Director of Public Prosecutions v Mitchell

[2022] VCC 154

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT HORSHAM

CRIMINAL JURISDICTION

CR 18-00621

DIRECTOR OF PUBLIC PROSECUTIONS

v

LINDA MITCHELL

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	7 December 2021, 15 February 2022
DATE OF SENTENCE:	15 February 2022
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2022] VCC 154

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions
For the Accused	Mr R. Thyssen	Buscombe & Madden

HIS HONOUR: 

1Linda Mitchell you pleaded guilty to one count of recklessly causing serious injury to your former husband Benjamin Mitchell at Edenhope on 22 July 2017.  Maximum penalty is 15 years' imprisonment.

Circumstances of the offence

2The circumstances of the offence were set out in the prosecution opening which was read in open court on the plea and which I incorporate by reference.

3In brief outline, the two of you had been to a hotel for an 80s night that night.  And after the two of you returned to the house you obtained a large kitchen knife from a drawer in the master bedroom, approached the victim and drove the knife into his chest.  The full length of the blade penetrated his chest and resulted in life-threatening injuries.

4He was treated by paramedics before being taken to Wimmera Base Hospital where he underwent surgery and was then transferred to Alfred Hospital in Melbourne.  Due to the significant blood loss, he sustained brain damage and as a result of that he had no memory of the offence, although later after pre-recording of the evidence he reported he was able to recall some details.

5At the time you were aged 62 and you lived, the two of you lived in Edenhope.  You had been married for 20 years at that time and you had been living at Edenhope for about six years.  You had two children from a previous relationship and one of - your daughter was living in Kaniva with twin boys, Charlie and Oliver and an older boy, Kelby.  The victim, Mr Mitchell, was aged 52 at the time and he worked part time as a cleaner at the Lake Wallace Hotel.  He had one daughter who lived in Warrnambool. 

6There had been events prior to that event that night that he had attended a local football game on that day down in Kaniva to watch your grandchildren play and you became upset after an argument with one of the grandchildren after you drove back to Edenhope. 

7Later that evening, the two of you attended a 80s theme party at a local hotel.  You were, in the course of that night both of you were drinking alcohol but it appears that Mr Mitchell in fact had had more than you.  At one stage,
Mr Mitchell was observed in the beer garden.  He had fallen off a picnic table and was laughing and appeared adversely affected by alcohol and the publican arranged for him to be taken home.  You were upset by his intoxication and told him - told those present that he had embarrassed you.  And you said to publican you were doing through a lot of issues, you were taken by the courtesy bus back to your home. 

8When the driver who tried to help him out of the bus, he fell over but eventually he was taken through the back door into the bedroom and that is when the event happened in the bedroom.  The plea summary that you have agreed to, the victim - the two of you began to argue, they were yelling - you were yelling at each other and you told him that you wanted him to stop yelling at you, and Mr Mitchell said that the grandchildren were never welcome in the home again.  You became upset, grabbed a large carving knife from the kitchen, 36-centimetre long stainless steel knife and plunged it into his abdomen. 

9You then ran outside, you were upset, and he was left in the bedroom, he began to bleed profusely.  You were outside on the street, crying out, 'Help me, help me', referring to your deceased mother and your deceased son, appearing distressed and dissociated.  The next door neighbour came out.  Paramedics were called.  And after some time - Triple 0 was also called.  After some time the paramedics went into the bedroom and found the victim bleeding profusely and then he was then taken to hospital by emergency services  and eventually ended up down in the Alfred Hospital where he was required to have very significant surgery.

10The police investigated the matter and when they interviewed you, you were unable to recall the full details of the events that occurred, in particular, the events that happened but you did explain in the record of interview about how you had had about two or three glasses of wine, he would become intoxicated and you were worried about your relationships with your son.  You were assessed before that record of interview and you were found to be fit for interview and you were subsequently charged.

11In the course of the interview, you could not recall stabbing and you denied effectively what had happened.  You could not remember doing it but stated, 'I must have stabbed him'.  And you asked, 'What would happen if someone - if you stabbed someone in the chest with a knife, they'd probably die' but added that she never wanted to kill him and always loved him, maybe she did it to get him to stop but she did not know.

12As I indicated, the victim was taken to hospital, ended up in the Austin Hospital and then subsequently in a number of rehabilitation facilities.  And there set out in paragraph 58 of the prosecution opening as to his condition from a
Dr Mirmilstein at Austin Health, in a report dated 23 January 2019. 

(58) Dr Mirmilstein opines:

a) The victim has been diagnosed with an Acquired Brain Injury, likely due to hypoxic ischaemic insult from stabbing assault on 22/07/2017;

b) The victim sufferers from a permanent , severe functional impairment/significant cognitive dysfunction – this will inhibit his ability to work, lifelong;

c) The victim has suffered from a range or anxiety and depressive symptoms that have responded well to treatment;

d) The victim required daily assistance and supervision in relation to memory, attention and concentration, problem solving, planning, decision making, comprehension, visuo-spatial function, behavioural regulation and self-awareness: and

e) The victim has had ongoing assessment, treatment and rehabilitation since he was hospitalised due to a life – threatening assault , whereby there was significant blood loss and hypoxic ischaemic conditions that resulted in an Acquired Brain Injury.

Victim impact and offence seriousness

13Your crime has had a devastating impact on the complainant as set out in the medical report from Dr Mermelstein that I have referred to.  Those impacts include that he has been diagnosed with an acquired brain injury due to hypoxic ischaemic insult due to lack of blood.  He suffers from permanent, severe functional impairment and significant cognitive function which will inhibit his ability to work lifelong.

14He has suffered from a range of anxiety or depressive symptoms that have responded well to treatment.  He requires daily assistance in relation to memory, attention and concentration and problem solving.  He has had to have ongoing assessment, treatment and rehabilitation due to the life-threatening assault whereby there was significant blood loss and this hypoxic ischaemic condition.

15In the course of the plea, I heard a victim impact statement that was read from the complainant, Mr Mitchell and he sets out briefly repeating what has been said in the medical report as to the condition and the impacts of him.  Also I heard victim impact statements from his three sisters and also from his mother.  He has suffered from nightmares and been diagnosed with depression and anxiety.  He has difficulty concentrating.  He has to rely on his family to access services.  

16He has trouble remembering details.  He has not been able to work.  He had to be taught how to walk again.  He needs ongoing rehabilitation.  It has affected his ability to drive and his independence.  He is not capable of holding down a full-time job.  He indicates he has become financially dependent on his family and has suffered major financial implications in resolving the joint financial affairs between the two of you and the two properties you own.  He also indicates in his victim impact statement that he feels alienated going back to Edenhope where he has lived for six or seven years and fears being in your presence.

17His family members, his mother and his three sisters gave powerful victim impact statements, and in particular his sisters gave evidence how they in effect had to take over the looking after him after he left the hospital.  His mother outlines how shocked she was to hear that he was in intensive care as a result of the assault.  She records how her daughters looked after Mr Mitchell in the period after his discharge from hospital and this had a consequent impact on their own lives.  Her son, Mr Mitchell, had to move back with his mother and that has created additional stress.  And the incident is forever on her mind.  Mr Mitchell's younger sister, Ms Peters, outlined the devastating and sustained impact of your attack on him.

18She said:

'For many months after Ben was stabbed I was deeply traumatised by the thought of what happened to him.  This became all consuming, I could think of nothing much else.  I experienced a mixture of anger, confusion and fear.  I was angry and frustrated that the perpetrator of the crime was out on bail and fearful that she would come and hurt him or us, our family, again.  I continually have times where I feel unsafe, become anxious at the thought of seeing her again.  I live in constant fear for his safety'.

19She then goes on:

'Stigma and stereotypes related to domestic violence have limited the support of both Ben and the family that have been access'.

20She found it difficult to talk to people about the incident and she notes that there was a pervasive perception that men are perpetrators and women are victims but in this case she puts that in fact there her brother, Mr Mitchell, was the victim of domestic violence.  She indicates that Mr Mitchell had to go to Sydney to live with her and then he came back to Melbourne. 

21So the whole of the four victim impact statements from the family members, they are angry, they are powerful as to the impact of your crime on their son, their brother.  Ms Peters ends hers with:

'I don't feel that words will ever accurately describe the severe and pervasive impact this crime has had and will continue to have on Ben's life and our shared experience'.

22And those same sentiments are also echoed in the victim impact statement of Judith Martyn and the other two sisters.  And one of the other matters that the family members have indicated is the fact that the matter has been dragging on and there was a change in plea and finally you agreed to plead guilty to the charge.

23So in assessing the impact of the offence in this matter, the impact of the offence is relevant to your moral culpability.  You bear high moral culpability.  He was vulnerable at the time of the assault.  He had been intoxicated.  He had been clearly drinking and yet you attacked him in his own home in the bedroom and left him bleeding when you went out on the street, albeit in a distressed state but the impact has had a major impact on him and on his mother and on his sisters.  And that all goes to the seriousness of the offending here.

Your Personal Circumstances and matters in mitgation

24You are now age 66.  You were raised in the Dandenong Pearcedale and Rutherglen areas and completed your secondary education.  You were first married at the age of 19 and had two children.  This marriage lasted for 10 years and then you were left with the two children.  One of the sons from that relationship suffered depression and suicide in 2006.  This had a major impact on you.  The other child is a single mother living in Nhill and you have been living with her and she has three sons and those sons have been the subject of some agitation - with some agitation with the victim in this matter and in your relationship with him.

25You met the complainant when you were working at the Bendigo Hospital.  He was 10 years younger than you and the two of you married and moved to the Edenhope area.  You lived there for six or seven years before the offence.  You worked at the kitchen in the hospital and Mr Mitchell worked as a cleaner in the local hotel.

26As I indicated, you suffered a significant grief reaction to the suicide of your son.  There were stresses in the marriage.  In the immediate period prior to the offence there had been arguments in relation to his dealings with your grandchildren and disputes as to whether the grandchildren could still attend your home.  Those disputes, as I will indicate, do not justify or provide any basis at all for what occurred.  I turn now to other matters in mitigation.

Other matters in mitigation

27First you have pleaded guilty.  This is a significant matter and is to be accorded significant weight as you have taken responsibility for your conduct and facilitated the course of justice.  You are to be accorded a palpable amelioration of sentence for the entry of a plea of guilty in the COVID environment.  The plea is some evidence of remorse, but there is little other evidence, particularly given your application to change your plea and the fact that you sought at one stage to raise the issue of self-defence.

28The plea was late.  However, there has been considerable delay in this matter and it is now nearly four and a half years since the index offending.  The chronology is set out in the prosecution opening which I incorporate by reference.  You originally made an offer to plead guilty to this charge of recklessly causing serious injury in April 2019 after a contested committal proceeding.  You had raised the issue of self-defence in the committal and the matter was then the subject of a number of mentions and directions hearings and a change of legal practitioners.

29Then there was an application foreshadowed for a change of plea and the matters of self-defence were raised in the defence response.  Thereafter you were diagnosed with an aggressive melanoma and required major surgery.  This caused the matter to be delayed while you undertook chemotherapy.  In addition the pandemic intervened.  During 2021 the matter was the subject of a number of mentions before Judges.  The complainant was the subject of a pre-recording of evidence which occurred in May 2021 where he denied any domestic violence in the relationship.

30The matter was then listed for a special hearing in the circuit and eventually listed for trial on 22 November in Horsham last year.  On 30 November 2021 you renewed your offer to plead guilty to the charge of recklessly causing serious injury and the offer was accepted by the Crown and you were arraigned on that charge on 2 December in Horsham and the plea hearing commenced on 7 December 2021.  After the plea hearing at the instigation of the Court, further material was sought as to your medical condition and that has been canvassed this morning.

31All these matters have led to considerable delay leading to additional strain on the complainant and on his family members as well as on yourself as your own ongoing medical condition was ascertained by way of up-to-date reports from the Ballarat hospital and, indeed, as Mr Thyssen, your counsel has said this morning,  your medical condition is changing as time goes on and there is still a lesion that has not been fully ascertained.

32I turn now to your current medical condition.  Your plea was adjourned in order to obtain the up-to-date medical condition.  In July 2019 you were given a prognosis of less than two years for this aggressive melanoma.  In a subsequent report from the oncologist, Dr Boolell, he indicated, in July 2019 you were given a two-year prognosis for life expectancy.  In the subsequent report dated 12 February 2020, the oncologist indicated you were doing well but the condition was still regarded as incurable and they were proposing to continue immunotherapy indefinitely.  A more recent report from Ballarat Health dated 17 January 2022 stated:

'Linda has no detectable disease and her cancer has a low likelihood of recurrence.  Her life expectancy is therefore normal, but this would change if it does recur in the future.  Surveillance imaging investigations are being used to monitor for any recurrence.  As she is currently in remission, a significant impact with imprisonment is not anticipated as long as she can attend her surveillance investigations as part of ongoing monitoring'.

33More recently, as I indicated, your general practitioner has referred you to an Adelaide specialist in relation to a lesion above your right elbow.  On the plea your counsel, referred to other medical conditions relevant to any impact of a sentence on you.  You were examined by a consultant psychiatrist Dr Deacon in May 2019 and he notes you had suffered a stroke about 10 years earlier and also had been diagnosed with cardiac arrhythmia.  And you had also been diagnosed with depression after your son's suicide in 2006, and your depression was compounded by marital stress you were self-medicating with alcohol but this has now been addressed.

34He notes that you are an anxious and insecure woman you remain vulnerable.  He opines that you will experience a prison environment with difficulty and your mental health issues are likely to be exacerbated in a prison environment.

35The most recent medical report from Ballarat Health indicates that in fact prison will not necessarily aggravate your medical condition.  On the plea your counsel also tendered your medication records and you are on numerous forms of tablet medication which I take into account. 

Sentencing submissions

36On the plea, the Crown noted the seriousness of the offence here.  The prosecution accepted that your physical condition is a matter of mitigation and any term of imprisonment would be a greater burden, although this was slightly withdrawn this morning in the light of the more recent medical report.  The prosecution also noted your mental health issues.  The prosecution noted the degree to which an offender may have been provoked to violence is relevant to sentence and may be an extenuating circumstance that lessons moral culpability.

37The prosecutor in the first plea hearing submitted that a community corrections order was within range although he has now indicated in the light of the up-to-date medical reports that some period of imprisonment is required as being within the appropriate range.  I indicate you were found suitable for a community corrections order.

38I have determined, however, that the seriousness of the offending here calls for a sentence of imprisonment to denounce your conduct.  I have reached this conclusion giving full weight to the principle of parsimony, and to the additional burden on you of a sentence of imprisonment in the COVID environment where programs are limited, visits are restricted and you will be required to undergo a period of quarantining upon admission into the system.  I have accorded you the most leniency I can in all the circumstances that have been put to me by your counsel.

Purposes of Sentencing

39The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

40In this case I accept that considerations of specific deterrence carry little weight.  You have never been before the courts before and your offending was situational in that it occurred in the context of your marriage to the complainant and this is unlikely to recur.  I therefore regard your prospects of rehabilitation as good.

41The seriousness of the offending here, the serious injury sustained by
Mr Mitchell, its long-term impact on him and on his immediate family is such that considerations of general deterrence and denunciation must play and be accorded significant weight.  Whatever the background, the marital baggage, and the bickering prior to the incident that evening, there can be absolutely no justification for your conduct.  To adapt what has been noted in another case, 'plunging a large knife upwards into abdomen of another person is a crime heinous enough to warrant consideration of a stern penalty.'  [Kavanagh v The Queen [2011] VSCA 234 at [18]]

42This applies regardless of the mitigation that must be accorded to you based on your age, to the fact that you have been diagnosed with cancer that to date has been successfully treated and which may recur, and to your fragile mental state as identified in the report of Dr Deacon.  This crime was perpetrated in a domestic setting and a signal must be sent by the sentence that recourse to violence by both women and men in the context of domestic disputes will not be tolerated by the Court.  These sentiments outweigh the strong matters of your personal circumstances advanced on the plea.  I have given full weight to the impact of a sentence of imprisonment on you and the authorities carry a comprehensive duty to monitor your condition.

Sentence

43The sentence of the Court is you are sentenced to 30 months' imprisonment.  I direct that you serve 15 months' imprisonment before being eligible for parole.  I declare that had you not pleaded guilty, I would have imposed a total effective sentence of four years' imprisonment with a non-parole period of two and a half years.  Are there any other consequential orders you need?

44MR GRANT:  There is a disposal order, Your Honour, for the knife.

45HIS HONOUR:  I make a disposal order.

46MR GRANT:  If Your Honour pleases.

47HIS HONOUR:  In sentencing you I have taken into account all the matters that have been put on your behalf by Mr Thyssen. I have determined, having regard to the seriousness of the offence here, the need to denounce your conduct, that notwithstanding your past medical conditions, you must serve a term of imprisonment that I have just imposed.  So you will now be required to go into custody.

48And I want to thank all parties involved in the plea and in particular, Mr Thyssen, the family members who gave their victim impact statements which I have indicated that I have taken into account, Mr Grant for his assistance over the time, it has been a long, drawn-out matter.

49HIS HONOUR:  I am going to adjourn sine die

50MR GRANT:  Your Honour pleases.

51MR THYSSEN:  If Your Honour pleases.  Thanks, Your Honour.

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