Director of Public Prosecutions v Mitchell

[2023] VCC 1807

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00401

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE MITCHELL

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2023
DATE OF SENTENCE:	6 October 2023
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2023] VCC 1807

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentence.

Catchwords:              Plea of guilty – Aggravated burglary – Assault – Contravene Family Violence Intervention Order – Commit an indictable offence whilst on bail – Aboriginal offender – Dysfunctional childDoughty and adolescence – Bugmy –Significant history of drug use – Intellectual disability – Verdins – Relevant and lengthy criminal history – Prospects of rehabilitation guarded – General and specific deterrence – Denunciation – Community protection.

Legislation Cited:      Crimes Act 1958, s 77; Family Violence Protection Act 2008, s 123; Bail Act 1977, s 30B; Sentencing Act 1991, ss 6AAA, 18.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions v Herrmann [2021] VSCA 160.

Sentence:                  Imprisonment for a period of 3 years and 9 months with a non-parole period of 2 years and 6 months.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Ellwood	Office of Public Prosecutions
For the Accused	Mr P Bloemen	David Barrese & Associates

HIS HONOUR:

Introduction

1Shane Mitchell, you have pleaded guilty to:

(a) one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment (Charge 1); and

(b)   one charge of assault, contrary to common law, which carries a maximum penalty of 5 years imprisonment (Charge 2).

2You have also pleaded guilty to the related summary offences of:

(a) contravene Family Violence Intervention Order, contrary to s 123(2) of the Family Violence Protection Act 2008, which carries a maximum penalty of 2 years imprisonment (Summary Charge 4); and

(b) commit indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment (Summary Charge 11).

3You have also admitted your Criminal Record.

Circumstances of the offending

4You were born in 1984 and were 38 years old at the time of this offending. You were living in Carlton but spending time at the home of Marissa Young[1] in Collingwood. You had been in a relationship with Ms Young for about three years. On four occasions during this period, you had been the respondent in family violence intervention orders where Ms Young was named as the protected person. At the time of these events, you were subject to a limited intervention order protecting her.

[1]A pseudonym.

5At approximately 7.30 pm on 20 June 2022, you and Ms Young went to the home of Jeanette Doughty[2], a 56-year-old woman who was living in Richmond. Ms Doughty was regarded in her community as an ‘aunty’ to both you and Ms Young.

[2]A pseudonym.

6After entering the house, you became aggressive and threatening. You argued with Ms Young about your relationship. You demanded that Ms Young leave the house with you. You were shouting, ‘move it out the front now you dog’. Ms Doughty told you to leave the house. You continued yelling abuse at Ms Young including calling her a ‘fucking dog’ and threatening to drag her out by her hair.

7You then moved into the kitchen and took up a large knife from a drawer. You held the knife to your own neck and began to threaten self-harm while demanding Ms Young leave with you. Ms Young and Ms Doughty were in fear of your actions.

8Ms Doughty repeatedly told you to leave the house. You refused, insisting Ms Young leave with you. She refused.  

9You agreed to leave on the basis that Ms Young went with you. You put the knife down. As you moved towards the front door, Ms Young followed, pretending she was also going to leave.

10As soon as you were through the front door, Ms Doughty closed and locked it, leaving you outside. You began banging on the front door attempting to smash it open and yelling.

11Within a few seconds, you had smashed open the front door causing the lock to break away from it and fall onto the passageway floor. You then entered the house. (Charge 1 – Aggravated Burglary)

12You approached Ms Young, pushing past Ms Doughty and began to assault her, repeatedly punching her with two fists. She fell to the floor into a foetal position in an attempt to protect herself. You positioned your knees into Ms Young’s back and held her down. (Charge 2 – Common assault)

13You then grabbed Ms Young by the hair and began to drag her out of the house. She tried to hold onto the door frame but was unsuccessful. You got her out of the house and continued to abuse her.

14You and Ms Young then left on bicycles, with the intention of returning to Ms Young’s address. Before arriving, you were intercepted by police and were placed under arrest.

15When interviewed, you claimed that there had been no violent incident between yourself and Ms Young.

16Your contact with Ms Young on this evening constituted a breach of an intervention order. (Summary Charge 4 – Breach of Family Violence Intervention Order)

17You were on police bail from 15 June 2022, to appear on 8 September 2022 in respect of charges of contravening a Family Violence Intervention Order. The present offending occurred only five days after you were placed on police bail. (Summary Charge 11 – Commit indictable offence while on bail)

Nature and gravity of the offending

18Aggravated burglary is an inherently serious offence, reflected in the maximum penalty set by Parliament, being 25 years imprisonment.

19In assessing the gravity of your offending, it is necessary to consider the circumstances leading up to the offending where you, by your conduct created a tense and frighting situation. Having first entered the house with Ms Young, you became violent and threatening, culminating in you holding the knife to your throat. As a result of your conduct, you were asked to leave, and Ms Young had to lure you out before she closed the door leaving you outside. What then followed was a violent entry to the house by you kicking the door in and entering with the intention to assault. Having entered the house you then assaulted Ms Young in the way described above.

20While there was no victim impact statement tendered it is self-evident that this would have been a terrifying experience for both Ms Young and Ms Doughty who were simply attempting to protect themselves from you.

21The seriousness of your offending is heightened as you were subject to an intervention order at the time, which was designed to protect Ms Young. You were also on bail.

22While your offending was spontaneous and committed while under the influence of drugs, in my view, your conduct represents relatively serious examples of the offences on the indictment.

Personal circumstances

23You are now 39 years of age. You are an Aboriginal man – your father, Frank, was a Wamba-Wamba man and passed away in 2022. Your mother, Wendy, was a Yorta Yorta and Nguangar woman. She passed away when you were only six years old from issues stemming from alcohol dependency. You are one of eight siblings and still maintain a relationship with your youngest sister, Charmaine, who lives in Swan Hill. Many of your relatives reside in the Murray River area in north-eastern Victoria and you have indicated that post-release, you would like to return to Swan Hill to re-establish your connections to family and country.

24You were born in Deniliquin, NSW and grew up there with your maternal grandmother. You later relocated to Echuca with your maternal grandmother, and remained there until your mid-20s. Your mother had significant substance use difficulties and the family home was filled with extended family, including an uncle who would often have friends in the house who would use drugs and alcohol. It was in such a context that you were introduced to substances, first using cannabis when you were 11 years old, which later progressed to heroin use. You recall police attending at the house to execute warrants in respect of family members. You were assaulted by your uncle on several occasions as a child, including once when you were around 14 years old where he stomped on your head. You have also suffered multiple concussions throughout your life.

25Your drug use escalated and by the age of 14 you were addicted to heroin. You have only had brief periods of abstinence since. In recent years you have started using methamphetamine. This drug has not been as problematic for you as heroin.

26In terms of your schooling, you attempted to complete Year 9 but were expelled before you could. Your work history is very limited and you have not been employed since 2009. You worked in sheep shearing in the Swan Hill region with your father and his friends in your early 20s. You were then employed for a stint by the Melbourne Zoo, where you worked as a sandwich hand in the kitchen, and later you worked in the Ford Factory in Broadmeadows fitting radiators onto cars on the assembly line. You are now in receipt of the Disability Support Pension.

27Tendered on the plea was a neuropsychological report by Dr Sami Yamin, dated 17 September 2023, where he concludes that, based on a recent assessment, your intellectual functioning is in the ‘Extremely-Low’ range. You have a full-scale IQ of 57 and suffer from severe memory deficits, demonstrating difficulty in learning even simple information repeated to you numerous times. Your assessment showed you were ‘severely disorganised’ when confronted with more complex planning tasks, and your inhibition, self-monitoring and impulse control were ‘severely reduced’. Dr Yamin concludes you meet the criteria for an intellectual disability. He is of the view that the cause of your impaired intellectual functioning is multifactorial, likely to be neurodevelopmental in nature and further complicated by your drug and alcohol use, which, as already noted, commenced at a very early age. Dr Yamin opines that ‘the interactions of these multidimensional factors have considerable implications for adolescent development’, noting that these deficits would have impaired your ability to ‘exercise appropriate judgment and to make clear and rational choices’ and this would have been the case at the time of this offending.

28In addition to your intellectual deficits, Dr Yamin notes you continue to experience cognitive impairment in the areas of memory and learning and executive function, which is inconsistent with pre-morbid estimates, suggesting you likely suffer from a mild to moderate acquired brain injury from a combination of accidents and extensive drug use. These deficits are likely to be lifelong.

Sentencing considerations

29I first take into account your plea of guilty, which was negotiated after two principal witnesses had already been cross examined, first at committal and then at a s 198B pre-trial hearing. The plea was therefore not entered at the earliest possible time. However, it has still saved significant court time and expense and therefore has facilitated the course of justice. The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[3]

[3] Worboyes v The Queen [2021] VSCA 169 at [39].

30I take into account your personal circumstances, most particularly your very difficult childhood, which includes the death of your mother at a young age and exposure to family drug use, as well as physical abuse from your extended family. In my view your dysfunctional childhood and adolescence enliven principles in cases such as Bugmy v The Queen[4]  and Director of Public Prosecutions v Herrmann[5]. As such, I accept that the significant childhood depravation you have suffered should be given full weight in the sentencing discretion.

[4] (2013) 249 CLR 571.

[5] [2021] VSCA 160.

31In addition to your dysfunctional childhood, you have also suffered from an intellectual disability and a significant drug addiction from an early age, both of which played a part in your offending. Ordinarily, drug use in those circumstances cannot be relied on in mitigation, and furthermore, you have had repeated opportunities in the form of community-based dispositions to address your drug problem. Nonetheless, I accept that your drug addiction has stemmed from your early depravation and has continued to influence your conduct in the context of you also suffering from an intellectual disability and in my view, is able to be taken into account to a limited extent.[6]

[6] The Queen v McKee [2003] VSCA 16, [21] per Vincent JA.

32While it is not disputed that your intellectual functioning has been compromised for a significant period including at the time of the offending, it is also not in dispute that you were drug affected at the time which was conceded by your counsel to be a key contributor to the offending. Thus, the assessment of any causal relationship between your offending and you intellectual functioning is a difficult task. As noted by Dr Yamin:

The deficits outlined have influenced Mr Mitchell’s behaviour by impairing his ability to exercise appropriate judgement and to make clear and rational choices and these would have been present at the time of the offences. The results of the assessment also indicate that he is likely to have been disinhibited at the time the offences were committed. His judgement and disinhibition would have further been exacerbated due to drugs consumed.

33In my view Verdins principles are enlivened to an extent and as such, your moral culpability and the principle of general deterrence are able to be moderated to a limited degree. Further, as also noted by Dr Yamin, your history of trauma and psychological function will make incarceration more difficult for you and your depression and anxiety will likely exacerbate. As such I also accept that Verdins  principles 5 and 6 are enlivened.

34Turning to your prospects of rehabilitation it is clear that you require substantial support upon your release if you are to move forward with your life. You were last released in November 2021 without any supports and this offending occurred in June 2022. You also have a relevant and lengthy criminal history where you have been given many therapeutic orders that have proved to be unsuccessful. As was discussed at the plea hearing – and recommended by Dr Yamin – you may well benefit from support through the NDIS. If you were to obtain such supports then in my view your prospects would improve. As such it was highly recommended that while in custody you make that application.

35Mr Ellwood, who appeared on behalf of the Director of Public Prosecutions submitted that deterrence, both general and specific, denunciation of your conduct and community protection are relevant sentencing considerations. I agree. A message must continue to be conveyed that this type of violence against women  cannot be tolerated and will be met with stern consequences. Given your criminal history, together with the fact that you were subject to a family violence intervention order and on bail at the time of this offending, specific deterrence must also carry weight in the sentencing discretion. Further, while I take your cognitive disabilities into account, they also make you vulnerable to further offending particularly when you are using drugs and thus, protection of the community must also carry weight in the sentencing calculus.

Sentence

36Mr Mitchell, would you please stand.

37Shane Bradley Mitchell, on Charge 1, aggravated burglary, you are convicted and sentenced to 3 years and 6 months imprisonment. On Charge 2, common assault you are convicted and sentenced to 8 months imprisonment.

38On Summary Charge 4, contravene a Family Violence Intervention Order, you are convicted and sentenced to 3 months imprisonment. On Summary Charge 11, commit indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment.

39I direct that 3 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1, making for a total effective sentence of 3 years and 9 months imprisonment. I further direct that you serve 2 years and 6 months before becoming eligible for parole.

40Pursuant to s 18 of the Sentencing Act, I declare that 473 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

41Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 4 years and 9 months with a non-parole period of 3 years and 3 months.