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Court of Criminal Appeal 26 May 1999

R-v-Mangolini

[1999] NSWCCA 155

Theft & property

Citation: R v Mangolini [1999] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 26 May 1999
Judge(s): Barr J, McInerney AJ

Background

The appellant was convicted after a jury trial in the District Court on three counts: break, enter and steal; possession of implements of safe-breaking; and stealing a conveyance. The offending involved the systematic plundering of a residential property while the owners were overseas. Entry was gained by disarming burglar alarms and jemmying a window, two safes were broken into using cutting and oxy equipment, and property valued at approximately $77,976 was taken, almost none of which was recovered.

At the time of sentencing, the appellant was already serving a prison sentence. District Court Judge Coleman imposed sentences structured to commence in September 2000, after the expiry of the existing sentence's minimum term. The primary sentence for break, enter and steal carried a minimum term of two years (less 210 days of pre-sentence custody) and an additional term of twelve months.

The appellant sought leave to appeal against those sentences, arguing they were excessive and that a structural error had been made in calculating the relationship between the minimum and additional terms.

  • Whether the sentences imposed by Judge Coleman were manifestly excessive, having regard to the objective seriousness of the offending
  • Whether the sentencing judge erred in the structure of the sentence by failing to find and identify special circumstances to justify an additional term exceeding one-third of the minimum term

Decision

The Court of Criminal Appeal rejected the submission that the sentences were manifestly excessive. McInerney AJ accepted Judge Coleman's characterisation of the offending as very serious: it was a deliberate, premeditated raid on a home whose occupants the appellant knew to be overseas, carried out with sophisticated tools and producing substantial loss. With a statutory maximum of fourteen years' penal servitude for break, enter and steal, the sentencing judge's assessment of objective gravity was not disturbed.

However, the Court identified a structural error in the sentencing. Under the applicable sentencing legislation, the additional term ordinarily must not exceed one-third of the minimum term. Where a sentencing judge wishes to impose a longer additional term, the judge must find and expressly identify "special circumstances." Judge Coleman had apparently given no consideration to this question, and the resulting sentence produced an additional term that exceeded the prescribed ratio without any identified special circumstances to justify it. This was an error warranting intervention.

McInerney AJ noted that special circumstances did exist on the facts: this was the appellant's first custodial sentence, he was a young man with an accepted heroin addiction that he was attempting to address, and the sentencing judge had accepted that extended supervision would be beneficial. The Court restructured the sentence to give effect to those special circumstances, imposing an additional term of eighteen months against a minimum term of approximately eleven months, and expressly identifying the special circumstances that justified departing from the one-third ratio.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • Sentences on all three counts quashed
  • Count 1 (break, enter and steal): minimum term of penal servitude commencing 5 September 2000 and expiring 7 August 2001; additional term of 18 months commencing 8 August 2001 and expiring 7 February 2003
  • Counts 2 and 3: fixed terms of penal servitude commencing 5 September 2000 and expiring 7 August 2001
  • Appellant eligible for release on parole on 7 August 2001

Key Takeaways

  • A sentencing court must expressly identify "special circumstances" before imposing an additional term that exceeds one-third of the minimum term; failure to turn its mind to this question is a legal error justifying appellate intervention.
  • The objective seriousness of an offence remains the primary consideration in a severity appeal; the Court of Criminal Appeal confirmed that a sophisticated, premeditated residential burglary producing substantial loss and involving professional tools warranted a substantial sentence.
  • A finding of manifest excess requires more than disagreement with the sentencing discretion; the Court declined to intervene on that ground because the sentence was not outside the available range given the gravity of the conduct and the statutory maximum of fourteen years.
  • Special circumstances capable of justifying a longer additional term can include a first period of custodial imprisonment, a young offender's need for supervision, and an accepted need for rehabilitation support.
  • Where resentencing produces an anomalous structural result (here, an extended additional term that still does not exceed one-third of the total custodial period to be served), the court may nonetheless maintain the sentence if the minimum term adequately reflects the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Sentencing provisions governing minimum terms, additional terms, and the one-third ratio rule (the specific Act is not identified in the judgment text, but the provisions are those of the Sentencing Act 1989 (NSW) as applicable at the time)

Cases cited:
- No cases were cited in the portion of the judgment provided.