R v Toull [2025] VSC 574

1 In the early hours of 13 May 2024, Brett Toull laid in wait for Jake Andrew near his residence in Viewbank. He was jealous of, and angry at, Mr Andrew because he had formed an intimate relationship with Laura Morton, who, until mid-2023, had been Mr Toull's partner for fourteen years and was the mother of his children. A few weeks earlier, in a message to Ms Morton, Mr Toull had threatened he would "go straight over the top of" Mr Andrew in his car. Well, he didn't quite do that, but he did do something violent with his car on this early morn. And it was this:

2 When Mr Andrew left his premises on his Honda motorbike soon after 1:30 a.m., Mr Toull followed and then chased him in his Hyundai i30 car. While travelling at nearly 160 kph along Main Road in Lower Plenty, Mr Toull caught up to, and, at the very last moment, accelerated and deliberately collided with the rear of, Mr Andrew's Honda. These events are recorded on Mr Toull's dashcam. Unsurprisingly, Mr Andrew fell and skidded along the roadway, coming to a halt on the nature strip. He sustained injuries amounting to serious injury as a result. Mr Toull's car rolled and ended up on its roof, but, luckily for him, he was not harmed.

3 Police arrested Mr Toull at the scene of the crash, and later charged him with attempted murder[1] and other offences. He has remained in custody ever since.

4 On 25 July 2025, at a sentence indication application supported by the Director of Public Prosecutions on the alternative charge of intentionally causing serious injury,[2] I indicated that, if Mr Toull pleaded guilty to that charge, I would impose a sentence not exceeding six years' imprisonment with a non‑parole period of three years.[3] Mr Toull took up that indication.

5 On 29 July 2025, when arraigned on a plea indictment, he duly pleaded guilty to the serious injury charge, as well as to a charge of possessing a drug of dependence (namely, a smallish amount of methylamphetamine),[4] and he admitted prior convictions. Through his counsel, he also pleaded guilty to a summary offence of having a prescribed illicit drug (namely, methylamphetamine) in his blood within three hours of driving.[5]

6 On 31 August 2025, I heard a summary of the prosecution case, a plea in mitigation, and submissions from counsel on various relevant considerations.

7 It is now my task to sentence Mr Toull for these offences. Balancing all matters as best I can, I have determined that, on intentionally causing serious injury, I shall sentence Mr Toull as previously indicated - namely, to six years' imprisonment with a non‑parole period of three years. On possession of methylamphetamine, he will be convicted and discharged. On the summary offence, Mr Toull will be convicted and fined $500. His driver licence will be cancelled, and he will be suspended from driving and disqualified from obtaining another driver licence for 20 months.

8 My reasons for those sentences and orders follow.

9 I turn, then, to a more detailed summary of the offending, commencing with some background matters.

10 This summary is taken from a combination of sources, including the prosecution opening read to the Court by Mr Porceddu, who appeared for the Director, the depositions, and matters raised and materials tendered at the sentence indication and on the plea by Mr Steward, who appeared for Mr Toull.

11 I turn next to a summary of the relationships between the protagonists.

12 Until mid-2023, Ms Morton and Mr Toull had been in a relationship for about fourteen years. They had three children together, and had lived with those children and Ms Morton's two other children from a previous relationship.[6]

13 Mr Toull treated Ms Morton's children from her earlier relationship as if he were their father. The following evidence - given by Ms Morton at the committal hearing - makes that plain:[7]

All right. Brett's not his father - not his blood father - blood father sort of? - - - Yeah. No, but he's the only [real] father figure ... that my son has had. So, not blood, not biological, but, yeah, basically, in every sense his dad.

14 Since about November 2023, Mr Andrew had been in a relationship with Ms Morton.

15 Just before the offending, Ms Morton, the children and Mr Andrew had moved into the home of Kerry Morton, who is Ms Morton's mother, in Rockaway Drive, Viewbank.

Messages from Mr Toull to children and Ms Morton re her and Mr Andrew

16 Mr Toull coped very poorly with the break-up of his relationship with Ms Morton and the commencement of her relationship with Mr Andrew. He was angry with Ms Morton, and was jealous of, and angrier at, Mr Andrew. Many of the messages he sent to his children and Ms Morton in the weeks leading up to the offending illustrate these states of mind.

17 In these reasons, I shall summarise only some of those messages that are set out in the prosecution opening. In doing so, I consider it neither necessary nor appropriate to name the children. Instead, I shall use random initials to describe them - namely, AB, CD, EF, and GH.

18 Further, while, in these written reasons, I have extracted the messages in the form in which they were written, as I read them aloud, for ease of understanding, I shall try to do so with some editing, including with punctuation conventions in mind.

19 I commence, then, with some of Mr Toull's messages to AB.

20 For example, on 14 April 2024, Mr Toull asked AB whether "Jake the dog" (meaning Mr Andrew) and Ms Morton would be taking him to his appointment. He then referred to Ms Morton as a dog as well. He asked AB whether his mother had told him that they would never be a family together because of her "wanting to be with that junkie dog piece of shit that [EF] let her sleep with so tell [EF] good job too her and mum have destroyed everything". When asked by AB whether he was coming over, Mr Toull said that he didn't want to see Ms Morton because he couldn't stand her, and, unlike her, he has feelings. Mr Toull then asked AB whether he was with "mum the dog". He asked AB to tell her to "stop being gutless and a piece of shit and to reply to him", and to "unblock" him. He asked AB whether "that Jake cunt" was there, and how many times he had seen him. At one point, after being told that Ms Morton did not want to speak to him, Mr Toull responded by saying, "Tell her to grow up and stop being a bitch for once"; and, "She wants to play that game then I'll walk away forever he can raise yous and [pay] her bills."

21 On 15 April 2024, Mr Toull messaged AB, "Tell her she's a cheater she destroyed this family she wants him he can do what I do then." On the same day, Mr Toull said to "tell the dog to msg me now I'm getting pissed [off]".

22 On 11 May 2024, Mr Toull, while pretending to be someone else, sent a message to AB referring to himself as a person who has "got a vicious dangerous intelligent side to him".

23 Next, I turn to some of the messages Mr Toull sent to CD.

24 For example, on 14 April 2024, he told CD that he wants nothing to do with Ms Morton and that she is a "True piece of shit low dog cheating for months". Within seconds, he sent another message to CD asking Ms Morton to call him. This was a recurring pattern - i.e. saying he wants nothing to do with Ms Morton but then, in the next breath, asking that she call him. In another message, after referring to Ms Morton as a "fucking snake", he said, "Get the dog to ring me." He then said, "She's fucked Jake she's a slut I hate the cunt hope she dies." He said she was a "sneaky fucking rat been doing it for months the fucking dog tell the skunk to ring me". Mr Toull also asked CD where he could find Mr Andrew. CD discouraged him from trying to do so. Mr Toull acknowledged that, if something were to happen to Mr Andrew, he would be the obvious suspect. He said that it would be easy to find Mr Andrew, who would be moving into Kerry Morton's house with the rest of the family. He also said, "[O]nce I get him then I'll be content and happy and move forward with my life mum knows me I'll hold a grudge forever."

25 On 19 April 2024, Mr Toull said to CD, "Whats 10 yrs 15yrs I'll be out just before 50 plenty of time left lol." In another message, he said, "The fucking smart cunt knew what game he was playing thinks his a hard cunt big time gangster as mum said you don't know him fucking please the cunt don't know me and what I am about when it comes to my family." Mr Toull asked CD to find out if Ms Morton was still seeing this "rat". He then tried to find out whether she had slept with him some time ago and whether there was still some hope of Mr Toull getting back with her.

26 On 30 April 2024, Mr Toull admitted that he had been working on his "attitude/anger issues", and he asked CD to tell Ms Morton that she has made the worst decision ever in kicking around with "that gronk".

27 Next, I shall set out some of the messages Mr Toull sent to EF.

28 On 14 April 2024, he asked EF that Ms Morton contact him. He sent a further message to EF telling her that it was she who "allowed mum to sleep with him".

29 On 3 May 2024, Mr Toull again asked EF to have Ms Morton contact him "before someone dies and one of us go to jail 25 yrs you goose". A minute later, Mr Toull sent the following message: "Its either me or him dead or in jail I'd hurry up". EF responded that he should "leave him alone bro", "mum doesn't want to be with you", and "she's told you multiple times". In response, Mr Toull said she better get Ms Morton to contact him "before shit gets real".

31 On 11 May 2024, Mr Toull asked GH where Mr Andrew and Ms Morton were, and was told they were in bed together. In response, he said he "hates mum so bad", and then asked GH to go in and take a photo of them. GH asked whether he knew what Mr Andrew looked like, and Mr Toull responded, "Sorta not really." He asked whether they were clothed. GH said that Ms Morton was wearing a shirt and undies. He encouraged GH to "do his head in so he wants to leave". Given the poor light, a photo could not be taken, so GH took a video instead and sent it to Mr Toull. But nothing could be seen in the video either, because of the poor lighting. On a couple of occasions, Mr Toull asked GH to delete the messages between the two of them.

32 Finally, I turn to messages between Mr Toull and Ms Morton.

33 As of January 2024, Ms Morton had considered her relationship with Mr Toull was over. She told him many times via messages that she did not want to remain in the relationship.

34 On 10 January 2024, she told him she could not see why she had to remain in the relationship they had outgrown, and that she wanted to be by herself. Mr Toull asked her to "drop this cunt", and begged her to stop seeing him. He said that, if she stopped seeing Mr Andrew, their relationship could move forward. She said it was difficult for their relationship to continue when she had feelings for someone else. Discussion of this kind continued over the next few months.

35 On 20 April 2024, Mr Toull wrote the following stream of consciousness in a message to Ms Morton:

Deadset Laura truly can't believe you and how you treated him fucking disgusting grub you let sleeping in your nans bed well that needs to be thrown out now let him smoke there at our house you've slept in your big nans bed like it's that bed special like its hers you've slept with him in our bed too like his truly fucking yuck a cooked unit a thieving little dog well just go read my emails Laura I'm not here to argue with especially over that him absolutely putrid just a grubby scum bag think he runs this & that his a crazy cunt a true gangster he wrecks then why run bother why take the pictures of your house that I've already got I've got so much shit on him where his brother works aunty works bank cards thanks for the loan kid lol fucking true retard he gets around on a stolen bike but tells you a different story and you believe it like god Laura haven't I taught you anything his clothes putrid his Gucci bag with a shit in it is waiting for him I'II go straight over the top of him in my car lol his a goose lol well t go read my email this is actually pretty funny his a dead‑set chat got nothing going no where and you think his going to support you and the kids fuck me drunk lol.

36 On the other hand, some messages Mr Toull sent to Ms Morton in the previous month were conciliatory, and involved him expressing his love for her, acknowledging his faults, and urging her, plaintively, to have him back. For example, on 12 March 2024, he said this:[8]

I've been so emotional lately Laura braking down etc this has hit me hard girl and I'll get you back I've got tears now just writing this damn I'll win your heart over again well drive safe ok msg me when you can.

37 Further, on 16 March 2024, in the course of an extremely long message, he said, among other things, the following:[9]

Good morning Miss L.J.

So sorry for late/earlier reply. Laura obviously I'll try my hardest to do as you suggested/ask of me which is space, time etc which I've done in the past but I want you just to remember everything you ask of me I do even if I don't want to yeah I think at the end of the day we have a bond that will not or can not be broken by anyone or anything. ...

...

... Just remember all the good times we used to share together when we were young fun funny etc and just loved to explore and actually spend time every second of the day together Laura that's what I miss girl I dead set really miss you Laura ... but just remember I'll go away and work on myself for you & the kids & myself in that order ...

... I'm telling [you] Laura from the bottom of my heart, everything I believe in & or care about, Bloody everything I've ever loved or cherished which is you, the kids, the dogs everything that makes me happy inside and makes me want to change yeah. I'll do as you've wished give you space etc that will be Laura the first step in the right direction ok I'll prove it to [you] Laura ... let my actions be the fuel to my flame Laura that burns for me inside you before it [is] extinguished for good ... your requesting space then that's what I'll give you ok today Laura yesterday was the start of my new chapter on my life girl, Discovering, Admitting my bad behaviour, Discussing My anger issues ...

Well Laura jade M I love you to the moon and back your my light when I'm in darkness ... all the best in the near future I've said and expressed myself in ever way I know possible so where our family goes and how we end up it's up to you ok girl goodbye Laura I'm praying it's only A short goodbye not goodbye forever girl that will kill just talking about goodbye I've started to cry again ... I just wish you're understand the kind of love & compassion I have for you Laura jade well yeah I've said everything I possible can to you Laura my girl my true soul mate so how you take it all and what you do with my emotions, feelings and thoughts is completely up to you girl.

38 Ms Morton responded by saying that this message really hit her and got her crying at work again. She emphasised, however, that she still needed space, and expressed the hope that he would respect that. She signed off by saying: "It's one month until your birthday" and "let's use that as our deadline to decide if we're all in or all out".[10] After exchanging further messages over the next day or so, her response to him was: "Goodnight, I truly love you".[11]

39 Thus, it appears that, at some point between March and May 2024, Mr Toull's hopes of rekindling his relationship with Ms Morton were dashed, and his tone turned from conciliatory to angry with her, and to angrier and aggressive towards Mr Andrew.

40 I turn now to the events in the lead-up to the offending.

41 The dashcam footage from Mr Toull's Hyundai showed that, from about 10:00 p.m. on Sunday 12 May 2024, he drove in and around the vicinity of Kerry Morton's house in Rockaway Drive, Viewbank. This, as I have said, is the address to which Ms Morton, her children, and Mr Andrew had moved recently. At 11:57 p.m., Mr Toull parked in the vicinity of that address for about an hour and 46 minutes.

42 At around 1:30 a.m. on Monday 13 May 2024, Mr Andrew got out of bed and readied himself to leave Kerry Morton's house. CCTV footage shows Ms Morton and her mother standing in the driveway when Mr Andrew left on his Honda.

43 Mr Toull then started his car and began to follow Mr Andrew. Kerry Morton noticed a car that resembled Mr Toull's come past her house at this time.

44 Mr Andrew rode to a 7-Eleven petrol station and refuelled his motorbike. At about 1:44 a.m., Mr Toull drove into the car-park of the 7-Eleven and kept Mr Andrew under observation for a moment. Then he left and eventually parked in a street nearby with his headlights off.

45 When Mr Andrew left the 7-Eleven on his motorbike, Mr Toull followed him in his car at a distance. Once Mr Andrew realised he was being followed, he accelerated to a fast speed in order to evade the following car.

46 Turning to the offence of intentionally causing serious injury, Mr Toull then engaged in a high-speed pursuit of Mr Andrew in an easterly direction along Lower Plenty Road. That road, which becomes Main Road a little further on, is bitumen and is divided by a median strip, with two lanes running in each direction. The applicable speed limit was 70 kph. According to Mr Toull's dashcam, which may not be accurate, he reached speeds in excess of 200 kph.

47 Mr Toull's car closed the distance on Mr Andrew's motorbike as they approached the bridge over the Plenty River. Both decreased their speed as they entered the sweeping left bend in the road that commences just before the bridge.

48 While rounding that bend, and when the car and the motorbike were very close to each other, Mr Toull accelerated, and the front of his car collided with the rear of the motorbike. It is estimated that, at the point of impact, Mr Toull's car was travelling at 160 kph. It is plain (from the dashcam) that the Honda was also travelling at high speed at this point, but, by definition, not quite as fast as the Hyundai.

49 After the impact, Mr Andrew fell from his motorbike and slid along the road before coming to a stop on a nature strip on the left of the road. He sustained injuries amounting to serious injury, which I shall come to in a moment.

50 Mr Toull lost control of his car, which crossed the median strip to his right, became airborne, and landed on its roof in the lanes for traffic heading in the opposite direction, before sliding to a stop upside down on the roadway. Mr Toull was not injured.

51 After getting out of his car, Mr Toull, who was distressed, went over to Mr Andrew, checked on him, and, more than once, asked him if he was okay.[12] Among other things, he said, "You right, cunt? Oi? ... You right?"[13] Mr Andrew noticed that Mr Toull was crying.[14] There is also evidence that they exchanged terse words, and that Mr Toull told Mr Andrew he made him do it.[15]

52 When police arrived, Mr Toull told them, among other things, that he was drag racing with the motorbike rider, and that he lost control, clipped the motorbike, and then flipped his car.[16]

Possession of drug of dependence (methylamphetamine)

53 At some stage after the collision, Mr Toull threw a zip-lock bag into the front yard of the premises at 31 Main Road, which was near where his car had come to rest. A little later, police retrieved the bag. Subsequent testing revealed that the contents of the bag contained a relatively small amount (viz, 1.4 grams) of methylamphetamine. This evidence forms the basis of the charge of possessing a drug of dependence.[17]

54 Mr Andrew was transported by ambulance to the Royal Melbourne Hospital.

55 As a result of the collision, he suffered a pulmonary contusion, a Grade IV liver laceration, a fractured right hip, a spinal (L1) wedge compression fracture, and a significant wound to his left ankle, which required skin grafting.

56 Based on the medical notes, in the opinion of Dr Jason Schreiber, who is a medical practitioner attached to the Victorian Institute of Forensic Medicine, some of the injuries were life threatening.

57 While at the hospital, Mr Andrew's conversation with police was recorded on a body‑worn camera.[18] He said that he had never previously met Mr Toull but knew of him through his new girlfriend, Ms Morton. He said that, a day or two earlier, Mr Toull had chased Ms Morton and him in the car and had driven erratically, and that he had made threats, but Mr Andrew also said he believed there was no issue between them. When asked about the collision, Mr Andrew explained that he noticed Mr Toull when he was at the 7-Eleven store and saw the car registration plate, which bears the name "TOULLY". After he left the 7-Eleven, Mr Toull started chasing him. He reached speeds of up to 200 kph in an attempt to get away. He could see Mr Toull catching up to him. He said he "must have just smacked me straight off".

58 Turning back to the scene of the crash, attending police arrested Mr Toull for reckless conduct endangering life.[19]

59 When formally interviewed, he exercised his right to make no comment.

60 Subsequently, he was charged with several offences, including attempted murder and the offences to which he has pleaded guilty.

61 As indicated earlier, he has remained in custody ever since.

Prescribed illicit drug (methylamphetamine) in blood within three hours of driving

62 One of the additional charges laid by police from the outset was that of having a prescribed illicit drug (methylamphetamine) in his blood within three hours of driving.[20] The necessary blood sample was taken by police after the collision.

63 Next, I note that no victim impact statement was filed by Mr Andrew. Mr Porceddu explained that Mr Andrew, who was then in prison, refused to give evidence at the committal hearing, as a result of which he was imprisoned for contempt. Thereafter, if he had not already done so much earlier, he disengaged with the prosecution.[21] As a result, there is no victim impact statement from Mr Andrew, and no up‑to‑date evidence of the state of his injuries either.

64 I turn now to the nature and gravity of the offence of intentionally causing serious injury, both generally and in this case.

65 The offence carries a heavy maximum penalty of 20 years' imprisonment,[22] but can vary a great deal in its level of gravity. As the description of the offence suggests, it is committed by intentionally causing serious injury to another person.

66 "Serious injury" can range from an injury (or the cumulative effect of more than one injury) that endangers life (whether temporarily or permanently), or is substantial and protracted,[23] to the most catastrophic of injuries rendering a person permanently and gravely disabled.[24]

67 Some of the matters discussed on the plea as possibly going to the nature and objective gravity of Mr Toull's particular offence included the following.

68 First, by his plea of guilty, Mr Toull accepts that he deliberately crashed his car into the rear of the motorbike as both travelled at high speed, intending (meaning) thereby to cause Mr Andrew to fall and sustain serious injury in consequence.

69 Second, Mr Toull's driving and the collision also had the potential of putting other road users at risk. That said, no other vehicles were in the vicinity at that time (as the offence occurred in the early hours of the morning). As a result, no‑one else was actually put at risk.

70 Third, I accept that there was an element of planning in the offence, at least in the sense that Mr Toull intended to follow Mr Andrew from an early stage, as he had lain in wait for him in the hours before the collision. While, as we have seen, in the weeks before the offence, Mr Toull had made various threats or outlandish statements - including, "I'll go straight over the top of him in my car" and, "It's either me or him dead or in jail" - I am not satisfied that these and like remarks he made during that period reflect a plan he had formed back then, and continued to harbour up until the moment of the collision, to commit the offence he actually committed. Rather, while I am satisfied that, when he accelerated in the moment before the collision, Mr Toull intended to knock Mr Andrew off his motorbike and cause him to suffer serious injury, I am not satisfied that he planned to do precisely that until, spontaneously, he accelerated in that way at the last moment. Up until that point, I am satisfied that he was not sure what he was going to do but had merely an ill‑formed intent to scare him.

71 Fourth, I accept that the offence was motivated by Mr Toull's jealousy and anger towards Mr Andrew because of his relationship with Ms Morton. While, in my opinion, the offence is not as grave as the family violence that would have been involved had he directed his violence at Ms Morton, it is still a violent reaction to the end of his relationship with her and the commencement of her relationship with Mr Andrew. As emotionally devastated as he was at the thought of Ms Morton leaving him for Mr Andrew, it was very poor behaviour to take out his jealousy and anger on Mr Andrew by resorting to violence of any kind, let alone as seriously as he did in committing this offence.

72 Fifth, Mr Porceddu also emphasised the evidence that, in the weeks leading up to the offence, via messages, Mr Toull enlisted the help of his children to report on the relationship between Mr Andrew and Ms Morton, and, further, that he expressed to those children and Ms Morton, in the coarsest terms, the ill-feeling he held at that time towards Mr Andrew in particular, but also towards Ms Morton herself. Mr Steward accepted that Mr Toull's language in the messages was vile, and that his comments were disgusting, inappropriate and awful. But he submitted that this behaviour was merely the background to the offending and has nothing to do with the driving itself, and that he is to be sentenced for what he did, not for his views, angst or hatred prior to the offence. I agree, but only up to a point. While this earlier behaviour vis‑à‑vis both Ms Morton and the children is not the same as, say, committing the offence itself in front of the children or Ms Morton or both, which plainly would be aggravating, it was nevertheless aggressive, selfish and vile behaviour that does Mr Toull no credit and places his offending in a darker context.

73 Sixth, as we have seen, the injuries suffered by Mr Andrew were serious, and they amply crossed the threshold of the definition of "serious injury". That said, they were not catastrophic injuries. Nor were they as grave as they might have been, given the nature and speed of the collision. Plainly, Mr Andrew was in a particularly vulnerable position, as any fall from a motorbike at nearly 160 kph is likely to cause at least some injury, even if only bad grazing from sliding along the bitumen (which, as we have seen, he did suffer to his ankle to the point of requiring a skin graft). Further, it can be inferred that Mr Andrew would have been frightened during the commission of the offence and that his injuries, as described, would have caused him at least significant pain and discomfort. However, given the absence of evidence from Mr Andrew (or anyone else, for that matter) as to the state of his injuries now, I am unable to make any finding adverse to Mr Toull as to whether Mr Andrew has been left with any ongoing or permanent discomfort, pain, immobility or disability in his ankle, hip or spine, or any difficulty with, or loss of function in, his liver.

74 Mr Porceddu submitted that these and other factors place the offence well above the middle range of objective seriousness for what is, by its nature, a serious offence. I understood Mr Steward to challenge that submission, although he did not seek to rank the objective gravity of the offence by reference to any classification of the kind employed by Mr Porceddu.

75 While I find it unnecessary to assess the offence according to a taxonomy of low, middle and upper ranges of gravity, or by any other similar type of classification, I am prepared to say that, for the reasons just discussed, it strikes me, objectively, as a serious example of the offence, and an instance involving a significant degree of moral culpability. However, for reasons I shall give a little later concerning Mr Toull's profoundly deprived early life, his moral culpability is not as high as it would have been absent that deprivation.

Possession of a drug of dependence (methylamphetamine)

76 Next, I turn to the nature and gravity of the offence of possessing a drug of dependence (in this case, methylamphetamine).

77 The offence carries a maximum penalty of five years' imprisonment,[25] or one year's imprisonment where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking in that drug of dependence.[26]

78 While no submissions were made on the point, I am satisfied that the offence was not committed by Mr Toull for any purpose related to trafficking in methylamphetamine. On the contrary, given the small amount (1.4 grams) and Mr Toull's admitted and proven drug use on the night, I am satisfied that the drug was possessed for personal use only.

79 This, then, is only a very minor instance of the offence.

Prescribed illicit drug (methylamphetamine) in blood within three hours of driving

80 Finally, I turn to the nature and gravity of Mr Toull's summary offence of having a prescribed illicit drug (here, methylamphetamine) in his blood within three hours of driving.

81 For a first offence, the maximum penalty is a fine of up to twelve penalty units,[27] and the Court is required to cancel any driver licence and disqualify the offender from obtaining a licence for a period of not less than six months.[28]

82 Given that Mr Toull appeared to be drug-affected, the offence is more serious than merely having the drug in his blood without any noticeable effect.

83 I turn now to Mr Toull's personal circumstances, commencing with his family and early life.

84 As Mr Steward remarked in his written submissions at the sentence indication, to say that Mr Toull has had a very difficult early life is an understatement. Actually, to say it's an understatement is itself a vast understatement. For his childhood and youth were marred by profound deprivation and damaging exposure to extreme and brutal violence, and drugs and alcohol.

85 Mr Toull's parents were both heroin addicts and alcoholics. He believes he was born addicted, which is not surprising.

86 He is not certain how many siblings he has, but he believes his mother had several children and that they all went into foster care. He has had no contact with them.

87 Because of his parents' inability to care for him, he lived with his grandparents from the age of two. His grandparents separated when he was eleven, and he lived with his grandfather for the next year or so. Then, when twelve, he came home one day to find his grandfather dead on the couch.

88 Thereafter, Mr Toull lived with an aunt briefly, and was "passed around" other relatives before going into foster care. Ultimately, he was made a ward of the State at the age of thirteen.

89 While in State care, he was subjected to recurrent brutal physical beatings and harsh treatment. He was bastardised, treated inhumanely and bashed to the point of unconsciousness by residential care workers who, of course, were in loco parentis and should have been caring for him. He was even subjected to violence from other residents. Unsurprisingly, he found this deeply traumatising.

90 In his adolescence, Mr Toull's response to the sadness, brutality and upheavals in his life was to try to alleviate their effects through alcohol and drugs.

91 He started drinking at thirteen and, by fourteen, was drinking six cans of beer daily. Some of this alcohol was stolen and given to him by older associates.

92 His social life also involved drugs as an adolescent. For at fourteen, he commenced cannabis use, and eventually began using daily. At the same age, he was diagnosed with ADHD. Absent medical assistance or treatment, he thought that cannabis improved his ADHD symptoms. Notwithstanding he had a cannabis‑induced psychosis when he was aged 20, he continued to use that drug, although there were some periods of abstinence.

93 He experimented with various other drugs, including methylamphetamine (or "ice"), amphetamine, GHB, LSD, DMT, magic mushrooms, and the like.

94 Later in life, he also took prescription drugs for a back injury, including opiates, benzodiazepines, codeine, and oxycodone.

96 He was employed in various unskilled jobs for several years until he began working for a drainage company about six years ago, where he did very well. He received good on‑the‑job training and formed a very strong bond with his team leader, Shaun Smith, who later became his employer when he started up his own business. As we shall see shortly, Mr Smith regards Mr Toull very highly, and has work for him to go to, and more, upon his eventual release.

97 Turning to Mr Toull's criminal history, he has prior convictions for various offences, including theft, burglary, and criminal damage in 2008; public drunkenness, using indecent language in public, and resisting police in 2009; burglary, theft and breaching a community-based order in 2011; refusing a preliminary breath test and driving under the influence of intoxicating liquor in 2011; criminal damage in 2012; and using a carriage service to harass, offensive behaviour in public, and resisting police in 2013.

98 He also has the following prior convictions for offences of violence:

a) In 2008, on charges of intentionally causing injury and damaging property, he was sentenced to 270 days in prison with 183 days suspended. In 2011, upon a breach of the suspended sentence, he was required to serve 87 days of the suspended part of that sentence.

b) In 2012, on charges of recklessly causing serious injury, breaching a family violence order, and assault with a weapon, he received a total effective sentence of 23 months' imprisonment with a non‑parole period of eleven months. Ms Morton was the victim of this offending. His non‑parole period of eleven months was the longest period he has spent in prison.

c) In 2015, on charges of assaulting and resisting police, indecent assault, and using threatening words, he received a total of 120 days' imprisonment combined with a community correction order.

99 His last prior convictions were sustained in 2019. For using a carriage service to menace Ms Morton's mother, he was sentenced to a two‑month recognisance release order, and for acting prejudicially to the good order of a gaol, he was placed on an undertaking to be of good behaviour.

100 As for relationships, Mr Toull has had several, but there has been only one of substance and any duration, and that was with Ms Morton, which commenced when he was only nineteen.

101 As indicated earlier, they have three children together, and he has acted as father to Ms Morton's two children from an earlier relationship.

102 While Mr Toull now accepts that his romantic relationship with Ms Morton is over, he enjoys her ongoing support, and that of their children.

103 His two non-biological children have provided powerful references attesting to his love, affection and skills as a father.

104 Ms Morton also provided a compelling reference, which reads in this way:

I am Brett's former partner of 14 years, and feel I can accurately attest that the nature of this offence is not a true portrayal of [his] character.

Throughout our time together, Brett was the pillar of strength and support to my children and me. Having read my kids' own references and letters of support, I think they speak volumes as to the type of father he is.

I met Brett as a misguided 19-year-old. Through our time together, I watched [him] grow from a disadvantaged youth and a child of the system, into not only a man, but most importantly, a good dad. [He] has a huge heart; he is empathetic and compassionate, a hard worker, a wonderful provider, and a man of his word.

Brett dedicated his entire life to his children and me. He was our family's biggest support; and his love, support and belief in me, gave me courage and taught me strength of character. [He] showed up to every school and sports event and awards, and was always the loudest and proudest parent there, cheering on not only our kids, but all of them. That's the kind of man he is. When my elderly nan was dying and I couldn't handle seeing her like that, Brett was there, feeding her, advocating for her and just providing a comforting presence. If anyone is ever struggling, [he] always shows up.

I know Brett better than I know anybody, and I know that no sentence will ever equal the remorse he will carry for the rest of his life. [He] makes us feel safe, secure and loved beyond doubt, and I hope with time he can learn to forgive himself.

105 Mr Toull is also fortunate to have the generous and well-considered support of his employer Mr Smith and his wife Elizabeth Smith. In his more recent reference, Mr Smith said this:[29]

I am a qualified plumber and run a very successful business with my wife Elizabeth Smith. We have run the business for over three years, working for several water boards across the Victoria region.

I have [known Brett Toull] for over [14 years]. I am aware that [he] has been charged with intentionally causing serious injury. And while I do not condone his actions that led to this charge, I can provide a full and detailed insight into the true character that [he] really is.

Throughout our friendship, which formed through a workplace, I was working at [a civil services company] as a crew leader. When my crew was allocated Brett as a worker, we had a close connection. I really admired his worth ethics, family ethics, and life ethics. Upon our journey together, I grew to understand the long, hard, tough [and] challenging upbringing Brett had to go through. But, in this, I really began to understand how truly dedicated and committed [he] is as a human being.

[Brett] has consistently shown himself to be a loyal and dependable friend and committed work colleague. [He] has always been there for anyone in need. [He] would have to be the most committed family man I have ever met. [His] strength, courage and determination [are] above and beyond anyone I have ever met.

Brett also showed his help and support to the local community. Whether it be at his stepson's football helping as an umpire, or working in our local community and around the public, he always assists and supports in such a great manner.

This incident has completely thrown me, as it is out of character for the man I have known over the 14 years ... . [Since] this event took place, all Brett has done with me is express his deep remorse, and [he] has taken every step possible to better himself while in custody.

I believe in Brett's character and his commitment to make positive changes. I am confident that he will learn from this experience and continue to contribute positively to our community, as he has proven throughout our relationship.

For these reasons, this is why I'd like [formally to] express our intention to offer Brett full-time employment upon his release from custody. After careful consideration with my wife, we believe Brett possesses the skills and character suited. We are committed to supporting his successful reintegration into the community.

Our company ... is prepared to provide Brett with a stable position, accommodation if needed, ongoing training, access to our employee assistance programme, and a supportive work environment. There will also be ongoing and regular drug and alcohol testing done from a third party ... due to the serious nature of the work we perform.

We believe employment is a critical step towards rehabilitation and reducing recidivism, and we are confident that Brett will be a positive and productive member of our team.

106 Turning to the matters in mitigation, Mr Steward urged several, commencing with Mr Toull's pleas of guilty.

107 He submitted that Mr Toull's plea of guilty to intentionally causing serious injury is of significant utilitarian value. I agree.

108 Of course, a plea of guilty also means that the witnesses - including Mr Andrew, Ms Morton, the children, and Mrs Morton - are spared the ordeal of giving evidence at a trial, which is a significant consideration.

109 Further, while such a plea has the benefit for Mr Toull of precluding the possibility of a conviction of attempted murder (although that was never really likely), it also denies him the chance of an acquittal of intentionally causing serious injury and a conviction instead of a less serious offence with a lesser maximum penalty, such as recklessly causing serious injury,[30] negligently causing serious injury,[31] or conduct endangering life.[32] In my view, notwithstanding the evidence of his prior animus and threats he made regarding Mr Andrew, the speeds at which the two of vehicles were travelling, and what can be seen on the dashcam footage, in all the circumstances, including the account he gave police in the immediate aftermath, a jury may well have doubted that, in his drug-addled state, he deliberately crashed into the motorbike or that, even if he did, he meant to cause serious injury. In those circumstances, his plea of guilty to intentionally causing serious injury is of all the more weight in mitigation.

110 While the latter consideration does not apply to his pleas of guilty to possession of methylamphetamine and having methylamphetamine in his blood within three hours of driving, those pleas still have utilitarian value.

111 The second matter in mitigation concerns Mr Toull's genuine remorse for his crimes, particularly the offence of intentionally causing serious injury.

112 Mr Steward submitted that Mr Toull's genuine remorse is evident from a range of sources, including:

a) his reaction at the scene shortly after the collision, which included him being distressed, asking after Mr Andrew's welfare (albeit in a gruff manner), and crying;

b) the references of Ms Morton and Mr Smith; and

c) Mr Toull's letters of apology written to Mr Andrew and to the Court.

113 The letters of apology are, to some extent, couched in the language of accident, as opposed to the language of deliberately crashing into the back of the motorbike and intending to cause Mr Andrew serious injury thereby. However, I accept that, for the purposes of his plea of guilty to intentionally causing serious injury, the letters are to be treated as apologies for behaviour of that kind. In this regard, it must be remembered that the letters were written prior to the sentence indication, when he was still facing a head charge of attempted murder.

114 The letters of apology also reveal an acknowledgment by Mr Toull of the serious injury Mr Andrew suffered, and a recognition of the fear and pain he would have endured. In his letter to Mr Andrew, he also accepts the prospect that his actions could have been deadly.

115 Finally, in his letter to the Court, while Mr Toull addresses matters such as his horrific childhood, how meeting Ms Morton at nineteen and having children changed his life, and how he had committed some other offences in the past, he also writes of how he descended into the offending on this occasion, of how he has let Ms Morton and their children down by this offending, and of how he has used his time in prison to atone for his actions. In particular, he has engaged in self-reflection and treatment programmes to identify and remedy the causes of his negative behaviour, and to improve himself so that he may return to being a responsible member of the community.

116 When combined with his plea of guilty to intentionally causing serious injury and his expressions of remorse to Ms Morton and Mr Smith, these matters only add to my view that Mr Toull's expressed remorse is genuine, and they also add to his prospects of rehabilitation, to which I turn next.

117 So, the third matter in mitigation concerns what I regard as Mr Toull's quite good prospects of rehabilitation.

118 Mr Steward submitted that, in view of several matters, and notwithstanding his criminal history and the nature and gravity of his offending on this occasion, I should be satisfied that Mr Toull has at least reasonable prospects of rehabilitation. Those matters include the following:

a) his genuine remorse and his plea of guilty;

b) the strong supports he has in the community;

c) the positive things said in the references about his character, his qualities as a father, and his community involvement;[33]

d) his work history and the availability of work upon his release; and

e) the fact that he has used his time in custody productively, by doing numerous rehabilitative, self-awareness and employment-related courses during that period.

119 Mr Steward observed that it may be difficult to reconcile the letters of support from his family and his employers with Mr Toull's criminal history and the offending to which he pleads guilty now. He submitted that matters are rarely as simple as they may seem at first blush, and that there is a reason why the references are of such quality. He explained that, put simply, those who have extended love, kindness, support and understanding to Mr Toull have had their endeavours reciprocated by him, often unselfishly and for many years.

120 I accept Mr Steward's submissions in this regard. Indeed, in view of all the material before me, I am satisfied that Mr Toull's prospects of rehabilitation are better than reasonable and instead are quite good.

121 The fourth matter in mitigation concerns the reduced moral culpability for his offending that might be thought to result from Mr Toull's horrific childhood and also its potential connection with his offending.

122 Mr Steward submitted that, given his profoundly deprived and afflicted early life, including exposure to unremitting and extreme violence, and to drug and alcohol abuse, considerations of the kinds discussed in the plurality judgment in Bugmy v The Queen[34] should apply to reduce Mr Toull's moral culpability for this offending.

123 In DPP v Herrmann, in a unanimous judgment of a five-member bench, the Court of Appeal said that the High Court in Bugmy expressed in two different ways the potential relevance of childhood deprivation to an assessment of moral culpability.[35] The Court of Appeal said that the first - more general - expression was as follows:[36]

[40] ... The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

124 The second - more specific - expression, said the Court of Appeal, was in these terms:[37]

[44] ... An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

125 Importantly, said the Court of Appeal, the High Court also said this:

[43] ... The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make‑up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. ...

126 Later in the reasons in Herrmann, and by reference to its earlier decisions, the Court of Appeal favoured the view that, in respect of the "more specific" approach in Bugmy, there must be a nexus between the offender's deprived background and the offending, whereas, in respect of the "more general" approach in Bugmy, the Court made it clear that the relevance of deprivation to sentencing does not depend on proof of such a nexus.[38]

127 As I understood him, Mr Porceddu conceded that the "more general" approach in Bugmy was available to Mr Toull in mitigation.

128 However, he submitted that the "more specific" approach was not available in mitigation because, on the evidence, there was no nexus between Mr Toull's deprived background and the offending. Mr Porceddu also relied on the passage in Herrmann where the Court of Appeal said that "decisions of this Court also reaffirm the need for an appropriate evidentiary foundation before an offender's disadvantaged background can be taken into account".[39] Further, in this regard, as I understood his submission, absent expert evidence (and none was tendered), no such nexus could be found. In his written submission, Mr Porceddu added this:[40]

In the present case, the accused has been in stable and lengthy employment and has been able to be part of a long and significant relationship which involved the care of five children of which two he fathered. This demonstrates a degree of stability in his adult life despite his difficult childhood. It is submitted that there is no evidence, including expert evidence, that assists the court in identifying the nexus between the accused's background and the offending and no opportunity to test any such nexus if one so exists.

129 However, as Mr Steward pointed out on the plea, the Crown took no issue with Mr Toull's "background", by which he meant his early life of profound deprivation and exposure to violence and drugs and alcohol. He also relied on what he had said in his written response, which was that:[41]

it is not a condition precedent to finding a causal nexus between early abuse and depravation and the commission of an offence that a court need to have recourse to expert evidence. ... [The] relevant information is simply a product of the judge's fact-finding exercise [and,] when appropriate, the relevant facts will permit the inference to be drawn just as it should in this matter.

130 I turn to my conclusions. First, like Mr Steward, I did not understand that there was any dispute that, during his formative years, Mr Toull had suffered profound deprivation and was exposed to extreme violence and drug and alcohol abuse (which, on occasions, I shall describe collectively as his childhood deprivation or similar). The information came from Mr Steward on instructions and from Mr Toull's letter of apology to the Court. It was also supported, in part, by the things said in Ms Morton and Mr Smith's references. No objection was taken to any of this evidence or to Mr Steward's relaying of matters on instructions. Thus, as I understood it, the only live question was what inferences might be drawn from the fact that Mr Toull endured formative years of that horrible kind.

131 Second, as the Court remarked in Herrmann, the High Court's recognition that serious childhood deprivation is likely to make an offender less morally culpable than an offender whose formative years were not marred in that way, reflects the principle of equal justice.[42] As the Court also said, by reference to the remarks of Dawson and Gaudron JJ in Postiglione v The Queen,[43] "[e]qual justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them".[44] Further, said the Court:[45]

It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years.

132 I am satisfied that the fact that Mr Toull, in his formative years, was exposed to profound deprivation, unremitting violence and brutality, and drug and alcohol abuse, has damaged him and does mitigate the sentence to be imposed because his moral culpability is less than the culpability of an offender whose formative years have not been marred in that way.

133 Third, I am also satisfied that Mr Toull's childhood deprivation does, at least in part, explain his descent into ice use in the period leading up to the offending, his aggressive messaging during that same period, and his resort to violence at the time of the offence, such that his moral culpability for the inability to control his impulses to do those things is reduced somewhat. In other words, I am satisfied that there is a nexus between the deprivation and the offending.

134 Fourth, if, by referring to Mr Toull's abilities to hold down steady employment for a long period and to be part of a long and significant relationship involving the care of five children, despite his difficult childhood, Mr Porceddu intended to submit that, in consequence, there could be no nexus between his childhood deprivation and his offending, I do not accept that submission. That he has shown the abilities to do those things is to his credit, but it does not alter the fact that his childhood deprivation reduced in him, to some extent, the wherewithal to refrain from resorting to drugs, aggression and actual violence as ways of coping with his devastation and frustration at losing his relationship of fourteen years, and all that went with it.

135 Fifth, and consistent with the High Court's reasoning in Bugmy, I accept that, notwithstanding Mr Toull has prior convictions for violence, it is right to give "full weight" to his deprived childhood background on this occasion as well. This is because the effects of profound childhood deprivation do not diminish with the passage of time.[46]

136 Sixth, however, I do not consider that Mr Toull's makeup resulting from his childhood deprivation increases the importance of protecting the community from him in any meaningful way, if at all. There are at least two reasons. First, this is because the circumstances in which he acted on this occasion were sui generis. To be sure, notwithstanding the content of some of the messages that preceded the offence, I accept that Mr Toull still loves Ms Morton. Plainly, she has been a central figure in his adult life, and, as I have said, to lose his romantic relationship with her, and all that went with it, was devastating for him. However, I also accept, as Mr Steward explained, that he has now moved on and accepts that their relationship is at an end. Thus, the particular circumstances in which he offended are unlikely to arise again. Second, the impressive rehabilitative efforts Mr Toull has made while on remand, and his evident remorse, as well as the fact that it is six years since his last offence, and ten years since he has been imprisoned for offences of violence, satisfy me that he is unlikely to offend in any such serious way again.

137 Seventh, while expert evidence, whether from a psychologist or a psychiatrist or both, if before the Court, might have assisted me in coming to these conclusions, I do not accept that it is necessary to have expert evidence of that kind, or any other, in order to reach such conclusions. Rather, given the nature and extent of Mr Toull's childhood deprivation, it is open, as a matter of judicial experience, life experience and commonsense, to infer that that deprivation helps explain his offending and his lead‑up behaviour on this occasion. After enduring the horrors of his formative years, Mr Toull, at nineteen, found a haven of love and affection in Ms Morton - who, in his words, was "the girl of [his] dreams"[47] - and they started a family. It is reasonable to infer - and, I think, it is plain to see from the numerous messages - that the thought of losing all he had gained with Ms Morton was, in his mind, an exogenous shock to his sensibilities of a catastrophic kind. It is also reasonable to infer that, faced with the loss of that relationship and all that went with it, his profound childhood experiences of deprivation, extreme violence and drug and alcohol abuse help explain his resort to drug‑taking, his abusive and aggressive messages to Ms Morton and the children, and ultimately his serious actual violence towards Mr Andrew, whereas similar behaviour by a person without that history may be harder to explain or even inexplicable.

138 Eighth, that a court may be asked or required to draw inferences of similar kinds, unassisted by expert evidence, is hardly novel. On a daily basis, without expert evidence, judges and magistrates are required to draw inferences and reach conclusions about what may have motivated an offender to offend, about his intention, knowledge or belief at the time, about his propensity or otherwise to offend in that way, about his risk of recidivism, about his prospects of rehabilitation, and so on. The evidence from which those inferences are drawn may include, for example, the offender's background and personal circumstances, the nature of the current offending and its surrounding circumstances, the offender's criminal history (if any), the supports available to the offender in prison and/or when in the community, and so on. All of these issues involve judgments about human behaviour and thinking. The inferences required in respect of Bugmy considerations are of a similar character based on evidence of the same or a similar kind.

139 Finally, none of this means that Mr Toull's moral culpability for the offence of intentionally causing serious injury is reduced to nought. Indeed, his moral culpability still must be significant. Instead, and consistent with the High Court's reasoning, it is simply reasonable to expect that a boy who was exposed to such deprived, violent and drug-and-alcohol-abusing ways would grow up to become a man who might consider resorting to such drug-taking and violence, as Mr Toull has done in the past and did so in a more extreme way in the present case, but without the usual wherewithal to refrain from doing so, which in turn reduces his moral culpability somewhat. That said, overall, I consider the Bugmy considerations to be a significant matter in mitigation.

140 I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation.

141 In my view, general deterrence, denunciation and just punishment are important sentencing purposes in this case. Anyone minded to commit an offence as grave as Mr Toull's offence against Mr Andrew must understand that, usually, just punishment will be meted out by way of a substantial prison sentence upon conviction, and also that the Court roundly denounces such conduct. That said, the weight to be given to those three purposes must be tempered by the reduction in moral culpability that arises from the Bugmy considerations applicable in Mr Toull's case.

142 Given Mr Toull's prior convictions for violence, I think specific deterrence and community protection are of some weight, albeit that weight is reduced to some extent by those same Bugmy considerations, as well as by his plea of guilty and remorse, his quite good prospects of rehabilitation, and the ten years that have passed since his last offences of violence warranting imprisonment.

143 Rehabilitation remains an important purpose in sentencing Mr Toull, for at least two reasons. First, because I am satisfied that his prospects of rehabilitation are quite good, rehabilitation is a sentencing purpose that must be afforded significant weight. Second, it is necessary to recognise the interplay between rehabilitation and protection of the community. Mr Toull will be returning to the community at some point. It is therefore in the community's interests that such prospects of rehabilitation he has be maximised, and that he is not crushed by an unduly long sentence and non‑parole period, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be, and his chances of successful reintegration into society are as strong as they can be.

144 Next, I note that the sentence I shall pass is intended to conform with the principle of parsimony, as it must. This principle, which is reflected in s 5(3) of the Sentencing Act in a modified form, provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

145 I turn now to current sentencing practices for intentionally causing serious injury, in so far as I can determine them. These practices are but one factor in sentencing, and certainly not a controlling one at that, but they are nevertheless important in the sentencing synthesis.

146 In order to gauge those sentencing practices, I have had regard to sentencing statistics and to some case comparisons.

147 Sentencing statistics for the period from 2018-19 to 2022-23 show that head prison sentences for this offence averaged a term of five years and ten months, whereas the median term was five-and-a-half years, as was the mode.[48] These statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations - such as the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether there were significant prior convictions or not, and so on. Nevertheless, they do give some guidance.

148 Case comparisons can also assist in gauging current sentencing practices. Helpfully, Mr Porceddu sought to assist the Court in this regard by providing a table of comparative cases. In those cases, the individual sentences for the offences were, respectively, five, six-and-a-half, seven, eight, nine, nine-and-a-half and eleven years' imprisonment.[49] However, none of those cases struck me as meaningfully similar to the present case. But that is not surprising, as this is, I think, a rather unique case. And, in any event, other sentences are not precedents to be applied or distinguished.

149 Nevertheless, recognising the limitations of sentencing statistics and case comparisons, I am satisfied that the sentence I am about to impose is consistent with those statistics and case comparisons and with current sentencing practices.

Possession of drugs, and having drugs in system within three hours of driving

150 As for current sentencing practices for possessing a drug of dependence and having methylamphetamine in the blood within three hours of driving, I have not been provided with, seen or considered any sentencing statistics or case comparisons for those offences. I have, however, taken into account my perception of current sentencing practices for those offences.

151 I turn now to impose sentence, commencing with the principal offence.

153 Balancing all matters as best I can, I have determined that, for the offence of intentionally causing serious injury to Jake Andrew, Brett Toull is convicted and sentenced to six years' imprisonment with a non‑parole period of three years.

154 The non‑parole period fixed is a bit shorter than usual, both as a proportion of the head sentence and in absolute terms. I consider it necessary to fix this non‑parole period in order to take full account of Mr Toull's plea of guilty, his remorse and his good prospects of rehabilitation, while still recognising the sentencing purposes conducing to a heavier sentence. Further, this non‑parole period is designed to encourage Mr Toull to stay the course on his path towards rehabilitation so that he has the potential for an early release, after which he should receive the supervision of the Adult Parole Board for a substantial period. The ultimate aim and expectation is that this will reduce his chances of recidivism and thereby will protect the community in the longer run.

155 Pursuant to s 18 of the Sentencing Act, I declare that, not including today, 487 days of pre-sentence detention be reckoned as served under this sentence.

156 Putting aside any emergency management days for which he may be credited, the effect of this sentence should be that Mr Toull will be eligible for parole in May 2027 and that his head sentence will expire in May 2030.

157 Pursuant to s 6AAA of the Sentencing Act, I declare that, but for Mr Toull's plea of guilty and the effect it had on other mitigating considerations (such as his remorse and prospects of rehabilitation, and the weight to be accorded to specific deterrence and protection of the community), I would have imposed a sentence in the order of nine years' imprisonment with a non‑parole period of six years.

Possession of a drug of dependence (methylamphetamine)

158 On possession of a drug of dependence (namely, methylamphetamine), Mr Toull is convicted and discharged.[50]

Prescribed illicit drug (methylamphetamine) in blood within three hours of driving

159 On the summary offence of having a prescribed illicit drug in the blood within three hours of driving, Mr Toull is convicted and fined $500.

Driver licence cancellation, suspension and disqualification

160 I must also consider driver licence cancellation, suspension and disqualification.

161 Pursuant to s 28(1)(a) of the Road Safety Act 1986 (Vic) ("the RSA"), because Mr Toull committed the offence of intentionally causing serious injury in connection with the driving of a motor vehicle, and because he was driving at about 160 kph at that time, which is in excess of the speed limit (of 70 kph) by at least 45 kph, his licence must be cancelled, and for at least a year, he must be suspended from driving and disqualified from obtaining another licence.[51]

162 Balancing all matters, pursuant to s 28(1)(a) of the RSA, Mr Toull's driver licence is cancelled, and, for 20 months, he is suspended from driving and disqualified from obtaining another driver licence.

163 Given the nature of his driving and the high speed when committing the offence of intentionally causing serious injury, if I had the power to backdate the disqualification period, I would have ordered three years' disqualification from the time Mr Toull went into custody. If so, the period of disqualification would not have exceeded his non‑parole period.[52] This, I consider, would have been appropriate, because it is likely that he will need his driver licence for work purposes and attending parole appointments when he is released, and his prospects of employment, and his related prospects of rehabilitation, should not be hampered by an unnecessary ineligibility to drive a vehicle. Hence my selection of a disqualification period of 20 months, which should expire around the time he is eligible for parole.

164 In saying this, however, I recognise that it is, of course, a matter for the Adult Parole Board as to whether, and, if so, when, Mr Toull is released on parole. That said, if his current progress continues, it would be surprising if he were not released on parole at the earliest opportunity.

165 Further, pursuant to s 50(1E)(a) of the RSA, on the summary driving offence, the Court is required to cancel any driver licence and disqualify Mr Toull from obtaining another licence for a period of not less than six months.[53]

166 Balancing all matters, including his level of drug-affectedness when driving, on the summary offence, pursuant to s 50(1E)(a) of the RSA, Mr Toull's driver licence is cancelled, and he is disqualified from obtaining another driver licence for nine months.

167 For the avoidance of doubt, I make clear that the nine-month period of disqualification ordered under s 50(1E)(a) is to run concurrently with the 20‑month period of disqualification ordered under s 28(1)(a).

168 Finally, I make the disposal order sought by the Crown, to which there was no objection.

[1] Contrary to s 321M of the Crimes Act 1958 (Vic) and the common law.

[2] Contrary to s 16 of the Crimes Act 1958 (Vic).

[3] As to the law concerning sentence indications, see ss 207-209 of the Criminal Procedure Act 2009 (Vic).

[4] Contrary to s 73 of the Drugs, Poisons & Controlled Substances Act 1980 (Vic).

[5] Contrary to s 49(1)(i) of the Road Safety Act 1986 (Vic).

[6] There was some confusion in my mind as to whether Mr Toull and Ms Morton had three or two children together, and that she had two or three children from a previous relationship. In his letter of apology to the Court, Mr Toull indicated that he and Ms Morton had three children together, and that she had two from a previous relationship. On the other hand, when I sought clarification on the plea, I was told by counsel that "two are his [biologically] and three are not" (Plea, T 55). I apologise to those concerned if I have erred in this regard in the body of these reasons.

[12] See, e.g., the committal evidence of Senior Constable Andon Krstevski (Depositions, p 8281.15-18); Senior Constable Kate Griffiths (Depositions, p 8289.26-8290.9); Senior Constable Sean Fay (Depositions, pp 8923.7-10 & 8924.25-26); Constable Emily Dimech (Depositions, pp 8927.13-25 & 8299.8-11); and Constable David Laurie (Depositions, pp 8303.7-24 & 8305.29-31).

[13] See the transcript of the triple-zero call made by nearby resident (and nurse) Sahijbir Singh, where Mr Toull is recorded as saying to Mr Andrew, "You right, cunt? Oi? ... You right?" (Depositions, p 234).

[14] See the transcript of the body-worn camera footage of Senior Constable Andon Krstevski (Depositions, p 329).

[15] See, e.g., the transcript of the body-worn camera footage of Senior Constable Andon Krstevski and his committal evidence (Depositions, pp 295, 8281.19-28 & 8283.19-8284.3).

[16] See, e.g., the committal evidence of Senior Constable Kate Griffiths (Depositions, pp 89[8] & 8288.20-‍25); see also Senior Constable Andon Krstevski (Depositions, pp 84[5] & 8276.29-8277.1).

[17] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1980 (Vic).

[18] See the transcript of the body-worn camera footage of Senior Constable Kate Griffiths (Depositions, pp 375-404).

[19] Contrary to s 22 of the Crimes Act 1958 (Vic).

[20] Contrary to s 49(1)(i) of the Road Safety Act 1986 (Vic).

[21] I was also told by Mr Steward, without demur from Mr Porceddu, that Mr Andrew discharged himself from hospital after three nights, albeit against medical advice.

[22] See s 16 of the Crimes Act 1958 (Vic).

[23] See the definitions of "serious injury", "physical injury" and "injury" in s 15 of the Crimes Act 1958 (Vic).

[24] As for injuries in the latter category, see, e.g., DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457 at 461[17]-[18]; and R v Ali [2010] VSCA 182 at [13] & [58].

[25] See s 73(1)(c) of the Drugs, Poisons & Controlled Substances Act 1980 (Vic).

[26] See s 73(1)(b) of the Drugs, Poisons & Controlled Substances Act 1980 (Vic).

[27] See s 49(3AAA)(a) of the Road Safety Act 1986 (Vic). In the case of a second offence, the maximum penalty is a fine of not more than 60 penalty units; and, in the case of any other subsequent offence, the maximum penalty is a fine of not more than 120 penalty units (see s 49(3AAA)(b) and (c)).

[28] See s 50(1E)(a) of the Road Safety Act 1986 (Vic). In the case of a subsequent offence, the period of mandatory disqualification is not less than twelve months (see s 50(1E)(b)).

[29] Reference of Shaun Smith (dated 14 July 2025). As I did with Ms Morton's reference, I have edited Mr Smith's reference in parts without altering its meaning.

[30] Contrary to s 17 of the Crimes Act 1958 (Vic) (the offence carries a maximum penalty of fifteen years' imprisonment).

[31] Contrary to s 24 of the Crimes Act 1958 (Vic) (the offence carries a maximum penalty of ten years' imprisonment).

[32] Contrary to s 22 of the Crimes Act 1958 (Vic) (the offence carries a maximum penalty of ten years' imprisonment).

[33] Section 6 of the Sentencing Act 1991 (Vic) provides that, "[in] determining the character of an offender a court may consider (among other things) ... (a) the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of the offender; and (b) the general reputation of the offender; and (c) any significant contributions made by the offender to the community".

[34] Bugmy v The Queen (2013) 249 CLR 571.

[35] DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110 at 118[36]-119[37] (per Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).

[36] Bugmy v The Queen (2013) 249 CLR 571 at 594[40] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[37] Bugmy v The Queen (2013) 249 CLR 571 at 595[44].

[38] DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110 at 120[41]-121[44].

[39] DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110 at 121[44].

[40] Sentencing Submissions (Prosecution) (25 August 2025) at [32].

[41] Defence Response to Prosecution Sentencing Submissions (27 August 2025) at [25]-[26].

[42] DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110 at 121[45].

[43] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 301.

[44] DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110 at 121[46].

[45] DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110 at 121[46].

[46] Bugmy v The Queen (2013) 249 CLR 571 at 594[43]-595[44].

[47] See Mr Toull's letter of apology to the Court.

[48] Sentencing Advisory Council, Sentencing Snapshot 288: Intentionally Causing Serious Injury; Sentencing trends in the higher courts of Victoria 2018-19 to 2022-23, p 4.

[49] Cases to which Mr Porceddu referred included Pasinis v The Queen [2014] VSCA 97 (5 years), and those in his table were: Giudice v The King [2023] VSCA 105 (6½ years); Dhal v The King [2023] VSCA 289 (11 years); Cedic v The Queen [2011] VSCA 258 (7 years); Nawrozi v The Queen [2012] VSCA 272 (8 years); Portelli v The Queen [2015] VSCA 159 (9½ years); and Heaney v The Queen [2009] VSCA 74 (9 years). See also, e.g., DPP v Kelly [2016] VCC 1556 (5¼ years); and DPP v Corless [2019] VCC 501 (7 years).

[50] Pursuant to s 73 of the Sentencing Act 1991 (Vic).

[51] Section 89A of the Sentencing Act 1991 (Vic) also gives this Court the discretion to interfere with Mr Toull's driver licence. However, given the orders I am about to make in respect of Mr Toull's driver licence under the Road Safety Act 1986 (Vic) provisions (which have mandatory components), I consider it unnecessary to make any order under s 89A.

[52] Putting aside the possible effect on his sentence of any emergency management days.

[53] See s 50(1E)(a) of the Road Safety Act 1986 (Vic). In the case of a subsequent offence, the period of mandatory disqualification is not less than twelve months (see s 50(1E)(b)).