Mitchell v The Queen - [2000] NTCCA 4

Mitchell v The Queen [2000] NTCCA 4
PARTIES:SIMON PETER MITCHELL
v

THE QUEEN

TITLE OF COURT:   NORTHERN TERRITORY COURT OF CRIMINAL APPEAL
JURISDICTION:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:CA8 of 1999
DELIVERED:  30 June 2000
HEARING DATES:  10 April 2000
JUDGMENT OF:  MARTIN CJ, ANGEL & MILDREN JJ
CATCHWORDS:

CRIMINAL LAW
Appeal – whether sentence manifestly excessive.
Appeal – general principles – interference with sentencing Judge’s discretion.
House v The King (1936) 55 CLR 499 at 504-505, applied
Cranssen v The King (1936) 55 CLR 509 at 519-520, applied
Siganto v The Queen CCA NT 13 May 1999, referred to.
Particular offences – offences against the person - whether a sentencing tariff for rape exists-
Visconti [1982] 2 NSWLR 104 at 107, applied
Jabaltjari (1989) 64 NTR 1 at 20-21 and 32, applied
Mulholland (1991) 1 NTLR 1 at 13, applied
Breed v Pryce (1985) 36 NTR 23 at 27, referred to
Morabito (1992) 62 A Crim R 82 at 86, referred to
Sentencing Act 1995 (NT), s 55(1) and s 63(5)
REPRESENTATION:
Counsel:
Appellant:S Cox
Respondent:  R Wild QC
Solicitors:
Appellant:NTLAC
Respondent:  DPP
Judgment category classification:      B
Judgment ID Number:
Number of pages:  9

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mitchell v The Queen [2000] NTCCA 4

No. CA8 of 99
BETWEEN:

SIMON PETER MITCHELL

Applicant

AND:

THE QUEEN

Respondent

CORAM: MARTIN CJ, ANGEL AND MILDREN JJ
REASONS FOR JUDGMENT
(Delivered 30 June 2000)
The Court:

This is an application for leave to appeal against sentence. The applicant was charged with having sexual intercourse without consent, contrary to s192(3) of the Criminal Code. At a late stage of the proceedings, but before the trial began, the applicant entered a plea of guilty. The applicant had spent two periods in custody before he was sentenced. The first was a period of five months from the time of his arrest on 23 November 1998 until he was released on bail on 27 April 1999. The second was a period of about two months from the time he entered his plea on 12 July 1999 until he was sentenced on 17 September 1999. The learned Sentencing Judge imposed a sentence of ten years imprisonment, which his Honour said he arrived at after taking into account the first period of five months. His Honour backdated the sentence to 12 July 1999 and fixed a non-parole period of seven years.
The grounds of the application are:
(a) that the sentence and non-parole period imposed are manifestly excessive; and
(b) that the learned Sentencing Judge erred in failing to give sufficient weight to the applicant's plea of guilty.
The facts as found by the learned Sentencing Judge are as follows. The victim was walking home at about 4:30 am on Sunday 1 November 1998 when she was approached by a person whom she believed was the applicant. She became concerned and decided not to go home, but rather…

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 [2000] NTCCA 4
Case: [2000] NTCCA 4
Decision Date: 30 June 2000

CaseChat Overview and Summary

Mitchell appealed against a sentence imposed by a sentencing judge in the Supreme Court of Western Australia. The appeal concerned whether the sentence was manifestly excessive.

The primary legal issue before the Court of Appeal was whether the sentencing judge had erred in exercising their discretion by imposing a sentence that was so disproportionate to the gravity of the offence or the circumstances of the offender as to be demonstrably unjust.

The Court of Appeal affirmed the general principle that appellate courts should not interfere with a sentencing judge's discretion unless there is a clear error. However, it also reiterated that a sentence may be considered manifestly excessive if it is outside the bounds of what is reasonable, having regard to all relevant factors. The Court would consider the nature of the offence, the offender's background, and the need for deterrence and rehabilitation when assessing the proportionality of the sentence.

The Court of Appeal dismissed the appeal, finding that the sentence imposed was not manifestly excessive.

Orders