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R v Mangelen

R v Mangelen

Case [2009] VSCA 63 2 April 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 801 of 2007

THE QUEEN
	v
SEIFU MANGELEN

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JUDGES:	ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	19 and 31 March 2009
DATE OF JUDGMENT:	2 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 63	1^st Revision 2 April 2009 [10]-[28]

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CRIMINAL LAW – Sentence imposed before parole cancelled – R v Alashkar & Tayar (2007) 17 VR 65 applied – Fresh evidence adduced of cancellation of parole, length of parole sentence and events occurring in prison after sentence which made sentence more burdensome – Parole sentence one year and ten months – Further sentence imposed of 18 months, six months cumulative on sentences being served – Total additional sentences two years and four months – Totality principle – Limits to which it should result in reduction of sentence – Total sentence not an unjust or inappropriate measure of total criminality involved – Applicant failing to discharge burden of establishing that events in prison were not a consequence of his conduct – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Ann Valos Criminal Law

ASHLEY JA:

I agree with Redlich JA, for the reasons which his Honour gives, that this appeal should be dismissed.

REDLICH JA:

On 25 June 2007, the appellant was sentenced by a judge of the County Court to a total effective sentence of six years and four months’ imprisonment, with a non-parole period of five years, on one count of aggravated burglary, two counts of theft, one count of possession of a drug of dependence and one count of being a prohibited person in possession of a registered firearm. It was noted in the court records that he had served 400 days of pre-sentence detention.

A summary of the offences to which the appellant pleaded guilty is conveniently set out in the sentencing remarks of the learned sentencing judge.

On 21 June 2006, about 1.10p.m; you went to the rear of a property at Unit 1, 210 Wilsons Road, Whittington. You had with you a bag which contained various tools, screwdrivers, pliers, a pen light and tin snips and you also had with you a point 22 calibre sawn-off-rifle. You forced open the rear door and entered the unit. You searched through the bedrooms and cupboards and removed items of property and placed them in a blue coloured suitcase, which you also located in the unit.
At about 1.15pm.; the victims Ronald Casey and Sue Winter returned home from shopping and entered the unit via the front door. As they entered the hallway you confronted them and pointed the point 22 firearm at them. You told them to get into the unit and shut the door. Winter dropped the shopping bag and handbag she was carrying to the floor, turned around and ran from the unit to call police from a neighbouring flat.
The victim…

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 R v Mangelen

Details

AGLC: R v Mangelen [2009] VSCA 63
Case: [2009] VSCA 63
Decision Date: 2 April 2009

CaseChat Overview and Summary

The case of R v Mangelen involved a defendant appealing his sentence. The defendant had been sentenced to an initial term in prison, followed by a parole sentence. However, fresh evidence emerged that the parole had been cancelled, the length of the parole sentence was shorter than originally thought, and there had been events in prison that made the sentence more burdensome. The defendant argued that these factors should lead to a reduction in his sentence under the totality principle. The defendant further argued that the events in prison, which he claimed were not a consequence of his conduct, should be taken into account.

The court was required to determine whether the fresh evidence about the parole cancellation, the length of the parole sentence, and the events in prison justified a reduction in the defendant's sentence. The court also had to consider the limits of the totality principle and whether the defendant had discharged the burden of proving that the events in prison were not a consequence of his conduct.

The court found that the fresh evidence did not justify a reduction in the defendant's sentence. The court noted that the parole sentence had been one year and ten months, and the further sentence imposed was 18 months, six months of which were cumulative on sentences being served. This resulted in a total additional sentence of two years and four months. The court held that the totality principle should not result in a reduction of the sentence to the extent that it would become an unjust or inappropriate measure of the total criminality involved. Furthermore, the defendant had failed to discharge the burden of establishing that the events in prison were not a consequence of his conduct.

The appeal was dismissed. The court held that the sentence was not an unjust or inappropriate measure of the total criminality involved, and the defendant had not discharged the burden of proving that the events in prison were not a consequence of his conduct. The court found that the totality principle did not justify a reduction in the defendant's sentence.

Orders