R v Mitchell
[2009] VSCA 35
•2 March 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 536 of 2008
| THE QUEEN |
| v |
| JOEL FRANK MITCHELL |
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JUDGES: | BUCHANAN and VINCENT JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 2 March 2009 |
DATE OF JUDGMENT: | 2 March 2009 |
MEDIUM NEUTRAL CITATION | [2009] VSCA 35 |
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CRIMINAL LAW – Sentence – Aggravated burglary – Intentionally causing serious injury – Youth of the appellant – Sentence manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G J C Silbert S.C. with Ms A Hassan | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr C B Boyce | Cahills Lawyers |
BUCHANAN JA:
I will ask Vincent JA to deliver the first judgment in this matter.
VINCENT JA:
During the evening of Thursday 22 March 2007, a 66-year-old woman (to whom I shall refer as 'A') and a female friend, ('B'), were present at A's home in Bendigo. Both were profoundly deaf. At about 10.30 p.m., as a pre-arranged lift for B had failed to arrive, it was decided to secure a taxi to take her home. As neither was able to use the telephone by reason of her disability, they went outside to see if A's neighbour was at home to assist them. When they found the neighbour's house to be in darkness, they stood discussing what they should do. While they were so engaged, the appellant came past on a bicycle. Communicating with him by writing, A requested him to come inside and ring a taxi for them. He agreed. I note the appellant, who at that stage can be assumed to have had no criminal intent, provided the women with his correct name. A taxi was called and B left. After seeing her off, A returned into the house and was followed by the appellant, who then commenced to make sexual overtures to her, ignoring her request for him to leave. When he tried to kiss her and she pushed him away, he became angry, and punched her twice in the face, causing her to experience dizziness and bleeding from the face and mouth. The appellant then walked out the front door, closing it behind him.
On subsequent medical examination, A was observed to have sustained tenderness of the nasal septum and a probable undisplaced fracture of the nose, a one-centimetre laceration on the left side of the bridge of the nose, a one-centimetre laceration of the lateral end of the left eyebrow, a haematoma under the left eye and widespread soft tissue swelling of the left side of the face, and marked anxiety. Unsurprisingly, the victim impact statement of A indicates that, in addition to the physical consequences of the assault, she has suffered great distress and significant loss of confidence and sense of personal security.
When interviewed by the police about these events, the appellant admitted striking A and said that he had gone back into the house with the intention of robbing her.
He pleaded guilty in the County Court at Bendigo to one count of aggravated burglary (count 1) and one of intentionally causing serious injury (count 2). He also admitted 34 prior convictions and 25 findings of guilt from ten court appearances between 21 September 1998 and 18 September 2001 in the Children's Court and 12 July 2002 and 1 April 2004 in local and Magistrates' Courts in New South Wales and Victoria. For the most part, they relate to offences of dishonesty, including breaking and entering and burglary, but there are also offences of violence.
After hearing a plea in mitigation of penalty, the sentencing judge, on 19 September 2007, imposed on count 1 four years' imprisonment and on count 2 five years' imprisonment. He ordered that two years of the sentence imposed on count 1 be served cumulatively, thereby creating a total effective sentence of seven years, in respect of which a non-parole period of four years and nine months was fixed.
Having been granted leave to do so by Nettle JA, the appellant contends that the sentencing judge fell into error and that he should be re-sentenced. Specifically, it has been asserted that:
1.A miscarriage of justice arose because of the uncertainty surrounding the basis of the plea to the count of aggravated burglary, and, in particular the uncertainly in respect of the intent with which the appellant entered the victim’s premises.
2.The individual sentences, total effective sentence and non-parole period are manifestly excessive.
3.The order for cumulation produced a sentence that breached the sentencing principle of totality.
4.The learned sentencing judge erred by failing to properly take into account the appellant’s youth.
5The learned sentencing judge erred by doubly punishing the applicant.
These arguments were advanced before Nettle JA at the hearing of the application for leave to appeal. It is sufficient, in order to address them, to set out the relevant part of his Honour's judgment:
Counsel for the applicant has argued three points in support of the application. First, it was submitted that, although the applicant’s aboriginality was mentioned in the plea and reference was made to his ambition to study an Aboriginal language in an Aboriginal institution, no reliance was placed upon his aboriginality as a mitigative circumstance, as it was suggested it might have been in accordance with this Court’s decision in R v Fuller-Cust[1].
Secondly, it was contended that, if one looks to the transcript of the plea hearing, it is apparent that there was some degree of confusion as to the basis on which the applicant had pleaded guilty to the count of aggravated burglary. In the presentment the count was pleaded as one of entry with intent to assault. In the applicant’s record of interview he stated to police that it was his intent to rob. In the course of the Crown’s opening, it was suggested that the intent was to rape. Ultimately, it seems to have settled on the basis of intent to assault. But it us said that, by reason of the uncertainty the judge regarded the offence as more serious than it was.
Thirdly, it is contended that, when one looks to the relatively stern sentence of five years’ imprisonment which was imposed on the count of intentionally causing serious injury, the cumulation of a further two years of the sentence imposed on the count of aggravated burglary is manifestly excessive.
I do not think there is anything in the first point. It was not advanced below and there was no evidence to support it. As to the second point, it is plain that there was some confusion, but in the end the judge appears clearly to have come to the correct conclusion that what was alleged and what was admitted was an aggravated burglary with intent to assault. I am troubled, however, by the third point.
As at present advised, it seems to me that the sentence of five years’ imprisonment imposed on the count of intentionally causing serious injury, although not excessive, was stern, and that it is at least reasonably arguable that to cumulate a further two years of the sentence imposed on the count of aggravated burglary was excessive. Doubtless there are things which can be said in opposition to that conclusion, but for present purposes it is enough that it is reasonably arguable that the point is a good one.
[1][2002] VSCA 168
I agree with his Honour that the real question which arises in this matter is whether the individual sentences and orders for cumulation exceeded those which were available in the proper exercise of sentencing discretion, and whether there has been created a total effective sentence that can be seen to be manifestly excessive in the circumstances.
With respect to those circumstances, the sentencing judge found:
You had consumed a lot of alcohol and some marijuana and amphetamine on the day of your offending. Although you have no intellectual or psychological dysfunction, it is likely you were disinhibited by drugs and alcohol when you committed these offences. Your offending was certainly spontaneous and opportunistic. However, it was simply truly outrageous and a serious example of each of the crimes to which you have pleaded guilty. You viciously attacked a vulnerable victim in her own home. You behaved in a cowardly, violent and frightening manner.
Behaviour of the kind in which the appellant engaged is, as the sentencing judge stated, obviously very serious, and this had to be reflected in the sentences imposed, the determination of which in this case was not an easy matter. The judge's sentencing remarks make it clear that he was mindful of the applicable sentencing principles and factual considerations. In relation to factors militating in favour of mitigation of penalty, he directed attention, inter alia, to the appellant's background and personal circumstances, the reports that had been provided to him, the appellant's plea of guilty and expression of remorse, which, I should add, his Honour accepted as genuine, and the appellant's prospects of rehabilitation which his Honour found seemed to be entirely dependent upon the appellant's ability to stop taking drugs and deal with his alcohol problems. Concerning the appellant’s background, his Honour found –
… you are now 24 being born on 20 July 1983. You have been in a de facto relationship for four years and have two children aged three years and eight months. You have not seen either of these children since being arrested and remanded for these offences.
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Briefly, you were born in Deniliquin, New South Wales and were effectively raised by your maternal grandmother from the age of three when your mother tragically died. You lost contact with your father for some years and you fell into a youth culture of gangs, drugs and alcohol and despite the efforts of your grandmother to break that cycle by sending you to Melbourne in Year 9 school level, that failed and you returned to Deniliquin and did not continue with your schooling.
You did complete six months of a mechanic’s course at TAFE before undertaking very sporadic employment. You maintain an interest in mechanical works on motor cars and you have continued throughout your life to abuse alcohol and illicit drugs as set out in the reports.
You commenced your drug use when you were 13 or 14 years of age and
your prior criminal history, to which I have already referred, reflects your troubled youth and history. You had consumed a lot of alcohol and some marijuana and ice amphetamine on the day of your offending. Although you have no intellectual of psychological dysfunction, it is likely that you were disinhibited by drugs and alcohol when you committed these offences.
The judge also formed the view that:
General and specific deterrence both feature strongly in sentencing you for your offending. Denunciation of conduct such as yours also plays an important part in the sentencing process. The community cannot and will not tolerate behaviour such as yours. Those minded to attack vulnerable women in their own homes must understand that substantial gaol sentences will be imposed for such offending. You need to be specifically deterred from similar conduct in the future.
The care with which his Honour approached his task is apparent. Nevertheless, I have concluded that the sentences imposed were manifestly excessive and do suggest some measure of the imposition of double punishment in a situation in which the circumstances of the offences were very closely interconnected. In consequence, I would allow the appeal and sentence the appellant as follows: on count 1, imprisonment for two years; on count 2, imprisonment for four years. I would direct that 12 months of the sentence on count 1 be served cumulatively upon that imposed on count 2, thus creating a total effective sentence of five years, and I would fix a non-parole period of three years.
BUCHANAN JA:
I agree.
The formal orders of the Court will be as follows:
The appeal is allowed.
The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of two years on count 1 and for a term of four years on count 2.
Twelve months of the sentence on count 1 is to be cumulated on the sentence on count 2.The total effective sentence is five years' imprisonment.
It is ordered that the appellant is to serve a term of three years' imprisonment before he is to be eligible for parole.
It is declared that a period of 710 days has been served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
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