At 10.30 pm on 2 December 2012 the appellant, Kerryn Mitchell, telephoned the complainant leaving two abusive voice messages, swearing and blaming him for a protection order that had been in force against her for five years at that time. Later that night at about 11.27 pm, she went to the victim’s address at a suburban house, taking a tyre iron. In the house were the victim, his partner and three visiting friends. She walked around the house and smashed most of the accessible windows with the tyre iron, one in the laundry, three in the kitchen and two in the dining room. She then smashed two of the outside lights on the garage before moving to the front door. At the front door, she smashed a large glass panel and entered the house through the broken glass. She stood for a short time in the hallway, yelling for the victim in a threatening manner, swearing and shouting abuse at the occupants. When told by one of the victim’s friends that he was not at home, she walked out of the house. On the way out, she hit the letterbox with the tyre iron. She proceeded to sit down, drop the tyre iron and waited for the police to arrive.
She pleaded guilty to two counts, one of intentional damage under s 269(2)(a) of the Crimes Act 1961, and the other of breach of a protection order under ss 19(2)(c) and 49 of the Domestic Violence Act 1995. She had previously been discharged after argument on a count of aggravated burglary. She was sentenced by Judge Becroft in the District Court at Wellington on 10 September 2013 to two years and one month’s imprisonment.[1] He also ordered reparation of $2,863.41. In this appeal the Judge’s reasoning is criticised. It is argued that the decision is inconsistent with other cases, and it is submitted that the sentence is manifestly excessive.

The history leading to this appeal

[1]R v Mitchell DC Wellington CRI-2012-032-3561, 10 September 2013.

Ms Mitchell is 45 years old. She had been in a relationship with the victim which ended in approximately 2005. A protection order had initially been obtained on 24 April 2008, and in May 2010 was extended to protect the victim’s partner. Since then, and before this particular offending, there had been nine previous separate breaches of the protection order. There had been previous sentences of imprisonment, although none for more than three months. She had appeared in the District Court at Lower Hutt before Judge Mill on 2 July 2012 on a number of charges including three threatening…

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.

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Details

AGLC: Mitchell v R [2013] NZCA 583
Case: [2013] NZCA 583
Decision Date: 27 November 2013 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Kerryn Mitchell, appealed against her conviction and sentence for intentionally causing damage and breaching a protection order. Mitchell had a history of breaching a protection order against her former partner, culminating in the events of 2 December 2012, when she smashed windows and a letterbox at her former partner's home. Mitchell was sentenced to two years and one month's imprisonment, which she argued was manifestly excessive. The primary legal issue was whether the sentence imposed was disproportionate and inconsistent with other cases. The Court of Appeal considered the culpability of the offences, the history of the relationship, and the impact on the victims.

The Court of Appeal found that the sentence was proportionate and consistent with other cases. They held that the intentional damage and breach of the protection order were extremely serious, given the history of offending and the profound impact on the victims. The Court found that the starting point and uplift applied by the sentencing judge were justified. The premeditated nature of the actions, the extreme and costly damage to domestic property, the grave effect on the victims, and the history of intimidation and breaches of court orders all contributed to the severity of the sentence. The Court also noted that the discount for psychiatric factors was generous, given the lack of a clear psychiatric diagnosis. Consequently, the appeal was dismissed.

Orders