MAN CHARGED WITH ATTEMPTED MURDER FOR STABBING HIS DE FACTO WIFE WITH A SCREWDRIVER SEEKS TO MITIGATE SENTENCE ON THE GROUND OF PLEADING GUILTY

R v Mikhail [2020] VSC 681 (15 October 2020)  

This case involves a man charged with attempted murder for stabbing his de facto wife. He seeks to mitigate his sentence by pleading guilty to the charge after withdrawing such plea then reinstating it afterwards. 

Facts:  

The accused is charged with attempted murder. While in their home at Craigieburn, Mr. Mikhail, in a frenzied attack, took to Ms. Fabri (his de facto wife) 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. Luckily, their 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.  

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.  

The prosecution 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.  

Issue:  

Is an early plea of guilty withdrawn then reinstated be considered as a mitigating circumstance to lessen the sentence?  

Law:  

• S6AAA of Sentencing Act of 1991- Sentence discount for guilty plea  

1. If—  (a) In sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence.  

Analysis:  

In the court's 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;
(h) Finally, the court satisfied that the plea signifies a willingness to facilitate the course of justice.  

Conclusion:  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, the court is nevertheless satisfied that Mr. Mikhail’s plea of guilty to attempted murder is a very significant matter in mitigation.  

Sentence of eleven years and four months’ imprisonment with non-parole period of eight years and one month — But for the plea of guilty the sentence would have been fourteen years and four months’ imprisonment with non-parole period of eleven years and four months.

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