Citation: Regina v Mankaryous; Regina v Mankaryous [2011] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 20 July 2011
Judges: Allsop P, Hidden J, Hall J (judgment by Hall J, others agreeing)
Background
Two brothers pleaded guilty in the District Court to two offences each: robbery in company with wounding (s 98, Crimes Act 1900, maximum 25 years, standard non-parole period of 7 years) and robbery in company while armed with a dangerous weapon (s 97(2), Crimes Act 1900, maximum 25 years). The offences arose from a violent home invasion on 8 February 2009. One female victim was punched to the face, kicked in the head, and suffered a gaping laceration and broken teeth. The male victim was pushed to the ground and had a pistol pressed to his face.
The guilty pleas were entered after the jury had been empanelled, on what was the third listing for trial, following two earlier aborted proceedings. The District Court imposed fully concurrent sentences of four years imprisonment for both offenders, with non-parole periods of 2 years and 5 months (for the first respondent, dating from March 2009) and 1 year and 5 months (for the second respondent, dating from February 2011).
The Crown appealed under s 5D of the Criminal Appeal Act 1912, contending the sentences were manifestly inadequate. By the time of the appeal hearing, the first respondent was close to release on parole.
Legal Issues
- Whether the sentencing judge erred in classifying Count 1 as "substantially below mid-range" of objective seriousness
- Whether the degree of departure from the standard non-parole period of 7 years was so great as to manifest error
- Whether the sentencing judge erred in finding no continuing injuries to the female victim
- Whether the sentencing judge improperly used the (allegedly inadequate) sentence for one respondent as the baseline for sentencing the other
- Whether the sentencing judge erred in making the sentences for Counts 1 and 2 entirely concurrent
- Whether, given the imminent release of one respondent, considerations of rehabilitation displaced the sentencing objectives of deterrence and retribution
- Whether the sentences, individually and in combination, were manifestly inadequate
Decision
Hall J (with whom Allsop P and Hidden J agreed) upheld the Crown appeals in respect of both respondents. The sentencing judge's classification of the offending as "substantially below mid-range" was found to be in error. The home invasion involved premeditation, the use of a firearm, serious physical violence inflicted on a vulnerable victim in her own home, and subsequent threats to shoot the victims if they contacted police. These features, taken together, placed the offending at or above the mid-range of objective gravity for offences under s 98.
The Court found that the degree of departure from the standard non-parole period of 7 years (the sentences carried non-parole periods of roughly 2 years and 5 months and 1 year and 5 months respectively) was so substantial as to reflect error. No sufficient combination of mitigating factors justified such a dramatic reduction. The sentencing judge had also erred by calculating the second respondent's sentence as a proportion of the first respondent's already inadequate sentence.
On the question of imminent release, the Court acknowledged the double jeopardy principle that applies on Crown appeals (that is, courts should be cautious about re-sentencing an offender who has already structured their life around an anticipated release date). However, the Court held that where sentences are manifestly inadequate, the purposes of sentencing including general deterrence and retribution remain relevant and cannot simply yield to rehabilitation considerations alone. The Court found special circumstances warranted a reduction in the statutory non-parole period ratio for both offenders, given their rehabilitation prospects, but the overall sentences were restructured to better reflect the objective seriousness of the offending.
Orders Made
Michael Mankaryous:
- Crown appeal upheld
- Original sentences on Counts 1 and 2 quashed
- Count 1: Non-parole period of 2 years and 5 months (9 March 2009 to 8 August 2011), balance of term of 3 years and 7 months (expiring 8 March 2015)
- Count 2: Non-parole period of 2 years and 5 months (9 March 2009 to 8 August 2011), balance of term of 3 years and 7 months (expiring 8 March 2015)
Medhat Mankaryous:
- Crown appeal upheld
- Original sentences on Counts 1 and 2 quashed
- Count 1: Non-parole period of 1 year and 5 months (8 February 2011 to 7 July 2012), balance of term of 3 years and 7 months (expiring 7 February 2016)
- Count 2: Non-parole period of 1 year and 5 months (8 February 2011 to 7 July 2012), balance of term of 3 years and 7 months (expiring 7 February 2016)
Key Takeaways
- A sentencing court's classification of objective seriousness is open to appellate correction where the facts, including premeditation, use of a weapon, and serious violence in a domestic setting, are inconsistent with a "substantially below mid-range" characterisation.
- The double jeopardy principle on Crown sentencing appeals does not operate as an absolute bar to re-sentencing; where sentences are manifestly inadequate, the Court of Criminal Appeal will intervene even when an offender's release is imminent.
- Rehabilitation prospects, while a relevant sentencing consideration, do not displace the statutory objectives of general deterrence and retribution, particularly in cases of serious violent offending.
- Using an already inadequate sentence for one co-offender as the arithmetic baseline for sentencing another compounds the original error and constitutes an independent ground of appellate intervention.
- Under the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period for s 98 offences is 7 years; substantial departures from that benchmark require sufficient justification, and a departure of the magnitude seen here was found to manifest error in the absence of compelling mitigating circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(2), 98
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes (Appeal & Review) Act 2001 (NSW)
- Crimes (Appeal & Review) Amendment Double Jeopardy Act 2009 (NSW)
Cases:
- Dinsdale v R [2000] HCA 54
- Duffy & Mangan v R [2009] NSWCCA 304
- Licastro v R [2008] NSWCCA 131
- Mulato v R [2006] NSWCCA 282
- R v Cahayadi [2007] NSWCCA 1
- R v Davies [2004] NSWCCA 319
- R v Dodd (1991) 57 A Crim R 349
- R v Dole & Nguyen [2010] NSWCCA 101
- R v Edwards (1996) 90 A Crim R 510
- R v Hamieh [2010] NSWCCA 189
- R v Henry (1999) 46 NSWLR 346
- R v JW [2010] NSWCCA 49
- R v Knight & Biuvanua [2007] NSWCCA 283
- R v Kyroglou [1999] NSWCCA 106
- R v Maisey [2005] NSWCCA 347
- R v McEvoy [2010] NSWCCA 110
- R v PB [2008] NSWCCA 109
- R v XX [2009] NSWCCA 115