R v Mitchell

[2007] VSC 211

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1481 of 2007

THE QUEEN

v

JEFFREY KEVIN MITCHELL

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	17-18, 21-25, 29-30 May 2007; 6 June 2007
DATE OF SENTENCE:	6 June 2007
CASE MAY BE CITED AS:	R v Mitchell
MEDIUM NEUTRAL CITATION:	[2007] VSC 211

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CRIMINAL LAW – Sentencing – Murder – Retrial – Reasons of judge at first trial adopted – Good behaviour in prison – Hardship of uncertain future awaiting retrial - Discount on sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Dane QC	Office of Public Prosecutions
For the Accused	Mr P Marin	Amad & Amad

HIS HONOUR:

1           Jeffrey Kevin Mitchell, you have been found guilty by a jury of murdering Andrew Preston.  On 21 June 2005, you were sentenced by Whelan J after your first trial to 18 years' imprisonment with a non parole period of 14 years in respect of that murder[1].  It is now my duty to sentence you according to law following your conviction at your second trial.

[1][2005] VSC 219

2           The material placed before Whelan J upon your plea after your first trial has been considered again by the Court. In particular the report of Mr Healey, psychologist, and the victim impact statement of the mother of the deceased, Marguerite Preston, have been read. Your counsel accepted Mr Healey’s report as being still current despite its having been originally written on 4 April 2005.

3           Since you were sentenced in June 2005, you have been in prison. I accept from your counsel that your behaviour in prison has led to your being placed in charge of a work group engaged in renovation works, and that your capacity as a welder has been and is continuing to be utilised by the prison.  Your behaviour in this regard is commendable.

4           The Crown accepts that nothing adverse to your character has emerged over those two years and that it can be confidently expected that you will continue to behave appropriately in prison. 

5           Mr Dane for the Crown has pointed to two matters that he says may be sentencing considerations relevant to the re-sentencing exercise.  First, the Crown does not suggest that anything which occurred on your second trial should redound adversely to you with respect to the issue of sentence.  Secondly, he says that it might be accepted by the Court that the uncertainty of your future as it was over those two years, and in particular since the Court of Appeal upheld your appeal, has probably made your imprisonment more onerous and that that could be taken into account in your favour.

6           Having regard to those matters and to the matters raised by Mr Marin concerning your conduct in prison over the last two years, I think it is appropriate that I do reflect those matters in the sentence which is now imposed.  I agree entirely with the analysis of the case as set out by Whelan J and I agree with his conclusion.  Absent the matters which counsel referred to this morning, I would have imposed exactly the same sentence as he did.  Having regard to those matters, I think it is appropriate that a small allowance be made for them, particularly for the fact that your time in prison appears to have been as usefully spent as it could be.

7           In the circumstances, you will be sentenced in respect of the murder of Andrew Preston to 18 years' imprisonment. It is further ordered that you serve a minimum term of 13 years and six months before being eligible for parole.  I declare that you have served 1,476 days as pre-sentence detention in respect of that sentence and I order that this declaration and its effect be entered in the records of the Court.

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