Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mitchell v R [2014] NSWCCA 63 Hearing dates: 4 April 2014 Decision date: 17 April 2014 Before: R A Hulme J at [1] Davies J at [26] Adamson J at [27] Decision: 1. Extension of time in which to apply for leave to appeal granted. 2. Leave to appeal granted. 3. Appeal allowed. 4. Sentence imposed in the District Court on 27 March 2013 quashed. 5. In lieu, sentenced to imprisonment comprising a non-parole period of 1 year and a balance of the term of the sentence of 10 months. The sentence is to date from 12 September 2012. The non-parole period expired on 11 September 2013 and the total term will expire on 11 July 2014. Catchwords: CRIMINAL LAW - appeal against sentence - applicant not at fault for delay in bringing application for leave to appeal - application for extension of time granted - finding that objective seriousness was in the "lower end of the range" warranted a lesser sentence - applicant's sentence should be higher than co-offenders in proportion to greater moral culpability and less favourable subjective features - leave to appeal granted - appeal allowed Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Lowe v The Queen [1984] HCA 46; 154 CLR 606 Mitchell v R; Mitchell v R [2013] NSWCCA 318 Category: Principal judgment Parties: Allan James Mitchell (Applicant) Regina (Respondent) Representation: Counsel: Mr D Dalton SC (Applicant) Ms H Wilson SC (Crown) Solicitors: The Law Company Solicitor for Public Prosecutions File Number(s): 2012/284907 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-03-27 00:00:00 Before: Robison DCJ File Number(s): 2012/284907 Judgment 1R A HULME J: Allan James Mitchell ("the applicant") applies for an extension of time in which to seek leave to appeal against a sentence imposed upon him by his Honour Judge Robison in the District Court at Moree on 27 March 2013. 2The applicant pleaded guilty to an offence of break and enter with intent to steal in circumstances of aggravation, namely that he was in company with two other persons (his younger brothers). He was sentenced to imprisonment for 3 years with a non-parole period of 2 years dating from 12 September 2012. In respect of this sentence, the applicant becomes due for release on parole upon the expiration of the non-parole period on 11 September 2014 (but he is serving other sentences I will refer to later). 3The offence is contrary to s 113(2) of the Crimes Act 1900 (NSW) and the prescribed maximum penalty is imprisonment for 14 years. 4Taken into account at the applicant's request were two further offences listed on a Form 1 document: larceny and take and drive a conveyance. Extension of time 5The applicant filed a Notice of Intention to Apply for Leave to Appeal but it expired before the applications for leave to appeal and for an extension of time were filed on 30 January 2014. 6The applicant is legally aided. It was necessary to have counsel's advice that the proposed appeal had merit before it could proceed. The reason advanced for the matter being out of time is stated to be: "Counsel advised that, given the Applicant's brothers the two co-accused's appeal had been set down for hearing, it was advisable to await the determination of their matters before determining the question for merit for the applicant". It is said that it was through oversight that the Notice of Intention to Apply for Leave to Appeal was allowed to lapse. 7The more desirable course would have been for the applicant's matter to be brought on in a more timely fashion and for it to be heard and determined at the same time, and by the same bench, as the co-offenders' appeal. Nevertheless, there is nothing to suggest that the applicant himself was at fault and so I propose that an extension of time be granted. Facts 8The applicant's younger brothers, Michael Mitchell and Paul Mitchell were also sentenced by Robison DCJ on the same occasion. In my judgment in the determination of their appeals to this Court (Mitchell v R; Mitchell v R [2013] NSWCCA 318) I set out the facts as follows (with some additional matters specifically relevant to the present applicant interpolated): "[7] Michael Mitchell was aged 19 at the time of the offences and Paul Mitchell was aged 22. Together with their brother Alan, aged 40, they set out on a journey from Tumut to Queensland, ostensibly for Alan to seek employment opportunities. [8] On 11 September 2012, on the Newell Highway near Gilgandra they stopped at the access road to a rural property where a work vehicle was parked. Together they stole a tool box from the rear of the vehicle. It contained two chainsaws and various other tools and implements, altogether worth about $1250. I interpolate that these items were ultimately recovered. This constituted the offence of larceny that was taken into account. [9] The offenders continued their journey north and when about 40km south of Narrabri their vehicle broke down. They eventually managed to get a lift into Narrabri. At some point that night they were walking past the premises of an audio-electronics business. They noticed a Toyota Landcruiser parked in the yard. They entered the yard where Alan Mitchell broke into and started this vehicle. The applicants got in and the trio proceeded back to where their car had broken down. The car was towed back into Narrabri and the stolen car was dumped on the outskirts of the town. The applicants being passengers in the stolen car constituted the other offence that was taken into account. [Alan Mitchell was the driver and this constituted his offence of taking and driving a vehicle without the owner's consent.] [10] The offenders then decided to return to the audio-electronics business in order to break in and steal tools and music equipment. They entered through a hole in the fence earlier made by Paul Mitchell. They forced open a garage door. Michael and Paul Mitchell entered the building with the intention of stealing but an alarm was activated and all three fled the scene. [11] The three offenders were arrested on the morning of 12 September 2012. They were taken to the Narrabri police station where it is said that they were co-operative with investigators and made full admissions. [12] Compensation was sought by the prosecution for the damage occasioned to the stolen car. Payment was proffered by way of a solicitor's trust account cheque at the sentence hearing. [The money was derived from the proceeds of sale of Alan Mitchell's vehicle.] [13] In assessing the seriousness of the primary offence (the aggravated break and enter with intent) the judge noted that there was 'no real degree of planning' and that it was 'somewhat spontaneous'. His Honour posed for himself the question 'whose idea was it' and answered it by saying that, because of his age, Alan Mitchell had to take 'considerable responsibility'. [14] The judge concluded that the objective seriousness of the primary offence was 'within the lower end of the range'. This had been conceded by the solicitor appearing for the Crown." Personal circumstances of the applicant 9The applicant was aged 40 at the time of sentence. The learned sentencing judge described him as "no stranger to the criminal justice system". He has a very lengthy criminal history that commenced in 1986 in the Children's Court. There have been numerous offences of dishonesty, including car theft and the breaking or otherwise entering of premises and stealing. But he has also diversified into the cultivation and supply of drugs, escaping from lawful custody, assault (including the occasioning of actual bodily harm), intimidation, damaging property, and possessing unregistered or unauthorised firearms. There are many driving offences as well. He has been imprisoned on multiple occasions. In fact, a considerable part of the applicant's life for the past 20 years has been spent in gaol. Parole revocation is also a feature of the record. 10The applicant left school at the age of 14 or 15. He then obtained occasional seasonal work. The judge noted that the applicant had undertaken a number of labouring jobs in the past and was a qualified floor and wall tiler. He said in his evidence that he sustained a back injury from an early age and subsequently suffered from severe pain. The judge also noted that the applicant spoke of having had problems with drugs in the past and had been diagnosed with Hepatitis C which he had acquired during an earlier period in custody. 11The judge also noted that the applicant had described having a very strict upbringing that included the infliction of corporal punishment in a severe way. His Honour had no doubt that the circumstances of the applicant's younger years were "not easy for him". Personal circumstances of the co-offenders 12Michael Mitchell was aged 20 at the time of sentence and was single with no dependents. He was an itinerant tree surgeon. He had a criminal history consisting of a number of matters dealt with in the Children's Court and one matter in the Local Court disposed of by way of fine in March 2012. He had not previously been held in custody. 13Paul Mitchell was aged 22 and was also single with no dependents. He too was an itinerant worker. He had a criminal history of similar dimensions to that of his younger brother. It was his first time in custody as well. 14Robison DCJ was mindful of the relative youth of the two co-offenders. He described them as being "very young men" who had "their whole lives ahead of them" and that "rehabilitation [was] in their hands". His Honour allowed for a longer parole period on the basis that this would "provide a better opportunity for eventual reintegration into society in the hope that their long term futures can be addressed by appropriate forms of counselling and rehabilitation under supervision". Matters applicable to each offender 15The judge was mindful of the need to take into account the additional offences on the Form 1 document in relation to each of the offenders, noting that he "should not pay mere lip service" to them. 16The judge was also mindful of the principle of parity, given that he was sentencing the three offenders in the one sentencing exercise. 17Each of the offenders had pleaded guilty at an early stage and the judge reduced their sentences by 25 per cent to reflect the utilitarian value of those pleas. Disposition of the appeal of the co-offenders 18The appeal in Mitchell v R; Mitchell v R was allowed on the basis that the sentences were manifestly excessive. The primary offence was found by the judge to be "at the lower end of the range" of objective seriousness. It was noted on the appeal that it, and the offences taken into account, were committed by young men who had not previously experienced a custodial sentence. Sentencing statistics, whilst not determinative, were regarded as providing broad support for the conclusion of manifest excess. 19The view was taken that the appropriate starting point for the sentences of the co-offenders should have been one year, rather than the three years adopted at first instance. Reducing that by 25 per cent yielded at total term of 9 months. The finding of special circumstances made by the primary judge was maintained. In the end the co-offenders were re-sentenced to imprisonment for a period of 9 months with a non-parole period of 6 months. Grounds of appeal 1. The sentence imposed on the applicant was manifestly excessive. 2. Given the sentences imposed upon his two co-offenders as a result of their successful appeals (Mitchell v R; Mitchell v R [2013] NSWCCA 318) the applicant has a justifiable sense of grievance: Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610. 20In the applicant's case, in contrast to the case of his co-offenders, the argument in support of the ground of manifest excess is less powerful. He could not call in aid youth or lack of a significant record of previous convictions. While the primary judge found that the offence was at the lower end of the range, it needs to be borne in mind in the applicant's case that he was the senior and more influential participant out of the three. Having regard to his prior record, specific deterrence required particular emphasis. General deterrence was obviously important as well. 21There is force in the submission advanced by the Crown that the yardstick against which the sentence falls to be assessed is not the sentencing statistics but the maximum penalty provided by Parliament of 14 years. In addition, there is the need to reflect in the sentence an appropriate increment for the offences taken into account. 22Nevertheless, having regard to the finding of lower level objective seriousness made by the primary judge, a matter conceded by the Crown in the Court below and not challenged here, I am of the view that the starting point of four years before taking into account the utilitarian value of the applicant's early plea of guilty is manifestly excessive. 23The upholding of ground 1 means that ground 2 does not require determination but it is necessary in re-sentencing to bear in mind the sentences imposed by this Court upon the two co-offenders. It was not contended that the applicant should receive the same sentence as they did. It was conceded that it should be higher by an appropriate proportion to reflect his greater moral culpability and less favourable subjective features. I propose a sentence of 2 years 6 months that will be reduced by 25 percent on account of the applicant's early plea of guilty. The non-parole will be reduced to reflect the primary judge's finding of special circumstances. There will be some rounding to achieve a practical outcome. 24Finally, the applicant, like his brothers, was subsequently sentenced for a variety of similar offences to substantial terms of imprisonment. He is now the subject of sentences that see him ineligible for parole release until 11 March 2017 with the total term not expiring until 11 September 2018. Those sentences have no bearing upon the disposition of the present application but I note that the degree to which they were made partially concurrent has the effect that the applicant has only been in custody for the present matter alone for a period of 10 months. Orders 25I propose the following orders: 1. Extension of time in which to apply for leave to appeal granted. 2. Leave to appeal granted. 3. Appeal allowed. 4. Sentence imposed in the District Court on 27 March 2013 quashed. 5. In lieu, sentenced to imprisonment comprising a non-parole period of 1 year and a balance of the term of the sentence of 10 months. The sentence is to date from 12 September 2012. The non-parole period expired on 11 September 2013 and the total term will expire on 11 July 2014. 26DAVIES J: I agree with R A Hulme J. 27ADAMSON J: I agree with R A Hulme J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2014