Mitchell, Allan v The Queen; Mitchell, Paul v The Queen; Mitchell, Michael v The Queen
[2014] NSWCCA 212
•03 October 2014
Court of Criminal Appeal
New South Wales
Case Title: Mitchell, Allan v R; Mitchell, Paul v R; Mitchell, Michael v R Medium Neutral Citation: [2014] NSWCCA 212 Hearing Date(s): 30 July 2014 Decision Date: 03 October 2014 Before: Bathurst CJ at [1];
Adams J at [2];
R A Hulme J at [3]Decision: Michael Mitchell
1. Leave to appeal against sentence granted.
2. Appeal against sentence allowed.
3. Sentences imposed in the District Court on 8 August 2013 quashed. In lieu, Michael Robert Mitchell is sentenced as follows:
Larceny at Adaminaby (Sequence 4): sentenced to a fixed term of imprisonment for 5 months commencing 12 January 2013.
Aggravated break, enter and steal at Adaminaby (Sequence 3): sentenced to imprisonment comprising a non-parole period of 1 year 11 months commencing 12 May 2013 and a balance of the term of the sentence of 8 months expiring 11 December 2015.
Aggravated break, enter and steal at Cabramurra (Sequence 1): sentenced to imprisonment comprising a non-parole period of 1 year 7 months commencing 12 September 2013 and a balance of the term of the sentence of 1 year 5 months expiring 11 September 2016.
The offender is to be released on parole when the final non-parole period expires on 11 April 2015.Paul Mitchell
1. Leave to appeal against sentence granted.
2. Appeal against sentence allowed.
3. Sentences imposed in the District Court on 8 August 2013 quashed. In lieu, Paul Christopher Mitchell is sentenced as follows:
Break, enter and steal at Tumut (Sequence 4): sentenced to a fixed term of imprisonment for 2 years commencing 12 January 2013.
Larceny at Adaminaby (Sequence 5): sentenced to a fixed term of imprisonment for 5 months commencing 12 May 2013.
Aggravated break, enter and steal at Adaminaby (Sequence 3): sentenced to imprisonment comprising a non-parole period of 1 year 10 months commencing 12 September 2013 and a balance of the term of the sentence of 9 months expiring on 11 April 2016.
Aggravated break, enter and steal at Cabramurra (Sequence 1): sentenced to imprisonment comprising a non-parole period 1 year 6 months commencing 12 January 2014 and a balance of the term of the sentence of 1 year 6 months expiring on 11 January 2017.
The offender is to be released on parole when the final non-parole period expires on 11 July 2015.Allan Mitchell
1. Leave to appeal against sentence granted.
2. Appeal against sentence allowed.
3. Sentences imposed in the District Court on 8 August 2013 quashed. In lieu, Allan James Mitchell is sentenced as follows:
Larceny at Adaminaby (Sequence 4): sentenced to a fixed term of imprisonment for 6 months commencing 12 March 2013.
Aggravated break, enter and steal at Adaminaby (Sequence 3): sentenced to imprisonment comprising a non-parole period of 2 years 3 months commencing 12 August 2013 and a balance of the term of the sentence of 9 months expiring 11 August 2016.
Aggravated break, enter and steal at Cabramurra (Sequence 1): sentenced to imprisonment comprising a non-parole period of 1 year 11 months commencing 12 January 2014 and a balance of the term of the sentence of 1 year 5 months expiring 11 May 2017.
The offender is to be released on parole when the final non-parole period expires on 11 December 2015.Catchwords: CRIMINAL LAW - appeal against sentence - multiple offences and offenders- erroneous Crown concession that reduction in earlier, related sentences warranted intervention - principal consideration is degree of accumulation, not concurrence - no lesser degree of accumulation warranted - no error in referring to criminal record as "aggravating circumstance" - sentences for aggravated break and enter offences manifestly excessive - lower objective seriousness than found by trial judge - commercial premises rather than private residential homes - stolen property unlikely to have had sentimental value - serious indictable offence and circumstance of aggravation both of limited seriousness - sentences quashed and offenders resentenced Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Inclosed Lands Protection Act 1901 (NSW)Cases Cited: Butters v R [2010] NSWCCA 1
Choi v R [2007] NSWCCA 150
Mill v The Queen [1988] HCA 70; 166 CLR 59
Mitchell v R; Mitchell v R [2013] NSWCCA 318
Mitchell v R [2014] NSWCCA 63
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Fidow [2004] NSWCCA 172
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v Tuuta [2014] NSWCCA 40Category: Principal judgment Parties: Allan James Mitchell (Applicant)
Paul Christopher Mitchell (Applicant)
Michael Robert Mitchell (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
Mr M Ramage QC (Allan Mitchell)
Ms S Kluss (Paul Mitchell)
Mr C Smith (Michael Mitchell)
Ms N Adams (Crown)- Solicitors: Solicitors:
The Law Company
P Schmidt
Legal Aid NSW
Solicitor for Public ProsecutionsFile Number(s): 2012/293296; 2012/293395; 2012/293295 Decision Under Appeal - Court / Tribunal: District Court - Before: King SC DCJ - Date of Decision: 08 August 2013 - Court File Number(s): 2012/293296; 2012/293395; 2012/293295
JUDGMENT
BATHURST CJ: I agree with the orders proposed by R A Hulme J and with his Honour's reasons.
ADAMS J: I agree with R A Hulme J.
R A HULME J: Three brothers, Michael, Paul and Allan Mitchell ("the applicants"), apply for leave to appeal against sentences imposed by his Honour Judge King SC in the District Court at Wagga Wagga on 8 August 2013.
The applicants pleaded guilty to two counts of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900 (NSW), one at Adaminaby ("the Adaminaby offence") and one at Cabramurra ("the Cabramurra offence"); and to one count of larceny contrary to s 117 of the Crimes Act ("the larceny offence"). Paul Mitchell pleaded guilty to an additional offence of break, enter and steal ("the Tumut offence"). For reasons which will appear, I will refer to those offences as "the Southern Tablelands offence".
The applicants were also dealt with for the summary offence of entering inclosed lands contrary to s 4(1) of the Inclosed Lands Protection Act 1901 (NSW), for which they received fines of $400.
Facts
The additional break, enter and steal offence for which Paul Mitchell was sentenced occurred on 5 or 6 August 2012. He broke into Martin's Mini Storage at Tumut, forced open a safe and stole $12,500. Other property was also taken including a chainsaw and other tools. The total value of the cash and property stolen was $13,250.
The offences in common for each applicant occurred on the afternoon of 9 September 2012 and lasted into the early hours of the following morning.
The larceny offence involved various items being taken from a Toyota Land Cruiser. Between 3.30pm and 5.00pm the applicants entered a paddock in Adaminaby and gained entry to the Land Cruiser, which was unlocked. They removed the spare tyre from the back seat of the vehicle together with various Toyota badges, an indicator light and wiring from the vehicle. They were seen by an off-duty police officer wheeling the tyre to a service station where it was inflated before they walked out of sight.
The aggravated break, enter and steal offence at Adaminaby occurred later that day. They forced entry to a storage shed at the Adaminaby Golf Club and stole a large number of items including a barbeque, gardening equipment, a tent and alcohol. The value of the items was not stated.
The aggravated break, enter and steal at Cabramurra involved the applicants forcing entry into a general store through the front door and stealing a large number of items including cigarettes, clothing and radios. In addition, a steel safe was taken which contained $4,460.23 in cash. A stock take put the value of the stolen property, including the cash in the safe, at $8,613.50.
The safe was removed with the assistance of a trolley jack the applicants obtained from the nearby Cabramurra Hobby Club (the enter inclosed lands offence). The safe was attached to the rear of their car and dragged away from the premises but it became detached as they left Cabramurra and fell down a large embankment from where it could not be recovered. The applicants then covered the safe with snow and dirt in an attempt to hide it. It was subsequently located with the contents intact.
The other stolen property was recovered by police on the morning of 10 September 2012 after a passer-by discovered it hidden under a tarpaulin in the National Park near Tumut. The offenders were arrested two days later in Narrabri.
The sentencing judge described the offences as "a sequence of very serious criminal conduct". In the circumstances, the judge concluded that it was impossible to find that the offences were not, "at least to some extent, pre-planned". They clearly intended to recover the property that was hidden under the tarpaulin and to return to the safe.
Subsequent offences at Gilgandra and Narrabri
The applicants left the Southern Tablelands area at some point soon after having committed these offences and travelled north. On 11 September 2012 on the Newell Highway near Gilgandra they stole property valued at about $1250 from the rear of a work vehicle parked near a rural property.
They proceeded on but their vehicle broke down. They got a lift into Narrabri, took a Toyota Landcruiser without the owner's consent and returned to their own vehicle and towed it into town. That night they broke into an audio-electronics business with the intention of stealing property but an alarm was activated and they fled. They were arrested on the morning of 12 September 2011.
Personal circumstances - Michael Mitchell
A Pre Sentence Report and a psychological report were tendered in relation to Michael Mitchell.
He was aged 19 at the time of the offences. He was the fourth of five male children. He reported a stable upbringing and had enjoyed a good relationship with his parents.
Towards the end of primary school he was diagnosed with Attention Deficit Hyperactivity Disorder and was prescribed medication. In high school he was continually getting into trouble and was placed in a "special behavioural class". He left halfway through Year 10 and subsequently engaged in various manual jobs. His most recent employer indicated that he was prepared to offer him work upon release if available.
He used cannabis from around the age of 16 and harder drugs since the age of 18, including crystal methamphetamine, heroin, ecstasy and OxyContin. He had a significant and costly drug addiction. He was under the influence of a number of illicit substances at the time of the offences and was suffering from withdrawal when he went into custody. The psychological report indicated that he had shown little insight into the reasons for his abuse of drugs. He had not attended any detoxification or rehabilitation programs.
The sentencing judge was "prepared to accept that there is at least some evidence of remorse and contrition, although it is limited" and added that "it cannot be said that there is a good prospect of rehabilitation in the absence of the offender addressing his drug addiction, which, so far, he has made no effort to do other than his claim that while in custody he has abstained from the use of prohibited drugs".
The judge referred to Michael Mitchell's criminal record which consisted of matters dealt with by way of bonds, probation or fines in the period between 2005 and 2010. He said that he did not regard it as an aggravating circumstance but "simply indicates that it cannot be said that he has an unblemished record".
Personal Circumstances - Paul Mitchell
A Pre Sentence report and a psychological report were tendered in relation to Paul Mitchell.
He was almost 22 years of age at the time of the offences. As with Michael, he had a positive relationship with his parents. He had recently moved out of home, was not in a relationship and did not have any dependents.
There were behavioural problems at school. He was diagnosed with Attention Deficit Hyperactivity Disorder at age of 12. He was placed into a class for emotionally disturbed children at the beginning of Year 8 which he said he hated. He left school at the age of 14 and subsequently engaged in sporadic employment. He was unemployed in the nine months prior to arrest.
The judge noted that there was a juvenile and adult criminal record comprising a variety of matters that had resulted in the imposition of fines, bonds and community service. As with Michael, his Honour considered that this was not an aggravating matter but denied the offender the benefit of leniency that could have been extended if there was no prior history.
The applicant began using cannabis at age 12 and it had become a daily habit by the time of his arrest. He began using heavier drugs at around 20, including crystal methylamphetamine, OxyContin, morphine and heroin. He had a costly habit and was experiencing withdrawal in custody.
He said that prior to the offences, he and his brothers had been using cannabis, methamphetamine and drinking alcohol. Money was the motivating factor.
Apart from the plea, the sentencing judge found some evidence of remorse. However, a reference in the Pre Sentence Report to having difficulty in taking responsibility for his actions "appears to limit the significance of any expression that might be consistent with remorse".
The judge said that he could not find that there was a good prospect of rehabilitation, concluding that it was unlikely to occur "until such time as the offender properly addresses his addiction to prohibited drugs and/or restricted medications".
Personal Circumstances - Allan Mitchell
A Pre Sentence Report and a psychological report were also tendered in relation to Allan Mitchell.
He was aged 39 at the time of the offences. He described his early childhood as "pretty rough", being exposed to his parents' heavy drinking and violence from a young age. They lived a transient lifestyle, his parents being employed as fruit pickers.
He was put into a residential placement and then lived with a foster family from age 10 and moved back to live with his parents at 15, but indicated that their conduct had not changed. He left school in early high school and thereafter had engaged in seasonal work and labouring.
He has two children who were aged 14 and 9 at the time of sentencing. They had both been taken into care because of concern about the ability of their parents to care for them. It was unclear whether the applicant had maintained any contact with them.
He began using cannabis at the age of 12 or 13. He was also using OxyContin, morphine, crystal methamphetamine and amphetamines prior to his arrest. The psychologist indicated that he was significantly dependent on drugs, with little ability to control the effect that the desire for drugs has on his life.
Allan Mitchell's criminal history is significant, commencing when he was a juvenile and continuing with little abatement. He had been imprisoned on multiple occasions. The judge declined to recount the detail: "suffice it to say that there are many [previous convictions], and that in respect alone of offences of break and enter, including aggravated forms, there are approximately some 12 previous counts recorded". The Probation and Parole Officer reported that "prior case management has attempted to assist Mr Mitchell address substance abuse issues" but his response had been "poor". The judge concluded that "[h]is poor criminal history is an aggravating circumstance".
The judge was unable to find that he was genuinely remorseful or contrite. Nor was he able to say that he had good prospects of rehabilitation.
Sentences for the Gilgandra and Narrabri offences
The applicants were charged with the Gilgandra and Narrabri offences upon their arrest and with the Southern Tablelands offences in the days following. The proceedings should have been joined and they should have been sentenced for all matters together. However, they were sentenced for the Gilgandra and Narrabri offences by Robison DCJ on 27 March 2013 in the District Court at Moree and for the earlier offences by King DCJ in the District Court at Wagga Wagga on 8 August 2013.
The sentences imposed by Robison DCJ were quashed by this Court: Mitchell v R; Mitchell v R [2013] NSWCCA 318 (in respect of Michael and Paul); Mitchell v R [2014] NSWCCA 63 (in respect of Allan). That was on the basis that they were manifestly excessive, particularly having regard to the primary judge's finding that the offences were at the lower end of the range of objective seriousness and, in the case of Paul and Michael, their age and lack of prior custodial experience.
The initial sentence imposed upon Paul and Michael Mitchell was imprisonment for 2 years 3 months with a non-parole period of 1 year 3 months with effect from 12 September 2012. They were resentenced by this Court to imprisonment for 9 months with a non-parole period of 6 months with effect from the same date.
The sentence imposed upon Allan Mitchell was imprisonment for 3 years with a non-parole period of 2 years with effect from 12 September 2012. He was resentenced to imprisonment for 1 year 10 months with a non-parole period of 1 year.
Sentences Imposed
King DCJ sentenced the applicants in the context of the sentences they had received from Robison DCJ. Because the offences were "part of a continuing sequence of offending" his Honour considered it appropriate to have regard to the principle of totality by taking into account the sentences earlier passed. He allowed a discount of 25 per cent in recognition of the utilitarian value of the applicants' early pleas of guilty.
Michael Mitchell received a total sentence of 4 years 11 months with a non-parole component of 3 years 5 months. The total including the Moree sentence was 5 years 3 months with a non-parole component of 3 years 9 months.
Paul Mitchell received a total sentence of 5 years 5 months with a non-parole component of 3 years 9 months. The total including the Moree sentence was 5 years 9 months with a non-parole component of 4 years 1 month.
Allan Mitchell received a total sentence of 5 years 6 months with a non-parole component of 4 years. The total including the Moree sentence was 6 years with a non-parole component of 4 years 6 months.
As can be seen, in recognition of the totality principle the sentences imposed by King DCJ were partially accumulated upon those earlier imposed by Robison DCJ. But the extent of the accumulation was quite modest: 4 months in the cases of Michael and Paul and 6 months in the case of Allan.
Since the applicants seek to establish manifest excess in respect of not only their overall sentences but also for individual sentences, it is necessary to set out the sentences imposed for each offence.
Individual Offences - Michael Mitchell
For the larceny offence Michael Mitchell received a fixed term of 5 months to commence on 12 January 2013.
For the Adaminaby offence he received a sentence of 3 years 6 months with a non-parole period of 2 years 4 months to commence on 12 June 2013.
For the Cabramurra offence he received a sentence of 4 years with a non-parole period of 2 years 6 months to commence on 12 December 2013.
Individual Offences - Paul Mitchell
For the offence of break, enter and steal at Tumut Paul Mitchell received a fixed term of 2 years to commence on 12 January 2013.
For the larceny offence he received a fixed term of 5 months to commence on 12 July 2013.
For the Adaminaby offence he received a sentence of 3 years 6 months with a non-parole period of 2 years and 4 months to commence on 12 December 2013.
For the Cabramurra offence he received a sentence of 4 years with a non-parole period of 2 years 4 months to commence on 12 June 2014.
Individual Offences - Allan Mitchell
For the larceny offence Allan Mitchell received a fixed term of 6 months to commence on 12 March 2013.
For the Adaminaby offence he received a sentence of 4 years with a non-parole period of 3 years to commence on 12 September 2013.
For the Cabramurra offence he received a sentence of 4 years 6 months with a non-parole period of 3 years to commence on 12 March 2014.
The Crown concession concerning the impact of the resentencing by this Court for the Gilgandra and Narrabri offences
The Crown conceded that with the resentencing by this Court in respect of the sentences imposed by Robison DCJ, "this Court should intervene to resentence the applicants to reflect the impact of the successful appeals on the overall sentences imposed" (CWS [4]). In oral submissions, the Crown Advocate conceded that this could be by reduction of the extent of accumulation as well as by the imposition of lesser individual sentences, so as to arrive at a lesser overall sentence. Whether these concessions are well-founded is a question to which I shall return.
Ground of appeal and submissions - Michael Mitchell
Michael Mitchell raised a single ground of appeal:
The sentences both individually, and in combination, are manifestly excessive.
There was no complaint about the fixed term of 5 months for the larceny offence but it was contended that the sentences imposed for the aggravated break and enter offences are manifestly excessive and so too is the total effective sentence having regard to:
a) The objective seriousness of the offences, particularly given that the "serious indictable offence" committed within the premises was stealing (as opposed to some other more serious offence) and the "circumstance of aggravation" was being in company (as opposed to other more serious circumstances).
b) The applicant was a youth aged 19 at the time of the offences.
c) Prior to the offences the applicant had never been sentenced to imprisonment.
d) The pleas of guilty and the limited finding of remorse.
Whilst King DCJ did not make any definitive finding about the level of objective seriousness of the offences, it was submitted that they were "well below the mid-range".
The starting points which must have been adopted prior to the 25 per cent discount for the pleas of guilty were 4 years 8 months (Adaminaby) and 5 years 4 months (Cabramurra). These were too high, it was submitted, when regard was had to the factors identified above. It followed that the judge must have given too much weight to the objective seriousness of the offences and too little weight to the applicant's subjective case.
In oral submissions, Mr Smith, counsel for the applicant, embraced the Crown's concession and submitted that in the application of the principle of totality the degree of accumulation of the sentences imposed by King DCJ should be reduced.
Counsel made further submissions concerning the objective seriousness of the aggravated break and enter offences. The circumstance of aggravation averred was "in company". It was accepted that this can be a significant matter of aggravation when it involves a victim being confronted by a number of offenders, but in this case the number of offenders only operated to enable the breaking into the premises and the theft of property to be more likely successful; for that reason it was of less significance as an aggravating circumstance.
Grounds of appeal and submissions - Paul Mitchell
Paul Mitchell also raised a single ground of appeal:
The sentences imposed when considered alone, and in combination, are manifestly excessive and a different sentence is warranted at law.
It was clarified in the oral submissions of Ms Kluss, the applicant's counsel, that the complaint was confined to the length of the individual sentences for the aggravated break and enter offences and the total effective sentence.
Generally, it was submitted that the sentences were manifestly excessive having regard to the same four matters identified in the submissions for Michael Mitchell (see above at [59]).
Reference was made to Judicial Commission sentencing statistics but there was no indication in the written or oral submissions as to how they bore upon an assessment of the ground of appeal.
Reference was made to King DCJ having found special circumstances but the overall sentence for the Southern Tablelands offences involved a non-parole period that was 69 per cent of the head sentence. When considered in combination with the sentence for the Gilgandra and Narrabri offences the non-parole component is 71 per cent. It was submitted that the finding of special circumstances had resulted in the judge erring by imposing a longer overall sentence rather than a lesser non-parole component. There is nothing in the judge's sentencing remarks that supports this contention and I reject it.
Parity was also raised in the written submissions, despite there being no ground asserting error in this respect. It was pointed out that while the applicant was youthful and had not previously been imprisoned, he was sentenced to an overall term for the Southern Tablelands offences that was only a month less than Allan Mitchell who was considerably older and had a much more substantial prior record. This submission overlooks the fact that the applicant was to be sentenced for the additional offence of break, enter and steal that he committed at Tumut a month before the offences he committed with his brothers. It was a significant offence and it was conceded on the hearing of the application that it was open to the judge to have imposed a 2 year term of imprisonment.
Grounds of appeal and submissions - Allan Mitchell
Two grounds of appeal were raised:
1. The sentence imposed on the applicant was manifestly excessive.
2. His Honour erred in not finding special circumstances.
It was contended in written submissions that the offences were below the middle range of objective seriousness, although not at the lower end of the range in the same way as the Gilgandra and Narrabri offences had been found to be. That was said to be because there were no statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and all (or virtually all) of the property had been recovered.
There was no complaint about the application of the principle of totality by the judge with regard to the Gilgandra and Narrabri offences. It was accepted that there could be no complaint about the 6 months partial accumulation upon the sentences for those offences.
It was accepted that there should have been a distinction made with the sentencing of the applicant's two younger brothers in relation to the offences that were in common, given his age and criminal history. Aside from those aspects, there was nothing in the facts which indicated any greater or lesser role of the applicant when compared to the roles of his brothers.
It was submitted that there was error in the judge failing to find any measure of remorse, having regard to the pleas of guilty and what appeared in the Pre Sentence Report and the psychological report.
Mr Ramage QC, who did not prepare the written submissions, raised a potentially erroneous aspect of the sentencing remarks where King DCJ said in relation to this applicant, "His poor criminal history is an aggravating circumstance". How his Honour regarded it as "aggravating" was not explained. A criminal history cannot operate in aggravation so as to produce a sentence that exceeds what is proportionate to the gravity of the crime, having regard to the objective circumstances but such a history may be "pertinent to where, within the boundary set by the objective circumstances, a sentence should lie": R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [15], [26] (Spigelman CJ).
As to the seriousness of the offences, Mr Ramage described the larceny offence as "very irritating and very annoying" for the owner but it could hardly meet the description of the sentencing judge of being a part of "a sequence of very serious criminal conduct". He also took issue with the judge taking into account in considering the seriousness of the aggravated break and enter offences that they were committed at night, "thereby destroying the owners' trust in the security of their premises". He submitted, in effect, that such planning as there might have been for the offences was, at most, cursory and the execution rather amateurish: for example, to steal a safe and tow it away, only to have become detached and fall down an embankment. There was also the fact that most of the stolen property was recovered. So, in short, the submission was that the judge was wrong to characterise the offending as "very serious criminal conduct".
In relation to Ground 2, it was submitted that the applicant required a longer than usual period of parole supervision because of his history of drug and alcohol dependence.
Crown submissions
The Crown submitted that the sentences were not manifestly excessive for a number of reasons. Whilst King DCJ did not explicitly indicate what he considered to be the level of objective seriousness of the offences, he made a number of comments that were inconsistent with a finding that they were below the mid-range of seriousness. He said that the offences were "part of a sequence of very serious criminal conduct" and "it is impossible ... to find they were not, at least to some extent, pre-planned". When considered in conjunction with the offences at Gilgandra and Narrabri, there was "a period of significant criminal offending over approximately a four day period". They broke into premises at night and took anything "they could lay their hands on". He concluded that "their conduct showed little concern for the community or for the individual business proprietors or club members who might have been affected by their conduct. They also committed the offences at night, thereby destroying the owners' trust in the security of their premises."
In relation to the severity of the overall sentences, the Crown pointed to the fact that there was a substantial degree of concurrency between the individual sentences. Although the offences were committed in a relatively short time-frame, they were discrete offences with different victims and this warranted a degree of accumulation of the sentences.
The Crown also submitted that the sentencing judge took all relevant aspects of the applicants' subjective cases into account. No further leniency was warranted, particularly when none of them were found to have good prospects of rehabilitation in the light of their histories of drug use and offending, albeit the latter was less so in the cases of Michael and Paul Mitchell. King DCJ was well aware of the young ages of those two and took it account generally and, along with other factors, in finding that there were special circumstances warranting lesser non-parole periods.
In relation to the parity arguments raised in the submissions for Paul and Allan Mitchell, the Crown submitted that the differences in their sentences were explicable on the basis of their respective ages (21 and 39 respectively); their criminal histories (a number of matters resulting in fines, bonds and community service against a more substantial record with many prior occasions of imprisonment); and the findings of the sentencing judge in relation to remorse (of limited significance in respect of Paul and none in respect of Allan). To those matters may be added the additional offence for which Paul Mitchell was sentenced.
In relation to Ground 2 of Allan Mitchell's appeal complaining of a failure to find special circumstances, the Crown pointed to the fact that King DCJ had adverted to the issue and declined to make the finding. There are many cases in this Court in which reference has been made to special circumstances involving a discretionary finding of fact as to which the Court will be slow to intervene unless the non-parole period is found to be manifestly excessive (or inadequate); for example: R v Fidow [2004] NSWCCA 172 at [19].
Consideration
The Crown concession
I cannot agree with the Crown concession that there should be intervention by this Court because of its earlier reduction of the sentences imposed upon the applicants by Robison DCJ.
The written submissions for the Crown focussed on the extent of concurrence of the sentences imposed by King DCJ with the sentences imposed by Robison DCJ. For example, it was pointed out that for Allan Mitchell, the non-parole period imposed by Robison DCJ was 2 years and the sentences imposed by King DCJ were concurrent with that period to the extent of 18 months; but as a result of resentencing by this Court the period of concurrence was reduced to 6 months. In relation to both Michael and Paul Mitchell, the period of concurrence was reduced from 11 months to 2 months.
Focussing on the degree of concurrence is misplaced. Attention should be directed to the degree of accumulation. In determining the sentences for the Southern Tablelands offences, King DCJ was required first to determine the appropriate individual sentences before assessing the extent to which they should be concurrent or accumulated having regard to the principle of totality: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [45]. Because the applicants were serving the sentences earlier imposed, he was also required to assess the extent to which the sentences he imposed should be concurrent or accumulated upon the earlier sentences: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 66; R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [11]; Choi v R [2007] NSWCCA 150 at [157]. In applying the principle of totality in both respects, he was required to consider questions of concurrence or accumulation in the manner described by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41:
"[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." (Emphasis added)
King DCJ obviously considered that the sentences he was imposing could not "comprehend and reflect the criminality for the other offence", namely the Gilgandra and Narrabri matters. He determined that the additional criminality in those offences was best reflected by accumulating his sentences by 6 months, in the case of Allan Mitchell, and 4 months, in the cases of Michael and Paul Mitchell. On any view, these were very modest degrees of accumulation.
In my view, even with the reduction of the sentences by this Court for the Gilgandra and Narrabri matters, no lesser degree of accumulation can be countenanced.
Manifest excess
There can be no criticism of King DCJ saying that Allan Mitchell's criminal record was "an aggravating circumstance", except perhaps to say that for the sake of clarity, in order to foreclose argument on appeal there might have been an explanation for how it operated as such. The remark cannot be interpreted as the judge thinking that the criminal record aggravated the objective seriousness of the offences. Allan Mitchell's sentences for the break, enter and steal offences were only 6 months longer than those imposed upon his younger brothers. That is an appropriate differential to reflect the differences in the individual cases and is not indicative of an erroneous assessment of the objective seriousness of the offences.
The submission advanced on behalf of Paul Mitchell that his overall sentence is too close to that imposed upon Allan Mitchell cannot be accepted. The additional break and enter offence at Tumut necessitated less difference in the overall outcome of the two cases. The operative effect of that additional offence is that 6 months was added to the overall term he was required to serve. Against a fixed term of 2 years, about which there is no complaint, that is a modest outcome in a practical sense.
However, I am of the view that the sentences for the aggravated break and enter offences are manifestly excessive. They were offences of a lower order of seriousness than it may be inferred that King DCJ considered them to be, although certainly not at the lowest end of the range. They involved incursions into commercial premises rather than private residential homes and the property stolen was unlikely to have had sentimental value to the owners. The serious indictable offence was stealing as opposed to something more serious; and the circumstance of aggravation was constituted by the offenders being in company. Circumstances of aggravation that may be involved in offences of this type include offenders being armed; using corporal violence; inflicting bodily harm; depriving a person of their liberty; or knowing that someone is within the premises: s 105A Crimes Act. Generally speaking, those circumstances are usually of greater seriousness than when an offence is committed "in company", particularly where no victim is confronted by the offenders.
Further, it was accepted that there were none of the aggravating factors listed in s 21A(2) of the Crimes (Sentencing Procedure) Act such as the offences being committed in a home; the offences causing substantial loss; or the offences being part of planned or organised criminal activity. As to the latter, it may fairly be said that the offences were executed in a rather clumsy and amateurish fashion.
All of this is not to say that the absence of aggravating factors operates as a mitigating feature; it is merely to put the offences within a context of the range of criminality that can be encountered in offences against s 112(2) of the Crimes Act. The starting points for these sentences before the 25 per cent reduction for the pleas of guilty should have been lower and the resulting sentences should have been correspondingly less.
There can be no legitimate criticism of the degree to which King DCJ partially accumulated the sentences. For Michael Mitchell, the first sentence was accumulated by 4 months upon the Robison DCJ sentences. The second and third sentences were accumulated by 5 months and 6 months respectively. The sentences imposed upon Paul Mitchell were accumulated by 4 month, 6 months, 5 months and 6 months. The sentences imposed upon Allan Mitchell were each accumulated by 6 months. The Crown submissions on this subject should be accepted.
The submission that King DCJ was in error in not finding that Allan Mitchell was remorseful should be rejected. His Honour only had the contents of reports; the applicant did not give evidence. Oral evidence is not a prerequisite for a finding of remorse (Butters v R [2010] NSWCCA 1 at [17]) but in the circumstances it was open to the judge not to find that there was remorse.
Similarly, the complaint under Ground 2 of Allan Mitchell's appeal should be rejected. A finding of special circumstances might have been open, although the basis for it was tenuous. This was not a case in which there were "significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful, and that this is not merely a possibility": R v Tuuta [2014] NSWCCA 40 at [57] (Bellew J). Moreover, the issue of special circumstances was not overlooked. His Honour considered it but declined to make the finding. There was no error.
Evidence on re-sentencing
Michael Mitchell
Affidavits were read in the event the Court came to consider re-sentencing. He had one disciplinary infraction last November: he pleaded guilty to an offence of failing a prescribed urine test. This involved the use of buprenorphine and resulted in him being removed from an Intensive Drug and Alcohol Treatment Program. Since then he has been at the South Coast Correctional Centre where he has been studying full-time in the Intensive Learning Centre. He has completed some vocational training courses, intends to return to live in Tumut where his parents live and he has an offer of employment. So, the picture in terms of rehabilitation prospects appears a little more positive than it was at the time of sentencing.
Paul Mitchell
According to his solicitor's affidavit, Paul Mitchell is also being held at the South Coast Correctional Centre. He completed an Intensive Drug and Alcohol Program last October. He has not failed any urine tests. He is enrolled in a TAFE course and is working as part of a traineeship in metal fabrication. He is also participating in the Intensive Learning Centre program and completed a 3-day Young Offenders program. He has plans for employment and study upon his release.
The Crown sought verification of these matters and a response by way of letter from the General Manager of the gaol was annexed to the affidavit of the Crown Advocate's instructing solicitor. Paul Mitchell received relatively minor punishment for the disciplinary offence of "fail to comply with correctional centre routine" last December. Rather than completing the Intensive Drug and Alcohol Treatment Program, he in fact was removed from it due to use of buprenorphine.
Allan Mitchell
An affidavit sworn by Allan Mitchell's solicitor includes that he is being held at Junee Correctional Centre and is attending an ongoing drug and alcohol course. He has completed a "managing emotions" course. Further, he is unable to perform more than light duties as a sweeper because of a back complaint; he has hepatitis C and claims he cannot obtain medication in custody; he receives no visits; and he has hopes for employment upon release as he holds a forklift licence.
In the short time available the Crown was only able to obtain a general response from Justice Health about the claim concerning medication for hepatitis C: the wide range of services it provides for prison inmates includes a pharmacy service; it "provides clinical care for patients with hepatitis C and HIV within NSW custodial facilities at all stages of their condition"; and it has a program to deal with such issues that "was developed to ensure standardised best practice".
No submission was made by Mr Ramage that the Court should accept his client's claim of not receiving medication for his hepatitis C condition. It was not submitted that the Court should find that imprisonment is more onerous because of this.
Re-sentencing
Application of the principle of totality in the context of imposing lesser sentences for the Southern Tablelands offences requires a reconsideration of the degree of partial accumulation of the individual sentences.
Michael Mitchell
The fixed term sentence of 5 months for the larceny offence should be maintained.
In lieu of the sentence of 3 years 6 months (from a starting point of 4 years 8 months) for the aggravated break and enter at Adaminaby, there should be a sentence of 2 years 7 months (reduced from 3 years 6 months on account of the plea of guilty).
In lieu of the sentence of 4 years (from a starting point of 5 years 4 months) for the aggravated break and enter at Cabramurra, there should be a sentence of 3 years (reduced from 4 years).
The total effective sentence should be one of 3 years 8 months (in lieu of 4 years 11 months). The finding of special circumstances by King DCJ should be maintained but greater effect should be given to it on account of the applicant's better progress towards rehabilitation since he was sentenced. The overall non-parole period should be 2 years 3 months (in lieu of 3 years 5 months).
In conjunction with the sentences for the Gilgandra and Narrabri offences, Michael Mitchell will become subject to an overall term of 4 years (in lieu of 5 years 3 months) with a minimum of 2 years 7 months (in lieu of 3 years 9 months) to serve.
Paul Mitchell
The fixed term sentences of 2 years for the break and enter offence at Tumut and 5 months for the larceny offence should be maintained and there should be the same sentences for the aggravated break and enter offences as proposed for Michael Mitchell.
The applicant had the benefit of the larceny sentence being entirely subsumed within the sentence for the Tumut break and enter. No-one raised any issue about this so I do not propose to alter that arrangement in resentencing.
The total effective sentence should be 4 years (in lieu of 5 years 5 months). The finding of special circumstances by King DCJ should be maintained but greater effect should be given to it on account of the applicant's improved progress towards rehabilitation since he was sentenced. The overall non-parole period should be 2 years 6 months (in lieu of 3 years 9 months).
In conjunction with the sentences for the Gilgandra and Narrabri offences, Paul Mitchell will become subject to an overall term of 4 years 4 months (in lieu of 5 years 9 months) with a minimum of 2 years 10 months (in lieu of 4 years 1 month) to serve.
Allan Mitchell
The fixed term sentence of 6 months for the larceny offence should be maintained
In lieu of the sentence of 4 years (from a starting point of 5 years 4 months) for the aggravated break and enter at Adaminaby, there should be a sentence of 3 years (reduced from 4 years on account of the plea of guilty).
In lieu of the sentence of 4 years 6 months (from a starting point of 6 years) for the aggravated break and enter at Cabramurra, there should be a sentence of 3 years 4 months (reduced from 4 years 6 months).
The total effective sentence should be 4 years 2 months (in lieu of 5 years 6 months). There should be a finding of special circumstances because the applicant has now demonstrated some progress towards rehabilitation since he has been in custody and he should be encouraged to continue through a longer period of parole supervision. I propose an overall non-parole period of 2 years 9 months (in lieu of 4 years).
In conjunction with the sentences for the Gilgandra and Narrabri offences, Allan Mitchell will become subject to an overall term of 4 years 8 months (in lieu of 6 years) with a minimum of 3 years 3 months (in lieu of 4 years 6 months).
Orders
I propose the following orders:
Michael Mitchell
1. Leave to appeal against sentence granted.
2. Appeal against sentence allowed.
3. Sentences imposed in the District Court on 8 August 2013 quashed. In lieu, Michael Robert Mitchell is sentenced as follows:
Larceny at Adaminaby (Sequence 4): sentenced to a fixed term of imprisonment for 5 months commencing 12 January 2013.
Aggravated break, enter and steal at Adaminaby (Sequence 3): sentenced to imprisonment comprising a non-parole period of 1 year 11 months commencing 12 May 2013 and a balance of the term of the sentence of 8 months expiring 11 December 2015.
Aggravated break, enter and steal at Cabramurra (Sequence 1): sentenced to imprisonment comprising a non-parole period of 1 year 7 months commencing 12 September 2013 and a balance of the term of the sentence of 1 year 5 months expiring 11 September 2016.
The offender is to be released on parole when the final non-parole period expires on 11 April 2015.
Paul Mitchell
1. Leave to appeal against sentence granted.
2. Appeal against sentence allowed.
3. Sentences imposed in the District Court on 8 August 2013 quashed. In lieu, Paul Christopher Mitchell is sentenced as follows:
Break, enter and steal at Tumut (Sequence 4): sentenced to a fixed term of imprisonment for 2 years commencing 12 January 2013.
Larceny at Adaminaby (Sequence 5): sentenced to a fixed term of imprisonment for 5 months commencing 12 May 2013.
Aggravated break, enter and steal at Adaminaby (Sequence 3): sentenced to imprisonment comprising a non-parole period of 1 year 10 months commencing 12 September 2013 and a balance of the term of the sentence of 9 months expiring on 11 April 2016.
Aggravated break, enter and steal at Cabramurra (Sequence 1): sentenced to imprisonment comprising a non-parole period 1 year 6 months commencing 12 January 2014 and a balance of the term of the sentence of 1 year 6 months expiring on 11 January 2017.
The offender is to be released on parole when the final non-parole period expires on 11 July 2015.
Allan Mitchell
1. Leave to appeal against sentence granted.
2. Appeal against sentence allowed.
3. Sentences imposed in the District Court on 8 August 2013 quashed. In lieu, Allan James Mitchell is sentenced as follows:
Larceny at Adaminaby (Sequence 4): sentenced to a fixed term of imprisonment for 6 months commencing 12 March 2013.
Aggravated break, enter and steal at Adaminaby (Sequence 3): sentenced to imprisonment comprising a non-parole period of 2 years 3 months commencing 12 August 2013 and a balance of the term of the sentence of 9 months expiring 11 August 2016.
Aggravated break, enter and steal at Cabramurra (Sequence 1): sentenced to imprisonment comprising a non-parole period of 1 year 11 months commencing 12 January 2014 and a balance of the term of the sentence of 1 year 5 months expiring 11 May 2017.
The offender is to be released on parole when the final non-parole period expires on 11 December 2015.
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