R v Mitton

Form 1

1. When I sentence Mitton, he asks that I take into account on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1, two further offences: Possession of a small quantity of cannabis and custody of a knife in a public place. I will do so.
2. In some circumstances the Court, in taking such matters into account, can increase the sentence for the offence to which they relate. As possession of cannabis would not ordinarily result in a custodial sentence that will not happen here.
3. In some circumstances possession of the knife can lead to a custodial penalty being imposed. However, it is unlikely if that matter had stood alone that a custodial sentence would have been imposed, given the personal circumstances of the offender. That said, the possession of knives in public can lead to considerable harm being done to others. This case is an example of it.
4. Where people are hurt by knives there are also consequences for offenders. They can, as here, have their liberty taken away for a substantial period.

Agreed Facts

1. There are Agreed Facts before the Court. They were supplemented by CCTV of the incident, which I have had the chance to view today.
2. Although the offender gave evidence, he did not traverse the facts. He made some admissions which helped illuminate what his intention was.
3. Mitton was born in 1997. At the time of the offence, he was 25 years old. His victim was then aged 59. Both were drinking at a hotel in Corrimal Street, Wollongong. They had, a short time before, shared accommodation at a local boarding house.
4. Mitton had been asked to leave the premises because of his drug use and behavioural problems (to which I will later refer). He did so. Prior to his leaving the victim had complained to the management of the premises that something had been stolen from him. As at 21 December 2022, the victim still maintained the belief Mitton was the thief.
5. Mitton also bore a grievance against the victim. When they were both at the hotel Mitton confronted his victim. There was a verbal altercation that lasted a few seconds. The victim walked off, as did the offender.
6. The offender waited outside on the verandah of the hotel for a time. He then left, but over the next 11 minutes he stayed nearby. He was carrying all he owned in bags because he was homeless. For a period, he sat opposite the hotel and watched while his victim and a friend drank on the verandah.
7. The victim left the hotel and headed in a southerly direction toward Crown Street. Mitton walked down the opposite side of the street then crossed the in front of the lights and came up behind the victim as the victim was crossing a closed off part of Crown Street. The main CCTV camera was some distance away. The footage does not allow many details to be made out. The Agreed Facts indicate that the victim noticed the offender had something in a handkerchief in his left hand.
8. There was a verbal confrontation where the victim accused the offender of stealing his bicycle. The victim commenced swinging punches at the offender.
9. They each took hold of the other by their shirts and swung punches at each other. The victim landed a punch on the offender's face. They continued to fight for about ten seconds. As the scuffle continued the offender was able to get access to a knife. He stabbed the victim three times to the left-hand side of his chest and abdomen. The offender did not say anything at that time other than, "let go of my arm".
10. The victim noticed blood on his side and felt unwell. A witness heard him yell, "I've been stabbed" to which the offender replied, "that's what you get".
11. A friend of the victim who was following down the street then provided assistance and triple-0 was called. The offender placed the knife in his pocket. He then then removed it from his pocket and placed it in a bag and walked off.
12. Police and ambulance attended. The victim was taken to Wollongong Hospital. On examination three stab wounds were noted. Two were to the left lateral chest, 2 centimetres in length. The wound to the left lateral upper abdomen was 3 centimetres in length. A laceration to his diaphragm had to be surgically repaired. There were two lacerations to his spleen which was surgically repaired. The victim then underwent an operation called a 'nephrectomy', the removal of the left kidney due to irreparable kidney damage.
13. A police investigation led to the arrest of the offender a short time later. He had not travelled far. He told police he had been attacked and had to defend himself. I note that this claim of self-defence is no longer maintained. He was asked about the knife and said it was in his backpack.
14. The knife that was used in this offence is shown in the exhibited photographs. A second folding knife, the subject of the Form 1, was found in his backpack as was 0.79 grams of cannabis leaf.
15. In an exhibited report, Dr Wilson gave more details of the injuries. He noted that there was possible conflict between the medications that the victim was receiving for a pre-existing mental state and the medications he was took for his injuries. It is accepted, as Dr Wilson says, that there will be continuing adverse impacts as a result of the injury and his medication regime because he only has one kidney. He is at high risk of developing renal failure.
16. He has developed chronic pain. The report also notes he suffers Post-Traumatic Stress Disorder, but in the Victim Impact Statement he refers to it as a pre-existing condition. He requires ongoing psychological care. Dr Wilson says he has been dramatically affected; his life and health have been permanently altered. He has physical scars and symptoms of anxiety.

Victim Impact Statement

1. In his Victim Impact Statement, which I have read and is now Exhibit B, the victim says that he spent two weeks in hospital. It notes; "[He] had to make a number of major changes to [his] diet and lifestyle", including giving up alcohol, changing what he ate and physical activities. He could not do strenuous activity. "[He] suffered a lot of pain and discomfort" and "required pain relief medication".
2. He may at some future time require a transplant or dialysis, and he needs to seek specialist assistance. Prior to the assault he says he was diagnosed with PTSD and was taking medication, but that conflicted with medication he needed for dealing with this injury. He says: "Following the assault, my mental health has changed. I don't feel like going out as much, so I don't see my friends much or socialise with any of the people I used to. I am more wary about where I am and who is around me. When I'm out and about, I feel edgy, that something might happen …. As a result, I feel safer when I'm at home as I have a feeling of predictability about where I am … This feeling means I do not go out much unless I need to. Being around many people helps me feel better, more safe generally".
3. The Victim Impact Statement speaks to the impact of injuries, both physical and psychological, that one would expect from an injury as serious as this and a wounding so serious as this. It will be taken into account, but the victim should not attempt to equate the harm that he suffered with the penalty imposed, the two just cannot be correlated and the sentence has to take into account a number of other features. It is one feature that must be considered, as is the seriousness of the offence itself.

Submissions

1. I am assisted by the submissions of both solicitors. There is little difference between them. In her submissions, both oral and written, Ms Kerr, who appears for the Director, puts appropriate focus on the serious, immediate and long-term physical and psychological consequences of an injury of this nature, noting that one important measure of the seriousness of wounding offences is the degree of grievous bodily harm suffered, and here, there was a significant injury with long term consequences. She notes the degree of violence shown primarily by the three stab wounds and the use of a weapon. She notes that while it cannot be established that there was an intention to stab until the struggle developed, the offender, as he has admitted in evidence today, was intending to, and did, confront his victim in a public street. That the victim responded having been so confronted does not give rise to any right to inflict the injuries that he inflicted.
2. Objectively therefore, it needs little more to be said as to how serious this offence was in terms of descriptors. In a public street a citizen who was much older than the offender, although not of himself particularly vulnerable because of that fact, was confronted. There was a short, inconsequential struggle, but a knife was produced, and a knife was used which resulted in significant harm. It was so serious an offence that it calls for a sentence which, although it can be moderated for subjective and other factors, still has to be substantial.

Conditional liberty

1. The offender was on conditional liberty at the time. He was on bail in relation to a matter involving his mother. He has otherwise a limited criminal history. This means that he is entitled to leniency. The fact that he breached a promise to be of good behaviour must be taken into account in aggravation of sentence. When people are given bail it is incumbent upon them to keep to that primary condition not to commit further offences.

Remorse

1. I heard evidence from Mitton today. He told me he was not proud of what he did. He accepted it was the wrong thing to do but he could not say more. He expressed an apology to the victim, but all material before me indicates that while he accepts that he has done the wrong thing and has to be punished, he has a lot of work to do before he gains full insight into the consequences of his actions.
2. He did take responsibility at an early stage and that matter will be taken into account, but I cannot find that he expressed actual remorse. What he said will be synthesised with all other relevant matters. It shows some progress towards, as I have said, insight into his offence.
3. He said that at the time; he was a heavy cannabis user, was suffering from depression, he was homeless, without any substantial support in the community. He had previously received medication for a depressive illness, but he was not taking that medication at the time. Being homeless, he had everything he owned with him. But that does not excuse the carrying of knives. If knives are carried in public, even if people who are living on the streets think they need them for protection, there is a danger, as here, that those knives will be used. And, if they are used, the consequences can be dire, not just for the victim but for the offenders themselves, as is clear from the facts of this case.
4. Mitton accepted that he wished to verbally confront the victim. Both men will regret that decision for the rest of their lives.
5. He told me he has qualifications and can obtain work. He has a plan for after his release. He wants; to steer clear of drugs, to get a job, and hopefully, find stable accommodation. His brother is here in support, but there is a history of longstanding conflict with his parents, to which I will soon refer.

Drug use and mental health

1. It is clear that for a very long time Mitton has used and abused the drug cannabis. There is evidence, which I accept, that at times, and just prior to the commission of this offence, that drug use resulted in drug-induced psychosis. But while his behaviour this day was immature and thoughtless there is no indication that he was suffering the effects of a psychosis at the time of the commission of the offence. Clearly, for a large number of reasons he was not thinking clearly.
2. The material in the psychologist's report also indicates that he is immature below his actual years. He still has, as I said in discussion, considerable growing to do. Sadly, that growing up will have to occur in custody.
3. While he has been in custody and drug-free he has done what he can do to access programs including; cognitive behaviour therapy, mindfulness exercises, narcotics anonymous, remand addictions, and education and programs designed to increase his capacity to find a job.
4. The report indicates a history of neglect as a child. His mother struggled with her mental health and alcohol abuse. His father was effectively absent. From a very young age Mitton was homeless and 'couch surfing'. At times he did not get enough food to eat. He got some education with help from the local PCYC, but his schooling was interfered with by parental neglect and lack of a stable home.
5. He suffered a serious injury, a motor vehicle injury, and spent considerable time as a child in hospital. That interfered with his schooling. He complains that he still has chronic pain as a result of it and another, later, motor vehicle accident injury.
6. A primary focus of his life was cannabis. This is consistent with a degree of social isolation and limited close relationships. His homelessness and his focus on the drug rather than looking after himself, his excessive cannabis use had an effect on his mental state. It seems to be interrelated to depression that may have resulted from his childhood neglect. The psychologist believes he is suffering from a Major Depressive Disorder and Severe Cannabis Use Disorder.
7. The Court must take into account a history of significant physical and emotional neglect as a child: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; Nasrallah v R [2021] NSWCCA 207. Childhood deprivation can, and here does, go to my understanding of his reduced moral culpability. His capacity to grow and mature until today has been compromised. Drugs were used as a coping mechanism.
8. These are all relevant factors in this sentencing exercise. He is not to be sentenced in the same way a person who did not have that background is to be sentenced: Bugmy; Nasrallah; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
9. Mitton has a number of mental health disorders which are detailed in the report. I could not find, as submitted by Mr Kwan, for the offender, that there was any direct link between his mental illness and the offending. It is clear, however, that his mental state and his cannabis use had a significant impact on him; resulting in homelessness, resulting in him not thinking clearly, not engaged in consequential thinking. That background and mental illness meant that he did not have the maturity of his years, as I have earlier indicated.
10. Reduction in moral culpability can, and here does, mean that when it comes to the purposes of sentencing the Court focuses, less on general deterrence than it might for a person who did not have his background and mental condition. There are no absolute rules however, "… the only golden rule is that there is no golden rule.": Geddes v R (1936) 36 SR (NSW) 554 at [555]- [556].
11. Sentencing is not black and white. Here, despite the matters that I have found, general deterrence remains an important factor on sentencing. The community has to understand that if knives are carried, they might be used, and if used, those who use them against others will be punished. That said, the principle does not have the same weight as it would for a person who did not have the background and history before me: Bugmy; Nasrallah; De La Rosa. It is still appropriate that general deterrence be taken into account, but it is not taken into account with the same weight it would otherwise have been taken.
12. There is also a role here for specific deterrence. His time in custody should deter Mitton from further offending; I am confident of that. It will give him time to think, time to study, time to grow up but this must occur behind bars. I accept he is doing what he can while he is in custody. Given his youth, his apparent vulnerabilities and the underlying paranoia associated with his mental illness, he will, more than any others in gaol, feel apprehensive while in custody, a matter I take into account.
13. Because of the offender's youth, immaturity, need for supervision on release, need for assistance in learning how to, and engaging in, normal community life, he will need as much monitoring and assistance on release as can be given to him.
14. His record is not significant. He still has a chance to make a contribution to the community after he has served the minimum period which reflects the gravity of this offence and the purposes of sentencing to which I have referred.
15. I am indebted to Ms Kerr and Mr Kwan for their written and oral submissions. I have sought to deal with the matters that were in dispute between them in the course of this judgment.

Synthesis

1. Where a citizen is seriously injured and has permanent disability as a result, the courts have an obligation to impose sentences which vindicate the dignity of the victim. The sentence must display and reflect the community's disapproval of the offending and impose appropriate retribution. While those factors have to be moderated here for the subjective case made for the offender, the maximum penalty, standard non-parole period, a proper reflection of the harm that was done still require a significant sentence. That can be further moderated by a finding of special circumstances, for the reasons I have outlined.
2. As I said earlier, the victim should not equate his harm with the sentence imposed. It is often said that a victim who has permanent injury suffers a "life sentence". That is not within my province to hand out here and it is not appropriate. Mitton must be appropriately punished, but he must be returned to the community and hopefully returned to the community in a better state than when he went in.

Orders

1. The offender is convicted. I will take into account the plea of guilty. I will take into account the matter on the Form 1. I will take into account my finding of special circumstances.
2. There will be a sentence of 4 years and 6 months' imprisonment. The sentence will date from the date Mitton went into custody, 21 December 2022. Reflecting my finding of special circumstances there will be a non-parole period of 2 years and 6 months. It will commence on 21 December 2022. Mitton will be eligible for release on 20 June 2025. There will be a parole period of 2 years from that date. The total sentence will expire on 20 June 2027.
3. The release to parole will be subject to an order of the State Parole Authority. If the offender continues as he has done, he should expect release. If he changes his attitude then he may spend the entirety of that time in custody, it is up to him.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2024