R v Joshua Mitchell; R v Michael Mitchell

Judgment 1MACFARLAN JA: I agree with the judgment of RS Hulme AJ and also the additional remarks of Garling J. 2I thus agree that the sentences imposed were manifestly inadequate but that the Court should exercise its residual discretion (see Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022 at [24]; Green v The Queen [2011] HCA 49; 244 CLR 462 at [26], [44] and [131]; R v JW [2010] NSWCCA 49; 77 NSWLR 7 at [85] - [95]) to dismiss the Crown appeals. In light of the imminence of the dates for the respondents' release on parole and the effect that extensions of their sentences may well have upon the continuation of their significant progress towards reform and rehabilitation, the community's interests favour dismissal of the appeals. These are factors that are relevant to the exercise of the residual discretion to dismiss the appeals (Green v The Queen at [43] and [131]). 3GARLING J: I agree that for the reasons which he gives, the orders proposed by RS Hulme AJ should be made. 4There can be no doubt that the sentences imposed were manifestly inadequate. On any view they were, having careful regard to the nature of each offence, the circumstances involved in the offending and other relevant matters, insufficiently accumulated, and ultimately overly lenient. 5However, these are exceptional cases for the reasons described by R S Hulme AJ, and hence appropriate for the exercise by the Court of its residual discretion to dismiss the appeal. 6RS HULME AJ: These reasons arise out of appeals by the Crown in respect of sentences imposed by Armitage DCJ on 16 August 2013. 7On 29 September 2009 Joshua Mitchell arranged the robbery by Michael Mitchell, Damian Spiteri and a fourth person of a Mr Salt, a 25 year old mildly intellectually disabled man with whom he, Joshua, and his girlfriend were living. Joshua Mitchell accompanied the victim to an ATM where the victim withdrew some $700 in cash. As the two were walking home the other offenders approached them. Michael Mitchell caused Mr Salt to fall to the ground and then stomped on him, although apparently without causing injury. 8Joshua Mitchell received some of the proceeds and later was heard to boast of having orchestrated the robbery. 9On 17 April 2010 Joshua Mitchell placed an order on a food store for the delivery of food as a ruse to rob whoever delivered the order. A Mr Kett, aged 72 did so. At the nominated address the resident advised Mr Kett that no order from that address had been made. As Mr Kett replaced the food on the front seat of the vehicle, he felt a push in his back forcing him to fall into the car on top of the food. The food was removed by an offender. A second offender climbed into the car, demanded Mr Kett's wallet and then, unsuccessfully, attempted to remove it. 10Mr Kett punched that offender in the face, the co-offender reciprocated by kicking Mr Kett in the face causing the latter to fall backward and become dazed. His bumbag containing about $25 and his phone were stolen. Mr Kett suffered pain and bruising to his face and head and one of his hands. 11On 20 April 2010 Joshua Mitchell placed an order with another restaurant that delivered food, nominating delivery at nearby premises. Joshua and Michael Mitchell and a David Beale went to those nominated premises. Joshua Mitchell observed that "they were going to roll the delivery man" because they had no money and there was discussion about the use of a cricket bat. Joshua Mitchell carried the cricket bat to the scene of the offence. As the delivery driver, a Mr Fang, attempted to deliver the food he was struck from behind more than three times with the cricket bat and rendered unconscious. There was at least one blow to each of the head, arm and back. 12The delivery bag containing the food, the victim's wallet and $300 were stolen. The offenders were heard bragging, laughing and joking about what happened. His Honour was not satisfied that it was Joshua who struck the blows with the cricket bat but held that all participants were criminally liable for those actions. 13Mr Fang suffered extensive bruising over his back, his head, his torso and arms and legs together with a subdural haematoma and an injured spleen. He had multiple lacerations to his head, abdomen and limbs and lost several teeth. He spent a week in hospital and had to use a wheelchair for two months. Armitage DCJ described the attack on Mr Fang as "savage, disgusting and cowardly and should not have occurred in any civilised society". A Victim Impact Statement Mr Fang provided recorded that in consequence of the incident he had become fearful of doing, and had given up, evening delivery jobs. He has also become appreciably more antisocial. 14Both Joshua and Michael pleaded not guilty to involvement in this offence but were convicted after a trial. 15On 26 June 2012 Michael Mitchell invited Joshua Mitchell and a Christopher Matycz to participate in a break and enter. The three offenders walked to an intended target home owned by a Mr. Truong. Two other persons, McFadden and Myer parked a vehicle nearby. Michael Mitchell broke into and entered the premises and then opened the back door and Joshua and Christopher Matycz entered. 16Shortly thereafter the homeowner arrived and seeing signs of the offence ran towards the front door. As he arrived, the three offenders ran out carrying a number of items. Joshua threw a laptop computer at Mr. Truong and Michael Mitchell punched him in the forehead. 17The aggravating feature relied on by the Crown in connection with this offence was being in company - one that his Honour accepted was the least serious of those listed in s 105A of the Crimes Act 1900. His Honour described the planning for this offence as limited. 18Police happened to be travelling along the street and saw argument between the victim and the offenders. They pursued the offenders and later Michael Mitchell and McFadden were arrested. Joshua contacted McFadden while the latter was in police custody and agreed to return to the premises to speak to police. In a police interview Joshua said that while he knew the others had entered the premises he denied participating in the offence. 19The charges against Joshua arising out of the above events, the Crimes Act provisions against which he offended and the maximum penalties for which he was liable, his pleas, and the discounts awarded for those pleas are as follows: 29 September 2009 offence - robbery in company - s 97(1) - 20 years - guilty - 25% 17 April 2010 offence - aggravated robbery in company - s 95(1) - 20 years - guilty - 12.5% 20 April 2010 offence - aggravated robbery - s 95(1) - 20 years - not guilty - nil 26 June 2012 offence (see also s 105A) - aggravated break enter and steal - s 112(2) - 20 years - guilty - 25% 20In respect of this last mentioned offence a standard non-parole period of 5 years has been prescribed. 21The sentences imposed by his Honour on Joshua Mitchell were: 29 September 2009 offence (that involving Mr Salt) - imprisonment for three years including a non parole period of 18 months, both such terms commencing on 7 June 2013; 20 April 2010 offence (that involving Mr Fang) - imprisonment for four years including a non parole period of 12 months, both such terms commencing on 7 June 2014; 17 April 2010 offence (that involving Mr Kett) - imprisonment for three years including a non parole period of 18 months, both such terms commencing on 7 December 2013; 26 June 2012 offence (that involving Mr Truong) - imprisonment for two years including a non-parole period of 12 months, both such terms commencing on 7 June 2012; 22The effective sentence was thus of imprisonment for 6 years including a non parole period of 3 years, both such terms commencing on 7 June 2012. That date was agreed between the advocates who appeared as appropriate, having regard to Joshua's pre-sentence custody. 23Approaching the sentences in the order in which they were directed to be served: - the offence on 26 June 2012 attracted a non-parole period of 12 months; the offence of 29 September 2009 attracted an additional non-parole period of 18 months; the offence committed on 17 April 2010 attracted a further non-parole period of six months, the first 12 months of the 18 month non-parole period imposed for that offence being made concurrent with part of the non-parole period relating to the 29 September 2009 offence; the offence committed on 20 April 2010 attracted no additional non-parole period, that which was imposed being entirely concurrent with part of the non-parole period imposed in respect of the 17 April 2010 offence. 24Michael Mitchell was not charged with the offence involving Mr Kett which occurred on 17 April 2010 but faced a charge of common assault in consequence of him punching Mr Truong on 26 June 2012, which offence was the subject of a s 166 certificate. That offence arose pursuant to s 61 of the Crimes Act and carried a maximum penalty of imprisonment for two years. 25The sentences imposed on Michael Mitchell were: 29 September 2009 offence (that involving Mr Salt) - imprisonment for three years including a non-parole period of 18 months both such terms commencing on 28 June 2012; 20 April 2010 offence (that involving Mr Fang) - imprisonment for four years including a non-parole of 18 months both such periods commencing on 28 December 2012; 26 June 2012 offence (that involving Mr Truong) - imprisonment for two years with a non-parole period of 12 months both such terms commencing on 28 March 2012; Assault offence - imprisonment for a fixed term of 6 months commencing on 28 March 2012; 26The effective total sentence imposed on Michael Mitchell was thus of imprisonment of 4 years and 9 months including a non-parole period of 2 years and 3 months, both such terms commencing on 28 March 2012. Again that was a date agreed as taking into account pre-sentence custody. He is due for release on 27 June 2014. 27Approaching the non-parole periods in a similar manner to that adopted above in the case of those imposed on Joshua: - the offence committed by Michael on 26 June 2012 attracted a non-parole period of 12 months; the assault offence attracted no additional non-parole period, the sentence imposed being entirely concurrent with part of the non-parole period imposed in respect of the 26 June 2012 offence; the offence committed on 29 September 2009 attracted a 9 month increase in the non-parole period, 9 of the 18 months non-parole imposed in respect of that offence being concurrent with the non-parole period imposed in respect of the 26 June 2012 offence; the offence committed on 20 April 2010 attracted an increase in the effective non-parole period of 6 months, 12 of the 18 months non-parole period imposed for this offence being coincident with part of the non-parole period imposed in respect of the 29 September 2009 offence. 28The sentences were imposed on 16 August 2013. A notice of appeal by the Director of Public Prosecutions was lodged on 17 September 2013 claiming that the "sentence pronounced was manifestly inadequate" and foreshadowing additional grounds which, though unnecessary, assisted in the orderly presentation of the argument. 29The grounds pursued by the Crown at the hearing of the appeal were as follows: Ground One In the case of each respondent his Honour erred in his assessment of the objective gravity of the offence of aggravated robbery upon Mr Fang resulting in a manifestly inadequate sentence for that offence. Ground Two In the case of Joshua Mitchell his Honour erred in his assessment of the objective gravity of the offence of aggravated robbery upon Mr Kett resulting in a manifestly inadequate sentence for that offence. Ground Three His Honour erred in failing to adequately accumulate the sentences, leading to a manifestly inadequate overall sentence. Ground Four His Honour erred in the extent to which he reduced the non-parole period to reflect the finding of special circumstances resulting in a manifestly inadequate non-parole period for each offence and an overall manifestly inadequate non-parole period. Ground Five The sentences imposed were manifestly inadequate in terms of the individual sentences and the overall sentence. 30In arriving at the sentences he imposed his Honour accepted that some guidance was provided by the guideline judgment of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [162] albeit conscious of the fact that there were differences when compared with the characteristics listed by the Chief Justice in that case of: (i) young offender with no or little criminal history; (ii) weapon like a knife, capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) small amount taken; and (vii) plea of guilty, the significance of which is limited by a strong Crown case. 31Subsequent cases have made clear that the plea referred to should be understood as a late plea, i.e. one that attracts a discount of or about 10% - R v Thomson & Houlton [2000] NSWCA 309; 49 NSWLR 383 at [161]; R v Thomas [2007] NSWCCA 269 at [96]. 32Armitage DCJ's commencing point for the sentence imposed for the offence involving Mr Salt was four years. His Honour recorded that advantage had been taken of Mr Salt's vulnerability and that the amount stolen was in his view not particularly small. 33In the case of the offence involving Mr Kett, his Honour said he regarded it as of "real significance" that no permanent injury was inflicted. Although both counsel agreed a 10% discount was appropriate for Joshua's plea, his Honour allowed 12.5% from a starting point of imprisonment for three and a half years. His Honour noted that Mr Kett's age of 72 made him vulnerable and at nighttime more so, and the fact that the offence was committed in company was an aggravating circumstance. He found that the amount taken was not particularly large or small. 34In the case of the offence involving Mr Fang, his Honour was not prepared to find that Joshua Mitchell struck Mr Fang with a cricket bat but that as a participant in the offence he was criminally responsible for that aspect of it. Dealing with this offence his Honour observed: ...I am not persuaded that the Ming Fang offences, if I may so call them, by both offenders are more serious than the typical Henry offence because of the infliction of corporal violence. I do note, however, that the corporal violence was inflicted with a weapon, but I point out that the Crown did not charge armed robbery or robbery while armed with an offensive weapon. 35Apart from the need his Honour perceived for a longer than usual period on parole, and on account of accumulation, His Honour provided no explanation for why the non-parole period imposed on Michael for the offence against Mr Fang was 18 months whereas that imposed on Joshua was 12 months. His Honour had earlier recorded that the agreed facts in respect of this offence for both Joshua and Michael seemed to be the same and said that that both would receive the same sentence for this offence. 36His Honour indicated that his starting point for the sentences imposed for the aggravated breaking and entering offence was two years and 8 months. His Honour was not prepared to find that the property stolen as an incident of this offence was not of great value although noting that it was recovered. He found that there was limited planning and rejected the submission that the offence was at the lower end of the scale. 37The Crown conceded that given the number of offences, the sentence imposed for Michael's assault offence could be made concurrent with that imposed for the aggravated break enter and steal. 38I turn then to the Respondent's subjective circumstances. Each was the subject of a Pre-Sentence Report, a psychologist's report and a report from a psychiatrist engaged by Justice Health. The various accounts are not all consistent in their detail of the offenders' pasts and the following summary may not be accurate in some of its detail. However the picture is clear. 39The Respondents' upbringing was appalling. Their parents separated when Joshua was about five-years-old. Their mother worked as a prostitute, sometimes working from home. She and a partner abused drugs. There were needles throughout the house. Her partner was violent towards the Respondents, locking them in cupboards and anally raping them. They were forced to help their mother and her partner steal and commit break and enter offences. Their diet consisted of noodles and mashed potatoes into which, from time to time, amphetamines were mixed. 40Joshua did not go to school until year three, as his mother was unable to get him ready due to her drug use. He ceased school at age 13. Between the ages of 6 and 13 Joshua was partly brought up by his grandmother. 41Joshua commenced using alcohol at age 11, ecstasy when he was 14, progressing to cannabis, ice, other amphetamines and heroin. The extent of his usage was substantial. He formed a relationship when he was 20 years old and has had one daughter since. He advised the author of the Pre-Sentence Report that that relationship had, for the first time brought some stability into his life and since commencing the relationship his use of illicit substances and alcohol had reduced. It must be said however that the offence involving Mr Truong occurred after this. Joshua's partner gave evidence. His Honour made no findings about her but so far as one can judge from the printed page she would seem to be a positive influence. 42Joshua has attempted suicide on a number of occasions. He underwent counselling between the ages of 13 and 15. At age 16 he was diagnosed with depression and anxiety and bi-polar disorder (although in a psychiatric report of 11 April 2013 from Justice Health that diagnosis was doubted). In that report it is recorded: - Mr Mitchell gives a chronic history of mood instability, poor impulse control, significant difficulties in controlling his temper, repeated suicidal behaviour, transient stress-related paranoid ideations ...I form the opinion that the mood instability described is attributable to a diagnosis of borderline personality disorder rather than Bipolar Affective Disorder ... ...Traumatic early childhood is likely to have significantly contributed to his personally traits and his propensity to abuse illicit substances to alleviate any internal distress. 43An assessment of Joshua made in January 2013 by a psychologist Dr Jacmon observed: Mr Mitchell's day-to-day functioning is being impaired by post traumatic stress disorder (PTSD), bipolar disorder (BD) and anxiety at clinically significant levels. PTSD apparently arose form the frequent sexual assaults perpetrated on him by his mother's partner ... suicidal ideation is prominent. 44A Pre-Sentence Report includes the following: - Mr Mitchell is a young man who experienced a childhood marred by the separation of his parents, psychological, physical and sexual abuse, exposure to drug and alcohol abuse within the family home. He spoke of not feeling wanted by his mother during his formative years and the impact that his home life had on him prior to relocating to various other family members' residences. The offender presented with a multitude of issues including abuse of drugs and alcohol, mental health issues and ongoing issues as a result of his formative years. He acknowledged that he requires assistance in these areas and is verbalising a willingness to engage in appropriate counselling and programmes to assist him with gaining stability in his life and to assisting with not returning to custody... 45His Honour seems to have accepted the tenor of the remarks in these 3 reports. 46Prior to being sentenced, Joshua had completed various courses including drug and alcohol programs. The Pre-Sentence Report recorded that he had been involved in psychological counselling. 47Joshua was born in February 1991. Thus at the time of the offence against Mr Salt he was 18. He was arrested in June and July 2010 in respect of the offences against Messrs Salt, Kett and Fang and was on conditional liberty at the time of the aggravated breaking entering and stealing offence. In the meantime he had breached his bail on at least three occasions and been rearrested for doing so. 48By the time of sentence he had been convicted, in June 2010, of receiving or disposing of stolen property, making or furnishing a false statement and having goods in custody for which it appears he had been arrested in March 2010 and, in June 2012, of attempting to dispose of property obtained by theft or a serious indictable offence. Other, more minor, offences can presently be ignored. 49Armitage DCJ said that he accepted that Joshua was remorseful in respect of those offences to which he had pleaded guilty but not that involving Mr Fang. His Honour assessed Joshua's prospects of not re-offending and rehabilitating himself as reasonable. 50Michael was born in July 1985. Thus he is appreciably older than Joshua. He also was arrested in June and July 2010 in respect of the Salt and Fang matters and in respect of an unrelated matter in April 2011. He was on bail in respect of these three matters at the time of the offence against Mr Truong. The Particulars of Trial do not refer to any breaches of bail although it may be inferred that the matter in respect of which he was arrested in April 2011 constituted such a breach. 51Michael's record is also more substantial than that of Joshua. Putting aside convictions in his absence, Michael was first convicted in 2002 in respect of assault, affray and having goods in custody. In 2003 and 2004 he committed numerous offences of breaking, entering and stealing for which, either initially or when he was called up, he received mainly bonds or suspended sentences. Conditions imposed included that he attend a drug and alcohol intervention program. There would seem to have been one 10 day period of imprisonment. In 2006 he was convicted of assault and of two offences of driving a vehicle recklessly, furiously or in a speed or manner that was dangerous. For the assault offence a sentence of periodic detention for eight months was imposed. No offences are recorded in the period between May 2006 and April 2011 when he attempted to dispose of property obtained by theft or a serious indictable offence. A Pre-Sentence Report indicates that during the period 2004 to 2008 he commonly failed to comply with the requirements of the Parole authorities 52Michael left school when he was 12-years-old. His longest period of employment has been three weeks. A psychologist's report prepared on behalf of Michael for the purposes of sentencing, recorded that he had spent two years living on the streets, surviving on a daily basis by criminal activities. 53His history of using drugs is similar to Joshua's. Dr Gordon Elliot, a psychiatrist who examined Michael on 23 March 2013 said that he had multiple drug dependencies, severe and of early onset and that: - It is essential, if Michael is to address his offending behaviour that he receives assertive and long-term treatment for is substance dependencies. Significantly he impressed as being motivated to address his substance misuse and importantly appears to have a partner who is both stable and willing to support him. He is eager to pursue an in-custody drug rehabilitation programme and also to continue this at whatever time he is released from custody. 54Dr Elliott concluded: - I believe Mr Mitchell's current presentation is far better explained by his background of severe developmental adversity and subsequent personality pathology. He describes a child and adolescent history marked by profound parental neglect, physical and sexual abuse and exposure to illicit substances from an extremely early age. There appears to be an absence of any positive role models in his developmental experiences as he was essentially excluded from any meaningful school experience. 55The latter statement would seem not entirely accurate as there is no doubt that the Respondent's grandmother, who gave evidence and who seems to be respectable and responsible, took the children for some time because of their mother's neglect. 56Psychologist reports of Helen Carney of January and March 2013 include the following: - On the Clinical Personality Dimensions Mr Mitchell obtained significantly higher scores on five of the seven Depression dimensions; Hypochondriasis, Suicidal Depression, Anxious Depression, Low Energy Depression and Guilt and Resentment and these scores were near the ceiling of the test range... Mr Mitchell's very high Guilt and Resentment result shows that he is consistently troubled by feelings of guilt and this leads to a sense of worthlessness and self deprecation and he tends to blame himself for anything that goes wrong. Psychological tests show that Mr Mitchell suffers from a high degree of depression and anxiety, paranoia, obsessive-compulsive symptoms, schizophrenia and chronic feelings of personal inadequacy. His psychotic symptoms, hallucinations and hearing voices are an indication of schizophrenia and associated like his other serious mental problems with a long history of illicit drug use which has dominated his life since his childhood. His criminal activities which were due to neglect and the necessity to survive on the streets for many years and his mother and stepfather's exploitation of him and his brothers to assist them to steal in order to support their drug habits and trade meant that the usual societal values of right and wrong would never have been part of Mr Mitchell's social values, learning and personal development. Drugs were employed to manipulate and control Mr Mitchell's behaviour and the effect of this environment has had a devastating effect on his physical development and emotional and mental functioning. His prospects of having a "normal" life have been ruined and to date he has not had any full evaluation monitoring or treatment to help him overcome his mental health problems. Part of this lack of opportunity may be due to his own lack of motivation to participate in the counselling and treatment that has been offered to him. However, it is extremely difficult for an individual with Mr Mitchell's degree of depression and psychotic symptoms to participate in the courses available or offered to him as he has never learned to apply himself and persist with any formal or structured experiences as not part of his life. His severe depression and psychosis mean that he is also prone to self-harm and his past behaviour shows that despite his denials of acting in this manner currently (due to his children's' well being) is very emotionally vulnerable. Mr Mitchell needs a full time rehabilitation course if he is to overcome his drug and mental problems. 57Dr Elliott disagreed with the suggestion that Michael had schizophrenia. Armitage DCJ said that he preferred the diagnosis of Dr Elliott and accordingly this Court should also disregard what Ms Carney said in that connection. 58Against the tenor of these various reports, it should be mentioned that a number of Pre-Sentence Reports before Armitage DCJ - and there were more than I have quoted - record that at times the Respondents were denying or minimising their offending. A Pre-Sentence Report concerning Michael and dated 9 November 2012 recorded that according to Correctional Services Officers, Michael had commenced employment in the Metal Shop, that he was compliant, interacted well with other inmates but was disinterested in working. 59His Honour said that he accepted that Michael also was remorseful in respect of those offences to which he had pleaded guilty but not that involving Mr Fang. He accepted that Michael was committed to rehabilitation and concluded that his prospects of rehabilitation were reasonable. In that regard his Honour referred to the evidence of Michael's partner who gave evidence and whom his Honour described as a mature and sensible young lady who has had no prior contact with the police and supportive of the offender. 60His Honour recorded a concession by the Crown that the mental illness of both Respondents was a mitigating factor on sentence in that time in prison would be more difficult. In the case of both offenders his Honour found special circumstances because of the accumulation of sentences and in the need for a longer than usual period on parole for them to address education and drug rehabilitation. 61I turn to the grounds of appeal.