R v Mitchell - [2005] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mitchell [2005] QCA 178

PARTIES:

R
v
Mitchell, Melissa Marie
(applicant/appellant)

FILE NO/S:

CA No 77 of 2005
DC No 593 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

31 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2005

JUDGES:

de Jersey CJ, Atkinson and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.        Application for leave to appeal against sentence            granted
2.        Appeal allowed
3.        Vary the sentence on counts 5 and 6 by sentencing            the applicant on each count to 1 years            imprisonment followed by a probation order of            two years duration
4.        Vary the sentence on counts 3 and 4 by sentencing            the applicant on each count to 9 months            imprisonment
5.        All sentences to be served concurrently

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant convicted on own pleas of guilty on two counts of robbery with personal violence, two counts of stealing, wilful destruction and motor vehicle offences – applicant sentenced concurrently to four years imprisonment for the robbery offences and 18 months imprisonment for the motor vehicle offences – recommendation that she be eligible for post prison community based release after serving 18 months – whether sentence manifestly excessive – structuring a sentence of imprisonment followed by probation for applicant in need of supervision

Penalties and Sentences Act 1992 (Qld), s 9, s 92

R v Nagy [2003] QCA 175; [2004] 1 Qd R 63, considered
R v Kazakoff; ex parte Attorney-General (Queensland) [1998] QCA 459, CA No 236 of 1998, 27 August 1998, considered
R v Taylor; ex parte Attorney- General (1999) 106 A Crim 578, considered
R v Casey [2003] QCA 152, CA No 34 of 2003, 3 April 2003, considered
R v Campbell [1997] QCA 314, CA 287 of 1997, 29 August 1997, considered
R v Cameron [2004] QCA 341; CA No 255 of 2004, 20 September 2004, considered

COUNSEL:

A W Moynihan for the applicant/appellant
C W Heaton for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: I will invite Justice Atkinson to deliver the first judgment.

ATKINSON J: The applicant, Melissa Marie Mitchell, has applied for leave to appeal a sentence imposed on her in the District Court on 24 March 2005. On that date she was convicted on her own plea of guilty on two counts of robbery with personal violence (counts 5 and 6), two counts of stealing (counts 1 and 7), one count of wilful destruction (count 2), one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence (count 4) and one count of unlawfully using a motor vehicle (count 3).

She was sentenced to four years' imprisonment on each of the robbery…

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 [2005] QCA 178
Case: [2005] QCA 178
Decision Date: 31 May 2005

CaseChat Overview and Summary

The defendant, Mitchell, appealed against her sentence following her conviction on her own pleas of guilty to two counts of robbery with personal violence, two counts of stealing, wilful destruction, and motor vehicle offences. The appeal was heard in the Court of Appeal of the Supreme Court of South Australia. The applicant sought to challenge the sentence she received, arguing it was manifestly excessive. The court was required to determine whether the sentence imposed was appropriate and whether it should be varied in any way.

The court examined the nature of the offences and the applicant's background, including her age and the fact that this was her first significant criminal offending. The court considered the principle of proportionality and the need for the sentence to be appropriate to the seriousness of the offending. The court also took into account the recommendation that the applicant be eligible for post-prison community-based release after serving 18 months. The court found that the sentence imposed was manifestly excessive, and that a sentence of imprisonment followed by probation would be more appropriate for the applicant.

The appeal was allowed, and the sentence was varied. The applicant was sentenced to one year imprisonment for each of counts 5 and 6, followed by a probation order of two years duration. For counts 3 and 4, the applicant was sentenced to nine months imprisonment for each count. All sentences were to be served concurrently. The applicant was granted leave to appeal against her sentence, and the appeal was allowed. The sentence was varied as per the orders listed above.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Vary the sentence on counts 5 and 6 by sentencing the applicant on each count to 1 years imprisonment followed by a probation order of two years duration

4. Vary the sentence on counts 3 and 4 by sentencing the applicant on each count to 9 months imprisonment

5. All sentences to be served concurrently

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	R v Mitchell [2005] QCA 178
PARTIES:	R v Mitchell, Melissa Marie (applicant/appellant)
FILE NO/S:	CA No 77 of 2005 DC No 593 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	31 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2005
JUDGES:	de Jersey CJ, Atkinson and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Vary the sentence on counts 5 and 6 by sentencing the applicant on each count to 1 years imprisonment followed by a probation order of two years duration 4. Vary the sentence on counts 3 and 4 by sentencing the applicant on each count to 9 months imprisonment 5. All sentences to be served concurrently
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant convicted on own pleas of guilty on two counts of robbery with personal violence, two counts of stealing, wilful destruction and motor vehicle offences – applicant sentenced concurrently to four years imprisonment for the robbery offences and 18 months imprisonment for the motor vehicle offences – recommendation that she be eligible for post prison community based release after serving 18 months – whether sentence manifestly excessive – structuring a sentence of imprisonment followed by probation for applicant in need of supervision Penalties and Sentences Act 1992 (Qld), s 9, s 92 R v Nagy [2003] QCA 175; [2004] 1 Qd R 63, considered R v Kazakoff; ex parte Attorney-General (Queensland) [1998] QCA 459, CA No 236 of 1998, 27 August 1998, considered R v Taylor; ex parte Attorney- General (1999) 106 A Crim 578, considered R v Casey [2003] QCA 152, CA No 34 of 2003, 3 April 2003, considered R v Campbell [1997] QCA 314, CA 287 of 1997, 29 August 1997, considered R v Cameron [2004] QCA 341; CA No 255 of 2004, 20 September 2004, considered
COUNSEL:	A W Moynihan for the applicant/appellant C W Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent