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R v Mitchell

R v Mitchell

Case [2006] QCA 240 23 June 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Mitchell [2006] QCA 240

PARTIES:

R
v
MITCHELL, Robert Miles

(applicant)

FILE NO/S:

CA No 42 of 2006

SC No 880 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2006

JUDGES:

Jerrard JA, White and Philippides JJ

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where applicant pleaded guilty to one count of unlawfully doing grievous bodily harm with intent – where applicant was sentenced to seven years imprisonment with a serious violent offence declaration – where the applicant was intoxicated and attacked the complainant with an iron bar and detained her in a room – where the applicant pursued the complainant after she had escaped – where the complainant had offered no provocation – where the applicant had a lengthy criminal history comprising many offences of violence including manslaughter – whether sentencing judge placed undue weight on the applicant’s criminal history – whether the sentence was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 161B(3)

R v Beer [2000] QCA 193; CA No 404 of 1999, 26 May 2000, considered
R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206; CA No 4 of 1999, 8 June 1999, applied
R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; CA No 42 of 2005, 24 June 2005, applied
R v Eveleigh [2003] 1 Qd R 398; [2002] QCA 219; CA No 356 of 2001, 21 June 2002, applied
R v Hudson; ex parte A-G (Qld) [2002] QCA 239; CA No 124 of 2002, 3 July 2002, cited
R v Lyon [2006] QCA 146; CA No 14 of 2006, 5 May 2006, considered
R v McGrady & Anor [2001] QCA 302; CA No 44 and CA No 45 of 2001, 27 July 2001, cited
R v Nielsen [2006] QCA 2; CA No 301 of 2005, 31 January 2006, considered
R v Perussich [2001] QCA 557; CA No 169 of 2001, 7 December 2001, considered

COUNSEL:

The applicant appeared on his own behalf

D L Meredith for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: I have read the reasons for judgment of Philippides J and agree with Her Honour that the application for leave to appeal against sentence should be dismissed.

WHITE J: I have read the reasons for judgment of Philippides J and agree with her Honour for the reasons…

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 [2006] QCA 240
Case: [2006] QCA 240
Decision Date: 23 June 2006

CaseChat Overview and Summary

The applicant, Mitchell, appealed against his sentence after being found guilty of unlawfully doing grievous bodily harm with intent. The offence occurred when Mitchell, while intoxicated, attacked the complainant with an iron bar, detained her in a room, and pursued her after she escaped. The complainant offered no provocation, and Mitchell had a history of violent offences, including manslaughter. The sentencing judge imposed a seven-year imprisonment term with a declaration of a serious violent offence. Mitchell argued that the sentencing judge placed undue weight on his criminal history and that the sentence was manifestly excessive.

The primary legal issues before the court were whether the sentencing judge had placed undue emphasis on Mitchell's criminal history and if the sentence was manifestly excessive. The court examined the severity of the offence, the need for deterrence and retribution, and the principles of sentencing for grievous bodily harm with intent. Additionally, the court considered whether the sentence was disproportionate to the crime committed, taking into account the offender's criminal history and the circumstances of the offence.

The court found that the sentencing judge had appropriately considered all relevant factors, including Mitchell's extensive criminal history, the gravity of the offence, and the need for deterrence. The court held that the sentence was not manifestly excessive and that the sentencing judge had balanced the various considerations appropriately. The court also noted that the offence involved a high degree of violence and that the sentence reflected the need to protect the community from further harm by Mitchell. Consequently, the court dismissed the application for leave to appeal against the sentence.

Orders

Orders of the court

The application for leave to appeal against sentence is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Mitchell [2006] QCA 240

Most Recent Citation

R v McDougall and Collas [2006] QCA 365

Cases Citing This Decision

R v Brown [2020] QCA 69
Citation 1 (Para 14)

…round, and had cooperated with the administration of justice by pleading guilty. [6][2018] QCA 175. [7][2016] QCA 110. [8][2015] QCA 97. [9][2006] QCA 240.…
R v Tom [2018] QCA 218
Citation 2 (Para 11)

…In addition to the cases to which reference was made below, counsel drew the Court’s attention to R v Holland [2008] QCA 200, R v Mitchell [2006] QCA 240 and R v Lowe [2001] QCA 270. Ultimately little is to be gained by a close examination of those and other cases, because these observations by Williams JA in R v…
R v Ellis [2018] QCA 70
Citation 3 (Para 13)

…unsel contended for the imposition of a sentence at the lower end of the range put forward by the prosecutor and that a declaration not be made. [1][2006] QCA 240. [2][2017] QCA 55. [3][2006] QCA 460. [4][2000] QCA 110.…
R v Compton [2017] QCA 55
Citation 4 (Para 2)

…ive. This is not the proper approach and the amendment to section 15 of the Penalties and Sentences Act 1992 does not affect the proper approach. [18][2006] QCA 240. [19][2001] QCA 270. [20] R v Oakes [2012] QCA 336 and R v Amery [2011] QCA 383 .…
R v Latemore [2016] QCA 110
Citation 5 (Para 30)

…story” called for a “significant penalty” so that the sentence, although a heavy one, was not outside the sentencing discretion.[12] [8][2006] QCA 240. [9][2008] QCA 261. [10][2010] QCA 212. [11][2011] QCA 383. [12][2006] QCA 240, [24].…
R v Piper [2015] QCA 129
Citation 6 (Para 37)

…2] In the first two of those cases, the assault had also occurred against a background of some provocation. [10][2008] QCA 200. [11][2004] QCA 1. [12][2006] QCA 240.…
R v Boxall [2013] QCA 375
Citation 7 (Para 1)

…efit of early parole eligibility. Wease has already been outlined. [2][2007] QCA 153. [3][2009] QCA 271. [4][2000] QCA 193. [5][2001] QCA 141. [6][2006] QCA 240.…
R v Gadd [2013] QCA 242
Citation 8

…rchard [2005] QCA 141, R v Cowie [2005] 2 Qd R 533, R v BAW [2005] QCA 334, R v BAX [2005] QCA 365, R v Lewis [2006] QCA 121 and R v Mitchell [2006] QCA 240.…
R v Schipp [2013] QCA 197
Citation 9 (Para 1)

…e significant similarities between this applicant’s offending and that of the defendant in Brown . [16] R v Brown [1996] QCA 251. [17] R v Mitchell [2006] QCA 240.…
R v Oakes [2012] QCA 336
Citation 10 (Para 1)

…rms of imprisonment imposed ranged from seven to nine years. In each of those cases the sentence was imposed upon a plea of guilty. [17] R v Mitchell [2006] QCA 240; R v Nguyen [2006] QCA 542; R v Murray [2010] QCA 266 and R v BCF [2012] QCA 87.…
R v Edwards [2012] QCA 117
Citation 11 (Para 1)

…of remorse and it was fortunate that the complainant was not even more seriously injured. Fryberg J agreed with those observations. [8][2006] QCA 240. [9][2008] QCA 200 at [63]. [10]At [64].…
R v BCF [2012] QCA 87
Citation 12 (Para 1)

…onth suspended sentence was at the high end of the appropriate sentencing range bearing in mind the injuries suffered by the victim. [10]At [63]. [11][2006] QCA 240. [12][2001] QCA 270.…
R v Hart [2012] QCA 38
Citation 13 (Para 1)

…In his first outline, the applicant referred to two cases, R v Scheers [2010] QCA 318 and R v Mitchell [2006] QCA 240.…
R v Amery [2011] QCA 383
Citation 14 (Para 1)

…At the sentence hearing the prosecutor relied on one comparable authority of R v Mitchell [2006] QCA 240 and submitted that a sentence of imprisonment of seven to eight years with a declaration that the applicant had been convicted of a serious violent offence was appropriate. The prosecutor pointed out that, as…
R v Scheers [2010] QCA 318
Citation 15

…36, considered R v King & Morgan; ex parte Attorney-General of Queensland [2002] QCA 376, considered R v Mitchell [2006] QCA 240, considered R v Perussich [2001] QCA 557, considered R v Wilkie [1997] QCA 337, considered R v Worland [2002] QCA 123, considered COUNSEL: J M McInnes for the applicant M B Lehane for t…
R v Richardson [2010] QCA 216
Citation 16 (Para 1)

…2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v BAX [2005] QCA 365; R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121; R v Mitchell [2006] QCA 240; R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365; R v Riseley; ex parte A-G (Qld) [2009] QCA 285. [17] R v McDougall and Collas [2007] 2 Qd R 8…
R v Honeysett; ex parte [2010] QCA 212
Citation 17 (Para 1)

…Mr Lynch relied on a number of cases, Perussich [2001] QCA 557, Mitchell [2006] QCA 240, Beer [2000] QCA 193, Laing [2008] QCA 317, Holland [2008] QCA 200, and Granato [2006] QCA 25, for a contention that “a sentence in the range of 5-7 years is appropriate with an accompanying early recommendation for parole”. I…
R v Woodman [2010] QCA 162
Citation 18

…[11][2006] QCA 240.…
R v Woodman [2009] QCA 197
Citation 19

…alties and Sentences Act 1992 (Qld), s 9(4) R v Holland [2008] QCA 200, discussed R v Lyon [2006] QCA 146, discussed R v Mitchell [2006] QCA 240, discussed R v Wentworth [1996] QCA 534, discussed R v Williams [2002] QCA 142, discussed Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, cited COUNSEL: J Hen…
R v. Saebar [2008] QCA 407
Citation 20

…shed R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Mitchell [2006] QCA 240, considered R v Nielsen [2006] QCA 2, considered R v Orchard [2005] QCA 141, distinguished R v Treptow; ex parte Attorney- General (Qld) [1995] QCA 582, considered COUNSEL: R A East for the appellant G P Cash for…
R v Holland [2008] QCA 200
Citation 21 (Para 1)

…as a weapon for the purposes of establishing that this range of sentences was applicable to the appellant's offending in this case. [12] R v Mitchell [2006] QCA 240; R v Lowe [2001] QCA 270.…
R v. Smith [2008] QCA 133
Citation 22

…Counsel for the respondent relied on the decisions of this Court in R v King and Morgan; ex parte A-G [2002] QCA 376; and the R v Mitchell [2006] QCA 240.…
R v Janz [2008] QCA 55
Citation 23 (Para 1)

…here, that if the discretion whether to make a declaration or not had to be exercised, it should not be exercised against the applicant. R v Mitchell [2006] QCA 240 was referred to in support of this submission.…
R v McDougall and Collas [2006] QCA 365
Citation 24 (Para 1)

…] , R v Cowie [2005] 2 Qd R 533 [13] , R v BAW [2005] QCA 334 [14] , R v BAX [2005] QCA 365 [15] , R v Lewis [2006] QCA 121 [16] and R v Mitchell [2006] QCA 240 [17] . [6][1998] QCA 280; CA No 238 of 1998, 18 September 1998. [7][1999] QCA 206; CA No 4 of 1999, 8 June 1999. [8](2002) 127 A Crim R 229; [2002] QCA 0…

See all citing cases →

Cases Cited

R v Lyon [2006] QCA 146
Citation 1 (Para 1)

…In addition, the applicant referred to R v Lyon [2006] QCA 146, where a sentence of nine years imprisonment with a declaration imposed after trial on a count of unlawful wounding with intent to do grievous bodily harm was challenged as manifestly excessive (a concurrent term of five years for burglary with a circ…
R v Nielsen [2006] QCA 2
Citation 2 (Para 1)

…bodily harm with intent (which carries a maximum sentence of life imprisonment). As such they offer no assistance. As to the decision of R v Nielsen [2006] QCA 2, to which the applicant also referred, that case involved three counts of doing a malicious act with intent to do grievous bodily harm for which conc…
R v Cowie [2005] QCA 223
Citation 3 (Para 1)

…he discretion contained in s 161B(3), a sentencing judge is required to determine a sentence which is “just in all the circumstances” ( R v Cowie [2005] QCA 223 at [19]). However, where the making of a declaration is discretionary, it is not necessary in order that the discretion be exercised that the circumstanc…
R v Hudson; ex parte [2002] QCA 239
Citation 4 (Para 1)

…entence after three years. Reliance was placed on R v Beer [2000] QCA 193, R v McGrady & Anor [2001] QCA 302 and R v Hudson; ex parte A-G (Qld) [2002] QCA 239.…
R v Eveleigh [2002] QCA 219
Citation 5 (Para 1)

…nd is thus simply an additional sentencing tool that is available as part of the overall sentencing process: see also R v Eveleigh [2003] 1 Qd R 398; [2002] QCA 219. In considering whether to exercise the discretion contained in s 161B(3), a sentencing judge is required to determine a sentence which is “just in a…
R v Perussich [2001] QCA 557
Citation 6 (Para 1)

…Before the learned sentencing judge the prosecution submitted, primarily relying on R v Perussich [2001] QCA 557, that the applicable sentencing range was one of six to eight years imprisonment and ultimately urged the imposition of a sentence of seven years imprisonment combined with a serious violent offence de…
R v McGrady [2001] QCA 302
Citation 7 (Para 1)

…within the sentencing discretion to suspend the sentence after three years. Reliance was placed on R v Beer [2000] QCA 193, R v McGrady & Anor [2001] QCA 302 and R v Hudson; ex parte A-G (Qld) [2002] QCA 239.…
R v Beer [2000] QCA 193
Citation 8 (Para 1)

…e time served, and that it was also within the sentencing discretion to suspend the sentence after three years. Reliance was placed on R v Beer [2000] QCA 193, R v McGrady & Anor [2001] QCA 302 and R v Hudson; ex parte A-G (Qld) [2002] QCA 239.…
R v Bojovic [1999] QCA 206
Citation 9 (Para 1)

…was set aside on appeal and reduced to one of seven years imprisonment without a declaration. Applying the approach in R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, the majority found that the declaration was not warranted, the incident being seen as “an unjustified attack by an elderly man following his disturb…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 161B(3)
2 mentions (from Para 1)
Bail Act 1980 (Qld)
1 mention (from Para 1)

CITATION:	R v Mitchell [2006] QCA 240
PARTIES:	R v MITCHELL, Robert Miles (applicant)
FILE NO/S:	CA No 42 of 2006 SC No 880 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2006
JUDGES:	Jerrard JA, White and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where applicant pleaded guilty to one count of unlawfully doing grievous bodily harm with intent – where applicant was sentenced to seven years imprisonment with a serious violent offence declaration – where the applicant was intoxicated and attacked the complainant with an iron bar and detained her in a room – where the applicant pursued the complainant after she had escaped – where the complainant had offered no provocation – where the applicant had a lengthy criminal history comprising many offences of violence including manslaughter – whether sentencing judge placed undue weight on the applicant’s criminal history – whether the sentence was manifestly excessive in all the circumstances Penalties and Sentences Act 1992 (Qld), s 161B(3) R v Beer [2000] QCA 193; CA No 404 of 1999, 26 May 2000, considered R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206; CA No 4 of 1999, 8 June 1999, applied R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; CA No 42 of 2005, 24 June 2005, applied R v Eveleigh [2003] 1 Qd R 398; [2002] QCA 219; CA No 356 of 2001, 21 June 2002, applied R v Hudson; ex parte A-G (Qld) [2002] QCA 239; CA No 124 of 2002, 3 July 2002, cited R v Lyon [2006] QCA 146; CA No 14 of 2006, 5 May 2006, considered R v McGrady & Anor [2001] QCA 302; CA No 44 and CA No 45 of 2001, 27 July 2001, cited R v Nielsen [2006] QCA 2; CA No 301 of 2005, 31 January 2006, considered R v Perussich [2001] QCA 557; CA No 169 of 2001, 7 December 2001, considered
COUNSEL:	The applicant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent