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District Court 1 May 2020

R v Mitchell

[2020] NSWDC 293

Assault & violenceTheft & propertyFirearms & weapons
SENTENCING ATTEMPT HOME INVASION FIREARM DISCHARGED RELEVANT FACTORS ON SENTENCE AFTER TRIAL OBJECTIVELY VERY SERIOUS OFFENCES

Citation: R v Mitchell [2020] NSWDC 293
Court: District Court of New South Wales
Date: 1 May 2020
Judge: Haesler SC DCJ

Background

In the early hours of 1 August 2017, a man armed with a firearm and wearing a balaclava attempted to force entry into an occupied home in Warilla, south of Wollongong. He smashed a glass pane in the front door, pointed a gun at a female resident, and fired a shot into a bedroom window. Bullet fragments passed through three internal walls over the heads of people standing at the door. A child asleep in the front room was unharmed.

A gold watch was found on the porch after the intruder fled. Police later stopped a car in a nearby suburb and found the offender in the rear seat, along with a balaclava bearing a single hole and two pairs of black gloves. DNA analysis linked the offender to both the balaclava and the watch, and a photograph from the previous month showed him wearing a similar watch.

After a four-day jury trial, the offender was convicted of two offences: aggravated break and enter of a dwelling knowing it was occupied, intending to commit intimidation while armed with a dangerous weapon; and firing a firearm with reckless disregard for the safety of another person. He was acquitted of the more serious charge of discharging a weapon with intent to cause grievous bodily harm, and the court gave him the full benefit of that acquittal.

  • The objective seriousness of the two offences and their place within the relevant sentencing ranges
  • Whether the offender's status as being on parole at the time of the offences warranted a more severe penalty
  • How the sentences for these offences should be accumulated with an existing sentence already imposed for separate but contemporaneous offending
  • The application of the totality principle to produce a just overall sentence
  • Whether the offender's extensive criminal history, institutionalisation, and background of profound deprivation warranted a finding of special circumstances to extend the parole period

Decision

Haesler SC DCJ assessed both offences as objectively very serious. The home invasion involved planning, disguise, a loaded firearm, and a deliberate attempt to intimidate occupied premises. The subsequent discharge of the firearm into a bedroom was reckless and could easily have caused death or serious injury. The court noted that the offender escaped more serious charges only through good fortune.

The offender was on parole at the time of the offending, having been released just one month earlier. His criminal record dated to the Children's Court in 2002, and he had spent the great majority of his adult life in custody. The court accepted that he was an institutionalised offender and that his history reflected not uncharacteristic aberrations but continuing disobedience to the law. Consistent with Veen v The Queen (No 2), the court found that a more severe penalty was warranted to reflect retribution, deterrence, and community protection, provided the sentence remained proportionate to the offences before the court.

The sentence was required to be accumulated partly on the existing sentence imposed by Acting Judge Latham in March 2019 for robberies committed on 31 July and 1 August 2017, that is, offending on the same dates. The court applied the totality principle to ensure the combined sentence was just and appropriate, commencing the new sentence one year and eight months after the Latham sentence, producing a total effective custodial term of nine years and two months.

The court found special circumstances, justifying a departure from the standard two-thirds non-parole ratio. Two reasons supported this: the offender's institutionalisation and the need for a structured, supervised return to the community; and the mechanics of maintaining an approximately two-thirds non-parole ratio across the total accumulated sentence. The court expressed the view that a longer parole period, with intensive supervision, offered the best prospect of reducing reoffending.

Orders Made

  • Indicated sentence for aggravated break and enter: 6 years imprisonment
  • Indicated sentence for the firearms offence: 5 years imprisonment with a non-parole period of 3 years and 3 months
  • Aggregate sentence imposed: 7 years and 6 months imprisonment
  • Non-parole period: 4 years and 4 months, commencing 2 April 2019
  • Eligibility for parole: 1 August 2023
  • Balance of term: 3 years and 2 months, commencing 1 August 2023 and expiring 1 October 2026
  • Release on parole to be determined by the State Parole Authority based on community safety considerations and the offender's conduct in custody

Key Takeaways

  • The District Court confirmed that committing offences while on parole is a significant aggravating factor, justifying a harsher penalty to reflect the breach of undertakings made to obtain early release.
  • An offender's extensive criminal history does not permit a disproportionate sentence, but it is relevant to identifying the appropriate weight to be given to retribution, deterrence, and community protection, following Veen v The Queen (No 2).
  • Where an offender is deeply institutionalised, a finding of special circumstances to extend the non-parole period may be warranted even in the face of entrenched recidivism, to allow for structured and supervised reintegration into the community, consistent with Jackson [2010] NSWCCA 162 and Jinette [2012] NSWCCA 217.
  • Partial accumulation of sentences for separate but contemporaneous offending attracted the totality principle, requiring the court to assess whether the combined sentence remained proportionate and just when viewed as a whole.
  • Acquittal on a more serious charge must be given its full weight at sentence; the offender could only be punished for the offences of which he was convicted and their immediate consequences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 113(3) (aggravated break and enter, maximum 20 years)
- Crimes Act 1900 (NSW), s 93GA(i) (fire firearm with reckless disregard, maximum 14 years, standard non-parole period 5 years)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Engert v R (1995) 84 A Crim R 67
- Jackson v R [2010] NSWCCA 162
- Jinette [2012] NSWCCA 217
- Mill v The Queen (1988) 166 CLR 59
- R v Clinch (1994) 72 A Crim R 301
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Mitchell; R v Zeiser [2019] NSWDC 369
- Simpson (2001) NSWCCA 534
- Veen v The Queen (No 2) (1988) 164 CLR 465