R v Mansour (No 2) - [2005] NSWCCA 174

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Mansour (No 2) [2005] NSWCCA 174

FILE NUMBER(S):
2005/346

HEARING DATE(S): 2 May 2005

JUDGMENT DATE: 02/05/2005

PARTIES:
Regina v Fade Mansour (No 2)

JUDGMENT OF: Grove J Hulme J Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0003

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
J. Bennett SC (Crown)
G. Walsh (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
C. Hunter (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
ADJUSTMENT TO COMMENCEMENT DATES TO COORDINATE WITH VARIATION TO SENTENCES DEALT WITH SEPARATELY
NO SPECIAL POINT OF PRINCIPLE

LEGISLATION CITED:

DECISION:
APPEAL ALLOWED IN PART.
ORDERS VARIED.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/346
GROVE J
HULME J
SIMPSON J
2 May 2005

REGINA v FADE MANSOUR (No 2)

Judgment

GROVE J: This is an application for leave to appeal against severity of sentence imposed by Delaney DCJ at Parramatta District Court on 30 March 2004. On that occasion the applicant pleaded guilty to an offence of aggravated breaking, entering and stealing (the circumstance of aggravation being that he was in company) for which the maximum prescribed penalty is twenty years imprisonment. His Honour was also asked to take into account pursuant to the Form 1 procedure a further offence of aggravated breaking, entering and stealing committed in May 2002 and an offence of breaking, entering and stealing committed in July 2002. The principal offence was committed in May 2002 on a different date from that of the first offence in the Form 1 document.
His Honour sentenced the applicant to imprisonment for five years commencing on 14 October 2003 together with a non parole period of three years commencing on 14 October 2003 and expiring on 13 October 2006.
His Honour had also been asked to deal with the applicant on a call up for a breach of a recognizance, which had been entered on 24 March 1999 and he was sentenced in respect of the relevant offence to a fixed term of six months imprisonment dating from 14 October 2003 and which has expired on 13 April 2004.
This application is heard immediately following an application in respect of sentences imposed upon the applicant by Blackmore DCJ. The judgment in that application can be referred to without repeating its content. The offences dealt with by Blackmore DCJ had occurred on 16 October 2002, that is to say subsequent to the offences dealt with by Delaney DCJ, although the applicant was not sentenced by Blackmore DCJ until 30 May 2003.
It is common ground that there is an error in the terms of the present indictment which was continued in his Honour’s remarks on sentence asserting that the principal offence occurred on 29 May 2003 whereas the correct date is 29 May 2002. It is not suggested that anything turns upon this clerical error.
That offence involved the applicant and another breaking and entering a shop attached to a service station in the suburb of Horsley Park and stealing a quantity of tobacco, cigarettes and phone cards. His Honour recorded estimates that the property taken was valued over $6,000 and damage to the property in excess of $10,000 was caused.
The first charge on the Form 1 document related to theft from another service station at Lindfield in which cigarettes to the value of $2,200 were stolen. The second charge on the Form 1 related to a tobacco shop at Five Dock from which property to a total value of $47,583.90 was taken.
At the time of this offence the applicant was subject to recognizances granted to him at courts on 24 March 1999 and 19 June 2001 and 8 February 2002 and a further good behaviour bond in connection with a suspended sentence entered into on 19 June 2001. He was also on bail in respect of an offence of breaking, entering and stealing. The detail of most of these circumstances is contained in the earlier judgment to which I have made reference.
In this application the applicant relies upon two grounds, the first of which asserts that the sentence imposed did not allow for any or any sufficient discount for remorse.
It cannot be argued that his Honour failed to turn attention to submissions on behalf of the applicant in this regard. He recognized that the early guilty pleas provide some evidence of this but specifically he said:
“I now turn to remorse and contrition: I have already noted that his remorse was disclosed when speaking to professionals, whose reports have been tendered. I also note that this was indicated in his discussions with Ms Ilic and in his evidence to this Court. The extent of that remorse is to be qualified, however, because at that time, certainly when he was under the influence of drugs, he had no regard for public property, and seemed to undertake a course of conduct which involved breaking and entering at will. Although he said that he had some understanding of the effect he had on the victims of this crime, I consider that this statement should be accepted with some reserve”.
The findings indicated in that passage were clearly open to his Honour.
As was elaborated in the earlier judgment, the applicant had a long term problem with drug addiction and had made a number of efforts with considerable family support to free himself of his addiction. These efforts had failed and it seems to me to be an impeccable approach to consider that remorse should be treated with reserve when there is a history of repetitive offending. I am conscious in making this remark that Delaney DCJ was dealing with offences which had been committed before the offences ultimately dealt with by Blackmore DCJ.
My conclusion in short is that no error is demonstrated in the approach that his Honour took to considering what remorse and contrition the applicant may have harboured.
The second ground asserts that the sentence was manifestly excessive.
Apart from the aggravation of committing offences whilst on conditional liberty and the absence of entitlement to leniency by reason of prior offending, the offences needed to be gauged in terms of the considerable value of property stolen and the significant damage to the service station at Horsley Park.
Delaney DCJ was expressly aware of the sentences which had been imposed by Blackmore DCJ for the offences subsequently (to the offences before him) committed by the applicant. It is submitted that there is particular significance in that questions of totality became significant. There is no basis for perception that his Honour overlooked this and in fact he imposed the sentence in this case to commence two years before the applicant would have been eligible for release to parole in respect of sentences imposed by Blackmore DCJ.
However, as for the reasons given, this Court had intervened to vary the sentences in respect of the one sentence imposed by Blackmore DCJ which is still current, the benefit flowing from that would be lost to the applicant unless a coordinate order was made in the present case. I propose therefore that such an order be made but otherwise the grounds of appeal are not sustained and but for that aspect, I would reject the applicant’s appeal.
I propose the following orders:
(1)          Application for leave to appeal against sentence granted.
(2)          Appeal allowed in part and the orders in relation to commencement and expiry of the sentence imposed in the District Court be quashed, and in lieu thereof the applicant’s sentence of imprisonment for five years be directed to commence on 14 August 2003 with a non parole period of three years commencing on 14 August 2003 and expiring on 13 August 2006.
(3)          13 August 2006 specified as the earliest date of eligibility of the applicant for release to parole.
HULME J: I agree with the orders proposed and with the reasons of the presiding judge. I would add only this: In totality, the sentence imposed on the applicant for breaking, entering and stealing was of five years. He has now committed something over a dozen such offences and compared with the twenty year maximum there is much to be said for the view that the sentence imposed was light. If the applicant continues to reoffend the time must soon come where any judge sentencing him should pay more attention to the upper range of sentences available.
SIMPSON J: I agree with the orders proposed by the presiding judge and the reasons given by him.
GROVE J: The orders of the Court will therefore be as I have proposed.

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LAST UPDATED: 10/05/2005