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:

1	Tyson 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
2	The circumstances of your offending are set out in the summary of prosecution opening for plea.  They are agreed facts.
3	On 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. 
4	In 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.
5	Ms Johnson used her hands to try to protect herself.  She was crying and bleeding.
6	You got out of the car.  She drove herself to Mildura Hospital.
7	You 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.
8	The blows you struck and the injuries you caused constitute Charge 1, intentionally cause injury.
9	On 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. 
10	You 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.
11	Your grandmother picked the two of you up and drove to Mildura Hospital where Ms Johnson got out of the car and went inside.
12	She 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.
13	1600 mL of blood was drained from her chest.
14	On 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.
15	Police arrested you on 26 May 2023.
16	When they questioned you about the stabbing, after initially denying any involvement, you admitted you had stabbed her with a knife during an argument.
17	You said it was unexpected and 'happened so quick'. 
18	You 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.
19	Police charged you with a number of offences.  You were remanded in custody.
20	On 22 September 2023, before a committal hearing, you pleaded guilty to the charges now before the court.
Criminal record
21	You have admitted an extensive criminal record.
22	You appeared in the Children’s Court a number of times. 
23	In 2014, 2015 and 2017 for property, dishonesty, driving and drug offences, you received sentences of probation and youth supervision.
24	In 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.
25	In 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.
26	On 2 October 2020, for offences of aggravated burglary and sentencing for the community corrections order offences, you were sentenced to six months imprisonment.
27	On 9 July 2021, for attempted carjacking, you were sentenced to 214 days imprisonment with a 12-month community corrections order.
Personal circumstances
28	You were born in August 2000.  You are a Barkanji man.  You were 22 years old when you committed these offences.  You are now 23.
29	You were born at Parkville Youth Justice precinct where your mother was a detainee.  You were removed from her soon after birth.
30	You have never known your father.
31	Your grandparents raised you.  From a young age you were exposed to family violence, substance use and criminal activity.
32	At the age of eight, you started running away.  When you were 12, you were placed in residential care. 
33	You have an intellectual disability. 
34	You struggled at school and left during year seven.
35	In 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.
36	She noted, when were at school, you were 'unpredictable, very aggressive, inattentive and frightening for other students'.
37	To 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. 
38	As 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'.  
39	Laura Scott, neuropsychologist, assessed you in 2020, while you were on remand in prison.
40	She assessed you full-scale IQ at 48.  Your memory performance was weak and your reading and language abilities were poor.  You are essentially illiterate.
41	In 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' .
42	You were facing court for dishonesty offences committed in company with others.
43	In 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'. 
44	In her opinion these problems placed you at increased risk of offending, particularly in relation to crimes of deception such as theft and robbery. 
45	Danielle Kocic, Psychologist, assessed you more recently, in March 2024 .
46	You told her, you were living with your grandparents during your relationship with Ms Jackson.
47	You 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'.
48	You 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.
49	You 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.
50	You told Ms Kocic you regret what you did.
51	In 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'. 
52	Using 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.
53	In 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.
54	She considers imprisonment would likely weigh more heavily on you than an individual without your conditions.
55	You have spent most of your remand at Port Phillip Prison.  You were bullied there and put into a protection unit for your safety.
56	In January 2024, you attempted suicide.
57	You are being managed with antidepressant and antianxiety medication and methadone.
58	About 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
59	You participated in a sentencing conversation in Koori Court with an Elder, Uncle Mark Bland.
60	Uncle 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.
61	You said you had met Ms Johnson, who is 14 years older than you, in Broken Hill, and the relationship was not easy.
62	You said the two of you were using ice together and she also introduced you to 'juice' (GHB).
63	You said you had not been violent towards her, or any other partner, before.
64	You said, when you assaulted her, you are angry because she was cheating on you with your cousin. 
65	You said you are sorry for what you had done.
66	Your grandparents, one of your sisters and an auntie and uncle supported you at court. 
67	As your grandfather said, 'drugs are no good'.
68	Your 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
69	Your counsel, Mr Vuu, sought to characterise your offending as moderately serious. 
70	In 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. 
71	He 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
72	Mr 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
73	Your crimes are very serious.
74	Twice, under the influence of drugs, you vented your anger, believing your partner was unfaithful, with unacceptable violence.
75	On 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. 
76	Ten days later, you attacked her with a weapon causing her a serious injury which was life-threatening.
77	As your partner, she was entitled to feel safe in your company.
78	You breached her trust and caused her physical and, no doubt, emotional harm.  You had no right to do so.
79	I 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.
80	Neither episode of violence was protracted.  I accept you had not been violent towards her previously.
81	While your attacks will have been terrifying for her, the level of violence you perpetrated was less extreme than in the worst cases.
82	It would seem, with appropriate medical care, Ms Johnson will have made a good recovery from her physical injuries, without any long-term consequences.
83	Overall, I assess the objective gravity of your crimes to be slightly below midrange.
84	In order to protect victims of family violence, the court must impose punishment that denounces your conduct and adequately addresses general deterrence. 
85	It is clear from a number of Court of Appeal decisions the sentence for which your counsel contends is wholly outside the permissible sentencing range.
86	Relevantly, 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.
87	Considering the seriousness of your offending, only a prison term, with non-parole period fixed, can achieve all sentencing objectives in your case. 
88	There are mitigating factors which I take into account to moderate your sentence.
89	Firstly, 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 and, additionally, when you entered your guilty plea, it alleviated the strain on the justice system.
90	Secondly, I accept your guilty plea shows your acceptance of responsibility for your actions and remorse.
91	Because 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. 
92	Thirdly, your childhood deprivation and intellectual disability are relevant in sentencing you.
93	I accept, because of your intellectual disability and childhood disadvantage you have poor self-inhibition and self-control, which contributed to your offending.
94	It follows, because of your intellectual disability and childhood disadvantage, your moral culpability is reduced.
95	I also accept, because of your intellectual disability, reduced weight to be given to general deterrence.
96	I 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. 
97	Fourthly, you are entitled to a sentencing benefit for your participation in Koori Court. 
98	You 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.
99	Fifthly, you are still a relatively young man.  I am mindful to impose a sentence which promotes your rehabilitation.
100	It is clear, unless your mental health is managed and you stop using drugs, you are a high risk of reoffending. 
101	Nevertheless, there are protective factors for your rehabilitation.
102	Despite your extensive criminal history, these are your first crimes of family violence.
103	In 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.
104	You have family support.
105	On your release, you will have a home, with your auntie and uncle, and you will have the opportunity for work nearby and cultural reconnection.
106	The 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.
107	Because 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.
108	I must also impose the least severe sentence necessary to achieve the purposes of sentencing.
109	Mr 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.
110	Considering 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.
111	This is your base sentence.
112	I direct three months of your sentence on Charge 1 be served cumulatively upon your base sentence.
113	Your total effective sentence is three years and three months imprisonment.
114	To mitigate your punishment and promote your rehabilitation, I fix a minimum period of two years before you are eligible for parole.
115	You have been in custody since your arrest on 26 May 2023.
116	On 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.
117	While 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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