R v Jarrod Mitchell [2016] NSWSC 1855

Supreme Court New South Wales

Medium Neutral Citation: R v Jarrod Mitchell [2016] NSWSC 1855 Hearing dates: 12 & 13 December 2016 Date of orders: 21 December 2016 Decision date: 21 December 2016 Jurisdiction: Common Law Before: Adams J Decision: The offender is sentenced to an overall term of 3 years and 6 months imprisonment commencing on 1 March 2016 with a non-parole period of 2 years ending on 28 February 2018. Catchwords: Sentencing – Manslaughter – Excessive self defence Legislation Cited: s 44, Crimes (Sentencing Review) Act 1999 (NSW) Category: Sentence Parties: The Queen Jarrod Mitchell Representation: Counsel: P E Barrett (Crown) A Moen (Defendant)

Solicitors: Office of the Director of Public Prosecutions (Crown) Mallinson + Rake Lawyers (Defendant) File Number(s): 2015/87829 Publication restriction: None

Judgment

Introduction 1. On 23 March 2015 at Rosebery Jarrod Mitchell killed Alex Bargiatakis. (For ease of reference, I refer to the offender, the victim and the other witnesses – all of whom were young men – by their first names, which is how they spoke of each other. Of course, I mean no disrespect by so doing.) Jarrod was charged on that date with murder, for which he was committed for trial. Ultimately, he was arraigned on an indictment charging him with murder and, in the alternative, with the offence of manslaughter. On 12 December 2016 he pleaded not guilty to the charge of murder but guilty to the charge of manslaughter. The Crown accepted this plea in full discharge of the indictment. The basis for the Crown's acceptance of the plea is its acceptance (in the circumstances, entirely justified) that Jarrod killed Alex in self-defence, using force which he believed was necessary to defend himself but, which was, as it turned out, excessive. As will be clear from the circumstances in which Alex came to be killed, it may be doubted that the force used by Jarrod, which tragically resulted in Alex' death, was indeed unreasonable and I have considered whether, in light of his evidence about what happened, which was not the subject of significant dispute, the plea should be allowed to stand. However, this is a matter which Jarrod is entitled to admit by virtue of his plea and, accordingly, although I have worrying doubts about the question, I have decided that it is appropriate to permit the plea to stand. It follows that Jarrod must be sentenced on the basis that, indeed, the force he used was, in all the circumstances, unreasonably excessive as an objective matter, although he thought it was necessary to defend himself from Alex' attack upon him. 2. Jarrod was arrested on 23 March 2015 and remained in custody until 27 July 2015 when he was granted bail, remaining on bail until 3 July 2016 when he was returned to custody and he has been in custody ever since. It is agreed that the entire period of his custody, a total of 296 days, must be taken into account, one way or another, in his sentence. 3. On 14 November 2016 the offer was made to plead guilty to manslaughter in satisfaction of the indictment. I intend to allow a discount in the order of 10% for this plea, which avoided the need for a trial that may well have taken two weeks or so.