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Court of Criminal Appeal 2 May 2005

Regina v Mansour (No 1)

[2005] NSWCCA 173

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE OTHER GROUNDS UNSUSTAINED NO PARTICULAR POINT OF PRINCIPLE

Citation: Regina v Mansour (No 1) [2005] NSWCCA 173
Court: New South Wales Court of Criminal Appeal
Date: 2 May 2005
Judge(s): Grove J (with Hulme J and Simpson J agreeing)

Background

The appellant pleaded guilty in the Parramatta District Court to two counts of assaulting police with intent to avoid lawful apprehension, and was committed for sentence on charges of breaking, entering and stealing and possessing housebreaking implements. All offences arose from a single afternoon in October 2002, when police observed the appellant emerging from a house he had broken into while carrying stolen property and a metal bar. He resisted arrest before ultimately being subdued.

Blackmore DCJ sentenced the appellant in May 2003. The breaking, entering and stealing sentence ran cumulatively on the assault sentences, reflecting the judge's view that two distinct episodes of criminal conduct had occurred. The appellant, who had a significant heroin addiction and an extensive prior record, sought leave to appeal against the severity of the sentences on multiple grounds.

Because several sentences had already expired by the time the appeal was heard, only the sentence for breaking, entering and stealing remained live for correction.

  • Whether the overall sentence was manifestly excessive given the appellant's family support and rehabilitation prospects
  • Whether the sentences for assault and breaking, entering and stealing should have been served concurrently rather than cumulatively
  • Whether the sentencing judge had correctly implemented his own finding about a discount for the guilty plea
  • Whether the sentencing judge placed undue weight on a suspended sentence as an aggravating factor
  • Whether insufficient weight was given to other mitigating matters

Decision

The Court dismissed most of the appeal grounds. On manifest excess, the repeated failures at rehabilitation and the existence of multiple conditional liberty orders at the time of offending meant leniency was not warranted. The prior record and the commission of offences while on recognizances were properly treated as aggravating factors.

On the question of accumulation, the Court accepted that the assault offences and the break, enter and steal were two clearly separated manifestations of criminal conduct. The assaults on police occurred after the burglary was complete, as the appellant attempted to avoid apprehension, and there was no error in treating them separately.

The sole successful ground concerned the guilty plea discount. The sentencing judge had found that a 25 percent discount should apply, but the Crown conceded that this finding had not been properly carried through into the final calculation of the sentence terms. The Court agreed that this required correction, and granted an extension of time to allow the error to be remedied.

Applying a 25 percent discount to the overall term the sentencing judge had in mind produced a head sentence approximately four months shorter than what was imposed. The Court reduced the head sentence for breaking, entering and stealing by four months, maintaining the ratio of non-parole period to head sentence that the sentencing judge had set by reference to special circumstances.

Orders Made

  • Extension of time for lodging the appeal granted
  • Leave to appeal against sentence granted; appeal allowed in part
  • The sentence for breaking, entering and stealing (imposed in the District Court) was quashed and replaced with imprisonment for three years and eight months, dating from 16 October 2003
  • Non-parole period set at one year and ten months, commencing 16 October 2003 and expiring 15 August 2005
  • Earliest date of release to parole specified as 15 August 2005

Key Takeaways

  • Where a sentencing judge makes an express finding that a guilty plea warrants a discount but fails to implement that finding in the actual sentence calculation, the Court of Criminal Appeal will intervene to correct the inconsistency, even where the appeal is lodged out of time.
  • Committing offences while subject to multiple conditional liberty orders (such as recognizances, good behaviour bonds, and suspended sentences) constitutes a matter of aggravation; the staleness of the underlying offence that generated the bond does not diminish this aggravation.
  • Cumulative sentences are appropriate where distinct, sequential episodes of criminal conduct are involved. The Court of Criminal Appeal confirmed that assault offences committed to escape arrest following a completed burglary represent a separate manifestation of criminality from the burglary itself.
  • Repeated unsuccessful attempts at rehabilitation do not, of themselves, generate a strong claim to leniency on the ground of rehabilitation prospects.
  • In calculating the corrected sentence, the Court adopted a liberal approach, applying the full reduction to the head sentence and preserving the sentencing judge's own ratio between head sentence and non-parole period based on the finding of special circumstances.

Legislation and Cases Referenced

Cases:
- R v Ponfield (1999) 48 NSWLR 327 (sentencing principles for breaking, entering and stealing)