Mitchell v The Queen [1996] HCA 45

High Court of Australia Dawson, Toohey, Gaudron, McHugh and Gummow JJ Mitchell v The Queen (FC 96/005) [1996] HCA 45

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal that the appellant be not eligible for parole pursuant to s 40D(2a) of the Offenders Community Corrections Act 1963 WA and dismiss the appeal to that Court.

Cur adv vult

The Court delivered the following written judgment:—

5 March 1996 Dawson, Toohey, Gaudron, McHugh and Gummow JJ

On 8 September 1993, the appellant, who was then aged twenty-four, pleaded guilty to four counts of wilful murder, three counts of indecently interfering with a dead body by sexual penetration, and one count of sexual penetration of a child under thirteen years. These offences were committed early in the morning of 22 February 1993 and were attended by great cruelty and brutality. The appellant killed a woman and her three children, a son aged sixteen and two daughters aged five and seven years. The victims lived on a remote property situated at Greenough, Western Australia, where the crimes were committed.

On the same day, 8 September 1993, the appellant pleaded guilty to a charge of stealing $110 on 13 November 1991. Later, on 7 October 1993, the appellant pleaded guilty to two charges of armed robbery with threats of actual violence, of amounts totalling $1,290. These offences took place on 2 and 3 November 1991.

The appellant came up for sentence before a judge of the Supreme Court of Western Australia (Owen J). His Honour heard evidence in order to resolve a dispute concerning the amount of alcohol and drugs which had been consumed by the appellant before the events on the morning of 22 February 1993. Owen J accepted the evidence of the appellant that, from approximately 7 pm onwards on 21 February, he consumed six cans of full strength beer, thirty to forty cones of marijuana and three Surgam tablets (an anti-inflammatory, anti-rheumatic drug). Further, on two occasions during that evening, the appellant injected himself with about 0.9 grams of amphetamine.