R v Mitton - [2024] NSWDC 105

District Court

New South Wales

Medium Neutral Citation: R v Mitton [2024] NSWDC 105
Hearing dates: 31 January 2024
Date of orders: 31 January 2024
Decision date: 31 January 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Imprisonment sentence of 4 years and 6 months with a non-parole period of 2 years and 6 months

Catchwords:
CRIME — Violent offences — Wound with intent to cause grievous bodily harm
SENTENCING — Aggravating factors — Breach of conditional liberty
SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Specific deterrence — Form 1 offences — Objective seriousness — Purposes of sentencing
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Deprived background — Homelessness — History of drug induced psychosis — Special circumstances

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Geddes v R (1936) 36 SR (NSW) 554
Nasrallah v R [2021] NSWCCA 207

Category: Sentence
Parties: Matthew James Mitton (offender)
Public Prosecutions (NSW) (Crown)
Representation: Solicitors:
M Kwan solicitor for Legal Aid (NSW) (for the offender)
A Kerr solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2022/385443

JUDGMENT – ex tempore Revised

Matthew Mitton is for sentence today for a particularly serious offence. On 21 December 2022 he was involved in a scuffle with another man in Crown Street Wollongong. During the scuffle he stabbed the other man. As a consequence, his victim had his left kidney removed. He suffered other physical and psychological injuries.

Maximum and standard non-parole period

Mitton indicated a plea of guilty in the Local Court to an offence of Wound with Intent to Cause Grievous Bodily Harm. That offence carries a maximum penalty of 25 years and a standard non-parole period of 7 years: Crimes Act 1900 (NSW), s 33(1)(a). That maximum penalty and that standard non-parole period are guides to the exercise of the broad sentencing discretion given judges of this Court. They are important guides and content should be given to the standard non-parole period. But every offence and every offender is individual, and requires individual consideration.
The fact that the plea of guilty was indicated in the Local Court requires that I reduce the otherwise appropriate sentence by 25% to reflect its utilitarian value.

Form 1

When I sentence Mitton, he asks that I take into account on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1, two further offences: Possession of a small quantity of cannabis and custody of a knife in a public place. I will do so.
In some circumstances the Court, in taking such matters into account, can increase the sentence for the offence to which they relate. As possession of cannabis would…

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 Mitton

Details

AGLC: R v Mitton [2024] NSWDC 105
Case: [2024] NSWDC 105
Decision Date: 31 January 2024

CaseChat Overview and Summary

In the matter of R v Mitton, the defendant was charged with a violent offence involving wounding with intent to cause grievous bodily harm. The case was heard in the relevant Australian court, which was tasked with determining the appropriate sentence for the defendant. The dispute centred on the sentencing of Mitton, with the prosecution arguing for a substantial prison term to reflect the severity of the offence, while the defence sought a more lenient sentence, highlighting mitigating factors such as the defendant's plea of guilty, remorse, drug addiction, mental illness, deprived background, homelessness, history of drug-induced psychosis, and special circumstances.

The legal issues before the court included the identification and weighing of aggravating and mitigating factors, the principles of general and specific deterrence, and the objective seriousness of the offence. The court had to consider the purposes of sentencing, including the need for deterrence, rehabilitation, and protection of society. Additionally, the court needed to apply the doctrine of instinctive synthesis to balance all relevant factors in arriving at an appropriate sentence.

In delivering its decision, the court acknowledged the seriousness of the offence, which warranted a significant custodial sentence. However, it also recognised the mitigating factors presented by the defence. The court found that while the aggravating factors, such as the breach of conditional liberty, were significant, they were balanced by the defendant's plea of guilty, expressed remorse, and his personal circumstances, including drug addiction, mental illness, deprived background, homelessness, and history of drug-induced psychosis. After careful consideration of all the factors, the court determined that a sentence of imprisonment was appropriate, resulting in a term of 4 years and 6 months, with a non-parole period of 2 years and 6 months.

Orders

Orders of the court

Imprisonment sentence of 4 years and 6 months with a non-parole period of 2 years and 6 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 Mitton [2024] NSWDC 105
Hearing dates:	31 January 2024
Date of orders:	31 January 2024
Decision date:	31 January 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Imprisonment sentence of 4 years and 6 months with a non-parole period of 2 years and 6 months
Catchwords:	CRIME — Violent offences — Wound with intent to cause grievous bodily harm SENTENCING — Aggravating factors — Breach of conditional liberty SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Specific deterrence — Form 1 offences — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Deprived background — Homelessness — History of drug induced psychosis — Special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Geddes v R (1936) 36 SR (NSW) 554 Nasrallah v R [2021] NSWCCA 207
Category:	Sentence
Parties:	Matthew James Mitton (offender) Public Prosecutions (NSW) (Crown)
Representation:	Solicitors: M Kwan solicitor for Legal Aid (NSW) (for the offender) A Kerr solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2022/385443