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Mansaray v The Queen

Mansaray v The Queen

Case [2018] NSWCCA 16 16 February 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mansaray v R [2018] NSWCCA 16
Hearing dates: 9 February 2018
Date of orders: 16 February 2018
Decision date: 16 February 2018
Before: Macfarlan JA at [1];
Hoeben CJ at CL at [2];
Garling J at [49]
Decision:
(1) Leave to appeal granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – offence of specially aggravated break and enter a dwelling and committing a serious indictable offence, namely robbery, contrary to s 112(3) Crimes Act 1900 (NSW) – co-offender pleaded guilty to lesser offence contrary to s 112(2) Crimes Act – whether parity principle required applicant’s sentence to be reduced – difference in objective seriousness of offending justified difference in sentences in circumstances where the subjective case of both offenders similar – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 112(3)
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited: 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
Category: Principal judgment
Parties: Kassim Mansaray – Applicant
Regina – Respondent Crown
Representation:
Counsel:
P Johnson – Applicant
B Baker – Respondent Crown
Solicitors:
A Scali – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/119722
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

30 November 2016

Before:

Frearson SC DCJ

File Number(s):

2015/119722

Judgment

MACFARLAN JA: I agree with Hoeben CJ at CL.
HOEBEN CJ at CL:

Nature of proceedings

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by Judge Frearson SC (the sentencing judge) in the Sydney District Court on 30 November 2016.

The applicant pleaded guilty to an offence of specially aggravated breaking and entering a dwelling and committing a serious indictable offence, namely robbery, contrary to s 112(3) of the Crimes Act 1900 (NSW). The circumstances of aggravation were that the applicant knew that there was a person in the place where the offence was to be committed and the circumstance of special aggravation was being armed with a dangerous weapon. The offence carries a maximum penalty of imprisonment for 25 years with a standard non-parole period of 7 years.
The applicant’s sentence proceedings were conducted together with those of a co-offender, Mr Yatim. Mr Yatim pleaded guilty to an offence of aggravated breaking and entering a dwelling and committing a serious indictable offence, namely robbery contrary to s 112(2) of the Crimes Act. The circumstances of aggravation were knowing that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mansaray v The Queen

Details

AGLC: Mansaray v The Queen [2018] NSWCCA 16
Case: [2018] NSWCCA 16
Decision Date: 16 February 2018

CaseChat Overview and Summary

The appellant, Mansaray, appealed against his sentence imposed by the District Court, contending that the sentence was manifestly excessive. Mansaray had been convicted of breaking and entering a dwelling and committing a robbery, actions which were governed by section 112(3) of the Crimes Act 1900 (NSW). His co-offender had pleaded guilty to a lesser offence under section 112(2) of the same Act. Mansaray argued that the principle of parity required his sentence to be reduced, as the difference in the objective seriousness of the offending did not justify the difference in the sentences when both offenders' subjective cases were similar. The appeal was heard by the Court of Criminal Appeal.

The court was tasked with determining whether the principle of parity mandated a reduction in Mansaray's sentence. The court considered whether the disparity in the sentences could be justified by the difference in the objective seriousness of the offending, given the similarity in the subjective circumstances of both offenders. The court also examined the sentencing principles that apply when a defendant is convicted of a more serious offence than the one for which a co-offender pleads guilty.

The court found that the principle of parity does not require identical sentences for co-offenders, provided the difference in the sentences is proportionate to the difference in the objective seriousness of the offending. The court noted that the disparity in the sentences was justified by the greater culpability of Mansaray's actions, as his offence was more serious than that of his co-offender. The court also emphasised the importance of considering the circumstances of each offender individually and the need to ensure that sentences reflect the culpability of the offender and the seriousness of the offending. The appeal was dismissed, and Mansaray's sentence was upheld.

The court did not order any modification to Mansaray's sentence. The decision reinforces the principle that sentences for co-offenders need not be identical, and the court has discretion to impose sentences that reflect the individual culpability of each offender and the specific circumstances of the offence.

Orders