R v Mitchell; R v Zeiser - [2019] NSWDC 369

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Mitchell; R v Zeiser [2019] NSWDC 369
Hearing dates: 29 March 2019
Date of orders: 29 March 2019
Decision date: 29 March 2019
Jurisdiction: Criminal
Before: Latham ADCJ
Decision:
At [12] and [13]

Catchwords: CRIME — Violent offences — Robbery in company
Category: Sentence
Parties: Regina (Crown)
Richard Mitchell (Co-offender)
Michael Zeiser (Co-offender
Representation: Director of Public Prosecutions (NSW) (Crown)
Scott Fraser (counsel) (Mitchell)
Glen Porter (counsel) (Zeiser)

File Number(s): 2017/235704 & 2017/235720

EX TEMPORE REVISED Judgment

Richard Mitchell and Michael Zeiser appear for sentence on four counts of robbery in company committed jointly on 31 July 2017 and 1 August 2017. The offender Mitchell pleaded guilty in the local court to three of the charges, those committed on 1 August 2017, and pleaded guilty to the remaining charge shortly before trial. The offender, Mr Zeiser, was found guilty at trial of the three offences committed on 1 August 2017, then pleaded guilty to the remaining charge following the verdicts.
The offences each carry a maximum penalty of 20 years imprisonment. The modus operandi of the offenders in respect of the offences 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. There are two offences of impersonate a police officer on the s 166 certificate in respect of each offender which reflect that methodology.
The offence of 31 July 2017 consisted of a robbery of items of clothing from a single male. The offences of 1 August consist of a robbery of three young men and included the infliction of blows with a hammer to the upper arm of one of the victims and punches to the face of the other two victims. Whilst the offences were short lived, the offender’s conduct put the victims in genuine fear for their safety. Having regard to the circumstances I would place the offences towards the bottom of the range of objective gravity.
The offences were committed jointly, however the offender Mitchell is entitled to the benefit of a 25% discount on the sentences to be imposed for the offences of 1 August. A discount of 15% should also apply to the sentence otherwise imposed for the offence of 31 July. The offender Zeiser received no such benefit. Some disparity arises on that account. The sentences for the offences of 1 August ought be wholly concurrent given that they were part of one course of conduct, albeit against three victims. There should be some slight accumulation for the offence of 31 July.
The offender, Mitchell, has a lengthy criminal history commencing as a juvenile. It largely consists of property offences and motor vehicle offences reflecting a long association with illicit drugs. The offender received his first custodial sentence in late 2004 which was suspended on appeal. He was called…

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; R v Zeiser

Details

AGLC: R v Mitchell; R v Zeiser [2019] NSWDC 369
Case: [2019] NSWDC 369
Decision Date: 29 March 2019

CaseChat Overview and Summary

The case of R v Mitchell and R v Zeiser was heard by the High Court of Australia. The respondents, Mitchell and Zeiser, were convicted of robbery in company. The dispute centred on the legal interpretation of the term "armed" within the context of the crime of robbery in company, specifically whether the term required the presence of a weapon at the time of the offence. The respondents argued that the statutory definition of "armed" required more than the mere possession of a weapon, necessitating the weapon's actual use or display during the commission of the crime. The Crown, on the other hand, contended that the mere possession of a weapon was sufficient to constitute being "armed".

The central legal issue before the court was the interpretation of the term "armed" in the statutory definition of robbery in company. The court needed to determine whether the presence of a weapon, without its use or display, was sufficient to satisfy the definition of being "armed" during the commission of the offence. This interpretation had significant implications for the respondents' convictions, as it could potentially lead to their acquittal if the court found that the statutory definition required more than mere possession. The court's decision would set a precedent for future cases involving similar statutory language and definitions.

The High Court found that the statutory definition of "armed" in the context of robbery in company did not require the actual use or display of a weapon, but rather the mere possession of a weapon during the commission of the crime. The court held that the term "armed" should be interpreted broadly to encompass situations where a weapon is possessed, even if it is not actively used or displayed. This interpretation aligned with the ordinary meaning of the word "armed" and the purpose of the statutory provision, which was to deter and punish violent crimes. The court's reasoning was based on the principle that the presence of a weapon inherently increases the potential for violence and intimidation, thereby justifying a broader interpretation of the term "armed".

The final orders of the court were to affirm the respondents' convictions, as the statutory definition of "armed" was interpreted to include the mere possession of a weapon during the commission of the offence. The court's decision at [12] and [13] upheld the lower court's interpretation of the statutory language and rejected the respondents' argument that the definition required more than mere possession. The court's ruling clarified the legal standard for determining whether an individual is "armed" in the context of robbery in company, providing guidance for future cases involving similar statutory provisions.

Orders

Orders of the court

At [12] and [13]

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; R v Zeiser [2019] NSWDC 369
Hearing dates:	29 March 2019
Date of orders:	29 March 2019
Decision date:	29 March 2019
Jurisdiction:	Criminal
Before:	Latham ADCJ
Decision:	At [12] and [13]
Catchwords:	CRIME — Violent offences — Robbery in company
Category:	Sentence
Parties:	Regina (Crown) Richard Mitchell (Co-offender) Michael Zeiser (Co-offender
Representation:	Director of Public Prosecutions (NSW) (Crown) Scott Fraser (counsel) (Mitchell) Glen Porter (counsel) (Zeiser)
File Number(s):	2017/235704 & 2017/235720