DPP v Drust [2025] VCC 755

1. At the time of your offending, you were 32 years old. The victim in this matter is your father Daryn Drust who was 57 years old. You are the eldest child from your father's first marriage.
2. You had been living at the rear of the victim's property in Engi Road, Raywood since December 2022 after a period of homelessness. The property is approximately 20 acres with a number of horses and large stables at the rear of the property. The victim trained a couple of racehorses and was receiving a disability support pension.
3. In the lead-up to the offending the victim noticed that you had begun drinking more alcohol.

1. On 27 April 2023 you rode your bike into Bendigo and bought a cask of red wine. It was apparently your dole payment day.
2. At about 2:30pm that afternoon the victim observed you drinking beer.
3. At about 7:15pm the victim went down to the stables and found you sitting inside the first stable in the dark drinking red wine. The victim switched the light on and told you to 'get out of the stables, let the horses rest and sleep'. You said that they 'were not racing' and the victim said 'that's not the point'.
4. The victim then walked away around 8 to 10 feet and turned his head to the left just as a wine glass thrown by you hit him in the back of the head causing pain. The glass shattered on the ground.
5. You then punched the victim to the back of the head which caused him to fall to the ground. You said something about your mother, grabbed his shirt, and told him to 'get up you weak cunt'. The victim described you as being in a rage. As the victim tried to get up, you punched him at least three more times.
6. The victim managed to get up and stagger back to the house, whilst you headed back to the stables.
7. The victim then drove about 3 kms to the property of his friend, Philip Clay, to seek help. Mr Clay told police that he observed that the victim's eyes were swollen closed, red and bruised, that he couldn't talk, and his mouth was full of blood.
8. Mr Clay's partner Susan Clark also noticed a cut across the victim's nose and blood on the back of his head. The victim told Mr Clay that his son had caused the injuries. Mr Clay phoned for an ambulance and subsequently, the victim was taken to the Bendigo Hospital.
9. You were arrested at about 11:45pm on 27 April 2023 at the Engi Rd, Raywood address. You were located asleep on the couch in the lounge room of the home.
10. At 11:59pm police attended at the horse stables on the property and located a mobile phone, a Bluetooth speaker and a cask of red wine.
11. Police also located a smashed drinking glass along with two puddles of what appeared to be blood on the ground.
12. At 10:30am on 28 April 2023 police obtained the victim's account of the offending through a DREC recording conducted in the Emergency department of Bendigo Hospital.

1. On 28 April 2023 the victim was assessed in the Emergency Department and was diagnosed with multiple facial fractures and facial lacerations.
2. Mr Ian Poker, oral and maxilla-facial surgeon, stated that the victim sustained:

(a) bilateral comminuted maxillary fractures (fractures to upper jaw);

(b) comminuted nasal fracture;

(c) fractures to the right and left zygoma (cheek bones) that included the orbits; and

(d) facial lacerations.

1. On 30 April 2023 the victim underwent open reduction and internal fixation of fractures to his maxilla and zygoma, manipulation of his fractured nose and debridement and suturing to his facial lacerations.
2. The victim was discharged from hospital on 1 May 2023.
3. Dr Maaike Moller, Forensic Physician, noted that the discharge summary from Bendigo Hospital indicated that there was soft tissue swelling over the left occipital (back of the head) region and a 2-3cm superficial laceration over left distal upper arm.
4. The victim has been subsequently reviewed by Mr Poker 10 times, the most recent being on 10 January 2024.
5. On the review appointment on 25 July 2023 the victim reported the following ongoing problems:

(a) residual numbness to right and left cheeks;

(b) some balance disturbances, particularly when walking down steps or bending down putting on his shoes; and

(c) sleeping disturbances. He reported his general medical practitioner had prescribed some tablets for sleep and to control his stress. This was related also to increased anxiety from the incident.

1. The victim reported to Mr Poker that the injury has affected his social life as he has to drink through a straw due to altered or decreased feeling in his upper lip.
2. On 15 November 2023 the victim reported to Mr Poker taste disturbance arising from the right upper jaw and some swelling. Examination reveals this appears to be arising from an infected right maxillary bone plate. A left maxillary bone plate was close to protruding through the surface of his oral mucosa. During 2024 two bone plates were removed.
3. At the committal proceeding on 21 February 2024, about 10 months after the offending, the victim gave evidence that he still had ongoing issues. He only has 85% feeling in his face, has no feeling when he bites down on one side of his jaw and his tear duct is still not draining properly.
4. The Prosecution case is that the injuries are 'serious injuries' by virtue of being 'substantial and protracted'.

1. In your record of interview, you confirmed that you had been living at the victim's house since early December 2022 and indicated that you had only been in the victim's life for the last six years.
2. You said that you were in the stables drinking and listening to music when the victim came out and abused you about the horses needing to sleep. That was when a verbal argument developed. You said that the victim did not become physical with you.
3. You admitted to drinking about one litre of wine from a cask that day.
4. When asked whether you had hit the victim in the head with a drinking glass and punched him, you initially said that you couldn't confirm nor deny that part. You preferred for the matter to get to court before commenting on the allegations. Likewise, when asked to comment on some cuts on your fingers and some dried blood, you said that you would speak to the courtroom about it.
5. Later in the interview, you said

It comes down to defence of myself, the abuse, that - whatever else come from it. Once again, mate, I can't go into it too much, but there's a - a long line of abuse with - inside a fuckin' family. I'm not saying physical, but at the same time it's emotional... it's not justifying any actions or anything like that. It comes down to his personality, mate, you know what I mean. He's just a fuckin' idiot as a father...

1. You further said, 'he treats his fuckin' family like shit, he treats everyone else like shit' and 'he's a piece of shit'.
2. You also said that 'there is no reason for assault'.
3. You said that 'I do not have a fuckin' issue with remembering, mate....I know a hundred per cent what happened'
4. You told police that you drank now and then - the last time was about a week ago when you had two bottles. Apart from that you had not drank alcohol for two to three months.
5. You admitted that you were on bail for shop theft at the time of this offending.
6. During committal proceedings both Mr Poker and Dr Maaike Moller, Forensic Physician, indicated that the victim's injuries were consistent with an assault or a fall.

1. Recklessly causing serious injury is an inherently serious offence as reflected in the maximum penalty imposed by Parliament, being 15 years imprisonment. In this instance your attack on your father was an unexpected violent outburst where the initial attack by you was from behind as your father was walking away from you. You were intoxicated at the time.
2. The force you used was significant and clearly you were in a rage as you continued to punch the victim once he was on the ground, ultimately causing the serious injuries as described above.
3. While your counsel conceded that this was serious offending, he highlighted that there are a number of aggravating features that are not present such as that the assault was reactive rather than planned, that it was not in company and that it was not prolonged.
4. The offence of recklessly causing injury covers a very wide range of offending including injuries that may be permanently disabling, to others that barely cross the threshold of seriousness.[1] In my view in all the circumstances your offending falls between the mid to lower range.

1. Your father provided a victim impact statement which I have taken into account. In summary, he is haunted by the trauma and pain you have caused. He describes the impact your offending has had on his physical, financial and emotional wellbeing and that he feels violated, powerless and constantly on edge.
2. The victim also notes that the impact of your offending extends beyond himself to his family and close friends.

1. You were born in Frankston and were raised in Hastings by your mother and stepfather as the eldest of four children. You report that generally your childhood was positive however you recall frequent verbal arguments between your mother and stepfather. Throughout your adolescence you would often clash with your stepfather however maintained a civil relationship with your mother. You acknowledge that your relationship with your mother has been affected due to your substance use. You had no contact with your father until you were in your thirties.
2. You struggled academically in school and were often disciplined for your behaviour. You left school at age 15 to engage in an apprenticeship in flooring, which ended prematurely as you had a falling out with your boss. You have worked in various labour roles with intermittent periods of unemployment including a period between 2018 to 2021 following a back injury and incarceration. You had been receiving unemployment benefits prior to entering custody on this matter.
3. You commenced drinking alcohol at the age of 13 and are cognisant that your alcohol use has caused difficulty in your life including prior charges of drink driving resulting in a loss of your licence. At the time of this offending, you were drinking heavily especially on the days when you received your employment benefits. You also began using amphetamines when you were in your later teenage years and have intermittently engaged in methamphetamine use in your adult life.
4. A psychological report prepared by Ms Laura Fleming dated 3 December 2024 was tendered on the plea in which Ms Fleming opines that you present with an established diagnosis of Alcohol Use Disorder. Your offending was committed in the context of persistent alcohol abuse which, when coupled with your early adverse childhood experiences, contributed to your poor capacity to resolve conflict and emotional dysregulation. Ms Fleming asserts your history is suggestive of maladaptive coping, whereby you engage in avoidant behaviours or rely upon illicit substances as a form of self-medication to assist in managing your emotional distress and psychosis symptoms.
5. You first engaged in mental health treatment in 2015 when you began experiencing symptoms of psychosis. Ms Fleming opines that you meet the diagnostic criteria for schizophrenia noting that your diagnosis impacts your ability to interact with others and maintain employment. Ms Fleming elaborates that adequate monitoring and treatment may assist you in establishing a stable future. You are currently prescribed an antipsychotic for your schizophrenia however you are still experiencing ongoing auditory and visual perceptual disturbances in custody. You are hopeful your medication will be discontinued. You report that you are currently engaged with mental health staff at Forensicare who assist with medication management and supervise a behaviour program. You report you have engaged in self-harm in custody.
6. You live a solitary existence and do not have any ongoing social or supportive relationships in your life. Your criminal history dates back to 2013, whereby you first entered custody in 2019. In this most recent period of remand you have spent time in either management or psychiatric units. You are currently held in a solitary unit and have limited access to work or educational programs within the custodial setting. Despite having the option of interacting with other inmates you choose to take your 'run outs' alone. You have not had any contact with family or friends since your remand.

1. Mr Barreiro who appeared on your behalf submitted that there are a number of matters to be taken into account in mitigation.
2. First is your plea of guilty. Your plea has avoided the time and expense of a criminal trial and most importantly it has avoided the need for the victim to have to give evidence for a second time, noting that you did conduct a contested committal where the victim and others were cross examined.
3. It was conceded that your psychological profile, including your diagnosis of schizophrenia, does not allow for a causal link with the offending, and therefore moral culpability and general deterrence are unable to be moderated. However, it was submitted that in terms of your mental illness, you were untreated at the time and living a life dominated by excessive alcohol use. I take this into account in the general sentencing discretion.
4. It appears that your time on remand has resulted in a deterioration in your mental state leading to delusions and paranoia and an episode of serious self harm. As such, I do take into account Verdins principle 6, and while you seem to be currently settled in the prison environment, I also give some weight to Verdins principle 5.
5. Turning to your prospects of rehabilitation, I note that while you have a prior criminal record, you do not have prior convictions for violent offending. Nonetheless you do have a history of substance abuse. Your rehabilitation depends on you maintaining your engagement with the supports offered to you in custody and upon your release. In custody you are voluntarily taking medication and allowing assessments from mental health professionals. If you do engage as you have, then in my view your prospects are reasonable.
6. General deterrence and denunciation of your conduct are relevant sentencing considerations. Your attack on your father was unprovoked and uncontrolled, resulting in the serious injuries as described above. While there may have been underlying resentment and history between you and your father, there was no justification for your violent assault. While you do not have prior convictions for violence, in my view specific deterrence must still carry weight in the sentencing calculus.

1. Mr Drust would you please stand.
2. Marc Drust, on Charge 1, causing serious injury recklessly, you are convicted and sentenced to 3 years and 3 months imprisonment. I direct that you serve 2 years and 3 months before becoming eligible for parole.
3. Pursuant to s 18 of the Sentencing Act 1991 ('Sentencing Act'), I declare that 771 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
4. Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 4 years and 6 months imprisonment with a non-parole period of 3 years and 6 months.

[1] Nash v The Queen [2013] VSCA 172, [55] (Maxwell P, Priest and Coghlan JJA)