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

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.
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 It was withdrawn, only to reappear and be bashed again.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.
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.…

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 [2020] NSWDC 293
Case: [2020] NSWDC 293
Decision Date: 01 May 2020

CaseChat Overview and Summary

The case of R v Mitchell involved the defendant being sentenced for an attempted home invasion where he broke into a dwelling while knowing there were people inside. His intention was to commit the serious indictable offence of intimidation, and he was armed with a dangerous weapon, a firearm, which was discharged during the incident. This led to the defendant being charged with various offences, including the reckless discharge of a firearm.

The court was tasked with determining the appropriate sentence, considering the gravity of the offence and relevant mitigating and aggravating factors. The judge emphasised the very serious nature of the offences committed post-trial, alongside the defendant’s parole status and his concurrent sentence for another offence committed in the same period. The court applied the totality principle, assessing the overall criminal history of the defendant, who had a long history of criminal activity and was institutionalised. Additionally, the court recognised the defendant’s history of profound deprivation and the need for a structured release to the community. The special circumstances surrounding the case were also taken into account.

The court concluded that an aggregate sentence was necessary, considering the totality of the defendant's criminal history and the need for structured release. The sentence comprised a total of seven years and six months, with a non-parole period of four years and four months. This decision balanced the need for punishment and deterrence with the principles of justice and rehabilitation.

Orders

Orders of the court

Aggregate sentence of seven years and six months with a non‑parole period of four years and four months.

Background

Background to the litigation

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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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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