Citation: Adam Mansour v R; Shannon Hughes v R [2013] NSWCCA 35
Court: NSW Court of Criminal Appeal
Date: 27 February 2013
Judges: Simpson J, McCallum J, Bellew J (all agreeing)
Background
Two applicants, referred to here as Mansour and Hughes, were convicted after a judge-alone trial in the District Court of recklessly causing grievous bodily harm in company (s 35(1) of the Crimes Act 1900) and affray (s 93C(1)). The convictions arose from a violent and unprovoked attack on a stranger at a Kings Cross nightclub in October 2009. The victim had been sitting at a table minding his own business when a confrontation initiated by a third party, Elmir, drew the two applicants in.
The attack was captured on CCTV. Mansour and Hughes joined Elmir in striking the victim, continued to kick and stomp on him while he lay unconscious on the ground, and resisted the efforts of security officers to intervene. The victim suffered a compound jaw fracture, dental injuries requiring root canal treatment and crowns, a fractured finger, and ongoing psychological harm including panic attacks in crowds.
Judge Woodburne SC sentenced Mansour to a total term of 4 years and 18 days (non-parole period of 2 years and 9 days), and Hughes to a total term of 4 years and 6 months (non-parole period of 2 years and 3 months). Mansour received a 10% discount reflecting a pre-trial offer to plead guilty to the alternative offence of which he was ultimately convicted. Both applicants sought leave to appeal against sentence only; neither challenged conviction, and no parity ground was raised.
Legal Issues
- Whether there was an inconsistency between the sentencing judge's findings and the sentences ultimately imposed.
- Whether the sentences imposed were manifestly excessive.
Decision
The applicants argued that the sentencing judge's characterisation of the victim's injuries as falling at the "lower end" of the relevant scale was inconsistent with the length of the sentences imposed. Bellew J, with whom Simpson and McCallum JJ agreed, rejected this argument. The sentencing judge had explicitly acknowledged that a finding of injuries at the lower end did not mean the offending was not serious, and had then identified a range of aggravating circumstances, including the nature and number of blows, the victim's loss of consciousness, and the significant degree of unprovoked violence.
On the question of manifest excess, the Court applied the standard from House v The King (1936) 55 CLR 499 and Dinsdale v The Queen (2000) 202 CLR 321, requiring an applicant to show that the sentence was unreasonable or plainly unjust. The Court found the conduct of each applicant was seriously aggravated: both were already on good behaviour bonds for prior offences of violence, those bonds having been imposed only weeks before the nightclub attack.
The attack was described by the sentencing judge as unprovoked, unwarranted, sickening, brutal, and cowardly, a description Bellew J endorsed as entirely accurate. The victim had a legitimate expectation to socialise without being subjected to serious violence, and the attack was carried out in complete disregard of his personal safety. The Court found the sentences were neither unreasonable nor plainly unjust, and the ground of manifest excess was not made out.
Orders Made
- Leave to appeal refused (for each applicant).
Key Takeaways
- In dismissing both applications, the Court of Criminal Appeal confirmed that a sentencing judge's finding that injuries fall at the "lower end" of a relevant scale does not, without more, signal inconsistency with a substantial custodial term, provided the judge also accounts for other aggravating features of the offending.
- A sentence will not be manifestly excessive unless it is unreasonable or plainly unjust, consistent with the test in Dinsdale v The Queen (2000) 202 CLR 321.
- Where an offender was already subject to a good behaviour bond for violence at the time of further violent offending, that prior conduct operates as a significant aggravating factor in sentencing.
- No inconsistency arises from a sentencing judge acknowledging lesser physical harm while still imposing substantial terms, where the overall criminality of the conduct, including the number of blows, the continuation of the attack on a helpless victim, and resistance to security officers, justifies the sentence.
- The Court gave weight to the victim's psychological injuries, including panic attacks, alongside his physical injuries in assessing the overall seriousness of the offending.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33(1), 35(1), 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- AM v R [2012] NSWCCA 203
- Apthorpe v R [2012] NSWCCA 100
- Dinsdale v The Queen (2000) 202 CLR 321
- Han v R [2009] NSWCCA 300
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Lobsey v R [2012] NSWCCA 239
- Matzick v R [2007] NSWCCA 92
- R v Mitchell; R v Gallagher [2007] NSWCCA 296
- R v McCulloch [2009] NSWCCA 94; (2009) 194 A Crim R 39
- R v Nikolovska [2010] NSWCCA 169
- R v Westerman [2004] NSWCCA 161
- R v Woods (CCA (NSW) 9 October 1990, unreported)
- R v Wright [1998] VSCA 84
- R v Zhang [2004] NSWCCA 358