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…

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 Mansour (No 2)

Details

AGLC: R v Mansour (No 2) [2005] NSWCCA 174
Case: [2005] NSWCCA 174
Decision Date: 2 May 2005

CaseChat Overview and Summary

In the matter of R v Mansour (No 2), the accused faced sentencing proceedings in the Supreme Court of Victoria. The case involved the defendant's role in a drug trafficking operation, culminating in a conviction for multiple drug-related charges. The prosecution sought appropriate sentencing, while the defence argued for a lenient approach, emphasising the defendant's otherwise clean criminal record and personal circumstances.

The primary legal issue before the court was to determine the appropriate sentence for the defendant, considering both the severity of the crimes and the mitigating factors presented. The court was also tasked with addressing the defendant's request to adjust the commencement dates of his sentences to align with a variation in the sentences that was being dealt with in a separate proceeding. The court needed to consider the principles of sentencing and the potential impact of these adjustments on the overall punishment and rehabilitation of the defendant.

The court commenced its analysis by examining the nature and circumstances of the drug trafficking offences, acknowledging the significant harm caused to the community. It then considered the mitigating factors, including the defendant's otherwise good character and his cooperation with law enforcement. In determining the sentence, the court balanced these factors and imposed a custodial sentence, taking into account the need for deterrence, denunciation, and rehabilitation. Regarding the adjustment of sentence commencement dates, the court found that while it was a matter of judicial discretion, there was no special point of principle that required the sentences to commence on specific dates. Therefore, the court decided to coordinate the commencement dates with the variation in sentences being dealt with separately.

The final orders of the court included the imposition of a custodial sentence for the defendant, along with the adjustment of sentence commencement dates as requested. The defendant was also ordered to pay a fine and a victim surcharge. The court's decision reflected a balanced approach to sentencing, taking into account both the severity of the crimes and the mitigating factors presented.

Orders