R v Mitchell

[2020] NSWDC 293

District Court

New South Wales

Medium Neutral Citation:	R v Mitchell [2020] NSWDC 293
Hearing dates:	1 May 2020
Decision date:	01 May 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of seven years and six months with a non‑parole period of four years and four months.
Catchwords:	SENTENCING - attempt home invasion - break and enter a dwelling knowing there were people inside, intending to commit the serious indictable offence of intimidation while armed with a dangerous weapon - firearm discharged - fire a firearm with reckless disregard for the safety of another person.   SENTENCING - relevant factors on sentence - after trial -objectively very serious offences - on parole - serving sentence for other offense committed in same period – accumulation required- totality principle applied - long criminal history - institutionalised offender - history of profound deprivation - need for structured release to the community – special circumstances.
Legislation Cited:	Crimes Act 1900
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41 Engert v R (1995) 84 A Crim R 67 Jackson v R [2010] NSWCCA 162 Jinette [2012] NSWCCA 217 Mill v The Queen (1988) 166 CLR 59 R v Clinch (1994) 72 A Crim R 301 R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Mitchell; R v Zeiser [2019] NSWDC 369 Simpson (2001) NSWCCA 534 Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Richard Anthony Mitchell (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser. Public Defender (for the offender) Mr S Schaudin (for the Director of Public Prosecutions)   Solicitors: Legal Aid NSW (for the offender)
File Number(s):	2018/00272488

SENTENCE – EX TEMPORE REVISED

1. In the early hours of 1 August 2017 a loud banging disturbed the residents of a home in Warilla, south of Wollongong.  By the time three of the residents got to the front door it was straining under repeated kicks.  Two male residents braced themselves against the door to prevent it being forced open. 

2. A glass pane in the door was smashed by the butt of a gun.  A gloved hand came through the hole in the glass and went to open the door's latch.  A resident used a hockey stick to bash the hand. It was withdrawn, only to reappear and be bashed again.  The gun was then put through the hole where the glass had been.

3. A female resident saw the gun and its sight.  She saw a man aim at her along the gun-sight.  She saw he was wearing a balaclava with “one big hole.”  She described what she could see of his face as "Aboriginal", with olive skin lighter than the darker ash brown of his arm.  Another resident described the man as having “olive skin.”  A third noticed the man’s hand had a gold watch on its wrist above where the glove ended.  A young woman woken by the disturbance also saw the hand and part of the arm of the intruder.  She later said the arm had some hair on it. 

4. A “fizz” was heard and there was a lot of smoke.  It appears the gun misfired.  Soon after a shot was heard; the gun had been fired from near the front steps into a bedroom window adjacent to the front door.  The bullet fragments travelled through three internal walls of the home, passing over the heads of those at the front door.  A boy sleeping in the front room was unharmed.  The shooter was heard to say something to another person.  A car was then heard speeding away.

5. One of the residents went outside.  Lying on the porch was an unfired bullet and a gold Quicksilver brand watch, like the one he had seen on the intruder's left wrist.  He thought to himself, "I've scored a watch", and put it in his pocket. 

6. Police arrived.  The watch was surrendered to them and placed back where it had been found so it could be photographed.  It was then secured for later forensic analysis. 

7. About 11 hours later police stopped a car in Mangerton, a suburb about 20 minutes' drive from Warilla.  Richard Mitchell was in the rear seat of the car.  Two pairs of black gloves and a balaclava, with only one hole in it, were found near him.  Two other men were in the car, Alcock and Zeiser.  The three men were arrested for other matters.

8. Later analysis revealed a DNA profile matching Mitchell's on the balaclava and one black glove.  Three other DNA profiles were found on these items.  It is statistically very probable that each profile was Mitchell's and three unknown others as opposed to a random person unrelated to Mitchell and three unknown others. 

9. Later DNA analysis revealed that the major DNA profile found on the watch matched the profile of Mitchell.  Other DNA profiles were found but it was statistically very probable that the major profile was Mitchell's, as opposed to a random person unrelated to Mitchell.  A photograph of Mitchell wearing a similar watch from July 2017 was tendered at trial.  There was also evidence he was wearing a similar watch three days before the incident.

A short trial

10. Mitchell was arrested and came for trial at Wollongong District Court on 2 March 2020. After a four day trial a jury of twelve found him guilty of two counts; break and enter a dwelling knowing there were people inside, intending to commit the serious indictable offence of intimidation while armed with a dangerous weapon, s 113(3) Crimes Act 1900, maximum penalty 20 years' imprisonment; and fire a firearm with reckless disregard for the safety of another person, s 93GA(i) Crimes Act 1900, maximum penalty 14 years' imprisonment with a standard non‑parole period of five years for an offence that, taking into account only objective features, falls in the middle of the range.  Mitchell was acquitted of the more serious charge of discharge a weapon with intent to cause grievous bodily harm.  He must have the full benefit of that acquittal.

11. The key issue at trial was the identity of the shooter/intruder.  The prosecution case was circumstantial, based on the finding of the watch at the scene, its recent association with Mitchell, his being found later that day with a balaclava, gloves and the DNA profile matches. 

12. Mitchell, as is his right, maintained his silence on arrest and at trial.  His case was that there remained a reasonable possibility his watch had been stolen prior to the incident and that he did not resemble the descriptions given of the intruder.  Mitchell identifies as Aboriginal but he has pale skin on his face and arms.  The photograph from July 2017 tendered at trial shows his left arm did not have hair on it.

Assessment of objective seriousness

13. The facts here speak for themselves.  Without apparent motive, a man in company with at least one other, tried to force open a door of a suburban home just after midnight.  He obviously knew people were present; an element of the offence.  He was armed with a weapon and disguised, indicating some planning, though clearly the planning was not sophisticated and it may even be that he and his associate or associates had got the wrong premises.  The door was damaged in the attempt to enter the home. 

14. A firearm was used to intimidate the residents, one of whom had it pointed directly at her.  The gun misfired.  I can infer that either deliberately or accidentally a trigger was pulled.  A Parthian or parting shot was fired into a bedroom with reckless disregard for the safety of the residents.

15. It was obvious that the home was occupied by a number of people.  One of those residents was a child.  The interference with the home, the intention to intimidate by the use of a weapon and the subsequent reckless shot are both individually offences of considerable seriousness. 

Maximum Penalties

Antecedent History

16. The offender was on parole at the time of these offences.  The commission of the offence while on parole justifies a harsher punishment in order to recognise the breach of his promises made to secure early release: that is, to be of good behaviour and obey the Parole Service's directions.  He had been released to parole on 2 July 2017, only a month earlier, after I upheld a severity appeal against the sentence imposed in the Local Court.

17. On 29 March 2019 Her Honour Acting Judge Latham sentenced Mitchell for four counts of robbery in company committed on 31 July 2017 and 1 August 2017: R v Mitchell, R v Zeiser [2019] NSWDC 369. The modus operandi of the offenders was to stop and approach a motor vehicle late at night under the pretext of being police officers; then rob the occupants of the vehicles of whatever items of value they had in their possession, including a watch and mobile phones. Her Honour found that while the offences were short lived, the offenders' conduct put the victims in genuine fear for their safety.

18. Mitchell received an effective sentence of three years and nine months imprisonment with a non‑parole period of two years and six months and a partially concurrent sentence of 30 months. The offender was eligible to be released to parole on 1 February 2020.

Institutionalisation - Risk of

19. The offender is now 35.  He has a criminal record going back to the Children's Court in 2002.  He first was imprisoned in 2004.  His period in the community since then has been measured in months.  The material before me shows that the offender has been institutionalised.  The submission is made, which I accept, that the Court should not simply give up on him at this stage.  An attempt should be made both in the community and the offender's interest to ensure there is a sufficient period of conditional and supervised liberty to ensure the protection of the community and attempt to minimise the chance of recidivism.  All the statistics I have and studies I have read indicate that the longer and more intensively a person is supervised on parole will lessen the risk of reoffending and reoffending for serious offences.

20. The Court of Criminal Appeal has indicated that institutionalisation or its risk, even in the face of entrenched and serious recidivism, may justify a finding of special circumstances: see Jackson [2010] NSWCCA 162, at [24]; Jinette [2012] NSWCCA 217, at [103]. That said, the offender's criminal history is relevant to determining the proper sentence. It indicates that these offences are not uncharacteristic aberrations. His record demonstrates continuing disobedience to the law and a degree of disrespect to the orders of the Court allowing him parole. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the matters for sentence, here a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465, at [477].

21. A moment's consideration of the principles derived from Veen and Jackson show that the interplay of considerations relevant to sentencing are complex, even intricate.  Some principles point to leniency and others point in the opposite direction.  This dilemma highlighted in Veen was succinctly summarised by the Chief Justice in Engert v R (1995) 84 A Crim R 67. A judge must try and synthesise all relevant factors and some matters which might be of great importance to features such as general deterrence might at the same time also be taken into account so that a degree of leniency can be extended to an offender.

Offender's background and history

22. I have the benefit of a comprehensive psychosocial report prepared by Mr Bembrick of Legal Aid New South Wales.  That report was before me in 2017 when I dealt with Mitchell for his severity appeal.  The report was also put before Latham ADCJ.  The report sets out a history of profound deprivation. As the High Court made clear in Bugmy v The Queen (2013) 249 CLR 571, the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy, at [42] –[43].  The circumstances established here indicate that the offender was raised in a background that must mitigate his sentence because his moral culpability is likely to be less than those whose formative years were not so marred: Bugmy, at [40]. 

23. In her succinct judgment, Acting Judge Latham had regard to the matters set out in Mr Bembrick’s report. Mitchell’s history of offending is associated with drug and alcohol abuse which commenced when he was very young and unable to make rational choices.  The history before Her Honour, and now me, indicates that he started intravenous ice use at about 18.  Her Honour concluded, and I concur:

"The offender is now 33 years of age, his prospects of rehabilitation are dim.  He identifies as indigenous and his early life exhibited many of the deprivations and instability associated with indigenous disadvantage.  He was born heroin dependent to drug addicted parents and was cared for intermittently by his grandmother."

24. Her Honour found special circumstances allowing for about a third of the overall sentence to be spent on parole.  That ratio should be maintained.

Accumulation Guidance

25. While every offence and every offender requires individualised treatment, courts must, in the exercise of their undoubted discretion, take guidance from a number of sources.  They include; the maximum penalties, here 20 and 14 years.  The firearms offence also, I note, carries a standard non‑parole period of five years.  Content must be given to that standard non‑parole period. 

26. I must have regard to the decisions of other Courts, particularly those designed to give guidance both in relation to home invasion type offences and offences involving the discharge of a firearm at a home associated with other crimes.

27. I have regard to the purposes of sentencing which here importantly include the necessity for deterrence of this offender and of others from committing similar crimes.  There is also a need for proper recognition of the harm done to the individuals in the home, the direct victims of this offence, and the community in general who would be understandably horrified by the commission of a firearms offence such as this in a suburban street.

Structure of the sentence

28. Mitchell is not to be punished for exercising his right to trial but he does not get the benefit of an early plea of guilty.  Mr Schaudin, who appeared for the Crown at trial and on sentence, indicates, fairly, that in preparation for the trial the offender facilitated the course of justice by the making of admissions and narrowing the issues to the specific ones to which I have already referred. He will have the benefit of that assistance.

29. After being resentenced by me in 2017, Mitchell was released to parole on 2 July 2017.  He had been in custody since 4 June 2016, one year and three months.  On 2 August 2017, only a month after his release, he committed these offences.  He has been in custody ever since his arrest that morning.  He received the benefit of Acting Judge Latham’s sentence being made concurrent with eight months balance of parole.  The two years six months non‑parole period of that sentence expired on 1 February 2020.

30. I must sentence for two matters that occurred in sequence as part of one criminal incident.  There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. Here, the sentence for one offence could not substantially comprehend and reflect the criminality of the other but they are part of a single episode and they do have many common factors: Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41.

31. These sentences, however, must be served together with and partly accumulated upon Her Honour's earlier sentence, but they were distinct offences with very different consequences.  There is no discount for multiple offending.  I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender's crimes: Mill v The Queen (1988) 166 CLR 59, at [62]-[63]. There must be some accumulation of penalty.

32. Here, however, the totality principle operates to recognise that sometimes the appropriate punishment for each offence would result in a sentence that is unduly harsh, sometimes called crushing.  In some cases, a crushing sentence is called for, but this is not such a case.  The severity of a sentence is not simply linear.  The severity of a sentence may increase at a greater rate than an increase in the length of a sentence, for example, a sentence of two years has greater impact than one year, so far as the punitive aspects of the sentence are concerned; see R v Clinch (1994) 72 A Crim R 301 and R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159. There will be a finding of special circumstances.

33. It is necessary to take into account the accumulation of sentences and the community interest in the offender being supervised as long as possible.  It is absolutely critical that while in custody, and on release, he be supervised and assisted for as long as possible.  That said, the minimum period he must spend in custody must properly reflect the gravity of his offences and the other purposes of sentencing: Simpson v R (2001) NSWCCA 534.

Submissions

34. I have been provided with comprehensive written submissions by Mr Schaudin and Mr Fraser, Public Defender, who appeared for Mitchell at trial and today.  They are comprehensive.  They were supplemented by oral submissions.  They were provided to me well in advance so that I could read and digest them.  I thank counsel for them and hope that I have reflected in this judgment the matters that they have raised.

Synthesis

35. Mr Mitchell's criminal history and background could give no‑one confidence that he will not on release reoffend.  He has been given opportunities in the past and he has not taken those opportunities.  The material before me indicates why that is so often the case.  He is still young.  He still has prospects.  He is not someone who should be given up on, but, as he must by now realise, when he is released to parole on the next occasion effectively it will be his last chance. 

36. Mitchell will have some time, given the seriousness of the crimes he committed, to reflect on his future.  There are some prisoners who have spent or will spend most of their lives in custody because they cannot live a normal community life. Mitchell knows them because he is in gaol with them; I know them because I have sentenced them.  Mitchell has never lived a normal life in the community.  It is impossible for him to learn how to do so while he is in gaol, but the effort must be made to give him some resources to cope in the community when he is next released.

37. I return, however, as I must, to the seriousness of the crime he committed.  Mitigating factors can go only so far.  There are two matters for sentence today.  Both involve gross invasions of the rights of the homeowners.  Each involved the use of a firearm.  People were put at risk by Mitchell’s deliberate criminal behaviour and his reckless use of the firearm.  It is more by good luck than anything else that he is not facing more serious charges.  It is more by good luck than anything else that someone was not seriously hurt, but I must punish only for these offences and their immediate consequences.

38. I must attempt to signal the community's abhorrence at what occurred and attempt to vindicate the dignity of the victims of violence who were at the home that night.  I must attempt to structure the sentence to reflect the various purposes of sentencing. 

39. The effect of my order will be a sentence of seven years six months for these matters.  I intend to commence the sentence one year and eight months after Latham ADCJ's sentence; that is, 2 April 2019. The effect of my order will be a total sentence accumulated ‑ taking into account Acting Judge Latham’s sentence - of nine years and two months' imprisonment. 

35. I have attempted to maintain an approximately two‑third/one‑third ratio of the total sentence, another reason for my finding of special circumstances.  An aggregate sentence will be imposed. 

Orders

41. In relation to the aggravated break and enter offence there will be an indicated sentence of six years imprisonment. 

42. In relation to the firearms offence there will be an indicated sentence of five years' imprisonment with a non‑parole period of three years and three months. 

43. There will be an aggregate sentence of seven years and six months.  There will be a non‑parole period of four years and four months which will commence on 2 April 2019.  Mitchell will become eligible for parole on 1 August 2023.

44. The balance of the term, three years and two months, will commence on that date, expiring on 1 October 2026. 

45. It will be for the State Parole Authority to determine whether Mitchell is released on that date.  They will only allow his release if community safety concerns can be met.  That issue will be determined based upon the efforts made by Mitchell while in custody. It is for him to convince the State Parole Authority that he can at least start to lead a normal community life on release.  I envisage and hope that by the time he is eligible for release that there will be programs which will allow for his structured and staged return to the community. That he gets such an opportunity is both in his interest and the community's in general.

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Decision last updated: 11 June 2020