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Local Court 14 February 2008

Police v Mitchell

[2008] NSWLC 5

Assault & violenceDomestic & family violencePublic order & justice offences
SENTENCING ASSAULT POLICE PRINCIPLES OFFENDER SHOT BY POLICE EXTRA CURIAL PUNISHMENT SPECIAL CIRCUMSTANCES FOUND

Citation: Police v Mitchell [2008] NSWLC 5
Court: Local Court of New South Wales (Wagga Wagga)
Date: 14 February 2008
Judge(s): Magistrate P Dare

Background

The offender, William John Mitchell, appeared for sentence on a large number of charges arising from several separate incidents between September and December 2007. The charges included multiple contraventions of an apprehended domestic violence order (ADVO), malicious damage, intimidation, affray, use of a weapon to prevent lawful detention, and six counts of assault on police officers in the execution of their duty.

The offending occurred against a background of domestic violence involving the offender and the mother of his children, Ms Redford. Despite the existence of ADVO conditions prohibiting him from approaching Ms Redford within 12 hours of consuming alcohol, the offender repeatedly attended her home while intoxicated. He had previously been dealt with by way of bonds in April 2007 for earlier offending, and those bonds remained on foot at the time of these matters.

The December 2007 events were the most serious. After further domestic unrest at Ms Redford's home, police attended and a confrontation followed in which the offender wielded a knife. During that incident, the offender was shot by police. The sentencing court had to consider the significance of that gunshot wound when determining an appropriate sentence for all matters before it.

  • Whether the offender's prior bonds should be revoked and what re-sentence should follow
  • How to approach sentencing across multiple charges arising from separate incidents, including the principles of accumulation and totality
  • Whether being shot by police during the commission of the offence constituted extra-curial punishment (that is, punishment suffered outside the formal sentencing process) warranting a reduction in sentence
  • Whether special circumstances existed justifying a variation to the standard ratio of non-parole period to head sentence under the relevant sentencing legislation

Decision

Magistrate Dare revoked the three bonds made in April 2007, finding the offender had breached their conditions by committing further offences and by failing to comply with the directions of the Probation and Parole Service. The court was satisfied that no penalty other than imprisonment was appropriate, having considered all available alternatives and the purposes of sentencing under the legislation.

On the question of extra-curial punishment, the court accepted that being shot by police constituted a form of punishment suffered outside the formal sentencing process. This is a recognised principle in NSW sentencing law: where an offender has already suffered significant consequences as a direct result of the offence, a court may treat that as a mitigating factor and reduce the sentence accordingly, though it does not eliminate the need for a custodial term.

The court also found that special circumstances existed, justifying a departure from the standard sentencing ratio. Under the Crimes (Sentencing Procedure) Act, a sentence of imprisonment ordinarily carries a non-parole period equal to at least three-quarters of the head sentence, but a court may find "special circumstances" to set a longer parole period. Here, the number of separate matters and the cumulative nature of the sentences warranted that adjustment.

The court applied the principles of both accumulation (requiring separate sentences for separate incidents to reflect the full criminality) and totality (ensuring the combined sentence is not disproportionate to the overall offending when viewed as a whole). The report from Probation and Parole described the offender's response to supervision as superficial and noted he had failed to take up repeated opportunities to address alcohol abuse and domestic violence issues.

Orders Made

  • The three bonds made on 16 April 2007 were revoked under s 98(2)(c) of the Crimes (Sentencing Procedure) Act 1999
  • The offender was re-sentenced on the revoked bonds to fixed terms of imprisonment of 6 months, commencing 14 February 2008 and expiring 13 August 2008 (fixed terms because they were subsumed within sentences already imposed)
  • The application to vary the interim ADVO orders was dismissed
  • The original interim ADVO orders were made final orders for 2 years from 14 February 2008

Note: The full sentencing orders for all charges on the principal matters (H-31446413, H-32724978, H-32167132, and H-32701951) were not fully reproduced in the text provided.

Key Takeaways

  • Being shot by police in the course of an offence can constitute extra-curial punishment, recognised as a mitigating factor in NSW sentencing, though it does not displace the need for imprisonment where the offending is serious.
  • Where an offender faces multiple sets of charges arising from separate incidents, the principles of both accumulation and totality must be applied together: separate incidents warrant separate sentences, but the aggregate must remain proportionate to the overall criminality.
  • Special circumstances justifying a departure from the standard non-parole period ratio can arise from the structure of multiple cumulative sentences, not only from rehabilitation prospects alone.
  • Revocation of a bond under s 98(2)(c) of the Crimes (Sentencing Procedure) Act 1999 follows where the offender commits further offences during the bond period or fails to comply with supervision directions, and the court must then re-sentence by reference to the full purposes of sentencing under s 3A.
  • Compliance by protected persons with ADVO conditions is treated by the court as a matter of public importance: the court noted that protected persons cannot simply choose when to observe court orders made for their protection.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2), 50, 51, 98(2)(c), 99(1)(a)

Cases
- Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196; [2002] NSWCCA 515
- Cahyadi v R (2007) 168 A Crim R 41
- Hoare v The Queen (1989) 167 CLR 348
- Pearce v The Queen 194 CLR 610
- R v Allpass (1993) 72 A Crim R 561
- R v Carberry & Weldon (2002) 136 A Crim R 55; [2002] NSWCCA 475
- R v Clissold [2002] NSWCCA 356
- R v Close (1992) 31 NSWLR 743
- R v Daetz (2003) 139 A Crim R 398
- R v Doan (2000) 50 NSWLR 115
- R v Dodd (1991) 57 A Crim R 349
- R v El-Hayek (2004) 144 A Crim R 90
- R v Hamilton (1993) 66 A Crim R 575
- R v Thomson and Holten (2000) 49 NSWLR 383
- R v Wallace [2007] NSWCCA 63
- Regina v Astill (No 2) (1992) 64 A Crim R 289
- Regina v King (2004) 150 A Crim R 409
- Regina v MA (2004) 145 A Crim R 434
- Regina v Newman & Simpson (2004) 145 A Crim R 361
- Regina v Nguyen [2007] NSWCCA 94
- Vaovasa v R [2007] NSWCCA 253
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Young v R [2007] NSWCCA 114