Mansfield v The Queen

[2011] VSCA 290

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0937

WILLIAM MANSFIELD
	Appellant
v
THE QUEEN	Respondent

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JUDGES	BONGIORNO JA and WHELAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 August 2011
DATE OF JUDGMENT	19 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 290
JUDGMENT APPEALED FROM	R v Mansfield (Unreported, County Court of Victoria, Judge Mullaly, 4 December 2009)

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CRIMINAL LAW – Appeal against sentence – Armed Robbery and being a prohibited person in possession of a firearm – Five prior convictions for armed robbery – Total effective sentence of fourteen years three months imposed with a non-parole period of eleven years – Not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Hughan	Robert Stary & Associates
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

1. On 27 November 2009, the appellant pleaded guilty before Judge Mullaly in the County Court at Shepparton to one count of armed robbery (count 1) and one count of being a prohibited person carrying an unregistered firearm (count 2).  On 4 December 2009, he was sentenced, together with a co‑offender, Peter Sinclair, as follows:

Count	Sentence	Cumulation
Count 1	14 years’ imprisonment	Base sentence
Count 2	2 years’ imprisonment	3 months
Total effective sentence		14 years and 3 months’ imprisonment
Non-parole period		11 years

The Court made ancillary orders relating to the retention of a forensic sample provided by the appellant, disposal of property under the Confiscation Act 1997 and restitution.

1. On 10 September 2010, Ashley JA granted the appellant leave to appeal against his sentence on the ground of manifest excess.  Leave was refused in respect of the two other grounds of appeal advanced being that the sentencing judge placed too much weight on the appellant’s prior criminal history and that the partial cumulation of the sentence imposed on count 2 meant that the appellant was subject to double punishment.  The appellant now pursues the ground of manifest excess and seeks leave to appeal in respect both of the refused double punishment ground and a ground in the following terms:

The sentencing judge erred as to the maximum penalty for armed robbery at the time of the Appellant’s previous convictions for armed robbery (1983 & 1985).

1. The Crown did not file a response to the appellant’s written case in this instance.

1. The appellant formed a relationship via the internet with a woman he believed was in Russia called Tatyana Shaganova.  It is unclear if she in fact existed.  He wanted to arrange for her to come to Australia and decided to commit an armed robbery to obtain funds for this purpose.

1. He obtained a sawn‑off shotgun from an associate. He was a ‘prohibited person’ as defined in s 3 of the Firearms Act 1996 because of his then most recent prior conviction and sentence.  The appellant also obtained ammunition and test‑fired the shotgun ‘in the bush’.  He acknowledged that the sound of the shotgun firing was ‘a scary thing’, saying…