DPP v Madin [2025] VCC 1841

'Taking into account all the available evidence, it is my opinion that the Holden was under heavy acceleration which was excessive enough to cause the rear tyres to slip as the vehicle was driven forward towards the gates. The gates were either wholly or partially closed as the vehicle travelled towards them. If the pedestrian was impacted and then subsequently ran over as claimed, it is likely that the first contact was with the gate as it was pushed forward by the vehicle. As the vehicle travelled along the driveway it at (sic) was steered left, near to where the pedestrian came to rest. I am unable to determine the speed of the impact with the pedestrian'[3]

37. Two days after the incident, you contacted police and identified yourself as the driver of the vehicle.

Offence description - dangerous driving causing serious injury

1. This is the principal charge. By your plea, you admit that the speed or manner of your driving involved such a serious breach of the proper management or control of the vehicle in circumstances in which there was a real danger to members of the public who may have been in the vicinity. You also admit that your driving caused Ms Cuschieri to suffer serious injury.
2. The High Court has said that 'it is the potential of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section'.[4]
3. In R v Towle[5], the Court of Appeal[6] said

'In my view, the judge was right to treat knowledge of the risk as an aggravating circumstance. Other things being equal, a person who drives dangerously with foreknowledge of circumstances giving rise to risk will be more blameworthy than one who drives in the same manner but without that foreknowledge. Thus, a person who drives too fast knowing that ahead lies a blind corner or a stretch of unmade road is more blameworthy than a person who drives at the same speed over the same road but in ignorance of what lies ahead. The present case illustrates this point. A person who (like T) drives in a manner which creates a danger for people who, to his knowledge, are or are likely to be standing in the vicinity of the roadway is more blameworthy than a person who drives in the same manner but ignorant of the presence of those persons. > > The question in each case is: what degree of care, and in particular what degree of alertness to risk, was reasonably to be expected of the driver in the circumstances? In the language of the definition of dangerous driving, the question is: what degree of danger would have been appreciated by a reasonable person in the position of the accused driver, having the knowledge which the accused had of the risks associated with the area in which the driving was to take place? To say that the driver with foreknowledge is expected to take greater care is quite different from imputing to the driver conscious disregard of the known risk. Rather, it is to make the obvious point that the better informed the driver is about what lies ahead, the more care can reasonably be expected of him/her.'[7] > > (footnotes omitted, emphasis added)

4. In this case, you are to be sentenced on the basis that in the circumstances of the case, your driving increased the risk that someone would be injured and that any injuries suffered would be serious.

1. By your plea, you admit intentionally or recklessly using unlawful violence and your conduct would cause a person of reasonable firmness present at the scene to be terrified.
2. The unlawful violence included shouting, struggling, throwing objects and exchanging blows.

1. The Sentencing Act 1991 (Vic) ('the Act') provides that the only purposes for which sentences may be imposed are just punishment, general deterrence and specific deterrence, rehabilitation, denunciation by the court of the offending conduct, and protection of the community.
2. In passing sentence, the court must have regard to a range of matters including current sentencing practice, the nature and gravity of the offence, the offender's culpability and degree of responsibility for the offence, the impact of the offence on any victim, the personal circumstances of any victim, the loss resulting directly from the offence, whether the offender pleaded guilty and the stage at which that occurred, the offender's previous character, and the presence of any aggravating or mitigating factors. I will now address each of these matters.

1. Ms Cuschieri suffered a broken right collarbone, a fractured left shoulder, broken ribs on both sides of her body, and a shattered pelvis. Bone fragments from her pelvis caused tears in her bladder. She underwent surgery to repair the pelvic fractures and plates have been used for that purpose. Further surgeries are envisaged to repair her bladder. She has severe scarring all over her body, is in constant pain and struggles to walk.
2. Ms Cuschieri's victim impact statement was read aloud by the prosecutor. She spent five weeks in a coma and has had numerous surgeries. She has had to spend time in a wheelchair and wear a urostomy bag. She has scars from the surgeries and from her injuries on her arms, ribs, stomach and throat. Her rehabilitation continues and more surgeries are required. Her self-esteem and confidence have been severely affected from the trauma of the accident and the post-accident disability and restriction that she suffers. She has put on weight due to the pain medications and her medical treatment has been prolonged and has caused numerous setbacks in her recovery. Ms Cuschieri said she relives the trauma of the incident every day and describes herself as being in emotional and physical pain.[8]
3. Ms Cuschieri's sister told the court of her distress on being told that her sister may not survive, or if she survives, may not be able to walk again. She described feeling grief, fear and hope as she watched her sister in the hospital surrounded by machines and tubes.[9]
4. I am satisfied that the injuries inflicted by the offence were very serious and have caused significant long-term physical and psychological trauma to Ms Cuschieri. It is likely that trauma will continue into the future, and possibly for the rest of her life.

1. Your counsel submitted that you drove in the way that you did to escape from the physical violence which was being inflicted on you and your co-offenders. You did not know there was anyone behind the gate when you drove through it. In the circumstances, your legal responsibility should be significantly moderated and your sentence reduced, on account of the following combination of circumstances upon which your counsel relied:

(a) You had been involved in the affray which started at number 43 and ended at number 10 with the other side following you and your co-offenders and assaulting you;

(b) Weapons were brought to number 10 by Tyron and Tashawn Wise-Watts and Toby Watts;

(c) A chair had been thrown at the vehicle;

(d) Your friend had a gash on his head and told you to 'drive' and in that split second you drove;

(e) Ms Cuschieri was more than an active participant in the affray. She had tried to stop you from leaving and physically struggled with you at the driver's side of the vehicle and told you that you were not allowed to leave;

(f) Ms Cuschieri placed herself in a position of obvious risk by remaining in a place where she could be run over;

(g) You were in a very panicked and stressed state when you made the decision to drive through the gates and you were fleeing for your safety and that of your friend;

(h) The prosecution could not exclude the reasonable possibility that you did not know Ms Cuschieri was there and that you thought you were driving over a gate.

1. Your counsel described the situation in which you drove over Ms Cuschieri as one of excessive self-defence,[10] not far from duress. He placed emphasis on your admissions to police made two days after the incident as evidence of your acceptance of responsibility for the offences and remorse.
2. The prosecutor submitted no mitigation ought to be afforded to you on account of the circumstances surrounding the driving. In particular the prosecutor submitted that this was a case of the type envisaged by Croucher AJA[11] in Pan v The Queen when His Honour said:

'None of that is to say that a judge would not be entitled, on a given set of facts, to conclude that, even where such a contribution had been established, there should be little or no reduction in moral culpability. Such a situation might arise where, for example, an offender's 'serious breach of the proper conduct of a vehicle on the roadway' was so flagrant that his moral culpability was unaffected by an external contributing cause - or, perhaps in truth, the external contribution was rendered meaningless in the face of the offender's behaviour. But, for the reasons I have given, that is not this case.'[12]

1. In the alternative, the prosecutor submitted that any mitigation of your penalty ought to be minor or modest. The prosecutor relied on the following matters:

(a) Ms Cuschieri was not involved in the affray, she was an innocent party who had been minding her own business when your friend came to assault her partner;

(b) Ms Cuschieri was trying to restrain you from leaving but when she was unsuccessful, she moved away from the vehicle;

(c) There was an inherent danger in the circumstances of your driving, any one of the multitude of people who had been fighting around the vehicle could have been in the way of the gates or the fast moving car;

(d) The closed gates created a circumstance of obscured vision - you should receive no discount for choosing to drive through them.

(e) There was no legal duty on Ms Cuschieri not to stand behind the gates, but there was a duty on you to ensure that your driving did not pose a danger to the multitude of people in that backyard.

Principles relevant to sentence for Dangerous Driving causing serious injury

1. In DPP v Neethling,[13] the Court of Appeal[14] referred to the following relevant principles distilled from a number of authorities:

'1. General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury. > > 2. A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment. > > 3. The sentence which is imposed must take account of variations in the moral culpability of the person responsible. > > 4. A custodial sentence will usually be appropriate for this offence, except in cases where the offender's level of moral culpability is low.'[15] > > (footnotes omitted.)

2. The court in that case referred to the following factors which may aggravate the seriousness of the offence:

'i Extent and nature of the injuries inflicted. > > ii Number of people put at risk. > > iii Degree of speed. > > iv Degree of intoxication or of substance abuse. > > v Erratic [or aggressive] driving. > > vi Competitive driving or showing off. > > vii Length of the journey during which others were exposed to risk. > > viii Ignoring of warnings. > > ix Escaping police pursuit. > > x Degree of sleep deprivation. > > xi Failing to stop.'[16] > > (footnotes omitted.)

1. The objective gravity of the driving offence is to be assessed by reference to the degree of risk of danger arising from the driving[17] and the seriousness of the injury caused.[18]
2. Assessing the gravity of your offending has been a complex task which required weighing up and balancing a range of considerations, some aggravating, some mitigating.
3. The prosecutor submitted, and your counsel accepted, that having regard to the nature of the events which led to the driving including the affray, the throwing of the chair onto the windscreen, the fighting around the vehicle, it was clear there were a large number of people milling and congregating around the vehicle.
4. Your counsel submitted that one of the reasons you drove 'at speed'[19] was to escape from what you perceived was a continued attack on you and your friend. Implicit in that submission is an acceptance that you were aware there were people around or in the vicinity of the vehicle at the time you drove it into the closed gates. Your counsel appropriately accepted that the presence of people in the vicinity of the vehicle and inability to see beyond the gates are relevant to the element of driving dangerously.
5. There is no dispute that the period of dangerous driving was, by reference to both time and distance, brief. Aggravating features commonly found in offending of this type such as presence of alcohol, long period of driving, failure to heed warnings or attempts to evade police were also absent in this case.
6. However, in my view, the significant aspect is the risk to persons including Ms Cuschieri who had been and were in the vicinity of the vehicle and on the other side of the Colourbond gates, moments before you drove at them.
7. The prosecutor also submitted that even if you genuinely feared for your life and wanted to escape danger, that did not necessitate driving at high speed into the closed gates. You could have nudged the gate slowly or driven slowly out of the driveway with the car doors locked, tooting the horn to warn people in the vicinity.
8. In Towle, the Court of Appeal provided guidance on assessment of the dangerousness of the driving:

'The degree of risk or danger arising from the driving informs the characterisation of the driving. That is to say, the degree of turpitude of the driving will vary according to the degree of risk created by the driving. Thus Wells J in Pope v Hall considered that the combination of the following two factors determined how dangerous the driving was: > > the degree of risk that something untoward will happen, and the degree of risk that if something untoward does happen, the damage caused will be more, rather than less serious. > > In short, 'dangerousness of driving is informed by the degree of risk of harm being caused and the extent of potential harm.'[20] > > (emphasis added, footnotes omitted)

9. Your windscreen had been damaged as a result of the chair being thrown on to it. Your visibility was therefore already significantly reduced when you deliberately drove into the gates. In effect, this left you unable to know what was on the other side, but you were aware of the existence of people in the vicinity of the path of the vehicle.
10. Given your knowledge and awareness of people in the backyard and around the car,[21] it was reasonably foreseeable that if you did not exercise care in how you departed from the area, some of those people might be seriously injured or even killed by your vehicle. In this sense, you abandoned your responsibility for the safety of those likely to be affected by your driving, to them. So much is clear from the submissions made on your behalf that Ms Cuschieri had been told to move away from the gates but did not do so.
11. The Crown opening refers to the vehicle being under 'heavy acceleration.[22] I consider this created a high degree of risk of harm to people in the vicinity and that includes not only the people on the side of the fight from number 43, but also the people from number 10. The degree of risk was heightened by the presence of the closed gates. People on the other side of the gates did not know if the car would be moving towards them and you, the driver, did not know if there were any people in the path of the moving vehicle.
12. The injuries suffered by Ms Cuschieri were life threatening. She had numerous fractures and surgeries to repair those. More surgeries are anticipated. She has scarring on her throat, arms, ribs and stomach.
13. For all these reasons, I find this offence of dangerous driving was objectively serious, though not a 'very serious' example of offending of this type.
14. I now turn to the question of your moral culpability.

1. Your counsel submitted your moral culpability was substantially reduced on account of the circumstance of danger from which you were fleeing when you drove into the gates. He described you as stressed and panicked and having had the chair thrown at the car and seeing your friend injured. He said you thought this was the only way out, and that all the circumstances were bordering on duress or excessive self-defence.
2. There are three relevant legal principles upon which your counsel relied:

i) The court is to regard as its starting point the position that the offender was solely responsible for the manner of his driving and that the manner of driving was the sole cause of the serious injury. However the evidence may support a qualification of this starting point in one of two ways:

First, the offender may be able to establish that some other person (whether or not the victim) and or some external circumstance was partly responsible for the manner of the driving and that is referred to as 'reduced responsibility'; or

Second, the offender may be able to establish that there was an additional factor, outside the offender's control, which was also a material cause of the serious injury and that is referred to as 'other contributing causes';[23]

Was there a person or circumstance partly responsible for the manner of driving?

1. Unlike civil law, the criminal law does not recognise contributory negligence on the part of the victim.[24] Ms Cuschieri's conduct in standing behind the Colourbond gates made no contribution to the manner of your driving.
2. I accept that you were attempting to flee from a situation of danger.
3. I accept also that you may have been panicked, stressed or in fear and these emotions might have had a role to play in your decision making.
4. However, the manner of driving was solely your decision.
5. I accept the prosecutor's submission that even in the situation of trying to flee from danger, once you were in the car, you were no longer under direct threat, and you could have slowly nudged the gates and slowly driven out without causing any injury.
6. I therefore find you did not have reduced responsibility under this category.

Was Ms Cuschieri's presence behind the Colourbond gates a material cause of her serious injury?

1. In one sense, it is correct to say that had Ms Cuschieri not been standing behind the Colourbond gates, she would not have been injured,[25] Your counsel relies also on the evidence that Ms Cuschieri was told to step away from the area but refused.
2. I accept that if Ms Cuschieri had moved away from the Colourbond gates, she would not have been injured. However, her presence behind the gates had no role to play in your decision to drive at the gates under heavy acceleration.
3. The decision appears to have been made after your involvement in the affray and after, in effect, the people who were being attacked by your group, fought back. You were fleeing from that retaliation. This is the explanation for your conduct.
4. I do not accept that this ameliorates your moral culpability to any significant degree. The reason is your awareness of people in the vicinity when you heavily accelerated the vehicle into the closed gates. You could have caused injury not only to Ms Cuschieri or her friends, you could potentially have caused injury to your friends from number 10 or to a neighbour coming to see what the commotion was about.
5. I do not accept your counsel's submission that Ms Cuschieri was a trespasser and involved in the assault on you or responsible for the situation of danger. This is contrary to the submission that you were not aware Ms Cuschieri was behind the gates.
6. I accept you were acting in extremis, but this reduces your moral culpability by a modest degree only.

Is there any other basis on which moral responsibility can be moderated or reduced?

1. Your counsel argued that you were in fear and panicked and trying to escape a difficult situation in which your friend had been assaulted and a chair had been thrown at the windscreen of the vehicle. Reliance was placed on R v Shumski[26] in which Croucher J said:

'Nevertheless, I accept that, in the heat of the moment, Mr Shumski was acting impulsively and out of fear, and that he believed his actions towards Mr Callow were necessary, rash and/or unreasonable though those thoughts and actions were. To that extent, these subjective considerations offset his moral culpability or responsibility to some extent...
> >
> > ...
> >
> > Next, I am satisfied that, in the agony of the moment, Mr Shumski believed that he needed to lash out as he did towards Mr Allen in self-defence.[27]

2. Your case is very different from the circumstances in Shumski. While I accept as a general proposition that people who are in fear might act impulsively or in the heat of the moment, I do not accept that you were acting in excessive self-defence when you drove the car into the gates. The reason is that once inside the car, the threat had ceased. You were in a position to drive away from the threat, and you did that.

1. Your preparedness to admit involvement in the driving within days shows remorse as does your plea of guilty. The timing and value of the guilty plea is also relevant to sentencing. You were initially charged with more serious offending[28] and a contested committal was held in April 2024.
2. The matter resolved between the committal hearing and the trial listed for March 2025 when the prosecution accepted your offer to plead to the current charges.
3. There is significant utilitarian value in your plea which has saved the community the cost of a trial and the victim the trauma of giving evidence. You have received a significant discount in your penalty on account of the plea.
4. Where present, remorse is a mitigating factor. I accept that your admission to police, your plea of guilty and your expressions of remorse to your parents and to Bailey's parents, are evidence of remorse.

1. I have had regard to a variety of cases dealing with sentencing for dangerous driving causing serious injury.[29] I take into account that the High Court has said that sentences imposed in other cases are not precedents to be applied or distinguished.[30] I also take into account and accept the submission on your behalf that the circumstances of this offending are unusual and there are not enough, if any, similar cases to enable a sentencing pattern to be observed.[31]

1. You were 34 years old at the time of these offences. You are now 37 years old.
2. Forensic psychologist Laura Fleming reports you were born in Box Hill and grew up in a stable family environment. You enjoyed positive relationships with your parents and brothers. It appears that your drug abuse has caused a rift in your relationship with your brothers.
3. You had behavioural problems at school which Ms Fleming attributes to undiagnosed and untreated ADHD.
4. Your work history is patchy. You have worked with your brother as a bricklayer. You have also worked as a labourer and in demolition as a scaffolder. You have a work related back injury.
5. You are currently unemployed and receiving government benefits.
6. Both Ms Fleming and your mother attest to the positive impact your partner Ms Bailey has had on your life. You are now stepfather to her children and father to two children of your own. Ms Bailey is supportive of you and speaks highly of your contribution as a partner to her and father to her children.
7. Although you have had problematic drug and alcohol use in your past, it seems that you have self-referred to help and are now drug-free and using alcohol infrequently. This is to your credit.
8. Your counsel did not submit that drugs or alcohol were involved in the offending for which you are being sentenced today. You were sober[32] and unable to explain your behaviour by reference to impaired thinking or reduced inhibitions.
9. Ms Fleming diagnosed PTSD arising from your childhood when you had some involvement with a homeless person who encouraged you to sit and talk and provided cigarettes. On these occasions, the homeless person would try to touch you under your clothes. You did not report it to your parents for fear he might harm them.
10. The report does not make it clear whether you were in fact touched inappropriately. I accept however that you had a negative experience as a child which had sexual connotations and that you have been re-experiencing those matters recently. Ms Fleming undertook various tests and opined that you currently meet the requisite number of endorsed symptoms for PTSD with the more difficult of these being related to re-experiencing past traumatic events.
11. Ms Fleming also diagnosed stimulant use disorder in sustained remission. The two drug screens provided to me this morning support that diagnosis.
12. The history you provided of ADHD diagnosis and treatment, together with her own assessment, led Ms Fleming to conclude that you have multiple mental health difficulties which contribute to impulsive behaviour. Your participation in these offences, according to Ms Fleming, was in part due to these difficulties.
13. I accept that prison will be more burdensome on you because you will be anxious about how your partner will cope with four children at home. I accept also that you may experience difficulty if you are not permitted in a custodial setting to continue your ADHD medication regimen[33] and that this may also make prison a more difficult experience for you. I have moderated your sentence somewhat on account of these matters.

1. Your counsel submitted that your prospects of rehabilitation were reasonable because you have now decided you want to stop committing offences and your children have played a significant role in that realisation.
2. The prosecutor submitted that your prospects of rehabilitation are 'guarded'. He relied on the two subsequent and separate sets of offending for which you were imprisoned.
3. You have a lamentable driving history with numerous priors for drive whilst disqualified or suspended, fail to stop on police direction, exceeding the speed limit, entering an intersection against a red light, failing to give way, and refusing to provide a sample of oral fluid.
4. In New South Wales, you have two convictions for drive recklessly/furiously or speed/manner dangerous, one on 28 July 2017 for which you received six months' imprisonment and two years' licence disqualification, and on 11 January 2017 for which you received a $500 fine.
5. Of particular concern, are your relevant prior convictions for drive manner dangerous, one on 28 August 2018, one on 6 June 2018 in Victoria, and dangerous or negligent driving while pursued by police on 12 April 2017 and 28 August 2018.
6. On 28 June 2022, while you were on bail awaiting trial for these offences, you were dealt with for driving whilst disqualified and various dishonesty offences and received, on appeal at the County Court, an aggregate of 247 days' imprisonment.
7. On 9 February 2024, also on bail for these offences, were dealt with at Shepparton Magistrates' Court for exceeding a 100 kilometre speed limit by 35 kilometres and failing oral fluid test within three hours of driving, burglary, perjury and make false report to police and various other dishonesty offences. The summaries tendered by the prosecution show that these offences were committed on 29 December 2022, while you were on bail for this matter. A vehicle you were driving collided with a light pole. You ran away from the collision and reported the vehicle stolen. Police noted you had forcibly removed the interlock camera from the vehicle after the collision.
8. Your counsel described you as being at a crossroads in your life and relied on the last 17 months during which you have not been charged with further offending. You have abstained from drug use which was said to be evidence of the progress you have made towards rehabilitation.[34] Since you became a father, he said you have turned over a new leaf.
9. Ms Fleming assessed your risk of further offending as high. Your current sobriety, your treatment for ADHD and PTSD were all said to be protective factors, as was your relationship with Ms Bailey.
10. I accept the prosecutor's submission that the combination of these matters, while they might offer hope for your rehabilitation, do not make your prospects more than 'guarded'. The reason for this is Ms Fleming's opinion, to which I give significant weight, together with the subsequent offending, which also lends support for her opinion.
11. Despite this finding, I consider that if you were provided an opportunity for lengthy supervision on parole, any current gains you have made in terms of your abstinence from drugs and in terms of your role as a father, would be promoted and encouraged.

1. Sentencing you for the offence of dangerous driving causing serious injury must contain a component aimed at deterring others.
2. Given your relevant criminal history, it must also contain a component of aiming to deter you in future from committing similar offences.

1. You have had this matter hanging over your head for almost four years.
2. In that time, you have undertaken pre-sentence detention on this matter, undergone two separate sentences of imprisonment for subsequent offending, and have had two children born into your new family with Ms Bailey.[35]
3. A committal was held, and the more serious charges withdrawn by the prosecution. Significant delay was occasioned on account of that process.
4. I take the delay into account as this matter has been hanging over your head for a significant period of time. You have had the uncertainty of not knowing what will happen to you and what sentence the court might impose.
5. I accept that during the period the delay, you have made self-guided attempts to rehabilitate yourself from drug and alcohol abuse. In May 2024, you began an opiate replacement therapy program[36] which your counsel indicated you have now successfully completed.
6. Between October 2024 and February 2025, you attended fortnightly sessions with an addiction counsellor and various workshops run by her at a residential rehabilitation facility.[37] You have also attended for treatment for ADHD with Professor Ogden.
7. Although it is not suggested that drugs and alcohol were a feature of this offending, they appear to have been a feature of other offending by you. I accept that addressing your addictions will assist your rehabilitation generally.
8. The subsequent offending shows you were undeterred by the extent of harm you had caused to Ms Cuschieri and have continued to commit driving offences.

1. Your counsel relied on the principle of totality and made reference to the two prison terms you served since this incident. Your counsel submitted, and I accept, that had you been dealt with earlier for this offending, you might have received some concurrency in respect to the combined offences for which you have undergone sentence.
2. I have a duty to ensure that the overall criminality for which you are being sentenced today and the criminality for which you have already served two terms of imprisonment is not excessive.
3. In formulating sentence, I have taken into account the subsequent offending and the police summaries relevant to it and borne in mind that the sentence I impose must be a just and appropriate measure of the total criminality involved.

1. This consideration is relevant only to affray as your co-offenders were not charged with matters relating to the driving.
2. Mr Mulcahy was dealt with in the Magistrates' Court. He received a sentence of three months' imprisonment for affray and unlawful assault. He had prior convictions for violence and affray, but the court was not informed of matters which might have been put on his behalf in mitigation.
3. Mr Edwards received an 18-month CCO for affray and a variety of other unrelated offences. As with Mr Mulcahy, I was not informed what matters might have been put on his behalf in mitigation.

1. Would you stand please, Mr Madin. On the charge of affray, you are convicted and sentenced to two months' imprisonment. Had it not been for the lenient sentences accorded to your co-offenders, I would have been minded to sentence you to a longer period of imprisonment for this offending.
2. On the charge of dangerous driving causing serious injury, you are convicted and sentenced to 19 months' imprisonment.
3. I order that one month of the sentence on Charge 1 be served cumulatively on the sentence on Charge 2.
4. That makes a total effective sentence of 20 months' imprisonment.
5. I order that the minimum term which you must serve before being eligible for parole is 12 months.

1. Pursuant to s18(4) of the Sentencing Act 1991, I declare that the period of 164 days, be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court. You may be seated.

1. Dangerous driving causing serious injury is a serious motor vehicle offence.[38] Pursuant to s89 of the Sentencing Act, I must cancel your licence for a period of no less than 18 months.
2. Your counsel submitted that the minimum period should be imposed because you were granted bail on 22 November 2022 with a condition that you not drive a motor vehicle and therefore you have been prohibited from driving since 2022.
3. I do not accept that submission. Despite the bail condition requiring you not to drive, you have clearly driven. You pleaded guilty to driving at a very high speed, under the influence of a drug and to driving matters arising from a collision with a light pole. It appears the prohibition on driving in your bail conditions had no impact on your behaviour.
4. You have two convictions for dangerous driving while pursued by police, two for drive manner dangerous and failure to stop on police request. On each occasion your licence was cancelled, and you were disqualified from obtaining another. Despite this, thereafter, on a number of occasions, you have returned to court charged with driving whilst disqualified. Your prior criminal history shows a determination to do as you will, despite court orders.
5. As of today, your licence will be cancelled, and you will be disqualified from driving for a period of 20 months.

1. But for the plea of guilty, I would have imposed a total effective sentence of 24 months' imprisonment with a non-parole period of 18 months.
2. Any other matters?
3. MR O'DOHERTY: No, Your Honour.
4. MR BARRERA: No, Your Honour. Sorry, I just missed the non-parole period.
5. HER HONOUR: Twelve months.
6. MR BARRERA: Thank you.
7. HER HONOUR: And is the presentence detention agreed, 164 days?
8. COUNSEL: Yes, Your Honour.
9. HER HONOUR: Thank you. You may remove Mr Madin. Adjourn the court please.

[1] A stick with a root at one end, see paragraph [2] of the Prosecution Opening

[4] McBride v The Queen [1966] HCA 22 (Barwick CJ) at paragraph [13]

[5] [2009] VSCA 280 ('Towle')

[6] Maxwell P (with whom Buchanan and Ashely JJA agreed)

[7] [2009] VSCA 280 at paragraphs [50]-[51]

[10] Counsel placed reliance on R v Shumski [2025] VSC 148

[11] Pan v The Queen [2020] VSCA 42 at paragraph [89]

[13] [2009] VSCA 116 ('Neethling')

[14] Maxwell P, Vincent JA and Hargrave JA

[18] Gorlandenchareau v The Queen [2011] VSCA 432 at paragraphs [22] to [25]

[19] Later in submissions, Counsel accepted that the acceleration must have been significant but the speed less so because the vehicle had started from a parked position.

[21] Your counsel conceded that it is possible that more people than just Ms Cuschieri were at risk, at least four people in total were on the other side of the gates, on the side where Ms Cuschieri was hit by the car.

[23] Spanjol v The Queen [2016] VSCA 317 (the offence there under consideration was negligently causing serious injury by driving. In Pan v The Queen [2020] VSCA 42, Croucher AJA (with whom Emerton JA agreed) held that the principles in Spanjol apply equally to dangerous driving causing death or serious injury at paragraph [83]

[24] Guseli v The Queen [2019] VSCA 29 at [62] citing with approval R v Errington [1999] NSWCCA 18; (1999) 29 MVR 344

[25] This was the argument raised in Guseli

[26] [2025] VSC 148

[28] Recklessly causing serious injury and reckless conduct endangering life

[29] DPP v Currie [2021] VSCA 272; DPP v Neethling [2009] VSCA 116; George v The Queen [2017] VSCA 152; Guselli v The Queen [2019] VSCA 29; Pan v The Queen [2020] VSCA 42; Papagelou v The Queen [2022] VSCA 53; R v Errington [1999] NSWCCA 18; (1999) 29 MVR 344; Spanjol v The Queen [2016] VSCA 317

[30] Wong v The Queen [2001] HCA 64 applied in DPP v Ristevski [2019] VSCA 287 at paragraph [2]

[31] Defence submissions dated 16 November 2025 at paragraphs [55]-[58]

[32] Crown Opening refers to an interlock device being fitted to the SS Commodore which Mr Madin was required to use prior to starting the engine.

[33] Supplementary psychological report of Laura Fleming dated 26 June 2025 at page 3

[34] One on one therapy with Ms Hutchinson for a period of seven months of engagement in individual drug and alcohol counselling.

[35] First daughter was born in July 2024 and the second daughter was born in August 2025.

[38] Section 87P(d) of the Sentencing Act 1991