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Court of Criminal Appeal 21 July 1999

R v Mangan

[1999] NSWCCA 194

Assault & violenceTheft & propertyFirearms & weapons
ACTS CITED :

Citation: R v Mangan [1999] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 21 July 1999
Judge(s): Studdert J, Simpson J

Background

The appellant was convicted in the District Court of armed robbery in company under s 97(1) of the Crimes Act, following a trial before Patten DCJ. The offence occurred on Easter Monday 1995, when the appellant and a co-offender entered a garden centre at Ourimbah wearing dust masks as disguises. The appellant held a gun and, together with his co-offender, herded staff into a room and forced the manager to open a safe, from which nearly $9,000 was taken.

The co-offender urged the appellant to shoot the manager when there was a delay in opening the safe. The gun was not discharged, and there was no finding that it was loaded. The trial judge directed an acquittal on the more serious aggravated charge under s 97(2) and left the matter to the jury under s 97(1), resulting in a conviction.

Patten DCJ sentenced the appellant to a total sentence of ten years five months, comprising a minimum term of seven years ten months (effectively eight years, accounting for time served) and an additional term of two years seven months. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the total sentence of ten years five months was manifestly excessive for an armed robbery in company under s 97(1) of the Crimes Act
  • What weight should be given to the fact that the firearm was not proven to have been loaded
  • How sentencing statistics and the guideline judgment in R v Henry should inform the appropriate sentencing range for this category of offence

Decision

The Court accepted that the offence was serious and involved a number of aggravating features: it was planned, committed by two offenders in disguise, involved the use of a firearm to terrorise victims in a confined space, and was carried out in a manner designed to maximise fear. The sentencing judge's characterisation of the offence as requiring a lengthy custodial term was not criticised.

On the question of the unloaded firearm, the Court agreed with the Crown that this factor did not diminish the seriousness of the offence in any substantial way. None of the victims would have known the weapon was unloaded, and the atmosphere of terror created was real and significant. The Court drew on R v Readman for the principle that robberies involving firearms can be assessed on a scale of escalating seriousness, but accepted that an unloaded weapon still placed the offence well within the serious range.

The Court considered both sentencing statistics and the guideline judgment in R v Henry, which established a baseline range of four to five years for a standard armed robbery involving a knife-wielding young offender with limited planning and a guilty plea. The Court found the appellant's case was clearly more serious than that baseline category. However, weighing all factors, the Court concluded that a total sentence exceeding ten years was beyond the upper limit of an appropriate range.

The Court substituted a total sentence of eight years, comprising a minimum term of six years and an additional term of two years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Appellant re-sentenced to a minimum term of six years penal servitude commencing 31 October 1997 and expiring 30 October 2003, plus an additional term of two years commencing 31 October 2003 and expiring 30 October 2005
  • First eligible date for parole specified as 31 October 2003

Key Takeaways

  • The Court of Criminal Appeal confirmed that the fact a firearm is not proven to have been loaded is a relevant mitigating factor, but does not significantly reduce the gravity of an armed robbery where the victims had no means of knowing the weapon was unloaded.
  • A total sentence of ten years five months for a single armed robbery in company, with no shot fired and no finding the weapon was loaded, was held to be manifestly excessive on the facts of this case.
  • Under the guideline in R v Henry, a four-to-five year starting range applies to standard armed robbery involving a knife, a limited criminal history, limited planning, and a guilty plea. More serious cases, involving additional aggravating features, justify sentences well above that range.
  • Sentencing statistics must be treated with caution. The Court of Criminal Appeal in Henry found that pre-existing statistics reflected systematic leniency, making them an unreliable guide to the proper range.
  • Planning, the use of disguises, the involvement of multiple offenders, and the deliberate creation of a terrorising atmosphere are all factors that elevate the seriousness of an armed robbery beyond the baseline category.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), ss 97(1) and 97(2)

Cases
- R v Readman (1990) 47 A Crim R 181
- R v Bloomfield (1998) 44 NSWLR 734
- R v Henry & Ors [1999] NSWCCA 111