R v Mitchell, Grant David

[2012] NSWSC 694

Supreme Court

New South Wales

Medium Neutral Citation:	R v MITCHELL, Grant David [2012] NSWSC 694
Hearing dates:	25 May 2012
Decision date:	22 June 2012
Jurisdiction:	Common Law - Criminal
Before:	Hidden J
Decision:	Sentenced to 14 years, NPP 10 years, from 9.1.11
Catchwords:	CRIMINAL LAW - sentence - murder - plea of guilty - reckless indifference to human life - domestic setting - offender surrendered to police after lengthy period at large - offence in 1987 - sentencing practice at that time
Legislation Cited:	Crimes Act 1900
Cases Cited:	R v Thomson & Houlton [2000] NSWCCA 309, 49 NSWLR 383 R v MJR [2002] NSWCCA 129, 54 NSWLR 368
Texts Cited:	Sentenced Homicides in New South Wales, 1990 - 1993
Category:	Sentence
Parties:	Regina (Crown) Grant David Mitchell (offender)
Representation:	Counsel: Ms Kara Shead (Crown) Mr Paul Winch (offender) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) SE O'Connor - Legal Aid Commission (offender)
File Number(s):	2011/32243

REMARKS ON SENTENCE

1. The offender, Grant David Mitchell, has pleaded guilty to the murder of his partner, Nella Poli, at their home in Zetland on 12 May 1987. It is common ground that the basis for murder is that the killing was done with reckless indifference to human life.

Facts

1. The offender and Ms Poli, both of them natives of New Zealand, had been in a relationship for about 8 months. In the weeks leading up to her death Ms Poli had spoken to friends and family about leaving him.

1. In the evening of 12 May 1987, the offender and Ms Poli were at home together. Early in the evening they had had sex. However, later an argument developed between them and there was a physical altercation. Around his neck the offender was wearing a pendant attached to a gold chain which Ms Poli had given him. As they struggled, she pulled the pendant from the chain and put it in her mouth. He grabbed her around the neck with his hands and then used a pair of pantyhose as a ligature in an attempt to make her cough the pendant up. They fell to the floor in the doorway between the lounge room and a downstairs bedroom. He straddled her as she lay on her back and held a pillow over her face to quieten her. Shortly afterwards, she stopped struggling but he continued to hold the pillow over her face. He then blacked out for a period.

1. When he regained consciousness, he found that she had stopped breathing and had no pulse, and her face appeared blotchy. He carried her to the master bedroom upstairs. There he removed the jeans she was wearing and placed her on the bed. He covered her with a doona. He went back downstairs, where there was a photo of the two of them. He removed their faces from the photo, and placed two pins in the photo where Ms Poli's eyes had been.

1. This account is a brief summary of what the offender told police many years later, when he was finally apprehended. It is consistent with the observations of a neighbour who went to the house the evening after the murder and found the deceased, and of police who attended the scene. She was seen to be lying on the bed underneath the doona, she was wearing undergarments, and she had marks around her neck. The photo was seen to have been defaced in the way the offender described. A post-mortem examination carried out the following day led to the conclusion that the cause of death was strangulation. However, that post-mortem examination was reviewed by a forensic pathologist in November 2011, and that pathologist found that it was not possible to say whether strangulation or suffocation was the more likely cause of death.

1. Having left the house after the killing, the offender caught a train to Katoomba. There he contemplated committing suicide and destroyed his personal identification. He lived in the bush for a time, and then got a job in the Emu Plains area under a false name. With the introduction of the compulsory tax file number system, he fled to far north Queensland. There he worked on and off, doing manual labour for cash payment. He maintained this transient lifestyle, using three different aliases and avoiding police detection. A warrant for his arrest had been issued on 1 March 1988 but, despite numerous enquiries, police were unable to locate him.

1. On 9 January 2011, he attended the police station at Atherton in Queensland, and surrendered himself. He told police that he was wanted for a murder committed in New South Wales in 1987. He said that he had had an argument with his girlfriend, at the end of it she was dead, and he had been on the run ever since. He took part in a recorded interview with Queensland detectives, saying that during an altercation with Ms Poli he had smothered her with a pillow. He told them about the circumstances of the killing and his subsequent actions to avoid apprehension.

1. He took part in a further recorded interview with New South Wales police, in which he gave a detailed account of the killing. Extracts from that interview are set out in an agreed statement of facts which I received, but it is unnecessary to go to that detail in these remarks. In the Queensland interview he said that he did not intend to kill Ms Poli or to cause her serious harm, but he acknowledged that when he realised what he had done he took no steps to seek any medical assistance for her or to notify authorities.

Victim impact statement

1. I received a victim impact statement by Ms Poli's mother, Ms Caroline Ann McGill. It is a moving expression of her grief and outrage at the violent death of her daughter, and the enduring effects this tragedy has had upon her and her family. The opening words of the statement are telling:

"I am under no illusion that the sentence imposed will reflect the depth of feeling and impact of Nella's death on our immediate and extended family and all those who knew and loved Nella. The totality of our loss and grief is impossible to express."

1. I extend my deepest sympathy to Ms McGill, to her family and to all those affected by this tragic event.

Subjective case

1. The offender was 37 years old at the time of the offence, and is now 62. He has no criminal history. As I have said, he was born in New Zealand. He appears to have had an unremarkable upbringing there. It was not without its difficulties, but they are not significant for present purposes. He finished High School, and was consistently in employment in New Zealand, as he was when he came to this country. He married in New Zealand and the union produced two children, who are now adults. The marriage did not endure.

1. I have the benefit of a psychological assessment, which provides insight into aspects of his background and personality functioning. However, the results of psychological testing disclose nothing bearing upon this sentencing exercise. To the psychologist the offender acknowledged that there had been difficulties in his relationship with Ms Poli but he said, and I accept, that prior to the offence there had never been any physical violence.

1. The offender presented a handwritten statement to me in which he expressed his remorse for his crime in heartfelt terms. I accept that expression as genuine. It is consistent with his plea of guilty. While the matter was in the Local Court he offered to plead guilty to manslaughter. When that offer was refused he pleaded guilty to murder, still in the Local Court. His surrendering to the police is also consistent with his remorse. It may be, as the Crown prosecutor suggested, that he had reached a stage where he could no longer endure life as a fugitive. However, even if that be so, I accept that he was also motivated to acknowledge his guilt and face his punishment. The Crown prosecutor fairly submitted that he was entitled to a 25% reduction of sentence for the utilitarian value of his plea.

1. I received some impressive testimonials about the offender's character. A letter from a Queensland couple, who knew him under an assumed name, painted him as a loyal and caring friend. He had effectively become part of their family, and they appreciated his support in their coping with difficulties experienced by their children. Significantly, I also received letters from his former wife and his daughter, both of whom still live in New Zealand. Despite the breakdown of their marriage, his wife described him as "trustworthy, gentle and loving." His daughter's letter is a moving document, describing the process of her re-establishing contact with him after not having seen him since she was a child. She noted that in her many conversations with him about the offence he never said anything derogatory about Ms Poli, but always spoke of her respectfully. She expressed herself to be fortunate to have forged a relationship with him and described them as having "an ongoing friendship."

1. He, of course, is equally fortunate to have found this family support. Clearly, his prospects of rehabilitation are good. He had not been in conflict with the law before the offence, and had not come under adverse notice in the many years after the offence during which he was at large. I think it most unlikely that he would re-offend.

Sentence

1. None of this is to deny the seriousness of his crime. A killing done with reckless indifference to human life is not necessarily less serious than one accompanied by an intent to kill or to cause serious injury. An assessment of the culpability of any murder turns on the facts of the case at hand. In sentencing this offender it is significant that the offence occurred in a domestic setting, as the courts recognise the need to impose deterrent sentences in cases of domestic violence. While I have found that he is unlikely to re-offend, general deterrence remains an important consideration. On the other hand, it is clear that this killing was spontaneous, without an intention to kill or inflict serious injury, in the heat of an altercation and a struggle. Moreover, it was an episode of violence which appears to be entirely uncharacteristic of him.

1. As the offence was committed in 1987, it is necessary to have regard to the practice and pattern of sentence for murder at that time: R v MJR [2002] NSWCCA 129, 54 NSWLR 368. There was then no standard non-parole period for the offence. By s 19 of the Crimes Act 1900, the prima facie sentence for murder was imprisonment for life, that is, an indeterminate sentence with a prospect of release on licence. However, a court could impose a determinate sentence if it appeared that the offender's culpability for the crime was "significantly diminished by mitigating circumstances." The present sentencing regime for murder (apart from the standard non-parole period) was introduced into the Crimes Act in 1990 by s 19A, providing that the discretion for sentence for murder is at large, with imprisonment for life, which now means the term of the offender's natural life, being the maximum sentence. Provision was made for offenders serving life sentences under the old regime to apply to this court for a re-determination of the sentence, and the court could impose a determinate sentence or could specify a non-parole period while preserving the life sentence.

1. I have been assisted by a Judicial Commission monograph, "Sentenced Homicides in New South Wales, 1990 - 1993", supplied by counsel for the offender, Mr Winch. The cases examined revealed that the majority of offenders dealt with under s 19 of the Crimes Act received life sentences. Of the cases where the requisite mitigating circumstances were found, sentences ranged from 10 to 16 years, with non-parole periods of 8 to 12 years. More assistance is to be gained from determinate sentences passed in the early years of the s 19A regime. The monograph revealed that the majority of offenders received a sentence greater than 14 years and up to 20 years. The average non-parole period was 12 years, with about half of the cases falling within the range of 10 to 15 years. A sentence of 18 years with a minimum term of 12 years was described as "the typical sentence for murder under s 19A."

1. Of the cases under s 19 in which determinate sentences were passed, only one was a plea of guilty. However, of the cases under s 19A more than a third were pleas of guilty. However, an analysis of the data found that there was no clear difference in sentences between the cases where there had been a plea of guilty and where there had not. The authors of the monograph suggest that this may be attributable to the fact that a plea of guilty does not automatically attract a lesser sentence because of the serious nature of the offence. Of course, some of those may have been cases in which the facts were particularly serious, so that, even though leniency was extended for the plea of guilty, the sentences did not depart markedly from the general trend. However that may be, it was not the practice then to arrive at a sentence as a starting point and specify a proportion by which it had been reduced because of the plea of guilty. The current practice of expressly discounting a sentence on account of a plea of guilty finds its origin in R v Thomson & Houlton [2000] NSWCCA 309, 49 NSWLR 383. In the present case the offender should have the benefit of that practice, even though it had not been developed at the time of the offence.

1. In setting a non-parole period, it should also be noted that at that time there was no legislation prescribing a statutory proportion between sentence and non-parole period. The discretion to determine the length of the non-parole period in each case was at large. If the offender had been dealt with under s 19 and had received a life sentence, there is little doubt that an application for re-determination of that sentence would have led to the imposition of a determinate sentence. That sentence could be expected to have fallen within the range of sentences under s 19A. By then legislation imposing a statutory proportion between sentence and non-parole period would have been in force, but it did not apply to life sentence re-determinations.

1. Having regard to all of the circumstances, I have concluded that the appropriate starting point for sentence is a term of imprisonment for 18 years. A reduction of that sentence of roughly 25% in recognition of the plea of guilty produces a term of 14 years. I shall set a non-parole period of 10 years. Despite the features of the case favourable to the offender, I do not believe that a lesser non-parole period would be sufficient to reflect his criminality. The sentence will date from the day of his arrest, 9 January 2011.

1. Grant David Mitchell, for the murder of Nella Poli you are sentenced to imprisonment for 14 years with a non-parole period of 10 years, to date from 9 January 2011. You will eligible for release on parole on 8 January 2021.

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Decision last updated: 22 June 2012