DPP v Ivanac [2025] VCC 567

(a) On 16 July 2022, without lawful excuse, you intentionally caused serious injury to Aiden Fischer and Brendan Barnard (Charges 1 and 2).[1]

(b) During the same incident, you spat towards Hayley Forrest and yelled words to the effect of 'I've bashed girls before, I'll hit you next' (Charge 5).[2]

1. The jury was not required to determine a verdict on the two alternative charges.
2. It is now my role to sentence you for your offending following the trial. The task of a sentencing judge following a jury verdict is clear: I am obliged to determine the factual basis upon which you are to be sentenced; the facts I find must not be inconsistent with the jury's verdict; and any adverse findings must be made to the criminal standard.[3]
3. The maximum sentence which the court can impose in respect of Charges 1 and 2 is imprisonment for 20 years; on Charge 5 the maximum sentence is imprisonment for 5 years.

1. On 16 July 2022, you were having a small party at your house. There were a number of people present including your partner Elise Barnard, your daughter and your friend Leigh Saker.
2. Ms Hayley Forrest drove her partner Mr Brendan Barnard (who is the brother of Elise) and their friend Mr Aiden Fisher to the party at your house at around 8pm.
3. You, Mr Saker, Mr Fisher and Mr Barnard consumed alcohol throughout the night. Mr Fisher, Mr Barnard and Mr Saker also consumed some of your prescription medication. Ms Forrest did not consume alcohol before arriving and only consumed two drinks after she arrived. I accept that she was the most sober of all adults present and have relied on her evidence as I conclude the jury did.
4. At about 9-10 pm, there was a scuffle in the hallway between Mr Saker and Mr Barnard. The scuffle was about Mr Barnard's view that Mr Saker was involved with illicit drugs. Ms Forrest heard Mr Barnard say something to Mr Saker like 'why did you bring Ice here you junkie?'.[4]
5. Mr Saker sustained a minor cut to his head during the scuffle.
6. Ms Forrest gave evidence of an exchange between her partner Mr Barnard and you shortly before the scuffle. She told the jury that you said: 'I thought we were family'. Mr Barnard responded: 'We were never family'.[5] It will be recalled that Mr Barnard was your brother-in-law.
7. Mr Saker then left the property and starting walking down Heritage Drive. You left and drove after Mr Saker.
8. Ms Forrest, Mr Barnard and Mr Fischer left the house by the front door. They got into Ms Forrest's car which was parked out the front. They had no intention of staying at the party. It was your return to the house and you aggressive conduct that fatefully changed their minds.
9. You returned at this point, angry about the scuffle and what had been said about your family. You went in to your garage and emerged armed with a metal bar. You were threatening and abusing the group in Ms Forrest's car. Ms Forrest heard you say "I'm gonna fucking kill you'.[6]
10. Perhaps unwisely, Mr Fisher got out of the car and approached you. I accept that he was unarmed. However, he was addressing you aggressively.
11. Without warning you swung the metal bar with force to the side of Mr Fisher's head. He hit the ground straight away and was unconscious for approximately 15 seconds. His face and head were covered in blood (Charge 1).
12. Mr Barnard stepped out of Ms Forrest's car to check on his mate and to remonstrate with you. You swung the bar and hit him once to the head. Mr Barnard fell unconscious to the ground (Charge 2). He was unconscious for 5 or 10 minutes. Ms Forrest, who was watching these events unfold, told the jury that she thought you had killed him.
13. Ms Forrest ran to assist Mr Barnard, screaming for help.
14. You then spat toward Ms Forrest and yelled: 'I've bashed girls before, I'll hit you next' (Charge 5).
15. These events all occurred in a short period of time outside the house where you lived with your partner and young children, who were home at the time.
16. When Mr Barnard regained consciousness, Mr Fischer and Ms Forrest helped him into her car and they drove to Ms Forrest's house.
17. About a week later, Ms Barnard was home with you and your children when you called her over to the garage. Ms Barnard told the jury that you were holding a metal pole when you said 'this is what I used...and this is how I did it'. You then gestured, swinging the pole in two directions.[7]
18. The metal pole that you used has never been found.

Two young men suffered life-long serious injuries

1. As a result of your conduct, Mr Barnard suffered bleeding to the brain (traumatic brain injury), due to blunt force trauma to his head. Mr Barnard has been diagnosed with a permanent loss of his sense of smell and taste due to the head trauma. Mr Barnard has an increased risk of epileptic seizure.
2. Mr Fisher's injuries were that as of 30 August 2022, the bruising in his brain had not healed, and he was suffering from early brain softening or cell death as a result of the injury (in the areas of the brain bruising). Mr Fisher will now have an increased risk of epileptic seizure and has suffered hearing loss in both ears with a prominence in his right ear. Mr Fisher now wears hearing aids in both ears.

1. Mr Fischer competed a victim impact statement dated 3 September 2024.[8] He states that he lacks confidence about going out, he suffers from headaches and bad dreams nearly every night. He is no longer able to dive for crayfish which he used to love doing with his father. He feels that he is no longer the same person.
2. Mr Barnard's victim impact statement dated 18 September 2024 describes how he feels sadness and frustration over not being able to protect his partner (Ms Forrest) whilst he was unconscious.[9] He states that he now experiences fear in social settings due to his memory problems and the possibility he may repeat himself. This has led to feelings of isolation and withdrawal. The long term brain damage has taken away the simple pleasures in life, such as eating and dining out.
3. In her victim impact statement dated 18 September 2024, Ms Forrest also described the emotional distress she felt, thinking that her partner had died in front of her.[10] She states that she has constant nightmares about the incident and has had to have counselling to deal with the impact. This has also impacted her ability to engage in social situations as she gets anxious.
4. I have taken into account the impact of your offending on Mr Barnard, Mr Fischer and Ms Forrest.

1. The objective gravity of a charge of ICSI is to be assessed having regard to all of the circumstances including how the injury was caused (i.e. whether a weapon was used and if so what type of weapon) and the nature of the injuries that were caused.
2. There was a disagreement between the parties concerning a factual matter. Mr Lewis, who appeared for you, submitted that the court could not be satisfied to the criminal standard that the injuries caused to Mr Fischer were caused by you swinging the metal bar at his head. He conceded that a bar was used on Mr Barnard.
3. The prosecution case at trial was that a bar was used to cause both injuries. However, the use of a bar was not an element of the offending and there was discussion during the trial that it may have been a punch.
4. As Mr Cameron submitted, if it was a punch, it was a punch with sufficient force to cause what the medical evidence heard by the jury described as 'a high energy impact' bone fracture.
5. There are four reasons why I am satisfied that you used a metal bar to cause the injuries to both men.
6. Your description of the events to your wife Ms Barnard a week after the offending strongly suggests you used the bar on both men.
7. You told Ms Cidoni that you hit the first man (Mr Fischer) with 'the pole'. You then told her that when 'the other guy' (Mr Barnard) turned around you 'hit him again before heading back inside'.[11] You said nothing about dropping the pole between the attacks on the men.
8. Having armed yourself with the pole, it is highly likely that you would use it on both men. As it is common ground that you struck Mr Fisher first using the pole, and no one saw you drop the pole, I conclude that you also used the pole on Mr Barnard.
9. I wish to make it clear that even if I am wrong about this and it was a punch that caused Mr Barnard's serious injuries, it would make no difference to my assessment of the objective gravity of your offending, your moral culpability and therefore, the sentences I impose.
10. Charges 1 and 2 represent egregious examples of the very serious offence of intentionally causing serious injury for the following reasons:

(a) You used a solid metal bar which you swung at the unprotected heads of your two victims; and

(b) You caused each of these young men life-long and very debilitating injuries.

1. I consider that each of the charges represents an offence which is at the mid-range for offences of this type. Your moral culpability is considerable.
2. Charge 5 is also a serious example of the offence of common assault. Although Ms Forrest did not suffer any injuries, the context in which you assaulted her is highly relevant to the gravity of this offending.
3. Ms Forrest, who was trained in first aid, was sitting next to her partner Mr Barnard attending to his injuries. Mr Barnard was unconscious. You approached Ms Forrest and while spitting at her threatened her from a distance of about a metre or two. Ms Forrest told the jury that she was concerned that you would harm her. Given what she had just witnessed, this is completely unsurprising.
4. Your moral culpability for assaulting Ms Forrest, who presented no danger at all to you, is very high.

1. You were born in Mulgrave and raised in Cranbourne.
2. Your parents separated when you were four years old. At the same age, you were diagnosed with ADHD, OCD and Oppositional Defiance Disorder and have been medicated ever since.
3. When you were seven, you found your mother attempting suicide in the bathroom, but were able to seek help from your neighbours. Later, your mother ended up dating a man who was physically abusive. You remember being 'bashed for everything and anything'. You disclosed the abuse to your teacher. As a result, child protection were briefly involved in your life.
4. You instructed your lawyers that your mother forced you to leave home when you were 10 years old, stating that you reminded her of your father. You acknowledge you were a difficult child and your mother struggled to manage your behaviour.
5. You estimate that you lived in 15 refuge homes. You state that you were sexually abused by a care worker at one of these refuge homes at age 15. You later couch-surfed and lived with your maternal grandmother in Narre Warren.
6. You have a strained and limited relationship with your father, which was influenced by your stepmother. You often feel excluded from your father's new family unit, which includes his wife and two children.
7. You have a positive relationship with your younger sister, Amanda, who lives with her two children in Clyde North. You have limited contact with your paternal half-siblings but speak regularly to your maternal half siblings.
8. You had a strong academic record throughout primary and secondary school. In grade 6 you earned a mathematics scholarship to Lyndhurst Secondary College, where you graduated year 12 with straight A's. You experienced behavioural issues, such as fighting and talking back and went through periods of truancy.
9. You have obtained several qualifications of Certificates II, III and IV in retail and retail management, plus a Certificate II in civil construction.
10. When you were 17, you secured rental accommodation in Carrum Downs with your partner, Jade. You were together for four years and had a daughter. You believe that there were issues in your relationship because of your drug use and criminal activity.
11. Your daughter is currently 17 years old and was living with you before your incarceration as she did not want to live with her mother. She is now in the care of her maternal grandmother. She gave evidence at your trial and has been present to support you during the various sentencing hearings. She wrote a character reference for you in which she described your conduct on the night as out of character.
12. You have had multiple relationships since Jade. Recently, you had a two and a half year relationship with Ashlee, which resulted in the birth of your son. Your son is 12 years old, has ASD and is currently in the care of Ashlee's mother.
13. A subsequent relationship with Elise, which lasted for three years, resulted in the birth of your youngest daughter, who is now four. Since your incarceration, you have been having video calls with your children.
14. In 2014, you suffered a severe assault in prison which resulted in a broken collarbone, loss of consciousness and a two week hospital stay. During a separate incident in prison, you suffered a perforated eardrum, which resulted in hearing loss in your left ear. You will require a hearing aid for the rest of your life.
15. For the past decade you have mainly worked as a labourer, but this was interrupted by periods of incarceration. You are currently working as a barber in prison. You have also completed a number of courses while in custody including 'Ice and me', 'Positive Parenting' and 'Managing Cravings', this is to your credit.[12]
16. Your criminal history dates back to 2007 when you were 19 years' old. You have been convicted of offences of violence on several occasions for which you have received custodial sentences. Prior to the current matter, your offending was dealt with in the Magistrates' Court. This offending represents a significant escalation in your offending which is relevant to the need for specific deterrence.

1. At the age of 13, you began consuming alcohol and by the time you were 15, this had become a daily habit. Between 15 and 18 you were using ecstasy every few days. From 18 - 21 you were using amphetamines on weekends. Between 2009 and 2014 you were using methamphetamine. You relapsed three months before your arrest for this matter.
2. Any periods of abstinence from drugs have usually coincided with your periods of incarceration.
3. You reported to Ms Cidoni, psychologist that you attempted suicide in 2019 by ingesting 50 pills of Valium.
4. You also developed a gambling problem in 2020, which lead to substantial losses amounting to over $250,000 over three years.
5. Ms Gina Cidoni, who examined you at the request of your lawyers, concludes that you have Complex PTSD, Substance Use Disorder (in sustained remission) and Borderline personality traits.

1. You contested the charges and, while you are not to be punished additionally for this, you lose the considerable benefit of a plea of guilty.
2. There has been considerable delay associated with the case. The offending occurred on 16 July 2022. The bulk of the delay has been due to the matter going to trial and the plea hearing being adjourned at your request.
3. Regardless of the reasons for the delay, I accept that the matter has been hanging over you which has added to the burden you have faced.
4. Your counsel placed reliance on the general principle in the case of Bugmy.[13] I accept that your childhood was a challenging one. I have moderated the sentences I impose to a modest extent in light of this.
5. You show little remorse for the offending based on what you told Ms Cidoni. However, I have taken into account what your friend Mr Caves says in his letter to the court dated 11 February 2025. Mr Caves describes you as 'filled with deep remorse and shame'.[14]

1. Your defence of self-defence failed at trial. Your counsel Mr Lewis, in comprehensive submissions to the court, submitted that nonetheless, your moral culpability is reduced by reason of your excessive self-defence, based on what had occurred during the scuffle and your perception (however misplaced it may have been) that you were defending yourself and your children at the time of the offending.[15]
2. I will deal with this argument as part of my consideration of Verdins. I consider that your actions on the night were in part the result of your unrealistic threat assessment which was contributed to by your mental ill-health. It would be wrong to discount your sentence twice on account of this.

1. Much of the plea hearing was devoted to examining the extent to which the so-called Verdins principles are applicable.
2. In the case of Verdins,[16] the Court of Appeal identified the six ways in which an offender's impaired mental functioning, whether at the time of the offending or at the time of sentencing, may be relevant to sentencing.
3. The six ways are:

(i) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

(ii) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

(iii) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

(iv) Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

(v) The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

(vi) Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[17]

1. In subsequent decisions, the same Court has held that the onus is on an offender to convince a court to apply these Verdins principles. This will generally require expert evidence which a court should scrutinise with care bearing in mind that the principles are exceptional.[18]
2. Your counsel submitted that all six Verdins limbs are relevant to your case.[19] The prosecution conceded that there is support for the application of limb 5 on the evidence.
3. Under limb 1 of Verdins, a court may reduce the moral culpability of an offender in circumstances where 'an impairment of mental functioning may so distort a person's decision-making, or affect their ability to exercise appropriate self-control, that the resulting criminal conduct is - to that extent - to be regarded as involuntary'.[20] In such a case, the need for specific and general deterrence will be reduced. There is an inter-relationship between limbs 1, 3 and 4 of Verdins in many cases.
4. The evidence before the court relevant to limbs 1, 3 and 4 may be summarised thus.
5. According to Dr Evans, Neuropsychologist, 'a combination of acute substance intoxication together with emotional dysfunction' were on balance more likely to have influenced your offending behaviour than any 'inefficiencies to aspects of cognition'.[21] Dr Evans considers that 'psychological factors, further exacerbated by acute substance intoxication were likely to have contributed to poor judgment and decision making at the time the offences were committed'.
6. Ms Cidoni, psychologist, opined that 'multiple interacting factors contributed significantly to Mr Ivanac's offending behaviour'. Those factors included your diagnosed Complex PTSD, your trauma-driven perception of threat and substance use which 'exacerbated [your] existing vulnerabilities'.[22]
7. Ms Cidoni considers that 'ultimately, the combination of [your] mental health conditions, substance use, and environmental chaos left [you] in a state of emotional overwhelm, significantly impairing [your] capacity for rational decision-making and leading to the offending behaviour'.[23]
8. In oral evidence, Ms Cidoni informed the court on 25 March 2025 that it is very difficult to separate out the effects of your diagnosed mental health conditions of complex PTSD, Substance Use Disorder and Borderline Personality Traits,[24] from the effect of your self-induced alcohol and drug intoxication. Generally speaking and with very limited exceptions, courts reject the proposition that intoxication can reduce an offender's moral culpability.[25]
9. Given the state of the evidence, I do not consider that limbs 1, 3 and 4 of Verdins are enlivened in your case other than to a small extent. I accept that your mis-reading of the threat posed by the two men on the night was contributed to by your mental impairment, as explained by Ms Cidoni. As a result your moral culpability is reduced somewhat and there is a corresponding lessening of the need to give effect to general deterrence.[26]
10. Turning to limb 2, which is concerned with the 'kind of sentence' that should be imposed, your counsel sensibly conceded that only a term of imprisonment is appropriate. However, it was argued that 'a non-parole period that is lengthier than usual is appropriate in this case' due to your need for treatment in the community.[27]
11. I have set the non-parole period to give full effect to your need for support in the community.
12. I accept that limb 5 of Verdins is applicable and have moderated the sentence accordingly. Ms Cidoni states that the prison environment has been challenging for you 'due to [your] complex mental health conditions'.[28]
13. The support for limb 6 is weak. Dr Evans does not anticipate a decline in cognitive functioning as a consequence of incarceration.[29] Ms Cidoni notes that prison provides you with 'enforced abstinence from substances and a break from the instability of [your] previous lifestyle'.[30] She considers that the prison environment may exacerbate your ADHD-related symptoms.[31] This falls short of what a court will require to apply limb 6 which requires evidence of a 'serious risk of imprisonment having a significant adverse effect on the offender's mental health'.

1. Ms Cidoni assesses your prospects for rehabilitation as 'cautiously optimistic' provided you receive comprehensive support and appropriate interventions.[32] Your counsel submits that your prospects are 'not lost'.[33]
2. Protective factors include your relationship with your eldest daughter and your other children and your work history. I note that you have also completed a number of courses in prison.
3. As against that, you are 37 years of age, have a lengthy and concerning criminal history, have struggled with alcohol and other drugs and suffer from serious mental health conditions.
4. On balance I would rate your prospects as poor. As is often the case, they will be improved considerably if you can turn your life around which is of course easier said than done.

1. The court must have regard to current sentencing practices. The purpose of this is to promote consistency in sentencing.[34]
2. The parties referred the court to a number of cases to inform its consideration of current sentencing practices in relation to the offence of ICSI. The court was also referred to a 'Sentencing Snapshot' prepared by the Sentencing Advisory Council.[35]
3. Mr Lewis referred the court to the cases of Picone v R,[36] Warwick v R,[37] DPP v Joyce[38] and Abdifar v The Queen.[39] A number of these cases are quite dated.
4. Mr Cameron referred to the more recent cases of Dennert v The King ('Dennert'),[40] O'Toole v The Queen,[41] and Webster v The Queen.[42]
5. Mr Lewis, submitted that these three cases are distinguishable, which I accept.
6. I have read each of the cases to which the court was referred and have been assisted in ascertaining the range of sentences imposed by the courts in cases that have some similarities to yours. However, as has been often stated by appellate courts, a sentencing court can only gain limited assistance from considering previous cases. Ultimately, a given case must be sentenced according to the maximum sentence, the facts of the offending and all relevant aggravating and mitigating circumstances.
7. Of the cases to which the court was referred, I have found the most recent Court of Appeal decision in Dennert[43] to be the most helpful. The offender was found guilty at trial of one charge of ICSI. While under the influence of alcohol, he had struck a defenceless man with a metal pole several times causing him serious injuries including fractures to his head and facial bones, multiple rib fractures as well as fractures to his hands. The offender was 56 years of age and suffered from a personality disorder which the sentencing judge accepted reduced his moral culpability somewhat. He had a criminal history which included some violent offending. There was a delay of three years before he was sentenced. The offender had shown an 'utter lack of remorse'.[44]
8. Leave to appeal against the sentence of 10 years' imprisonment with a non-parole period of 6 years and 10 months was refused.
9. Dennert is a worse example of the offence than yours as the attack was more sustained, the injuries were more serious and the victim presented no threat whatsoever. However, in your case there were two ICSI charges and the serious assault of Ms Forrest.

1. This was an appalling instance of mindless violence in a suburban street with children in the vicinity. The community expects the courts to condemn such conduct in strong terms.
2. The relevant sentencing purposes to be achieved are denunciation, just punishment, deterrence - both general and specific - and community protection.
3. Specific deterrence is particularly important in light of your minimal remorse and your history of violent offending. Previous custodial sentences have not deterred you from further offending. As noted this offending was a serious escalation on your previous offending.
4. Taking into account the applicable maximum sentences, the objective gravity of your offending and all other relevant matters including matters of mitigation, you are sentenced as follows:

(a) On charge one, intentionally causing serious injury, you are convicted and sentenced to imprisonment for 8 years;

(b) On charge two, intentionally causing serious injury, you are convicted and sentenced to imprisonment for 8 years; and

(c) On charge 5, common assault, you are convicted and sentenced to 18 months' imprisonment.

1. The sentence imposed on Charge 1 is the base sentence.
2. Two years of the sentence imposed on charge 2 and 6 months of the sentence imposed on charge 5 are to be served cumulatively on the base sentence and on each other.
3. The total effective sentence is 10 years' and 6 months'.
4. You will be eligible for parole after you have served 7 years' in custody.
5. Pursuant to s 18 of the Sentencing Act 1991 (Vic), I state that the Pre-Sentence Detention attributable to this offending is 716 days not including today.

[1] Contrary to section 16 of the Crimes Act 1958 (Vic).

[3] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 19 [38].

[4] Transcript of Proceedings, DPP v Ivanac (County Court of Victoria, CR-23-00788, Judge Rozen, 14 May 2024) 170.10-11 ('Transcript').

[5] Psychological Assessment Report written by Gina Cidoni dated 25 February 2024, 2 [20] ('Exhibit D1').

[8] Victim Impact Statement of Aiden Fischer dated 3 September 2024 ('Exhibit P1').

[9] Victim Impact Statement of Brendan Barnard dated 18 September 2024 ('Exhibit P3').

[10] Victim Impact Statement of Hayley Forrest dated 18 September 2024 ('Exhibit P2').

[12] Bundle of Certificates ('Exhibit D3') .

[13] Bugmy v The Queen [2013] HCA 37.

[14] Character Reference written by Mr Jamie Caves dated 11 February 2025 ('Exhibit D7').

[15] Harry Lewis, 'Further Outline of Submissions on Plea', Submissions in DPP V Ivanac, CR-23-00788, 6 March 2025, 5 [24]-[28] ('Further Defence Submissions').

[16] R v Verdins [2007] VSCA 102 ('Verdins').

[18] DPP v O'Neill [ 2015] VSCA 325 at 27 [81] ('O'Neill').

[19] Further Defence Submissions (n 15) 2 [7].

[20] Byast v The Queen [2021] VSCA 344, 2 [5].

[21] Neuropsychological Report written by Dr Loretta Evans dated 22 November 2024, 16 [42][i] ('Exhibit D2').

[22] Exhibit D1 (n 5) 12 [116]-[118].

[25] Hasan v The Queen [2010] VSCA 352, 6-7 [21].

[27] Further Defence Submissions (n 15) 2 [10]

[29] Exhibit D2 (n 21) 17 [42][ii].

[33] Harry Lewis, 'Defence Outline of Submissions on Plea', Submissions in DPP V Ivanac, CR-23-00788, 69 December 2024, 5 [38] ('Defence Submissions').

[34] The Queen v Kilic [2016] HCA 48, 8-9 [21].

[35] Sentencing Advisory Council, Sentencing Snapshot No. 288, Intentionally Causing Serios Injury, Sentencing Trends in the Higher Court 2018-19 - 2022-23.

[36] [2015] VSCA 5.

[37] [2014] VSCA 114.

[38] [2007] VSCA 215.

[39] [2012] VSCA 66.

[40] [2024] VSCA 250.

[41] [2019] VSCA 185.

[42] [2016] VSCA 329.

[43] [2024] VSCA 250.