R v Mikhail [2020] VSC 681

1 On the morning of 9 June 2019, Dimitri Mikhail[1] did something unforgivable to Maria Fabri - his de facto wife of 19 years and the mother of their three teenage boys. While in their home at Craigieburn, Mr Mikhail, in a frenzied attack, took to Ms Fabri with a sharpened stubby screwdriver. He forced her back onto their couch and stabbed her, not once or twice, but up to 25 times to her chest, shoulders, arms and even her face. Incredibly, perhaps, to many - but consistently with the accounts of victims in many an assault of this type - Ms Fabri did not realise that she was being stabbed or that her partner was even armed. Instead, she thought he was just punching her. As the pounding continued, she yelled out, "You're going to kill me." Chillingly, Mr Mikhail's response was, "Yes, that's what I want to do."

2 Thanks to two of the couple's sons, however, and perhaps also as a result of an extraordinary piece of luck, Ms Fabri's life was spared. The sixteen-year-old twins heard their mother's screams and rushed to her aid. One of them pushed his father aside and restrained him. This stopped Mr Mikhail in his tracks and allowed Ms Fabri to escape. Given his stated intention, it appears certain that Mr Mikhail would have killed her then and there had the boys not bravely intervened. It was only as she ran away and headed to their neighbours' house that Ms Fabri noticed blood dripping. Even then, however, she did not know from where she was bleeding.

3 Next, Mr Mikhail did something half-decent: he immediately apologised to his sons and said he would have to hand himself in to police. Disappointingly, however, he did not live up to that promise. For, as soon as he said it, he was off after Ms Fabri. When he reached her at the neighbours' house, he told her that he loved her. But there was no redemption in this, for, in the next breath, violently and petulantly, he grabbed her by the hair and told her to look into his eyes. Then, turning from bully to coward, he fled in Ms Fabri's car. But that turned out to be rather pathetic too, as police caught him soon afterwards. He was arrested and ultimately charged with attempted murder and other offences. He has remained in custody ever since.

4 Meanwhile, Ms Fabri was rushed away in an ambulance with wounds to her face, chest, shoulders and arms. Some of her chest injuries - which included a collapsed lung - were life-threatening. A deep cut to her upper lip required cosmetic surgery. Fortunately, however, after treatment during a seven-day stint in hospital, Ms Fabri's wounds resolved sufficiently for her to return home. While photographs taken ten days after the assault showed a healed (but noticeable) scar to her lip, it is unknown whether the scar has faded since. I was told that Ms Fabri had "disengaged with the prosecution" and that neither she nor her three children provided victim impact statements.

5 Why would Mr Mikhail do such a horrible thing? It seems that he was set off by something as trivial as Ms Fabri's suggestion, as she was readying herself to head off for work, that he should leave if he was going to continue smoking an "ice pipe" in bed, which he had been doing that morning. Sadly - but nevertheless reflecting his worse-than-useless state at this time - not only had Mr Mikhail been unemployed for ten years, but he had also taken to smoking vast quantities of the character-destroying drug methamphetamine (or "ice"). In fact, he had been on a self-indulgent ice bender for the past couple of days. While the mind-altering effects of that drug may help explain his extraordinary behaviour, the prosecutor did not urge that I should find as an aggravating factor that Mr Mikhail was aware that taking ice might make him so aggressive as to do such a thing. Nor did his counsel submit that any impaired judgment was a mitigating factor.

6 As will be seen, this was not the first time Mr Mikhail had been violent to Ms Fabri. While he had never assaulted her nearly so seriously before, he had often engaged in family violence involving threats, intimidation and damage to property. This had resulted in bouts of separation and intervention orders. As is sometimes seen in relationships afflicted by family violence though, so too here, only a month or so earlier, Ms Fabri had felt sorry for her troubled partner and had taken him back after yet another prior disgraceful incident in April 2019 (upon which I shall expand shortly). But, by exploding with terrifying violence over nothing on this occasion, Mr Mikhail betrayed the trust reposed in him in a most profound way.

7 That said, Mr Mikhail is not without his own story. He had a disturbing early life growing up in war-ravaged Iraq and then in a refugee camp in Syria. His long period of unemployment resulted from being rendered unfit for work as a result of a back injury sustained in 2009. His life then spiralled out of control, with his post-traumatic stress disorder ("PTSD") and depression only worsening when he became unable to work. Having resorted to alcohol earlier in his life, he began using ice in a desultory attempt at self-medication. This eventually developed into a much heavier habit and involved some of the destructive influences that often accompany the use of that putrid drug.

8 Once charged, contrary to his original solicitors' expectations, Mr Mikhail entered a relatively early plea of guilty to attempted murder at a committal hearing conducted by way of straight hand-up brief in the Magistrates' Court. Subsequently, he reneged on that plea in this Court. Ultimately, however, following a case conference before another judge, Mr Mikhail did the sensible thing and reverted to a plea of guilty. He also pleaded guilty to a summary offence of driving away from the house whilst disqualified.[2]

9 Last month, I heard a detailed opening and a plea in mitigation. I received helpful submissions and materials from counsel for each party. I am now in a position to pass sentence upon Mr Mikhail. Before doing so, I shall summarise in more detail the background to, and events surrounding, the offending. I shall also discuss the nature and gravity of the offending, the factors urged in mitigation and the various applicable sentencing principles and purposes. At the conclusion of these reasons, I shall announce sentence.

Summary of background to, and events surrounding, offence

10 As at June 2019, Mr Mikhail and Ms Fabri had been in an on-again-off-again de facto relationship for about 19 years. They have three sons, Antonio (born in 2001) and twin boys Alexander and Enrique (born in 2003).

11 As I have said, there was a history of family violence between the couple. I shall refer to some of that history in more detail later. At this point, however, I shall outline the uncharged incident to which I alluded a moment ago, and which is set out in the prosecution's summary.

12 At 3:00 p.m. on 14 April 2019, Ms Fabri was at home with Mr Mikhail when he began pacing up and down in their lounge room. He was talking to himself and had been acting erratically. Ms Fabri told him that she was heading off in her car to collect her mother in order to go to her sister's house. Mr Mikhail insisted on accompanying Ms Fabri on the drive, despite her resistance. He told her that she could drop him off somewhere, which she agreed to do.

13 As they left, Ms Fabri noticed that Mr Mikhail, who was in the passenger seat, snapped into two pieces a mobile phone he was holding. Without any explanation or discussion, he told her to drive. Ms Fabri did as she was told and kept heading towards her mother's house. During the journey, Mr Mikhail told Ms Fabri that she was ruining his family. He then reached for the car stereo system and tried to remove it, which left the system damaged and hanging from the dashboard. After that, he hit Ms Fabri with an open hand to the top of her head about eight times. Next, he grabbed her by the hair and pulled her face down as she kept driving.

14 Ms Fabri called out for help. As they approached the Craigieburn Police Station, she pulled over to the side of the road and sounded the horn. She managed to get out of the car and run across to the police station, all the while yelling out for help. When inside, she reported the assault. Meanwhile, Mr Mikhail drove off in her car.

15 After this incident, Mr Mikhail moved out of the family home and in with his parents. (I should add that, while originally (but no longer) the subject of a charge or charges, this incident was relied on by the prosecution only to place the later attempted murder in context.) About three weeks later, Ms Fabri allowed Mr Mikhail to move back again, as she felt sorry for him when he told her that he would kill himself if she did not let him come home.

16 Initially, upon his return, things were going well. However, early in June, a disagreement arose between the couple about money.

18 On Sunday 9 June 2019, Ms Fabri awoke at 7:00 a.m. to ready herself for work. Before she got up, she noticed Mr Mikhail smoking his glass pipe in bed. She was aware that he used the drug ice and believed that this was what he was smoking at the time.

19 At around 8:10 a.m., Ms Fabri told Mr Mikhail that he needed to leave the house. She was concerned that he was using ice and wanted him to go. He did not say anything in response.

20 Instead, he approached and immediately punched her in the chest. She ended up on their couch. He continued to strike out at her chest, arms, shoulders and face. Ms Fabri was unaware at the time, but Mr Mikhail held a stubby black-and-yellow-handled sharpened screwdriver and was stabbing her with it. As indicated earlier, he did so in the order of 25 times. (I should add that it is not alleged by the prosecution that Mr Mikhail had sharpened the screwdriver for the purpose of assaulting Ms Fabri.)

21 During the attack, Ms Fabri ended up seated on the couch with Mr Mikhail standing over her. She was screaming out for help and was yelling, "He is going to kill me." At one point, she yelled directly to him, "You're going to kill me," to which he replied, "Yes, that's what I want to do."

22 This was overheard by their son Alexander, who left his bedroom and entered the lounge room where his parents were. Next, Enrique followed his twin brother to the lounge room after hearing his mother screaming. Alexander saw his father on top of his mother on the couch with something in his hand. Enrique noticed that it was a screwdriver. Alexander pushed his father away from his mother and held him as she fled the house. Mr Mikhail then said repeatedly to his sons that he was sorry and that he would hand himself in to police.

23 Ms Fabri ran from the house to her neighbours' home. (As I said earlier, it was then that she noticed she was bleeding, but she did not know from where.) Ms Fabri banged on the front door and asked for an ambulance. Salwa Aboubakr opened the main door but kept the security door closed. She saw Ms Fabri standing on her doorstep crying and saying that her husband was trying to kill her. Ms Aboubakr told her daughter, Christina Bebawy, to call police and an ambulance. Ms Bebawy came to the door and saw Ms Fabri bleeding and with a chunk of her lip missing. She heard Ms Fabri say, "He is going to kill me."

24 Mr Mikhail then came running up to the door. He was telling Ms Fabri that he loved her. He said that he knew that she would have called the police. He grabbed her by the hair and told her to look into his eyes when he spoke to her. She appeared scared and was crying. Ms Aboubakr pleaded with Mr Mikhail to leave Ms Fabri alone.

25 Mr Mikhail then said that the police would have to arrest him. He ran back towards the family home and then took off in Ms Fabri's car. At the time, he was disqualified from driving. (Three years earlier, he had lost his licence for four years for refusing a drug test.)

26 Soon afterwards, an ambulance arrived and transported Ms Fabri to the Royal Melbourne Hospital, where she remained for the next seven days for treatment of her injuries.

27 As a result of the attack, Ms Fabri suffered multiple stab wounds, including six to the front of her chest, two to her upper right shoulder and 12 or 13 to her arms. She also sustained a wound to her face below her right eye and a full thickness splitting of her upper lip, which required cosmetic surgery. There was a collection of air in the space between the two membranes covering the left lung in the chest, which caused her lung to collapse (viz, a pneumothorax). The chest injuries were life-threatening and required emergency life-saving treatment. She also had a potential finger flexing muscle injury.

28 Police attended the family's home and observed blood in numerous locations. They also found the black-and-yellow-handled screwdriver on the front lawn.

29 Mr Mikhail was found by police later that same morning and arrested. He was charged with attempted murder and other offences. He has been held in custody ever since.

30 On 6 December 2019, Mr Mikhail faced a committal hearing in the Magistrates' Court. As Ms Fabri and one of her sons were to be called as witnesses, they attended court for that purpose. But it was determined that the matter would proceed by way of straight hand-up brief, without any cross-examination of witnesses and with a plea of not guilty. However, when the magistrate administered the committal caution, Mr Mikhail, to the surprise of his solicitors, pleaded guilty to attempted murder. The matter was stood down to allow Mr Mikhail's solicitors to discuss the matter with him, but, when the process was repeated, he pleaded guilty again.

31 On 19 December 2019, the matter came before this Court. Mr Mikhail indicated that he would withdraw his offer to plead guilty. The matter was listed for a trial to commence on 1 September 2020.

32 However, following a case conference on 26 June 2020 before another judge, the matter ultimately resolved again (on 30 June) as a plea of guilty to attempted murder. When arraigned on that charge on 7 July, Mr Mikhail pleaded guilty.

33 As I indicated earlier, I was informed by Ms Churchill, who appeared with Ms Clancy for the Director, that Ms Fabri had "disengaged with the prosecution" and that neither she nor her three children had filed victim impact statements.

34 As Ms Churchill submitted, however, the impact upon Ms Fabri is apparent from (at least) the following facts:

(a) At the time of the attack, Ms Fabri feared for her life and for the safety of her children.

(b) She suffered life-threatening injuries and required emergency life-saving treatment while in hospital for seven days. She also required cosmetic surgery to her lip.

(c) After leaving hospital, she was forced to reside with family and to make plans to relocate.

35 Further, the impact upon Ms Fabri and Mr Mikhail's children, who witnessed at least part of the extreme violence perpetrated against their mother, can be inferred to have been significant.

36 Ms Churchill conceded, however, that, while it would be reasonable to expect ongoing emotional turmoil or trauma resulting from the offence, it appears that Ms Fabri's physical injuries had resolved and there was no evidence of any ongoing physical disability or complications. Ms Churchill also accepted that, while photographs taken ten days after the assault depicted a visible scar on Ms Fabri's upper lip, there is no evidence that the scar is still there.

37 I turn now to the nature and gravity of the offence.

38 Attempted murder is made an offence by a combination of the common law of murder and the statutory offence of attempt.[3]

39 While the gravity of attempted murder and its associated penalties vary widely, it is, by definition, a relatively serious offence. For a start, the offence carries a maximum penalty of 25 years' imprisonment.[4] After life imprisonment, this is the heaviest maximum penalty in the criminal calendar in Victoria.

40 Further, the gravity of the offence is reflected by the usually very high moral culpability inherent in the commission of the elements of the offence. Attempted murder requires proof that the accused engaged in conduct that was sufficiently proximate to the commission of murder in order to amount to an attempt to commit that offence and which was performed with an intention to kill.[5] An intention to cause really serious injury will not suffice.

41 As Ms Churchill submitted, this instance of attempted murder had some very serious features, including the following:

(b) Second, Ms Fabri was in her own home at the time, where she was entitled to feel safe.

(c) Third, she was Mr Mikhail's de facto partner of 19 years. He had been allowed by Ms Fabri to return home notwithstanding recent family violence and yet this offending involved a gross breach of the trust she had reposed in him.

(d) Fourth, Mr Mikhail was someone of whom Ms Fabri was particularly afraid, given his extensive history of family violence perpetrated against her.

(e) Fifth, Mr Mikhail armed himself with, and repeatedly used, a dangerous weapon for the purpose of the attack.

(f) Sixth, Ms Fabri, by way of contrast, was unarmed and utterly defenceless.

(g) Seventh, Mr Mikhail stabbed Ms Fabri without warning and kept stabbing her - about 25 times - until he was stopped by two of their teenage sons.

(h) Eighth, he committed the offence knowing that his and Ms Fabri's three children were home. The sixteen-year-old twins witnessed the offence in part and the eighteen-year-old was woken by his mother's screams. It must have been a terrifying experience for the whole family.

(i) Ninth, after attempting to kill Ms Fabri, Mr Mikhail assured his sons that he was going to hand himself in to the police, but instead went after Ms Fabri to their neighbours' home, where she was seeking refuge from him, and further assaulted her by grabbing her by the hair, demanding that she look him in the eye.

(j) Tenth, Ms Fabri suffered life-threatening injuries, albeit that there is no evidence of any ongoing physical disability or noticeable scarring.

(k) Finally, Mr Mikhail's moral culpability for the offending is even higher given the background of extensive family violence against which it occurred. While some of that history resulted in family violence intervention orders ("FVIOs"), criminal charges were also laid on occasions.[6] As for the criminal matters, in short, Mr Mikhail was sentenced on four separate occasions in June 2015, March 2016, March 2017 and August 2017 for numerous offences, including damaging property, assault with a weapon, burglary, using a carriage service to harass another and persistent breaches of FVIOs. Respectively, he received sentences of a community correction order ("CCO"), then a CCO combined with a four-month prison sentence, then a forty-five-day prison sentence, and finally a twelve-month prison sentence with a non-parole period of six months. Accordingly, he must have been acutely aware of the wrongfulness of his conduct.

42 Ms Churchill also submitted that another factor that increases the objective gravity of the offending is that there was an FVIO in place at that time to protect Ms Fabri from Mr Mikhail. While police had not served the order upon Mr Mikhail by the time of the offending, and therefore he could not be in breach of it by that offending, Ms Churchill submitted that it was significant that he was aware (i) that an application for an FVIO had been made by police; (ii) that he had been bailed to appear for the purpose of the hearing of the application for the FVIO on 24 April 2019; (iii) that it was a condition of his bail not to attend Ms Fabri's home; and (iv) that he failed to answer his bail and appear on the application for the FVIO.

43 Mr Malik, who appeared for Mr Mikhail, submitted that, since his client was not aware that the FVIO had been made, its existence could not be taken into account as an aggravating factor. It would be different, he submitted, if Mr Mikhail had been served with the order and its conditions had been explained to him, in the usual way.

44 I accept Mr Malik's submission. In my view, it would be wrong to treat the bare existence of the FVIO as increasing the objective gravity of the offending or as an aggravating factor in circumstances where Mr Mikhail was not aware of the existence of any such order or its conditions. The point is complicated by the fact that it is alleged that he was aware that an application for such an order had been on foot and that a bail condition prohibited him from attending Ms Fabri's home. It might be said that awareness of those things alone adds to his moral culpability. But, while his behaviour that resulted in Ms Fabri having him back in the home may be regarded as manipulative (he had plaintively suggested he would kill himself), the fact is that she did allow him to be there. To my mind, that must neutralise any suggestion that he ought not to have been there or that he ought to have believed or understood that he should not be there.

45 None of that is to say that it is irrelevant that Mr Mikhail committed this offence, it seems, in response to Ms Fabri's suggestion that he should leave if he was going to keep smoking ice in bed. On the contrary, it is relevant, for it shows other things unhelpful to his cause - for example, that the offence was not in any meaningful sense provoked, that his response to that perfectly justified suggestion was both extreme and out of control, and that his moral culpability is increased on those accounts alone. But the offence is neither aggravated nor of greater objective gravity by reason of the mere existence of an FVIO of which he was not aware.

46 On the other hand, there are several factors limiting the gravity of this instance of attempted murder, including the following.

(a) First, the offence was spontaneous. There seems to have been no planning or premeditation at all.

(b) Secondly, as serious as the injuries were initially, fortunately, they appear to have healed with no ongoing physical disability.

(c) Thirdly, and, again, while it was serious enough as it is, nevertheless, this was not a case of so-called "spousal revenge", in which a jealous man was attempting to punish his partner for daring to leave him and turn her affections to another.[7]

(d) Fourthly, while it seems plain enough that his sons prevented him from continuing the assault, and while he was aggressive again when at the neighbours' house, there is no suggestion that Mr Mikhail attempted or intended to continue with the stabbing once he had been stopped.

(e) Finally, while I have already pointed out that he reneged on his promise to go to the police as quickly as he made it, Mr Mikhail at least apologised to his sons immediately after the stabbing ceased.

47 While it is sometimes said that attempts at classification of the gravity of an offence are unhelpful, or may even be apt to mislead, I think that those who have an interest in the process (especially the accused and the Director) are entitled to make submissions on the point and hear the Court's view as to where the particular offence fits on a scale of objective gravity.

48 Mr Malik submitted that this is a mid-range example of the offence, mainly because of its spontaneous nature and the absence of permanent disabling physical injuries.

49 Ms Churchill submitted that this is a very serious example of the offence. While not at the highest end, in her submission, given the constellation of aggravating or grave features of the offence, it fell above the mid-range of objective gravity.

50 Recognising that there are limitations in employing any sort of taxonomy, and paying heed to the cautionary remarks made by the Court of Appeal on this topic in recent years,[8] I think that Ms Churchill's submission is closer to the mark. While it is far from among the worst categories of objective gravity encountered in practice, I think the various features just listed place this case above the mid-range of objective gravity of instances of attempted murder. But for its spontaneous nature and the absence of permanent grave or catastrophic injuries, this would have been a case approaching the upper end of the spectrum of objective gravity.

51 I turn now to Mr Mikhail's background and personal circumstances in more detail, as conveyed by Mr Malik and in the psychological report of Sandra Cokorilo (which report was received in evidence without objection). As will be seen, some aspects of these circumstances have greater or lesser relevance to sentencing.

52 Mr Mikhail was born in Iraq on 25 August 1975. He is aged 45 and was 43 at the time of the offending. He is one of six children - he has one sister and four brothers.

53 While Mr Mikhail was living in Iraq, the country was at war. He witnessed shootings, bombings and air raids. As a child, he would hide under the stairs and inside rubbish bins. Friends and family members (including three uncles) were killed during the war. This caused Mr Mikhail to fear for his own life.

54 At the age of 16, Mr Mikhail headed to Syria with his family to escape the war. Once there, he and his family lived in a tent in a refugee camp. During this time, food was scarce, and the family was poor as his parents were unable to work. They lived in Syria for five years before immigrating to Australia in 1995, when Mr Mikhail was aged about 20.

55 At the age of seven, and again at the age of eleven, Mr Mikhail was the victim of sexual abuse. On the first occasion, he and his brother were abused by two men. On the second occasion, he was abused by a man he knew. He felt scared and ashamed and has never disclosed the abuse to anybody previously.

56 As a result of the war in Iraq, Mr Mikhail was unable to attend school beyond the equivalent of Grade 3. It was common practice for teachers to punish students with a stick, but he was also punched and kicked. He never attended school in Syria. He did not undertake any further education until he came to Australia, where he completed six months at an English language school. He has had no further formal education since.

57 Mr Mikhail began working at the age of 21 or 22 in a factory, making fences. He held that job for five years. He later worked as a forklift driver (for three years) and as a welder (for two years).

58 In 2008, Mr Mikhail suffered a workplace injury. Despite returning to light duties for 12 months, he was not able to continue working because of ongoing pain. He has been in receipt of a Disability Support Pension and has not worked since 2009.

59 Mr Mikhail's only serious relationship was with Ms Fabri, whom he met in 1998. They became a couple from 2000.

60 As indicated earlier, they have three sons - Antonio (aged 19) and twins Alexander and Enrique (aged 17). Mr Mikhail told the psychologist that he had a positive relationship with his sons when they were younger but explained that their relationship declined as they became more involved with their friends and technology.

61 Since his arrest in June last year, Mr Mikhail has received no contact from Ms Fabri or their children.

62 Mr Mikhail began drinking alcohol as a teenager in Syria. Prior to his remand, he was drinking, on average, half a bottle of spirits or seven to eight cans of beer about three times a week. While he has lost his driver's licence twice as a result of drink-driving, he told the psychologist that he did not regard alcohol as a problem for him.

63 Mr Mikhail began using ice in 2009 in the context of his inability to work and depression. In the years preceding the offending, Mr Mikhail's use of ice had escalated to smoking approximately 17 points every two to three days. Usually, he would smoke ice for five days and then sleep for two days. He reported smoking ice for two days leading up to the offending and of having had no sleep for several days.

64 He has found abstinence from using ice difficult in prison. While drug and alcohol counselling he received in custody has been helpful, he still has occasional cravings for ice. He told the psychologist that he does not know whether he would be able to abstain if the drug were available to him.

65 He also reported a family history of ice use with three of his brothers.

66 In relation to his medical history, Mr Mikhail reported that he lost consciousness after consuming the illicit drug "GHB" in 2015 or 2016. An ambulance transported him to a hospital for a neurological scan, but he failed to return to the hospital or obtain the scan results.

67 As for his mental health, Mr Mikhail reported being diagnosed with depression in 2009 following his work-related injury. He told the psychologist that he was suicidal at the time. His general practitioner called a Crisis Assessment and Treatment Team after he attempted suicide by overdosing on painkillers. He was referred to a psychiatrist and prescribed duloxetine (Cymbalta), which he took for approximately 12 months until he started self-medicating with ice.

68 Since being in custody, Mr Mikhail has been prescribed Cymbalta and other medication to manage his nightmares and flashbacks. He has completed a mental health programme in custody and is waiting to commence another one. He denied current suicidal thoughts, plan or intent. In the psychologist's opinion, he continues to experience symptoms of severe depression in custody, despite adherence to pharmacological treatment.

69 The psychologist also opines that Mr Mikhail suffers from PTSD, which resulted from his experiences in Iraq. He received no treatment for this condition, which worsened following his workplace injury in 2009 and resulted in a major depressive disorder ("MDD") as well. In the psychologist's view, it is likely that these conditions led to Mr Mikhail's use of ice, given he used this drug to self-medicate after taking anti-depressants for 12 months following the suicide attempt I mentioned a moment ago (from overdosing on painkillers).

70 Despite Mr Mikhail's PTSD and MDD, Mr Malik expressly eschewed reliance on the first principle of Verdins[9] because of his client's voluntary use of ice in the lead-up to the offending. However, Mr Malik did submit that Mr Mikhail's mental health conditions are relevant to the exercise of the sentencing discretion given the following findings in the psychological report:

[86] MDD and PTSD results in increased irritability, frustration, stress and anger which can result in displacement of these emotions, leading to episodes of extreme behavioural dyscontrol or violence. Fazel et al (2015) found that the risk of violent behaviour in those with clinical depression was three times more likely than the general population. Mr Mikhail's emotional state can alter cognition and behaviour, thus impairing impulse control, ability to rationalise, consider alternative responses, and impact decision-making.

[87] His symptoms as a whole are relevant to the offending, in that they fluctuate in intensity and frequency, however, are particularly prone to exacerbation under situations of extreme stressor in comorbidity with other mental health issues or substance use.

[88] His prolonged self-medication with substances further heightened Mr Mikhail's risk of engaging in impulsive and reckless behaviour, as well as further impairing insight, decision-making and judgment. There was a pattern of escalation in his offending as a function of increased substance use where in itself while providing initial solace and escape, can impair cognitive ability, and result in emotional dysregulation, disinhibited and poorly considered behaviour, as was evidenced in Mr Mikhail's case.

[89] The factors outlined above are linked to Mr Mikhail's behaviour and impaired functioning at the time of the offending. Whilst his acute intoxication with methamphetamine contributed to actual commission of the offence, his chronically poor mental health also played a significant underlying role.

71 Mr Malik went on to submit that Mr Mikhail's voluntary drug taking was not an aggravating feature of his offending as it was not open to be satisfied, beyond reasonable doubt, that he knew that it was a likely consequence of his ice use that he would become violent. Despite using ice since 2009 and being a heavy user of the drug in the years leading up to the offending, there is an absence of particularly violent offending in Mr Mikhail's prior criminal history, save for a conviction for assault with a weapon in 2013. Ms Churchill made no submission to the contrary. As I indicated earlier, I am prepared to act on those submissions and concessions.

72 I turn now to the mitigating factors urged by Mr Malik on behalf of Mr Mikhail.

73 The first factor in mitigation concerns Mr Mikhail's pleas of guilty, especially to attempted murder.

74 Mr Malik submitted that it should be regarded as an early plea of guilty. Mr Mikhail pleaded guilty at the committal stage. Although he then initially indicated, in this Court, that the matter would proceed to trial, he did not deny committing the charged acts. Rather, as Mr Malik explained, the issue was whether he intended to kill Ms Fabri. For a time, he could not bring himself to admit that he did so. Later, however, following a case conference, Mr Mikhail reverted to a plea of guilty. Thus, all witnesses (including Ms Fabri and the children) were spared the ordeal of giving evidence, and no pre-trial argument was conducted.

75 Ms Churchill submitted that this was not an early plea of guilty. While Mr Mikhail pleaded guilty at the committal in December 2019, Ms Fabri and one of the children were scheduled to give evidence and they attended court for that purpose. Further, the expectation that they would not be required as witnesses in this Court was dashed when Mr Mikhail indicated a plea of not guilty. His reversion to a plea of guilty did not come until a case conference in June. Ms Churchill conceded, however, that he was entitled to the utilitarian benefit of his guilty pleas.

76 In my view, while this was not the earliest of pleas of guilty, it was still of very significant weight in mitigation, for several reasons:

(a) First, as explained earlier, Mr Mikhail did in fact plead guilty to attempted murder at the committal.

(b) Secondly, while Ms Fabri and one of her sons were scheduled to give evidence at the committal, they were not required to do so because of Mr Mikhail's plea.

(c) Thirdly, while he initially indicated a plea of not guilty in this Court, he ultimately reverted to a plea of guilty following a case conference.

(d) Fourthly, again, no witnesses were required to be called in this Court.

(e) Fifthly, while this was perhaps a stronger case than many an attempted murder, experience tells that juries are often reluctant to convict of this offence, even in strong cases. Conventional wisdom is that this is because it might be said that, if the accused really intended to kill, the person would be dead. Put around the other way, that the person is alive might suggest a lack of intent to kill.

(f) Sixthly, while simple enough in some respects, this would have been a difficult and distressing trial, especially for Ms Fabri and the children.

(g) Seventhly, as other judges of this Court have observed recently, the utilitarian benefit of a plea of guilty is increased at the present time given the backlog of trials in the wake of the COVID-19 pandemic.[10]

(h) Finally, I am satisfied that the plea signifies a willingness to facilitate the course of justice.

77 Accordingly, while it would have been an even more worthy plea had it been entered earlier in the Magistrates' Court and had there been no hesitation to honour that plea in this Court, I am nevertheless satisfied that Mr Mikhail's plea of guilty to attempted murder is a very significant matter in mitigation.

78 The second matter in mitigation is that Mr Mikhail is sorry for his behaviour and the harm he has caused. While I do not accept that he is completely and utterly remorseful, I am satisfied that he is ashamed of, and troubled by, what he has done, and that he has a level of empathy for Ms Fabri. There are three sources of evidence that drive me to that conclusion.

79 First, Mr Mikhail's pleas of guilty, including the fact that he has pleaded guilty to attempted murder, no less, tend to suggest remorse.

80 Second, in her report, Ms Cokorilo noted the following:

[Mr Mikhail] admitted that his lawyer has shown him photographs of [Ms Fabri's] injuries and stated that he felt "sick in [his] stomach", acknowledging that she would have been scared and expressing remorse for his actions.

[Mr Mikhail's] expression of remorse and emotional distress when discussing the attempted murder charge and injuries [Ms Fabri] sustained appeared genuine and sincere.

82 Ms Churchill submitted that the expressions of remorse recorded in the psychological report are perfunctory and more indicative of shame than genuine remorse. In her submission, they did not sit comfortably with the psychologist's observations elsewhere in the report to the effect that Mr Mikhail was guarded and sought to minimise or rationalise his behaviour. But, as I understood those aspects of the report, they related to the period before he had entered the plea of guilty and in a context where he believed the psychologist was unaware of the detail of the allegations. Once Ms Cokorilo articulated the detail of the case and it became apparent to Mr Mikhail that she was aware of what he had done, it was then that she made the observations about his remorse.

83 In those circumstances, as I have said, I am prepared to conclude that there is some shame, insight and remorse, but I do not accept that he is completely and utterly remorseful.

Poor mental health - impact on moral culpability

84 The third matter in mitigation is that I accept Mr Malik's submission that Mr Mikhail's mental health conditions are relevant to the exercise of the sentencing discretion.

85 I should say at once that I perceived some tension between that submission and Mr Malik's eschewal of reliance on the first principle of Verdins. This is because the relevance of Mr Mikhail's mental health conditions stems, at least in part, from one aspect of the unchallenged psychological opinion of Ms Cokorilo. This aspect of her opinion is summed up in the last of the passages extracted from her report and set out earlier in these reasons, which I reproduce again here for convenience:

[89] The factors outlined above are linked to Mr Mikhail's behaviour and impaired functioning at the time of the offending. Whilst his acute intoxication with methamphetamine contributed to actual commission of the offence, his chronically poor mental health also played a significant underlying role.

86 In my view, this opinion does go to moral culpability (which relates to the first principle in Verdins), albeit in only a modest way. In particular, despite the importance of the contribution of his ice use to his offending behaviour, Ms Cokorilo's opinion and the extreme nature of his actions satisfy me that there is a sufficiently strong connection between Mr Mikhail's PTSD and MDD, his impaired insight, decision-making and judgment and the offending itself to warrant some modest reduction in what is still very high moral culpability for that offending.

Poor mental health - increased hardship of imprisonment and worsening thereof

87 The fourth and fifth factors in mitigation concern the following aspects of Ms Cokorilo's opinions:

[116] Mr Mikhail's mental health issues would likely be further exacerbated by a period of imprisonment unless he is properly supported. His PTSD with its marked alterations in arousal and reactivity and intrusion symptoms produces overwhelming challenges that would weigh more heavily upon him and possibly worsen his conditions. The concern with incarceration is that it would place Mr Mikhail at increased risk of further emotional deterioration in view of his low coping resources resulting in him being subject to a substantially and materially greater than ordinary burden.

[117] Further, he is unlikely to receive the specific treatment he requires in custody for PTSD, which makes it likely that his mental health may be worsened, particularly as his symptoms may be exacerbated by the volatile nature of the prison environment. Access to programmes and treatment in prison is generally reduced and with the current COVID-19 pandemic, it is unlikely that Mr Mikhail's mental health will be adequately treated.

88 I accept that evidence. In consequence, I accept that, because of his PTSD, the burden of imprisonment will be heavier upon Mr Mikhail than usual and that there is a likelihood that his condition will be exacerbated, particularly while access to programmes and treatment in custody is suspended during the COVID-19 pandemic.

89 I mentioned earlier that Mr Mikhail has had no contact with Ms Fabri or their sons since his arrest. I was not told whether he has had, or expects to receive, any visits from his siblings or others. It seems that his time in custody is likely to be rather lonely and bleak.

90 While Ms Churchill conceded that custody would be more burdensome for him, she submitted that it was speculative to say that he would not receive treatment such that his condition would worsen.

91 I disagree. Even if there is someone who might want to visit Mr Mikhail, the reality is that no-one has been able to do so for the last seven months and will not be able to do so for an indeterminate time into the future. From March this year, as a result of the COVID-19 pandemic, personal visits were suspended in Victoria's prisons, as were educational programmes and many recreational activities. Prisoners are kept locked down in their cells for far longer periods than usual. Further, there is the ever-present feeling of vulnerability to contracting the virus in an environment over which the prisoner has no control. These are factors that would add to the hardship of imprisonment for any prisoner. But they must be all the more difficult for a prisoner with Mr Mikhail's afflictions.

92 Just how long the virus will remain a threat, or how long these restrictions will remain in prisons, is unknown. To that extent, Ms Churchill might be thought to be correct. It is, however, safe, I think, to proceed on the basis that the COVID-19 restrictions that have been in place since March are likely to continue into the foreseeable future, as uncertain and as indeterminate as that might be.

93 The final matter in mitigation concerns Mr Mikhail's prospects of rehabilitation.

94 Mr Malik accepted that Mr Mikhail's prospects of rehabilitation are linked to his capacity to remain abstinent from drugs and to engage in behavioural programmes directed towards his anger management issues and therapy to address his underlying mental health difficulties (and in particular the previous trauma that he has suffered). He submitted that, while Mr Mikhail's prospects may be guarded at present, he has stated a desire to address his mental health issues, has demonstrated some insight into the connection between those factors and the offending, and has expressed long-term plans of gaining employment. Mr Malik also submitted that there is some support for that motivation, having regard to the courses that Mr Mikhail has completed in custody to date.

95 In my view, for these reasons, Mr Mikhail's prospects of rehabilitation are guarded and perhaps reasonable, at best. His long history of mental health and drug abuse issues, coupled also with his history of family violence and other offending, do not augur well for the future. In addition to his family violence convictions, Mr Mikhail was convicted of affray and intentionally causing injury in 2004, for which he was sentenced to two years' imprisonment with a non-parole period of nine months.

96 On the other hand, his pleas of guilty and remorse, his completion of courses before the COVID-19 restrictions were introduced and his apparently growing insight all point towards more reasonable prospects in the longer term.

97 Hence my conclusion that his rehabilitative prospects are best described as guarded to reasonable.

99 Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

General deterrence, denunciation and just punishment

100 In my view, general deterrence, just punishment and denunciation are important sentencing purposes in this case. The community should understand that behaviour of the type engaged in by Mr Mikhail is denounced by the courts. It must be understood as well that such behaviour will result in a substantial term of imprisonment, one that reflects that an attempt has been made on an intimate partner's life in the context of a long history of family violence and also that his partner and children must have been terrified at what they endured and/or witnessed.

Specific deterrence and protection of the community

101 I am satisfied that there is a need for weight to be accorded also to specific deterrence and protection of the community, particularly given Mr Mikhail's history of family violence and his criminal history. On the other hand, that need is moderated to some extent by the fact that Mr Mikhail pleaded guilty and has shown some remorse.

Rehabilitation and protection of the community

102 While I have assessed Mr Mikhail's prospects of rehabilitation as guarded to reasonable, at best, I think that rehabilitation remains an important purpose in fixing sentence. There are at least two reasons.

103 First, that Mr Mikhail has some prospects of rehabilitation makes rehabilitation a sentencing purpose that must be afforded weight.

104 Secondly, and despite my remarks about the need to give weight to protection of the community, I think it is important to recognise the interplay between rehabilitation and protection of the community in any event. Mr Mikhail will be returning to the community ultimately. It is therefore in the community's interests that such prospects of rehabilitation as he has be maximised, and that he is not crushed, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into society are also as strong as they can be.

105 Section 5(3) of the Sentencing Act, relevantly, provides that "a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed". This provision reflects the common law principle of parsimony. I have applied this provision and this principle when considering the appropriate sentence in this case.

106 In so far as I can determine them, I have had regard to current sentencing practices for attempted murder.

107 The Sentencing Advisory Council's only Sentencing Snapshot for attempted murder shows that, for the period from 2001-02 to 2005-06, prison sentences for this offence ranged from about six to eighteen years' imprisonment; that the average (mean) sentence was about ten years' imprisonment; and that the median sentence was eight years' imprisonment. During the same period, non-parole periods (on both head sentences for single instances of attempted murder and total effective sentences that included sentences for offences of attempted murder and other offences) ranged from three years to twenty years; the median non-parole period was eight years; and the modal non-parole period was also eight years.[11]

108 The Council's more recent compilation of sentencing statistics for attempted murder - the SACStat Higher Courts - shows that, for the period July 2013 to June 2018, sentences for this offence ranged from four to twelve years' imprisonment; that the median sentence was eight years' imprisonment; and that the average (mean) was about eight-and-a-half years' imprisonment.[12]

109 These statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations - such as the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. The Sentencing Snapshot is also somewhat out of date, being more than a decade old, whereas the SACStat is far more recent. Nevertheless, they do give some guidance.

110 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices.

111 Counsel referred to five cases of attempted murder of an intimate partner.[13] I shall not rehearse their details here, other than to say this. The sentences were imposed in 2007, 2013, 2017, 2018 and 2019. The individual sentences imposed ranged from eight to fourteen years' imprisonment. All involved pleas of guilty, one quite late, but the circumstances of each case otherwise differed to a greater or lesser degree.

112 It is possible to make nuanced comparisons between these comparators, the present case and others. But, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. None of those I considered was quite the same as the present case. And, in any event, sentences are not precedents to be applied or distinguished.

113 Nevertheless, I have found the other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for attempted murder, particularly where the victim is the accused's spouse, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.

114 In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this offence of attempted murder.

Totality and the loss of pre-sentence detention

115 One final matter to which I must have regard concerns the impact of another sentence currently being served by Mr Mikhail upon the sentence I am about to impose and the application of the principle of totality.

116 At the plea hearing, I was informed that, on 13 August 2020, Mr Mikhail was sentenced to three months' imprisonment for a charge of attempted robbery at Crown Casino. No pre-sentence detention was declared.

117 By the combined operation of ss 15, 16, 17 and 18 of the Sentencing Act, I understand that the following things have occurred or will occur:

(a) Mr Mikhail has been serving the three-month attempted robbery sentence for the last two months or so.

(b) The service of the attempted robbery sentence has thus far reduced by about two months the pre-sentence detention capable of being declared as having been served under the head sentence and non-parole period I am about to impose for attempted murder.

(c) Unless I order otherwise (which I do not intend to do), the head sentence and non-parole period I am about to impose will commence today (less the pre-sentence detention to be declared) and will be served concurrently with the balance of the attempted robbery sentence.

(d) It follows that, whatever sentence I impose today, that head sentence and non-parole period will be added to by about two months on account of the two months or so of pre-sentence detention lost because it is attributable only to the attempted robbery sentence.

(e) It also follows that, if I form the view that, as a matter of totality, I would have ordered the attempted robbery sentence to be concurrent, partly cumulative or wholly cumulative upon the attempted murder sentence, I must either adjust the attempted murder sentence accordingly, leave it untouched or order that it be served cumulatively (wholly or in part) upon the attempted robbery sentence, as the case may be, depending upon precisely what outcome I intend to achieve.

118 As it happens, while I do not know much about the attempted robbery, I am satisfied that, had I been dealing with it at the same time as the attempted murder, I would have ordered that the sentence thereon be served wholly concurrently with the sentence on the attempted murder. This is because, while they are quite distinct offences, the former sentence is miniscule by comparison with the sentence I am about to impose for the attempted murder.

119 In order to achieve that result now, I must impose a head sentence and non-parole period about two months shorter than I would have done had the two months of the attempted robbery sentence not been served already. While this may smack of two-stage sentencing, it is an unavoidable consequence of ensuring fairness and compliance with the principle of totality.

120 Accordingly, it will be apparent that the sentence I am about to impose is comprised of terms that are perhaps unusual for a sentence of this magnitude.

123 While, as we have seen, he had, and will continue to have, his own demons and hardships to battle, history nevertheless shows that Mr Mikhail was not much of a man for the decade prior to his arrest in June last year. His illicit drug use and family violence over that period culminated in ice-fuelled behaviour as breathtaking in its savagery towards Ms Fabri as it was miraculous in its outcome. Hopefully, when he returns to the community after serving the sentence he is about to receive for that offence, Mr Mikhail will conduct himself over the remainder of his life in the manner his family and the community reasonably expect.

124 Balancing all matters as best I can, for the attempted murder of Ms Fabri, Mr Mikhail is convicted and sentenced to eleven years and four months' imprisonment with a non-parole period of eight years and one month.

125 Mr Malik submitted that Mr Mikhail should be afforded the opportunity of a long period on parole. I agree. The non-parole period has been fixed in the hope that Mr Mikhail will work in prison towards his earliest release and that he will then have a long period of supervision in the community upon parole. It is intended that those outcomes will redound to the benefit of Mr Mikhail and the community in the longer run.

126 On the summary offence of driving whilst disqualified, Mr Mikhail is convicted and discharged. I make no order against his licence.

127 Pursuant to s 18 of the Sentencing Act, I declare that 432 days of pre-sentence detention, including today, be reckoned as served under this sentence.[14]

128 Finally, pursuant to s 6AAA of the Sentencing Act, I declare that, had Mr Mikhail pleaded not guilty but been found guilty following a trial, I would have imposed a sentence in the order of fourteen years and four months' imprisonment with a non-parole period of eleven years and four months.[15]

[1] In 2005, Mr Mikhail changed his surname to Mikhail from Toma.

[2] Contrary to s 30(1) of the Road Safety Act 1986 (Vic).

[3] In this State, murder is (mostly) a common law offence and attempt is a statutory offence (see s 321M of the Crimes Act 1958 (Vic)).

[4] See ss 3 and 321P(1A) of the Crimes Act 1958 (Vic).

[5] See s 321N of the Crimes Act 1958 (Vic).

[6] I should add that I have had regard to the chronology of family violence incidents and summaries annexed to the prosecution submissions.

[7] See, for example, The Queen v Brew [2013] VSC 131 at [41] (per Osborn JA).

[8] See, for example, DPP v Weybury [2018] VSCA 120; (2018) 84 MVR 153 at 165[33]-[34] (per Maxwell P and Hargrave JA); Walsh v The Queen [2018] VSCA 334; (2018) 87 MVR 76 at 84[28] (per Priest and Weinberg JJA); Lee v The Queen [2018] VSCA 343 at [31]- [32] (per Ferguson CJ, Priest and Beach JJA); Nelson v The Queen [2020] VSCA 219 at [43] (per Hargrave and T Forrest JJA).

[9] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[10] See, for example, DPP v Bourke [2020] VSC 130 at [32] (per Jane Dixon J); R v Nolan [2020] VSC 416 at [39] (per Taylor J).

[11] Sentencing Advisory Council, Sentencing Snapshot: Attempted murder, No 21, January 2007, pp 2-3.

[12] Sentencing Advisory Council, SACStat Higher Courts - Attempted murder, 1 July 2013 to 30 June 2018.

[13] R v Belete [2007] VSC 296 (11y/7y); The Queen v Brew [2013] VSC 131 (10y); R v Hannarong [2017] VSC 264 (9y/6y); R v Tedford [2018] VSC 476 (8y); DPP v Jensen [2019] VSC 327 (12y & 14y).

[14] For the avoidance of doubt, my intention is that, as a result of this sentence for attempted murder and the sentence imposed in the Magistrates' Court on 13 August 2020 for attempted robbery, from the time of his arrest on 9 June 2019, Mr Mikhail will be serving a combined total sentence of about eleven-and-a-half years' imprisonment with a non-parole period of eight years and three months. Put another way, but for the loss of about two months of pre-sentence detention, that is the total effective sentence and non-parole period I would have imposed on the attempted murder (and the attempted robbery).

[15] This declaration of a "but-for sentence" is also reduced by two months to account for totality and the loss of about two months of pre-sentence detention as result of service of two months of the three-month sentence for attempted robbery imposed on 13 August 2020.