Director of Public Prosecutions v Gilbert

[2016] VCC 1815

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR 16-01066

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENT GILBERT

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Bendigo
DATE OF HEARING:	24 November 2016
DATE OF SENTENCE:	9 December 2016
CASE MAY BE CITED AS:	DPP v Gilbert
MEDIUM NEUTRAL CITATION:	[2016] VCC 1815

REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – intentionally causing serious injury – unprovoked knife attack on woman in her home – use of knives as weapons – serious example of offending for intentionally causing serious injury – term of imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	John Cain, Solicitor for Public Prosecutions
For the Offender	Mr R. Kelly (Plea) Mr L. Docherty (Sentence)	Stuthridge Legal

HER HONOUR: 

1Brent Gilbert, you have pleaded guilty to one charge of intentionally cause serious injury to Rebecca Mulchay on 11 September 2015 at Bendigo.  This charge is serious and that is reflected in the maximum penalty that is prescribed by law and that is 20 years' imprisonment.

2You come before the court as a person with no prior criminal history.

3I shall now proceed to sentence you on the basis of the summary of the prosecution opening that was read by Mr Cordy at the plea hearing and a copy of which document was tendered at the hearing.

4Your counsel, Mr Kelly, did not dispute the facts as set out in the Crown opening.

5Briefly, the victim, Rebecca Mulchay, is a person who is known to you.  She has two children, Lachlan aged seven and Shelby aged five.  Their father, Leigh Blogg, is a friend of yours.

6On 10 September 2015 you visited Ms Mulchay's home.  At some stage a target was drawn on the pantry door in the kitchen at which knives were thrown. During the evening Mr Blogg went to bed and fell asleep. At some stage you began to ask for drugs.   

7Eventually you and Ms Mulchay drove to a BP service station where you withdrew some money.  You then returned home in the early hours of 11 September 2015.  Ms Mulchay then tried unsuccessfully to purchase some cannabis.

8Mr Blogg woke up and had an argument with Ms Mulchay as a result of which he left the house.

9Sometime later you attacked Ms Mulchay with knives.  Ms Mulchay gave an account of that attack according to her memory.  The prosecution does not say her memory of how the attack was carried out is a perfect one.  Her recollection is that you were agitated and started pacing around the house, asking her if she had any valium.  She asked you to leave and opened her front door.  You walked outside and then as you were at the threshold of the doorway you struck her with a knife to the face and body.  She then remembers going from where she was near the front door to a neighbour's house, where she sought help.

10Photographs taken of the inside of Ms Mulchay's home show blood throughout the house.  A pool of blood was found in the kitchen and some blood was found smeared on the internal wall near the front door.  When police attended they located the broken handle of a knife inside the front door, the blade of a knife broken from its handle in the lounge room and a bent blade of a knife in a pool of blood in the kitchen.

11Steven Fowler, forensic scientist, provided an opinion as to how the blood in the areas that were found may have been deposited.  His evidence is that there was a pool of blood in the kitchen near a broken dog's bowl and the bent blade of a knife.  The blood on the kitchen floor itself was diluted.  He considered that there was an altercation in the kitchen and a heavily bloodstained person, namely Ms Mulchay, smeared the internal wall near the front door with blood.

12When the neighbours were alerted an ambulance was requested and police attended.

13You left your victim and went home.  You woke up your wife, Joanne, around 5.30 am.  You told her, "I need to speak to you, I think I've just killed someone".  She saw what appeared to be blood on your clothing.  You told her that you had been at Mr Blogg's house and that "the crazy bitch went off her head at Leigh and he took off".  She kept going and said something about hurting her kids and then she came at you with a knife, so you had to defend yourself.

14You also said that you had the kids, being the two children, pulling your hair and the dogs were biting you and in the end you had her or got her in a strangle hold and she was still trying to stab you.

15You then said that after Ms Mulchay had been stabbed that you put her in a strangle hold and that she passed out and Ms Mulchay later asked you to let her go and you replied by saying words along the lines of, "You've got a big hole in your head".

16Expert medical evidence was obtained from Dr Moller from the Victorian Institute of Forensic Medicine, as to the nature and cause of Ms Mulchay's injuries.  The injuries included at least six sharp force injuries to her face, four of which required stitches, at least four sharp force injuries to her back and these resulted in penetrating the lung bases and the tissues of the back which required exploration under general anaesthetic, damage to the left thumb, including the artery, nerve and ligament which required plastic surgery, compressive trauma to the neck, including a red mark which was likely caused by a flexible narrow object such as string, and a wound to the right arm.

17Dr Muller's view is that the damage to the thumb and right arm could be classified as defensive injuries.

18Mr Gilbert, by your actions you inflicted potentially life threatening injuries upon Ms Mulchay, that is you seriously injured her. The prosecution says that you caused serious injury to her, that you did so with knives, and that you intended to cause serious injury and that is what has happened.

19The incident was witnessed by Ms Mulchay's five year old daughter, Shelby.  Shelby provided a video recorded statement to the police about the statement in the morning of the incident.  I have viewed that video audio recorded statement provided by that young girl.

20Attempts were made by police to record a statement from the son, Lachlan, however he is autistic and those attempts were not successful.

21Shelby described the person who stabbed her mother with two knives as being the "bad guy".  She said the bad guy had a big knife and a little one.  She said she went into the kitchen and said, "What are you doing with my mum?"   She was aware that her mother had been stabbed in the back and on the hand.  She said that the bad guy also squeezed her and then ran away.

22During the interview Shelby is shown demonstrating how the knives were used, holding each hand, moving them, and gesticulating with her arms up and down in front of her body.

23Your offending has had a profound effect on the victim, Rebecca Mulchay, and her two children.

24In her victim impact statement Rebecca Mulchay sets out in graphic detail those effects.  She suffers emotionally, experiences flashbacks and nightmares, she ruminates about how your actions robbed her children of their childhood and worries about the fact that she could have died in front of her children. It causes her great upset that that would have been their last memory of their mother.  She was suicidal for a time and physically it has been very difficult for her because of ongoing impairment of her lung function caused through the stab wounds.  She has severe migraines, memory loss and back spasms.

25The offending was very disruptive to her life.  She had to move homes following her discharge from hospital.  She could not bear the thought of going back to the place where she was seriously injured and has had to start all over again.  She has replaced all her personal items.  She is having medical treatment for anxiety and panic attacks and finds being in public difficult.  She is fearful and hypervigilant about the prospect of you hurting her further.  She has difficulties with trust issues and has problems being able to manage day‑to‑day as a consequence.

26In the victim impact statement she prepared on behalf of her children Ms Mulchay says that both of them have had their childhood robbed of them following that night.  She describes her son as being a totally different boy.  Both children have to have medication to sleep.  Her son experiences nightmares, constantly washes his hands because he thinks his mother's blood is soaked on to his skin.  He often ruminates about his mother running out of blood.  He has flashbacks and reacts hysterically to the sight of blood or any type of violence.  He has regressed at school.  His separation anxiety is marked and he remains very protective of his mother. The impact of your offending has been exacerbated because of his autism.

27Her daughter is also experiencing behavioural issues. She has difficulty coping with males and she too ruminates about what happened and talks constantly about it. Her daughter wrongly thought that her mother had died for about a week.  She suffers from night terrors. Both children show additional signs of social anxiety and have suffered as a consequence of being exposed to something that no child should ever have to see.  Their issues are ongoing.

28On 12 September 2015 you were arrested and interviewed.  During that interview you were asked if you knew anything about the stabbing and you told police that you had stabbed Ms Mulchay.  When asked how and why you said, "Because I felt like it, because I wanted to".  You told police that you had stabbed her in the head and you were not sure about anywhere else.

29When asked, "Do you recall how many times you stabbed her?" you said, "A few times".  You said you stabbed her in the kitchen and you thought the blade had broken.  You went on to say that you followed her around at first and then "you were in a mingle around the table and that's where it started".  When asked why you followed her around you said, "Because I'd gone loopy".  You confirmed that Ms Mulchay "came down in the end".

30When questioned by the police whether Ms Mulchay had said anything to upset you, you replied saying she had a knife in her hand and you thought she was going to kill the kids and that she would kill you and you "fucking went for her".  The police officer then said to you, "All right, so tell me about it?"   And you said, "Probably not kill the kids, but I'm not mucking around".

31At the plea hearing Mr Kelly explained that the offending occurred at the time when you were seeking treatment for your anxiety condition.  Four days before the incident you were assessed by Dr Mona Hasabella, consultant psychiatrist.  In a letter she confirms that she assessed you on 7 September 2015 at which time you were complaining about feeling anxious at all times, frustrated and angry without a particular trigger.  You had headaches and you were feeling physically unwell.  You complained of panic attacks every hour.

32Her assessment of your mental state was that there was no evidence of any abnormal beliefs or perceptual experiences, you were orientated to time, place and person.  Her general impression that your presentation was most likely in keeping with a diagnosis of Autism Spectrum Disorder (ASD). 

33She said your anxiety symptoms and difficulties controlling your temper appeared to be directly linked to that, rather than a separate co‑morbidity, but further assessment was required to establish a diagnosis.  She asked that you monitor your anxiety symptoms and record them for her to be reviewed.

34You were informed that your presentation required further assessment and there would be no changes suggested to your medication until a better understanding of your symptoms was obtained.

35In response to that advice you found it difficult to manage your emotions, you appeared disappointed and frustrated and expressed dissatisfaction that after such a long wait to see a specialist there was to be no change in your medication.  You requested that Olanzapine be added to your current medications as you found that helpful in the past.

36After much effort and reassurance it was explained that it was imperative that your condition be properly assessed so as to reach the most appropriate diagnosis and suggested suitable treatment.  You managed to calm down slowly and agreed to engage with the process.

37On 11 September 2015, on the same day as the offending, a letter was written from a clinical psychologist with Bendigo Health to your doctor confirming that due to an escalation in your risk which was beyond the capacity of primary mental health your care was being transferred to Bendigo Adult Community Mental Health team. 

38In this setting, where you were anxious and did not receive the medication that you wanted for your condition, you started using cannabis.  You state that your reason for going to Ms Mulchay's house was to obtain some cannabis because you had been successful in obtaining it from her a week earlier.  That explains your presence at the house on the night and early morning of this offending.

39It is still the case, however, that you have never provided a proper explanation as to why it was that you undertook this offending or what was your motive for this serious offending.

40Mr Kelly told the court his instructions were that an argument had ensued between yourself and the victim when you told her you would be going home.  You assert that the victim had a knife in her hand and she lunged towards you and she grabbed the knife from you.  You tripped over and you ended up on the floor.  The victim was face up and you were above her.  There was more struggling.  Two knives were involved and you stabbed her.

41As discussed in the plea hearing I reject this as being a plausible explanation for your behaviour.  It is not consistent with the evidence of the wounds sustained by Ms Mulchay and, in particular, the defensive wounds she suffered to her left hand and right elbow and the penetrating stab wounds to her back.

42Further, there is no evidence that you received any medical treatment that night in respect to any injuries you may have suffered.

43I accept the observations made by Ms Mulchay's young daughter Shelby as to what happened and I reject your explanation.

Gravity of offending

44Mr Gilbert, in sentencing you I have had regard to the gravity of the offending.  I consider that this is an instance of this type of offending that is towards the upper end of the range of seriousness for this type of very serious offence.

45This was a vicious, sustained and cowardly attack on a woman who suffered serious injuries.  Your actions are simply inexplicable.  I reject any suggestion of provocation on the part of the victim or that you were acting in self‑defence or in defence of another.  You stabbed the victim multiple times using knives when she was in her own home in a place where she was entitled to feel safe and secure.  You inflicted severe and potentially life threatening injuries and left the victim bleeding profusely in an obviously injured condition.  The whole event was terrifying for the victim and must have been also terrifying for her vulnerable young son and daughter.

46Fortunately for you the victim and her young daughter were able to secure the support of the neighbours who quickly contacted 000 and the police.  It is only by good fortune that Ms Mulchay did not die as a consequence of your actions.

47Mr Kelly specifically disavowed any reliance on the Verdins' principles so as to moderate your moral culpability.

48Whilst I accept that you are a person who has had a long‑standing diagnosis of Autism Spectrum Disorder and that you were anxious at around the time of the offending, I do not consider that there is any realistic connection or causal link between this offending and your condition, so that concession is sound.

49I consider your moral culpability to be high.

50In sentencing you there is a need to emphasise both general and specific deterrence and the protection of the community.  I accept that you do not have any history of any violent offences and that this incident appears to be an aberration on your behalf.  Nonetheless, having regard to the gravity of the offending and my assessment of the seriousness of it, I consider that condign punishment is necessary and that a substantial term of imprisonment is warranted.

51I have had regard to your background and history.  I note you are now 35.  You were 34 at the time of the offending.  You are the eldest of four boys.  You were born in Melbourne, raised in Bendigo.  Your parents are alive and remain supportive of you. 

52You have limited formal education.  You left part way through Year 8 at Flora Hills Secondary College.  You repeated Year 7 because it is said that you were rebellious and you truanted a great deal and you were a poor student and thereafter you attended TAFE where you have undertaken a number of courses.

53You worked two years at a Chinese takeaway as a cook and then a year working on a fruit orchard as a farm hand and apple packer in Heathcote.

54You last worked in 2003 and prior to your remand you were on the disability support pension due to your anxiety condition.

55You have a history of cannabis abuse starting when you were 15.  You were a heavy daily user.  You smoked the drug until you were about 27.  You ceased regular use after you were admitted to a local psychiatric unit with a drug‑induced psychosis.  Since then you have used occasionally when it has been offered and there is a short history also of heroin use, although that ceased at an early age.

56You are married to Joanne, with whom I have a daughter, Hayley, aged three and a half, and you have a stepson, Ashley, aged seven.  Your wife remains supportive of you.

57Prior to your incarceration you were involved in your daughter's daily care.

58You do not suffer any significant medical issues, but I have already noted the diagnosis of Autism Spectrum Disorder.  You have a history of psychiatric treatment at John Bomford Centre, Bendigo.  You have a long‑term doctor, Dr McAlpine, who has treated you for your anxiety with prescribed medication.

59Since you have been in custody your condition has stabilised and you are described as being currently settled.  You have had extensive occupational therapy, psychology and psychiatric attendances whilst in prison.  You are now on Olanzapine, an antipsychotic, Paroxetine and Propenol, anti‑anxiety medications.

60Whilst in prison you have undertaken courses in occupational health and safety, food and hygiene, managing emotions, stress management and managing anxiety.

61In mitigation Mr Kelly relied heavily upon your plea of guilty and submitted that it was entered at a reasonably early stage.  You were initially charged with attempted murder and the matter went through a fully contested committal.  The victim was cross‑examined.  You were committed for trial on 7 May 2016.  The matter then proceeded in the Supreme Court but was ultimately remitted to the County Court following a decision by the prosecution not to proceed with the attempted murder charge.

62On 12 August 2016 the matter resolved to a plea of guilty to the one charge of intentionally causing serious injury and you were arraigned and pleaded guilty at that time.

63I accept the submission that you entered your plea at a reasonably early stage and that there is utility in your plea.  You have spared the State the expense and inconvenience of a trial and, importantly, you have spared the victim, Ms Mulchay, from the further trauma of having to come to court to give evidence on your trial.  You have facilitated justice and in the circumstances your sentence will be discounted accordingly.

64Insofar as remorse is concerned, I am unable to find that there is any real evidence of genuine remorse on your behalf.

65In terms of your rehabilitation prospects, I remain somewhat guarded.  However, you have demonstrated that you can utilise your time in custody productively, so ultimately there is some prospect for your future rehabilitation prospects.

66I accept you suffer from an Autism Spectrum Disorder and the difficulties that are outlined in the report of Ming-Yun Hsieh, the neuropsychologist who assessed you following your remand.  Her report dated 22 August 2016 sets out her assessment, although she urged cautious interpretation of her findings given the practical limitations she had in implementing these tasks whilst you were in custody.

67She did not consider you have an intellectual disability.  She says you have relative cognitive strengths, basic attention, verbal comprehension and perceptual reasoning skills, as well as encoding storage and retention of learnt information.

68Nonetheless, her report is important and she makes recommendations concerning the possibility of you benefiting from being referred to Disability Prison Services, to coordinate and assess your eligibility to receive disability related support.  She says you do have some cognitive difficulties which are likely reflected in your high level of anxiety and she has made a number of recommendations to support your needs whilst in prison and thereafter when you are released into the community.

69That report will be referred to the appropriate authorities to assist them in your future supervision and future treatment.

70I have taken into account her findings and accept that as a consequence of your condition prison will be more difficult because of the problems highlighted.

71I was also provided a report from Mr Warren Simmonds, consultant psychologist, and in his report he was unable to draw any significant conclusions concerning the motivation for your offending.  He did highlight the fact that you have no prior criminal history and the current matter for which you have been charged was quite atypical and did not reflect your overall history.  His report is of limited utility given it was prepared in the context of a bail application.  He, nonetheless, recommended a referral back to a local community mental health service upon your release.

72Mr Kelly, on your behalf, accepted that a substantial term of imprisonment was warranted.  He urged the court to fix a non‑parole period that would enable your release back into the community in a supported fashion so as to foster your rehabilitation.

73Mr Cordy submitted that the offending is right at the upper end of the scale of seriousness for this sort of offending and highlighted the objective features of the offending which have already been canvassed in these remarks.

74I agree that this matter does represent offending at the upper end of seriousness for this type of offence and the sentence to be imposed reflects that finding.

75I have taken into account in mitigation on your behalf your plea of guilty, the stage at which it was entered, and your lack of prior criminal history.  That is an important consideration having regard to the fact that you lived 34 years of your life with a diagnosis of Autism Spectrum Disorder and an anxiety condition and you have never been in trouble before.

76However, this is a very alarming and concerning case involving, as it does, an unprovoked, vicious, sustained and cowardly attack with knives upon a vulnerable woman in the presence of her two children in her own home.

77It is important that the sentence reflects just punishment and on behalf of the community I must condemn your behaviour.  What you did on this occasion was wrong.  The objective gravity of your conduct calls for a sentence that adequately denounces your behaviour and deters this type of crime and provides for community protection.

78The formal court orders are:

79In respect to the charge of intentionally causing serious injury, you will be convicted and sentenced to ten years' imprisonment and I fix a non‑parole period of seven years.

80I make a declaration of pre‑sentence detention of 455 days and direct that that be entered into the records of the court.

81I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991.  But for your plea of guilty I would have imposed a term of imprisonment of 13 years to serve nine years and I make the disposal order sought.

82I think that covers everything.

83MR CORDY:  There was the 464 order as well, Your Honour. 

84HER HONOUR:  Sorry, the 464ZF. 

85MR CORDY:  Yes.

86HER HONOUR:  Was there an application made here? 

87MR CORDY:  Yes, I believe it was handed up.

88HIS HONOUR:  I'll just have a look.

89MR CORDY:  I can certainly provide ‑ ‑ ‑ 

90HER HONOUR:  I don't have that material.

91MR CORDY:  I'll hand up the ‑ ‑ ‑ 

92HER HONOUR:  I will give you the disposal order I have signed.  Is the 464ZF order opposed or consented to, Mr Docherty? 

93MR DOCHERTY:  If I may just seek some very brief instructions, Your Honour? 

94HER HONOUR:  Yes.  Was it a retention one? 

95MR CORDY:  I beg your pardon, Your Honour.

96HER HONOUR:  I believe there was some comment made at the time of the plea hearing that you had already provided ‑ ‑ ‑ 

97MR CORDY:  Yes, I beg your pardon, Your Honour, I think that's right.

98HER HONOUR:  Yes.  There is no order necessary.

99MR CORDY:  No, no order necessary, it's automatic.  I apologise for that confusion, Your Honour.

100HER HONOUR:  Mr Docherty, I think the prosecutor was a bit confused with another matter.  There has already been a sample provided.

101MR DOCHERTY:  Yes.

102HER HONOUR:  And he is already on the register, so there is no further orders necessary.  So that concludes the sentence.  Mr Gilbert can be taken.

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