Mitchell v R; Mitchell v R [2013] NSWCCA 318

Mitchell v R; Mitchell v R [2013] NSWCCA 318

For offences found to be at the lower end of objective seriousness, committed by 19 and 22 year old offenders who had not previously experienced custody, sentences of 2 years 3 months reduced from a 3 year starting point for guilty pleas were manifestly excessive. An appropriate starting point was 1 year, reduced by 25 per cent to 9 months, with the finding of special circumstances maintained.

Jurisdiction
Australia
Judgment Date
12 December 2013
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted; appeal allowed; District Court sentences quashed; applicants resentenced.
Legal Topics
['manifest Excess' 'aggravated Break and Enter With Intent to Steal' 'young Adult Offenders' 'first Time in Custody' 'form 1 Offences' 'non Parole Period' 'special Circumstances']
['criminal Law' 'sentencing'] ['manifest Excess' 'aggravated Break and Enter With Intent to Steal' 'young Adult Offenders' 'first Time in Custody' 'form 1 Offences' 'non Parole Period' 'special Circumstances']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentence imposed started from a notional starting point that was too high.' 'Whether the sentencing judge failed to consider that no punishment was appropriate other than imprisonment under s 5 Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether the sentencing judge failed to consider the three stage process referred to in Douar [2005] NSWCCA 455 at [69]-[72].' 'Whether the sentences imposed were manifestly excessive.']

Ratio Decidendi

For offences found to be at the lower end of objective seriousness, committed by 19 and 22 year old offenders who had not previously experienced custody, sentences of 2 years 3 months reduced from a 3 year starting point for guilty pleas were manifestly excessive. An appropriate starting point was 1 year, reduced by 25 per cent to 9 months, with the finding of special circumstances maintained.

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentences quashed; applicants resentenced.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Quash the sentences imposed in the District Court on 27 March 2013.' 'In lieu, each offender sentenced to imprisonment comprising a non-parole period of 6 months with a balance of the term of the sentence of 3 months. The sentences are to date from 12 September 2012....