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

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

1. HARRISON J: I also agree.

1. 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.

1. 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.

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

1. 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

1. 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.

1. On 11 September 2012, on the Newell Highway near Gilgandra they stopped at the access road to a rural property where a work vehicle was parked. Together they stole a tool box from the rear of the vehicle. It contained two chainsaws and various other tools and implements, altogether worth about $1250. I interpolate that these items were ultimately recovered. This constituted the offence of larceny that was taken into account.

1. The offenders continued their journey north and when about 40km south of Narrabri their vehicle broke down. They eventually managed to get a lift into Narrabri. At some point that night they were walking past the premises of an audio-electronics business. They noticed a Toyota Landcruiser parked in the yard. They entered the yard where Alan Mitchell broke into and started this vehicle. The applicants got in and the trio proceeded back to where their car had broken down. The car was towed back into Narrabri and the stolen car was dumped on the outskirts of the town. The applicants being passengers in the stolen car constituted the other offence that was taken into account.

1. The offenders then decided to return to the audio-electronics business in order to break in and steal tools and music equipment. They entered through a hole in the fence earlier made by Paul Mitchell. They forced open a garage door. Michael and Paul Mitchell entered the building with the intention of stealing but an alarm was activated and all three fled the scene.

1. The three offenders were arrested on the morning of 12 September 2012. They were taken to the Narrabri police station where it is said that they were co-operative with investigators and made full admissions.

1. Compensation was sought by the prosecution for the damage occasioned to the stolen car. Payment was proffered by way of a solicitor's trust account cheque at the sentence hearing.

1. In assessing the seriousness of the primary offence (the aggravated break and enter with intent) the judge noted that there was "no real degree of planning" and that it was "somewhat spontaneous". His Honour posed for himself the question "whose idea was it" and answered it by saying that, because of his age, Alan Mitchell had to take "considerable responsibility".

1. The judge concluded that the objective seriousness of the primary offence was "within the lower end of the range". This had been conceded by the solicitor appearing for the Crown.

Personal circumstances of the applicants

1. There was very little material placed before the judge concerning the personal circumstances of the applicants. They did not give evidence and there were no reports.

1. The judge noted that Michael Mitchell was aged 20 (at the time of sentence); was single and had no dependents; and was an itinerant tree surgeon.

1. He had a criminal history consisting of a number of matters dealt with in the Tumut Children's Court between 2005 and 2010, all of which were resolved by way of bonds, probation or fines. There was one matter dealt with in the Tumut Local Court in March 2012 which resulted in a fine. He had not previously been held in custody.

1. Paul Mitchell was aged 22; single with no dependents; and was also an itinerant worker.

1. His criminal history was similar to that of his younger brother. There were matters dealt with in the Tumut Children's Court between 2003 and 2008 and subsequent matters in the Local Court. All of these matters were dealt with by way of fines and bonds. He, too, had not previously been held in custody.

The assessment of sentence

1. The judge noted that the applicants were "very young men"; "each have a track record in the criminal justice system" but they had "their whole lives ahead of them" and that "rehabilitation [was] in their hands".

1. His Honour was satisfied that imprisonment was appropriate: s 5 Crimes (Sentencing Procedure) Act 1999 (NSW). He found, pursuant to s 44(2), that there were special circumstances warranting a reduction of the proportion of the sentence to be represented by the non-parole period. His Honour reasoned that a "prolonged period on parole would provide a better opportunity for eventual reintegration into society in the hope that their long term futures can be addressed by appropriate forms of counselling and rehabilitation under supervision".

1. The judge adverted to the need to take into account the additional offences on the Form 1 documents, noting that he "should not pay mere lip service" to them. He also adverted to the principle of parity, given that he was sentencing three offenders. Regard was also had to sentencing statistics with which he had been provided.

1. The applicants had pleaded guilty at an early stage and for the utilitarian benefit of their pleas the judge reduced their sentences by 25 per cent.

Grounds of appeal

1. The sentence imposed started from a notional staring point that was too high.

2. His Honour failed to consider that no punishment was appropriate other than sentence of imprisonment: s 5 Crimes (Sentencing Procedure) Act.

3. His Honour failed to consider the 3 stage process per: Douar [2005] NSWCCA 455 at paras [69] to [72] which should be activated once the court determines that a full-time custodial sentence needs to be imposed.

4. The sentence imposed on the applicant was manifestly excessive.

Consideration

1. Ground 1 is unnecessary to determine because the starting point for the sentences is relevant to the determination of Ground 4.

1. Grounds 2 and 3 have no merit. As the submissions for the Crown in this Court point out, the judge was not invited to consider something other than full-time imprisonment.

1. In relation to Ground 4 it is pertinent to note that the starting points for the sentences before the 25 per cent reduction for the pleas of guilty was 3 years.

1. The sentencing statistics compiled by the Judicial Commission of New South Wales have well-known limitations in their utility in assessing appropriate sentences: see, for example, Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [48] and [55]. With that in mind, I note that the statistics for sentencing for offences against s 113(2) of the Crimes Act, in their current iteration, show that in the 210 cases comprising the database, full-time imprisonment was imposed on 143 occasions. One hundred and thirty eight of those 143 cases involved pleas of guilty. Eighty per cent of those cases involved sentences ranging from more than 12 months up to 4 years with a median of 3 years. For offenders aged 21 to 25, the range is not dissimilar and the median is the same. For offenders aged 18 to 20 the range is, again, not dissimilar but the median is 2 years.

1. It is of some significance that about a third of cases did not result in a full-time custodial sentence.

1. I acknowledge the point made by the Crown that the range is not that determined by sentencing statistics but by the maximum penalty prescribed for the offence by Parliament, in this case 14 years imprisonment.

1. It was the Crown's contention that the sentences, whilst "stern", were within the broad range of discretion of the primary judge and that they should not be regarded as "unreasonable or plainly unjust" and thus manifestly excessive: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 325.

Determination

1. For offences found to be "at the lower end of the range" of objective seriousness, committed by 19 and 22 year old men who had not previously experienced a custodial sentence, sentences of 2 years 3 months, reduced from 3 years on account of the pleas of guilty, are manifestly excessive. The sentencing statistics are by no means determinative but they provide broad support for that conclusion.

1. In my view, the appropriate starting point should have been 1 year. Reducing that by 25 per cent would yield a term of 9 months. The finding of special circumstances made by the primary judge should be maintained.

1. It should be noted that both applicants were subsequently sentenced in the District Court at Wagga Wagga on 8 August 2013 for a variety of similar offences to substantial terms of imprisonment. Whatever the outcome of the present proceedings, they will each remain in custody serving those sentences. They were specified to take effect from 12 January 2013. Michael Mitchell will not become eligible for parole until 11 June 2016 and Paul Mitchell will not become eligible for parole until 11 October 2016.

1. Those sentences are irrelevant to the disposition of the present application. The Court was informed that an appeal is contemplated.

Proposed orders

1. I propose the following orders in each case:

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.

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Decision last updated: 02 January 2015