v The Queen[2022] VSCA 138; (2022) 71 VR 218; Verdins, Buckley and Vo [2007] 16 VR 240; DPP v McCloy [2006] VSCA 99; Harrison v The Queen; Rigogiannis v The Queen [2015] VSCA 349.

Sentence:11 years imprisonment; 7 years non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Fisher Ms Gillis	Office of Public Prosecutions
For the Accused	Mr A Chernok	Victoria Legal Aid

HER HONOUR:

Introduction

1Shivantha MUDIYANSELAGE, you have pleaded guilty to:

Charge 1:Culpable driving causing death contrary to s 318(1) of the Crimes Act 1958 (Vic) which carries a maximum penalty of 20 years imprisonment. The standard sentence for the offence is 8 years pursuant to s 5A(1) of the Sentencing Act 1991 (Vic) (“the Act”).

Charge 2:Dangerous driving causing serious injury contrary to s 319(1A) of the Crimes Act 1958 (Vic) which carries a maximum penalty of 5 years imprisonment.

Circumstances of the offending

2The agreed facts of your offending are set out in the Summary of Prosecution Opening for Plea dated 25 March 2025 (Exhibit A). On 5 December 2023 you attended your work Christmas party at Morning Sun Vineyard in Main Ridge. The party was a joint event held for the staff of Many Little Bar and Dining, where you were employed as a kitchen hand, and Polperro Winery. You arrived at the function at around 12pm and left at around 4pm when the party ended.

3You and other attendees of the party, including your friend Senith Malabage who worked with you as a kitchen hand, then attended the Polperro Winery. You were driven there by another staff member in his Toyota Yaris.

4You and Mr Malabage left the winery at approximately 4.50pm in the Toyota Yaris. You were driving the vehicle and Mr Malabage was in the front passenger seat. At around 4.55pm a witness observed you overtake his car at over 100km/h. 

5Shortly after, you turned onto Arthurs Seat Road going towards Red Hill. The road is a two-way, two lane, undivided road with a single lane in each direction and a speed limit of 70km/h. At that time, it was daylight and conditions were dry, clear, and still. Approximately 600 metres along Arthurs Hill Road, the road enters a sweeping left bend. You entered the bend travelling at approximately 128km/h. The Toyota Yaris began to yaw (the tyres on the vehicle were side slipping and had exceeded their frictional limit) and crossed onto the wrong side of the road, at which time you were travelling at about 122km/h.

6As your vehicle came out of the bend, a Toyota Landcruiser driven by Shaun Dowey, approached from the opposite direction. Mr Dowey attempted to take evasive action, however your vehicles collided head on.

7Ultimately, the vehicles collided near the centre dividing line of the road. Between 4.75 and 2.75 seconds prior to impact, Mr Dowey was travelling at approximately 65-66km/h and at the time of impact he was travelling at 41km/h and his vehicle was under heavy braking.

8It was determined that 98km/h was the maximum speed the curve of Arthurs Hill Road in the collision area could be negotiated by a vehicle without a substantial risk of yaw. Put simply, you were driving the Yaris too fast to negotiate the curve without losing control of the vehicle.

9The front of the Yaris suffered extensive damage and came to a stop in the middle of the road. Mr Malabage died from head injuries caused by the collision before paramedics arrived at the scene. (Charge 1: Culpable driving causing death).

10You were removed from the vehicle by emergency services and placed in an Ambulance. A blood sample taken from you at 6:40pm on the night of the collision returned a blood alcohol concentration of 0.192. Dr Jason Schreiber opined that you were incapable of having proper control of a motor vehicle with such a high blood alcohol concentration and the effect of that amount of alcohol on your psychomotor skills would have created an appreciable risk that your driving would have posed a significant risk to the public. Dr Schreiber also noted that your young age and still developing brain may have further compounded your inability to control a vehicle while intoxicated.

11You suffered injuries and were flown by helicopter to the Alfred Hospital for treatment where you remained until 10 December 2023.

12Following the collision, the Landcruiser rolled onto the passenger side and came to rest on the opposite shoulder of the road. Mr Dowey was able to extricate himself from his vehicle. He was taken to Frankston Hospital and an MRI showed that he had sustained an acute or subacute fracture to the lumbar spine. These injuries cause significant pain, and it can take several weeks to months before the fracture heals and fully consolidates (Charge 2: Dangerous driving causing serious injury).

Impact on victims

13As a result of your offending, you killed Mr Malabage and seriously injured Mr Dowey.

14In reaching a sentence that is appropriate in all the circumstances, I have had regard to the relevant and admissible portions of the Victim Impact Statement prepared by the brother and sister of Mr Malabage on behalf of his family (Exhibit B). The family spoke of how the death of Senith, who was a beloved son and brother, has forever altered their lives. The family told of their profound grief, trauma and loneliness at the loss of Senith who provided them with love, laughter, joy, and companionship. They grieve Senith’s lost future and the void they now face without him. Whilst the family has suffered unbearable loss, they have chosen to forgive you, and they hope that you honour Senith’s memory by living a life that reflects responsibility, growth and redemption.

15Mr Dowey did not provide a victim impact statement however he suffered an acute or subacute fracture to the lumbar spine which is an injury that causes significant pain and may take some weeks or months to fully heal.

Personal circumstances

16You are 24 now and were 23 at the time of the offending. You are still a relatively youthful offender, and your continued rehabilitation must carry some weight in the sentencing discretion. You have no prior convictions, including for any traffic offences, and no subsequent or outstanding matters.

17You were born in Sri Lanka and have a younger sister. You had a generally positive childhood with no experience of physical, emotional or sexual abuse. Your parents remain married and living in Sri Lanka, and you are close to your mother who has some physical health issues and experiences anxiety. You performed well at school and subsequently worked in a bank and completed a Diploma in Business Management. You came to Australia in 2022 to pursue a career as a chef and you had completed a year of a commercial cooking course when the offending occurred. For 5 to 6 months prior to the offending you were also working as a kitchen hand and at a fine dining restaurant before starting work as a cook.

18Your parents had provided you with financial support to study in Australia including re-mortgaging their home. You regularly sent money back home to your parents to assist them to make their mortgage repayments.

19You told Mr Candlish, psychologist, that you have now settled into life in custody and are working in the prison kitchen. You have completed courses and attended programs in custody, you participate in sporting activities, and you are generally “trying to keep busy”. You keep in contact with your parents and have a friend in Australia who sends you money to purchase items and who provides you with support. You were in a relationship with a woman in Sri Lanka until recently but separated whilst you have been in custody as she was unfaithful.

20You told Mr Candlish that you first tried alcohol at age 21 and had consumed alcohol only another two times in Sri Lanka. After your arrival in Australia, you said you consumed alcohol 5 or 6 times at parties or social events and this involved “a couple of drinks, beer or wine, sometimes a couple of shots”. You reported no problems with alcohol or drug misuse. You said you would never drive a car again if you had consumed any alcohol.

21You told Mr Candlish that you obtained your license when you were 18 and you drove a motor bike and a car, and you drove your uncle’s car to and from work between ages 18 and 22.

22Going forward you expressed your desire to become a qualified chef and open your own restaurant. It is very important to you that you can contribute financially to your parents. I have had regard to the content of two (2) character references (Exhibit 2) from your former employers at Many Little and they spoke of your excellent work ethic, good character and remorse.

23I have considered the contents of a psychological report from Mr Candlish (Exhibit 1). He opined that you do not suffer from any major mental or personality disorder, you do not have a history of poor self-control or impulsivity issues, and you do not have any dysfunctional coping or self-destructive behaviours. You are presently experiencing a higher level of stress due to your legal predicament and your concern for your parents, especially your mother who suffers from ill health. I take these matters into account.

24In summary, Mr Candlish concluded that your offending resulted from your lack of driving experience and the disinhibiting effects of alcohol on you in the sense of you being unable to consider the potential consequences of driving whilst intoxicated.

Sentencing considerations and principles

25In sentencing you, I must have regard to those matters set out under s 5(2) of the Sentencing Act 1991 (the Act).

26Culpable driving causing death (charge 1) is also a Category 2 offence under the Act which means that a term of imprisonment must be imposed on you unless one of the exceptions in s 5(2H)(a) to (e) are established. None of the exceptions apply in your case.

27Culpable driving causing death (charge 1) is also a standard sentence offence. The standard sentence is eight (8) years’ imprisonment. The standard sentence for an offence is the sentence that, by reference only to the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness. When sentencing for a standard sentence offence, I must take the standard sentence into account only as one of the many factors relevant to sentencing. The standard sentence is therefore to be treated as a legislative guidepost, having the same function as the maximum penalty but it is not to be viewed as a starting point.  I have taken the standard sentence for the offences into account as just one of the many factors to consider in my instinctive synthesis of all the relevant subjective and objective features of your case.

28In sentencing you, I have had regard to the matters enunciated by the Court of Appeal in DPP v Neethling[1] as relevant to sentencing for indictable driving offences that cause death or serious injury. These are that a) general deterrence must be given considerable weight; b) that a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment and c) that the sentence which is imposed must take account of variations in the moral culpability of the person responsible.

[1] [2009] VSCA 116; (2009) 22 VR 466, 472 [30]. See also DPP v Oates[2007] VSCA 59; (2007) 47 MVR 483; Hennessy v The King [2024] VSCA 2, [87(a)].

29The authorities also make it abundantly clear that in addition to the need to reflect general deterrence, specific deterrence, community protection, denunciation and just punishment are also of significance.[2]

[2] Hennessy v The King [2024] VSCA 2, [87(a)]; DPP (Vic) v Chambers (2006) 47 MVR 22, 27 [25]; DPP (Vic) v Browne [2023] VSCA 13, [40]–[47], [55]–[56]; Vasilevski v The Queen (2018) 83 MVR 351

30In terms of the nature and objective gravity of your offending, I have considered the features that may aggravate the gravity of indictable driving offences that cause death or serious injury as set out in Neethlingv The Queen[3]. In your case these include excessive speed, erratic driving, the extent and the nature of the injuries inflicted, and the number of people put at risk.

[3] [2009] VSCA 116; (2009) 22 VR 466 as drawn from R vWhyte (2002) 55 NSWLR 252. See also Hall v The King [2024] VSCA 255, [34]-[37].

31I am however mindful that because you are charged with culpable driving under s 318(2)(c) of the Act, your culpability for the offence is established by the fact that you were driving under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle. As such, alcohol use may not be treated as an aggravating factor in your case. It is a feature of your offending that it involved excessive alcohol consumption, not an aggravating factor.[4]

[4] DPP (Vic) v Walden (2003) 39 MVR 451, 458 [37] n 5.

32The Crown also rely on your culpability for the offence being established by recklessness under s 318(2)(a) of the Act, that is, that you consciously and unjustifiably disregarded a substantial risk that the death of another person, or the infliction of grievous bodily harm upon another person, might result from your driving.

33It goes without saying that driving offences that result in the death or serious injury of another person are very serious.[5] Your counsel accepted that your offences were very serious and submitted that your culpable driving was towards the upper end of the mid-range of objective seriousness.

[5] DPP (Vic) v Chambers (2006) 47 MVR 22, 27 [25]; 3489; DPP (Vic) v Kenneison [2023] VSCA 321.

34Your passenger Mr Malabage was killed, and Mr Dowey was seriously injured in circumstances where he was obeying the road laws and going about his business. The victim’s death had a profound impact on his family. You drove when your blood alcohol concentration was 0.192%, almost 4 times the legal limit of 0.05%. The extent of your intoxication meant you were incapable of having proper control of the vehicle, and you presented a significant risk to members of the public. You drove with a passenger in your vehicle. I do have regard to the fact that your inability to control the car whilst drunk may have been further compounded by your young age and still developing brain.

35You were also speeding. You entered the bend travelling at around 128 km/h which was almost twice the speed limit, and which was too fast to negotiate the bend without losing control of the vehicle. You had also been observed just prior to the collision driving erratically and overtaking a vehicle at over 100km/h in a 60km/h speed limit. You had no familiarity with the vehicle you were driving. You decided to drive from the party when you could have asked the owner of the Yaris to drive you. I do consider it particularly mitigating that you said your friend gave you the keys and suggested that you drive. It was ultimately your decision. You were unlicensed to drive in Australia as you had a Sri Lankan driver license and had resided in Australia for more than 6 months.[6]

[6] See s 13(1)(a) Road Safety (Drivers) Regulations 2019 (Vic) and s 18(1) Road Safety Act 1986 (Vic).

36Your counsel accepted that it was your decision to drive and there was “…no getting around the extraordinary BAC reading” but submitted that you were a young man with very little experience with alcohol and when this was combined with your still developing brain, you would not have felt the intoxicating effects of the alcohol you consumed. I accept that you may not have been fully aware of the effects the alcohol would have had on you given these matters, but in pleading guilty you accept that you drove when the extent of your intoxication meant you were incapable of having proper control of the vehicle. In addition, you must have consumed a significant amount of alcohol to have had a blood alcohol reading of 0.192% and it is difficult to comprehend that you would not have known how drunk you were or that you were not in a fit state to drive.

37Your actions caused devastating consequences. In my view the accumulation of all the relevant objective factors of your offending places it above the mid-range level of seriousness for the offence of culpable driving. The objective gravity of your offending and your moral culpability are of a high level in terms of both charges.

38I accept that you have no prior convictions, including traffic infringements, this was not a situation where you were warned off driving, and you are a person of prior good character. However, it is a sad reality that driving offences that cause death or serious injury are committed by people of prior good character and who have unblemished or very good driving records.[7]

[7] Buckley v The Queen[2022] VSCA 138; (2022) 71 VR 218.

39You pleaded guilty to the charge at the first available opportunity. Your plea warrants a clear reduction in the sentence to be imposed to reflect its utilitarian value in saving the community the time and expense of a trial and witnesses, from having to give evidence, and to reflect its demonstration of acceptance of responsibility, and willingness to facilitate the course of justice.

40Your plea itself also demonstrates a degree of remorse. In terms of remorse in addition to your plea, you gave evidence at the plea hearing and spoke of your close friendship with Senith. You spoke of how he helped you a lot, you think about him every day and that you are so very sorry for what you did. You expressed remorse to Dr Candlish and your former employers at Many Little also spoke of you expressing deep and profound remorse.

41I have no doubt that you are traumatised by your offending and its consequences. I accept that you have expressed genuine remorse over and above that demonstrated by your plea alone. You did not refer to your other victim Mr Dowey when you spoke to Mr Candlish nor to any significant degree in your evidence, but I accept that you have expressed some degree of remorse for your offending involving Mr Dowey over and above the plea itself.

42I note that any reliance on the prospect of your deportation being a matter I should consider in imposing sentence, was abandoned by your counsel at the plea.

43As noted earlier, you were 23 at the time of the offending and are now 24. You are a relatively youthful offender, but you were not a child at the time of the offending, nor a ‘young offender’ as defined.[8] Whilst I have regard to your relative youth and the need to promote your rehabilitation as urged by your counsel, it remains the case – as was conceded by your counsel - that your youth and prospects for rehabilitation must be given less weight than they otherwise would where general deterrence is the paramount sentencing consideration.[9]

[8] See s 3 Sentencing Act 1991 (Vic)

[9] DPP v McCloy [2006] VSCA 99, [56]–[62]; Harrison v The Queen; Rigogiannis v The Queen [2015] VSCA 349.

44This is because a strong deterrent message must be sent to young drivers that they must not drive dangerously or drunk or there will be severe consequences. The need for general deterrence is also required in circumstances where it is far from uncommon for driving offences that cause death or serious injury to involve young and immature drivers who have been speeding and drinking but who are otherwise of prior good character, have no prior convictions and who demonstrate genuine remorse.[10] As stated in McGrath v The Queen[11], a general deterrent message must be sent “…that no matter who is driving a car, the community will not tolerate driving by a person under the influence of alcohol or driving at excessive speed”.

[10] Neethlingv The Queen[2009] VSCA 116; (2009) 22 VR 466; R vWhyte (2002) 55 NSWLR 252; Harrison v The Queen; Rigogiannis v The Queen [2015] VSCA 349.

[11] [2018] VSCA 134, [68].

45Similarly, the heightened need for denunciation also requires that courts should have regard to the moral sense of the community and to community expectations of appropriate punishment.   

46In terms of specific deterrence, given you have no prior matters at all, you are young, and you are clearly remorseful for your offending – especially because it resulted in the death of your best friend - I have moderated the weight I give to specific deterrence in sentencing you.

47As to your prospects of rehabilitation, I consider these to be very good and that you are highly unlikely to commit a further act of causing serious injury or death by driving. You have strong family support, and you were supported in court by former employees and former house mates. You fully comprehend the devastation your actions caused. You are committed to living a productive life. I have had regard to the conclusion of Mr Candlish that you have good prospects of rehabilitation, and you do not require any psychological treatment unless you experience ongoing issues with guilt and a preoccupation with your role in the death of your friend. I accept his view that you are a low risk of re-offending given the range of protective factors you have.

48You have spent your time in custody very productively as demonstrated by the many certificates you have obtained from courses you have completed in custody and your progress in your Diploma of Business course. I have had regard to the references provided by your former employers at Many Little. They both speak of your excellent work ethic, your kindness and your commitment to supporting your family financially.

49Your counsel did not seek to rely on any of the principles espoused in Verdins or Bugmy as these are clearly not applicable in your case. Mr Candlish found that you have no major mental or personality disorders but that your offending resulted from your lack of driving experience and the disinhibiting effects of alcohol.

Submissions on sentence

50It was not in issue that your offending warrants a sentence of imprisonment with a non-parole period attached. The prosecution submitted that there be a moderate degree of cumulation between the two charges to reflect the different offences but also the fact that both offences occurred within the same incident.   

51Your counsel submitted that I should impose a total effective sentence and non-parole period that is ‘somewhat modified’ to reflect your youth, your positive endeavours in custody, the need to reflect a degree of rehabilitation, your early plea of guilty and your lack of prior convictions and that I must take care not to impose a crushing sentence.

Current sentencing practices

52Pursuant to s 5A(2)(b) of the Act, I must only have regard to sentences previously imposed where the culpable driving offence was the subject of a standard sentence scheme. I was provided with written and oral submissions as to some current sentencing practices and have had regard to those submissions, bearing in mind that each case must be decided on its own facts.

Totality and cumulation

53I consider that there must be a modest degree of cumulation between the sentences to reflect the existence of two individual victims of your offending. Further, whilst both offences occurred as part of what was an ongoing episode, the conduct involved in each separate offence adds to the overall criminality of the episode, and each offence warrants separate punishment. I am mindful of the principles of totality and proportionality in directing the degree of cumulation to be imposed and that I must not impose a sentence on you that is ‘crushing’.

Statement as to standard sentence

54In terms of charge 1, section 5B(4) of the Act requires a court sentencing an offender for a standard sentence offence to state the reasons for imposing that sentence. Section 5B(5) requires me to refer to the standard sentence for the offence of culpable driving and explain how the sentence I have imposed on you relates to the standard sentence.

55My reasons for sentence should make it clear that the sentence I have imposed in relation to charge 1 higher than the standard sentence specified. I regard this instance of culpable driving as being a very serious example of that offence, one which falls above the middle range of seriousness looked at purely objectively. You drove whilst incredibly intoxicated, in an unfamiliar vehicle, you were driving at a very high speed, and you drove erratically. A person was killed.

56As I noted earlier, my sentencing task is not limited just to an examination of the objective seriousness of the offence. I have arrived at what I regard as the appropriate sentence for charge 1 after synthesising all the matters I am required to consider, including the subjective or mitigating factors raised on your behalf. Again, I have taken the standard sentence for the offence into account as just one of the many factors to consider in my instinctive synthesis of all the relevant subjective and objective features of your case.

Sentence

57Please stand

58On Charge 1, culpable driving, you are convicted and sentenced to imprisonment for a period of 10 years imprisonment.  This is the base sentence, and it commences today.

59On Charge 2, dangerous driving causing serious injury, you are convicted and sentenced to 3 years imprisonment. 12 months of this sentence will be served cumulatively upon the base sentence.

60This is a total effective sentence of 11 years' imprisonment.

61Pursuant to s.11A of the Act, the non-parole period imposed for a standard sentence offence must be at least 60% of the total effective sentence unless I consider it is in the interests of justice to impose a lower non-parole period. I do not consider the interests of justice in this case require me to impose a lower non-parole period, although the period I will impose will be slightly reduced to reflect the need to promote your rehabilitation and avoid a crushing sentence.

62I order that you serve a non-parole period of 7 years imprisonment.

Licence order

63Culpable driving and dangerous driving causing death are both serious motor vehicle offences pursuant to s 87P(b) of the Act. Pursuant to s 89(1)(a) and s 89(2)(b) of the Act I must order that all Victorian licences and/or permits held by you be cancelled and disqualify you from obtaining any such licence or permit for a period of at least 24 months in respect of charge 1 and 18 months in respect of charge 2.

64A licence order, when it is made by a court, is protective but it also operates as a form of additional punishment. You are going to prison for a substantial period.  Whenever you are released, you will need to try to establish yourself back in the community and a licence is obviously an asset in the job market. The period of disqualification from obtaining a driver licence accordingly has a clear effect on your rehabilitation.[12] You are receiving punishment by virtue of the prison sentence that I have just pronounced. 

[12] R v Tran [2002] VSCA 52.

65However, given the circumstances of this case, I believe the licence order must still have some tangible effect upon you. The best method to achieve this is to fix the licence order by reference to some future defined event.[13]

[13] R v Tran [2002] VSCA 52; R v Caldwell [2004] VSCA 40

66On the charge of culpable driving causing death, I cancel all licences to drive held by you and I disqualify you from obtaining another permit or from driving in this State for a period of 8 years. That order commences today and ends 1 year after you are released from custody on parole. This means that you will be disqualified from driving on your release from prison for another 1 year. 

67On the charge of dangerous driving causing serious injury, I cancel all licences to drive held by you and I disqualify you from obtaining another permit or from driving in this State for a period of 8 years. That order commences today and ends 1 year after you are released from custody.

Other

68Pursuant to s 89C(2) of the Act, I find that your offence of culpable driving (an offence against s 318(2)(c) of the Crimes Act 1958 (Vic)) was committed whilst you were under the influence of alcohol which contributed to the offending.

69I direct pursuant to s18E of the Act that 519 days' imprisonment be declared as having been served by way of pre-sentence detention.

70The related summary offences, charges 3, 4, 5, 6 and 7 are withdrawn and marked struck out.

71Pursuant to s 6AAA of the Act, were it not for your pleas of guilty, I would have imposed a sentence of 13 years’ and 9 months imprisonment with a non-parole period of 8½ years.