Police v Mitchell
[2008] NSWLC 5
•14/02/2008
Local Court of New South Wales
CITATION: Police v Mitchell [2008] NSWLC 5 JURISDICTION: Criminal PARTIES: Police
William John MitchellFILE NUMBER: PLACE OF HEARING: Wagga Wagga Local Court DATE OF DECISION: 02/14/2008 MAGISTRATE: Magistrate P Dare CATCHWORDS: Sentencing – Assault Police – Principles - Offender shot by Police – Extra Curial Punishment – Special Circumstances found – Cumulation of Penalty. LEGISLATION CITED: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1990 ss 21A(2), 50, 51CASES CITED: Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196; [2002] NSWCCA 515
Cahyadi v R (2007) 168 A Crim R 41
Hoare –v- The Queen (1989) 167 CLR 348.
Pearce –v- The Queen 194 CLR 610 at 624
R v Allpass (1993) 72 A Crim R 561
R v Carberry & Weldon (2002) 136 A Crim R 55; [2002] NSWCCA 475
R v Clissold [2002] NSWCCA 356
R v Close (1992) 31 NSWLR 743
R v Daetz (2003) 139 A Crim R 398.
R v Doan (2000) 50 NSWLR 115
R v Dodd (1991) 57 A Crim R 349
R v El-Hayek (2004) 144 A Crim R 90
R v Fidow [2004] NSWCCA 172
R v Hamilton (1993) 66 A Crim R 575
R v Ibrahim [2005] NSWCCA 43
R v Lee William Barber [2004] NSWCCA 153
R v Leon (unrep) 30/11/94, NSWCCA
R v Mohammed Jouayde [2003] NSWCCA 240
R v Nimmo [2005] NSWCCA 295
R v Ponfield (1999) 48 NSWLR 327
R v Readman (1990) 47 A Crim R 181
R v Simpson (1992) 61 A Crim R 58;
R v Simpson (2001) 53 NSWLR 704
R v Thomson and Holten (2000) 49 NSWLR 383
R v- Wallace [2007] NSWCCA 63.
Regina v Astill (No. 2) (1992) 64 A Crim R 289
Regina v Bell [2003] NSWCCA 305
Regina v King (2004) 150 A Crim R 409
Regina v MA (2004) 145 A Crim R 434
Regina v Newman & Simpson (2004) 145 A Crim R 361
Regina v Nguyen [2007] NSWCCA 94
Vaovasa v R [2007] NSWCCA 253
Veen v The Queen (No 2) (1988) 164 CLR 465.
Young v R [2007] NSWCCA 114TEXTS CITED: REPRESENTATION: Sergeant D. Middleton
Mr R. Behan, Solicitor, Aboriginal Legal ServiceORDERS:
Before the Court, once again, is William John Mitchell who appears for sentence in relation to a range of matters. To make some sense of it all it will be helpful to set out the various charges, chronologically, in tabular form, as follows:-
H – and Seq H-31446413 1. 14/9/07 Contravene ADVO 2. 14/9/07 Malicious Damage (window) 3. 14/9/07 Malicious Damage (car windscreen) H-32724978 1. 27/11/07 Contravene ADVO H-32167132 1. 18/12/07 Contravene ADVO 2. 18/12/07 Intimidation. (Julie Redford) 3. 18/12/07 Malicious Damage (door and fence palings) 4. 18/12/07 Contravene ADVO H-32701951 1. 18/12/07 Use Weapon to prevent lawful detention 2. 18/12/07 Affray 3. 18/12/07 Assault Officer in Execution of Duty – Constable Tipping. 4. 18/12/07 Assault Officer in Execution of Duty – Constable Bergmeier. 5. 18/12/07 Assault Officer in Execution of Duty –
Constable Hallam6. 18/12/07 Assault Officer in Execution of Duty –
Senior Constable Gates.7. 18/12/07 Assault Officer in Execution of Duty – Constable Culgan. 8. 18/12/07 Assault Officer in Execution of Duty – Constable Brooks. 9. 18/12/07 Custody of Knife in Public Place. 10. 18/12/07 Wield knife in Public Place.
On 16th April, 2007, at this Court, in respect of charges of Contravene ADVO and Malicious Damage occurring on 17th March, 2007, he was given the benefit of 3 Bonds pursuant to Section 9 of the Crimes (Sentencing Procedure) Act. Consideration is also to be given as to whether the Bonds should be revoked and some other penalty imposed. He has not made good use of the leniency shown him.
Awaiting finalisation is an Interim Apprehended Domestic Violence Order with the Protected Person being Julieanne Redford. As I understand it, there is a history of domestic violence involving the Offender and Ms Redford who is the mother of his children. There is an undeniable history of breaches of these Orders.
H-31446413.
Sequence 1.
At all relevant times, there was an ADVO in force which had, as one of its conditions, a ban on the Offender approaching Ms Redford within 12 hours of consuming liquor or drugs. . The Fact Sheet recites that on 14th September, 2007, Ms Redford was at her home at 24 McKell Avenue when she saw the Offender approaching. He was affected by liquor. Ms Redford, as someone who would know, said the Offender’s demeanour changes dramatically when affected by liquor. She was so concerned at his approach that she went inside and shut the front door. She must have done so in some haste because she left behind her cigarettes and the key was left in the lock. The Offender came onto the premises, took her cigarettes and removed the key from the front door. Ms. Redford said to him, “Piss off, you’re drunk, you’re not allowed here.” The Offender walked off only to return about ten minutes later.
Sequence 2 and 3.
During the Offender’s brief absence he went to premises at 43 McKell Avenue where a 13 year-old boy was at home. The boy saw the Offender approach, walk up to the front door and bang against it. He then heard the sound of smashing glass and was so frightened he left the house, jumping over a neighbour’s fence to call his brother.
When the lad returned with his father, they noticed a window at the verandah had been smashed. Further, the front windscreen of a motor vehicle parked in the yard was also smashed. Mr Behan advised me in submissions to-day that the Offender has a limited memory of these particular events but there had been an on-going dispute with the occupants of 43 McKell Avenue which in part explains his actions.
When the Offender was arrested upon his return to 24 McKell Avenue he was taken to Wagga Police Station. Such was his state of intoxication and aggression that he commenced to head-butt the wall in the dock – later requiring treatment at Wagga Base Hospital for the resulting injuries. There is nothing within the Fact Sheet or other documentation seeking any orders for compensation.
H-32724978
Sequence 1.
The Offender was admitted to bail in respect of the September charges. There were a number of conditions to that grant of bail, such as, not to enter the City of Wagga Wagga except for Court appearances and to reside at an address at Lavington. The ADVO specified that he was not to reside at 24 McKell Avenue, Mount Austin.
On 30th November, 2007, some two months after the contravention in September, 2007, Police received information that the Offender was not only in Wagga but staying at 24 McKell Avenue, Mount Austin with Ms Redford. They attended the premises and spoke to Ms Redford who initially denied the Offender was there, however, after several minutes admitted he was in the premises. By residing in the premises he was in breach of the ADVO forbidding such a thing. Police found a rail ticket in the Offender’s possession which showed him arriving in Wagga on 27th November, 2007.
This is yet another instance of people who take it upon themselves to decide when and how Court orders will or will not apply to them. Protected Persons, in particular, need to realise, or be made to realise, that Parliament’s intention is to see they are protected insofar far as the law can protect them and obedience of Court orders is not something for them to pick and choose at their whim. In other words, what is the point of a Court making an Order for the protection of a victim if he or she connives with a Offender to disobey it. Sometimes people need to be protected from themselves.
H-32167132.
The Fact Sheet recites that on 11th December, 2007, an Interim ADVO was served on the Offender and expressed to expire on 14th February, 2008. In addition to the Mandatory Orders 1 (a), (b) and (c) there were additional orders - (10) the Offender must not approach the protected person or any such premises or place at which the protected person may from time to time reside or work within 12 hours of consuming intoxicating liquor or illicit drugs; (11) the Offender must not destroy or deliberately damage or interfere with the property of the protected person.
Sequence 1.
Around midnight on 17th December, 2007, the Offender went to 24 McKell Avenue, knocked on the front door, yelling, “Let me in.” Ms Redford, from past experience, knew the Offender was intoxicated and said to him, “William, you are not allowed here while you are drinking.” He responded, “Well, give me a blanket.” She replied, “No.”
Sequences 2 and 3.
The Offender is then said to have kicked at the front door causing it to break at the hinges and splitting the jamb. Ms Redford yelled out, “I am calling the Police.” The Offender left the verandah and went to the front gate. Ms Redford saw him breaking pieces off the front wooden fence. She yelled to him, “Piss off, Will, I have called the Police, they are on their way.” The Offender left the scene prior to the arrival of Police who attended, obtained a signed statement from Ms Redford and took photographs of the damage to the door and fence. Ms Redford was intimidated by his violent conduct and the damage to the property was in breach of the ADVO
Sequence 4.
About 5.08am on 18th December, 2007, a “OOO” call was made from 24 McKell Avenue, Mount Austin. Police attended and could hear the Offender yelling at Msd Redford inside the house. The Offender was heard to say, “You fuckin’ bitch, what did you call the fuckin’ coppers for?” She was heard to reply, “I am sick of you smashing up my fuckin’ stuff, fuck off out of here.” The Offender responded, “No, you’re fuckin’ dead, bitch. The cops aren’t getting me.” Police tried to gain access to the premises whereupon Ms Redford opened the front door. She was in an upset state and said, “He has just climbed out the bathroom window.” Police ran around the side of the house just in time to see the Offender climb the rear fence and disappear, making good his escape. A search of the surrounding area failed to locate him. This conduct breaches mandatory order 1 (a).
H-32701951.
The Fact Sheet recites that around 6.05am on 18th December, 2007, emergency services were called to the intersection of McKell Avenue and Victoria Street, Mount Austin due to a reported gas leak. It was an unfortunate coincidence that this intersection is directly outside 24 McKell Avenue. Upon arrival at the intersection, Police were alerted to a possible domestic-related incident going on at 24 McKell Avenue and went to speak to Ms Redford. The Offender had obviously returned to the house from which he had earlier escaped because as Police spoke with Ms Redford, the Offender left the house and approached Police. At the time he was brandishing what was described as “two large kitchen knives”. Police retreated from the front door of the house to the street in order to avoid the Offender. He chased after the Police and threatened to stab them. He also yelled several times at Police to shoot him. As it later turned out, that is just what happened.
The Offender ignored directions to put the knives down. He continued to approach Police whilst brandishing the knives and continued to threaten to stab them. On one occasion, an Officer used OC spray in an attempt to subdue and disarm the Offender, however, it had little or no effect. The Offender continued to advance towards the Officers and threatened to stab them. One of the Officers was sufficiently in fear of being stabbed that he drew his service pistol. This Officer challenged the Offender to drop the knives, however, the Offender continued to advance towards him. In the face of this, the Officer fired one round from his pistol striking the Offender in the left arm.
He fell to the ground and was restrained and disarmed. An ambulance took him to Wagga Wagga Base Hospital for treatment. The Offender remained defiant until the very end. Even whilst being wheeled into the ambulance he gestured with an upheld right middle finger to anyone who was watching. Despite his wound he continued to be violent and aggressive, including spitting in the faces of two Officers who accompanied him in the Ambulance.
The Offender is lucky to be alive. But let me make one thing perfectly plain: he is not to be turned into a victim. In truth he was at all times mindlessly aggressive and dangerously violent to Police who were doing no more than their duty. He goaded and taunted the Officers. He wanted them to back down. To their credit they stood their ground. It is a miracle that this deplorable event ended up without others being injured.
One should also spare a thought for the Officer who was faced with the enormity of a split-second decision to draw his pistol and use it to shoot someone. It cannot have been an easy decision and I am sure he is thankful it turned out the way it did.
Defence Case
Mr Behan, on behalf of the Offender, said that on 18th December, 2007, the Offender had been off his medication but had been self-medicating on alcohol due to an injury to his jaw. He asks me to consider the aspect of “extra-curial punishment” in view of the shooting. The sentencing court is entitled to take into account punishment meted out by others, such as abuse, harassment and threats of injury to person and property. Thus in R v Allpass (1993) 72 A Crim R 561 the court observed that, quite apart from the sentence, “the respondent and his wife have paid a high price for his wrongdoing” and, hence, this as a matter that could be taken into account.
A court may, and should, take into account the fact that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This includes extra-curial punishment by private persons extracting retribution or revenge for the commission of an offence: R v Daetz (2003) 139 A Crim R 398. The weight to be given to any extra-curial punishment will depend on all the circumstances of the case and in some cases extra-judicial punishment attracts little or no weight. While I have considered the aspect of “Extra curial punishment”, nonetheless, I am not prepared to accord it much weight given the circumstances of the offending.
Mr Behan next submits that I should find “special circumstances” given the need for extended supervision upon release to assist the Offender get his life back on track. This would be to address substance and alcohol abuse as well as mental health issues. I agree and will find “special circumstances”.
Mr Behan further submits that I should acknowledge in an appropriate way the pleas of guilty to the events, in particular, of 18th December, 2007. I agree and will take this into account.
Mr Behan next submits that the sentences, in particular, for the events of 18th December, 2007, should be concurrent. I agree there should be some concurrence, however, while I have carefully considered Mr Behan’s helpful submissions, it seems to me there should be some cumulation and I propose to do so.
I have been referred to a Report dated 14th February, 2008, prepared by Ms Jayne Ross, the Mental Health Court Liaison Officer, who continues to be of great assistance to this Court. She notes the Offender has a well-documented history of poly substance misuse – mainly alcohol and cannabis. On examination he showed no evidence of formal thought disorder. He denies any perceptual disturbances but freely admitted to psychotic thoughts when affected by substances and off his medication. He has in the past been diagnosed with paranoid schizophrenia and at times treated with antipsychotic injections. Miss Ross outlined helpful suggestions for both non-custodial and custodial disposition of the charges.
Assaulting Police in the Execution of their Duty.
It is necessary, in my view, for special mention to be made in relation to this type of offence. It is an all-too-common occurrence in the community for Police to be greeted, first, with a sheet of language which would make a sailor blush, secondly, to have that followed by physical violence directed towards them. For those who are so minded, I have the following words for you: If you are convicted of assaulting Police who are doing no more than their duty – you will go to gaol.
There is strong and binding authority for this. For Section 60 - In Parliamentary Hansard in the Second Reading Speech, the then Attorney General Mr. J. Shaw said the following:-
“The bill contains sensible and straightforward provisions to extend the extra protection from attack offered to police under the Crimes Act 1900. The bill is predicated upon a belief that police officers are rightfully owed a measure of protection by the community. That is so for at least two reasons. First, police officers place themselves in positions of risk on behalf of the community. Second, an attack on a law enforcement officer strikes at the core of our system of democratic government. Those who seek to harm the persons responsible for the enforcement of laws passed by our Parliament should be subject to special punishment.”
In A-G's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196; [2002] NSWCCA 515, the Court of Appeal refused, at that time, to issue a sentencing guideline for offences involving the assault of police officers in the execution of their duty imposed under Section 60 (1) of the Crimes Act 1900.
However, the court emphasised this:-:
- “ Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property. The Courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police. … These principles apply irrespective of whether the offender is to be sentenced in the Local or District Court. The jurisdictional maximum of two years imprisonment in the Local Court should not affect the actual level of sentence imposed. Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case. (See R v Doan (2000) 50 NSWLR 115.” See also R v Said El Masri [2005] NSWCCA 167; BC200502544 at [30].
Dunford J., in Regina v Lee William Barber [2004] NSWCCA 153 (Adams and Howie JJ in agreement) stressed the need to protect the authority of the Police. His Honour cited with approval the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515 at para [26] where the Court there said: “The authority of the police, in the performance of their duties, must be supported by the Courts. In cases involving assaults against police, there is a need to give full weight to the objective of general deterrence and accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances are generally appropriate in such cases”.
The Court of Criminal Appeal in Regina v Bell [2003] NSWCCA 305, Sheller JA at par [12] (Sully and Howie JJ., agreeing) concurred with the remarks of the primary judge, Judge J.X. Gibson QC., who said, “…while it can be expected that police officers will, while carrying out their duties, be in situations that mean that they will encounter violence, that is not to say that the law or these Courts regard what happens to police officers as of little moment. They do not.”
In Regina v Mohammed Jouayde [2003] NSWCCA 240, Kirby J., (Meagher JA and Sully J., in agreement) was in no doubt as to the objective seriousness of assaults upon Police – albeit in this case it involved the inflicting of actual bodily harm. He said at [44], “The sentencing principles with respect to this class of offence are not in doubt. Gleeson CJ in R v Hamilton (1993) 66 A Crim R 575, said this: (at 581)
"It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task.”
His Honour also referred to the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (supra). For something not a Guideline Judgment, the Attorney-General’s Application is certainly regarded as one of significant authority. I note these authorities relate to offences under Section 60 Crimes Act, 1900 but the principle remains equally applicable to Section 58.
Objective seriousness.
The offences with which the Offender stands charged are objectively serious indeed. It is worth setting out the penalties to illustrate the point:-
· Contravention of a Domestic Violence Order carries, upon conviction, a statutory maximum penalty of 50 penalty units or imprisonment for two years or both: Section 562ZG (1), Crimes Act, 1900.
· Maliciously Damaging Property carries, upon conviction, a statutory maximum penalty of imprisonment for five years: Section 195 (a), Crimes Act, 1900.
· Intimidating Behaviour carries, upon conviction, a statutory maximum penalty of a fine of 50 penalty units or imprisonment for five years or both: Section 545AB (1), Crimes Act, 1900.
· Using an Offensive Weapon to Prevent Lawful Detention carries, upon conviction, a statutory maximum penalty of imprisonment for twelve years: Section 33B (1)(a), Crimes Act, 1900.
· Affray carries, upon conviction, a statutory maximum penalty of imprisonment for ten years: Section 93C (1), Crimes Act, 1900.
· Assaulting Officers in the Execution of Duty carries, upon conviction, a statutory maximum penalty of imprisonment for five years.
Section 267(2) of the Criminal Procedure Act provides that the maximum penalty that may be imposed by the Local Court for the offences is two years imprisonment. Where an indictable offence is to be dealt with within the jurisdiction of the Local Court, however, the Court is required to assess where the objective seriousness of the offence lies by having regard to the maximum penalty for the offence - not the maximum penalty which may be imposed by a Local Court: R –v- Doan (2000) 50 NSWLR 115.
The correct starting point is a level-headed assessment of the gravity of the objective facts of the offences with which the Court is dealing. The objective seriousness of these offences cannot be doubted. The Court of Criminal Appeal has said that there ought to be a reasonable proportionality between a sentence and the circumstances of the crime: see Regina v Dodd (1991) 57 A Crim R 349 @ 354. See also Regina v Astill (No. 2) (1992) 64 A Crim R 289 @ 303.
Pleas of guilty.
The Offender entered pleas of not guilty to H-31446413, Sequences 2 and 3, on 17th September, 2007, that is, within three days of their occurrence. He pleaded guilty on the same day to Sequence 1. In relation to H-32724978, Sequence 2, he pleaded not guilty. The pleas of not guilty were reversed when he appeared before the Court on 21st January, 2008, to face for the first time the charges relating to events on 18th December, 2007. Pleas of guilty were entered to all charges of 18th December, 2007, on 21st January, 2008 and the reversal of the earlier pleas of not guilty enabled everything to be resolved at the one time.
A plea of guilty is an acknowledgment of each of the intrinsic elements of the offence, including the intention to commit the offence. It is also a circumstance that the Court is obliged to take into account.
The manner in which a plea of guilty is to be approached by Courts is subject to the guideline judgment of R-v- Thomson and Holten (2000) 49 NSWLR 383 wherein the Court said, inter alia
- (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant – contrition, witness vulnerability and utilitarian valuer – but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, eg assistance to authorities, a single combined quantification will often be appropriate.
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
(v) The utilitarian value of the plea does not depend upon the strength of the Crown case.(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.
I have already said I agree with Mr Behan’s submissions in this regard. In my view the appropriate discount to be given for the utilitarian value of the pleas is one of 25%.
I have considered the question of “special circumstances”. The finding of special circumstances is a discretionary finding of fact (see R v El-Hayek (2004) 144 A Crim R 90 at [103]) and, even if special circumstances are found, the court is not obliged to vary the statutory ratio. The non-parole period must reflect the criminality involved in the offence, including its objective gravity and the need for general deterrence: see R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at 718.
Merely because there is present a circumstance which is capable of constituting “special circumstances” does not mean that a sentencing judge is obliged to vary the statutory proportion: R v Fidow [2004] NSWCCA 172. The circumstances must be sufficiently special to justify a variation: R v Nimmo [2005] NSWCCA 295.
In Fidow Spigelman CJ said at [20]–[22]:
- “There is evidence that findings of special circumstances have become so common that it appears likely that there can be nothing ‘special’ about many cases in which the finding is made. Research by the Judicial Commission of New South Wales of the sentences imposed on 2,801 offenders in the Supreme and District Courts during 2002 suggest that Parliament’s intention that the statutory proportion apply unless ‘special circumstances’ exist that justify departure from it, is not being carried out.
The issue of special circumstances often arises in circumstances where there are cumulative terms of imprisonment and sentencing judges should always have regard to the outcome of any such accumulation. Indeed, it is well established that accumulation of sentences can itself constitute special circumstances: R v Simpson (1992) 61 A Crim R 58; R v Close (1992) 31 NSWLR 743; R v Clissold [2002] NSWCCA 356 and R v Ibrahim [2005] NSWCCA 43. However, there does not exist, at common law, a proposition to the effect that accumulation of sentences must automatically give rise to a finding that special circumstances exist: R v Ibrahim (supra). See also R v Leon (unrep, 30/11/94, NSWCCA) per Newman J.
I am prepared to find “special circumstances” because of the undoubted need of the Offender to have extended supervision upon release and because I also propose that there will be some cumulation of penalty. Once again, I agree with Mr Behan’s submissions. Whether the Offender properly avails himself of extended supervision in terms of rehabilitation I am left to wonder, however, I will not deny him the opportunity.
Antecedents
The Offender was born on 17th May, 1976. His antecedent history is contained in a 19 page Bail Report commencing at the age of 14 years in the Children’s Court back in 1990 for offences of dishonesty. Thereafter, there were regular appearances for matters of violence and alcohol. The violence escalated from common assault to actual bodily harm through to robbery.
His attitude towards authority, that is, resisting arrest, commenced during his time in the Children’s Court. The history proceeded into the Local Court. He received periodic detention and Bonds which were revoked, resulting in imprisonment. Several Bonds had conditions that he obey reasonable directions as to drug and alcohol rehabilitation. One entry before the Wagga Wagga District Court on 28th June, 2004, imposed a sentence of imprisonment which directed, upon release to parole, that he comply with directions as to alcohol and drug treatment as well as for his schizophrenic illness. There is no material before me as to how he progressed, if at all, in that regard.
Alcohol, amongst other things, is blamed for his present state of affairs. That may be true to an extent, but many people drink to excess, yet their behaviour does not descend into serious violence and property damage however otherwise obnoxious their conduct might be. History shows that this Offender’s capacity for violence is just below the surface and alcohol merely removes what little vestige of self-control he might possess.
So the problem remains: what is to be done with a recidivist offender who demonstrates little insight into his obvious problems and whose prognosis offers little hope to the Court when looking at rehabilitation. He is a person who pays no attention to Court orders – be they bail conditions, apprehended domestic violence orders or conditions attached to Bonds. And it must be remembered the offences were committed on the conditional liberty afforded by Bonds under Section 9 Crimes (Sentencing Procedure) Act, 1999.
These charges are but a continuation of his prior pattern of conduct. This is a clear case in which the applicant’s record shows that these offences were “a manifestation of continuing disobedience of the law” and that “retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted”: Veen v The Queen (No 2) (1988) 164 CLR 465.
Given the factual background of this Offender and applying the principles of binding authority, it is clear to me that only full-time custodial penalties are appropriate. I doubt such penalties will do the Offender much good – experience has shown that. I note Section 21A (2) of the Crimes (Sentencing Procedure) Act, 1999, provides for aggravating factors in (d) previous convictions and, I interpolate, for the same types of offences, and (j) the offences were committed on the conditional liberty afforded by a Bond – again, for the same type of offences.
Cumulation of Penalty
The issue arises as to whether the sentences imposed in respect of the offences with which I am now dealing should be served cumulatively. Cumulation of sentence will be appropriate when wholly concurrent sentences would not take into account the differences in conduct in the various offences with which the Court is dealing, or, put another way, where there are completely different episodes of criminality.
Ipp JA (Hulme & Bell JJ agreeing) said in R –v- Carberry & Weldon (2002) 136 A Crim R 55; [2002] NSWCCA 475 said at paragraphs [46] – [48]:
“A paramount principle of law relating to sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct: Veen –v- The Queen (No. 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence having regard to all the circumstances of the case: Hoare –v- The Queen (1989) 167 CLR 348.
It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed – but this is not an inflexible rule: see Wilkins (1988) 38 A Crim R 445 (per Lee CJ at CL and Carruthers J; Allen J dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject punishment on each count: Pearce –v- The Queen 194 CLR 610 at 624.”The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.
See also Howie J., in Vaovasa v R [2007] NSWCCA 253 at [15].
[15] “It has been made clear that, simply because a number of offences arise out of the same incident or course of criminal conduct, it does not follow that concurrent sentences will be appropriate to meet the total criminality involved.”
His Honour referred to the decision in Cahyadi v R (2007) 168 A Crim R 41, and continued at [16], “This is not a new principle. Similar observations have been frequently made in this Court since Pearce was taken to require that each individual sentence imposed reflect only the criminality of the conduct to which it related and that the totality principle be addressed by an order making the individual sentences concurrent or at least partly cumulative.” In accordance with those principles of binding authority I propose there will be some cumulation.
I have considered Section 3A of the Crimes (Sentencing Procedure) Act, 1999 – see Regina v MA (2004) 145 A Crim R 434; Regina v King (2004) 150 A Crim R 409 per McColl JA. I have also considered Section 5 of the Act and I am satisfied, having considered all possible alternatives, of which there are none, that no penalties other than imprisonment are appropriate.
I take into account the period of continuous pre-sentence custody by back-dating the sentence – see Regina v Newman & Simpson (2004) 145 A Crim R 361 per Howie J. Regina v Close (1992) 31 NSWLR 743 @ 748; Regina v Cook [1999] NSWCCA 234 @ [39].
I propose to impose sentences in the following way:-
H-31446413.
Sequences 1, 2 and 3.
The Offender is convicted. On each charge he is sentenced to a fixed term of imprisonment of 3 months to date from 18th December, 2007 until 17th March, 2008. The sentences are for fixed terms because they are subsumed in other sentences to be imposed.
H-32724978
Sequence 2
The Offender is convicted. He is sentenced to a fixed term of imprisonment of 3 months to date from 18th December, 2007, until 17th March, 2008. This is for a fixed term because it is subsumed in other sentences to be imposed.
H-32167132
Sequences 1, 2, 3 and 4.
The Offender is convicted. He is sentenced to fixed terms of imprisonment of 6 months to date from 18th December, 2007 until 17th June, 2008. The sentences are for fixed terms because they are subsumed in other sentences to be imposed.
H-32701951
Sequences 1, 2, 3, 4, 5, 6, 7 and 8.
The Offender is convicted. He is sentenced to a non-parole period of 12 months to date from 18th June, 2008 expiring on 17th June, 2009 and a balance of term of 12 months commencing on 18th June, 2009 and expiring on 17th June, 2010, being a total sentence of two years.
The result is that the Offender is to serve a period of imprisonment of 18 months and, if eligible, be released to parole for a further 12 months.
It occurs to me that Sequences 9 and 10, being charges of Having Custody of a Knife in a Public Place and Wielding a Knife in a Public Place – contrary to Sections 11C(1)(a) and 11E(1)(a) of the Summary Offences Act, 1988, respectively, are back-up charges to Sequence 1. In the circumstances I will mark those as being withdrawn and dismissed.
Pursuant to Section 50 Crimes (Sentencing Procedure) Act, 1999, I direct the release of the Offender to parole at the end of the non-parole period. I further direct as a condition of parole that he be subject to supervision by the Probation and Parole Service for such period as that Service deems necessary and obey all reasonable directions as to treatment, education, employment, drug and alcohol rehabilitation, anger management and any other area of identified criminogenic behaviour: see Section 51. Any failure to comply with this direction may be regarded as a breach of parole.
The Offender was not assessed for Periodic Detention or Community Service.
I remain of the view that no penalty other than a sentence of imprisonment is warranted having regard to the Offender’s prior antecedents requiring greater emphasis upon retribution, deterrence and protection of society; the Offender’s prior history shows an attitude of continuing disobedience to the law – see Veen (No. 2) (1988) 154 CLR 465 @ 477; the need to reflect personal and general deterrence; the offence was committed on conditional liberty - see R v Ponfield (1999) 48 NSWLR 327 at [48]applied in Young v R [2007] NSWCCA 114. R –v- Wallace [2007] NSWCCA 63. See also R v Readman (1990) 47 A Crim R 181; R v Richards (1981) 2 NSWLR 464 at 465 per Street CJ; R v Tran [1999] NSWCCA 109 at [15].; notwithstanding the subjective features applicable and giving them due weight, they must not be allowed to overwhelm the sentencing process at the expense of the objective seriousness – see R v Camilleri (Unrep) NSWCCA 8/2/1990; Regina v Nguyen [2007] NSWCCA 94 at [23] per Hulme J.
Breaches of Bonds (x 3).
Given the sentences I have imposed, there seems little point in seeking to maintain the three Section 9 Bonds given at this Court on 16th April, 2007 and referable to H-122405894 and H-30270119. He has breached these Bonds, not only by the commission of further offences, but by offences of the same nature as well as failure to comply with Probation and Parole Service directions. I doubt he will receive such leniency again.
The breach report of Ms Kay Armstrong of Wagga Wagga Probation and Parole Service, dated 24th January, 2008, says the Offender’s response to supervision has been superficial and the results have been ineffective. He has been given numerous opportunities to address his alcohol abuse and domestic violence issues, however, despite giving assurances that he would comply with directions in this area he has failed to take up these opportunities. It is considered Mr Mitchell lacks the motivation to make the necessary changes to allow him to lead a law-abiding lifestyle.
Order.
In respect of the Bonds given at Wagga Wagga Local Court on 16th April, 2007, and referable to H – 122405894 (x 2) and H – 30270119 (x 1), I am satisfied that the Offender has failed to comply with conditions of the Bonds due to the commission of further offence during the currency of the Bond and a failure to comply with directions of the Probation Service.
Pursuant to Section 98 (2 (c) Crimes (Sentencing Procedure) Act, 1999 I revoke the Bonds and as provided by Section 99 (1) (a) I re-sentence the Offender. I have considered Section 3A of the Act: see Regina v MA (2004) 145 A Crim R 434; Regina v King (2004) 150 A Crim R 409 per McColl JA. I have also considered Section 5 of the Act and I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The Offender is convicted.
The Offender is sentenced to fixed terms of imprisonment of 6 months to commence on 14th February, 2008 and expire on 13th August, 2008. The sentences are for fixed terms because they are subsumed in sentences already imposed.
Application to Vary Interim Orders on ADVO.
On 4th December, 2007, Interim Orders were made at this Court in File 3076/06/190. They comprised the Mandatory Orders 1 (a), (b), (c) plus additional orders – one of which was that the Offender not reside at premises 24 McKell Avenue. An application was made to alter the interim orders by deleting the non-residence provision. I did so on 11th December, 2007.
As it turned out, my action to try and restore matrimonial harmony at 24 McKell Avenue was unsuccessful. On 18th December, 2007, in the aftermath of further domestic unrest, the Offender was shot.
Once again, given the sentences of imprisonment imposed upon the Offender to-day, the application to vary is dismissed and the original interim orders will now be made final orders for 2 years, to date from to-day, 14th February, 2008.
Peter S. Dare SC
Magistrate,
Local Court,
Wagga Wagga
14th February, 2007.
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