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Court of Criminal Appeal 2 May 2005

Regina v Mansour (No 2)

[2005] NSWCCA 172

Theft & property
CRIMINAL LAW AND PROCEDURE SENTENCE NO SPECIAL POINT OF PRINCIPLE

Citation: Regina v Mansour (No 2) [2005] NSWCCA 172
Court: New South Wales Court of Criminal Appeal
Date: 2 May 2005
Judge(s): Grove J, Hulme J, Simpson J

Background

The applicant pleaded guilty in the District Court at Parramatta to aggravated breaking, entering and stealing (committed in company), an offence carrying a maximum penalty of 20 years imprisonment. Two further offences of a similar nature were taken into account on a Form 1 (a procedure by which additional offences are acknowledged at sentencing without separate conviction). The sentencing judge, Delaney DCJ, imposed a five-year term of imprisonment with a three-year non-parole period, both commencing 14 October 2003, along with a concurrent six-month fixed term for a separate breach of recognizance.

The applicant had also been sentenced separately by Blackmore DCJ for offences committed on 16 October 2002, which were chronologically later than the offences before Delaney DCJ but dealt with by Blackmore DCJ earlier. The Court of Criminal Appeal heard this application immediately after determining a related application concerning the Blackmore DCJ sentences. That earlier application had resulted in a variation to the one Blackmore DCJ sentence still current.

The present application sought leave to appeal against the severity of the sentence imposed by Delaney DCJ, raising concerns about the adequacy of the discount for remorse and whether the overall sentence was manifestly excessive.

  • Whether Delaney DCJ gave sufficient or any discount for the applicant's remorse and contrition
  • Whether the sentence of five years imprisonment was manifestly excessive having regard to totality and the sentences imposed by Blackmore DCJ
  • Whether the commencement date of the sentence needed adjustment to preserve the benefit of the Court's variation to the Blackmore DCJ sentence

Decision

The Court rejected the first ground of appeal. Delaney DCJ had expressly considered remorse, acknowledging the applicant's early guilty pleas and statements made to professionals, but qualified that assessment given the applicant's history of repetitive offending during a prolonged drug addiction. The Court found those findings were clearly open on the evidence and disclosed no error.

On manifest excess, the Court also found no error. The offences involved significant property values and substantial damage, and the applicant was on conditional liberty at the time of offending with an extensive prior record. Delaney DCJ was aware of the Blackmore DCJ sentences and had structured the sentence so it would commence two years before the applicant's parole eligibility date under those sentences, reflecting appropriate attention to totality.

However, the Court's variation to the Blackmore DCJ sentence in the related application meant the applicant would lose the benefit of that variation unless the commencement date of the present sentence was also adjusted. The Court made a corresponding adjustment, moving the commencement date from 14 October 2003 to 14 August 2003, to maintain the intended coordination between the two sets of sentences.

Hulme J added a brief observation that a five-year sentence for someone who had committed more than a dozen breaking and entering offences was, on one view, light relative to the twenty-year maximum, and that future sentencing courts may need to look more seriously toward the upper range.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed in part; orders as to commencement and expiry of the sentence quashed
  • In lieu thereof, the five-year term of imprisonment directed to commence on 14 August 2003, with a non-parole period of three years commencing 14 August 2003 and expiring 13 August 2006
  • 13 August 2006 specified as the earliest date of eligibility for release to parole

Key Takeaways

  • Where concurrent or coordinated sentences are varied on appeal, commencement dates of related sentences may require corresponding adjustment to preserve the intended overall structure of the applicant's imprisonment
  • A sentencing judge's qualified treatment of remorse is an open finding where the offender has a history of repetitive offending despite expressed contrition, particularly when drug addiction underlies persistent criminal conduct
  • No error arises in a sentence that accounts for totality by reference to other sentences the offender is already serving, provided the sentencing judge is aware of those sentences and their structure
  • The Court of Criminal Appeal confirmed that the chronological order in which offences are committed, as distinct from the order in which they are sentenced, can be relevant context when considering totality across proceedings
  • Hulme J's observation signals that a significant volume of prior offending of the same type may, in future cases, attract closer attention to the upper range of available penalties, even where the current sentence is not itself set aside as excessive

Legislation and Cases Referenced

Legislation:
- No specific legislation cited in the judgment text (the offence of aggravated breaking, entering and stealing carries a maximum of 20 years imprisonment under the relevant New South Wales criminal legislation)

Cases:
- Regina v Mansour (No 1) (the related application concerning the Blackmore DCJ sentences, heard immediately prior to this application; no separate citation provided in the text)