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Court of Criminal Appeal 12 December 2013

Mitchell v R; Mitchell v R

[2013] NSWCCA 318

Theft & property
CRIMINAL LAW SENTENCE APPEAL MANIFEST EXCESS LOW RANGE OF SERIOUSNESS YOUNG ADULT OFFENDERS

Citation: Mitchell v R; Mitchell v R [2013] NSWCCA 318
Court: Court of Criminal Appeal
Date: 12 December 2013
Judge(s): Ward JA, Harrison J, R A Hulme J

Background

Two brothers, aged 19 and 22, were convicted of aggravated break and enter with intent to steal, committed in company with a third sibling. The offending arose from a spontaneous decision late one night near Narrabri, where the group had become stranded after their vehicle broke down. They entered the yard of an audio-electronics business intending to steal tools and music equipment, but fled when an alarm activated. Two additional offences (larceny of tools from a work vehicle and being a passenger in a stolen car) were taken into account on Form 1 documents.

The District Court at Moree sentenced each brother to imprisonment for 2 years 3 months, with a non-parole period of 1 year 3 months, commencing 12 September 2012. Both applicants had prior criminal histories dealt with by way of fines and bonds, and neither had previously served a custodial sentence. They appealed to the Court of Criminal Appeal, principally contending the sentences were manifestly excessive.

Legal Issues

  • Whether the sentencing judge's starting point of 3 years (before a 25 per cent guilty plea discount) was too high
  • Whether the judge failed to consider alternatives to full-time imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the judge failed to apply the three-stage sentencing process required once a full-time custodial sentence is determined to be necessary
  • Whether the sentences ultimately imposed were manifestly excessive

Decision

Grounds 2 and 3: The Court found no merit in these grounds. The applicants had not invited the sentencing judge to consider anything other than full-time imprisonment, so no error arose from the judge's failure to consider non-custodial alternatives or a staged sentencing process.

Ground 4 (Manifest Excess): R A Hulme J, with Ward JA and Harrison J agreeing, held that sentences of 2 years 3 months (reduced from a 3-year starting point) were manifestly excessive for offences at the lower end of objective seriousness, committed by first-time custodial offenders aged 19 and 22. The Court drew on Judicial Commission sentencing statistics as broad (though not determinative) support for that conclusion, noting the median total sentence for comparable guilty plea cases was 3 years, but the median for offenders aged 18 to 20 was only 2 years, and that approximately a third of cases did not result in full-time custody at all.

Ground 1 (Starting Point): The Court found it unnecessary to resolve this ground separately, as the starting point question was subsumed within the manifest excess analysis. The Court considered the appropriate starting point should have been 1 year, yielding a total sentence of 9 months after the 25 per cent guilty plea reduction. The primary judge's finding of special circumstances warranting a reduced non-parole period proportion was maintained.

The Court also noted that both applicants had subsequently received substantial custodial sentences in the District Court at Wagga Wagga for separate similar offending, meaning they would remain in custody regardless of the outcome of this appeal.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court on 27 March 2013 quashed
  • In lieu, each offender sentenced to imprisonment comprising a non-parole period of 6 months with a balance of term of 3 months, dating from 12 September 2012, with release on parole directed upon expiry of the non-parole period on 11 March 2013 (total term expired 11 June 2013)

Key Takeaways

  • For an offence found to be at the lower end of objective seriousness, a 3-year starting point was manifestly excessive when the offenders were young adults with no prior custodial experience, leading the Court of Criminal Appeal to substitute a 1-year starting point.
  • Judicial Commission sentencing statistics are not determinative of the appropriate range but may provide broad contextual support when assessing a claim of manifest excess, consistent with the High Court's caution in Hili v The Queen.
  • A sentencing judge's failure to consider alternatives to full-time imprisonment does not constitute error where the parties themselves did not raise that alternative before the sentencing court.
  • The existence of separate, concurrent custodial sentences being served by the applicants did not affect the Court's obligation to correct an error in the sentences under appeal; those sentences were treated as irrelevant to the disposition of the appeal.
  • Where special circumstances warranting a reduced non-parole period proportion have been found by the sentencing judge, an appellate court resentencing on manifest excess grounds may maintain that finding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520