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 584Category: Principal judgment Parties: Kassim Mansaray – Applicant
Regina – Respondent CrownRepresentation: Counsel:
Solicitors:
P Johnson – Applicant
B Baker – Respondent Crown
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
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MACFARLAN JA: I agree with Hoeben CJ at CL.
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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.
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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.
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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…
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- AGLC
- Mansaray v The Queen [2018] NSWCCA 16
- Case
- [2018] NSWCCA 16
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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