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R v Mitchell

R v Mitchell

Case [2018] NZHC 1112 18 May 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-2810

CRI-2017-004-2621 [2018] NZHC 1112

THE QUEEN

v

COLIN JACK MITCHELL

Hearing: 18 May 2018

Counsel:

KA Lummis and T Bellingham for Crown MW Ryan and JM Hudson for defendant

Sentenced

18 May 2018

SENTENCING NOTES OF FITZGERALD J

Solicitors: Meredith Connell, Auckland

To:M Ryan, Auckland J Hudson, Auckland

R v Mitchell [2018] NZHC 1112 [18 May 2018]

Introduction

[1] Mr Mitchell, you appear today for sentence on six counts in respect of which you were unanimously convicted by a jury in March 2018. As you have heard, there are three counts relating to offending you committed in 2017:

(a)Abduction with intent to have sexual connection, which has a maximum of 14 years’ imprisonment;

(b)Wounding with intent to cause grievous bodily harm, which has a maximum of 14 years’ imprisonment; and

(c)Assault with intent to commit sexual violation, which carries a maximum of 10 years’ imprisonment.

[2] There are a further three counts relating to offending in 1992, each of which carries a maximum sentence of 14 years’ imprisonment under the Crimes Act as it stood in 1992. They are:

(a)Abduction with intent to have sexual intercourse;

(b)Sexual violation through unlawful sexual connection; and

(c)Rape.

[3] As you have heard and you are aware that, notwithstanding those maximum finite sentences, the Crown says that an indefinite sentence of preventive detention is a necessary response to your offending.

[4] In considering the appropriate sentence today, I will first outline the relevant facts of your offending. These will be matters with which you, and many of those here in Court today, are familiar. However, it is also important that I summarise the factual background, so that the broader community is aware of the basis upon which I am sentencing you today.

The offending

The 2017 charges

[5]I begin by briefly outlining your 2017 offending.

[6] The victim, Ms F, had been watching the Auckland Pride Parade in Ponsonby on the evening of 25 February 2017. She had been drinking alcohol that evening, which made her vulnerable to your actions. After her friends went on to a bar on Karangahape Road, she remained outside for a time, and then in the early hours of 26 February 2017, began to walk towards her home. This took her along Great North Road in Grey Lynn. CCTV footage showed her ultimately walking alone, with few or no people around her.

[7] You were out driving in the area. At some point along Great North Road, Ms F got into your car — it is not clear on what basis she did so; for example, whether you forced her into your car, or perhaps enticed her with an offer of a ride home. Ms F does not recall these events. Suffice to say that, between getting into your car and getting out of the car, the jury was satisfied that you had unlawfully taken her away, without her consent,…

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 Mitchell

Details

AGLC: R v Mitchell [2018] NZHC 1112
Case: [2018] NZHC 1112
Decision Date: 18 May 2018

CaseChat Overview and Summary

Colin Jack Mitchell was convicted on six counts by a jury in March 2018. The counts were split between two sets of offences, three relating to events in 2017 and three relating to events in 1992. The court was required to decide on the appropriate sentence for each set of offences, and whether the sentence should be a finite sentence or a sentence of preventive detention. The court found that a sentence of preventive detention was appropriate for the 1992 and 2017 offending. The reasoning was that there was a pattern of serious sexual offending by Mitchell over a period of some decades. The court also found that there was a clear similarity between the nature of the offending, including its predatory nature, offending against strangers, seeking out vulnerable victims, associated violence, threats of further violence if instructions were not carried out, and in more recent times, removal of the victims to remote locations to prevent detection. The seriousness of the harm to the community, the information indicating a tendency to commit serious offences in the future, the absence of, or failure of, efforts by the offender to address the cause or causes of the offending, and the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society were also considered. The court found that a finite sentence would not provide adequate protection. The final orders were that Mitchell was sentenced to preventive detention on each charge, save for charge 4 (abduction in relation to Ms G), with a minimum period of imprisonment of 10 years. On charge 4, abduction of Ms G under s 208(b) of the Crimes Act as it stood in 1992, Mitchell was sentenced to five years’ imprisonment, to be served concurrently.

Orders