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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 up in 2006 for the commission of further offences and served 18 months with a non-parole period of 12 months. Amongst other short custodial terms the offender served a non-parole period of five years for a malicious wounding from December 2007 to December 2012.

6. Less than two years after his release he received a bond for affray. In February 2017 he received an aggregate sentence of two years for various property offences. On appeal the non-parole period was reduced from 18 months to 15 months. He was released on 2 July 2017 less than a month before the commission of these offences. It follows the offender was on parole at the time of these offences. He was serving the balance of his parole from his arrest on 2 August 2017 until 4 April 2018.

7. He has been in custody solely referable to these offences for 11 months and 26 days. A number of conditions attaching to bonds and parole have sought to address the offender’s drug and alcohol abuse but seemingly to no avail. 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.

8. He commenced intravenous Ice use at the age of 18. His institutionalisation and subjective circumstances warrant some alteration in the statutory ratio. There is no evidence of remorse beyond that inherent in the pleas of guilty. The offender Mr Zeiser is almost 28 years of age, he has a criminal history commencing in 2010 consisting mostly of motor vehicle and property offences. He has received the benefit of bonds and suspended sentences in the past and has continued to commit offences whilst on conditional liberty.

9. The offender served his first custodial sentence in early 2012 and was released to parole in September 2013. He was returned to custody in February 2014 for a period of six months. The offender breached a bond in 2015 and served a number of short terms of imprisonment resulting in his release on 2 March 2017. At the time of his release he was given the benefit of three bonds of 15 months duration with conditions requiring counselling for drug and alcohol addiction. The offences on indictment occurred five months later. Clearly the offender is resistant to treatment that would further his rehabilitation.

10. The offender undertook a trade apprenticeship in country Australia after leaving school. A violent encounter during that time contributed to the offender’s abuse of alcohol. He returned to the Wollongong area and fell into Ice addiction. His father has moved to the Northern Territory and the offender wishes to join him on release. There is little evidence of a concrete nature that would inspire confidence in the offender’s capacity to abstain from drug abuse, nor is there evidence of real contrition or remorse.

11. There is no basis upon which I would find special circumstances. It is conceded that the Henry guideline applies, notwithstanding that neither offender could be described as young with little or no criminal history. Given the criminal history of both offenders there is an element of community protection that must be reflected in the sentences to be imposed.

12. Taking all the objective and subjective circumstances into account, I impose the following sentences. Mr Mitchell, would you please stand? On each of the offences of 1 August 2017 I impose a sentence of 3 years and 9 months imprisonment to date from 2 August 2017, expiring 1 May 2021. I fix a non-parole period of 2 years, expiring 1 August 2019. For the offence of 31 July 2017 I sentence you to a term of 30 months imprisonment to date from 2 August 2018 expiring 1 February 2021 and I fix a non-parole period of 18 months to date from 2 August 2018 expiring 1 February 2019. You will be eligible for release on 1 August 2019. Do you understand that? Actually that will be 2 August, but in any event that is the eligibility for release date, and I dismiss the charges under s 166 certificate.

13. Mr Zeiser, would you please stand? On each of the offences of 1 August 2017 you are convicted. I sentence you on each count to 5 years imprisonment to date from 2 August 2017, expiring 1 August 2022. I fix a non-parole period of 3 years and 9 months, expiring 1 May 2021. For the offence of 31 July I sentence you to a term of 3 years imprisonment to date from 2 August 2019 expiring 1 August 2022. I fix a non-parole period of 2 years, expiring 1 August 2021. You will be eligible for release on 2 August 2021. Do you understand that? I dismiss the charges on the s 166 certificate.

14. Could counsel please check those dates? Yes, Mr Fraser?

15. FRASER: I thought I heard your Honour say in respect of the 31 July offence for Mr Mitchell that the non-parole would expire February 2019, but your Honour had that commencing in August.

16. HER HONOUR: Sorry, it should have been 1 February 2020.

17. FRASER: Yes, and that would become his first eligible for release date.

18. HER HONOUR: Yes, I’m sorry, you’re right. Yes, I’m sorry, I misread that, it should have been the sentence of 30 months imposed to date from 2 August 2018 expires 1 February 2021. The non-parole period of 18 months expires 1 February 2020. I’m sorry, Mr Mitchell, I made that mistake in the mathematics. It's 1 February next year.

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Amendments

22 August 2019 - Correct typo in file number.

Decision last updated: 22 August 2019