R v Mitchell-Herden - [2023] QCA 39

[2023] QCA 39

COURT OF APPEAL

MULLINS P
GOTTERSON AJA
HENRY J

CA No 112 of 2022
DC No 1642 of 2021

THE KING

MITCHELL-HERDEN, Rudy Jed Applicant

BRISBANE

TUESDAY, 14 MARCH 2023

JUDGMENT

HENRY J: On Christmas Day 2019, the applicant committed the offence of assault occasioning bodily harm in company upon his sister’s boyfriend. He pleaded guilty to the offence and was sentenced to 12 months’ probation, ordered to pay $1,500 compensation, and a conviction was recorded. He applies for leave to appeal his sentence with the object of this Court varying the sentence so that no conviction is recorded.

His counsel approaches that task relying on grounds that the sentence is manifestly excessive and the sentencing judge erred in failing to apply the parity principle. The determinative issue arising from the argument advanced is whether the learned sentencing judge erred in recording a conviction. It is that decision which is said to render the sentence manifestly excessive, and that decision which is said to have involved a failure to apply the parity principle.

It is instructive to first consider the application without regard to the parity principle. In that equation, there being no other specified error in her Honour’s reasoning to the decision to record a conviction, the applicant would, if granted leave, have to meet a test of error identified in House v The King (1936) 55 CLR 499 at 505. That test would require the applicant to demonstrate the recording of a conviction was of itself an unreasonable or plainly unjust outcome.

Section 12(2) of the Penalties and Sentences Act 1992 (Qld) requires the Court considering whether or not to record a conviction to have regard to all circumstances of the case, including the nature of the offence, the offender’s character and age and the impact that recording a conviction will have on the offender’s economic or social wellbeing or chances of finding employment. None of those specific considerations were particularly favourable for the applicant and some were positively unfavourable.

Firstly, as to the nature of the offence, while it was not in the worst case category, the learned sentencing judge correctly observed it was serious, “given that this was a group attack on a single individual”.

Four of the applicant’s male friends – Conor Tisdell, Conah Morrissey-Harvey, Jarrad Fairbanks and Brock Stitt – were at his home. The complainant and the applicant’s sister were heard to be arguing in her bedroom. After the applicant’s sister left the room, Tisdell entered and confronted the complainant. They argued and Tisdell punched him to the face, causing the complainant to fall to the ground with an injured jaw. That act attracted a separate charge of assault occasioning bodily harm in respect of Tisdell.

Tisdell exited the room and the other four offenders then joined in dragging the complainant from the room and throwing him out the front door. He was kicked and punched by Stitt during that process, resulting in a cut above the complainant’s eyebrow…

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-Herden

Details

AGLC: R v Mitchell-Herden [2023] QCA 39
Case: [2023] QCA 39
Decision Date: TUESDAY, 14 MARCH 2023

CaseChat Overview and Summary

In the case of R v Mitchell-Herden, the applicant, Rudy Jed Mitchell-Herden, sought leave to appeal against his sentence for the offence of assault occasioning bodily harm in company, committed on Christmas Day 2019. The applicant pleaded guilty and was sentenced to 12 months' probation, ordered to pay $1,500 in compensation, and a conviction was recorded. The applicant sought leave to appeal the sentence on the basis that it was manifestly excessive and that the sentencing judge had erred in failing to apply the parity principle. The central issue for determination was whether the sentencing judge erred in recording a conviction.

The Court considered the application without regard to the parity principle and found that the applicant would need to demonstrate that the recording of a conviction was an unreasonable or plainly unjust outcome. The Court considered the nature of the offence, the applicant's character and age, and the impact that recording a conviction would have on the applicant's economic or social wellbeing and chances of finding employment. The Court found that the decision to record a conviction was well within the sentencing judge's discretion given the seriousness of the offence, the applicant's criminal history, and the limited information provided about the potential impact on the applicant's employment.

The Court also considered the applicant's argument that the sentencing judge failed to apply the parity principle. The Court found that the sentencing judge had considered the parity principle in sentencing the applicant and his co-offenders and that there was no error in her Honour's application of the principle. The Court found that the differences in the co-offenders' personal circumstances, including their criminal histories, explained the different outcomes in the decision whether to record a conviction.

Given that there was no substance to any of the proposed grounds of appeal, the Court refused the application for leave to appeal the sentence. The order of the Court was that the application for leave to appeal sentence was refused.

In conclusion, the Court found that the sentencing judge did not err in recording a conviction and that the sentence was not manifestly excessive. The Court also found that the sentencing judge had properly applied the parity principle in sentencing the applicant and his co-offenders. As a result, the application for leave to appeal the sentence was refused.

Orders