R v Mitchell

[2000] NSWCCA 437

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:         Regina v Mitchell [2000]  NSWCCA 437

FILE NUMBER(S):
60638/98

HEARING DATE(S):          14 February 2000

JUDGMENT DATE:           14/02/2000

PARTIES:
Regina v Michael John Mitchell

JUDGMENT OF: Sully J Carruthers AJ    

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):               98/21/0311

LOWER COURT JUDICIAL OFFICER:          Luland DCJ

COUNSEL:
In person (Appellant)
L M B Lamprati (Crown/Respondent)

SOLICITORS:
In person (Appellant)
S E O'Connor (Crown/Respondent)

CATCHWORDS:
Criminal law - sentence appeal - ad miscericordiam application based on subjective circumstances - no error demonstrated in sentencing process

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Application for leave to appeal granted - appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA60638/98

SULLY J
CARRUTHERS AJ

Monday, 14 February 2000

REGINA v Michael John MITCHELL
JUDGMENT

1. CARRUTHERS AJ: Michael John Mitchell seeks leave to appeal from sentences imposed upon him by his Honour Judge Luland, Queen's Counsel, at Parramatta District Court on 21 October 1998. On that occasion the applicant adhered to earlier pleas of guilty on one count of possessing housebreaking implements under s114(1)(B) of the Crimes Act, 1900.  That offence attracts a maximum penalty of seven years penal servitude.  The second matter was one count of break and enter with intent to commit a felony under s112(1) of the Act.  That offence carries a maximum penalty of 14 years penal servitude. 

2. His Honour was also asked to take into account a number of matters under two Form 2’s, which were likewise matters of dishonesty including a number of matters of larceny.  The offences under the first and second counts were committed on 7 January 1998.  The matters on both Form 2’s related to the period 7 January 1998 to 22 April 1998.  In relation to the first count, his Honour imposed a fixed term of one year penal servitude to commence on 17 October 1998 and to expire on 16 October 1999.  In relation to the second matter, his Honour imposed a minimum term of three years penal servitude to commence on 17 October 1998, and to expire on 16 October 2001.  His Honour imposed an additional term of one year penal servitude to commence on 16 October 2002. 

3. The applicant was born on 15 February 1963, so that at the time he stood for sentence he was 35 years of age.  Unhappily he has a long criminal record which appears to have commenced in May 1985.  On that occasion he was dealt with in relation to dishonesty offences and using a prohibited drug, heroin.  Since that date there is a litany of offences ranging up until the present matter.  Some 20 appearances in court over the period of 13 years between 1985 and 1998 are recorded.  There is absolutely no doubt that the applicant’s criminal activity is related to his addiction to narcotic substances, and, despite attempts over the years to come to terms with those addictions, he has been unable to do so, and when he has resumed the ingestion of narcotic substances, he has again entered a course of criminal conduct which has inevitably brought him back before the courts.  Remarkably he has a very supportive wife who is a university qualified nurse and at those times when the applicant is not serving sentences, he provides her with transport and assists in caring, to a considerable extent, for the young children of the marriage.

4. Basically this is an ad misericordiam plea.  In other words the applicant has thrown himself on the mercy of the Court and sought the Court, he being unrepresented, to review the sentences imposed by Judge Luland.  However there is one specific matter to which attention should be drawn, in written submissions to the court the applicant said:

   “I would like to ask this court to look at a previous psychiatric report which I was told was going to be presented to the court.  I realise that it is from a previous conviction but it is still valid.  In it you will see that I have had long periods of abstinence through the help of the methadone program and a supportive family.  During this time I have worked and helped raise my family”.

5. That was a reference to a report of Dr Alex Sharah, dated 18 January 1996.  Dr Sharah has apparently been treating the applicant for some time, at times with a successful methadone course, and at other times obviously without success.  In the report, which was not before Judge Luland, reference is made to the fact that in 1995 the applicant was involved in a very serious motor vehicle accident which, in addition to orthopaedic injuries, caused brain damage to the applicant.  The degree of that brain damage is not outlined in the report which of course is now over three years out of date.  Nevertheless, it is clear enough that some brain damage was sustained in 1995.  However, as I have already said, the applicant’s drug induced criminal record was well established by 1995.  The report concludes:

   “He is seeing me, discussing the issues of his life and coping with the stress of his depression and the accident as well as the unchanged relationship with his wife.  He will continue to do this as necessary over the next year or two.  If necessary also he will again recommence methadone rather than fall back into using the various medications and heroin.  I have every confidence in his good sense and good will in treatment”.

6. In the submissions to this Court the applicant has also pointed out that during his most recent sentences he has undertaken drug and alcohol counselling and been to narcotics anonymous meetings.  He said that he is now on a stable dose of methadone.  He has also started a building studies course by correspondence with TAFE.  He thought that he would have been an ideal candidate for the Drug Court at Parramatta.  Perhaps this is so.  He confirms that he still has the support of his wife and children and seeks an opportunity to return that support and, once more, become a part of their lives.  Apart from the devotion of his wife and family, the history of this applicant is one that one sees with monotonous regularity in this Court.  However as the presiding judge has pointed out to the applicant, apart from questions of sympathy and concern about the welfare of his family, the burden rests upon him of establishing that there was some error in the sentences imposed by Judge Luland, or in the reasons which he advanced for the imposition of those sentences.

7. Indeed when one looks at the applicant’s history of criminal offences, together with the seriousness of the two matters in respect of which he was charged and indicted, together with the serious matters on the Form 2’s, the irresistible conclusion is that Judge Luland, consistent as he had to be to the relevant principles of law, imposed sentences which were at the lower end of the discretionary sentencing range available to him.  I am far from convinced that had those representing the applicant before Judge Luland elected to tender Dr Sharah’s report, that the sentences imposed by the judge could have been any more lenient.  One suspects from reading the whole of the report, that there were forensic reasons why the election was obviously made not to tender that report.

8. One can only hope that during this period of incarceration the applicant can come to terms with his drug addiction, and upon his discharge lead a normal life supported by his wife and family.  However on the basis of the material before this court, there is no foundation whatsoever for this Court to interfere with the sentences imposed by Judge Luland.  It would be quite wrong to do so, and inconsistent with the well established sentencing principles.

9. Accordingly in the circumstances I would propose that leave to appeal be granted but that the appeal be dismissed.

10. SULLY J:  I agree.  I think on this occasion we cannot do anything for you Mr Mitchell.

LAST UPDATED:              23/10/2000