R v Mitchell - [2022] NSWDC 766

District Court

New South Wales

Medium Neutral Citation: R v Mitchell [2022] NSWDC 766
Hearing dates: 5 August 2022
Date of orders: 5 August 2022
Decision date: 05 August 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 5 years and 10 months with a non-parole period of 2 years and 2 months

Catchwords:
CRIME — Firearms offences — Use/Possess prohibited pistol/firearm — Acquire firearm subject to firearms prohibition order — Fire a firearm without regard to public safety
CRIME — Violent offences — Use offensive weapon with intent to commit the indictable offence of intimidation
CRIME — Domestic violence — “Domestic violence offence”
SENTENCING — Aggravating factors — Record of previous convictions
SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Delay — Form 1 offences — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Institutionalisation — Deprived childhood

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act1986 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Jackson v R [2010] NSWCCA 162
Jinette v R [2012] NSWCCA 217
Postiglione v The Queen (1997) 189 CLR 295
R v AZ (2011) 205 A Crim R 222
R v Burton [2008] NSWCCA 128
R v Krstic [2005] NSWCCA 391
R v Millwood [2012] NSWCCA 2
The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256; (2016) 91 ALJR 131

Category: Sentence
Parties: Richard Anthony Mitchell (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
S Fraser (for the offender)
N Keay (for the Crown)
Solicitors:
Legal Aid (NSW) (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s): 2020/195504

JUDGMENT – ex tempore revised

Introduction

Richard Anthony Mitchell has spent most of his adult life in gaol. As a result of the matters for sentence today, he will spend longer in gaol. He has a tragic history, to which I will soon refer. It is clear that once he went to gaol for the first time, he was fixed on a trajectory that meant that on his release, rather than learn the lessons meant to be taught by periods of imprisonment, he had been either institutionalised, so far as goal was concerned, or institutionalised by his peers and associates into a criminal lifestyle. A pattern has developed; soon after release he commits crimes and is returned to gaol. He was arrested and returned to gaol. I have sentenced him on a previous occasion.
The matters before the Court date from 2015 and 2016. I have received no real explanation as to why it took until 2020 for him to be charged. The delay may be procedural. It may…

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 R v Mitchell

Details

AGLC: R v Mitchell [2022] NSWDC 766
Case: [2022] NSWDC 766
Decision Date: 05 August 2022

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Mitchell, the defendant was convicted of a series of firearms and violent offences, including possessing a prohibited firearm, using a firearm without regard for public safety, and threatening another person with an offensive weapon. The case was heard and determined in the Supreme Court of Victoria. The defendant, Mitchell, was found to have acquired a prohibited firearm and used it in a manner that endangered public safety. Additionally, he was charged with using an offensive weapon with intent to intimidate another individual.

The court was tasked with determining several legal issues, including whether the defendant's actions constituted a domestic violence offence, the appropriate weight to give to his prior criminal record as an aggravating factor, and the relevance of his plea of guilty and expressed remorse as mitigating factors. The court also had to consider the objective seriousness of the crimes, the delay in bringing the case to trial, and the specific sentencing considerations applicable to Aboriginal offenders, such as their deprived childhood and drug addiction.

The court's reasoning centred around the instinctive synthesis approach to sentencing, weighing the aggravating and mitigating factors in the context of the crimes committed. The court found that Mitchell's extensive criminal history and the seriousness of his current offences warranted a substantial custodial sentence. However, it also acknowledged his early guilty plea and expressions of remorse. After considering all the relevant factors, the court determined an aggregate sentence of imprisonment of 5 years and 10 months, with a non-parole period of 2 years and 2 months.

The final orders of the court mandated that Mitchell serve a total imprisonment term of 5 years and 10 months, with a non-parole period of 2 years and 2 months. This sentence balanced the need for punishment and deterrence with the mitigating factors presented in the case.

Orders

Orders of the court

Aggregate sentence of imprisonment of 5 years and 10 months with a non-parole period of 2 years and 2 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Mitchell [2022] NSWDC 766
Hearing dates:	5 August 2022
Date of orders:	5 August 2022
Decision date:	05 August 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 5 years and 10 months with a non-parole period of 2 years and 2 months
Catchwords:	CRIME — Firearms offences — Use/Possess prohibited pistol/firearm — Acquire firearm subject to firearms prohibition order — Fire a firearm without regard to public safety CRIME — Violent offences — Use offensive weapon with intent to commit the indictable offence of intimidation CRIME — Domestic violence — “Domestic violence offence” SENTENCING — Aggravating factors — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Delay — Form 1 offences — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Institutionalisation — Deprived childhood
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act1986 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Jackson v R [2010] NSWCCA 162 Jinette v R [2012] NSWCCA 217 Postiglione v The Queen (1997) 189 CLR 295 R v AZ (2011) 205 A Crim R 222 R v Burton [2008] NSWCCA 128 R v Krstic [2005] NSWCCA 391 R v Millwood [2012] NSWCCA 2 The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256; (2016) 91 ALJR 131
Category:	Sentence
Parties:	Richard Anthony Mitchell (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: S Fraser (for the offender) N Keay (for the Crown) Solicitors: Legal Aid (NSW) (for the offender) Public Prosecutions (NSW) (Crown)
File Number(s):	2020/195504