Citation: R v Mitchell; R v Zeiser [2019] NSWDC 369
Court: District Court of New South Wales
Date: 29 March 2019
Judge: Latham ADCJ
Background
Two offenders, Mitchell and Zeiser, appeared for sentencing on four counts of robbery in company committed jointly on 31 July and 1 August 2017. Each offence carries a maximum penalty of 20 years imprisonment. The offenders' method was to approach motor vehicles late at night while impersonating police officers, then rob the occupants of valuables including a watch and mobile phones.
The 31 July offence involved robbing a single male of items of clothing. The 1 August offences involved three young male victims and included blows with a hammer to one victim's upper arm and punches to the faces of two others.
Mitchell pleaded guilty in the Local Court to the three August offences and entered a late guilty plea to the July offence shortly before trial. Zeiser was found guilty at trial on the three August charges and pleaded guilty to the July charge after those verdicts.
Legal Issues
- The appropriate level of objective seriousness for the four offences
- The guilty plea discounts applicable to each offender
- How the sentences should run (concurrently or cumulatively) across the four counts
- The weight to give each offender's criminal history, subjective circumstances, and prospects of rehabilitation
- Whether special circumstances existed to justify adjusting the statutory ratio between the non-parole period and the total sentence
Decision
Her Honour placed the offences towards the lower end of the range of objective gravity, noting they were short-lived but did place victims in genuine fear. The August offences, being committed in one course of conduct against three victims, warranted wholly concurrent sentences. The July offence warranted slight accumulation on top of those concurrent terms.
Mitchell received a 25% discount on the August sentences reflecting his early guilty pleas, and a 15% discount on the July sentence reflecting his later plea. Zeiser, having been convicted at trial, received no such discount. Her Honour acknowledged this disparity was a consequence of the respective plea histories.
Both offenders had significant criminal histories involving repeated offending while on conditional liberty, including prior custodial sentences. Mitchell, who was on parole at the time of these offences having been released less than a month earlier, had an extensive history including a five-year non-parole period for malicious wounding. His Indigenous background and early life deprivations, including being born heroin-dependent to drug-addicted parents, were noted as relevant subjective factors warranting some adjustment to the statutory ratio. Zeiser's background included an alcohol problem arising from a violent incident during a trade apprenticeship, followed by ice addiction.
Her Honour found no special circumstances in either case and noted that community protection was a necessary consideration given both offenders' histories of continued offending while on parole or other conditional liberty.
Orders Made
Mitchell:
- Three counts (1 August 2017): 3 years and 9 months imprisonment, commencing 2 August 2017, expiring 1 May 2021; non-parole period of 2 years, expiring 2 August 2019
- One count (31 July 2017): 30 months imprisonment, commencing 2 August 2018, expiring 1 February 2021; non-parole period of 18 months, expiring 1 February 2020
- First eligible for release: 1 February 2020 (corrected during proceedings)
- Charges on s 166 certificate dismissed
Zeiser:
- Three counts (1 August 2017): 5 years imprisonment, commencing 2 August 2017, expiring 1 August 2022; non-parole period of 3 years and 9 months, expiring 1 May 2021
- One count (31 July 2017): 3 years imprisonment, commencing 2 August 2019, expiring 1 August 2022; non-parole period of 2 years, expiring 1 August 2021
- First eligible for release: 2 August 2021
- Charges on s 166 certificate dismissed
Key Takeaways
- Offences committed as part of a single course of conduct against multiple victims in the same incident warranted wholly concurrent sentences; a separate offence committed the previous day attracted modest additional accumulation.
- A 25% guilty plea discount applied to early pleas entered in the Local Court, while a 15% discount applied to a plea entered shortly before trial; co-offenders convicted at trial received no discount, producing a legitimate sentencing disparity.
- An offender's Indigenous background, early childhood disadvantage, and deep-seated drug dependency were treated as relevant subjective factors justifying some departure from the standard statutory non-parole ratio, even where rehabilitation prospects were poor.
- Repeated offending while on parole or other forms of conditional liberty was a significant aggravating factor supporting a community protection component in the sentences for both offenders.
- Where no concrete evidence of genuine remorse or rehabilitation capacity exists beyond what is inherent in a plea of guilty, courts may decline to treat rehabilitation as a significant mitigating factor in fixing the sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97 (robbery in company, maximum 20 years imprisonment)
- Section 166 certificate (charges of impersonating a police officer, dismissed in each case)
Cases:
- Henry guideline judgment (referred to in relation to sentencing methodology for robbery, conceded to apply despite neither offender fitting the typical profile of a young first offender)