Director of Public Prosecutions v Mitchell

[2024] VCC 505

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01676

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYSON MITCHELL

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	MILDURA
DATE OF HEARING:	8 April 2024
DATE OF SENTENCE:	16 April 2024
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2024] VCC 505

REASONS FOR SENTENCE
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Subject:Causing injury intentionally – Recklessly causing serious injury

Catchwords:              Guilty plea – domestic violence – young Aboriginal offender – sentencing conversation - childhood deprivation – intellectual disability – relevant criminal history – risk of prisonisation

Legislation Cited:      

Cases Cited:Marrah v The Queen [2014] VSCA 119; Pasinis v The Queen [2014] BCA 97; Shau v The Queen [2020] VSCA 252; Carter (a pseudonym) v The Queen [2018] 272 A Crim R 170; DPP v Worboyes [2020] VSCA 169; R v Doran [2005] VSCA 271; Bugmy v R (2013) 249 CLR 571; R v Verdins & Ors [2007] VSCA 102; Muldrock v The Queen [2011] 244 CLR 120; Honeysett v The Queen (2018) 56 VR 375; DPP v Heyfron [2019] VSCA 130; R v Steelie Morgan [2010] VSCA 14; Mill v The Queen (1988) 166 CLR 59; Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2021] VSCA 37; Nicholas Pasinis v R [2014] VSCA 97; Wati Marrah v R [2014] VSCA 119; Didier Lam Kee Shau v R [2020] VSCA 252; Darcy Edward-Hayes v R [2022] VSCA 76; DPP v Gregory Reynolds (a pseudonym) [2022] VSCA 265.

Sentence:                  Total effective sentence of three years and three months imprisonment – minimum non-parole period of two years.

S 6AAA total effective sentence of four years and six months non-parole period of three years and three months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. O’Doherty	Office of Public Prosecutions
For the Accused	Mr V Vuu	Ms E Metcalfe

HIS HONOUR:

1Tyson Mitchell, you have pleaded guilty to:

(a)   one charge of intentionally cause injury; and

(b)   one charge of recklessly cause serious injury.

Circumstances of offending

2The circumstances of your offending are set out in the summary of prosecution opening for plea.[1]  They are agreed facts.

[1] Summary of Prosecution Opening for Plea (Exhibit A).

3On 10 May 2023, you were travelling in a car with your partner, Kayla Johnson, in Mildura.  She had driven you to a bottle shop where you had purchased cans of Jack Daniels bourbon whiskey.

4In the car, you argued with her and, as she was driving through a roundabout, you punched her to her face.  When she pulled over you struck her in the face with a can of Jack Daniels.  You then took the car keys from the ignition and hit her to the face and head with them.

5Ms Johnson used her hands to try to protect herself.  She was crying and bleeding.

6You got out of the car.  She drove herself to Mildura Hospital.

7You had caused her a 2 cm laceration over her left eyebrow, which required stitches, a black eye and marks and swelling to her hands.  She stayed in hospital overnight.

8The blows you struck and the injuries you caused constitute Charge 1, intentionally cause injury.

9On 20 May 2023, when you were with her at her cousin’s home at Mildura, you were arguing with her in a bedroom.  You went to the kitchen where you picked up a knife and returned to the bedroom.  You had taken Ms Johnson’s phone from her.  When she tried to get it back you stabbed her once to the left side of her ribs.  You then hit her with your right hand to her gut area.  She fell to the ground.

10You called your grandmother.  You told her you had stabbed Ms Johnson and asked your grandmother to come to the house to take Ms Johnson to hospital.

11Your grandmother picked the two of you up and drove to Mildura Hospital where Ms Johnson got out of the car and went inside.

12She had significant blood in her lung cavity and, while doctors were treating her, she had a life-threatening seizure which they treated with fluid resuscitation and blood transfusion.

131600 mL of blood was drained from her chest.

14On 21 May 2023, Ms Johnson was moved to the Alfred Hospital, where she had surgery to clear blood clots in her lung and wash out her chest cavity.  There was no damage to the lung itself.  It is likely a damaged blood vessel in her chest wall caused the extensive bleeding.

15Police arrested you on 26 May 2023.

16When they questioned you about the stabbing, after initially denying any involvement, you admitted you had stabbed her with a knife during an argument.

17You said it was unexpected and 'happened so quick'.

18You said you were on the 'juice', which I understand is slang for GHB, and that you had been using ice for a couple of days.

19Police charged you with a number of offences.  You were remanded in custody.

20On 22 September 2023, before a committal hearing, you pleaded guilty to the charges now before the court.

Criminal record

21You have admitted an extensive criminal record.

22You appeared in the Children’s Court a number of times.

23In 2014, 2015 and 2017 for property, dishonesty, driving and drug offences, you received sentences of probation and youth supervision.

24In May 2017, for offences including affray and burglary, and, in August 2017, for offences including attempted aggravated carjacking and carjacking, you were sentenced to youth detention.

25In Mildura Magistrates' Court on 4 September 2019, you were sentenced to an 18- month community correction order for offences including aggravated burglary.  You subsequently breached the order by reoffending.

26On 2 October 2020, for offences of aggravated burglary and sentencing for the community corrections order offences, you were sentenced to six months imprisonment.

27On 9 July 2021, for attempted carjacking, you were sentenced to 214 days imprisonment with a 12-month community corrections order.

Personal circumstances

28You were born in August 2000.  You are a Barkanji man.  You were 22 years old when you committed these offences.  You are now 23.

29You were born at Parkville Youth Justice precinct where your mother was a detainee.  You were removed from her soon after birth.

30You have never known your father.

31Your grandparents raised you.  From a young age you were exposed to family violence, substance use and criminal activity.

32At the age of eight, you started running away.  When you were 12, you were placed in residential care. [2]

[2] Report of Dr N Zimmermann dated 23 February 2017 (Exhibit 3).

33You have an intellectual disability.

34You struggled at school and left during year seven.

35In 2017, Dr Nina Zimmerman, an experienced forensic psychiatrist, assessed you at Malmsbury Youth Justice Centre.  You had a history of self-harm while in custody in 2014, 2015 and 2016.  You were being managed with sedating antipsychotic medication.

36She noted, when were at school, you were 'unpredictable, very aggressive, inattentive and frightening for other students'.

37To Dr Zimmerman, you presented as 'depressed, frustrated and hypervigilant', which, in her opinion, was consistent with your childhood experience of complex trauma, which included being removed from your mother at birth, rejection by your father and separation from your grandparents, whom you love.

38As Dr Zimmerman wrote, '[a]dded to these personal experiences of trauma and grief is the less easily identified secondary trauma associated with colonisation of Aboriginal land that can pass in an intergenerational fashion'. [3]

[3] Ibid, page 9 at [C]. C

39Laura Scott, neuropsychologist, assessed you in 2020, while you were on remand in prison.[4]

[4] Report of Ms Laura Scott dated 14 April 2020 (Exhibit 4).

40She assessed you full-scale IQ at 48.  Your memory performance was weak and your reading and language abilities were poor.  You are essentially illiterate.

41In her opinion, you are 'able to understand right and wrong when there are clear, tangible outcomes to action. For example, [you are] able to understand stealing is wrong because [you] can directly observe the emotional distress caused.' However, you have 'significant difficulty appreciating impacts of [your] actions which are less tangible' [5].

[5] Ibid, p 15.

42You were facing court for dishonesty offences committed in company with others.

43In this context she wrote, 'Mr Mitchell’s neuropsychological impairments due to moderate intellectual disability were likely to have been significant contributors to his offending by both direct and indirect mechanisms.  Mr Mitchell’s severely impacted executive functioning, mental inflexibility and very reduced information-processing capacity undermine his ability to consider his actions from different perspectives and to consider the potential harms of his actions'.

44In her opinion these problems placed you at increased risk of offending, particularly in relation to crimes of deception such as theft and robbery. [6]

[6] Ibid.

45Danielle Kocic, Psychologist, assessed you more recently, in March 2024 [7].

[7] Report of Ms Daniella Kocic dated 20 March 2024 (Exhibit 2).

46You told her, you were living with your grandparents during your relationship with Ms Jackson.

47You told her, you used methamphetamine and GHB with Ms Johnson.  You said you often did not go home due to your drug use because you were afraid you might 'hurt a family member'.

48You said, on each occasion you attacked Ms Johnson, you were substance affected.  You said you got angry with her because you believed she was cheating on you.

49You said, after you stabbed her, you started crying and did not know what to do so you called your grandmother.  You said you did not go into the hospital with
Ms Johnson because you were afraid police would lock you up again.

50You told Ms Kocic you regret what you did.

51In her opinion, while your substance abuse, which will have disinhibited you, contributed to your offending, your intellectual disability and 'psychosocial adversity', with your associated deficits in self-inhibition, and self-control, also played a 'significant underlying role'. [8]

[8] Ibid, at [135] and [139].

52Using the HRC–20 V3 Assessment Tool, Ms Kocic considered you to be a high risk of future violence unless your mental health is treated, and you stop using drugs.

53In her opinion, because of your mental health profile, you are vulnerable to conflict within the volatile prison environment and 'significantly more' susceptible to exploitation by other inmates.

54She considers imprisonment would likely weigh more heavily on you than an individual without your conditions.

55You have spent most of your remand at Port Phillip Prison.  You were bullied there and put into a protection unit for your safety.

56In January 2024, you attempted suicide.

57You are being managed with antidepressant and antianxiety medication and methadone.

58About a month ago, as a reward for good behaviour, you were transferred to an open prison at Hopkins Correctional Centre.  There, you have your own cell, you have work in the woodwork factory, and you are participating in regular counselling sessions.

Sentencing conversation

59You participated in a sentencing conversation in Koori Court with an Elder, Uncle Mark Bland.

60Uncle Mark knows your family and you.  He knew you had a history of offending from a young age, but believed you had been quiet for a time.  He wanted to know why you had committed these crimes.

61You said you had met Ms Johnson, who is 14 years older than you, in Broken Hill, and the relationship was not easy.

62You said the two of you were using ice together and she also introduced you to 'juice' (GHB).

63You said you had not been violent towards her, or any other partner, before.

64You said, when you assaulted her, you are angry because she was cheating on you with your cousin.

65You said you are sorry for what you had done.

66Your grandparents, one of your sisters and an auntie and uncle supported you at court.

67As your grandfather said, 'drugs are no good'.

68Your auntie and uncle live at Robinvale.  When you are released from prison, they will have you live with them and will arrange work for you on a nearby fruit block.  Your Auntie said you are a good worker and there are Elders who can take you out bush to help you connect with your culture.

Defence submissions

69Your counsel, Mr Vuu, sought to characterise your offending as moderately serious.

70In mitigation of penalty, he relied on:

(a)   your guilty plea;

(b)   your remorse;

(c)   your childhood deprivation, to moderate your moral culpability;

(d)   your intellectual disability, to moderate your moral culpability and the need for general deterrence;

(e)   the additional burden of prison for you because of your intellectual disability;

(f)    your participation in Koori Court; and

(g)   your relative youth.

71He submitted a composite sentence of a term equivalent to your presentence detention of nearly seven months, with a community corrections order tailored to address the factors which contributed to your offending, would suitably moderate general deterrence and give appropriate weight to mitigatory factors.

Prosecution submissions

72Mr O’Doherty, who appeared for the prosecution, submitted the seriousness of your offending demands the imposition of a prison term with a non-parole period fixed.

Consideration

73Your crimes are very serious.

74Twice, under the influence of drugs, you vented your anger, believing your partner was unfaithful, with unacceptable violence.

75On 10 May 2023, you subjected your former partner to a violent and terrifying ordeal in her car.  She needed medical treatment for the injuries you inflicted.

76Ten days later, you attacked her with a weapon causing her a serious injury which was life-threatening.

77As your partner, she was entitled to feel safe in your company.

78You breached her trust and caused her physical and, no doubt, emotional harm.  You had no right to do so.[9]

[9] Marrah v The Queen [2014] VSCA 119, [25].

79I accept your actions were spontaneous and not premeditated.  Nevertheless, it seems, before you attacked your partner, you had some insight into the connection between your drug use and your aggression.

80Neither episode of violence was protracted.  I accept you had not been violent towards her previously.

81While your attacks will have been terrifying for her, the level of violence you perpetrated was less extreme than in the worst cases.

82It would seem, with appropriate medical care, Ms Johnson will have made a good recovery from her physical injuries, without any long-term consequences.

83Overall, I assess the objective gravity of your crimes to be slightly below midrange.

84In order to protect victims of family violence, the court must impose punishment that denounces your conduct and adequately addresses general deterrence. [10]

[10] Pasinis v The Queen [2014] BCA 97, [53] and [57]; Shau v The Queen [2020] VSCA 252, [47].

85It is clear from a number of Court of Appeal decisions the sentence for which your counsel contends is wholly outside the permissible sentencing range.

86Relevantly, I refer to Nicholas Pasinis v R [2014] VSCA 97, Wati Marrah v R [2014] VSCA 119, Didier Lam Kee Shau v R [2020] VSCA 252, Darcy Edward-Hayes v R [2022] VSCA 76 and DPP v Gregory Reynolds (a pseudonym) [2022] VSCA 265.

87Considering the seriousness of your offending, only a prison term, with non-parole period fixed, can achieve all sentencing objectives in your case.

88There are mitigating factors which I take into account to moderate your sentence.

89Firstly, you are entitled to a demonstrable sentencing benefit for your early guilty plea, which has high utilitarian value, because your partner and her relatives have been spared the anxiety of a trial[11] and, additionally, when you entered your guilty plea, it alleviated the strain on the justice system.[12]

[11] Carter (a pseudonym) v The Queen [2018] 272 A Crim R 170.

[12] DPP v Worboyes [2020] VSCA 169.

90Secondly, I accept your guilty plea shows your acceptance of responsibility for your actions and remorse.

91Because proof of Charge 1 relies on an acceptance of Ms Johnson’s account, your guilty plea to that charge has greater utilitarian value, and attracts the Doran discount. [13]

[13] R v Doran [2005] VSCA 271.

92Thirdly, your childhood deprivation and intellectual disability are relevant in sentencing you.

93I accept, because of your intellectual disability and childhood disadvantage you have poor self-inhibition and self-control, which contributed to your offending.

94It follows, because of your intellectual disability and childhood disadvantage, your moral culpability is reduced.[14]

[14] Bugmyv R (2013) 249 CLR 571, [40] in the general sense and [44], in the specific sense.

95I also accept, because of your intellectual disability, reduced weight to be given to general deterrence.[15]

[15] R v Verdins & Ors [2007] VSCA 102;  Muldrock v The Queen [2011] 244 CLR 120, [53] and [54].

96I accept, your intellectual disability and other psychiatric conditions impair your ability to regulate your emotions, causing you undue stress.  It follows prison will be harder for you than prisoners without your conditions.

97Fourthly, you are entitled to a sentencing benefit for your participation in Koori Court.[16]

[16] Honeysett v The Queen (2018) 56 VR 375; DPP v Heyfron [2019] VSCA 130; R v Steelie Morgan [2010] VSCA 14, [33]-[40].

98You are to be given credit for allowing yourself to be challenged by an Elder, for taking responsibility for your actions and not 'hiding behind' your barrister in court.

99Fifthly, you are still a relatively young man.  I am mindful to impose a sentence which promotes your rehabilitation.[17]

[17]Mill v The Queen (1988) 166 CLR 59; Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2021] VSCA 372.

100It is clear, unless your mental health is managed and you stop using drugs, you are a high risk of reoffending.

101Nevertheless, there are protective factors for your rehabilitation.

102Despite your extensive criminal history, these are your first crimes of family violence.

103In gaol, you are in enforced drug remission.  You have earned a trusted position in an open prison and are productively using your time to advance your reformation.

104You have family support.

105On your release, you will have a home, with your auntie and uncle, and you will have the opportunity for work nearby and cultural reconnection.

106The maximum penalty for each of the offences, 10 years imprisonment for causing injury intentionally, and 15 years imprisonment for causing serious injury recklessly, is a yardstick to measure the sentences I should impose upon you.

107Because you are to be sentenced for more than one offence, I will make a cumulation order to ensure your sentence properly reflects your overall criminality, in accordance with the totality principle.

108I must also impose the least severe sentence necessary to achieve the purposes of sentencing.

109Mr Mitchell, by the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

110Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

(a)   On Charge 1, intentionally cause injury, you are sentenced to one year and three months imprisonment; and

(b)   On Charge 2, recklessly cause serious injury, you are sentenced to three years imprisonment.

111This is your base sentence.

112I direct three months of your sentence on Charge 1 be served cumulatively upon your base sentence.

113Your total effective sentence is three years and three months imprisonment.

114To mitigate your punishment and promote your rehabilitation, I fix a minimum period of two years before you are eligible for parole.

115You have been in custody since your arrest on 26 May 2023.

116On 23 September 23, at Mildura Magistrates' Court, for property offences, which you committed before the current offending, you were sentenced to 120 days imprisonment.  The time you have served since the expiration of that sentence counts as presentence detention, which I declare is 207 days.

117While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to four years and six months imprisonment and fixed a minimum non-parole period of three years.

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