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Mitchell v The Queen

Mitchell v The Queen

Case [2018] VSCA 158 21 June 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0182

TERRY DARREN MITCHELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 June 2018
DATE OF JUDGMENT:	21 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 158
JUDGMENT APPEALED FROM:	[2017] VSC 423 (Elliott J)

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CRIMINAL LAW – Appeal – Sentence – Manslaughter – Sentence of 10 years with non-parole period of 7 years and 6 months – Co-offender sentenced to 5 years with non-parole period of 3 years and 9 months – Parity – Whether sentence infringed parity principle – Discount for co-operation – Co-offender co-operated and undertook to give evidence against applicant – Complaint of unjustifiable disparity not reasonably arguable – Manifest excess – Whether sentence manifestly excessive – Serious example of manslaughter – Complaint of manifest excess not reasonably arguable – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Emma Turnbull Lawyers
For the Respondent	Mr J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
PRIEST JA
BEACH JA:

On 8 November 2014, the applicant, Timothy Bennison and Co-offender A[1] committed a violent and protracted assault on Mr Jason Stone. Mr Stone, who was bound with tape and a sock in his mouth, was then placed in the boot of Co-offender A’s car. Mr Stone was then taken by Bennison and Co-offender A to Rickett’s Point where he was further assaulted. His dead body was discovered some days later hidden in bushes on the foreshore.
[1]The non-disclosure of the identity of Co-offender A is the subject of an order made in the Trial Division on 12 April 2016.

Co-offender A pleaded guilty to the manslaughter of Mr Stone. He subsequently gave a statement to police, and an undertaking to give evidence against both the applicant and Bennison. On 11 April 2016, Co-offender A was sentenced to a term of imprisonment of five years, with a non-parole period of three years and nine months.[2]
[2]R v [Co-offender A] [2016] VSC 168R (Emerton J) (‘Emerton J’s Reasons’).

On 9 November 2016, following a Basha hearing[3] in which Co-offender A gave evidence and was cross-examined, the applicant pleaded guilty to the manslaughter of Mr Stone. On 27 July 2017, the applicant was sentenced to a term of imprisonment of 10 years, with a non-parole period of seven years and six months.[4]
[3]See R v Basha (1989) 39 A Crim R 337.
[4]DPP v Mitchell [2017] VSC 423 (Elliott J) (‘Reasons’).

Bennison pleaded guilty to murder and was sentenced to a term of imprisonment of 21 years with a non-parole period of 18 years.

The applicant now seeks leave to appeal against his sentence. His proposed grounds of appeal are:

1.The sentencing judge erred in his application of the parity principle in that he imposed a sentence upon the applicant so disparate from the sentence imposed upon [Co-offender A] as to give rise to a justifiable…

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 [2018] VSCA 158
Case: [2018] VSCA 158
Decision Date: 21 June 2018

CaseChat Overview and Summary

The appellant, Mitchell, sought leave to appeal against his sentence for manslaughter, contending that the sentence was unjustifiable on the grounds of parity, manifest excess, and the failure to grant a discount for co-operation. The respondent, the Crown, opposed the application. The sentence imposed by the primary judge was 10 years imprisonment, with a non-parole period of 7 years and 6 months. The co-offender received a sentence of 5 years imprisonment, with a non-parole period of 3 years and 9 months. The appellant argued that the disparity in sentences was not justified and that his sentence was manifestly excessive, particularly in light of the co-offender's cooperation with the prosecution.

The legal issues that the court had to determine were whether the sentence imposed on the appellant was unjustifiable due to parity with the co-offender's sentence, whether the sentence was manifestly excessive, and whether the primary judge erred in failing to grant a discount for the appellant's co-operation. The court considered the principles of parity, manifest excess, and the availability of a discount for co-operation in the context of the appellant's and co-offender's roles in the offence and the sentences imposed. The court also had to assess whether the appellant's complaints were reasonably arguable and whether they had a real prospect of success.

The court found that the appellant's complaints were not reasonably arguable. The disparity in sentences was not unjustifiable as the co-offender had co-operated with the prosecution and undertaken to give evidence against the appellant, which was a significant factor in determining the disparity. The sentence was not manifestly excessive, given the seriousness of the offence and the appellant's role in it. The court also held that the primary judge was not required to grant a discount for co-operation, as the co-offender's cooperation did not warrant such a discount. Consequently, the application for leave to appeal was refused.

Orders