Regina v Mitchell

[2000] NSWCCA 103

CITATION:	Regina v Mitchell [2000] NSWCCA 103
FILE NUMBER(S):	CCA 60719/98
HEARING DATE(S):	20/03/00
JUDGMENT DATE:	20 March 2000
PARTIES :	Regina v Timothy Mervyn Mitchell
JUDGMENT OF:	Abadee J at 1; James J at 18

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/31/0479
LOWER COURT JUDICIAL OFFICER :	Ducker DCJ

COUNSEL :	M. C. Marien - Crown Appellant in Person
SOLICITORS:	S. E. O'Connor - DPP
DECISION:	Application for leave to appeal should be refused

IN THE COURT

OF CRIMINAL APPEAL

60719/98

ABADEE J
JAMES J


MONDAY 20 March 2000


REGINA v Timothy Mervyn MITCHELL


JUDGMENT

1    ABADEE J: The applicant, who appears in person, seeks leave to appeal against the severity of sentence by Ducker DCJ in the District Court on 4 November 1998. The applicant pleaded guilty to three offences arising out of the same incident that occurred on 27 July 1997. The three offences were that of: assault occasioning actual bodily harm, carrying a maximum penalty of five years penal servitude; assault, carrying a maximum penalty of two years imprisonment; and malicious damage, carrying five years penal servitude as a maximum sentence. 2    In respect of the assault occasioning actual bodily harm, the applicant was sentenced to a minimum term of two years three months and to an additional term of one year six months. In respect of the other two offences, the applicant was sentenced to concurrent fixed terms of eight months. 3    The facts, which his Honour stated as being very disturbing, are not challenged in this application. I take the facts from his Honour's reasons for sentence, they may be summarised as follows (p 35 of the Appeal Book):-

"On 27 July 1997, on which day the prisoner was celebrating his birthday at his home at 66 Lord Street, Laurieton, at about 9.30pm he became involved in an argument with the complainant, Kerrie Buchanan. This occurred on the front verandah of those premises. He took hold of her and pushed her bodily from the verandah. She fell from the verandah as a result of that onto the ground and there, he kicked her a number of times to the body while she was still on the ground. Ms Buchanan's boyfriend, one Timothy McCann, then approached the prisoner and endeavoured to pull him away from Ms Buchanan. The prisoner elbowed McCann in the head and punched him a number of times, also in the head. Ms Buchanan managed to regain her feet and attempted to push the prisoner away and it seems that she and McCann either got into her car or were in the process of doing so, when the prisoner took hold of an iron bar and started to bash in the bonnet of Ms Buchanan's car causing considerable damage to it. Ms Buchanan then alighted, perhaps foolishly, from her car and approached the prisoner and made an endeavour to take the iron bar away from him. She was unsuccessful and he struck her on the head with the iron bar, causing her to fall unconscious to the ground. Mr McCann then got out of the car and managed to drag Ms Buchanan into the car and thereafter he drove her to the Laurieton Police Station where the incident was reported.
Police attended the residence and spoke to the prisoner who denied having assaulted Ms Buchanan or Mr McCann, although he did admit damaging her car with the iron bar claiming that he had done it in retaliation after Ms Buchanan had hit the front of his car with a block of wood. The weapon used by the prisoner was a 1.5 metre length of one inch water pipe, and it was located at the side of the prisoner's home and taken into possession by the police. He was arrested and conveyed to Laurieton Police Station and refused to answer questions as was his right. He declined also, again as was his right, to make any handwritten statement. In the view of the police officers who effected the arrest, he was at the time, moderately affected by intoxicating liquor.
The unfortunate complainant upon being taken to the emergency department of the Port Macquarie Base Hospital, was found to be suffering from a clinically depressed skull fracture, just to the right of the midline of the forehead, a depressed fracture of the nasal bone, bruising to both sides of her face, a laceration requiring six sutures in her left forehead, tenderness over the anterior thighs and bruising across her lower thoracic region. She was admitted to hospital in considerable pain, but appears to have made a reasonable recovery from her physical injuries. Nonetheless, this attack was a brutal attack, using a potentially lethal weapon and inflicting serious injuries on a woman."

4    His Honour said on sentence (p 8) that this act upon the woman was an utterly cowardly contemptible use of a considerable amount of violence on a woman for no reason, and that the prisoner was somewhat irritated. 5    His Honour found that the assault occasioning actual bodily harm to the female victim was an extremely serious one, involving the use of an iron bar being a 1.5 metre length of one inch water pipe. He found that there was no justification and no provocation for the assault which his Honour described. He also referred the assault on the woman as being an extremely brutal one and one being characterised as being one of the ugliest offences occasioning actual bodily harm that he had encountered for some time. 6    His Honour found, as he was entitled to find, that the applicant's voluntary intoxication in the circumstances of the matter provided no reason for leniency. His Honour had regard to a number of other matters which he referred to in his sentencing remarks. These included matters relating to the question of leniency, the applicant's plea of guilty, the pre-sentence report. He rejected the applicant's submission that there should be a sentence by way of periodic detention and proceeded to give his reasons why such sentence would have been inappropriate. 7    There is nothing to suggest error in those reasons. The applicant's grounds of appeal set forth the applicant's reasons as to why he considers the sentence to be too harsh and excessive. 8    The applicant's further arguments are also set forth in letters 20 September 1999 and 29 December 1999. The court has had full regard to these written submissions and the court has had regard to a further argument that was advanced verbally before it, suggesting or challenging the description of the injuries that the female victim had suffered. As regards the matter of the description of the injuries suffered by the female victim, it seems to me that his Honour's findings cannot be challenged and they were based upon the evidence put before his Honour, including a report from the Port Macquarie Hospital. 9    I have had regard to all of the submissions, in addition to the submissions relating to an alleged claim of misdescription of the female victim's submissions. Turning briefly to the applicant's submissions that have been put in writing, it is appropriate for me to deal with them in the following way. As regards the suggestion that there perhaps was an incorrect finding as regards to the female victim's impact statement, it is sufficient for me to say that his Honour regarded it, as he said, as an unsatisfactory document and clearly he attached little or no weight to it. 10    Next, in the applicant's written submissions was that witnesses, particularly a witness Mr Dean, were unable to attend court on 14 October 1998 being the date of the initial plea, and the applicant's submission that had he known about such a person, he would not have pleaded guilty as he did on that date. The simple answer, it is by no means clear what Mr Dean would have had to say. Further, in any event, the applicant pleaded guilty on 14 October 1998 when he was legally represented. In fact, the proceedings were then adjourned when the matter was next before the court on 4 November and there was no application to withdraw the plea at a time when the applicant was represented by the same counsel. 11    Next, in the applicant's written submissions, the applicant submits that his Honour, after reviewing his criminal record, said that in the past it was possible that there had been some misconceived leniency and that misconceived leniency can occur. This observation of his Honour, in any event, was but a general remark in the course of reviewing the applicant's criminal antecedents. In any event, the general observation made by his Honour remains no more than what was said, namely, that misconceived leniency can occur. 12    Next, it was open for his Honour to conclude, for the reasons stated, that the applicant had, in fact, been extended a great deal of leniency by the courts in the past. In my view, for reasons that were stated, such was a proper conclusion. Indeed, the pre-sentence report also noted that previous submissions from the service had achieved no positive outcomes by the applicant's recidivism. There were matters of aggravation, in that the offences were committed in breach of a recognizance. In my view, as regards the matter of intoxication, a matter relied upon by the applicant, it was, in fact, open for his Honour to find that such voluntary intoxication in the circumstances did not provide a reason for leniency to be extended. 13    Next, the applicant makes complaint as to how his Honour dealt with the plea of guilty. In my view, there is nothing to suggest error in his Honour's approach to that matter or to the weight to be attached to it. The applicant also submitted that there was a newspaper article of the character attached to his written submissions which prejudiced him on sentencing day and caused his Honour to impose a more severe sentence than was appropriate. This bold submission has no merit. There is nothing in his Honour's sentencing reasons to suggest that it didprejudice his Honour or that his Honour had regard other than to the most proper materials when considering the appropriate sentence. 14    Again, a further argument is put that the applicant's legal representative did not put a satisfactory case for the applicant on sentence. It is appropriate that no particulars of such general allegation have been given. 15    It is appropriate for me to note that the counsel who appeared on the applicant's behalf at the sentencing hearing was an experienced counsel and, in fact, had appeared for the applicant when the initial plea of guilty had been taken on an earlier date. There is nothing to suggest that counsel did other than properly discharge counsel's duty in sentencing. 16    The applicant put an argument on the matter of rehabilitation. In my view, his Honour gave due and proper weight to the matter of rehabilitation, taking into account, as well as references that have been tendered in evidence, the applicant's employment, and that the applicant had a fresh personal relationship. His Honour also found special circumstances. 17    In my view, the applicant's submissions, including that orally advanced today, should be rejected. In my view, the sentence was, in all the circumstances, a proper exercise of his Honour's discretion. No error has been demonstrated. I would propose that, in the circumstances, the application for leave to appeal should be refused. 18    JAMES J: I agree with the judgment of the presiding judge. 19    ABADEE J: The order is that as proposed by me.

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