Mitchell v The Queen - [2014] NSWCCA 63

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mitchell v R [2014] NSWCCA 63
Hearing dates: 4 April 2014
Decision date: 17 April 2014
Before: R A Hulme J at [1]
Davies J at [26]
Adamson J at [27]
Decision:
1. Extension of time in which to apply for leave to appeal granted.
2. Leave to appeal granted.
3. Appeal allowed.
4. Sentence imposed in the District Court on 27 March 2013 quashed.
5. In lieu, sentenced to imprisonment comprising a non-parole period of 1 year and a balance of the term of the sentence of 10 months. The sentence is to date from 12 September 2012. The non-parole period expired on 11 September 2013 and the total term will expire on 11 July 2014.

Catchwords: CRIMINAL LAW - appeal against sentence - applicant not at fault for delay in bringing application for leave to appeal - application for extension of time granted - finding that objective seriousness was in the "lower end of the range" warranted a lesser sentence - applicant's sentence should be higher than co-offenders in proportion to greater moral culpability and less favourable subjective features - leave to appeal granted - appeal allowed
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Lowe v The Queen [1984] HCA 46; 154 CLR 606
Mitchell v R; Mitchell v R [2013] NSWCCA 318
Category: Principal judgment
Parties: Allan James Mitchell (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr D Dalton SC (Applicant)
Ms H Wilson SC (Crown)
Solicitors:
The Law Company
Solicitor for Public Prosecutions

File Number(s): 2012/284907
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-03-27 00:00:00

Before:

Robison DCJ

File Number(s):

2012/284907

Judgment

R A HULME J: Allan James Mitchell ("the applicant") applies for an extension of time in which to seek leave to appeal against a sentence imposed upon him by his Honour Judge Robison in the District Court at Moree on 27 March 2013.

The applicant pleaded guilty to an offence of break and enter with intent to steal in circumstances of aggravation, namely that he was in company with two other persons (his younger brothers). He was sentenced to imprisonment for 3 years with a non-parole period of 2 years dating from 12 September 2012. In respect of this sentence, the applicant becomes due for release on parole upon the expiration of the non-parole period on 11 September 2014 (but he is serving other sentences I will refer to later).

The offence is contrary to s 113(2) of the Crimes Act 1900 (NSW) and the prescribed maximum penalty is imprisonment for 14 years.

Taken into account at the applicant's request were two further offences listed on a Form 1 document: larceny and take and drive a conveyance.

Extension of time

The applicant filed a Notice of Intention to Apply for Leave to Appeal but it expired before the applications for leave to appeal and for an extension of time were filed on 30 January 2014.

The applicant is legally aided. It…

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 The Queen

Details

AGLC: Mitchell v The Queen [2014] NSWCCA 63
Case: [2014] NSWCCA 63
Decision Date: 17 April 2014

CaseChat Overview and Summary

In the case of Mitchell v The Queen, the applicant, Mitchell, sought an appeal against the sentence imposed by the trial court. The nature of the dispute centred around the severity of the sentence and whether it was proportionate to the seriousness of the crime committed. The case was heard in the High Court of Australia. The legal issues before the court were whether the applicant's delay in bringing the application for leave to appeal should be taken into account, whether the objective seriousness of the crime warranted a lesser sentence, and whether the sentence was proportionate to the applicant's moral culpability and subjective features.

The court found that Mitchell was not at fault for the delay in bringing the application for leave to appeal. Consequently, the application for an extension of time was granted. The court also determined that the objective seriousness of the crime was in the lower end of the range, which warranted a lesser sentence. However, the court held that the applicant's sentence should be higher than that of the co-offenders in proportion to the greater moral culpability and less favourable subjective features. Given this reasoning, the court granted leave to appeal and allowed the appeal. The applicant's sentence was ultimately reduced, taking into account the factors mentioned above.

Orders