Mitchell v Tasmania - [2017] TASCCA 9

[2017] TASCCA 9

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Mitchell v Tasmania [2017] TASCCA 9

PARTIES:  MITCHELL, Patrick Simon
  v
  STATE OF TASMANIA

FILE NO:  698/2017
DELIVERED ON:  7 June 2017
DELIVERED AT:  Hobart
HEARING DATE:  5 June 2017
JUDGMENT OF:  Pearce J, Marshall and Porter AJJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Stealing $2,300,000 by misappropriation – Imprisonment for eight years with non-parole period of five years not manifestly excessive.

Sentencing Act 1997 (Tas), s 17.
Connelly v Tasmania [2015] TASCCA 15, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  G Stevens
           Respondent:  H Denton
Solicitors:
           Appellant:  Steven Chopping
           Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASCCA 9
Number of paragraphs: 12

Serial No 9/2017
File No 698/2017

PATRICK SIMON MITCHELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
MARSHALL AJ
PORTER AJ
7 June 2017

Order of the Court

Appeal dismissed.

Serial No 9/2017
File No 698/2017

PATRICK SIMON MITCHELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
MARSHALL AJ
PORTER AJ
7 June 2017

Shortly after the conclusion of submissions on the hearing of this appeal we ordered that the appeal be dismissed. These are our reasons for that order.
The appellant, Patrick Mitchell, appeals against a sentence imposed on him by Brett J after being convicted on 25 counts of stealing by misappropriation. The appellant pleaded guilty on each count. His Honour sentenced him to eight years' imprisonment with a non-parole period of five years.
The appellant does not challenge the head sentence. However he contends that the imposition of a non-parole period of five years makes the sentence manifestly excessive. The appellant contends that the non-parole period should have been half of the sentence, that is, four years. He submits that such a non-parole period should have been imposed having regard to his lack of prior convictions, remorse and excellent prospects of rehabilitation.
Under s 17(2)(b) of the Sentencing Act 1997 ("the Act"), the court imposing a sentence may order that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order. Section 17(3) of the Act provides that the period specified is not to be less than one half of the period of the sentence.
Section 17(4) of the Act provides that in exercising its discretion under s 17(2), a court may have regard to matters it considers necessary or appropriate, and may have regard to:
(a)      the nature and circumstances of the offence;
(b)      the offender's antecedents or character; and
(c)      any other sentence to which the offender is subject.
The principles to be applied by a sentencing court when considering the length of a non-parole period are summarised by Wood J in Connelly v Tasmania [2015]…

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 Tasmania

Details

AGLC: Mitchell v Tasmania [2017] TASCCA 9
Case: [2017] TASCCA 9
Decision Date: 7 June 2017

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the respondent, Mitchell, who had been convicted of stealing $2,300,000 by misappropriation. The appeal was brought before the Full Court of the Supreme Court of Tasmania, comprising Pearce J, Marshall and Porter AJJ.

The central legal issue before the Full Court was whether the sentence of eight years' imprisonment with a non-parole period of five years was manifestly excessive, thereby providing grounds for interference on appeal.

The Court considered the gravity of the offence, noting the significant sum of money misappropriated and the breach of trust involved. Applying established principles for sentencing in cases of serious dishonesty, the Court found that the sentencing judge had properly weighed the relevant factors, including the need for general deterrence and punishment, against any mitigating circumstances. The Court concluded that the sentence imposed was not outside the bounds of what was reasonable and proportionate for an offence of this nature and scale.

Consequently, the appeal against sentence was dismissed.

Orders