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
Postiglione v The Queen (1997) 189 CLR 295
R v AZ (2011) 205 A Crim R 222
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:
Solicitors:
S Fraser (for the offender)
N Keay (for the Crown)
Legal Aid (NSW) (for the offender)
Public Prosecutions (NSW) (Crown)
File Number(s): 2020/195504
JUDGMENT – ex tempore revised
Introduction
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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.
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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…
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- AGLC
- R v Mitchell [2022] NSWDC 766
- Case
- [2022] NSWDC 766
- Decision Date
CaseChat Overview and Summary
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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