DPP v Waters [2025] VCC 452

1. I will not repeat the entire summary as it is a matter of record to which I have had recourse, but in brief terms, the offending that gives rise to these charges occurred on 30 September 2023, at which time you were 18 years of age.
2. The direct victims in this matter were all your friends. Jake Munday was 19 years old**,** Eden Genoni was aged 19 years, Darcy Hilford was aged 19 years and

Luke Tomkins was aged 18 years. 3. On 30 September 2023, you and this group were celebrating the AFL Grand Final at the Phillip Island Hotel in Cowes. You all left the hotel at approximately

11:25 pm in your Subaru WRX Sedan. You had consumed alcohol. 4. You were driving, with Luke Tomkins seated behind you, Eden Genoni in the passenger seat and Darcy Hilford in the rear seat behind him. Whilst offered a seat in the middle of the back seat by Mr Hilford, Mr Munday got into the boot of the vehicle, with words to the effect of "nah, I will be fine". 5. You were the holder of a P1 Victorian probationary driver's licence, which included conditions that you have zero alcohol in your system when driving and no more than one passenger between the ages of 16 and 21 in your vehicle. Nevertheless, you drove down Justice Road in Cowes in breach of these conditions and whilst being aware that one of your passengers was unrestrained and in the boot. 6. The speed limit on Justice Road is 60 km/h and there are several roundabouts. Whilst driving down this road, you approached a roundabout at an unknown, but high, speed and proceeded through the roundabout at speed without slowing. 7. A few hundred metres further up the road, you again approached a roundabout at speed. Mr Hilford was scared and asked you to slow down. Mr Gedoni recalls that this request was just before you entered the second roundabout. 8. The rear passenger side tyre of your vehicle impacted the gutter on the southeast corner of this roundabout at the intersection of Justice Road and Silverstone Drive. After impact, you lost control of the vehicle. Your car began to rotate clockwise and slid towards, and into, multiple trees on the western side of the road. 9. Accident reconstruction expert Detective Sergeant Dr Janelle Hardiman attended the scene and provided an expert opinion that your vehicle was travelling at a speed not less than 83 km/h when the motor vehicle commenced yawing. 10. Once the vehicle came to a stop, Mr Genoni got out and dragged Mr Tomkins, who was unconscious, from the vehicle. Mr Genoni was fortunately uninjured, whilst Mr Hilford suffered a cut to the head. 11. Mr Genoni then walked to the back of the car and saw Mr Munday on the ground behind the car and on his back. Mr Genoni dragged Mr Munday to the middle of the road. 12. Mr Munday was unconscious. He had a pulse, but his breathing appeared obstructed. Mr Genoni put Mr Munday into the recovery position. A member of the public started to perform CPR on Mr Munday and continued to do so until emergency services arrived. 13. Once on the scene, paramedics attempted to revive Mr Munday, but were unable to do so. Tragically, he did pass away. These facts form the basis for the four charges on the indictment. 14. When asked by paramedics at the scene whether you had consumed any alcohol, you replied that you had "just drank a little bit" and "not much". You also stated that "[you weren't] speeding" but were unable to remember how fast you were going. Other materials filed would indicate that you presented as extremely distressed. 15. You were taken to the Alfred Hospital, where a breath sample was taken. A blood sample was taken at a later stage. Expert Dr Maaike Moller concluded that at the time you were driving, it was likely that your total body alcohol content was a minimum of 0.04 per cent. 16. The vehicle was examined by Forensic Officer Dale Woodland and in his opinion, there was no fault, failure or conditions with the vehicle that could have caused or contributed to the collision. 17. Photographs showing the damage to the vehicle were tendered at your initial plea hearing and show the devastating impact of the collision. 18. You were considered not fit to be interviewed by police immediately after the incident due to your distress and later declined to be interviewed by police, as is your right.

1. The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
2. A victim impact statement was authored by each member of Mr Munday's immediate family, Mr Munday's father, Markus Munday, his mother,

Meaghan Munday and his sisters Mia and Alivia Munday. These statements are dated 19 February 2025 and were tendered by the prosecution at your initial plea hearing. 3. Each family member chose to read their statements to the court themselves, with a framed photo of Mr Munday positioned in front of them. This was understandably an emotional and brave undertaking. 4. A victim impact statement of Adrienne Watts, Mr Munday's grandmother, dated

18 February 2025 was also tendered and read to the court by the prosecution. 5. It is perhaps trite to say that the impact of your offending on the family of Mr Munday has been catastrophic. 6. Markus Munday, Jake's father, spoke of his son's love of soccer, skateboarding, surfing, snowboarding and music, recalling many precious memories shared together. He describes Jake as being full of energy, confidence, passion and love for those around him. Markus Munday describes feeling like a shell of his former self, with an indescribable and unrelenting heart ache, pain and emptiness that the grief of losing his son has caused. He describes feeling lost in his identity without his son Jake. 7. The love Markus Munday has for Jake, and the rest of his family, is clear. In trying to move forward, Markus speaks of keeping Jake's name alive in the community and educating young drivers in his name. 8. Meghan Munday, Jake's mother, speaks of the harrowing experience of learning of Jake's death and then having to tell her daughters that their brother had passed away. Meghan Munday speaks of the soul crushing, yet indescribable pain of losing her son in such a traumatic way. She describes the pain as relentless and finds herself overwhelmed by the grief of living life without Jake almost every day, with daily reminders of Jake's absence contributing to an unbearable emptiness. Meghan Munday describes her life, heart and soul forever as having been changed, and that she will never be whole again without Jake. 9. Mia, Jake's younger sister, speaks of losing not just her brother, but her best friend. Mia describes living with the grief as "majorly overwhelming" and finds herself struggling with a sense of disbelief. Mia describes the loss as impacting her life in more ways than she could ever put into words and that every single day is a "massive struggle". 10. Alivia, Jake's youngest sister, speaks of unimaginable grief that can sometimes be too hard to bear. She describes losing her brother at the age of 14 as truly life changing, with grief staying quietly in the background of everything she does. 11. Both of Jake's sisters speak of the difficulties in hearing their friends talk about their older brothers and the guilt they feel experiencing moments of happiness, following the loss of their brother. 12. Adrienne Watts, Jake's grandmother, describes her relationship with Jake as very close and to missing him every day. 13. Your other victims, the passengers in your car, have chosen not to make a victim impact statement. 14. It is palpable that Mr Munday's family have been deeply affected by his death, as you would expect them to be. 15. The profound emotion in the courtroom as these statements were read aloud by his family and the impact of your wrongdoing on others therefore cannot be lost upon you. 16. I take the contents of these victim impact statements into account.

1. This is axiomatically serious offending, resulting in the tragic loss of Jake Munday's life and risk to your other three passengers.
2. Principles of general deterrence and denunciation must loom large. This is the mechanism to inform other road users of the consequences for foolhardy behaviour such as yours, which, in instances like these, tends to be the province of young and inexperienced drivers.
3. For dangerous driving causing death, a court's assessment of the dangerousness of the driving is informed by the extent of the risk which the driving created, as well as by the extent of potential harm should such risk materialise. It thus covers a wide range of driving behaviour.
4. The accepted Crown case regarding Charge 1 is that your driving was dangerous based on a combination of factors, being that you drove at an excessive speed, being a minimum of 83km/h in a 60km/h zone, and in the circumstances of approaching and entering a roundabout.
5. In DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, the court accepted that the following principles apply to sentencing for dangerous driving causing death:

(i) "General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.

(ii) A person who kills or injures another whilst driving dangerously is likely to receive a significant term of imprisonment.

(iii) The sentence which is imposed must take account of variations in the moral culpability of the person responsible.

(iv) A custodial sentence will usually be appropriate for this offence, except in cases where the offender's level of moral culpability is low." [1]

1. Referencing item 4, this decision predates the provisions of s5(2H) of the Sentencing Act 1991 to which I have already referred and will return to at a later stage.
2. The court in Neethling also identified a non-exhaustive list of factors which may aggravate the seriousness of such an offence. These do include:

"i. The extent and nature of the injuries inflicted.

iv. The degree of intoxication or of substance abuse.

v. Whether there was erratic (or aggressive) driving.

vi. Whether there was competitive driving or showing off.

vii. The length of the journey during which others were exposed to risk.

1. Subsequent decisions have added to these factors to include circumstances such the use of a mobile phone, driving experience and familiarity with the vehicle or terrain. None of these factors should be considered as a 'check list'.
2. Whilst these factors relate specifically to Charge 1, I agree with the prosecution's submission that they can be taken into consideration when assessing the objective gravity of the reckless conduct endangering life charges and really to your offending as a whole.
3. The accepted Crown case regarding Charges 2, 3 and 4, that of reckless conduct endangering life, are particularised on the basis that you were driving no less than 83 km/h in a 60 km/h zone, in breach of peer passenger restrictions and with a blood alcohol level of .04 percent.
4. It is not submitted by the prosecution that the alcohol in your system was enough to impair your driving, but it is certainly relevant to the overall circumstances of your driving. I agree with the prosecution submission, that whilst your offending is serious, it does fall towards a mid-level of seriousness
5. It is conceded by your counsel that the offending is serious.
6. I accept that your particular case does not carry the too often hallmarks of alcohol or drug intoxication, use of a mobile phone, or extended police pursuit.
7. Nevertheless, on 30 September 2023, you chose to drive with flagrant disregard to the conditions of your probationary licence, with multiple passengers in your car and the knowledge you had consumed alcohol. You became aware that Jake was in the boot of your car without a seatbelt, but you chose to drive at an excessive speed, scaring at least one of your passengers, and entered a roundabout at 23km/h over the speed limit. This resulted in a tragic outcome which, as I commented earlier, has destroyed at least two families.
8. Your decision to drive at speed may have been a momentary lapse of judgment, but it continued for about five minutes prior to the collision and placed you and your passengers at obvious risk. A risk that was most unfortunately realised.
9. The area in which you chose to drive this way was residential and potentially posed risk to others and certainly exposed them to the aftermath of this accident.
10. In the circumstances overall, your moral culpability would appear to be high.

1. The Sentencing Act obliges me to take into account the stage at which you entered your guilty plea. This matter resolved between parties following a number of hearings. However, according to the chronology available to me, an offer to plead to the current charges was made by you on 4 February 2024, prior to a committal mention. This plea can be accepted in those circumstances as being at an early opportunity.
2. There is clear value in saving the witnesses of the need to give evidence at trial and relive distressing events and utilitarian value in saving the community the expense of contested proceedings. You have spared Mr Munday's family such a process.
3. In that context, your decision to plead guilty has provided both certainty and finality to all parties.
4. An undated letter of apology to Jake's parents, written by you, has been tendered on your behalf. Whilst such documents tend to be self-serving, you express sorrow for your actions and indicate that you take full responsibility for them. Your letter appears to be underpinned by the loss and suffering you have experienced following Jake's death and as a result of your actions. I accept the sentiments expressed to be genuine.
5. I have no doubt that you are genuinely remorseful for your offending.
6. These factors will be taken into account in your favour.
7. I turn now to your personal circumstances.

1. Your personal circumstances have been helpfully outlined in defence submissions and the report of clinical and forensic psychologist Mr Patrick Newton dated

6 January 2024, although presumably intended to be dated 2025, given the assessment of you took place on 4 November 2024. 2. You were born in Cambridge, England to parents David and Annette Waters and are currently 19 years of age. 3. You reside in the familial home with your parents and your younger sister Alice. Your parents were present at your original plea hearing and your entire family is present for your sentencing today. 4. Your childhood was characterised by a loving, happy and stable upbringing, with strong and supportive familial relationships. 5. Moving from the UK to Australia when you were three years old, you grew up predominantly in Cape Woolamai, Phillip Island. You did, however, live in the UK during Years 6 and 7 of your schooling. 6. On return to Australia, you attended Newhaven College for Years 8 and 9, followed by Wesley College in Melbourne for Years 10 to 12. You report feeling like you "didn't fit in that well" at Wesley College, but did manage to forge good connections. 7. You did not experience bullying and experienced no significant disciplinary problems. 8. You completed your Year 12 studies in 2022 and went on to commence a Bachelor of Business Degree at Monash University, completing the first year of your course in 2023. You continued your studies in 2024, while also working as a mechanic. Towards the end of 2024, you were undertaking your course part time and had commenced working with your father, David, who is a builder. 9. In his report, Mr Newton considers that there are no diagnoses applicable to you, nor is there any indication of any mental disorder at the time of the collision. 10. In his clinical assessment of you, Mr Newton opines that, despite your mood presenting as mildly dysphoric, you are not experiencing any significant feelings of depression and that the grief associated with the death of your friend Jake is fully resolved. 11. The Personality Assessment Inventory test as administered by Mr Newton confirmed your immaturity, "identifying persisting adolescent personality features in the context of normal emotional functioning". Your social and moral reasoning reflects this persisting immaturity. 12. Despite being within normal limits, Mr Newton has concerns that these factors point to a degree of vulnerability, if placed in an environment where antisocial mores predominate, as someone who is yet to progress fully from adolescence to adulthood. Mr Newton suggested that placement in a youth setting would have advantages over an adult setting in this context. 13. Despite your immaturity, your intelligence is estimated to fall in the high end of the average range, and it is expected that you have a strong capacity to benefit from further education, training and rehabilitation. 14. Your counsel has tendered 20 character references on your behalf, largely from family friends and others who have obviously known you. Each of these persons has known you in a different context, whether it be a family friend, your personal friend, an employer, a teacher, a coach or a close relative. In essence, they describe you as a likeable, courteous, reserved and polite young man. You are described as hard working, a contributor to your local community and an essential member of your family. Your parents are understandably devastated at the loss for the Munday family and the loss which must inevitably follow for their own. You are described as remorseful. Your offending was a shock to each of your referees and is almost universally described as out of character. I accept this to be accurate and have taken each of the references into account.

1. Your youth is obviously relevant to this sentencing exercise and highly relevant to your persistent immaturity.
2. At just 18 years of age at the time of your offending, your youthfulness clearly has the relevance I have just described. Section 3 of the Sentencing Act 1991 defines a 'young offender' as an offender who, at the time of being sentenced, is under the age of 21 years. As you sit there today, you are now aged 19 years.
3. I accept that there should be some reduction of your moral culpability directly linked to your very young age at the time of your offending.
4. In the decision of R v Mills [1998] 4 VR 235, the Court of Appeal held that the youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court and that, in the case of a young offender, "rehabilitation is usually far more important than general deterrence".[3] The Court also stated that a youthful offender should not be sent to an adult prison if that can be avoided.
5. In a decision of Azzopardi; Baltatzis; Gabriel v R [2011] VSCA 372; (2011) 35 VR 43, particularly at [34] - [36], Redlich JA made clear the reasons to prioritise youth as a sentencing consideration. These include that firstly:

(a) Young offenders are immature. They may not fully appreciate the nature of their actions fully, nor the seriousness and consequences of their criminal conduct;

(b) It is recognised by the courts the increased potential for young offenders to be rehabilitated, which, in itself is in the public interest; and

(c) Incarceration can impair, rather than enhance a young offender's prospects of rehabilitation.

1. Further, it is recognised that there are obvious risks to the young offender and the community at large if a young person is 'taught the ways of a criminal' through adult incarceration.
2. These factors are all particularly relevant and have application to your case.
3. Whilst I have commented that offending such as yours tend to be the province of youth elevating the need for general deterrence, sentencing is a balancing task of somewhat often competing issues and I remain of the view that your youth should be given both full consideration and of course proper weight in the sentencing mix.

1. You have no criminal history and there are no subsequent matters.
2. You have abided by bail conditions for a lengthy period of time and have found some distress by bail conditions which prevented you from communicating with the Munday family or your other friends in the car that evening.
3. A brief letter from your counselling psychologist, Mr Robert Takac, indicates that you have had a total of 17 counselling sessions since commencing on

28 November 2023. Mr Takac indicates this counselling has been focused on processing the incident and your ongoing efforts to lead a worthwhile life. Your work with Mr Takac indicates a preparedness by you to seek help when you need assistance. 4. In his report, Mr Newton opines that your level of intelligence, lack of any diagnosable mental disorder, generally good behavioural adjustment, strong familial support, prosocial friendships and the stability of your personal circumstances suggest a positive prognosis. 5. Moreover, he opines that your continued educational and vocational development and the ability for you to be spared the influence of negative peers will increase your ability to move past your offending to a healthy and positive adulthood. 6. The continued, though notably somewhat slow, development of your social judgment and moral reasoning resulting from your persisting immaturity also contribute positively to your prospects of rehabilitation. 7. I have already observed that you do not have a problem with drugs or alcohol. 8. These findings all augur well for your prospects for rehabilitation. 9. There is no doubt that you are well supported by family and friends. You have already obtained valuable education and work skills. You remain focused on coming out the other side of the inevitable consequences of your actions in terms of the punishment that simply must follow. 10. At this point, your overall prospects of rehabilitation can only be described as high. 11. Less weight should attach to the sentencing principles of specific deterrence and protection of the community in those circumstances

1. As referred to earlier, the offence of dangerous driving causing death is what is described as a Category 2 offence in the Sentencing Act 1991.
2. Being so described, s5(2H) of the Sentencing Act requires the imposition of a custodial order for this offence, unless circumstances set out in paragraphs (a) through to (e) of that subsection exist, either alone or in combination. It is not contended on your behalf that that they do. However, an order pursuant to section 32 is included in Division 2 of Part 3 of that piece of legislation.
3. Your counsel contends that the court could consider a sentence of detention in a Youth Justice Centre. They have also provided cases designed to assist me and I have had recourse to each of those decisions. There are understandable differences in the facts of each of those cases, but they have been of some assistance.
4. The Crown submit that general deterrence, as well as denunciation are of very significant import to the sentencing in your case, but ultimately agree that detention in a Youth Justice Centre is an appropriate sentencing disposition, taking into account all relevant considerations.
5. Section 32(1) of the Sentencing Act requires that if a sentence involving confinement of a young offender is justified, a court may make a Youth Justice Centre order, if it has received a pre-sentence report and either believes there are reasonable prospects for the rehabilitation of the young offender, or it believes that young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison.
6. Accordingly, and in order to be better informed, I had you assessed as to your suitability for a Youth Justice Centre Order.
7. Your matter was adjourned to today, 10 April 2025, for this to be undertaken. This was added to the period between being charged on 1 October 2023, until your sentencing 18 months later. I appreciate that this would have been a source of stress for you and your family as it would have been for the family of Mr Munday.
8. A 'Suitability for Youth Justice Centre Order pre-sentence report' dated 24 March 2025, compiled by Ms Kayla Del Monte, has been provided in advance of this hearing.
9. You engaged well with the assessment and were ultimately assessed as suitable for a Youth Justice Centre Order.
10. Ms Del Monte found you to be empathetic toward Mr Munday's family and acknowledge the impact of your offending on all those involved.
11. Although acknowledging factors of consuming alcohol and passenger overloading as contributing to your offending, she did find that you failed to show an understanding of how speeding also contributed to the collision. She attributed this limited understanding to your age and lack of maturity, a factor which has been a theme throughout.
12. Ms Del Monte reiterates your positive prospects of rehabilitation.
13. Ms Del Monte found that given your lack of exposure to any form of custodial setting and your relative youth, that you were particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison.
14. I do find both of limbs of s32 to be satisfied based on her report and other materials filed before me.
15. I do consider a term of detention within a Youth Justice Centre to be the most appropriate, in all the circumstances.
16. I will just check with members of counsel now whether there has been any errors that you need to bring to my attention.
17. MR MENON: No issue for the prosecution.
18. MR HILL: No, Your Honour.

1. HER HONOUR: The tragedy of the events of September of 2023 are only compounded and intensified by the court proceedings that can do little or nothing to alleviate the pain and suffering experienced by all those involved.
2. To the family of the deceased, I say that there is nothing this court can say or do that will bring back your loved one or heal your significant and unmeasurable grief, pain or injury. The sentence I must impose can in no way be a measure of the worth of the life of the one that you have loved and have now lost.
3. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, one of which is of course the impact on victims.
4. Otherwise, the basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
5. In sentencing you, I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims. I must also balance the interests of the community in denouncing criminal conduct, with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
6. I have taken into account the sentencing purposes referred to in section 5 of the Sentencing Act where relevant to your case and the current sentencing practices for the offences to which you have entered your guilty pleas. Principles of proportionality and totality remain important and I accept the submission that these last two considerations require partial concurrency to be ordered between the sentences to be imposed.
7. Charge 1, dangerous driving causing death, is defined as a 'serious motor vehicle offence' and on a finding of guilt or conviction for such an offence, the court is required to cancel and disqualify any licences held by you for a period not less than 18 months. In relation to that requirement, any licences you hold are cancelled and disqualified for a period of 30 months. I backdate that order to 1 October 2023, when your licence was removed from you. Mr Hill?
8. MR HILL: Technically, Your Honour can't, with respect, backdate the order. Your Honour takes into account that he has not had a licence for 17 months and - - -
9. HER HONOUR: I misunderstood. I thought it was the removal of his licence.
10. MR HILL: It was cancellation of his licence or a suspension of - it was an immediate driving ban, but Your Honour has imposed a 30 month disqualification and backdated it.
11. HER HONOUR: I have.
12. MR HILL: And as we understand the current state of the law, what Your Honour should do is to say I take into account that you have been banned for driving for the last 17 months and as a result, I only impose a period of 18 months.
13. HER HONOUR: There are some circumstances where I can backdate. I had presumed it was one of those circumstances, hence the enquiry I made at an earlier stage. I will amend orders accordingly, but I just want to make sure that you are right.
14. MR HILL: 'A period of description under s89(1) commences on the date that the order imposing it - it is made or on any later date that the court specifies in the order'.
15. HER HONOUR: All right.
16. MR HILL: It's a technical matter, Your Honour, but we thought it appropriate to raise.
17. HER HONOUR: Well I'm very glad you did. Thank you very much. I did - my intention is perhaps clear.
18. MR HILL: Yes indeed.
19. HER HONOUR: Yes, so I will amend that and thank you for bringing it to my attention. So any licences held are cancelled and disqualified for a period of 18 months commencing today, taking into account his licence was removed from him on 1 October 2023.
20. MR MENON: As Your Honour pleases.
21. HER HONOUR: Thank you. For Charge 1, dangerous driving causing death, Oscar Waters is convicted and sentenced to two years in a Youth Justice Centre. This is the base sentence.
22. For Charge 2, reckless conduct endangering life, you are convicted and sentenced to 14 months in a Youth Justice Centre.
23. For Charge 3, reckless conduct endangering life, you are convicted and sentenced to 14 months in a Youth Justice Centre.
24. For Charge 4, reckless conduct endangering life, you are convicted and sentenced to 14 months in a Youth Justice Centre.
25. Two months of each sentence on Charges 2, 3 and 4 accumulate on each other and on the base sentence.
26. The total effective sentence is therefore one of two years and six months in a Youth Justice Centre. One day will be reckoned as having already been served.
27. Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty. If not for your pleas of guilty, I would have received four years in a Youth Justice Centre.
28. MR MENON: As Your Honour pleases.
29. MR HILL: As Your Honour pleases.
30. HER HONOUR: Thank you. I will stand down now until 12. Thank you.

[2] Ibid, [31] referencing R v Whyte [2002] NSWCCA 343; [2002] 55 NSWLR 252, 286 [216]-[217].