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Court of Criminal Appeal 17 April 2014

Mitchell v R

[2014] NSWCCA 63

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE LEAVE TO APPEAL GRANTED APPEAL ALLOWED

Citation: Mitchell v R [2014] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 17 April 2014
Judges: R A Hulme J, Davies J, Adamson J

Background

The applicant, a 40-year-old man with an extensive criminal history, pleaded guilty in the District Court at Moree to aggravated break and enter with intent to steal under s 113(2) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 14 years' imprisonment. The offence involved the applicant and his two younger brothers entering the yard of an audio-electronics business at night, forcing open a garage door, and fleeing when an alarm activated. Two further offences (larceny and taking a vehicle without consent) were taken into account on a Form 1 document. The sentencing judge imposed 3 years' imprisonment with a non-parole period of 2 years.

The applicant's two younger brothers had already appealed successfully to the Court of Criminal Appeal, with their sentences reduced as manifestly excessive. The applicant sought an extension of time to bring his own application for leave to appeal, having waited for the outcome of his brothers' appeal before pressing his own matter.

  • Whether an extension of time should be granted where the application was filed late due to a decision to await a co-offender's appeal, not through the applicant's personal fault.
  • Whether the applicant's sentence was manifestly excessive, given the sentencing judge's own finding that the objective seriousness of the offence was at the "lower end of the range."
  • Whether, in re-sentencing, the applicant's sentence should be calibrated appropriately above that of the co-offenders to reflect his greater moral culpability and less favourable subjective circumstances.

Decision

On the extension of time, the Court accepted that the delay arose from a deliberate tactical decision to await the brothers' appeal outcome, with the lapse of the Notice of Intention to Apply for Leave to Appeal being attributed to oversight by lawyers rather than the applicant personally. Because the applicant himself was not at fault, the extension was granted.

On manifest excess, the Court found that the sentencing judge's own conclusion that objective seriousness fell at the "lower end of the range" had to be given meaningful weight. A concession to that effect had been made by the Crown in the District Court and was not challenged on appeal. Despite the applicant's significantly worse criminal history and greater moral culpability compared to his brothers, a starting point of 4 years before applying the 25 per cent discount for the early guilty plea was held to be manifestly excessive in light of that finding.

In re-sentencing, the Court accepted that the applicant's sentence should be higher than those of his brothers, given his age, leadership role in the offending, and substantially worse subjective circumstances, including a long history of offending, multiple periods of imprisonment, and parole revocations. However, the appropriate starting point was reduced to 2 years 6 months before the 25 per cent plea discount, with a finding of special circumstances reducing the non-parole period further. The Court noted that the applicant was also serving other substantial sentences for similar offending, though those sentences did not affect the re-sentencing exercise.

Orders Made

  • Extension of time to apply for leave to appeal granted.
  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 27 March 2013 quashed.
  • In lieu, sentenced to imprisonment comprising a non-parole period of 1 year and a balance of term of 10 months, dating from 12 September 2012 (non-parole period expired 11 September 2013; total term to expire 11 July 2014).

Key Takeaways

  • A finding by a sentencing judge that an offence falls at the "lower end of the range" of objective seriousness is not merely descriptive; it must be given real effect in the sentence actually imposed.
  • Where a co-offender's sentence has already been reduced on appeal as manifestly excessive, parity principles require that the remaining offender's sentence be calibrated proportionately above the reduced figure, not the original one.
  • Delay in filing a leave application will not defeat an extension of time application where the delay is attributable to legal advisers or reasonable tactical decisions rather than the applicant's own conduct.
  • Greater moral culpability and less favourable subjective features justify a meaningfully higher sentence than that of co-offenders, but do not override the constraint imposed by the primary judge's own finding on objective seriousness.
  • Form 1 offences must receive genuine weight in sentencing, not merely nominal acknowledgment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 113(2) (aggravated break and enter with intent to steal)

Cases:
- Lowe v The Queen [1984] HCA 46; 154 CLR 606 (parity in sentencing)
- Mitchell v R; Mitchell v R [2013] NSWCCA 318 (co-offenders' appeal)