Director of Public Prosecutions v Mitchell - [2023] ACTSC 117

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Mitchell
Citation:	[2023] ACTSC 117
Hearing Date:	19 May 2023
Decision Date:	22 May 2023
Before:	Mossop J
Decision:	See [91]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – persistent sexual abuse of children and acts of indecency – early guilty plea – six victims – where offender abused position of authority as rock climbing coach to groom victims – offending in mid-range to upper-end of mid-range of objective seriousness – sentences of
imprisonment imposed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 7(1)(g), 53(1)(b) Crimes Act 1900 (ACT), ss 56, 61(2), 66B, 92K(2) Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74
Cases Cited:	DPP v Mitchell (No 2) [2023] ACTSC 118 R v Jones [2019] ACTSC 124 R v KC [2020] ACTSC 94 R v Kellan (a pseudonym) [2021] ACTSC 314 R v King [2013] ACTCA 29 R v KN (No 2) [2019] ACTSC 5 R v Michalopoulos [2020] ACTSC 27 R v Porter (No 3) [2022] ACTSC 236 R v Sirl (No 4) [2020] ACTSC 23 R v Whittaker [2021] ACTSC 189 The Queen v Ashton (a pseudonym) [2022] ACTCA 45 The Queen v Ware (a pseudonym) [2022] ACTCA 14; 17 ACTLR 273
Parties:	Director of Public Prosecutions Stephen Leonard Mitchell (Offender)
Representation:	Counsel
M Howe (DPP)
T O’Rourke (Offender)
Solicitors
Director of Public Prosecutions
Aulich Criminal Law (Offender)
File Number:	SCC 319 of 2022
MOSSOP J:
Introduction

1. On 29 November 2022 the offender, Stephen Leonard Mitchell, pleaded guilty to various
child-sex offences committed against six victims between 1994 and 2008. The plea was
entered in the Magistrates Court on the fourth occasion the matter was before the court
but after a brief of evidence had been prepared.
2. Publication of the names of the victims of the offending is prohibited by s 74 of the
Evidence (Miscellaneous Provisions) Act 1991 (ACT) in circumstances in which it is not
clear that they have consented to that publication in these reasons. As a consequence,
the name of the child victims of the offending have been replaced with letters.
3. The charges are summarised in the following table which includes the maximum penalty
and the statutory cap in the sentence where that exists.

Maximum Cap on

Charge Victim Period

penalty sentence

Persistent sexual abuse of A 1 January 1994 to 25 years 14 years
a child, contrary to s 56 of 31 December 1998
the Crimes Act 1900 (ACT)
(CC2022/6781)
Persistent sexual abuse of B 1 January 1997 to 25 years 14 years
a child, contrary to s 56 of 1 January 2000
the Crimes Act 1900 (ACT)
(CC2022/6782)
Act of indecency upon a C 1 Jary 2000 to 1 10 years
person under 16, contrary January 2002
to s 92K(2) of the Crimes
Act 1900 (ACT)
(CC2022/1778)
Persistent sexual abuse of D 1 January 2001 to 25 years 14 years
a child, contrary to s 56 of 1 June 2005
the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Director of Public Prosecutions v Mitchell and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] ACTSC 117
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory presided over the case of Director of Public Prosecutions v Mitchell, where Stephen Leonard Mitchell was convicted and sentenced for various child sex offences committed between 1994 and 2008 against six victims. The court had to determine the appropriate sentences for the offender, taking into account factors such as the objective seriousness of the offences, the subjective circumstances of the offender, the plea of guilty, time already spent in custody, and relevant comparable cases. The court found the offending to be in the mid-range to upper-end of mid-range in terms of objective seriousness, as it involved lengthy relationships, exploitation of the victims' youth, and abuse of a position of authority and trust. The offender's early guilty plea warranted a 25% discount on the sentences, and the fact that he ceased offending in 2008 when he moved into jobs that did not involve direct contact with children was taken into account as a positive factor. The court imposed sentences for each victim, with varying degrees of concurrency, and determined a non-parole period of nine years, which is approximately 67% of the head sentence. This sentence gives appropriate recognition to the nature of the offending while also providing the offender with an incentive for good behaviour, participation in rehabilitation programs, and the potential for a significant period of supervision upon release.

Orders