DPP v Portelli [2013] VSC 588

2 You intentionally caused serious injury to Charlotte O'Brien, whom you know as Sarah Shaddick, and with whom you had been in a de facto relationship for about eight years prior to the incident on Friday 16 November 2012. You are now 47 years old, 20 years older than Ms O'Brien. Prior to the incident, your relationship with Ms O'Brien had deteriorated.

3 In November 2012, Ms O'Brien was living in a unit in St Albans provided to her by the Department of Housing. About a week prior to the incident you became enraged and threatened Ms O'Brien at her home. She was frightened and escaped out a bedroom window, climbing over a number of fences to get away from you. The police were called but you would not leave Ms O'Brien's home. Given your history of violence towards Ms O'Brien, an interim intervention order was obtained but it was unclear whether it was ever served on you.

4 Around 4.30 am on 16 November 2012 when Ms O'Brien returned to her home with your niece, you were found in an agitated state waiting there for her. Ms O'Brien was keen to avoid a further confrontation and although she reminded you of the intervention order she did not ask you to leave. You told Ms O'Brien that she would be sleeping with you in her bedroom that night and that you wanted to talk privately with her in the bedroom.

5 After a short interval, when Ms O'Brien attempted to leave the bedroom, you asked her for a hug and slid one arm around her waist and your other arm around her neck. You were not offering her affection. You had armed yourself with a razor blade in the hand at her throat and you then cut open her throat. She had no chance to avoid the attack. She fought with you and although she told you that she was pregnant the attack continued. During the struggle, you put a pillow over Ms O'Brien's face pressing down on it so that she could not breathe and saying to her 'I'm sorry I love you'. Ms O'Brien struggled, biting at your fingers. You grabbed a long bladed serrated knife and tried to cut her throat again but she continued to fight with you. You sawed at her throat two to three times with the serrated knife and she was forced to grab the blade, sustaining cuts to her hand. You let go of that knife and again pushed a pillow over her face.

6 The fighting ceased and you lay next to Ms O'Brien for a short period of time. She was bleeding heavily. Her urgent need for medical attention must have been obvious to you. You then again produced the razor blade and cut at the right side of her neck with smaller slashes. Ms O'Brien asked you to cuddle her as she was cold and did not want to die alone.

7 You let go of Ms O'Brien and started to slash yourself with the folding knife and the razor blade before lying down with your body on Ms O'Brien's arms so that she was unable to move away from you. Your self inflicted injuries were not life threatening and you dozed for some time. When you woke up, Ms O'Brien said that she had to go to the hospital. You plugged a mobile phone into a charger and left it on the bed for her.

8 Ms O'Brien called 000 and an ambulance and police attended at the St Albans address. When the three police members, Senior Constable Dale, Constable Allen and Constable Ahlawat approached the front door of the unit they saw you with knives in your hands, covered in blood. When asked if everyone in the unit was okay, you answered that the woman was fighting for her life. The police said that they were there to help both you and Ms O'Brien. When they asked if they could come inside, you said that they could shoot you. You had unsnibbed the front door.

9 You made a gesture of sliding one of the knives across your throat which the police found threatening, Constable Allen taking it to mean that you were going to slit their throats. Your appearance at the time heightened the fear for the police.

10 You then burst through the front security door and charged at the police who retreated some 6 to 7 metres away from you standing shoulder to shoulder in a confined area. The knives that you were holding were described as having blades that were 25-30 centimetres in length, one in each hand. You ran towards the police and Constable Allen, believing that you were about to stab him to death, discharged his firearm while retreating. He fell backwards as he was firing. Senior Constable Dale saw Constable Allen on the ground and saw you run at him and she, too, discharged her firearm at you in order to protect Constable Allen. Constable Ahlawat was armed with 'OC' spray but he did not use it.

11 You suffered gunshot wounds to the right bicep and a superficial chest wound and you stopped. You then retreated back inside the house shutting the door behind you. You told Ms O'Brien that you had been hit but said that it was what you wanted. Curiously, you then went into the kitchen and started to heat up some Chinese takeaway. Ms O'Brien saw that you had three knives at this time and a frying pan down your pants, which you told her was there to require the police to go for a head shot. You did not disarm yourself and surrender to the police to allow the paramedics immediate access to Ms O'Brien.

12 The police waited until the critical incident response team arrived and entry into the unit was obtained at about 11.30 am. Ms O'Brien was found in the bedroom and although her bleeding had stemmed, it was clear that she had lost a lot of blood. You were found in the kitchen with numerous self-inflicted knife wounds and the gunshot wounds. You were both transported by ambulance to the Royal Melbourne Hospital.

13 A medical practitioner described five separate injuries that you inflicted upon Ms O'Brien. The first injury involved three small lacerations underneath the chin. The second injury involved a mid-zone laceration to the left side of her neck. The third injury was a deep transverse neck incision crossing the midline partly transecting the sternocleidomastoid, as well as the right anterior jugular vein and the strap muscles. This injury was potentially life threatening and required surgical correction. The incisional injury to the anterior jugular vein had the potential to cause catastrophic blood loss and death. Ms O'Brien lost two litres of blood. The fourth injury was a serious laceration to the right side of her face, from her eye to below her ear. The fifth injury involved tendon transections of the palm side of the thumb, the ring finger and the little finger.

14 When you were interviewed by the police on 23 November 2012, you said that you recalled being at the house but not much about the incident. You said that when police arrived you thought it would be a good way of dying if the police killed you by shooting you. You admitted to cutting yourself and to charging at the police. You admitted to having knives on you when the police arrived and you admitted to cutting Ms O'Brien with the knives.

15 Photographs were tendered of Ms O'Brien's injuries as they appeared at the time of her admission to hospital. Further photographs showed her condition some six days later after surgery but before the removal of her stitches. Ms O'Brien did not provide the prosecution with a victim impact statement and I was invited to take into account the normal trauma experienced by a victim of this type of trauma, whatever that might be. On your plea, your counsel acknowledged that your conduct was abhorrent and terrifying. Following your plea, I invited the Crown to provide photographs or medical evidence that demonstrates the extent of Ms O'Brien's recovery from the shockingly disfiguring injuries that you inflicted upon her face and neck. I have received a brief report that Ms O'Brien has recovered physically but her 'physical and emotional scars remain issues'. I am persuaded that Ms O'Brien's injuries were very serious and could have been fatal and will have a lasting physical and emotional impact on her.

16 Senior Constable Dale provided a victim impact statement, which I have read. She remains haunted by the way your conduct forced her to act to protect her own life and the life of her colleague by producing her firearm and shooting at you as you came running towards the police armed with knives. Senior Constable Dale suffered psychological trauma and critical incident stress, which she describes as provoking significant anxiety and concern for her safety and causing her to be unable to control her emotions. She lost confidence and was socially inactive for quite some time. Her attitude to policing has been affected. She feels the incident has changed her life forever.

17 In his victim impact statement, Constable Allen describes how he has been affected by psychological trauma, suffering many sleepless nights and nightmares. He withdrew from exercise and put on weight. He has permanent pain in his left elbow and has been forced to change his role within the police moving to work where he believes he will have less chance of confrontation with offenders.

18 On your plea, your counsel told me that you cannot explain your behaviour on 16 November 2012 but he urged me to accept that the explanation lay in your drug use that day. You instructed him that you had consumed ice, cannabis, GHB and 12 to 14 Zanax tablets. You have no present recollection of what you did. Yet again, an offender affected by ice faces the court for a savage assault. You plainly intended to cause a really serious injury and you succeeded, inflicting an horrific injury that was immediately life threatening.

19 Aspects of your behaviour were quite bizarre and I accept that you were affected by drugs at the time of the offending. Your counsel urged me to accept that your behaviour was out of character when compared with your prior criminal history. However, there is evidence of a recent history of violent behaviour, not just from your prior criminal history, and you have long term experience in the use of illicit drugs that includes rehabilitation programs. The evidence does not, as your counsel properly conceded, demonstrate that your intoxication has mitigating consequences for the assessment of your moral culpability for this offending.[1]

20 I am satisfied to the requisite standard that, as a long term addict with experience of rehabilitation programs, you understood the effects on you of the drugs that you ingested that evening and that you were more likely to behave in an abusive, violent manner towards Ms O'Brien should she fail to succumb to your demands. Your behaviour was not out of character when compared with the whole of the evidence before me. I cannot say whether you took the drugs intending to behave violently as you did or reckless as to whether your behaviour might turn violent, but I have no doubt that you took those drugs intending, as you have on countless prior occasions, to become seriously intoxicated. Self-administration of a cocktail of licit and illicit drugs in the period leading up to your confrontation with Ms O'Brien is, in my view, an aggravating feature of your offending. I have no doubt that is why Ms O'Brien was fearful of escalating the confrontation.

21 Prior to your offending, but after your release from the Marngoneet Correctional Centre you were diagnosed with Post Traumatic Stress Disorder, Major Depressive Disorder and Agoraphobia by a psychologist, whose report to the Victims of Crime Assistance Tribunal was tendered on your plea. What the law requires of me is that I direct my attention as to how your particular condition is likely to have affected your mental functioning on 16 November 2012. In all of the circumstances particularly your long history of drug abuse and your recent history of violent behaviour towards women, I am unable to see that your abuse of licit and illicit drugs on that day suggests a realistic connection between your mental functioning and your behaviour at the time such that your moral culpability for these offences is affected. Your counsel properly conceded that, apart from explaining in part that the downward spiral into drug abuse followed on the Marngoneet incident, there is no nexus between your offending on 16 November and these diagnosed conditions.

22 Your attack upon Ms O'Brien was extremely vicious and intolerably abhorrent. Although there is no victim impact statement, it is clear that Ms O'Brien was terrified. You made her believe she was going to die. To ask you, her attacker, to comfort her after your attack because she thought she was going to die reveals how frightening the experience must have been for her. Yet she was in her home in the presence of an intimate partner and entitled to feel safe and secure. She was doing no more than going about her ordinary life. I do not think that she trusted you; rather, she was in fear of your confrontations when denied what you wanted. Undoubtedly, your vicious attack will be an ongoing nightmare for her. It is clear that the community is intolerant of violent behaviour in such circumstances and expects the courts to send a strong message that behaviour of this kind is totally unacceptable. Women in domestic situations are entitled to feel safe from the violently abusive behaviour of their ex-partners. This circumstance is a significant aggravating feature.

23 The injury that you caused has resulted in significant and permanent scarring. Although it has not resulted in permanent intellectual disability or other permanent physical disability, I cannot precisely assess the psychological impact of the injury, but it is likely to be significant.

24 It is clear that you have engaged in some degree of planning when at her home. You waited for her to come home; you drew her away from her companions behind the closed door of a bedroom. It is relevant that weapons were used. You chose a razor blade as the weapon with which to slit her throat. It was not of a kind used for shaving, being one sided and with an edge that could be gripped. By choosing that razor blade, you selected a very effective household weapon for such an assault. You surprised her from behind with the razor and it is clear that before your attack on Ms O'Brien you had chosen your weapon and the manner of your attack. Your assault was not a spontaneous reaction to rejection. These circumstances too are significant aggravating features.

25 You substantially prolonged Ms O'Brien's ordeal by denying her access to medical assistance in two ways, each of which aggravates the circumstances of your offending. You refused to get help for her, or allowing her to do so, for some time after inflicting the injuries that she suffered. When you relented, she had to call 000 for herself. I do not see any regret or realisation of the seriousness of your behaviour at this time because by confronting the police as you did, you substantially delayed Ms O'Brien's access to the paramedics that she had summoned. Ms O'Brien would have known that you had blocked the medical assistance that she needed. Had you any empathy with or concern for Ms O'Brien you would not have subjected her, so unnecessarily, to a terrifying ordeal of more than seven hours.

26 That brings me to the circumstances of the police officers. You clearly put them genuinely in fear for their lives. You chose to arm yourself with large knives. Your weapons were clearly visible. To commit suicide by police shooting, this fear was what you needed to motivate them to actually shoot you. This offending also involved some planning. You wanted to encourage the police to go for a head shot and plainly, you needed to encourage them to actually draw their firearms and shoot at you. You met them at the door armed and you well knew that they would not shoot you on invitation. You chose to arm yourself with large knives. Your weapons were clearly visible. Your offending falls at the upper end of the range for the offence of assaulting a police officer in the due execution of his or her duty.

27 I turn next to your prior criminal history. From August 1984 until September 2011, you have appeared before a court for sentencing on 14 separate occasions. Your prior criminal history is typical of an habitual drug abuser. You first served time in prison in 1986, having breached an attendance centre order. In September 2008, you received a sentence of imprisonment that was wholly suspended but you offended again during the operative period and the suspended sentence was restored. In September 2011, 9 months of a total effective sentence of 18 months was suspended for 2 years. It was during the operative period of that suspension that you offended again by this incident. This is the second occasion on which you have offended during a period of suspension of a term of imprisonment and the circumstances of each breach have involved offences of personal violence. This is a significant aggravating circumstance.

28 Although the character of your offending has principally been dishonest behaviour or related to motor vehicles, it is pertinent to note that in March 2002 you were convicted at the Melbourne Magistrates' Court of a charge of reckless conduct endangering serious injury. In September 2008, you were convicted on a charge of recklessly causing injury. In July 2010, you were convicted at the Ringwood Magistrates' Court on a charge of intentionally causing injury and in September 2011, you were convicted in the County Court at Melbourne of two charges of robbery and one of attempting robbery. The evidence from your prior criminal history of a growing propensity to violence is supported by the descriptions of your abusive relationship with Ms O'Brien and the circumstances of the interim intervention order.

29 You were born in Melbourne in 1966 of Italian immigrant parents. At an early age you were diagnosed with dyslexia and you had learning difficulties. Your childhood was made more difficult because your parents separated when you were 10. Your father had a serious problem with gambling and alcohol and regularly assaulted your mother by punching and kicking. When your mother repartnered, your abusive stepfather would regularly hit you with his fists and his belt. He would later commit suicide. It is likely that your violent attitude towards women has its origins in your upbringing.

30 You started using marijuana at school and had commenced to use amphetamines before you left school. You did two years of a motor mechanic apprenticeship but by 1984 had commenced using heroin and you had begun to offend, mostly committing property offences to support your addiction. By 1986, you had served a short sentence of imprisonment at Pentridge Prison.

31 After your father was killed in a motor vehicle accident and you obtained full time work, you ceased offending for about a decade. During this time you married and had two children, a son and a daughter. However, you began to associate with old acquaintances and relapsed into drug use, primarily heroin. You then began offending to support your addiction. Your wife divorced you.

32 In December 2007, you commenced a relationship with Ms O'Brien, which was described by others as destructive and volatile. You continued to abuse drugs and to offend. In July 2010, you were sentenced by a magistrate to 5 months in prison.

33 On 26 September 2011, you were sentenced in the County Court of Victoria to 18 months' imprisonment with 9 months suspended for 2 years on two counts of robbery and one count of attempted robbery. You served this sentence at the Metropolitan Remand Centre and the Marngoneet Correctional Centre. During your sentence, you were seriously assaulted by being doused with boiling water, suffering full thickness burns over 13% of your body. You needed a skin graft and suffered significant pain for some time after the incident. You were in hospital for about three weeks before being returned to prison and then released back into the community because the remainder of your sentence was suspended. Your assailant was sentenced in September this year to imprisonment for 5½ years with a non-parole period of 4 years on one count of intentionally causing serious injury.

34 In May 2012, when you were seeking victim assistance, you presented to a psychologist who diagnosed you as suffering post traumatic stress disorder with anxiety and depression following on the attack on you in jail. Your psychologist recommended cognitive behaviour therapy as the primary therapeutic treatment. His report was tendered on your plea. Curiously, you are described by this psychologist as not addicted to illicit drugs. You did not complete the recommended therapies.

35 Having ended your relationship with Ms O'Brien when you were incarcerated, you reconciled in July 2012. Your mother and your brother opposed this reconciliation and you lost their support. You relapsed back into heroin use and commenced using ice. From that point until your offending, hospitalisation and return to custody, your life was on a downward spiral.

36 You have pleaded guilty to these offences and you did so at an early stage, at your committal hearing prior to any evidence being called. Because you entered your plea of guilty at the earliest stage, you will receive an appropriate reduction in penalty for your plea as an expression of your remorse and also because, at the early stage at which that plea was indicated, you have saved your victims from the ordeal of giving evidence and the expense and delay of a contested trial.

37 I am not persuaded by your counsel's submission that your remorse for your conduct was evident at the scene from the time of your offending. As I have stated, had you been genuinely remorseful about what you had done when you did it, the incident would not have been seven hours of terrifying suffering for Ms O'Brien and the police would not have needed the Incident Response Team to gain access to her.

38 You have also written a letter to the court that became exhibit D7 and I have read that letter and will take it into account in your favour as appropriate. You express your remorse and regret for your offending and you have explained your motivation in jail to rehabilitate yourself. I note that you do not engage directly with your victims by your expression of remorse. Your apology is limited to a statement to the court that you apologise to your victims, their families, the police and the broader community and you focus in the letter on your own situation, including comments about finding a sense of responsibility and a renewed commitment to no longer use illicit drugs. Nevertheless, I accept that you have expressed significant remorse for your actions and demonstrated some insight into the source of your criminal conduct.

39 That insight affords some hope that you may be rehabilitated by your sentence. Your commitment to drug rehabilitation programs in remand is demonstrated by negative drug screening and successful completion of a number of educational programs that also address your offending behaviour and its causes, including various life skills programs. Your personal history, particularly the decade of your life when you were drug free, did not offend, and enjoyed a family and working life gives hope that rehabilitation is not beyond you. That history also makes clear that your successful rehabilitation will be dependent on you remaining drug free, and attaining that state permanently has in the past eluded you.

40 Whether you can now achieve freedom from drug dependency is up to you, but, on the evidence, the court can only express a guarded optimism that you may succeed this time. I accept that your attitude to dealing with your drug addition is presently positive, and is further evidence of your remorse and your regret about the circumstances that have brought your life to this point. It would seem that if, and it is a big if, you remain drug free your prospects of rehabilitation are reasonable. But for these matters, your prior history of failing to take the chances offered to you for rehabilitation would emphasise the importance of specific deterrence in sentencing you. I will give appropriate weight to those prospects of rehabilitation in mitigation of the sentence that I will impose.

41 Returning to your psychological condition diagnosed after the Marngoneet assault, I accept that you suffered serious physical and psychological injury. You are presently being treated with antidepressant and antipsychotic medication in custody. I accept that your unresolved post traumatic stress disorder, major depressive disorder and agoraphobia may well result in you suffering a more significant burden in serving your sentence than a prisoner in normal health. To a lesser extent, there is a risk that your existing mental condition may deteriorate through your anxiety about the prospect of a further attack upon your person in prison.[2]

42 I also take account of your injuries received when the police fired at you in self-defence. I accept counsel's submission on your behalf that I should take all these matters into account in mitigation of the appropriate sentence and I have done so.

43 The offence of intentionally causing serious injury is the most serious non-homicidal offence against the person and although it encompasses a wide range of conduct and levels of harm, your offending falls at the higher end of the scale. I have explained the aggravating features of your offending that I take into account in assessing the gravity of your offending.[3] These matters warrant the conclusion that a substantial sentence of imprisonment is necessary to deter you, and others, from committing further offences of a like kind. These matters require a sentence that achieves general and specific deterrence, denunciation by the court of your conduct, and protection of the community.

44 Your rehabilitation is a significant purpose to be achieved by this sentence. As I have said, there are a number of mitigating circumstances present. In addition to your personal circumstances, your background and your history, I will take into account in your favour your early plea of guilty and your expression of remorse, your prospects for rehabilitation, and the impact of a sentence of imprisonment on your psychological condition when compared with a healthy offender.

45 I am required to impose a punishment that is limited to what is just in all of the circumstances and of a severity commensurate with the seriousness of your criminal conduct. Both counsel referred me to Nash v The Queen[4] in which the Court of Appeal acknowledged and catalogued the broad range of sentencing dispositions on convictions for intentionally causing serious injury, emphasising the need for consistency. I have considered the sentencing table set out by the Court of Appeal in that case. I have also taken account of other material provided by your counsel, including the statistical Snapshot references. The prosecution made a sentencing range submission[5] and, unsurprisingly, your counsel did not respond to that submission.

46 Taking into account all of the matters to which I have referred and ensuring that I impose a just and appropriate sentence, you are convicted and sentenced to be imprisoned for 11 years on charge 1, of intentionally causing serious injury, and 2 years on each charge of assaulting the police in due execution of their duty.

47 Considering the appropriate sentence for your criminal behaviour in total on that night and bearing in mind the principle of parsimony to ensure that your total sentence is not excessive, I will order some cumulation on one of the police assault charges. That offending was distinct from the offending comprising charge 1 and will be viewed as a single event although it involved three separate victims.

48 I direct that 6 months of the sentence imposed on charge 2 be served cumulatively upon the sentence imposed on charge 1, making a total effective sentence of 11½ years. Otherwise, your sentences are to be served concurrently. I direct that you are to serve a minimum of 8 years and 3 months before becoming eligible for parole.

49 Pursuant to s 6AAA, I declare that the sentence I would have imposed, but for your plea of guilty, would have been 12 years and 3 months on charge 1 and 2½ years on each remaining charge, with cumulation of 9 months, making an effective sentence of 13 years with a minimum term of 9½ years.

50 I declare that you have spent 350 days in pre-sentence detention (not including today) and that this period be reckoned as already served under this sentence, and I direct that the fact of that declaration and its details be entered into the records of the court.

[1] Hasan v R [2010] VSCA 352.

[2] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269, 276 [28].

[3] Cf Nash v The Queen [2013] VSCA 172.

[4] [2013] VSCA 172 (1 July 2013).

[5] A head sentence of between 7-8 years and a non-parole period of between 5-6 years.