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Court of Criminal Appeal 16 February 2018

Mansaray v R

[2018] NSWCCA 16

Theft & property
CRIMINAL LAW SENTENCE APPEAL APPEAL DISMISSED.

Citation: Mansaray v R [2018] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 16 February 2018
Judge(s): Macfarlan JA; Hoeben CJ at CL; Garling J

Background

The appellant pleaded guilty in the Sydney District Court to specially aggravated break and enter and robbery under s 112(3) of the Crimes Act 1900 (NSW), an offence carrying a maximum of 25 years imprisonment and a standard non-parole period of 7 years. His co-offender pleaded guilty to the lesser offence of aggravated break and enter and robbery under s 112(2), which carries a maximum of 20 years with a standard non-parole period of 5 years. The sentencing judge dealt with both offenders together.

The offending involved a late-night home invasion at a Newtown unit. The primary victim was confronted by two men, one wielding a large kitchen knife and another pointing a rifle at him. The victim was forced to open a safe and hand over $11,000 in cash, cannabis, and MDMA. Other residents in the unit were awake during the incident. The appellant was present in the hallway during the robbery, organised the enterprise, and was part of a group that included at least one person armed with a dangerous weapon.

The sentencing judge imposed 5 years and 9 months with a non-parole period of 3 years and 5 months on the appellant, and 3 years and 4 months with a non-parole period of 2 years on the co-offender. The appellant sought leave to appeal on a single ground: that the co-offender's lesser sentence gave rise to a justifiable sense of grievance.

  • Whether the parity principle required the appellant's sentence to be reduced to avoid a justifiable sense of grievance arising from the disparity with the co-offender's sentence
  • Whether the difference in objective seriousness between the two offences justified the significant difference in the sentences imposed

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach.

Hoeben CJ at CL identified the central distinction between the two offenders as the difference in objective seriousness of their respective offending. The appellant was convicted under s 112(3), the specially aggravated form of the offence, because he had knowledge that a dangerous weapon would be used in the robbery. That knowledge was central: a rifle had been cocked and pointed directly at the victim during the offence. The co-offender, by contrast, did not enter the premises, played a more minor role as a lookout, and had no apparent knowledge that any offender was armed. These factual differences produced materially different legislative guideposts, including different maximum penalties and standard non-parole periods.

On the subjective side, the court found there was little meaningful difference between the two offenders that would require significant differentiation in penalty. Although the appellant had a less extensive criminal record and a more disadvantaged background, the co-offender was approximately 20 months younger. The court treated that age gap as significant given its relevance to maturity and capacity to learn from experience for persons under 21.

The court concluded that the sentence differential was fully explicable by the difference in the charges, the applicable maximum penalties, and the qualitative judgments required of the sentencing judge, particularly given that the same judge sentenced both offenders.

Orders Made

  • Leave to appeal granted
  • The appeal is dismissed

Key Takeaways

  • The parity principle does not mandate equivalent sentences where co-offenders are convicted of offences with materially different objective seriousness, even when their subjective circumstances are broadly comparable.
  • A conviction under s 112(3) of the Crimes Act 1900 (specially aggravated form) carries significantly higher legislative guideposts than s 112(2), and those differences legitimately produce a larger sentencing gap between co-offenders.
  • Knowledge that a dangerous weapon would be used, rather than personal possession of that weapon, was sufficient to elevate the objective gravity of the appellant's offending.
  • An age gap of around 20 months can carry material weight in the subjective assessment of young offenders, particularly where both are under or around 21 at the time of the offending.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where the same sentencing judge deals with both co-offenders together, an appellate court should be slow to disturb the resulting sentence differential.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2) and s 112(3)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Daw v R [2017] NSWCCA 327
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Iskander v R [2013] NSWCCA 235
- Miles v R [2017] NSWCCA 266
- R v Swan [2006] NSWCCA 47
- Usher v R [2016] NSWCCA 276
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
- Wong v The Queen [2001] HCA 64; 207 CLR 584