Mann v The Queen

Case [2019] SASCFC 155

Supreme Court of South Australia

(Court of Criminal Appeal)

MANN v THE QUEEN

[2019] SASCFC 155

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Auxiliary Justice David)

17 December 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - OFFENCES ARISING OUT OF SAME TRANSACTION OR COURSE OF CONDUCT

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY

This is an appeal against sentence. The appellant was sentenced by a Judge of the District Court to 20 years imprisonment with a 16-year non-parole period for a total of 11 offences committed on 31 May 2015, 3 June 2015 and 13 June 2015. The appellant contends that the sentence imposed is manifestly excessive in the following ways:

1.  in the individual sentence imposed for the 31 May 2015 aggravated robbery;

2.  in failing to give weight to the extra-curial punishment received by the appellant by way of being shot by police in the course of offending on 13 June 2015;

3.  in making the sentence for the second count of aggravated possession of a prescribed firearm partially rather than wholly concurrent; and

4.  in the application of the principle of totality when imposing the final sentence.

Held, per Parker J (Kelly J and David AJ agreeing) allowing the appeal:

1.  The sentencing Judge did not err in fixing a head sentence of six years imprisonment for the aggravated robbery committed on 31 May 2015. The offending was a serious example of its kind in that it involved a very dangerous weapon and a significant level of violence. That the victims are drug users does not mitigate the appellants offending.

2.  The sentencing Judge took into account the appellant’s physical and psychological injuries to the extent that they were relevant. What weight was given to that issue was a matter for the sentencing Judge.

3.  The sentencing Judge erred in failing to order that the second offence of aggravated possession of a prescribed firearm be served concurrently. The second firearm offence was part of one multi-faceted course of criminal conduct. That the appellant left one firearm in the car and utilised the other firearm during the course of offending is an artificial distinction.

4.  The second firearm offence is to be served concurrently with the sentences for the offences committed on 13 June 2015.

5.  While the appellant committed a series of serious and in certain respects materially different offences over a period of three weeks, a cumulative starting point of 19 years imprisonment is excessive in all the circumstances. 

6.  The total head sentence is to be 17 years imprisonment. The non-parole period is to be 13 years, seven months and six days. Both the head sentence and non-parole period are to be backdated to 13 June 2015.

Continue reading Mann v The Queen

Sign in free to access the full text

Details
AGLC
Mann v The Queen [2019] SASCFC 155
Case
[2019] SASCFC 155
Decision Date

CaseChat Overview and Summary

The appellant, Mann, appealed against a sentence imposed by the District Court. He had been convicted of 11 offences committed between 31 May and 13 June 2015 and sentenced to 20 years imprisonment with a 16-year non-parole period. The appellant argued that the sentence was manifestly excessive.

The legal issues before the Court of Appeal concerned whether the sentencing judge erred in imposing the sentence, specifically whether the total sentence was manifestly excessive, and whether the principle of totality had been correctly applied. The Court was required to consider the circumstances of the offences, the appellant's criminal history, and the relevant sentencing principles, including the discretion of the sentencing judge and the grounds upon which an appellate court may intervene.

The Court found that while the offences were serious and committed over a relatively short period, the cumulative starting point of 19 years imprisonment was excessive when applying the totality principle. The Court noted that an appellate court will intervene if specific error is shown, or if the result is unreasonable or plainly unjust. In this instance, the Court determined that the sentence was disproportionate.

The appeal was allowed. The Court varied the sentence, imposing a total head sentence of 17 years imprisonment and a non-parole period of 13 years, seven months, and six days, back-dated to 13 June 2015. The sentence for the second firearm offence was ordered to be served concurrently with the sentences for the offences committed on 13 June 2015.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant seeks orders that the sentence be set aside and that a lesser sentence be imposed by this Court. Background of the offending The offences were committed over a two-week period from 31 May to 13 June 2015. William Coulthard and Shiranta Coaby had purchased methylamphetamine from Rebecca Moroney-Gray. There was a dispute over the quality of the drugs and Ms Moroney-Gray agreed to meet the purchasers in a parking area in Prospect to replace them. On 31 May 2015, Ms Moroney-Gray attended the parking area to exchange the drugs. She was accompanied by the appellant. The appellant approached the Commodore vehicle driven by Mr Coulthard and pointed a sawn-off shot gun at his face through the driver’s side window. The appellant demanded Mr Coulthard and Ms Coaby get out of the vehicle and the appellant drove away in it. Within half an hour of the vehicle being stolen it was located by police at a service station. A police pursuit ensued. The police pursued the vehicle on Main Road, Hampstead Road and the streets in between. It was detected by a speed camera at the Gepps Cross intersection travelling at 81 kilometres per hour, well over the 60 kilometres per hour speed limit. The pursuit was terminated and the vehicle later located by police at the appellant’s address. For this offending, the appellant was charged with one count of aggravated robbery and one count of aggravated drive dangerously to escape police pursuit. On 3 June 2015, the appellant attended at the Para Hills Post Office. He held a sawn-off shotgun at a staff member and by demands and threat of the shotgun, took the sum of $490. There were customers at the post office at the time of the offence. For this offending, the appellant was charged with one count of aggravated robbery. The remainder of the offences occurred on 13 June 2015. The appellant was under the influence of methylamphetamine at the time. In the early hours of that morning, the appellant and an accomplice, Mr Busuttil, broke into the premises of the Friendly Grocer supermarket at Highgate and took a number of items, including cigarettes and a cash register containing a sum of money. The appellant was charged with one count of theft (by receiving) for this offence. Later that morning the appellant and Mr Busuttil entered the premises at 200 East Terrace, Adelaide. There are a number of businesses located at that address, including Neways International and Ouwens Casserly Real Estate. The appellant gained entry into the office of Neways International and a number of items were removed from that office. At approximately 5:00 am the appellant and Mr Busuttil broke into the office of Ouwens Casserly Real Estate. They activated the silent alarm and police attended. On becoming aware of the police presence, the appellant ascended to the roof of the building. STAR Group was called in. A helicopter search of the rooftop failed to locate the offenders. Two STAR Group officers gained access to the roof through a neighbouring building and commenced a search of the rooftop.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

While the appellant undoubtedly committed a series of serious and in certain respects materially different offences over a period of some three weeks, I consider that the application of the totality principle as explained in Richardson and Creed indicated that the cumulative starting point of imprisonment for 19 years was excessive in all the circumstances. I would uphold the appeal and impose a head sentence of imprisonment for 17 years. As the appellant is a serious repeat offender I would fix the non-parole period at 13 years, seven months and six days as required by s 54(1)(b) of the Sentencing Act 2017 (SA). Conclusion I would allow the appeal. I would order that the sentence for the second firearm offence be served concurrently with the sentences for the offences committed on 13 June 2015. I would impose a total head sentence of 17 years imprisonment. I would fix a non‑parole period of 13 years, seven months and six days. That sentence should be back-dated to 13 June 2015 when the appellant was taken into custody. DAVID AJ: I would allow the appeal. I agree with the reasons of Parker J and the orders he proposes.

Ratio Decidendi

Legal Principle Established

The Crown contends that the penalty was extremely merciful given the maximum penalty of 15 years imprisonment for the firearms offences and the fact that the appellant had a previous conviction for possession of a similar firearm. It was well within the discretion of the Judge to make the sentence partially concurrent by applying the principle of totality. ConsiderationPrinciples which apply to sentence appeals The circumstances in which an appellate court may interfere with a decision on sentence are set out in R v Jongewaard where Doyle CJ said:[4][40]The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:[25] As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.[4] (2009) 266 LSJS 283; [2009] SASC 346. This approach was further explained by Kirby J in Dinsdale v The Queen:[5][59]As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.[5] (2000) 202 CLR 321. Aggravated robbery on 31 May 2015 I will first consider the appellant’s assertion that the penalty imposed for the 31 May 2015 armed robbery was manifestly excessive. The offence of armed robbery was committed against Mr Coulthard. The maximum penalty for that offence is life imprisonment. In Place the defendant pleaded guilty to six offences of armed robbery in a period of three weeks. He robbed liquor stores, service stations and a retail store. On each occasion, the defendant obtained small amounts of money which was used to finance his drug addiction.