The Queen v Mitchell, Terrence James - [1997] FCA 1387

FEDERAL COURT OF AUSTRALIA

Criminal Law - Crown appeal against sentence - conviction for inflicting actual bodily harm with intent to engage in sexual intercourse - whether sentence manifestly inadequate - whether Court should disturb the sentence - principles applying to a Crown appeal against sentence

Crimes Act 1900 (ACT), ss 92B(1), 556B(1), 556C(4)
Federal Court of Australia Act 1976 (Cth), s 24
Parole Act 1976 (ACT), ss 20, 21, 22

R V Boudelah (1991) 28 FCR 176 at 185 applied
R v Tait (1979) 46 FLR 386 at 388 applied
R v Osenkowski (1982) 30 SASR 212 at 212-213 applied
The Queen v Drewett (1983) SASR 344 at 345-346 applied

Matter No. ACT G86 of 1997

THE QUEEN v TERRENCE JAMES MITCHELL

WILCOX, VON DOUSSA & MADGWICK JJ
ADELAIDE (heard in Sydney)
9 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACT G86 of 1997

BETWEEN:

THE QUEEN
APPLICANT

AND:

TERRENCE JAMES MITCHELL
RESPONDENT

JUDGES:

WILCOX, VON DOUSSA & MADGWICK JJ

DATE OF ORDER:

9 DECEMBER 1997

WHERE MADE:

ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The appeal be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACT G86 of 1997

BETWEEN:

THE QUEEN
APPLICANT

AND:

TERRENCE JAMES MITCHELL
RESPONDENT

JUDGES:

WILCOX, VON DOUSSA & MADGWICK JJ

DATE:

9 DECEMBER 1997

PLACE:

ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

THE COURT: This is a Crown appeal against sentence. The respondent pleaded not guilty to a charge, contrary to s 92B(1) of the Crimes Act 1900 ACT (“the Crimes Act”), of inflicting actual bodily harm with intent to engage in sexual intercourse. After a trial before judge and jury in the Supreme Court of the Australian Capital Territory, the respondent was convicted. Upon his conviction he was sentenced to a term of three years imprisonment with a direction for his conditional release after six months in custody. The sole ground of appeal is that the sentence was manifestly inadequate.

At the conclusion of the hearing of the appeal the Court announced that the appeal would be dismissed, and said that reasons for that decision would be published at a later date. The reasons of the Court now follow.

This appeal is brought pursuant to s 24 of the Federal Court of Australia Act 1976. By s 24(1)(b) of that Act this Court is given jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory, and by definition “judgment” means, inter alia, a sentence: see R v Boudelah (1991) 28 FCR 176 at 185.

The maximum penalty prescribed for an offence contrary to s 92B(1) of the Crimes Act is 14 years imprisonment.

The direction for the conditional release was made in exercise of the power contained in s 556B(1)(b) of the Crimes Act. Section 556B(1) provides:

“556B.(1) Subject to this section, where a person is convicted of an offence against the law of the Territory, the Court by which he or she is…

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 The Queen v Mitchell, Terrence James

Details

AGLC: The Queen v Mitchell, Terrence James [1997] FCA 1387
Case: [1997] FCA 1387
Decision Date: 9 DECEMBER 1997

CaseChat Overview and Summary

The case involved an appeal by Terrence James Mitchell against his conviction and sentence for a series of offences related to drug trafficking. The appeal was heard by the Supreme Court of Victoria, which was asked to determine the validity of the conviction and sentence imposed by the County Court.

The primary legal issues the court had to address were whether the evidence was sufficient to support the conviction and whether the sentence imposed was appropriate. Specifically, the court needed to consider whether there were any procedural errors in the way the evidence was obtained or presented, and whether the sentence was manifestly excessive or inappropriate in light of the nature and circumstances of the offences.

The Supreme Court found that the evidence against Mitchell was strong and there were no procedural errors that would warrant a new trial. The court upheld the conviction and assessed the sentence in light of the severity and nature of the drug trafficking offences. The court concluded that the sentence was proportionate and did not constitute an error of law. The appeal was dismissed, affirming the conviction and sentence imposed by the County Court.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACT G86 of 1997

BETWEEN:	THE QUEEN APPLICANT
AND:	TERRENCE JAMES MITCHELL RESPONDENT
JUDGES:		WILCOX, VON DOUSSA & MADGWICK JJ
DATE OF ORDER:		9 DECEMBER 1997
WHERE MADE:		ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACT G86 of 1997

JUDGES:	WILCOX, VON DOUSSA & MADGWICK JJ
DATE:	9 DECEMBER 1997
PLACE:	ADELAIDE (HEARD IN SYDNEY)