R v Mitchell

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1481 of 2007

THE QUEEN

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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The case of R v Mitchell involved the appellant who was convicted of murder and sentenced to imprisonment. The appellant sought a reduction in his sentence on the grounds that the original sentencing was excessive. The matter was heard in the High Court of Australia. The appellant argued that the trial judge's reasons for the original sentence were flawed, and that he had displayed good behaviour in prison, which should be taken into account. Additionally, the appellant argued that the hardship of facing an uncertain future awaiting the retrial should be considered when determining the appropriate sentence.

The legal issues before the court included whether the reasons provided by the trial judge for the original sentence were correct, and whether the appellant's good behaviour in prison and the hardship of awaiting retrial warranted a reduction in his sentence. The court considered whether the original sentence was manifestly excessive, and if so, what the appropriate sentence should be. The court also considered the principles of parity and proportionality in sentencing, as well as the need to ensure that sentences are just and appropriate in the circumstances.

The court held that the reasons provided by the trial judge for the original sentence were not flawed, and that the appellant's good behaviour in prison and the hardship of awaiting retrial did not warrant a reduction in his sentence. The court found that the original sentence was not manifestly excessive, and that there was no basis for reducing the sentence. The court emphasised the importance of ensuring that sentences are just and appropriate, taking into account the circumstances of the case and the principles of parity and proportionality. The court rejected the appellant's submissions and upheld the original sentence.

The court's final orders were that the appellant's appeal against sentence was dismissed, and that the original sentence imposed by the trial judge was affirmed. The appellant was to continue serving his sentence as originally determined. The court emphasised the importance of ensuring that sentences are just and appropriate, and that the principles of parity and proportionality are upheld in all cases.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established