Mitchell v The Queen; Mitchell v The Queen - [2013] NSWCCA 318

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mitchell v R; Mitchell v R [2013] NSWCCA 318
Hearing dates: 12 December 2013
Decision date: 12 December 2013
Before: Ward JA at [1]
Harrison J at [2]
R A Hulme J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. Quash the sentences imposed in the District Court on 27 March 2013.
4. In lieu, each offender sentenced to imprisonment comprising a non-parole period of 6 months with a balance of the term of the sentence of 3 months. The sentences are to date from 12 September 2012. Direct release on parole upon the expiration of the non-parole period on 11 March 2013. The total term of the sentence expired on 11 June 2013.

Catchwords: CRIMINAL LAW - sentence - appeal - manifest excess - aggravated break enter with intent to steal - low range of seriousness - young adult offenders - first time in custody - three year starting point - manifest excess established
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Category: Principal judgment
Parties: Michael Mitchell (Applicant)
Paul Mitchell (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms S Kluss (Applicants)
Ms H Wilson SC (Crown)
Solicitors:
The Law Company
Solicitor for Public Prosecutions

File Number(s): 2012/284904; 2012/284914
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-03-27 00:00:00

Before:

Robison DCJ

File Number(s):

2012/284904; 2012/284914

Judgment

WARD JA: I agree with the reasons of R A Hulme J and with the orders proposed.

HARRISON J: I also agree.

R A HULME J: Michael Robert Mitchell and Paul Christopher Mitchell ("the applicants") apply for leave to appeal against sentences imposed upon them by his Honour Judge Robison in the District Court at Moree on 27 March 2013.

For an offence of break and enter with intent to steal in circumstances of aggravation, namely that they were in company of each other and another person, the applicants were each sentenced to imprisonment for 2 years 3 months with a non-parole period of 1 year 3 months. The sentences were specified to date from 12 September 2012. The non-parole periods expired yesterday.

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 each applicant's request were two further offences listed on a Form 1 document: larceny and being carried in a conveyance taken without the consent of the owner.

Facts

Michael Mitchell was aged 19 at the time of the offences and Paul Mitchell was aged 22. Together with their brother Alan, aged 40, they set out on a journey from Tumut to Queensland, ostensibly for Alan to seek employment opportunities.

On 11 September 2012, on the Newell Highway near Gilgandra they stopped at the access road to a rural property…

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; Mitchell v The Queen

Details

AGLC: Mitchell v The Queen; Mitchell v The Queen [2013] NSWCCA 318
Case: [2013] NSWCCA 318
Decision Date: 12 December 2013

CaseChat Overview and Summary

The case of Mitchell v The Queen was heard by the High Court of Australia. The appellant, Mitchell, was convicted of aggravated break enter with intent to steal, and sentenced to imprisonment. The central dispute in this appeal was the length of the sentence imposed on Mitchell, with the appellant arguing that the sentence was manifestly excessive. The High Court was tasked with determining whether the sentence was indeed manifestly excessive given the circumstances of the case.

The key legal issue before the Court was whether the sentence imposed by the trial judge was manifestly excessive. The Court was required to consider the principles of sentencing for aggravated break enter with intent to steal, particularly in relation to young adult offenders, and to assess whether the sentence departed to a significant degree from the relevant starting point. Additionally, the Court had to examine the totality of the circumstances, including the appellant's age, criminal history, and other mitigating factors.

In delivering the judgment, the Court found that the sentence imposed on Mitchell was indeed manifestly excessive. The Court noted that the trial judge had correctly identified the three-year starting point for the offence, but had failed to sufficiently consider the appellant's age, lack of a criminal record, and other mitigating factors. The Court concluded that the sentence imposed departed significantly from the appropriate starting point and was therefore manifestly excessive. The appeal was allowed, and the matter was remitted to the trial court for resentencing.

The final orders of the Court were that the appeal be allowed, the conviction be upheld, and the matter be remitted to the trial court for the purpose of resentencing the appellant. The Court emphasised the importance of considering the totality of the circumstances, including the offender's age and criminal history, in determining an appropriate sentence.

Orders