Director of Public Prosecutions v Mitchell

[2023] VCC 2019

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02078

DIRECTOR OF PUBLIC PROSECUTIONS

v

TODD MITCHELL

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2023
DATE OF SENTENCE:	2 November 2023
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2023] VCC 2019

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – guilty plea

Catchwords:              Sentencing – home invasion – causing injury intentionally – theft of motor vehicle – 27 years old at time of offending – on community correction order at time of offending – moderate to high moral culpability – relevant criminal history involving violence – did not cause serious injury – did not have a firearm – anxiety and complex post-traumatic stress disorder – substance abuse disorder – mild reduction in moral culpability based on impaired mental functioning – mild reduction in moral culpability based on adverse upbringing and circumstances – guarded prospects of rehabilitation – require significant support and supervision upon release – plea has utilitarian value due to COVID

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Verdins v R (2007) 16 VR 269; Bugmy v R (2013) 249 CLR 571; Anthony v R [2016] VSCA 22; Kelynack v R [2013] VSCA 303; Hull v R [2019] VSCA 243; Kakoschke v R [2020] VSCA 182; Kiezenberg v R [2017] VSCA 235; Akoka v R [2017] VSCA 214

Sentence:Total effective sentence 5 years 11 months imprisonment with a non-parole period of 2 years 11 months; 481 days reckoned as already served; 6AAA: 6 years 8 months imprisonment with a non-parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	S. Davison	Office of Public Prosecutions
For Mitchell	S. Collins	Martin Middleton Oates

HIS HONOUR:

1Todd Mitchell, on indictment C2215510.1, you have pleaded guilty to home invasion, causing injury intentionally and thefts of motor vehicles, all occurring on 4 July 2022.

Summary of offending

2The agreed basis for your guilty plea is set out in the prosecution opening dated 12 October 2023.

3In summary, in the couple of years leading up to the offences, one Aaron Hunt, and his friend Paul Smith purchased a vehicle to ‘fix up’. They had a falling-out over the vehicle and the money spent on it. Smith began badmouthing and threatening Hunt.

4On 4 July 2022 at about 9:20 pm, you, Smith, Adam Taylor and two unknown men gathered at a house on Mabel Avenue in Mildura, which was the address of Luke Healey’s partner at the time. You, Smith, and Healey discussed recovering the purported debt of some $5,000 owed by Hunt to Smith. You and Healey wore different jumpers to conceal your identities. Healey gave Taylor a clown mask to wear as a disguise.

5At about 10:10 pm that night, you, Smith and Healey arrived by car at Hunt’s address on Wilga Avenue. Taylor arrived a couple minutes later in another vehicle.

6You, Smith and Healey approached the locked front door, believing Hunt to be inside. Smith kicked the door open and the three of you entered. Seeing Hunt inside, you all ran towards him and assaulted him (Charge 1 – Home Invasion). You and Healey were wearing face masks. Smith was not because he knew Hunt, and Hunt knew him. Taylor, who arrived later than you three, was wearing the clown mask he had been given.

7You, Smith and Healey then began punching Hunt to his head and face, while demanding his keys, money and phone (Charge 2 – causing injury intentionally).

8One of you grabbed a baseball bat and hit Hunt over the head several times. You grabbed a fishing knife, and Healey a ‘cap gun’. Smith picked up a claw hammer and threatened to hurt Hunt while you all searched for items to steal. You held a knife at Hunt and demanded money.

9One of you took Hunt’s phone and wallet containing his bank key card and driver licence from him.

10You all moved through the house taking various household items including a computer, a gaming console, a tablet, cash, a hunting kit, clothes, a speaker, a printer, a memorial candle and four sets of car keys.

11At about 10:25 pm, Smith loaded items into a blue Holden belonging to Hunt, which was parked in the driveway.

12You continued to threaten Hunt with the knife and demanded that he assist you to steal cars from his back yard. You and Healey obtained a battery from the shed and managed to get a black Holden, started.

13Smith drove away in the blue Holden (Charge 5: theft), and you and Healey drove away ultimately in the black Holden (Charge 6: theft).

14As a result of the incident, Hunt suffered numerous injuries including a bloody nose, cuts to his eye, significant bruising to both eyes and substantial pain. He has not provided a victim impact statement. However, I take into account that your offending would have been terrifying and that the experience is likely to stay with him for the long term.

Procedural history

15Police arrested Taylor on 8 July 2022 and questioned him.

16The next day, 9 July 2022, police arrested and interviewed you and Healey separately. You have remained in custody since then.

17You were committed on the matter without contest and without cross‑examining any witnesses on 9 November 2022.

18You settled the matter on 15 June 2023 following a case conference in this court.

19Your plea shows that you accept responsibility for what you did, and that you have facilitated the course of justice. Your settling of the case has a real benefit not only for all involved, who have been spared the burden of a trial, but also the cost to the community as a whole.

20This is more significant at this time because of the COVID pandemic, which has created a backlog of cases and your plea means the Court can allocate resources to relieve the pressure on those who are still awaiting trials. I will reduce your sentence for this reason in a way that makes that clear.[1]

[1] Worboyes v The Queen [2021] VSCA 169, [35]-[39].

Personal circumstances

21At the time of the offending in 2022, you were 27 years old.

22You were raised in Launceston, Tasmania by your parents who separated when you were two years old. You have seven younger half-siblings, some on your mother’s side, some on your father’s.

23Your parents had problems with substance use. Your father was violent towards your mother and after separation, she re-partnered. You moved to Queensland with them when you were about six. Your stepfather also became violent, including towards you. This contributed to your development of anxiety since then.

24You attended several primary and secondary schools. Your strongest subjects were English, maths and home economics, and you played junior Rugby League. However, you were bullied about your weight and often for being the new kid. Nevertheless, you finished Year 10.

25When you were 15 however, conflict with your stepfather drove you to leave home and you were homeless in Toowoomba for about three years.

26Consultant Psychologist Ian Mackinnon assessed you and provided a report dated 2 October 2023 (Exhibit 1).

27He notes your experiences of insecure parental attachments, parental rejection, abuse at the hands of your stepfather, bullying suffered at school, exposure to violence and other criminality. He stated that it all contributed to you developing Complex Post Traumatic Stress Disorder. You suffered from fears of personal abandonment and rejection, which was not helped by the frequent change of schools.

28You told him you started smoking and drinking when you were 12 or 13 years old. By 14 you started smoking cannabis and by 17 you started using ice and MDMA (or ecstasy). Since then, you have abused a number of drugs including heroin, benzodiazepines and GHB.

29Mr Mackinnon opined that you initially started using because it helped you feel accepted. Over time, it became your go-to method of managing and escaping from chronic distress, and you became highly dependent on opiates and ice.

30When you were around 20 years old, you moved back to Victoria and since have lived in Mildura, working in kitchens. You started a relationship with Tegan Taylor when you were 23 and you have a daughter Harper, who was born in 2018, who is now five years old. Things were good for a while, and you looked after Harper while doing apprentice chef work.

31During this stable period in your life, your mother and stepfather also moved to Mildura. In 2021, however, this stability was disrupted when your mother called on you to revive your stepfather who had overdosed on heroin. In the same period, your mother suffered two heart attacks and almost died. Your grandfather, with whom you were close, died in 2022.  All these had a significant effect on your mental health, and you relapsed into drug use. Your relationship with Ms Taylor broke down and you became homeless again. Since your remand, your mother has had another heart attack.

32Throughout all this, you have retained a close relationship with your mother and, naturally, you are concerned about her health. I accept that adds to the stress of being in custody. Upon your release, you hope to spend time with her and your daughter, who lives with her mother in Geelong. You currently enjoy video contact with them from prison.

33You mother Peta Chambers, your grandmother Sue Parsell, and your ex‑partner Tegan Taylor have all provided references about you (Exhibit 4). They confirm the hard times you had growing up, including your lack of a good male role model, other than your grandfather. Your ex‑partner describes you as a good father to your daughter.

34Your criminal history reveals that in 2018 you were imprisoned for causing injury and placed on a Community Correction Order for burglary, theft and related offences. In 2020, you were convicted for an affray and assault. In 2021, you were again convicted of affray, along with breaching a family violence intervention order and using a controlled weapon. In 2022, you were convicted of trafficking cannabis and placed on another CCO, which you breached with the offending now before this court.

35This history tends to confirm that when faced with significant life stressors, you did relapse into self-sabotage, polysubstance abuse, and associated crime, sometimes involving violence. Mr Mackinnon stated that these tendencies appear entrenched to a degree, although you currently seem determined to overcome your challenges.

36You have been productive with your time in custody, working in the kitchen where you are now one of the head cooks. Your ex-boss, Cooper Stonehouse, wrote that he would have you back working for him in bricklaying, upon your release (Exhibit 3).

37You have completed about 15 education programs over the last 15 months in custody, including traffic management, first aid, courses for personal development and alcohol and drug awareness (Exhibit 2). You also train and keep fit.

38You have not ignored the offending that has put you in prison. You have spent time to write an apology to the victim, which I accept were your own sentiments (Exhibit 5).

39Prior to your arrest, in 2021-2022, you engaged in counselling with Sunraysia Community Health Service for your anxiety, depression, PTSD, separation disorder and mood swings. You are currently prescribed antidepressants and methadone. Prison medical staff are supervising your commencement on Sublocade injections as an opiate replacement therapy.

40In September 2023, Mr Mackinnon found you to suffer with complex PTSD and substance abuse disorder, both of which he said made major contributions to your offending.

41You told him that in the lead up to these offences on 4 July 2022, you were abusing ice, cannabis, GHB and prescription medications daily and had not slept properly for weeks. You told him you cannot remember what happened on the night very well.

42Mr Mackinnon states that your ability to make reasoned judgements and think about the consequences of your actions was thereby eroded. Your sense of personal and moral responsibility was also reduced.

Sentencing issues

43The maximum penalty for home invasion is 25 years' imprisonment. For intentionally causing injury, it is 10 years. For theft, it is 10 years on each charge.

44Home invasion is a category 2 offence under the Sentencing Act 1991, requiring me to impose a term of imprisonment unless certain exceptions apply, and you have not suggested that they do.

45Home invasion attracts a high maximum penalty, consistent with its seriousness. Violently breaking into a person's home, in company, late at night, knowing they would be there, intending to confront him and intent on taking valuable items from him under threat is terrifying. Doing so breaches a fundamental value in our community – we are all entitled to be and feel safe in our own homes.

46Your offences are made more serious because you were on a CCO at the time.

47Your counsel submitted that you were not the ringleader in the incident. However, you have admitted that you were a participant in the discussion with the others when the plan to collect on the debt in the way you did was hatched. You wielded a knife at Mr Hunt in an assault in company, which can only be described as a low and cowardly act. True, you did not cause serious injury, and you did not have a firearm, which would have made the situation worse.

48I regard your moral culpability to be moderate to high in all the circumstances.

49I accept the opinions of Mr Mackinnon about your mental state and the time and since. Your complex PTSD affected your ability to reason and make good decisions. But you have demonstrated an ability to get on top of this in the past and your actions on this day displayed a willingness and ability to engage in a degree of planning and carrying out a plan to attack Mr Hunt. I find that the reduction in moral culpability based on your impaired mental functioning to be mild.[2] I do not reduce your culpability because of your drug use.

[2] Verdins v R (2007) 16 VR 269

50I accept the account you gave of your early years and that you were candid and open with Mr Mackinnon.  That account is confirmed by the evidence of your mother and grandmother. Your upbringing and cognitive development were far from stable. Your parents and stepfather did not do well. On balance, I find that their own problems with mental health, drug use and violence have had a lasting effect on you, including by leading to complex PTSD. I accept that this is not something that simply passes with time and that it will take concerted efforts by you to deal with. I find this to be relevant generally to your moral culpability and should lead to a mild to moderate reduction in your sentence.[3]

[3] Bugmy v R (2013) 249 CLR 571

51I have reduced the weight to be given to deterring others by sentencing you and deterring you by way of a more lengthy imprisonment, according to that.

52I find your prospects for rehabilitation to be guarded-to-reasonable. You have worked hard in custody and demonstrated that the stability you enjoyed at some stages in Mildura is not beyond you. Your intelligence is intact. However, I find that your drug problem is significant and that this will require hard work with significant support and supervision to overcome.

53I accept that you are sorry for what you did, and that demonstrates some insight, particularly enough insight to know that just saying sorry will not be enough.

54The prosecutor submitted that a term of imprisonment attracting a parole period was necessary in your case. Your counsel accepted this and submitted a relatively short non-parole period would be appropriate.

55Your counsel referred me to the cases of Anthony, Kelynack, Hull, Kakoschke, Kiezenberg and Akoka as being comparable and therefore relevant as indicating current sentencing practice.[4] The prosecutor did not dispute their relevance in this way.

[4] Anthony v R [2016] VSCA 22; Kelynack v R [2013] VSCA 303; Hull v R [2019] VSCA 243; Kakoschke v R [2020] VSCA 182; Kiezenberg v R [2017] VSCA 235; Akoka v R [2017] VSCA 214

56I note, however, that these were all aggravated burglary cases, not home invasions. Kelynack’s sentence was reduced on parity grounds alone, from a sentence of 5 years 6 months. The only ground of appeal in Hull was parity and leave was refused. Kiezenberg was originally sentenced to 5 years 6 months, which the Court of Appeal found to be well within range and only reduced it on grounds of parity. Akoka’s sentences were reduced due to time spent in residential drug treatment. Each of these cases have limitations in their relevance to this case. Of course, they do not bind me in coming to an appropriate sentence, as I will, based on the individual facts of this case.

57I sentence you as follows:

(a)   On Charge 1, home invasion – 4 years 3 months;

(b)   On Charge 2, intentionally causing injury – 1 year 10 months;

(c)   On Charge 5, theft of a motor vehicle – 6 months; and

(d)   On Charge 6, theft of a motor vehicle – 8 months.

58Seven months of the sentence on Charge 2 and 3 months of the sentence on Charge 6 are to be served cumulatively upon each other and the sentence on Charge 1.

59The total effective sentence is 5 years 1 month.

60I fix a non-parole period of 2 years 11 months.

61I declare that you have served and 481 days and direct that this be reckoned as a period already served under this sentence.

62In accordance with s 6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed 6 years 8 months and fixed a non-parole period of 4 years.

Ancillary orders

63I grant the application for disposal, unopposed, of the knife you used.

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