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Court of Criminal Appeal 3 October 2014

Mitchell, Allan v R; Mitchell, Paul v R; Mitchell, Michael v R

[2014] NSWCCA 212

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE MULTIPLE OFFENCES AND OFFENDERS

Citation: Mitchell, Allan v R; Mitchell, Paul v R; Mitchell, Michael v R [2014] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 3 October 2014
Judges: Bathurst CJ, Adams J, R A Hulme J

Background

Three brothers pleaded guilty in the District Court at Wagga Wagga to a series of property offences committed over two days in September 2012. The offences included two counts of aggravated break, enter and steal (at the Adaminaby Golf Club and a general store at Cabramurra), a larceny from a motor vehicle, and a summary offence of entering inclosed lands. One brother also faced a separate break, enter and steal at a storage facility in Tumut. The offences were connected, planned to at least some degree, and carried out across the Southern Tablelands region before the group travelled north.

The sentencing judge in the District Court described the conduct as "a sequence of very serious criminal conduct" and imposed custodial sentences. All three brothers applied to the Court of Criminal Appeal for leave to appeal against those sentences.

This was not the first time the matter came before the Court of Criminal Appeal. Earlier proceedings had addressed related sentences arising from the Gilgandra and Narrabri offences committed after the Southern Tablelands conduct.

  • Whether the Crown's concession that intervention was warranted on the question of accumulation (the extent to which sentences are served consecutively rather than concurrently) was correctly made
  • Whether the sentencing judge erred in treating the applicants' criminal records as an "aggravating circumstance"
  • Whether the sentences for the aggravated break, enter and steal offences were manifestly excessive given the objective seriousness of the offending

Decision

On the Crown's concession regarding accumulation: The court found the Crown's concession was erroneous. The principal question when assessing the structure of a sentence involving multiple offences is the appropriate degree of accumulation, not whether sentences should be concurrent. The court determined that no lesser degree of accumulation was warranted than that already imposed by the sentencing judge. This ground of appeal therefore failed.

On criminal records as an aggravating circumstance: The court examined how the sentencing judge had treated each applicant's prior criminal history. For Michael and Paul Mitchell, the judge had expressly said he did not treat the record as an aggravating factor, but simply denied them the leniency available to a first offender. For Allan Mitchell, however, the judge had explicitly referred to his criminal record as an "aggravating circumstance." The court found that framing was technically incorrect, though it noted the practical effect may have been limited, and addressed the point in the context of resentencing.

On manifest excess: The court found that the sentences for the two aggravated break, enter and steal offences were manifestly excessive. The sentencing judge had assessed the objective seriousness at a higher level than the circumstances warranted. Both premises were commercial rather than private residential homes, which reduced the gravity of the intrusion. The stolen property was also unlikely to have carried sentimental value. Critically, both the serious indictable offence element and the particular circumstance of aggravation relied upon were themselves of limited seriousness within the relevant statutory categories. The court quashed the sentences and resentenced each applicant.

Orders Made

Michael Mitchell:
- Leave to appeal granted; appeal allowed; District Court sentences quashed
- Larceny at Adaminaby: fixed term of 5 months from 12 January 2013
- Aggravated break, enter and steal at Adaminaby: non-parole period of 1 year 11 months from 12 May 2013; balance of term 8 months, expiring 11 December 2015
- Aggravated break, enter and steal at Cabramurra: non-parole period of 1 year 7 months from 12 September 2013; balance of term 1 year 5 months, expiring 11 September 2016
- Release on parole upon expiry of final non-parole period: 11 April 2015

Paul Mitchell:
- Leave to appeal granted; appeal allowed; District Court sentences quashed
- Break, enter and steal at Tumut: fixed term of 2 years from 12 January 2013
- Larceny at Adaminaby: fixed term of 5 months from 12 May 2013
- Aggravated break, enter and steal at Adaminaby: non-parole period of 1 year 10 months from 12 September 2013; balance of term 9 months, expiring 11 April 2016
- Aggravated break, enter and steal at Cabramurra: non-parole period of 1 year 6 months from 12 January 2014; balance of term 1 year 6 months, expiring 11 January 2017
- Release on parole upon expiry of final non-parole period: 11 July 2015

Allan Mitchell:
- Leave to appeal granted; appeal allowed; District Court sentences quashed
- Larceny at Adaminaby: fixed term of 6 months from 12 March 2013
- Aggravated break, enter and steal at Adaminaby: non-parole period of 2 years 3 months from 12 August 2013; balance of term 9 months, expiring 11 August 2016
- Aggravated break, enter and steal at Cabramurra: non-parole period of 1 year 11 months from 12 January 2014; balance of term 1 year 5 months, expiring 11 May 2017
- Release on parole upon expiry of final non-parole period: 11 December 2015

Key Takeaways

  • The Court of Criminal Appeal confirmed that when reviewing sentences involving multiple offences, the primary analytical question is the appropriate degree of accumulation between terms, not simply whether sentences run concurrently or consecutively. A Crown concession that a lesser degree of accumulation was warranted was found to be wrong.
  • Describing a prior criminal record as an "aggravating circumstance" is technically incorrect. Its proper function in sentencing is to deny an offender the leniency otherwise available to a person with no prior history, rather than to increase the sentence beyond the appropriate starting point.
  • Objective seriousness for aggravated break, enter and steal is materially affected by the nature of the premises targeted. Commercial premises attract a lower level of seriousness than private residential homes, given the reduced likelihood of personal intrusion and the absence of sentimental value in stolen goods.
  • Where both the underlying serious indictable offence and the particular circumstance of aggravation are each of limited seriousness within their respective categories, a sentencing court must reflect that in the overall assessment, rather than treating the aggravated offence as necessarily attracting a heavy sentence.
  • Erroneous Crown concessions do not bind the Court of Criminal Appeal. The court assessed the accumulation question independently and found no warrant for reducing the structure of the original sentences on that issue.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Inclosed Lands Protection Act 1901 (NSW), s 4(1)

Cases:
- Butters v R [2010] NSWCCA 1
- Choi v R [2007] NSWCCA 150
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Mitchell v R; Mitchell v R [2013] NSWCCA 318
- Mitchell v R [2014] NSWCCA 63
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Fidow [2004] NSWCCA 172
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v MMK [2006] NSWCCA 272; 164 A Crim R 481
- R v Tuuta [2014] NSWCCA 40