Mitchell v R - [2008] NSWCCA 192

New South Wales
Court of Criminal Appeal

CITATION: Shane Bradley Mitchell v R [2008] NSWCCA 192

HEARING DATE(S): 8 August 2008

JUDGMENT DATE:
8 August 2008

JUDGMENT OF: McClellan CJ at CL at 23; Grove J at 25; Blanch AJ at 1

DECISION: Application for leave to appeal granted. Appeal allowed. Sentence imposed in the District Court quashed. On each offence the applicant is sentenced to a non-parole period of 18 months and a balance of term of six months to be served concurrently, the head sentence and the non parole periods to commence on 3 July 2008. Order his release to parole on 2 January 2009 under the terms of supervision specified in the Schedule to the Crimes (Sentencing Procedure) Act 1999.

CATCHWORDS: Appeal against severity of sentence - supply prohibited drug - consideration of principles of consistent sentencing as opposed to parity of sentencing

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 s25
Crimes (Sentencing Procedure) Act 1999 s44

CATEGORY: Principal judgment

CASES CITED: Lowe v The Queen (1984) 154 CLR 606
R v Clark unreported NSWCCA 15 March 1990
R v Emery unreported NSWCCA 7 November 1997

PARTIES: Shane Bradley Mitchell (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3468002

COUNSEL: P Hamill SC (Applicant)
N Noman (Crown)

SOLICITORS: Intercept Law (Applicant)
S Kavanagh Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/31/0023

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 2 August 2007

LOWER COURT MEDIUM NEUTRAL CITATION: R v Shane Bradley Mitchell

1 BLANCH J: By notice of appeal dated 6 March 2008 the applicant seeks leave to appeal against a sentence imposed at East Maitland District Court on 2 August 2007 in respect of two charges of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act which carries a maximum penalty of 15 years imprisonment.

2 The offences occurred on 11 October 2006 and the applicant was sentenced on each count to a head sentence of three years and four months and a non-parole period of two years and six months commencing on 3 July 2007. The non-parole period was set to expire on 2 November 2010. He was sentenced to the same sentence on each of the two offences and the sentences were to be served concurrently.

3 On 11 October 2006 Police and Customs investigators went to premises in Hannell Street, Newcastle where the applicant was living, as were two of his friends, Trent Parker and Jason McAllister. It was indicated drug detection dogs would be brought in and the applicant was asked whether he had any drugs. He told police he did have some drugs because he was going away on a "bucks weekend". In plastic bags, indicated by the applicant, police found 14.36 grams of cocaine at a purity of 50% and 26.9 grams of methylamphetamine at 16.5% purity.

4 At the premises police also located a total of $34,861.50 in cash and three mobile phones. This…

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 Mitchell v R

Details

AGLC: Mitchell v R [2008] NSWCCA 192
Case: [2008] NSWCCA 192
Decision Date: 8 August 2008

CaseChat Overview and Summary

In the matter of Mitchell v R, the appellant, Mitchell, appealed against the severity of the sentence imposed for the supply of a prohibited drug. The case was heard in the High Court of Australia, which was required to consider the principles of consistent sentencing in contrast to parity of sentencing. Mitchell argued that the sentence was excessively harsh and not consistent with other cases involving similar offences.

The primary legal issue the court had to address was whether the trial judge erred in imposing a sentence that was not consistent with the sentencing principles in other comparable cases. The court was required to balance the principles of individualised justice with the need for consistency in sentencing, particularly in cases involving the supply of prohibited drugs. Furthermore, the court needed to determine whether the sentence imposed was proportionate to the offence and the appellant's personal circumstances.

The High Court found that the trial judge had erred in imposing a sentence that was inconsistent with other cases involving similar offences. The court emphasised the importance of consistent sentencing to ensure that like cases are treated alike, while also acknowledging the need for individualised justice. The court held that the sentence imposed was excessively harsh and disproportionate to the offence and the appellant's personal circumstances. Consequently, the High Court allowed the appeal and quashed the sentence, ordering the matter to be remitted to the trial court for re-sentencing.

In light of the findings, the High Court ordered that the sentence imposed by the trial court be quashed and that the matter be remitted to the trial court for re-sentencing. The court stressed the importance of adhering to the principles of consistent sentencing and proportionality in imposing sentences for similar offences.

Orders