Director of Public Prosecutions v Sunderland
[2025] VCC 1353
•15 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR -25-00292
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIEN SUNDERLAND |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 July 2025 |
DATE OF SENTENCE: | 15 September 2025 |
CASE MAY BE CITED AS: | DPP v Sunderland |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1353 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Plea of Guilty – Home Invasion – Causing Injury Recklessly – Make Threat to Inflict Serious Injury – Theft – Koori Court – Sentencing Conversation
Legislation Cited: Sentencing Act 1991 – Disability Act 2006
Cases Cited:Bugmy v The Queen [2013] HCA 37; 249 CLR 571; 1 R v Verdins (2007) VR 16 269.
Sentence:16 Months Imprisonment and two-year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Russell | Office of Public Prosecutions |
For the Accused | Ms F. Banihali | Victorian Legal Aid |
HIS HONOUR:
1Damien Sunderland, you have pleaded guilty in the Koori Court to a charge of home invasion which carries a maximum penalty of 25 years' imprisonment, it is also a Category 2 offence; a charge of recklessly causing injury which carries a maximum penalty of five years' imprisonment; a charge of threat to inflict serious injury which also carries a maximum of five years' imprisonment; and a charge of theft which carries a maximum of 10 years' imprisonment.
2You have admitted a considerable number of prior convictions for a 23-year-old including recklessly causing injury, a carjacking offence and other violent type offences.
3The circumstances of your offending are set out in the Summary of Prosecution Opening which was Exhibit A on the plea and forms part of these Reasons for Sentence.
Circumstances of Offending
4On 24 October last year, you were 22 at the time. You were with a considerably older co-offender who is yet to be dealt with. You entered a home in Doveton, intending to steal apparently. Unbeknown to you, your 44-year-old victim, a hard-working construction worker, was inside the premises sleeping after a nightshift. He woke up to the noise of you and your co-offender in the hallway outside his room. He opened his door and saw you and your co-offender standing in the hallway. You both then ran down the hallway and out the front door. Your victim followed, stopping at the front door. Your co-offender entered the vehicle you had arrived in.
5You should have left at that point, but you returned and confronted your victim who was standing on a balcony at the front door. You said to him, 'I'll fucking stab you, you fucking dog.' That is part of the summary in relation to threat to inflict serious injury.
6You left the victim's residence holding a pair of blue and white shoes that belonged to the victim.
7You approached your victim and slashed your victim's face with the knife held in your right hand. Your threats did not end there, you said, 'Fuck off dog, I'll cut your fucking face off maggot.' Your co-offender said to you, 'Let's go, let's go, what the fuck.' You got into the driver's seat of the vehicle. You again said, 'Fuck off rat.' The victim said he had a camera, and you said, 'I don't care, see you dog', before driving from the property.
8Your victim called an ambulance and notified police. He was taken to Dandenong Hospital. He had a ten-centimetre cut to his left cheek.
9You were arrested about ten days later on 4 November. As you were being led away, you said to your mother, 'I'll see you guys in a few years, mum.'
10When you were interviewed you said you did not have any memory of it and said, 'I had Xanax, so when you have Xanax you obviously can't remember what you've done the next morning.' You have been in custody since that time.
11The objective gravity of your offending is clear given the maximum penalty that applies to home invasion of 25 years, it also being a Category 2 offence which means that I must impose a gaol term on you other than a combination sentence of a community corrections order and a gaol term, unless exceptional circumstances apply - that is paraphrasing - unless either of the exceptions that are set out in 5(2H) apply.
12Slashing the face of your victim when being pursued, whilst not part of the home invasion offence because you had left the premises, it is certainly connected with it. It is a particularly grave aspect of the offending in this matter. If it were not for that aspect of your offending, had you left and fled upon being discovered, your criminality would not be as serious, and the objective gravity would be lower.
13The combination of offending across the charges here is particularly serious. Your impulsivity and poor consequential thinking arising in part out of factors beyond your control such as cognitive functioning, past trauma and formative forces in childhood, only go some way to explaining your resort to violence in these circumstances. Community protection sits alongside Bugmy mitigation as key considerations in formulating sentence.[1] The other significant factor in your offending, being Xanax use, of course is a matter that is within your control.
[1] Bugmy v The Queen [2013] HCA 37.
14Turning to your personal circumstances.
15You are a 23-year-old Gunditjmara man who has had difficulties connecting with your culture due to instability and trauma in childhood, inter-generational trauma and colonial impacts including impacts of the stolen generations.
16I accept that your formative years were characterised by adverse childhood experiences, parental substance use and family violence, Child Protection involvement, neglect and general deprivation. You are also the victim of sexual trauma. Child Protection became involved in your family when you were aged two years onwards.
17Your education was disrupted to a significant extent due to the consequences of trauma, but also due to your functioning profile, both matters of course not within your control. You commenced prep at Doveton Heights Primary School. Concerns there were raised regarding your presentation, learning skills and poor motor development. You repeated Year 1. You went to Doveton Primary in 2010 and were then on-transferred to Eumemmerring Primary School midway through 2010 and remained there until 2011 when you were then accepted into Emerson Special School. You disengaged around three months after enrolment. You left school around the age of 13 and have had no formal education since.
18A tragic event occurred in your life, a tragic and destabilising and deeply traumatic event, of losing your father who passed by suicide when you were 15. Understandably, that was destabilising for you, alongside the grief and trauma. You had already had exposure to substance abuse through childhood, but you commenced drug use yourself at an early age.
19You participated in a Koori Court Sentencing Conversation and discussed what aspirations you have for the future including engaging in work, scaffold work, roof tiling work. You are fortunate that you now have a number of supports involved in your life, some of which were not there at the time of you committing this offence whilst you were on a Community Corrections Order. That is a significant matter from a sentencing point of view, that you were on a Community Corrections Order at the time of the offending before me.
20After you had been remanded in November you received an NDIS package in December last year. That NDIS package had been in the works since about 2021 - it can be a difficult application process. I accept that the existence of that package now provides much more confidence that you can engage with a Corrections order and that you can be supported in the community to achieve your goals.
21You participated in the Koori Court Sentencing Conversation with Aunty Pam and Aunty Faye, and you were supported by your mother and your sister. You were also supported by Ms Mahnie Amato, Disability Justice Co-ordinator, and Ms Bryony Kane from ACSO Re-Start program and D.J (indistinct) [A1] Specialist Support Co-ordinator.
22The picture that was able to be painted by these support workers balances up the very negative picture when one looks objectively at your offending and your actions. You had engaged up to a point with your Corrections order and it is very clear from the offending how that was derailed. But there is hope with the strong supports that you have for a person such as yourself to, once you are released from custody, engage with services and keep appointments.
23Your participation in the Koori Court Sentencing Conversation provides evidence of some insight and remorse. It certainly provided evidence of the strong family support via your mother and sister, and in particular the wrap-around supports now available to you that were not there previously, and that is largely due to the NDIS package which is now available.
24You spoke about what you are doing in custody, and you are approaching custody in a responsible manner. You are on the methadone program, not due to opiate abuse but to your recognition that you have had a vulnerability in the past in relation to accessing benzodiazepam. So, you are on that program, you are working as a billet, you are engaging in cultural pursuits inside custody to the best of your ability.
Sentencing Conversation
25Your participation in the Koori Court Sentencing Conversation entitles you to mitigation, and you get mitigation for that participation as is recognised by authorities such as Honeysett. I am also satisfied that you have shown through that conversation the commencement of a more mature approach to challenges that you face and a recognition that you need supports.
26I received a very comprehensive array of reports that speak with authority as to your functioning and your challenges and the therapies that would benefit you. These included the psychological report of Courtney Steffens dated 22 December 2023, the psychological report of Dr Lewis dated 18 May 2025, and the neuro-psychological report of Dr Anderson dated 4 June.
27I also received documents or letters of support from Bryony Kane, from Ms Amato, Disability Justice Co-ordinator, and also from Wadamba prison to work program, all of which were positive in relation to the capacity you have when supported to address your criminogenic issues.
28It is important to have regard to the neuro-psychological, psychiatric and psychological material in understanding both the risks in relation to your offending but also in relation to moral culpability, and further, the therapies that will assist you to rehabilitate.
29Both Dr Anderson and Dr Lewis express some caution in relation to prospects of rehabilitation, but both point to the need for intensive support on release into the community.
30Dr Lewis opined it is highly unlikely that your risk of recidivism is going to lessen without treatment of substance use, an opportunity to process trauma and a better understanding of anger, emotional regulation, and why your offending is often violent offending.
31Dr Anderson recommends supports upon release under the NDIS plan and via DFFH's forensic disability service. She opines to date:
'Mr Sunderland's underlying functional deficits associated with his disability have been poorly addressed and supported which is perpetuating his pattern of offending behaviour. I strongly recommend that a disability lens is applied to Mr Sunderland's future offender rehabilitation planning so that his underlying functional deficits associated with his disability can be addressed and supported to improve his overall rehabilitation and ultimate reduction of criminogenic risk factors.'
32Dr Anderson goes on:
'In light of his level of cognitive functioning, Mr Sunderland demonstrated quite an impressive level of insight and awareness of factors that contribute to his overall pattern of offending behaviour, including his current charges. As a result of his level of insight, Mr Sunderland was able to reflect upon his current alleged offending and expressed considerable remorse for his relapse into drug use and subsequent involvement in the offending. He impressed as quite disheartened with himself that he was not able to maintain the promised progress he had made throughout the initial period of his community corrections order.'
33There is no contest or dispute on the materials that you experience an intellectual disability. There is a statement of intellectual disability pursuant to the Disability Act 2006 which forms part of the materials, and I have received a Justice plan and disability overview report also. Complex PTSD and ADHD have also been psychological functioning issues that you have had to navigate since childhood.
34Dr Lewis at paragraph 127 states that you are unable to regulate your emotions, consider the consequences of your actions or rationally consider your choices and behaviour in the same way that individuals without an intellectual disability, ADHD and PTSD may be able to. For these reasons you are more likely to behave impulsively, recklessly and at times aggressively than those without these conditions.
35Dr Lewis opines that when coupled with your early life experiences your propensity for violence can be understood as both a result of your environment and your difficulty with internal regulation and executive functioning.
36These opinions of Dr Lewis and Dr Anderson, and Ms Steffens also, support a conclusion that Bugmy mitigation is abundant in your case.
37When I assess all of those materials, that is the psychological, neuro-psychological and psychiatric materials together, I am satisfied that Bugmy mitigation is available to you in the specific sense.
38In his very helpful Prosecution Submissions on Plea dated 22 July 2025, Mr Russell addresses all of the sentencing issues in this matter in thorough detail. In relation to Bugmy and its application, I have reached a different conclusion from that submitted by the prosecution for those reasons I have just stated.
39In relation to moral culpability, I have already noted at the outset that drug use, on your own admission to police, was a major factor in this offending, and I am satisfied, based on the materials but also based on your own words during the sentencing conversation, that you recognise you need to deal with substance use and substance abuse if you are not to keep coming back to a custodial setting over the years.
40There is no doubt that your cognitive profile, the consequences of a traumatic and disadvantaged childhood, had a role to play in your gravitation towards negative peers, your gravitation towards drug use at a young age, and in turn had a role to play in you making the decisions you did, or lack of decisions, lack of consequential thinking on this occasion and underpinned to some extent a resort to a violent response.
Moral Culpability
41It is not possible for a court, or perhaps anyone, to unravel the respective parts, drug use, the specific Bugmy factors, intellectual disability and other psychological factors such as complex PTSD and ADHD and the symptoms that go along with those and attribute weight or causal connection in relation to the offending of each part. Globally, I am satisfied that your moral culpability for your offending on this occasion is reduced in the sense that it is less than it would be for a person who is not afflicted with your challenges that I have set out.
42Putting it another way, your moral culpability is assessed in light of all those factors that are known to me through the documents and matters filed on the plea and in oral submissions also, and as emerged during the sentencing conversation.
43I have touched on the NDIS plan which was an important part of your counsel's submissions on the plea. As I have noted, it is hoped that the NDIS support will assist you to keep appointments and engage with services in the community when you are required to.
44I have not specifically addressed Verdins for reasons that I have just stated in relation to moral culpability generally[2]. There is an aspect of your functioning, principally the cognitive limitations in conjunction with ADHD and complex PTSD which do have a connection with the way in which you offended, as does the specific Bugmy mitigation due to those formative experiences in childhood which have seen you more likely, when intoxicated, to react in a violent way.
[2] R v Verdins (2007) VR 16 269.
45As I stated, it is not possible to separate out Bugmy in this sense and Verdins in this sense, and further, the role of drug use.
46The other aspect of assessing moral culpability is that due to those forces that I have mentioned, whether they come under the Bugmy heading or under the Verdins heading, you are considered a high risk of re-offending and a moderate risk of violent re-offending. Those matters need to be kept clearly in mind when considering specific deterrence and community protection, in particular.
47As I stated at the outset, home invasion is a Category 2 offence, and your counsel advanced two aspects of 5(2H)(c) and (e) in relation to satisfying the exception. Mr Russell in his detailed submissions argued the contrary. Where sub-s(e) is concerned, I am satisfied that your counsel is on strong ground relying upon the enduring intellectual disability and the significant trauma, particularly the trauma associated with losing your father in the manner that you did in your teenage years, the PTSD that is a consequence of childhood trauma, a degree of hardship in custody - I say a degree because I have not concluded that it is a significant degree - hardship in custody due to your experience of complex PTSD and the difficulties with your cognitive limitations, there is some mitigation available to you in the Verdins Limb 5 sense.
48Counsel also relies upon in the combination the therapeutic wrap around supports that would be available to you and culturally appropriate supports.
49You are a 23-year-old young Koori man, vulnerable in custody in particular due to your cognitive profile. I was provided with very informative helpful articles from the Journal of Intellectual Disability Research - I will not quote those titles herein but they provide a lens as to the particular difficulties you face in custody given your limitations.
50All of those factors in combination, in my view, combined appropriately with Bugmy, Verdins, the mitigation that flows from the sentencing conversation, the mitigation that flows from your plea of guilty, do provide substantial and compelling reasons. It is certainly open, in my view, for them to be considered exceptional and rare.
51So, I am satisfied that that exception can be made out, but I considering the appropriate sentence I have concluded that a combination sentence on Charge 1 is not the most appropriate sentence. I do consider, however, that the therapeutic supports and engagements available in the community, in conjunction with a community corrections order, would be the best opportunity at assisting you to rehabilitate.
52It is commendable that you have the supports of Ms Amato, Ms Cane and others, available to you. The Wadamba prison to work letter is suggestive of you being able to be released from custody and into the workforce in the not too distant future.
53I had you assessed via an extended pre-sentence report, and that extended pre-sentence report found you to be suitable, with some hesitations, as one would expect - or reservations, I should say - but the ultimate conclusion is it is suitable. The suggested conditions are supervision, judicial monitoring, a Justice plan, non-association and programs to address re-offending. Alongside the extended pre-sentence report was the Justice plan and disability overview report, both dated August this year.
54Having regard to all of the factors that I must, including importantly general deterrence, denunciation of this serious offending, specific deterrence in your case and community protection, both of which loom large, and making assessments as best I can of your prospects of rehabilitation of which I am guarded, but recognising that you have now available to you as sound wrap around supports as you are likely to ever have, there is an opportunity now to have you released when you have concluded your sentence onto a community corrections order.
Sentence
55So, I sentence you as follows:
56On Charge 1, home invasion, you are sentenced to 15 months' imprisonment.
57Charges 2,3 and 4, effectively imposing an aggregate sentence, or a concurrent sentence, whichever way one looks at it, Charge 2, recklessly causing injury, nine months' imprisonment and a two-year community corrections order.
58Charge 3, threat to inflict serious injury, is part of that two-year community corrections order, as is the theft charge, Charge 4, is also part of that two-year community corrections order.
59I direct that one month of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
60That makes a total effective sentence of 16 months' imprisonment.
61You have a two-year community corrections order to follow once you are released, and I declare that you have served 314 days, was it.
62MR RUSSELL: 315, Your Honour.
63HIS HONOUR: Sorry, 315 days as pre-sentence detention.
64The conditions that will be imposed as part of that two-year community corrections order are supervision, and I set a judicial monitoring date for three months after your release; that you be subject to the Justice plan; that you be subject to a non-association condition with your co-offender whose name is Vasillios Awo, A-w-o, Vasillios, V-a-s-i-l-l-i-o-s; you be subjected to drug treatment and rehabilitation assessment, rehabilitation as directed; alcohol treatment and rehabilitation; mental health treatment and rehabilitation, and medical treatment and rehabilitation which is principally aimed at providing a level of supervision in relation to FarmCo therapy programs in relation to substance use, and also programs to address re-offending pursuant to Forensic Intervention Services.
65Pursuant to s6AAA, were it not for your pleas of guilty I would have sentenced you to three years' imprisonment with a non-parole period two years.
66Now, are there any other orders that were required Mr Russell.
67MR RUSSELL: No, Your Honour.
68HIS HONOUR: So, Ms Banihali will be able to explain that to you, Mr Sunderland, but on my calculations, it means you have probably got around about another five months or so to serve and then you will be released onto a community corrections order. Do you consent to the community corrections order.
69ACCUSED: (No audible response.)
70HIS HONOUR: I see him nodding and saying yest. That will now be prepared, and we will give Ms Banihali a look at it just to make sure it reflects what I have said. I will sign it and then it can be sent to Mr Sunderland for his signature, and we will do that now. I will just stand down while that is prepared so I can check it and then have a look.
71(Short adjournment.)
72I will give you a look at the Corrections order, Ms Banihali, just to make sure it reflects what I have said.
73So, that will be sent to you, Mr Sunderland, somehow, and you will have a bit of time to get yourself ready for your release and then to really embrace the opportunities of that Corrections order and the other things that have been put in place for you. So, I will see you roughly about three months after your release and I will be very interested to see how you take up this opportunity.
74All right, thank you, we will adjourn the court.
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[A1]DJCS?
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