Mansaray v The Queen

[2018] NSWCCA 16

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

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

2. 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.

3. 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.

4. 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 there was a person in the place where the offence was to be committed. This offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years.

5. The sentencing judge imposed the following sentences.

The applicant: Imprisonment for a term of 5 years and 9 months with a non-parole period of 3 years and 5 months. The sentence was to commence on 22 April 2015.

Mr Yatim: Imprisonment for a term of 3 years and 4 months with a non-parole period of 2 years. The sentence was to commence on 29 April 2015.

6. In sentencing the applicant, his Honour allowed a 10 per cent discount for the utilitarian value of the plea of guilty. Accordingly, the starting point for the head sentence was approximately 6 years and 5 months. The sentencing judge found special circumstances so that the non-parole period was approximately 60 per cent of the total term.

7. In sentencing Mr Yatim, the sentencing judge allowed a 12 per cent discount for the utilitarian value of his plea of guilty. Accordingly, the starting point for his head sentence was 3 years and 9½ months. The non-parole period was approximately 60 per cent of the total term.

8. The applicant relies upon a single ground of appeal:

Ground 1 – The sentence imposed upon the co-offender, Asym Yatim, gives rise to a justifiable sense of grievance by the applicant.

Factual background

9. There were two factual issues which initially confronted the sentencing judge. The first was whether the applicant was armed with a dangerous weapon and the second was whether Mr Yatim had entered the premises or was acting as a second lookout outside the premises. Having heard evidence, the sentencing judge was not satisfied that Mr Yatim entered the premises. He was satisfied that the applicant was armed with something and that he was in the company of others armed with a dangerous weapon and a knife but his Honour was not satisfied that the applicant was himself armed with a dangerous weapon. Nevertheless, his Honour found that the applicant was part of a criminal enterprise involving a dangerous weapon and that he entered the premises with other persons, at least one of whom was armed with a dangerous weapon. In those circumstances, the sentencing judge regarded it to be of little significance that the applicant himself was not personally armed with a dangerous weapon.

10. The offending occurred in a unit in King Street, Newtown. The unit was located at the top of a retail outlet and comprised three bedrooms. At the top of some stairs there was an entry door to the unit. Immediately through the door was a hallway which led to a T-section. To the left of the T-section were a kitchen and bathroom and to the right, three bedrooms and a living room.

11. The particular victim, who was the target of the offending, occupied the third bedroom to the right of the T-section. The middle bedroom and the first bedroom closest to the front door were each occupied by a male and female.

12. At approximately 11.50pm on 3 February 2015 the victim heard multiple footsteps running down the hallway after which the door to his room was smashed open and two males walked in. The victim was standing about a metre from the door when one of the males (male 1) approached him and waved a knife towards him yelling “Where’s the fucking shit? Give us your money”. The knife was a kitchen knife about 40cms long. Another male (male 2) was standing at the doorway about three metres away, pointing a rifle at the victim. The rifle was about 70-80cms long. Male 2 used his right hand to cock the rifle, which he held at about waist height.

13. The victim went to his bedside and retrieved a set of keys for a safe which was in the room. He opened the safe and handed male 1 a shoebox containing $11,000 in cash, two or three ounces of cannabis worth about $700 and five to six MDMA capsules and half a gram of MDMA in a plastic resealable bag. Male 1 kept demanding more saying “Where’s the rest of the shit?” The victim told him that he did not have anything else and male 2 checked the bedside table. While this was taking place, the applicant was walking up and down the hallway.

14. During the incident the other residents of the unit were in their bedrooms. Two of them were asleep in their room. They were awakened at about midnight by the sound of banging and slamming, followed by the sound of footsteps in the hallway. At one point the applicant opened their bedroom door and said “Stay here. This has nothing to do with you” after which he left.

15. The intruders remained in the unit for about three minutes in total. Two other residents were awake in their room, lying on beds listening to music using their computer. The door of their room was ajar. After the noise of the front door being kicked in, one of them looked out the bedroom door and saw men walking past. One of the men appeared to be holding a rifle. Both occupants put their backs against the door and moved a bookshelf against it. When someone tried to force it open from the other side, they leaned against the bookshelf to stop the door from opening.

16. The primary victim noticed that his phone was missing after the intruders left the premises. The police arrived at 10 minutes past midnight. It was as a result of investigations involving the victim’s phone that the applicant was implicated in the offending.

17. There was evidence before the sentencing judge of communications between the applicant and Mr Yatim on the evening of 3 February from about 8 to 8.15pm. Those communications made it clear that they were organising the break and enter/robbery enterprise.

18. The sentencing judge dealt with the subjective case of Mr Yatim first. He had a poor criminal record, both in the Children’s Court and as an adult. There was a robbery in company in 2010, resisting an officer in May 2012, possessing a prohibited drug in October 2014 and having custody of a knife in a public place in February 2015. He was punished with bonds and ICOs.

19. The present offence occurred while he was still serving an ICO and was on police bail for the knife offence. The sentencing judge characterised his record as one of persistent disobedience which would attract the application of Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 477. The sentencing judge noted that these criminal antecedents did not increase the objective gravity of the offending but would affect his sentence. The sentencing judge took into account that Mr Yatim was still serving an ICO and was on bail when this offence occurred.

20. The sentencing judge noted that from June 2015 to October 2016 his custodial record showed between 20 and 30 infringements. The sentencing judge concluded that this and his criminal history generally made a mockery of the suggestion that he had turned his life around and would not reoffend in the future.

21. Mr Yatim was born in Syria and arrived with his family at the age of two. He returned to Syria at the age of seven and did not return to Australia until he was aged 13. His lack of knowledge of English caused him difficulties at school and he was eventually expelled for truanting. His family was law-abiding. He had completed two years at TAFE as an apprentice electrician. He was born in September 1994 and was aged 20 years and 5 months at the time of the offending. He had a history of substance abuse, having commenced using cannabis at the age of 16. By the age of 18 he was smoking 15 cones of cannabis a day. At the age of 19 he reduced his cannabis use but commenced using MDMA.

22. It was common ground that Mr Yatim was not compliant with the requirements of his ICO but at the time of sentence he had not been sanctioned for any breach. He had strong parental support and was in a three year relationship with his fiancée. He had written a letter to the court in which he expressed his remorse and accepted that he had made some bad decisions in the past. He regarded his time in custody as something of a wake up call and as a result, he was ready to re-enter the community. His Honour was somewhat sceptical as to the contents of this letter.

23. The sentencing judge then considered the applicant’s subjective case. The applicant was born in December 1992 and was aged 22 years and 1 month at the time of the offences. He had received a good behaviour bond for possessing a prohibited drug in March 2014 and was still subject to that bond when the offences occurred. He was also on bail for a traffic matter at the time of the offending. The sentencing judge noted that these matters would affect the sentence but did not increase the gravity of the offending. He assessed the relative seriousness of the applicant’s offending and that of Mr Yatim at mid-range.

24. The applicant was the middle of three children. He was born in Africa and migrated to Australia with his mother and siblings at the age of 14. He had experienced a violent childhood in Africa and had witnessed his father being shot and killed when he was aged eight. He had performed some work in the construction industry. He has the support of his mother. He claimed to be under the influence of MDMA, cocaine and methylamphetamine at the time of the offences. This was only the second time that he had used methylamphetamine. He had, however, been using MDMA and cocaine on a daily basis for a couple of years. He had commenced his cocaine use when he was aged 18.

25. The sentencing judge accepted that the applicant had been diagnosed with post traumatic stress disorder and depression as a child as a result of his experiences in Africa. Although the applicant said that the offences were not premeditated, the sentencing judge noted that the communications which took place between Mr Yatim and the applicant before the offending were strongly suggestive of a degree of premeditation. His Honour further noted that the applicant tended to minimise the seriousness of his behaviour because the primary victim was a drug dealer and because what had occurred to him was a natural consequence of drug dealing.

26. The sentencing judge took into account a psychologist’s report which described in detail the traumatic experiences of the applicant in Africa before coming to Australia. He had been taken by rebels and had undergone bad experiences as a child soldier. He said that he had been forced to use cocaine, amphetamines and opiates as a child soldier and had then started using drugs again when he came to Australia.

27. The sentencing judge did not accept the applicant’s assertion that at the time of the offence he had consumed a large amount of MDMA and cocaine and did not intend to commit a crime. His Honour found that explanation to be inconsistent with the earlier communications between the applicant and Mr Yatim. The sentencing judge also found that this discrepancy undermined the applicant’s claim of remorse.

28. The sentencing judge did not accept that Mr Yatim and the applicant had turned their lives around and were at the crossroads. His Honour noted that this was the first time that both of them had been in custody. His Honour also noted that although there was only one intended victim, other people in the unit had been traumatised. The sentencing judge did accept that the applicant’s traumatic background reduced his moral culpability for the offending.

29. The sentencing judge also took into account some countervailing considerations and in particular, the likelihood of the applicant committing more offences because of his substance abuse and disadvantaged background. His Honour also noted that adequate punishment had to be assessed which denounced the offending conduct, recognised the harm to the victim and the community and which protected the community from home invasions. His Honour referred to the need to deter the applicant and others from engaging in this kind of conduct.

30. As already noted, his Honour was not particularly impressed by the contents of Mr Yatim’s letter and regarded much of it as self-serving and inconsistent with other evidence.

31. His Honour made similar observations in relation to the applicant:

“…some of his utterances to the report-writers are not consistent with any true remorse, and again there is a level of remorse but, indeed, his assertion as to his state of mind when he committed the crime is just not consistent with the facts. The facts demonstrate the contrary. They were talking about the job some hours before. That is the reality of it. There is no real acceptance of responsibility. They have pleaded; that is true.” (Sentence judgment 15.8)

32. The sentencing judge concluded that both Mr Yatim and the applicant were at a moderate to high risk of reoffending and that their prospects of rehabilitation were poor. His Honour did, however, take into account Mr Yatim’s age when the offence occurred. His Honour found special circumstances in relation to both offenders.

33. The applicant relied upon the following statements of principle:

Wong v The Queen [2001] HCA 64; 207 CLR 584 at [65]:

“65   To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. Publishing a table of predicted or intended outcomes masks the task of identifying what are relevant differences.” (Gaudron, Gummow and Hayne JJ)

Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462:

“30   In Lowe v The Queen and in Postiglione v the Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.” (French CJ, Crennan and Kiefel JJ)

34. The applicant accepted that there were differences in the charges and maximum penalties that he and Mr Yatim each faced. However, the applicant stressed the shared common purpose to break into the unit and rob the victim. The applicant submitted that if one put aside the additional element of the dangerous weapon, the roles of the applicant and Mr Yatim in the commission of the offence were to a large degree, very similar. The applicant submitted that although he went inside and Mr Yatim remained outside, his role inside the premises was effectively to patrol the corridor. He submitted that although he was armed with “something” at no stage was it alleged that he threatened anyone with whatever it was. Moreover, he did not personally confront and rob the victim. He did not touch or threaten anyone. The applicant submitted that effectively both he and Mr Yatim were lookouts with the only difference being that Mr Yatim was outside and he was inside.

35. The applicant accepted that because of the difference in the offences to which they had pleaded he would expect to receive a heavier sentence than Mr Yatim. His complaint was that it was the amount of the difference, i.e. 2 years and 5 months in the head sentence and 1 year 5 months in the non-parole period which was excessive and offended the parity principle. The applicant submitted that the differences in the offending were not such as would justify such a disparity in sentences.

36. The applicant placed particular weight upon his subjective case. He submitted that he had a stronger subjective case than Mr Yatim in that he had suffered a traumatic childhood and had a better criminal record. In that regard the applicant relied upon the statements of principle by the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) in Bugmy v The Queen [2013] HCA 37; 249 CLR 571.

Consideration

37. Following on from the statement of principle in Green v The Queen; Quinn v The Queen relied upon by the applicant the plurality said:

“31   Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender." The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen:

"the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."

The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.”

38. In this matter the applicant and Mr Yatim were each sentenced by the same judge. In those circumstances the Court should be cautious before determining that one co-offender has a justifiable sense of grievance based only on different sentencing outcomes: R v Swan [2006] NSWCCA 47 at [71]; Iskander v R [2013] NSWCCA 235 at [61]-[62]; Usher v R [2016] NSWCCA 276 at [73]; Daw v R [2017] NSWCCA 327.

39. The concession made by the applicant that because he was to be sentenced for a more serious offence than Mr Yatim he “must obviously receive a higher penalty than Yatim” while appropriate is important. It reduces the area of dispute to one of degree, i.e. the extent to which there should be a difference in the sentences. That is a matter on which minds may legitimately differ and fairly and squarely raises the exercise of the sentencing discretion by the sentencing judge.

40. In relation to a similar situation in Miles v R [2017] NSWCCA 266 Rothman J (with whom Leeming JA and Hamill J agreed) said:

39   Of course, most cases involve differences between co-offenders. No two offenders are identical. A difference in sentence between one co-offender and another that is intended to reflect a difference in the circumstances of each offender is another example of the exercise of a sentencing judgment. Such a judgment should be the subject of interference only where the difference can be said not to reflect the difference between the relevant offenders.

40   In other words, without using epithets or placing a gloss on the principle, different judges may arrive at different conclusions to reflect differences, each of which conclusion may be rational, reasonable and appropriate: see Wan v R [2017] NSWCCA 261 at [42] citing the judgment of the Court in DS v R [2014] NSWCCA 267 at [39], which makes clear that such descriptors are intended to ensure that the principle applies “where the discrepancy between the sentences is not reasonably explained by the degree of difference between co-offenders and their offending”.”

41. A comparison of the objective seriousness of the offending and of the respective subjective cases and other matters relevant to sentencing for these two offenders makes it clear that his Honour’s exercise of the sentencing discretion did not miscarry and does not offend the parity principle.

42. Apart from the obvious difference in the seriousness of the offences for which they were sentenced, the part played by the applicant in the offending was substantially more important than that of Mr Yatim. It was the applicant who entered the unit with armed offenders and was thus present when the door was kicked down and when weapons were brandished and the victim threatened. It was the applicant who patrolled the hallway and not only prevented interference with what was happening to the victim but made a significant contribution to the fear engendered in the other innocent occupants of the unit. The role of Mr Yatim was limited to that of a lookout outside the building who had no contact at all with the victims.

43. The sentencing judge’s findings as to the objective seriousness of the offending in each case need to be looked at in the context of the differing charges faced by the applicant and Mr Yatim. While his Honour found that the objective seriousness of the offences committed by each was within the midrange, those midrange findings relate to different offences. In other words, his Honour made a finding of midrange for the applicant in respect of an offence significantly more serious than that to which Mr Yatim pleaded. The difference between these offences related to the use of the dangerous weapon. The sentencing judge found that the applicant was armed with “something” and was in a joint criminal enterprise with an offender armed with a knife and another with a dangerous weapon in the form of a rifle which had been cocked and was pointed at the primary victim during the commission of the offence.

44. On the other hand, Mr Yatim was to be sentenced for a home invasion and robbery to which his contribution was relatively minor. There was no evidence that he was aware that any of the offenders had a dangerous weapon. It was the applicant’s knowledge that a dangerous weapon was to be used in the robbery which significantly increased the seriousness of the applicant’s offending in comparison with Mr Yatim. This meant that there were important differences in the legislative guideposts to be followed by the sentencing judge, i.e. the maximum penalty and the standard non-parole period.

45. The subjective circumstances of the applicant and Mr Yatim were not such as would require significant differentiation in terms of the amelioration of penalty. It is true that the applicant’s criminal record was not as extensive as that of Mr Yatim and that in his background he was substantially more disadvantaged than was Mr Yatim. This difference, however, is significantly reduced by reference to the age differential between them. Mr Yatim was 20 months younger than the applicant at the time of the offending. That is a significant age difference when one has regard to questions of maturity and ability to learn from experience for a person under 21 as Mr Yatim was. Their respective subjective cases were thus taken into account as part of the process of intuitive synthesis which led to the ultimate sentences. This was not a process where time in custody was to be added or subtracted on the basis of discretionary findings by his Honour.

46. In relation to the other aspects of their subjective cases, there was little between the applicant and Mr Yatim. They had similar employment histories and each had a history of drug use.

47. In summary, the difference between the sentences imposed upon the applicant and Mr Yatim is explicable by reference to the difference in the charges faced by each and the difference in the applicable maximum penalties bearing in mind the qualitative and discretionary judgments required of the sentencing judge. This is particularly so when the same judge sentenced both the applicant and Mr Yatim.

48. The orders which I propose are:

1. Leave to appeal granted.

2. The appeal is dismissed.

49. GARLING J: I agree with the orders proposed by the Chief Judge, and with his reasons.

**********

Decision last updated: 16 February 2018