DPP v Mitchell (No 2) - [2023] ACTSC 118

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Mitchell (No 2)
Citation:	[2023] ACTSC 118
Hearing Date:	19 May 2023
DecisionDate:	22 May 2023
Reasons Date:	23 May 2023
Before:	Mossop J
Decision:	1. Each of the passages of the victim impact statements contained within Exhibit 1 which are marked up in yellow are admitted as part of the relevant victim impact statement.
Catchwords:	CRIMINAL LAW – ADMISSIBILITY – Admissibility of victim impact statements – portions of statements challenged on the basis that challenged portions do not fall within the definition of “victim impact statement” as per s 47 of the Crimes (Sentencing) Act 2005 (ACT)– all challenged portions ruled admissible
Legislation Cited:	Children and Young People Act 2008 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 47, 48, 49, 50, 51 Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 96
Cases Cited:	R v Iacuone; R v Duffy; R v JR (No 2) [2014] ACTSC 149 R v Loeschnauer [2022] ACTSC 30; 98 MVR 484 R v Porter (No 3) [2022] ACTSC 236
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:

Counsel for the offender has objected to various passages in the victim impact statements that were read at the sentence hearing of Stephen Leonard Mitchell. Counsel for the prosecution submitted that they were admissible. In order to permit the sentencing hearing to proceed smoothly, the parties agreed that it was open to the court to permit the statements to be read in full and subsequently rule upon the objections. This was a course adopted in R v Porter (No 3) [2022] ACTSC 236 at [61]. I made an order ruling on the objections prior to sentencing the offender. These are my reasons for that order.

The passages objected to were marked up in yellow on each relevant victim impact statement within Exhibit 1. Other passages which were not relied upon by the prosecution were marked up in green and were not admitted as part of the victim impact statement.

The relevant provisions of the Crimes (Sentencing) Act 2005 (ACT) are ss 47-51.

Section 49 provides for who may make a victim impact statement:

49Victim impact statements—who may make
(1)The following people may make a victim impact statement for the offence:
(a)a victim of the offence;
(b)a person who has parental responsibility for a victim of the offence;
(c)a close family member of a victim of the offence;
(d)a carer for a victim of the offence;
(e)a person with an intimate personal relationship with a victim of the offence.

(2)In this section:
parental responsibility—see the Children and Young People Act 2008, division 1.3.2.

In order to understand this provision, it is necessary to have regard to the definitions in s 47 of the Act. That provides:

47Definitions – part 4.3
In this part:
because of, an offence,…

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.

Continue reading DPP v Mitchell (No 2)

Details

AGLC: DPP v Mitchell (No 2) [2023] ACTSC 118
Case: [2023] ACTSC 118
Decision Date: 22 May 2023

CaseChat Overview and Summary

The case of DPP v Mitchell (No 2) was heard by the Supreme Court of the Australian Capital Territory. The defendant, Mitchell, was convicted of various serious criminal offences and the prosecution sought to introduce victim impact statements as part of the sentencing process. The challenge to the admissibility of certain portions of these statements was the central issue in the case.

The court was tasked with determining whether specific parts of the victim impact statements were admissible under the Crimes (Sentencing) Act 2005 (ACT). The prosecution argued that the challenged portions were integral to the overall statements and should be considered by the court during sentencing. The defence contended that some parts did not fall within the definition of "victim impact statement" as per section 47 of the Act and thus should be excluded.

The court examined the challenged portions and found that they were part of the overall narrative of the victim impact statements. The court ruled that these portions were relevant to the impact of the crime on the victims and were therefore admissible. The judge noted that the victim impact statements were a critical component of the sentencing process, providing essential context about the harm caused by the crimes. The court emphasised the importance of considering the full impact of the crimes on the victims to ensure an appropriate sentence was imposed.

The court ordered that all passages of the victim impact statements contained within Exhibit 1, which were marked in yellow, be admitted as part of the relevant victim impact statement. This ruling ensures that the sentencing process will be informed by the complete accounts of the victims' experiences and the broader impact of the crimes.

Orders

Orders of the court

1. Each of the passages of the victim impact statements contained within Exhibit 1 which are marked up in yellow are admitted as part of the relevant victim impact statement.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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