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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: NSW Court of Criminal Appeal
Date: 12 December 2013
Judges: Ward JA, Harrison J, R A Hulme J

Background

Two brothers, aged 19 and 22 at the time of the offences, were convicted of aggravated break and enter with intent to steal under s 113(2) of the Crimes Act 1900 (NSW). The aggravating circumstance was that they committed the offence in company with a third person, their older brother. The primary offence involved entering an audio-electronics business in Narrabri with the intention of stealing, though they fled when an alarm activated.

The sentencing judge in the District Court at Moree characterised the offence as falling within the lower end of the range of objective seriousness, noting the lack of real planning and the somewhat spontaneous nature of events. Two further offences, larceny of tools from a work vehicle and being a passenger in a stolen vehicle, were taken into account on Form 1 documents. Both applicants pleaded guilty at an early stage and received a 25 per cent reduction, resulting in sentences of 2 years 3 months with non-parole periods of 1 year 3 months.

Neither applicant had previously served a custodial sentence, despite some prior matters resolved in the Children's Court and Local Court by bonds, fines, and probation. Both applied to the Court of Criminal Appeal for leave to appeal, arguing primarily that the sentences were manifestly excessive.

  • Whether the notional starting point of three years before the guilty plea discount was too high for offences assessed as being at the lower end of objective seriousness
  • Whether the sentencing judge failed to consider alternatives to full-time imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge failed to apply the three-stage sentencing process once full-time custody was determined to be appropriate
  • Whether the sentences imposed were manifestly excessive in the circumstances

Decision

The Court of Criminal Appeal dismissed grounds two and three without difficulty. The applicants had not invited the sentencing judge to consider an alternative to full-time imprisonment, so no error arose from his failing to do so. The three-stage process ground was similarly without merit.

On the central question of manifest excess, R A Hulme J (with whom Ward JA and Harrison J agreed) concluded that sentences of 2 years 3 months, reduced from a three-year starting point, were manifestly excessive for offences at the lower end of objective seriousness committed by young men with no prior custodial experience. The sentencing statistics, while not determinative of the range, provided broad support for that conclusion. For offenders aged 18 to 20, the median full-time custodial sentence in comparable cases was two years, and approximately a third of cases did not attract full-time custody at all.

R A Hulme J held that the appropriate starting point should have been one year. After the 25 per cent guilty plea reduction, the correct total term was nine months, with the special circumstances finding made by the primary judge maintained to produce a shorter non-parole period relative to the balance of term.

Orders Made

In each case:

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

Key Takeaways

  • For an aggravated break and enter offence assessed as falling at the lower end of objective seriousness, a three-year starting point was manifestly excessive where the offenders were young adults with no prior custodial experience.
  • Sentencing statistics compiled by the Judicial Commission carry well-known limitations and are not determinative of the appropriate sentencing range, but the Court of Criminal Appeal treated them as capable of providing broad supporting context when assessing manifest excess.
  • A failure to consider alternatives to full-time imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 will only constitute error where the sentencing court was actually invited to do so; the absence of such an invitation meant no error arose here.
  • The fact that both applicants were subsequently serving substantial terms for later similar offences was noted but treated as entirely irrelevant to the disposition of the present appeal.
  • Where a finding of special circumstances has been made by the primary sentencing judge, an appellate court resentencing on the basis of manifest excess may maintain that finding rather than revisit it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44(2)

Cases:
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- R v Douar [2005] NSWCCA 455