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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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] TASCCA 15. Although her Honour differed from the majority in the application of the principles to the circumstances of that case it is convenient to adopt her Honour's statements, with which we respectfully agree. After referring to s 17(4) her Honour said at [14]-[17]:

   "It can be seen that the court's discretion is not fettered. The factors set out in the sub-paragraphs may be taken into account, but the section allows the court to have regard to other 'such matters as it considers necessary or appropriate'. The section is also non-prescriptive in allowing the sentencing court to allocate its own weighting to the matters in (a), (b) or (c), or indeed, any other matters. In any particular case there may be factors that weigh for or against parole, and the court is entrusted with a wide discretion in balancing these considerations and determining the appropriate outcome. The role of sentencing aims such as rehabilitation and deterrence also bear on the exercise of discretion. Again, such matters are left to the court's discretion. The provision allows for cases where the court may, because of the particular circumstances, not allow any opportunity to apply for parole.

   The overarching guiding principle in exercising the discretion to fix a non-parole period is provided by Power v The Queen [(1974) 131 CLR 623]. In Power, the High Court at 629 concluded that the purpose of legislation providing for parole eligibility is to 'provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate'. The non-parole period should be 'the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence': per Barwick CJ, Menzies, Stephen and Mason JJ at 629; see also Deakin v The Queen [(1984) 58 ALJR 367] and Bugmy v The Queen [(1990) 169 CLR 525]. Other considerations are general and personal deterrence, the prisoner's capacity for reformation (see Power at 628-629) and the necessary punitive effects of sentences (Hili v The Queen [(2010) 242 CLR 520] at [41]).

   The test in Power, that the sentencing court must consider what 'minimum time justice requires that the prisoner must serve, having regard to all circumstances of his offence' applies to the parole regime in Tasmania: Carr v The Queen [2002] TASSC 60, (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris [2013] TASCCA 5 at [10] per Blow CJ. In fact, it was applied as well in relation to the former regime under the Parole Act: Adams v The Queen [1998] TASSC 41 per Cox CJ at 2, and Gill v The Queen [Serial Number A34/1990] per Green CJ at 2. It may be noted that s 17(4) of the Sentencing Act makes specific reference to the nature and circumstances of the offence, reflecting the test in Power.

   There are other principles which assist in the court's sentencing discretion. The cases provide useful statements of principle regarding the effect of non-parole orders in terms of general and personal deterrence and protection of the public, and the benefits of parole in terms of rehabilitation, reintegration into the community, supervision of the offender and restraints before unconditional freedom: see, for instance, Gill per Crawford J at 7-8."

7. A non-parole period may, depending on the circumstances of a particular case, make a sentence manifestly excessive even though the particular head sentence is not excessive: Groenewege [2013] TASCCA 7 per Porter J at [57]-[60]. The lead majority judgment in Connelly was written by Estcourt J. His Honour referred to some cases in which it was concluded that the length of the non-parole period had such effect, and his Honour, with whom Tennent J agreed, came to the same conclusion in the sentence being considered in that appeal.

8. This is not such a case. In making an order under s 17(2) of the Act, the trial judge took into account the appellant's lack of prior convictions and the prospect that a significant term of actual imprisonment would achieve the aim of personal deterrence. His Honour then went on to say that:

   "However, because of the seriousness of your crimes, I am of the view that the minimum time that you should actually serve in prison is a period in excess of the statutory minimum of one half of the head sentence."

9. The nature and circumstances of the appellant's offending were such that his Honour was entitled to view the crimes as serious.  The appellant, in effect, stole over $2,300,000 over a period of 4½ years in a gross breach of trust involving serious, systematic and repeated dishonest conduct.  The impact on the complainant has been severe.  The money was stolen purely out of greed and there is little prospect that it can be recovered.

10. In the circumstances, the trial judge was entitled, in exercising his discretion under s 17(2) of the Act, to place great weight on the nature and circumstances of the offending. His Honour did have regard to the lack of prior offending. That is, in part, why he decided to exercise the discretion under s 17(2). We see no basis for the submission that the trial judge erred in the exercise of his discretion by failing to set a non-parole period of half of the head sentence.

11. Counsel for the appellant relied on the case of Pickrell v Tasmania [2011] TASCCA 13 at [12], where it was held that a minimum parole period of half of the sentence was appropriate because of the offender's age, lack of prior convictions and because it was unlikely she would reoffend. Counsel for the State distinguished Pickrell on the basis that the offending in this matter involved a significantly higher amount solely due to greed and that in Pickrell there were more mitigating factors.  Those matters included the advanced age of the offender and business debts incurred by her husband who suicided.  Also, the effect of the offending on the complainant in this case was more devastating than on the employer victim in Pickrell.

12. For the foregoing reasons we are of the view that the trial judge did not err in the exercise of his discretion under s 17(2)(b) of the Act. The imposition of a non-parole period of five years' imprisonment did not result in a sentence which was manifestly excessive.