Mansour v The State of Western Australia
[2015] WASCA 175
•1 SEPTEMBER 2015
MANSOUR -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 175
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 175 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:36/2015 | 4 JUNE 2015 | |
| Coram: | McLURE P BUSS JA | 1/09/15 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for an extension of time to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CYRILL MANSOUR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appellant and co-offenders convicted after trial of detaining the victim with intent to gain a benefit and unlawfully doing grievous bodily harm with intent Parity principle |
Legislation: | Criminal Code (WA), s 294(1), s 332(2)(a) |
Case References: | Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jardim v The State of Western Australia [2011] WASCA 83 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Taudevin [1996] 2 VR 402 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MANSOUR -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 175 CORAM : McLURE P
- BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WAGER DCJ
File No : IND 1312 of 2012
Catchwords:
Criminal law - Appeal against sentence - Appellant and co-offenders convicted after trial of detaining the victim with intent to gain a benefit and unlawfully doing grievous bodily harm with intent - Parity principle
Legislation:
Criminal Code (WA), s 294(1), s 332(2)(a)
Result:
Application for an extension of time to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D J McKenzie
Respondent : No appearance
Solicitors:
Appellant : David McKenzie Legal Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jardim v The State of Western Australia [2011] WASCA 83
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Taudevin [1996] 2 VR 402
1 McLURE P: I agree with Buss JA.
2 BUSS JA: This is an application for an extension of time to apply for leave to appeal against sentence.
3 The appellant was charged on indictment with four co-offenders, namely Serji Mansour, Andy Mannah, Niraj Singh and Stanley William James Nicholls.
4 The indictment contained three counts, as follows:
(a) Count 1 alleged that on or about 22 November 2011, at Bentley, the appellant, Mr Serji Mansour, Mr Mannah and Mr Singh detained Gary Anthony Visanich with intent to gain a benefit, namely of sum of money, contrary to s 332(2)(a) of the Criminal Code (WA) (the Code).
(b) Count 2 alleged that on the same date and at the same place as in count 1, the appellant, Mr Serji Mansour, Mr Mannah and Mr Singh, with intent to maim, disfigure, disable or do some grievous bodily harm to Mr Visanich, unlawfully did grievous bodily harm to Mr Visanich, contrary to s 294(1) of the Code.
(c) Count 3 alleged that on or about 22 November 2011, at Bentley, the appellant, Mr Serji Mansour, Mr Mannah and Mr Singh committed an indictable offence, namely with intent to maim, disfigure, disable or do some grievous bodily harm to Mr Visanich, unlawfully did grievous bodily harm to Mr Visanich, and that on 23 November 2011, at Bentley, Mr Nicholls, knowing that the appellant, Mr Serji Mansour, Mr Mannah and Mr Singh had committed that offence, assisted them in order to enable them to escape punishment, contrary to s 562 read with s 10(1) of the Code.
5 The appellant, Mr Serji Mansour, Mr Mannah and Mr Singh were convicted, after a trial in the District Court before Wager DCJ and a jury, on counts 1 and 2.
6 The maximum penalty for count 1 (being the offence created by s 332(2)(a) of the Code) is 20 years' imprisonment. The maximum penalty for count 2 (being the offence created by s 294(1) of the Code) is also 20 years' imprisonment.
7 The trial judge imposed sentences as follows:
(a) As to the appellant, 4 years' imprisonment on count 1 and 8 years' imprisonment on count 2. The sentences were ordered to be served cumulatively. The total effective sentence was therefore 12 years' imprisonment. That sentence was backdated to 6 September 2014. A parole eligibility order was made.
(b) As to Mr Serji Mansour, 3 years' imprisonment on count 1 and 8 years' imprisonment on count 2. The sentences were ordered to be served concurrently. The total effective sentence was therefore 8 years' imprisonment. The sentences were backdated to 7 September 2014. A parole eligibility order was made.
(c) As to Mr Mannah, 3 years' imprisonment on count 1 and 8 years' imprisonment on count 2. The sentences were ordered to be served concurrently. The total effective sentence was therefore 8 years' imprisonment. The sentences were backdated to 15 September 2014. A parole eligibility order was made.
(d) As to Mr Singh, 18 months' imprisonment on count 1 and 8 years' imprisonment on count 2. The sentences were ordered to be served cumulatively. The total effective sentence was therefore 9 years 6 months' imprisonment. That sentence was backdated to 10 January 2012. A parole eligibility order was made.
The facts and circumstances of the offending, the trial judge's sentencing remarks and the personal circumstances and antecedents of the appellant and his co-offenders
9 In 2011, the victim was living in Perth. He was a drug dealer. His business method was to acquire methylamphetamine oil from Sydney and then convert the oil into a more saleable form of the drug. The victim sold methylamphetamine in Perth. Some of the sales were made by an associate, Nicole Stokes. The victim incurred a significant debt, about $100,000 to $150,000, in relation to the acquisition of methylamphetamine oil or other methylamphetamine transactions. He owed the debt to the appellant.
10 Telephone records revealed that in the weeks preceding the offences the appellant was in contact with the victim about the debt. Text messages sent by the appellant to the victim became increasingly threatening in tone and content. The messages were consistent with the appellant deciding to injure the victim if the appellant was unable to recover the debt.
11 On 18 November 2011, the appellant sent a text message to the victim which stated:
Time's up. This is your last chance. You're a liar and will be treated that way.
12 Later on 18 November 2011, the appellant sent an abusive text message to the victim and other text messages threatening him with serious harm.
13 On 19 November 2011, the appellant sent more abusive and threatening text messages to the victim. The victim replied:
Hey, I'll have your money. It'll be here by Tuesday. I had to make up for what was lost and I was in a house that was raided yesterday.
14 The appellant responded:
I've heard it all before. I don't believe a word you say anymore. You've taken me for a fool one too many times and now that I'm back, it ain't going to happen again.
15 The victim reiterated that on Monday or Tuesday he would have the money to repay the debt.
16 On 20 November 2011, the appellant sent the victim a threatening text message and other text messages about the victim losing money at the casino and having 'too many chances'.
17 Further text messages, which were similar in content to those I have mentioned, passed between the appellant and the victim on 21 and 22 November 2011.
18 Shortly prior to 22 November 2011, the appellant approached Mr Serji Mansour, Mr Mannah and Mr Singh. They agreed, at the appellant's request, to accompany him from Sydney to Perth. The trial judge found that it was the appellant's intention that 'all four of you would enforce the debt one way or another and … that all four of you had joined into a criminal enterprise to enforce the outstanding drug debt owed by [the victim] by force if the money was not immediately forthcoming on your arrival in Western Australia' (ts 1827).
19 The appellant acquired the tickets for the flight from Sydney to Perth. Her Honour found that he came to Western Australia for one reason, namely to collect the debt, by any means, from the victim (ts 1827).
20 Prior to 22 November 2011, the appellant had telephoned and sent text messages to Ms Stokes, requesting her to communicate with the victim and 'keep him close'. The trial judge found that the appellant had 'some control over' Ms Stokes in that he arranged with her, and made sure she was complicit in, his plan to have the victim at her home on the night of 22 November 2011 when he arrived in Perth with his co-offenders (ts 1827).
21 On the night of 22 November 2011, after the appellant, Mr Serji Mansour, Mr Mannah and Mr Singh had arrived in Perth, the appellant and Mr Singh made telephone calls to Ms Stokes and ascertained that the victim and Mr Nicholls would be coming to her house. A taxi carrying the appellant and his co-offenders arrived at Ms Stokes' house at between 10.00 pm and 11.00 pm.
22 The appellant, Mr Serji Mansour, Mr Mannah and Mr Singh entered her house. A little later, the victim and Mr Nicholls arrived. The appellant and his co-offenders ambushed the victim. They detained him in the house against his will for a protracted period and assaulted him savagely.
23 The trial judge found that the assaults upon the victim 'were sustained and deliberately carried out to cause him significant pain and degradation and carried out with such force, consistent with the use of implements, as to lead to life threatening injuries' (ts 1829). The conduct of the appellant, Mr Serji Mansour, Mr Mannah and Mr Singh was a joint criminal enterprise. It was impossible to ascertain who inflicted specific injuries. Her Honour said it involved 'basically torture' (ts 1829). It was impossible for her Honour to determine the period of time during which the victim was detained and assaulted. She said, however, that it was 'for some time after 10 pm through until approximately 4 am' (ts 1829). Her Honour found that after the assaults the victim's appearance was 'very bad indeed' (ts 1829).
24 The appellant used the victim's mobile telephone, while the victim was being detained and assaulted, to contact various people.
25 Ms Stokes and her two children, one aged 11 years and the other 18 months, were in her house while the victim was being assaulted. They did not witness the assault, but Ms Stokes could hear noises made by the victim and the offenders.
26 When the appellant, Mr Serji Mansour, Mr Mannah, and Mr Singh had finished assaulting the victim, the appellant, Mr Serji Mansour and Mr Mannah made arrangements to return to Sydney. They travelled on a flight which left Perth at about 5.45 am. Mr Singh remained behind. Mr Singh and Mr Nicholls put the severely injured victim into a motor vehicle. They drove to Centenary Park and dumped him behind some bins. He was abandoned. The trial judge found that it was 'only by good luck that some women involved in an early morning exercise [programme] found [the victim]' and arranged for him to be taken by ambulance to hospital (ts 1829).
27 Mr Singh assisted Ms Stokes in cleaning her house with a view to removing evidence of the offenders' presence and the house having been a crime scene. Mr Singh then returned to Sydney.
28 In the months after the victim was assaulted, telephone intercept records revealed that the appellant and Mr Singh became aware that Ms Stokes had entered the witness protection programme. They endeavoured to obtain further information about her status.
29 The nature and extent of the injuries suffered by the victim are apparent from the reports of several medical practitioners. His injuries included significant burns to 14% of his total body surface; multiple traumas including a severe traumatic brain injury, bilateral orbital fractures and subdural, subarachnoid and intra-ventricular haemorrhages; deep wounds to his hands; lacerations to his upper back; and multiple bruises to his body. As a result of the assault, the victim was rendered unconscious. On admission to hospital he was put into an induced coma and placed on a ventilator. He did not regain consciousness until early January 2012.
30 There was no victim impact statement. However, the long-term effects of the assault are apparent from Dr Kathleen McCarthy's evidence at the trial. Dr McCarthy said the victim has 'pervasive, permanent and functionally limited cognitive deficit sufficient to preclude independent living in the community' (ts 869). He has 'very limited insight … believed he was still normal … and he saw no reasons why he could not return to work or do any of his previous tasks' (ts 871). His memory was 'markedly impaired' and he showed 'severe cognitive difficulties' in relation to mental flexibility (ts 871- 872). Dr McCarthy was of the opinion that the victim 'will have long-term cognitive difficulties that will preclude his returning to work and driving, has significant impairments in processing speed, concentration, planning and organisation judgment and reasoning and spatial skills' and he is 'likely to need assistance to manage day-to-day' (ts 874 - 876).
31 As to personal circumstances and antecedents:
(a) The appellant was born on 3 October 1972. He was aged 39 at the time of the offending and was 42 when sentenced. He has a prior criminal record including for drug and weapon offences. However, he did not have a relevant record for a period of about 10 years prior to the commission of the offences in question. He was born in Lebanon and migrated to Australia with his parents and siblings. The appellant is married and has five children. His wife is supportive of him. The appellant left school at the age of 13. Since then he has worked constantly. The appellant chose not to participate in the preparation of a psychological report. The trial judge found that he had demonstrated no remorse for his offending.
(b) Mr Serji Mansour was born on 28 April 1975. He was aged 36 at the time of the offending and was 39 when sentenced. He has a prior criminal record, predominantly for traffic offences, but has also committed drug and weapon offences. He is the appellant's brother. He was also born in Lebanon. The material before the trial judge in relation to Mr Serji Mansour included two psychological reports. One of the psychologists, Ms De Santa Brigida, was of the view that he suffered from a number of psychological difficulties including a major depressive disorder and post-traumatic stress disorder. Although her Honour took these matters into account, she found that they did not impact on Mr Serji Mansour's decision to become involved in the offending. He is married and has a young daughter. His wife is supportive of him. Mr Serji Mansour has a good work history. He did not express any remorse for his offending.
(c) Mr Mannah was born on 20 March 1985. He was aged 26 at the time of the offending and was 29 when sentenced. He has a prior criminal record including for drug and weapon offences. In 2013, he was sentenced in New South Wales to 2 years' imprisonment with a non-parole period of 12 months. He was released to parole on 14 February 2014. Mr Mannah was born in New South Wales. He has a young daughter from a relationship that ended in 2007. Mr Mannah left school at the age of 16. He has a number of trade qualifications and has successfully established two businesses. He has not shown any remorse for the current offending and refused to discuss the offences with the author of a pre-sentence report.
(d) Mr Singh was born on 18 November 1981. He was aged 30 at the time of the offending and was 33 when sentenced. He has no prior criminal record. Mr Singh had a positive and supportive upbringing. He completed secondary school and commenced tertiary education. He has worked as the manager of a convenience store, in the security industry and, more recently, as a truck driver. Mr Singh does not have a partner or any children.
32 The trial judge made the following findings and comments in relation to the appellant and his co-offenders in the context of parity:
(a) The appellant was the principal offender. He made contact with his co-offenders and recruited them to be part of the joint criminal enterprise. The appellant set up the offending conduct in respect of count 1 (that is, the deprivation of liberty offence) in an 'organised, calculated and cold manner' (ts 1835). Once the victim was deprived of his liberty, the grievous bodily harm with intent offence followed and the appellant departed immediately after that had occurred. In her Honour's view, the appellant's culpability in respect of count 1 was more serious than that of his co-offenders. However, the offending in respect of count 2 (the grievous bodily harm with intent offence) was a joint criminal enterprise and therefore required parity (ts 1832 - 1833, 1835). Her Honour decided that the individual sentences imposed on the appellant (being 4 years' imprisonment on count 1 and 8 years' imprisonment on count 2) should be served cumulatively.
(b) Mr Serji Mansour was not involved in the 'setting up of the deprivation of liberty [offence]', but he agreed to participate in it (ts 1838). Her Honour decided that Mr Serji Mansour's culpability was less than that of the appellant because the appellant was the principal offender who recruited his co-offenders and set up the deprivation of liberty offence (ts 1835). Her Honour decided that the individual sentences imposed on Mr Serji Mansour (being 3 years' imprisonment on count 1 and 8 years' imprisonment on count 2) should be served concurrently.
(c) The 'position' of Mr Mannah was 'consistent with that of Mr Serji Mansour' (ts 1839). Her Honour decided that the individual sentences imposed on Mr Mannah (being 3 years' imprisonment on count 1 and 8 years' imprisonment on count 2) should be served concurrently.
(d) Mr Singh's culpability for the overall offending was greater than that of Mr Serji Mansour and Mr Mannah because he 'used [his] connections to set up the subterfuge' in relation to the victim and he remained in Perth after the others had left 'to callously dump [the victim's] body' (ts 1840). However, Mr Singh did not have a prior criminal record. Her Honour took into account his more favourable personal circumstances and antecedents but, given the very serious nature of his overall offending, those personal matters carried less weight than they otherwise might have done. Her Honour decided that Mr Singh's role in relation to the subterfuge and his conduct after his co-offenders had departed required the imposition of a partly concurrent term for the deprivation of liberty offence. Accordingly, her Honour, in the application of the totality principle, reduced the individual sentence she would otherwise have imposed on count 1 from 4 years' imprisonment to 18 months' imprisonment, and ordered that the sentence of 18 months' imprisonment on count 1 and the sentence of 8 years' imprisonment on count 2 be served cumulatively.
The sole proposed ground of appeal
33 The sole proposed ground of appeal alleges that the total effective sentence of 12 years' imprisonment imposed on the appellant 'infringed the principle of parity when compared to the sentences received by' Mr Serji Mansour, Mr Mannah and Mr Singh.
34 The appellant does not allege that either of his individual sentences was manifestly excessive or that his total effective sentence infringed the totality principle.
The appellant's submissions
35 Counsel for the appellant submitted that there was 'a marked and clearly unjustifiable disparity' between the total effective sentence imposed on the appellant and the total effective sentences imposed on his co-offenders, in particular on Mr Singh.
36 According to counsel, the trial judge's finding that the appellant was the principal offender who recruited his co-offenders to participate in the joint criminal enterprise did not justify a total effective sentence that was 50% higher than the total effective sentences imposed on Mr Serji Mansour and Mr Mannah.
37 Counsel also argued that, while the appellant's culpability was greater than Mr Serji Mansour and Mr Mannah in that he was involved in planning the offending to a 'greater extent' than them, his culpability cannot reasonably be characterised as greater than that of Mr Singh who 'essentially stayed … in Western Australia to dump the body'.
The merits of the proposed ground of appeal
38 The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P, Pullin JA agreeing).
39 An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge.
40 In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a) the parity principle is based upon the norm of 'equality before the law' [28];
(b) equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c) equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
41 Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].
42 In the present case, the significant distinguishing feature, for sentencing purposes, between the appellant, on the one hand, and his co-offenders, on the other, was the appellant's role as the principal offender. As the trial judge found, the appellant made contact with his co-offenders and recruited them to be part of the joint criminal enterprise. Also, it was the appellant who set up the offending conduct in respect of count 1. Further, the purpose of the offending was to endeavour to recover the significant debt owed by the victim to the appellant. The appellant harassed and threatened the victim before travelling to Perth. By reason of all of those matters, the appellant was significantly more culpable than his co-offenders. The matters I have mentioned required the imposition of a longer total effective sentence on the appellant than the total effective sentence imposed on Mr Singh, despite Mr Singh's role in relation to the subterfuge concerning the victim and his conduct in dumping the severely injured victim behind some bins in Centenary Park. Mr Singh's personal circumstances and antecedents were more favourable than those of the appellant.
43 I am satisfied, after evaluating and weighing all relevant sentencing factors, in the context of the facts and circumstances of the offending by the appellant and his co-offenders, and after taking into account the similarities and differences between their roles in the offending and their personal circumstances and antecedents, that the total effective sentence imposed on the appellant by the trial judge did not infringe the parity principle or the principle of equal justice.
44 The proposed ground of appeal is without merit.
Conclusion
45 The proposed ground of appeal does not have a reasonable prospect of success. The application for an extension of time to apply for leave to appeal against sentence should therefore be dismissed.
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