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Court of Criminal Appeal 12 July 2010

Mitchell v R

[2010] NSWCCA 145

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER TRIAL COUNSEL INCOMPETENT

Citation: Mitchell v R [2010] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 12 July 2010
Judge(s): Beazley JA, Buddin J, Barr AJ

Background

The appellant pleaded guilty in the District Court to maliciously inflicting grievous bodily harm, following negotiations that resulted in the Crown not proceeding with the more serious charge of maliciously inflicting grievous bodily harm with intent. The offence arose from an unprovoked late-night assault outside a hotel in Murwillumbah, in which the appellant delivered at least four punches to the victim, causing him to fall and sustain severe head injuries, including brain swelling, skull fracture, and permanent cognitive deficits. The victim required CPR at the scene and spent nearly three weeks in intensive care.

The sentencing judge in the District Court imposed a sentence of three years imprisonment with a non-parole period of two years. The judge found the assault was unprovoked, explicitly rejected the appellant's claim that the victim had offered violence first, and identified the appellant's motive as family loyalty in response to the victim having allegedly struck the appellant's cousin earlier that evening.

The appellant sought leave to appeal against the sentence on multiple grounds, contending that the sentencing judge had made a series of errors in both the assessment of objective seriousness and the treatment of mitigating factors.

  • Whether the sentencing judge failed to properly assess the objective seriousness of the offence
  • Whether the sentencing judge failed to take into account relevant mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge failed to give practical effect to a finding of special circumstances in structuring the sentence
  • Whether the sentencing judge breached the principle in The Queen v De Simoni (1981) 147 CLR 383 by effectively sentencing for a more serious offence than that to which the appellant pleaded guilty
  • Whether trial counsel was incompetent, particularly in failing to adequately challenge expert neuropsychological evidence about the victim's injuries

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. Buddin J (with whom Beazley JA and Barr AJ agreed) rejected each ground in turn.

On the mitigating factors and objective seriousness grounds, the Court found that the sentencing judge had plainly engaged with the subjective case, describing it as "very impressive" and extending a 25 per cent discount for the guilty plea. The sentencing judge also found special circumstances, adjusting the ratio between the head sentence and non-parole period. The Court was not persuaded that any relevant mitigating factor had been overlooked or given insufficient weight.

On the De Simoni ground, the Court found no breach. The sentencing judge's remarks about the consequences of striking a person hard enough to cause them to fall were characterised as a legitimate observation about the foreseeable results of the appellant's conduct, not as sentencing for the more serious, uncharged offence of malicious GBH with intent.

On the incompetence of counsel ground, the Court acknowledged that counsel incompetence at sentencing could, in rare cases, warrant appellate intervention. It found, however, that this was not such a case. The decision not to challenge the expert neuropsychological evidence appeared to reflect a sound tactical judgment, since a challenge could have further emphasised the extent of the victim's disabilities and risked undermining the appellant's claim to the full utilitarian discount for the plea and any reduction for remorse. On manifest excess, the Court noted that the 25 per cent discount for a plea entered after a contested committal was "decidedly generous," and that the sentence fell within the legitimate range of the sentencing discretion given the number of blows and the severity of the injuries.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that instances of counsel incompetence sufficient to attract appellate intervention at sentencing are rare, and that a decision not to challenge expert evidence may reflect legitimate tactical judgment rather than incompetence.
  • A sentencing judge's observations about the foreseeable consequences of delivering hard blows that cause a victim to fall do not necessarily constitute a De Simoni error; such remarks may properly describe the nature of the conduct rather than treat the offender as guilty of a more serious uncharged offence.
  • In dismissing the appeal, the Court noted that a 25 per cent discount for a guilty plea entered only after a contested committal hearing was at the generous end of the range, consistent with the approach in R v Borkowski [2009] NSWCCA 102.
  • Comparative sentencing schedules have recognised limitations as appellate tools, particularly where the cases cited are dated or otherwise distinguishable from the offence under consideration.
  • No error was established in the sentencing judge's treatment of special circumstances simply because the judge stated reasons for varying the standard statutory proportion between head sentence and non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- R v Borkowski [2009] NSWCCA 102
- Dunn v R [2010] NSWCCA 128
- Nowak v R (2008) 183 A Crim R 526
- R v Cage [2006] NSWCCA 304
- R v Hunter [2010] NSWCCA 54
- R v McCullough [2009] NSWCCA 94
- R v McEvoy [2010] NSWCCA 110
- R v Mitchell and Gallagher (2007) 177 A Crim R 94
- R v Sutton [2004] NSWCCA 225
- Trad v R [2009] NSWCCA 56