Regina v Mangolini

[1999] NSWCCA 447

CITATION:	Regina v Mangolini [1999] NSWCCA 447
FILE NUMBER(S):	CCA 60565/98
HEARING DATE(S):	26 May 1999
JUDGMENT DATE:	26 May 1999
PARTIES :	Regina v Anthony Mangolini
JUDGMENT OF:	Barr J at 1,28; McInerney AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Coleman DCJ

COUNSEL:	P. Byrne SC & J. Peluso (Appellant) L.M.B. Lamprati (Crown)
SOLICITORS:	Direct Access (Appellant) C.K. Smith (Crown)
CATCHWORDS:
DECISION:	Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60565/98

BARR J
McINERNEY AJ

Wednesday, 26 May 1999

REGINA v ANTHONY MANGOLINI

JUDGMENT

1    BARR J: I will ask McInerney AJ to give the first judgment.

2    McINERNEY AJ: The applicant, Anthony Mangolini, seeks leave to appeal against sentences imposed upon him by his Honour Judge Coleman in the District Court on 11 September 1998 for the following offences.

Count 1: Break, enter and steal
. Count 2: Possess implements of safe-breaking and
Count 3: Steal conveyance.

3    In respect to the break, enter and steal his Honour sentenced him to a minimum term of two years less 210 days that the applicant had served in pre-sentence custody, with an additional term of one year. The minimum term was to commence on 5 September 2000 and expire on 6 February 2002 and the additional term of twelve months was to commence on 7 February 2002 and expire on 5 February 2003. The starting point of the sentence was brought about by the fact that the applicant at the time of sentencing by Judge Coleman was already serving a prison sentence and that the minimum term of that sentence expired in September 2000.

4    In respect to the other two matters he was sentenced to a concurrent sentence of twelve months on each and they were concurrent with the first sentence.

5    Initially, the applicant pleaded not guilty to the three charges and his trial commenced on 18 June 1998 before his Honour and a jury and concluded on 23 June 1998 when the jury returned a verdict of guilty on all three charges.

6    The facts are somewhat lengthy, but for the purpose of these proceedings the Crown case against the applicant was that he and other persons had broken and entered the house of a Mr and Mrs Parass during their absence overseas. It appeared somehow or other - which is not clear - that the applicant became aware of their absence and this was the house that was broken and entered.

7    It was the Crown case that the cutting and oxy implements found in the house after the theft had been in the possession of the applicant. The Crown case in respect to the motor vehicle, which was the family vehicle of the Parass family, which had been parked in the garage facing in one direction with the battery leads disconnected and was found facing in the opposite direction with its leads reconnected, had been used by the applicant during the owners' absence.

8    The jury quite clearly rejected the applicant's version of events at the trial. The owners of the premises had apparently left them on about 30 May 1996 for the purpose of visiting Greece. On the face of it, and on the evidence, the crime was a sophisticated one as there were alarms in the premises. The entry to the house was gained after disarming the burglar alarms by disconnecting external wires and gaining access to the house by jemmying a window in the bedroom/study area. The house was systematically plundered.

9    There were two safes in the house and they were broken into and the implements of safe-breaking and the welding kit were found in the vicinity of the floor safe in the laundry. A number of items were stolen, including PC equipment, a fax, various televisions and other equipment. Three trap safes were broken into. Various coins were stolen, including five Greek banknotes. The floor safe in the laundry was cut open and the contents were removed, which included coins which were part of a collection owned by the owner. In addition, jewellery, watches and papers were taken from the safe in the laundry. The total value of the items lost in the course of this activity was said to be $77,976, none of which was recovered, with the exception of the notes referred to.

10    His Honour, correctly in my view, categorised these offences as very serious ones. It was a deliberate and premeditated raid on the house of persons that the applicant was aware were overseas and the premises were systematically stripped of items of value.

11    It must be remembered that the legislature has provided a maximum sentence of fourteen years penal servitude for this offence, which shows how seriously the legislature regards this type of conduct.

12    His criminal record was a poor one and one which his Honour said does not entitle him to any leniency, although, as pointed out by Mr Byrne, it is nothing like the seriousness which this crime exposes.

13    His criminal record is set out at p 7 of the appeal book. It commenced in February 1987 with a number of traffic offences, goods in custody, in possession, steal Commonwealth property, two charges of possess prohibited drugs, more importantly possess a shortened firearm, and two charges of possess prohibited weapon and other motor vehicle offences, entering land or building without consent, forced entry and steal from a dwelling.

14    The problem this background discloses is a much more serious matter because at the time of the commission of these offences he was on two recognizances to be of good behaviour, first at Burwood on 10 October 1995 for a period of two years and at the Downing Centre Local Court on 3 May 1996 for a period of twelve months. In addition, at the time of the commission of the offences he was on bail for a number of offences to which he pleaded guilty at Penrith, and he was sentenced to a term of imprisonment.

15    He was twenty-seven years of age at the time of the sentencing and it appears he was addicted to heroin, which his Honour disregarded as an excuse or justification for what had occurred. His Honour, however, was prepared to accept that he was attempting to overcome his heroin addiction and concluded on the totality of the material before him that the applicant would benefit from a period of extended supervision.

16    It is necessary to set out the situation in respect of the various sentences he is at present serving. He was arrested for various offences on 11 October 1996 and was bailed for a period until he was refused bail on 8 May 1997. He was granted conditional bail on 15 March 1998. The applicant was sentenced in respect to other matters.

17    It was conceded at the sentencing before Judge Coleman that he had in fact served 210 days in pre-sentence custody and his Honour took that into account in assessing what he regarded as an appropriate sentence. He was sentenced having regard to the 210 days to two and a half years minimum sentence plus one year additional sentence. His Honour in fact sentenced him to two years from 5 September 2000, less the 210 days he had already served in pre-sentence custody, which would mean the minimum term would expire on 6 February 2002 and the additional term was to date from 7 February, a period of twelve months. In effect, that meant, having regard to the sentence for previous matters, that he would spend a period of some five and a half years in gaol, including the seven months pre-trial custody.

18    The minimum term in effect would be four and a half years in custody before being eligible to be released on parole on an additional twelve months. It was pointed out by Mr Byrne this was the first time he had been sentenced to a gaol sentence.

19    Two matters have been argued in regard to this. Firstly, Mr Byrne submits that the sentences imposed by Judge Coleman were not of an order of seriousness that would justify a sentence of the magnitude imposed by his Honour. Having regard to the circumstances of these offences as I have described them, and having regard to the legislature's provision of a maximum of fourteen years penal servitude, I cannot agree with that submission. I accept the description that Judge Coleman had of these offences and I agree that this was a most serious breach of that section. Therefore, I am not convinced that the sentence imposed by his Honour was excessive such as to cause intervention by this court.

20    However, a problem has arisen in respect to the question of special circumstances on two bases, as I see it. Firstly, that his Honour Judge Coleman did express a view that it would be beneficial for the applicant to receive more than the additional term than s 5(2) requires because of the fact of his attempts to overcome his addiction and, secondly, that were he to be released he would be in a position to obtain employment.

21    His Honour purported to give effect to that finding of special circumstances, but it appears to me that for some reason not clear his Honour had no regard to the question of accumulation of sentences upon those already being served by the applicant. Consequently, when his Honour concluded his sentencing, in effect the applicant received a minimum term of four and a half years and an additional term and that, in my view, did not give effect to his Honour's intentions to grant special circumstances.

22    In addition, there is another problem that his Honour did not advert to. That was that there was this question of the accumulation of the sentences imposed on the applicant. The authorities are clear and the practice has been in considering the question of special circumstances, where there is an accumulation of sentences, to ensure that the sentence is appropriate in all the circumstances and to make allowance for the overall totality of the sentencing on the question of special circumstances to the accumulation of sentences.

23    In this case his Honour made no reference to the question of the accumulation of sentences and I can only conclude that he gave no thought to that question.

24    Consequently, in my view, having regard to the matters that I have referred to, this is a case where this court should intervene. As I have already indicated, the sentence imposed by his Honour having regard to the objective seriousness of the offences was not such that would cause me to conclude that the sentences imposed were outside his Honour's sentencing discretion.

25    The applicant is a young man, twenty-six years of age. It must be borne in mind that this was the first sentence in gaol that he had to serve and there was evidence accepted by his Honour that he should obtain assistance in the manner in which I have referred. There is also the question of the accumulation.

26    There is a strange result in the order that I would propose; namely, that even with the extended additional term it seems it exceeds one-third of the total minimum term that the applicant will serve. Despite this anomaly, in my view the objective seriousness of the offences committed by the applicant are such that any lesser minimum term than that which I would propose would not, in my view, adequately reflect the very objective seriousness of the crime.

27    In respect to the sentences imposed by his Honour Judge Coleman, I would propose that the sentence in respect to the break, enter and steal be quashed. I would propose a sentence of one and a half years penal servitude from 5 September 2000 less 210 days, that is the minimum term, to expire on 7 August 2001 and that an additional term of one and a half years should be substituted commencing 8 August 2001, at which time he would be eligible to be admitted to parole. The remaining sentences are not to be disturbed.

28    BARR J: I agree. The orders of the court will therefore be as follows.

(1) Leave to appeal is granted and the appeal is allowed. The sentences on all three counts are quashed.

(2) The first count, the one of break, enter and steal, there is imposed a sentence of penal servitude comprising a minimum term commencing on 5 September 2000 and expiring on 7 August 2001 and an additional term of eighteen months commencing on 8 August 2001 and expiring on 7 February 2003.

(3) On each of the two other charges there is substituted a fixed term of penal servitude commencing on 5 September 2000 and expiring on 7 August 2001.

29    The special circumstances justifying an additional term exceeding one-third of the minimum term for the first count are as stated by McInerney AJ. The appellant will be eligible for release on parole on 7 August 2001.

********