DPP v Tartaglia [2025] VCC 911

1. On 24 December 2022, at 8:08 am you were driving a white Mazda CX5 registration number 1QQ1UC on Upper Heidelberg Road, Ivanhoe. The traffic was light, the weather was fine and the road was dry.
2. Ms Marie Mander, who was a fit, healthy and active 75 year old was leaving her residence at Airlie Ivanhoe Retirement Complex to purchase some Christmas presents.
3. Ms Mander waited on the side of Upper Heidelberg Road for a short time for traffic to clear before walking across the road. You struck Ms Mander, who was thrown 19.9 metres, before coming to rest in the middle of the lane. As a result of the collision, Ms Mander died instantly.
4. You did not sustain any injuries and immediately stopped, pulled over and commenced CPR on Ms Mander.
5. Ambulance Victoria arrived at 8:09 am and attended to Ms Mander, who was then pronounced dead at 8:24am.
6. Victoria Police established a crime scene at 8:12am. You returned a negative result for both alcohol and drugs at the scene. At 8:50 am, you were arrested and transported to the police station.
7. The collision was captured on CCTV footage.

1. Upper Heidelberg Road is a two-way road with a broken white dividing line. It has parking bays on either side and is approximately 13 metres wide. The road was in good condition and the speed limit where the collision occurred was 40 km/h.
2. There are four 40km/h speed signs posted along Upper Heidelberg Road from the intersection of Livingstone Street up to the collision site. The first is posted at 354 metres, and the fourth at 59 metres from the collision site.
3. These signs were clearly visible to vehicles travelling in a southerly direction along Upper Heidlberg Road.
4. It is an agreed fact that you drove through two of these speed signs prior to the collision.

1. The prosecution case is that, at the point at which you commenced braking, your car was travelling at a minimum of 78 to 79 km/h. The speed is based on the evidence of the police accident reconstruction witness, Detective Sergeant Hay.
2. As this evidence is disputed, for the court to sentence you on this basis, the prosecution must prove beyond reasonable doubt that you were travelling at the speed alleged.[2]

1. The Court heard from two expert witnesses on the question of the likely speed at which you were driving.
2. The prosecution called Detective Sergeant Robert William Hay. Three reports prepared by Detective Hay were tendered in evidence.[3] Detective Hay was cross examined by Mr Dann SC, defence counsel.
3. Detective Hay is a civil engineer who has been a police officer since 2002. He has worked in the Police Major Collision Investigation Unit since 2009. He has participated in a large number of training courses in Australia and overseas, about collision reconstruction as both recipient and presenter.
4. Detective Hay regularly attends the scenes of car accidents in his role as an accident investigator.
5. Detective Hay attended the accident scene on the morning of the collision and made detailed observations of the scene and oversaw the taking of photographs.
6. The defence called Mr Grant Johnston and tendered a report he prepared dated 30 January 2024.[4] Mr Grant Johnston was cross examined by Mr Jordan Johnston, counsel for the prosecution.
7. Mr Johnston is a civil engineer. He has worked as a consultant in accident reconstruction in both Australia and overseas since 2002. Like Detective Hay, Mr Johnston is highly qualified and experienced in the field. He has investigated several thousand motor vehicle accidents.
8. Mr Johnston's opinions are based on materials provided to him. These materials were obtained by the police during their investigation. Mr Johnston did not visit the accident scene until 22 November 2023, 11 months after the collision.
9. Both men impressed me as highly qualified and experienced experts in the field of accident reconstruction. Each approached the task of preparing reports and giving oral evidence in a professional manner. In each case their evidence was given as witnesses who were cognizant of their duties to the court. In short, they impressed as true expert witnesses and the court has been greatly assisted by their evidence.
10. While both men are highly experienced, if there is a difference between them, it was that Detective Hay has considerably more experience of attending accident scenes at a time that is contemporaneous to the time of the accident. This is because of the nature of his work as a police officer. Mr Johnston's role as a consultant means that he is far less likely to be at a scene in the immediate aftermath of a collision.

1. Two issues arise for determination on this contested plea. First, there is a factual question about whether the assessment of the speed of travel can be made on the basis of there being a skid-mark caused by the accused's application of the brakes to the Mazda he was driving. Depending on the answer to that question, there is a second question which relates directly to the speed of travel. This latter question concerns matters of opinion.

1. It is therefore necessary to consider the first question about the presence of a skid-mark.
2. According to the Summary of Prosecution Opening, the collision occurred at approximately 8.06 am on 24 December 2022. Detective Hay attended the collision scene at approximately 9.40 am. It was a fine sunny day. The damaged Mazda was in the position in which it had ended up after the collision.
3. When examining the accident scene, Detective Hay saw a white scuff mark and noted that the pedestrian who had been struck by the Mazda was wearing white shoes. He concluded the scuff was left by the pedestrian's shoe as she was struck.
4. Detective Hay also observed an ABS skid mark on the road surface which commenced before the scuff mark and ended at the Mazda. The skid mark was 27.8 metres in length. He formed the opinion that the skid mark 'was left by the front driver side of the Mazda as the driver both engaged in emergency response braking and attempted to steer around the pedestrian'.[5]
5. Before leaving the scene, under Detective Hay's supervision, a series of three skid mark tests were conducted using a 2020 Hyundai Santa Fe with the ABS enabled.
6. It was common ground at the hearing that the skid mark described by Detective Hay is not visible in any of the photographs produced by the prosecution.[6] This causes Mr Johnston to question if the Mazda in fact left a skid mark. Mr Johnston accepts that Detective Hay 'saw what he believed to be an ABS scuff mark'.[7] However, he states that, based on his experience, 'identification of a complete braking mark made by vehicles with ABS are rarely identifiable at collision scenes'.[8]
7. Detective Hay explains that '... as ABS braking has improved, the visibility of ABS tyre marks has declined further...'.[9] In his third report, Detective Hay states:

'It is my practice not to include any evidence I am unsure about. In this collision in line with this practice I included the ABS skid mark because I am certain it was there.'[10]

1. Detective Hay explained that the skid mark was more easily visible when seen through the polarized lenses he was wearing. He accepted that the skid mark could not be seen in any of the photographs.
2. Under cross-examination, Detective Hay stated that the skid mark is central to his calculation of speed in this case. He said that ABS skid marks can be very feint. He could not think of another case he had investigated where there was a skid mark of this length that was not visible on any photograph. Detective Hay maintained however that he saw the skid mark he described.
3. Mr Johnston's opinion about the likely speed of the Mazda as it approached the collision scene depends on whether the skid mark was present. He states that, if the court accepts that the skid mark was present, the likely speed was 73 km/h and perhaps as low as 70 km/h. However, if the court does not accept that the skid mark was present, Mr Johnstone states that the speed was around 55 km/h.[11]
4. In his oral evidence, Mr Johnston reiterated that he does not question Detective Hay's integrity. He accepts that Detective Hay honestly believes that what he saw was a skid mark. In cross examination, Mr Johnston accepted that, by virtue of examining the scene when he did, Detective Hay was better placed than he was to make relevant observations. He accepted that ABS skid marks are not always visible in photographs, are always faint and disappear quickly. Importantly he accepted that such skid marks can be more easily seen on a sunny day through polarized glasses.

1. I accept the evidence of Detective Hay. He impressed me as a cautious police officer who was giving evidence on oath. I accept that he would not have made up the evidence about the skid mark. There is also no suggestion that he mistook something else on the road for a skid mark.
2. It is therefore necessary to make an assessment of the speed at which the car was travelling on the basis that it left the skid mark described by Detective Hay.

1. Both Detective Hay and Mr Johnston estimated the speed at which the accused was driving before he applied the brakes based on the presence of the skid mark as seen by Detective Hay. Mr Johnston also estimated the speed on the assumption that the court would reject Detective Hay's evidence about the skid mark.[12] That estimate can now be put to one side.
2. Neither man took issue with the methodology used by the other. I am satisfied that each expert used a method to estimate the speed that was based on their specialised knowledge.[13]
3. Detective Hay explained that there are three potential ways to determine the actual speed of a vehicle at impact in a case such as this. Tyre marks left by the vehicle 'are considered the best method for determining a vehicle's speed when the vehicle has braked to a stop under emergency braking'. The second method involves considering the distance travelled by the pedestrian post impact. The third method uses the vehicle's on-board electronics. However in this case no data were available.[14]
4. Detective Hay measured the distance that the pedestrian was thrown as 19.9 m. He then applied the 'Searle Probable speed formula' to calculate that the speed at the time of impact was between 50 km/h and 61 km/h with a probable speed of 55.5 km/h.[15]
5. Detective Hay then used the length of the observed skid mark and the 'drag factor' based on the experiments conducted under his supervision (see para [21] above) to calculate the likely minimum pre-braking speed of 79 km/h.[16]
6. Mr Johnston agreed with the three speed calculation methods described by Detective Hay[17] and added a fourth. He explained that speed could be calculated by the use of CCTV footage 'whereby time for the vehicle to pass between two fixed points is divided by the distance between those points which gives the average speed of the vehicle between these points'.[18]
7. Detective Hay was asked about this method and explained that Victoria Police is exploring its use in the future. He made no criticism of it as a method to calculate speed.
8. Using this method, Mr Johnston calculated the pre-braking speed of the Mazda as 73 km/h and added that 'the maximum likely speed would be slightly less than this value'. Ultimately, he considered that, based on the proven physical evidence, the maximum likely speed 'would be around 70 km/h'.[19]

1. In light of the above, I cannot be satisfied beyond reasonable doubt that the car was travelling at 79 km/h as concluded by Detective Hay. To put this another way, I cannot exclude the reasonable hypothesis that the car was travelling at 70 km/h as concluded by Mr Johnston.
2. I have therefore determined the sentence in this case on the factual basis that the car was travelling at approximately 70 km/h prior to the brakes being applied and at approximately 55 km/h at the time of impact.

1. The objective gravity of offending such as yours is assessed having regard to the degree of dangerousness of the driving in light of all of the circumstances.
2. The unchallenged evidence before the court is that if your Mazda was travelling at 40 km/h, being the applicable speed limit, and had you commenced braking at the same location that you did, you would have stopped your car within 7 metres, and the collision with Mrs Mander would not have occurred.
3. The prosecution case is that the dangerousness of the driving is constituted by you driving in excess of the speed limit, in fact well in excess of the speed limit. This occurred in circumstances where there was clear signage about the applicable limit.
4. In the case of Lee v The Queen, the Court of Appeal explained that:

'The first obligation of a driver is to pay attention to the road ahead, and to be aware of the movements of others who are on or near the road. The inherent dangerousness of a motor vehicle travelling at speed makes it imperative that the driver remain in control of the vehicle at all times. The obligation to maintain control is an obligation which each driver owes to each other road user and to those in the vicinity of the road. Compliance with that obligation is essential to community safety.' [20]

1. By driving 30 km/h over the applicable speed limit, you significantly reduced your ability to control your vehicle and react to an event such as a pedestrian crossing the road in front of you.
2. Features which the court often sees such as the driver having consumed alcohol, or being distracted from looking at the road, are not present in this case. However, the single most important feature is clearly the speed which, as noted, was well in excess of the speed limit. I therefore consider it to be a medium level breach of what is obviously a serious offence.
3. There is not much evidence before the court by way of explanation for your speeding. You do not appear to have been in any particular hurry. I note that in a psychological report prepared by Mr Newton dated 19 August 2024 and provided to the court by your lawyers, the following appears:

'By way of background, Mr Tartaglia told me that the collision had occurred while he was doing last minute Christmas shopping. He said that while he had been under some time pressure he was not rushing, stressed or fatigued. Mr Tartaglia added that from his perspective the collision with the pedestrian had occurred without warning and had come as a complete shock.'[21]

1. In these circumstances, I consider that your moral culpability for the offending is significant.

1. Members of Mrs Mander's family were present in court for the various hearings. It is apparent to the court that Mrs Mander was a much loved family member and her death has profoundly affected her family members.
2. Mrs Mander's daughter Joanna Jackson read a victim impact statement to the court. In her statement, Ms Jackson powerfully described the ongoing impact of her mother's death. She stated that navigating life without her mum has been incredibly hard. Ms Jackson describes her mother as spirited, young at heart, funny, sensitive, creative, fussy, caring, stylish, determined, complex, kind and the heart and soul of the family.
3. The court expresses its gratitude to Ms Jackson for taking the time to inform it about the impact of her mother's death. That impact has been taken into account in the sentencing process as required by law.[22]

1. At the time of the offending, you were 36 years of age and are now 38.
2. You are the youngest of four children. Your parents separated when you were three years old, after which you were raised in Pascoe Vale by your mother. Your father was often absent, only maintaining intermittent and unreliable contact with you and your siblings after the separation.
3. You were born with Spina Bifida and underwent surgery at St Vincent's hospital when you were 18 months old.
4. You finished high school in year 10 and you then worked in signwriting for 11 years, then completed an electrical internship. You have been working as an electrician ever since.
5. At the time of the collision, you were running your own electrical business. Following the collision, you closed your business as you could no longer work due to your ongoing mental health issues caused by the collision.
6. You then began installing solar panels for a company whilst managing 16 employees. You ceased working for this company on 28 February 2025, due to the toll the impending sentence for this matter was taking on your mental health.
7. You have been in a relationship with Lizle, your current partner since 2012 and were married in 2014. You have two children with your wife, your son is four years old and you daughter will be one in August.
8. Your family has been under significant financial stress as result of the collision and the outstanding legal case.
9. Your criminal history is limited to two traffic offences - one in 2004 and one in 2009.

1. In comprehensive submissions, your counsel Mr Dann SC pointed to a number of matters that he contended should operate in mitigation of sentence.
2. The most important mitigatory consideration is your plea of guilty. You pleaded guilty after a contested committal, a sentence indication and a contested plea hearing. However, you originally faced a charge of culpable driving causing death which was not pursued in this court and you had some success in relation to the contested plea.
3. Although your guilty plea was not an early one, it does have considerable utilitarian benefit. It saves court and prosecution time and resources and, most importantly, spares witnesses the ordeal of re-living the events of the day at your trial.
4. Your guilty plea is clear evidence of your acceptance of responsibility for your offending and of your remorse.
5. There is other evidence of your remorse. The twenty-seven detailed character letters tendered on your behalf, all of which I have read, are replete with references to your demonstrations of remorse to your friends, family and colleagues. For example, Helen Isaacs, your wife's godmother, refers to the 'enormous remorse' you feel for your actions and their consequences. Similarly, Yvonne Kyriazis speaks of the 'genuine remorse' you have expressed.
6. You are a man of impeccable character with no prior involvement with the criminal justice system. You get full credit for this.
7. As noted earlier, you are married and have two children including a new born.
8. Your wife Lizle has been treated by Diana Cornish at the Psychologist Centre for Perinatal Psychology since May 2023. In a report dated 28 May 2025, Ms Cornish informs the court that this treatment has focused on management of the 'significant and ongoing stress related to the court case of her husband'. The case has had a detrimental effect on Lizle's mental health. Ms Cornish opines that, if you are incarcerated, this would undoubtedly impact on your wife's mental health and her ability to raise the children.
9. Your counsel submitted that the hardship that will be caused to your family reaches the level of 'exceptional' so as to enliven the sentencing principle in the case of Markovic v The Queen.[23] The authorities make clear that distress, reduced financial circumstances and deprivation of emotional support and comfort 'are the usual consequences of the imprisonment of a spouse'.[24] Unless such consequences are 'truly exceptional' they will not be given any significant weight by a sentencing court. The evidence of hardship must by so compelling that it would be 'inhuman' to refuse to take it into account.[25]
10. Without wishing to appear harsh, I consider that your circumstances are not 'exceptional'. Sadly, they are the circumstances that often arise in such cases.
11. The impact on you is another matter. I accept that your time in custody will be made more onerous by virtue of the anxiety you will no doubt experience worrying about how Lizle and your children are coping in your absence. I have taken this into account in moderating your sentence.
12. There has been a considerable delay in the finalisation of your case. The collision occurred on 24 December 2022 and you are being sentenced more than two and a half years later. Such a delay is relevant to the sentencing process in two ways.[26] First, it is relevant because the matter has been hanging over your head for that lengthy period and that is itself a form of punishment.
13. Secondly, a court will look at your conduct in the intervening period as part of its assessment of your prospects of rehabilitation. You have committed no further offences during this period and this is to your credit. When taken together with your lack of prior convictions, your stable family life and your remorse, I can comfortably assess your prospects of rehabilitation as excellent.
14. Finally, the principles in the case of Verdins[27] are applicable to your case. I accept that your mental health condition will make your time in custody more onerous than would be the case for a person in good mental health. I also accept that 'there is a significant risk that [your] mental state could deteriorate in the period immediately after sentencing'.[28] I have moderated the sentence I impose accordingly.
15. I turn now to my consideration of the appropriate sentence in your case.

1. Dangerous driving causing death is a 'category 2' offence.
2. The Court of Appeal has recently described the effect of the statutory scheme for category 2 offences:

In considering whether the statutory threshold has been met so as to justify but not require a non-custodial sentence, the Sentencing Act alters the ability to prioritise various aspects of the sentencing process. A sentencing judge must regard general deterrence and denunciation of the offender's conduct as more important than other sentencing purposes in s 5(1) of the Act (which include just punishment, specific deterrence, rehabilitation and the protection of the community from the offender), and less weight must be given to the offender's personal circumstances than to the nature and gravity of the offence. A person's previous good character (other than an absence of convictions) and prospects of rehabilitation must be put aside.[29]

1. Parliament, as the ultimate voice of the broader community, has decreed that a person who causes the death of another road user by driving dangerously will nearly always go to jail. This is a reflection of the community's view about such offending and the value placed upon human life in our society.
2. This court is required to sentence an individual case such as yours in a manner that is faithful to this clear legislative policy.
3. Under s5(2H) of the Sentencing Act 1991, a court sentencing an offender for such an offence must make an order sentencing the offender to imprisonment, other than a sentence of imprisonment in combination with a community correction order, unless one of the exceptions in s 5(2H) is satisfied.
4. Two exceptions were relied upon by your counsel.
5. First, under s5(2H)(c)(ii), it was argued on your behalf that you have 'impaired mental functioning' that would result in you being subject to 'substantially and materially greater than the ordinary burden or risks of imprisonment'.
6. Secondly, under s 5(2H)(e), it was argued on your behalf that there are 'substantial and compelling circumstances that are exceptional and rare' and that justify not making a custodial order.
7. I will address each in turn.

1. I am satisfied on the evidence before me that you presently suffer from a mental illness within the meaning of the Mental Health Act 2014. You therefore have 'impaired mental functioning'.
2. Turning to the evidence before the court concerning the likely impact on you of a custodial sentence, there are two reports that are relevant. The first is a report from Christopher Drake.[30] Mr Drake informs the court that he is a clinical psychologist who has assessed and treated you for depression and post-traumatic stress disorder as a result of this incident. The report states that you attended 12 sessions with Mr Drake between 21 June 2023 and 11 March 2024. Mr Drake reports that your symptoms have remained consistent throughout the treatment.
3. Mr Drake considers that you are able to carry on your work to a high standard. Mr Drake states that he cannot comment on the impact of imprisonment as this was not part of his treatment role.
4. More reliance is placed by your lawyers on a report prepared by Mr Patrick Newton.[31] Mr Newton is a highly experienced clinical and forensic psychologist whose reports are often seen by this court. Mr Newton has seen you on three occasions for the purposes of providing his opinion. The first consultation was

18 July 2023, and more recently he has seen you on 4 June 2024 and 24 July 2024. 5. I note from paragraph 2 of the report that Mr Newton was asked to assess your mental state and consider any psychological issues pertinent to your case. Specifically, Mr Newton was asked whether you suffer from any mental disorder or other impairment of your mental functioning, either now or at the time of the offending, and to comment on the likely impact of a term of imprisonment upon your mental state. 6. At paragraph 13 of his report, Mr Newton compares your presentation in 2023 with your presentation in 2024. Having originally diagnosed you with post-traumatic stress disorder, Mr Newton states that, based on testing and observations in his 2024 consultations, your symptoms had resolved to some extent and were no longer above the diagnostic threshold that they had been in 2023. Further, the suicidal ideation that was evident in 2023 had resolved by the time he saw you in 2024. 7. Mr Newton detected general symptoms of anxiety and depression, and his ultimate diagnoses were post-traumatic stress disorder in partial remission, and an adjustment disorder with depressed mood. As I noted earlier, I accept that both of those are 'mental illnesses' as defined. 8. In relation to the first condition Mr Newton considers that you are a genuine risk of relapsing and that risk would be highest if your supports were to be disrupted which I infer is a reference to the impact of incarceration. 9. The key paragraph in the report provides:

As noted above Mr Tartaglia's emotional response has been deeply felt. Consequently he's likely to internalise the punitive aspects of sentencing as an exacerbation of his already harshly punitive inner dialogue. Thus there is a significant risk that Mr Tartaglia's mental state could deteriorate in the period immediately after sentencing. As a result it is likely he would require relatively intensive professional support during the initial period in custody and that he would be vulnerable to both more regular and severe bouts of anxiety and depression than would a prisoner who did not suffer his pre-existing problems. In conjunction with the challenges to his broader support networks I would anticipate that any term of imprisonment which the court might see fit to impose upon Mr Tartaglia would be likely to weigh upon him in a relatively onerous fashion.[32]

1. A leading case on the application of s 5(2H)(c)(ii) is the case of Peers in the Court of Appeal.[33] In that case the applicant faced a charge of dangerous driving causing death and was ultimately found by the Court of Appeal to satisfy the test. The evidence that the Court of Appeal relied on in relation to Ms Peers' mental health was quite extensive. Her mental health problems were longstanding and they dated to years before the accident concerned. By contrast, you have no history of mental illness prior to this accident.
2. Further, in Peers, the mental problems suffered by Ms Peers impacted on her day to day functioning to a considerable extent. For example, she was unable to hold down a job and she was dependent on an assistance dog which would not be available in prison. The Court of Appeal summarised both Ms Peers' existing mental health conditions, and major functional difficulties, and also the evidence about the likely impact of incarceration.[34]
3. In your case, by contrast, the evidence is insufficient to discharge your onus in relation to the exception that is relied upon. While it reaches the threshold required for limbs 5 and 6 of Verdins,[35] as the Court of Appeal has explained in Peers, the threshold for the exception in s 5(2H)(c)(ii) is higher than that which is required for Verdins.[36]

Substantial and compelling circumstances that are exceptional and rare

1. Turning then to the second exception that is relied upon, s5(2H)(e), this requires the court to be satisfied that there are substantial and compelling circumstances that are exceptional and rare that will justify a non-custodial sentence.
2. Section 5(2HC) directs the court as to the matters that the court must have regard to and must not have regard to in making that assessment.
3. The court must regard general deterrence and denunciation of the offender's conduct as having greater importance than other sentencing purposes. The court must give less weight to the personal circumstances of the offender than to other matters, such as the nature and gravity of the offence. The court must not have regard to the offender's previous good character other than an absence of previous convictions or findings of guilt, or an earlier guilty plea, or prospects of rehabilitation, or parity with other sentences.
4. It is clear that a court can look at a combination of circumstances in assessing whether or not the circumstances are compelling, substantial, exceptional and rare although the Court of Appeal has more than once emphasised the stringency of the test that must be satisfied.[37]
5. I accept that you are a person with previous good character. The character references before the court from a wide range of family friends and work colleagues make that much clear.
6. This is commonly the case. As the Court of Appeal observed in DPP v Kenneison:

It is the sad reality that people of otherwise good character who drive in a dangerous manner and cause death often exhibit immediate, genuine and ongoing contrition and are cooperative with police. They frequently suffer from symptoms of anxiety and PTSD, which a term of imprisonment may exacerbate. Fathers, as well as mothers, often have dependents who will suffer hardship upon their incarceration. [38]

1. In conclusion, having regard to the assessment I have made of the objective gravity of the offence, which must form a significant part of the assessment of the availability of this exception, I am satisfied that the circumstances you can point to, including the impact on your family of a custodial sentence are substantial and compelling but I am not satisfied that they are also exceptional and rare. They are the types of circumstances which are frequently seen in cases of this nature in this court.
2. I therefore do not accept that either of the exceptions apply, and in those circumstances, Parliament has decreed that the court has no choice but to impose a custodial sentence in this case.

1. The principal sentencing considerations in this case are general deterrence, denunciation and just punishment. General deterrence is particularly significant. As the Court of Appeal recently explained in the case of Hennessey v The King:

'... a clear message must be sent to other road users that offences committed whilst driving a vehicle ... will result in stern consequences'.[39]

1. Specific deterrence and protection of the community are of reduced importance for the reasons explained earlier. It is also necessary to promote your rehabilitation to the extent compatible with the other sentencing objectives. I have sought to achieve this in the setting of a non parole period.
2. Turning to the appropriate length of a custodial sentence in this case, taking into account all of the matters that have been placed before the court, including the objective gravity of the offending and the impact it had on the family of Mrs Mander, balanced against all of the evidence about your previous good character, your remorse, and the other matters of mitigation referred to, I consider that a sentence of one year and nine months' imprisonment is appropriate in this case.
3. You will be eligible for parole after you have served 11 months in custody.
4. Pursuant to s 18 of the Sentencing Act 1991, the records of the court will reflect that the 19 days you have served on remand is time to be reckoned as served in relation to this sentence.
5. Pursuant to s 6AAA of the Sentencing Act 1991, had you pleaded not guilty, the sentence would have been 3 years' custody with a non parole period of two years.
6. Finally, all of your driving licences are cancelled and you are disqualified from obtaining a further licence for 18 months.[40]

[2] R v Storey [1998] 1 VR 359, 371.

[3] Exhibit P1 - Report of Detective Hay dated 27 February 2023 (Hay 1st Report); Exhibit P2 - Supplementary statement of Detective Hay dated 18 October 2024 (Hay 2nd Report); and Exhibit P3 - Supplementary statement of Detective Hay dated 15 November 2024 (Hay 3rd Report).

[4] Exhibit D1 - Report of Grant Johnston dated 30 January 2024 (Johnstone Report).

[13] Evidence Act 2008 (Vic) s 79; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, 603-4 [35].

[17] Mr Johnston made a number of criticisms concerning the application by Detective Hay of the Searle Formula (see Johnstone Report (n 4) 6.20-6.26). However, for reasons that will become clear, I do not need to examine these.

[20] [2021] VSCA 156, 6 [20].

[21] Psychological Report of Jay Tartaglia written by Mr Newton dated 19 August 2024, 7 [28] ('Exhibit D2').

[22] Sentencing Act 1991 (Vic) s 5(2)(daa).

[23] [2010] VSCA 105.

[24] Arie Freiburg, Fox and Freiburg's Sentencing: State and Federal Law in Victoria, (Thomson Reuters, 3rd ed, 2014) 420 [6.150].

[26] Bourn v The Queen [2011] VSCA 159, 12 [30].

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

[29] Paulson v The King [2024] VSCA 188, 19 [82]-[83] (citations omitted).

[30] Letter from Dr Drake dated 28 November 2024 ('Exhibit D4').

[33] Peers v The Queen [2021] VSCA 264 ('Peers').

[37] See, e.g., Bowen v The Queen [2021] VSCA 355, 16 [53].

[38] [2023] VSCA 321, 8 [40] (citations omitted).

[39] [2024] VSCA 2, 17-8 [87].

[40] Sentencing Act 1991 (Vic) s 89(2)(a).