Police v Mitchell

Police v Mitchell - [2008] NSWLC 5 - NSWLC 2008 case summary — Zoe

[8]

H - and Seq Date Offence H-31446413

```
      14/9/07   Contravene ADVO
```

      14/9/07   Malicious Damage (window)

      14/9/07   Malicious Damage (car windscreen)

H-32724978

```
      27/11/07  Contravene ADVO
```

H-32167132

```
      18/12/07  Contravene ADVO
```

      18/12/07  Intimidation. (Julie Redford)

      18/12/07  Malicious Damage (door and fence palings)

```
      18/12/07  Contravene ADVO
```

H-32701951

      18/12/07  Use Weapon to prevent lawful detention

```
      18/12/07  Affray
```

      18/12/07  Assault Officer in Execution of Duty - Constable Tipping.

      18/12/07  Assault Officer in Execution of Duty - Constable Bergmeier.

      18/12/07  Assault Officer in Execution of Duty -
                Constable Hallam

      18/12/07  Assault Officer in Execution of Duty -
                Senior Constable Gates.

      18/12/07  Assault Officer in Execution of Duty - Constable Culgan.

      18/12/07  Assault Officer in Execution of Duty - Constable Brooks.

      18/12/07  Custody of Knife in Public Place.

     18/12/07  Wield knife in Public Place.

[33]

There is strong and binding authority for this. For Section 60 - In Parliamentary Hansard in the Second Reading Speech, the then Attorney General Mr. J. Shaw said the following:- "The bill contains sensible and straightforward provisions to extend the extra protection from attack offered to police under the Crimes Act 1900. The bill is predicated upon a belief that police officers are rightfully owed a measure of protection by the community. That is so for at least two reasons. First, police officers place themselves in positions of risk on behalf of the community. Second, an attack on a law enforcement officer strikes at the core of our system of democratic government. Those who seek to harm the persons responsible for the enforcement of laws passed by our Parliament should be subject to special punishment." In A-G's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196; [2002] NSWCCA 515, the Court of Appeal refused, at that time, to issue a sentencing guideline for offences involving the assault of police officers in the execution of their duty imposed under Section 60 (1) of the Crimes Act 1900. However, the court emphasised this:-: " Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property. The Courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police. … These principles apply irrespective of whether the offender is to be sentenced in the Local or District Court. The jurisdictional maximum of two years imprisonment in the Local Court should not affect the actual level of sentence imposed. Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case. (See R v Doan (2000) 50 NSWLR 115." See also R v Said El Masri [2005] NSWCCA 167; BC200502544 at [30].

[48]

Special Circumstances I have considered the question of "special circumstances". The finding of special circumstances is a discretionary finding of fact (see R v El-Hayek (2004) 144 A Crim R 90 at [103]) and, even if special circumstances are found, the court is not obliged to vary the statutory ratio. The non-parole period must reflect the criminality involved in the offence, including its objective gravity and the need for general deterrence: see R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at 718. Merely because there is present a circumstance which is capable of constituting "special circumstances" does not mean that a sentencing judge is obliged to vary the statutory proportion: R v Fidow [2004] NSWCCA 172. The circumstances must be sufficiently special to justify a variation: R v Nimmo [2005] NSWCCA 295. In Fidow Spigelman CJ said at [20]-[22]: "There is evidence that findings of special circumstances have become so common that it appears likely that there can be nothing 'special' about many cases in which the finding is made. Research by the Judicial Commission of New South Wales of the sentences imposed on 2,801 offenders in the Supreme and District Courts during 2002 suggest that Parliament's intention that the statutory proportion apply unless 'special circumstances' exist that justify departure from it, is not being carried out. The issue of special circumstances often arises in circumstances where there are cumulative terms of imprisonment and sentencing judges should always have regard to the outcome of any such accumulation. Indeed, it is well established that accumulation of sentences can itself constitute special circumstances: R v Simpson (1992) 61 A Crim R 58; R v Close (1992) 31 NSWLR 743; R v Clissold [2002] NSWCCA 356 and R v Ibrahim [2005] NSWCCA 43. However, there does not exist, at common law, a proposition to the effect that accumulation of sentences must automatically give rise to a finding that special circumstances exist: R v Ibrahim (supra). See also R v Leon (unrep, 30/11/94, NSWCCA) per Newman J.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (82 paragraphs)

Parties

Cases Cited (26)