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Court of Criminal Appeal 14 February 2000

Regina v Mitchell

[2000] NSWCCA 437

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE APPEAL

Citation: Regina v Mitchell [2000] NSWCCA 437
Court: New South Wales Court of Criminal Appeal
Date: 14 February 2000
Judge(s): Sully J; Carruthers AJ

Background

The appellant, a 35-year-old man with an extensive criminal history spanning 13 years, pleaded guilty in the Parramatta District Court to possessing housebreaking implements and break and enter with intent to commit a felony. Both offences were committed on 7 January 1998. A number of additional dishonesty and larceny matters were taken into account on Form 2.

Judge Luland sentenced the appellant to a fixed term of one year for the possession offence and, for the break and enter offence, a minimum term of three years followed by an additional term of one year. The court also took into account the appellant's longstanding drug addiction, which underpinned his offending history.

The appellant, who was unrepresented, sought leave to appeal against the sentences. He pointed to his personal circumstances, including a supportive family, his engagement with drug rehabilitation programs in custody, and a psychiatric report that had not been tendered at the original sentencing proceedings.

  • Whether the sentences imposed by the District Court contained any identifiable error in principle or in the exercise of the sentencing discretion.
  • Whether subjective circumstances, including the appellant's drug addiction, family support, and a prior psychiatric report, provided a basis to reduce the sentences on appeal.

Decision

The Court of Criminal Appeal characterised the appeal as an ad misericordiam application, meaning a plea directed at the mercy of the court rather than an identification of legal error. The appellant's personal circumstances, while genuinely sympathetic, did not establish any error in the sentencing exercise.

The Court considered a 1996 psychiatric report by Dr Alex Sharah, which had not been before Judge Luland. The report referenced a serious motor vehicle accident in 1995 that caused the appellant orthopaedic injuries and some degree of brain damage. However, the Court noted that the report was over three years old and that the appellant's drug-related criminal record was already well established before the accident occurred. The Court also observed that the report had apparently not been tendered at first instance for forensic reasons, and expressed doubt that its tender would have produced a more lenient outcome.

Carruthers AJ concluded that Judge Luland's sentences were, if anything, at the lower end of the available discretionary range, given the appellant's extensive criminal history and the seriousness of the charges and Form 2 matters. No error in the sentencing process was established, and the Court held that interference with the sentences would be inconsistent with well-established sentencing principles. The appeal was accordingly dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An appeal against sentence must identify error in the sentencing process or reasoning; sympathy for the appellant's personal circumstances is not, by itself, a basis for appellate intervention.
  • No error was established where the original sentences fell at the lower end of the available discretionary range, having regard to the offender's criminal history and the gravity of the offences.
  • A psychiatric report not tendered at first instance did not compel the appellate court to intervene, particularly where the report was several years out of date and had apparently been withheld at the original hearing for forensic reasons.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that consistency with established sentencing principles takes precedence over mercy-based pleas, even where an offender presents genuine rehabilitative efforts during custody.
  • The Court confirmed that a longstanding addiction to narcotic substances, while relevant context, does not of itself require the imposition of a more lenient sentence where the offending history is extensive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break and enter with intent to commit a felony, maximum 14 years)
- Crimes Act 1900 (NSW), s 114(1)(B) (possessing housebreaking implements, maximum 7 years)

Cases cited: No cases were cited in the judgment.